The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 19, 2005
No. 04-14644 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00156-CV-P-S
HOLLIS B. BARRON,
Plaintiff-Appellant,
versus
FEDERAL RESERVE BANK OF ATLANTA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 19, 2005)
Before BIRCH, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Hollis Barron, an African-American male, appeals the district court’s grant
of the Federal Reserve Bank of Atlanta’s motion for summary judgment on his
42 U.S.C. §§ 1981, 2000e et seq. employment discrimination claims. He also
appeals the district court’s decisions (1) to grant the motion to sever the claims of
six other plaintiffs from the civil action against the Federal Reserve Bank of
Atlanta (“FRBA”), and (2) to deny his motions to strike declarations for failure to
disclose information under Fed. R. Civ. P. 26(a). Upon review of the record and
consideration of the parties’ briefs, we discern no reversible error.
A. Employment Discrimination Claims
Barron first argues that the district court erred in concluding that his
42 U.S.C. § 1981 claims were subject to a two-year statute of limitations because
in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S. Ct. 1836 (2004), the
Supreme Court held that the four-year statute of limitations under 28 U.S.C.
§ 1658 applied to claims covered by the 1991 amendment to § 1981, which
included failure to promote claims. Second, Barron contends that the court
erroneously made a finding on a dispositive and contested fact by determining that
FRBA employee Ashley Patrick’s promotion to a Grade 27 Financial Services
Operations Analyst position from a Grade 26 Quality Control Analyst position was
a career progression instead of a vacancy. Third, Barron argues that the district
court erred in determining that FRBA articulated a legitimate, nondiscriminatory
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reason for hiring Michael Jadwin as a Supervisor in Check Collections because
FRBA did not specify how the internal candidates were examined for the Check
Collection Supervisor position. Fourth, Barron states, in an issue heading to a
section of his appellate brief, that the district court erred in determining that his
failure to amend his EEOC charge allowed for summary judgment on the Tommy
Baswell, Jeremy Whitley, and Blake Andrus claims. However, Barron then argues
a completely different issue by asserting that his complaint was sufficient under
Fed. R. Civ. P. 8, and if the district court required heightened pleading, it should
have allowed Barron to amend his complaint under Fed. R. Civ. P. 15(a).
We review de novo a district court’s decision to grant summary judgment.
Maynard v. Board of Regents, 342 F.3d 1281, 1288 (11th Cir. 2003). “A party
seeking summary judgment must demonstrate 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.’ The moving party bears the initial burden of informing the court of the basis
for its motion and of identifying those materials that demonstrate the absence of a
genuine issue of material fact.” Rice-Lamar v. City of Ft. Lauderdale, Fla.,
232 F.3d 836, 840 (11th Cir. 2000) (citations omitted). In determining whether
genuine issues of material fact exist, we resolve all ambiguities and draw all
reasonable inferences in favor of the non-moving party. Id. “The court may not
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weigh evidence to resolve a factual dispute; if a genuine issue of material fact is
present, the court must deny summary judgment.” Holifield v. Reno, 115 F.3d
1555, 1561 (11th Cir. 1997).
1. 42 U.S.C. § 1981 Claims
Barron has waived his claim that the four-year statute limitations period
under 28 U.S.C. § 1658 applied to his § 1981 failure to promote allegations
because he did not raise the argument with the district court. See Cooper, 390 F.3d
at 727 n.19, 734. While the Supreme Court issued its Jones decision after Barron
filed his brief in response to FRBA’s motion for summary judgment, Jones should
not change this Court’s waiver analysis because the argument that the four-year
limitations period applied to § 1981 claims was not a novel argument when Barron
filed his opposition brief. See e.g., Taylor v. Ala. Intertribal Council Title IV
J.T.P.A., 261 F.3d 1032, 1034 (11th Cir. 2001) (refusing to consider the argument
that the statute of limitations on appellant’s § 1981 employment discrimination
claim was the four year statute of limitations under 28 U.S.C. § 1658 because
immunity applied). Therefore, Barron could have argued the statute of limitations
issue before the district court, but he did not. Accordingly, he has waived this
issue on appeal.
2. Title VII Claims
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Under Title VII, it is unlawful “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 claim of race discrimination
can be made with direct or circumstantial evidence. See Maynard, 342 F.3d at
1288. In a circumstantial evidence case, “[t]o establish a prima facie case of
discriminatory failure to promote, a plaintiff [generally] must prove: (1) that he is a
member of a protected class; (2) that he was qualified for and applied for the
promotion; (3) that he was rejected; and (4) that other equally or less qualified
employees who were not members of the protected class were promoted.” Denney
v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001) (citation and internal
quotation omitted).
An employee who has not applied for a job opening can still establish a
prima facie case of discrimination in two circumstances. First, “nonapplicants may
be entitled to relief where the employer’s clear policy of exclusion would make an
application a useless exercise,” which requires a two-part showing: (1) “[the
nonapplicant] would have applied but for discrimination”; and (2) “[the
nonapplicant] would have been discriminatorily rejected had he applied.” Cox v.
American Cast Iron Pipe Co., 784 F.2d 1546, 1560 (11th Cir. 1986). Second,
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when no policy of exclusion or formal notice of a job exist, an employer “has a
duty to consider all those who might reasonably be interested,” so a prima facie
case will be established when the employee shows that “the company had some
reason or duty to consider him for the post.” Id.
Once the plaintiff establishes a prima facie case of discriminatory failure to
promote, the defendant has the burden to produce a legitimate, non-discriminatory
reason for its decision. Id. “[T]he defendant’s burden of rebuttal is exceedingly
light. . . . At this stage of the inquiry, the defendant need not persuade the court
that its proffered reasons are legitimate; the defendant’s burden is merely one of
production, not proof.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.
2004) (citation and internal quotation omitted). “If such a reason is produced, a
plaintiff then has the ultimate burden of proving the reason to be a pretext for
unlawful discrimination.” Denney, 247 F.3d at 1183.
a. Promotion of Ashley Patrick
Because Barron did not apply for the position that Patrick received, he
could only establish a prima facie case by showing (1) a clear policy of exclusion
made it futile for him to apply, or (2) the company had a duty to consider him for
the position. See Cox, 784 F.2d at 1560. Barron argues that the district court
improperly made a factual finding that Patrick’s promotion was a result of a career
6
progression despite contrary evidence that Patrick’s promotion was not in fact a
progression. A district court is not to weigh evidence to resolve a factual dispute.
See Holifield, 115 F.3d at 1561. Accordingly, we agree that the district court
should not have found that Patrick’s promotion constituted a career progression in
light of the conflicting evidence.
However, this error was harmless because, regardless of the type of
promotion, Barron can not establish a prima facie case of discrimination on the
basis of race. Specifically, Barron provides no evidence that FRBA had a reason
or duty to consider him for the Grade 27 Financial Services Analyst Operations
position that Patrick received or that a clear policy of exclusion existed. See Cox,
784 F.2d at 1560. Instead, the evidence suggests that Barron was not qualified for
the position and FRBA had no duty to consider him for the Grade 27 position.
First, Barron had no experience as a Quality Control Analyst. Barron was in
the Protection Department, which protected FRBA’s Birmingham branch and
employees, and therefore his duties would have been different from those of a
Quality Control Analyst. Without this experience, Barron was not qualified for a
Grade 27 Financial Services Operations Analyst position because Patrick’s and
Smith’s experiences indicate that the Grade 26 Quality Control Analyst position
was a prerequisite for the Grade 27 position. Also, Barron fails to point to any
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evidence indicating that his experience as a supervisor in the Check Collection and
Payment Services Departments prepared him for the Grade 27 position. Finally,
Barron was viewed as being difficult to work with at FRBA. Barron was
repeatedly told to improve his interpersonal skills and communication. Prior to
moving to the Protection Department, Barron received two consecutive “Below
Requirements” performance ratings. According to Andre Anderson, the former
Branch Manager of the Birmingham Branch and current Vice President of FRBA
in Atlanta, “Below” Requirements” ratings often resulted in demotion or
disciplinary action up to and including termination.
Therefore, the district court’s factual finding regarding the “availability” of
the Grade 27 position was harmless error because we agree with the district court
that Barron was not qualified for the promotion regardless of whether it was
available.1 Moreover, even if Barron was arguably qualified for the position,
Barron has not shown that FRBA had a reason or duty to consider him for the
position. Further, even if FRBA had considered Barron for the position, Barron
1
In Myricks v. Federal Reserve Bank of Atlanta, No. 04-12246 (11th Cir. March 7,
2005), we vacated and remanded the district court’s grant of summary judgment in favor of
FRBA where another African American employee alleged discrimination relating to the
promotion of Patrick. Notably, in Myricks, the district court stopped its analysis after
conclusively determining that the promotion was a career progression and hence unavailable to
Barron. In the instant case, the district court also erroneously decided that the position was a
career progression promotion and thus unavailable to Barron, but continued the analysis and
reached the conclusion that regardless of the availability of the Grade 27 position Barron did not
produce evidence that he was qualified for the position or that FRBA had a duty to consider him.
8
has not offered any evidence to show that, compared to him, Patrick was equally or
less qualified.
We conclude that Patrick’s promotion to a Grade 27 Financial Services
Analyst Operations position is not evidence of discrimination because Barron
failed to show that he was qualified for the position or that FRBA had a duty to
consider him for the position as he had no prior experience in the position and was
in the Protection Department when FRBA promoted Patrick.
b. Hiring of Michael Jadwin
Assuming arguendo that Barron established a prima facie case of
employment discrimination based on FRBA’s decision to hire Jadwin, Barron still
cannot show discrimination. FRBA met its burden of producing a legitimate,
non-discriminatory reason for not hiring any internal candidates. Namely, FRBA
did not believe that any internal candidates were qualified. While Barron appears
to argue that FRBA’s burden of production included specifying how internal
candidates were hired, he overstates FRBA’s “exceedingly light” burden, which is
one of production. See Cooper, 390 F.3d at 725. The burden of persuasion
remains with Barron. See e.g., Denney, 247 F.3d at 1183. Therefore, he must
prove that the reason provided was pretextual. On appeal, Barron relies on this
Court agreeing with his argument that FRBA did not meet its burden of
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production, and as result, points to no evidence of pretext. Therefore, FRBA’s
decision to hire outside candidates does not support a claim of disparate treatment
because (1) FRBA met its burden of production, namely that there were no
qualified internal candidates, eliminating the presumption of discrimination, and
(2) Barron failed to present any arguments regarding pretext on appeal.
We conclude that FRBA’s decision to hire Jadwin as a Check Collections
Supervisor is not evidence of discrimination because FRBA’s explanation that
there were no qualified internal candidates was a legitimate, non-discriminatory
reason and Barron failed to argue that the reason was pretext on appeal.
3. Amendment of the EEOC Charge
Barron has abandoned the argument raised in an issue heading that the
district court improperly determined that his failure to amend his EEOC complaint
precluded him from using the promotion of Baswell and the hiring of Whitley and
Andrus as evidence of discrimination. Instead of arguing whether he should have
amended his EEOC complaint, Barron contends that his civil complaint was
sufficient under Fed. R. Civ. P. 8, or, alternatively, the district court should have
allowed him to amend his complaint. These arguments do not address the merits
of the issue raised in the issue heading. Therefore, Barron has waived this issue on
appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th
10
Cir. 2004); Kelliher v. Veneman, 313 F.3d 1270, 1274 n.3 (11th Cir. 2002)
(holding that appellant’s reference to an EEOC retaliation claim in the summary of
the argument constituted a waiver of the issue because it was not argued on the
merits).
Also, we will not consider the arguments regarding the sufficiency of
Barron’s civil complaint or Barron not being allowed to amend the complaint
because: (1) the district court did not grant summary judgment on either of these
grounds; (2) Barron never moved to amend his complaint; and (3) even if these
were valid arguments, Barron waived them because he never raised these
arguments in the district court. See Four Seasons Hotels and Resorts, B.V. v.
Consorcio Barr, S.A., 377 F.3d 1164, 1168-69 (11th Cir. 2004).
B. Motion to Strike
Barron argues that the district court should have struck the declarations of
Dennis Blass and Andre Anderson because he was not provided with the subject of
the discoverable information that Blass and Anderson had in support of FRBA’s
claims as required by Fed. R. Civ. P. 26(a)(1)(A). Without this information,
Barron alleges that the declarations should have been struck under Fed. R. Civ. P.
37(a) because he was deprived of an opportunity to conduct discovery regarding
the substance of Anderson and Blass’s declarations.
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We review a district court’s decision regarding a discovery motion such as a
motion to strike evidence for an abuse of discretion. See Benson v. Tocco, Inc.,
113 F.3d 1203, 1208 (11th Cir. 1997). Also, we review a district court’s decision
whether to impose sanctions for an abuse of discretion. See SCADIF, S.A. v. First
Union Nat., 344 F.3d 1123, 1130 (11th Cir. 2003).
Under Fed. R. Civ. P. 26(a), a party must provide the other parties with,
inter alia, “the name and, if known, the address and telephone number of each
individual likely to have discoverable information that the disclosing party may use
to support its claims or defenses, unless solely for impeachment, identifying the
subjects of the information.” Fed. R. Civ. P. 26(a)(1)(A). Northern District of
Alabama Local Rule 26.1(a)(1)(A) requires that parties “provide to other parties
the name and, if known, the address and telephone number of each individual
believed by it to have discoverable non-privileged personal knowledge concerning
any significant factual issue specifically raised in the pleadings or identified by the
parties in their report to the court under Fed. R. Civ. P. 26(f), appropriately
indicating the subjects about which the person has such knowledge.” N.D. Ala.
Local R. 26.1(a)(1)(A). However, if a party fails to make a disclosure under Rule
26(a), “any other party may move to compel disclosure and for appropriate
sanctions.” Fed. R. Civ. P. 37(a)(2). “A party that without substantial justification
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fails to disclose information required by Rule 26(a) . . . is not, unless such failure is
harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any
witness or information not so disclosed.” Fed. R. Civ. P. 37(c)(1). Rule 37(c),
which is a “self-executing sanction for failure to make a disclosure,” is “the more
effective enforcement” mechanism of the disclosure requirement when “the party
required to make the disclosure would need the material to support its own
contentions.” Fed. R. Civ. P. 37, advisory committee’s note (1993).
As an initial matter, Barron waived his claim that Blass’s and Anderson’s
declarations were not based on personal knowledge because he raised it for the first
time in the reply brief. See Lind v. United Parcel Service, Inc., 254 F.3d 1281,
1283 n.2 (11th Cir. 2001). Also, the district court did not abuse its discretion in
denying the motion to strike Anderson’s and Blass’s declarations. Because
Anderson and Blass were identified in FRBA’s Rule 26 disclosures,2 Barron knew
that they were individuals with discoverable information and could have contacted
the attorneys for FRBA for clarification or further information about the subject of
the discoverable information that they had. Also, because Barron knew the roles of
Blass and Anderson in FRBA, he could have inquired into the extent of their
2
While FRBA’s Rule 26 disclosures are not part of the record, the parties apparently
agree that Anderson and Blass were identified as individuals with discoverable information
because Barron did not challenge FRBA’s assertion that it had provided Blass’s and Anderson’s
names in its Rule 26 disclosures.
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knowledge regarding his claims. There is no indication that Barron sought such
information before the motion to strike.
Also, FRBA was substantially justified in not providing the subject of the
discoverable information that Blass and Anderson had because they were never
mentioned in the civil complaint as perpetrators of discrimination and the nature of
the complaint did not reveal what relevant information Blass and Anderson might
possess. See Fed. R. Civ. P. 37, advisory committee notes (1993) (“Limiting the
automatic sanction to violations ‘without substantial justification’ . . . is needed to
avoid unduly harsh penalties . . . .”). As the district court explained, Barron’s shot
gun complaint did not clearly indicate what role any individuals within FRBA
would have had in the alleged discrimination. Further, the district court’s
scheduling order specifically directed the parties to exchange information required
by Local Rule 26.1(a)(1), which only requires the name of individuals who have
“personal knowledge concerning any significant factual issue specifically raised in
the pleadings or identified by the parties in their report to the court.” Because the
complaint was vague and failed to name Blass or Anderson as perpetrators of
discrimination, it did not reveal a significant factual issue regarding Barron’s
claims over which Blass and Anderson necessarily would have had information.
Nor is there any indication that Blass or Anderson were identified in the parties’
14
report to the court. Therefore, FRBA complied with the Local Rule.
Accordingly, we conclude that the district court did not abuse its discretion
in denying the motion to strike.
C. Motion to Sever
Barron argues that the district court should not have granted the motion to
sever the seven plaintiffs’ claims into separate actions because: (1) he did not have
any opportunity to respond before entry of the court’s order to sever; and (2) the
seven co-plaintiffs’ promotion claims were “strikingly similar and connected”
because they alleged a pattern and practice of keeping black employees in lower
level jobs.
Ordinarily, we review a district court’s grant of a motion to sever for an
abuse of discretion. See Bailey v. Board of County Comm’rs of Alachua County,
Fla., 956 F.2d 1112, 1128 (11th Cir. 1992). When a party fails to raise an
argument or issue below, we generally deem the issue to be waived. See e.g., Four
Seasons Hotels and Resorts, 377 F.3d at 1168-69. Nevertheless, we may review an
issue or argument not raised below when: (1) it involves “a pure question of law if
the refusal to consider it would result in a miscarriage of justice”; (2) the objection
is not raised in the court below because “the appellant had no opportunity to raise
the objection”; (3) “there is at stake a substantial interest of justice”; (4) “the
15
proper resolution is beyond any doubt”; and (5) “if the issue presents significant
questions of general impact or great public concern.” In re Worldwide Web
Systems, Inc., 328 F.3d 1291, 1301 (11th Cir. 2003).
Barron has waived this issue on appeal because he never objected to the
district court’s decision to sever below and none of the waiver exceptions are
applicable. See id.; Four Seasons Hotels and Resorts, 377 F.3d at 1168-69.
Barron’s contention that he had no opportunity to oppose the motion to sever due
to the district court’s quick decision to sever the claims following FRBA’s motion
is unpersuasive and does not fall within an exception to the waiver rule because
Barron could have sought reconsideration of the court’s severance order.
Therefore, we conclude that Barron has waived this claim on appeal for failure
failed to contest the decision during the district court proceedings.
For the foregoing reasons, we AFFIRM the district court’s orders
(1) granting summary judgment in favor of FRBA, (2) denying the motions to
strike declarations, and (3) granting the motion to sever.
AFFIRMED.
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