Petition for Writ of Certiorari — Carl A. Robertson, Petitioner v. Interactive College of Technology, et al.

Supreme Court briefOct 9, 2018

Ask Donna

What actually matters in this document.

Text

IN THE

Supreme Court of the United States

CARL A. ROBERTSON, SR.

Petitioner,

INTERACTIVE COLLEGE OF TECHNOLOGY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Eleventh Circuit

APPENDIX

TO WRIT OF CERTIORI

Carl A. Robertson, Sr.

120 NW 4411, Street, Apt NJ

Lawton, Oklahoma, 73505

(678) 409-9645

carobertson58@yahoo.com

PRO SE LITIGANT

October 10, 2018

Corrected copy dated for October 26, 2018

APPENDICES

PAGE No.

Appendix A9 Opinion Eleventh Circuit (7116/2018)

Court of Appeals

Ia— 20a

Appendix 13, Order of the U.S. District Court (2/15/2017)

.....

....

for the Northern District of Georgia

21a

Appendix C, Report and Recommendation (1/13/2017)

SJM of the Magistrate, Northern District of Georgia

.........

Appendix 09 Report and Redmmendation (7/13/2016)

of the Magistrate Judge, Northern District of Georgia

[Motion to Reconsider] ........

Appendix E, Order of the U.S. District Court,

(4/14/2016) NDGA [Denial Motion to Amend] ..........

31a

I03a

104a —121a

Appendix F, Order of the U.S. District Court, (9/2/2015)

NDGA [Motion to Dismiss] ................................ .

....

122a —133a

134a —144a

Appendix G, Order of the Magistrate Judge, (2/19/2015)

145a —146a

NDGA [Scheduling Order] ...................................

....

Appendix H, Segments: Defendants Initial

Disclosures

.....................

Appendix 19 Segments: Plaintiffs Joint

Preliminary Report and Discovery Plan ......................

.,.

147a-148a

149a —151a

Appendix J, Segments: Appellant's

. ia —177a

AppealBrief ........................................ ......... . ..............

Appendix K, Segments: Appellant's Appeal

Reply Brief ...............

Appendix L9 Segments of Witness Affidavits

And Exhibit Index Motion to Amend and

Appendix SJM Exhibits

.......

.....................

l78a —193a

.................

194a— 213a

Case: 1741152 Date Fed: 07/16/2018

Page: 1 of 21

[DO NOT PUBLISHJ

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-11152

Non-Argument Calendar

D.C. Docket No. 1:14-cv-02728-1VIHC

CARL A. ROBERTSON,

Plaintiff-Appellant,

versus

INTERACTIVE COLLEGE OF

TECUNOLOGY/INTECTIVE LEARNING

SYSTEMS, INC.,

a Georgia for Profit College,

ELMER SMITH,

individually and in his capacity as

Owner and Campus President,

THOMAS BLAIR,

individually and in his capacity as Vice

President/Dean of College,

Defendants-Appellees.

Appeal from the United States District court

for the Northern District of Georgia

(July 16, 2018)

Case: 1741152 Date Fiied: 07/1612018

Page: 2 of 21

Before MARCUS, HULL and JULIE CAJRMS, Circuit Judges.

PER CiJFJAJ{:

Carl Robertson, Sr., proceeding pro Se, appeals the district court's denial of

his motion for leave file an amended complaint and grant of summary judgm

ent to

his former employer, the interactive College of Technology ("ICT"), on

his race

discriminatn and retaliation claims, raised pursuant to Titles VI and VII

of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. and 2000e et se, the

Lilly

Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009),

and 42

U.S.C. § 1981. On appeal, he argues that the district court erred when it:

denied him leave to file a proposed amended complaint; (2) refused to

consider

certain evidence on summary judgment; (3) granted summary judgment

him on his wage discrimination claim, his race discrimination claim,

(1)

against

and his

retaliation claims; and (4) concluded that he did not have standing to bring

a Title

VT claim on behalf of a student. After thorough review, we affirm.'

We review the denial of a motion for leave to amend a complaint for abuse

of discretion. Covenant Christian Ministries, Inc. v. City of Marietta, 654

F.3d

1231, 1239 (11th Cu. 2011). Likewise, we review the decision of a distric

t court

to enforce its pre-trial scheduling order for abuse of discretion. Sosa v.

All-print

Robertson did not raise any arguments in his initial brief about the district

court's denial

of his § 1981 claims against all the defendants. Accordingly, lie has abandoned

all issues related

to those claims on appeal. See United States v. Jernigan, 341 F.3d 1273,

1283 n.8 (11th Cir.

2003) (holding that a party abandons all issues on appeal that he does not

plainly and

prominently raise in his initial brief).

Case: 17-11152 Date Fed: 07116/2018 Page: 3 of 21

Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998). A district court's decision will

not be disturbed on abuse-of-discretion review if it falls within a range of

permissible choices, and is not influenced by a mistake of law. Zocaras v. Castro,

465 F.3d 479, 483 (11th Cir. 2006). We also review a ruling on the admissibility

of evidence for abuse of discretion, and we will not overt urn an evidentiary ruling

unless the moving party establishes a substantial prejudicial effect. Goldsmith v.

Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir. 2008).

We review standing determinations de novo. Bochese v. Town of Ponce

Inlet, 405 F.3d 964, 975 (11th Cir. 2005). We also review de novo a district

court's grant of summary judgment, drawing all reasonable inferences in the light

most favorable to the non-moving party. Ouigg v. Thomas Cty. Sch. Dist., 814

F.3d 1227, 1235 (11th Cir. 2016). Summary judgment is proper only when the

movant has shown that no genuine dispute of material fact exists, and the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To survive a

motion for summary judgment, the plaintiff must have produced sufficient

evidence to allow a reasonable jury to conclude that he is entitled to a verdict in his

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "The mere.

existence of a scintilla of evidence in support of the plaintiff's position" and

conclusory allegations are insufficient to defeat a motion for summary judgment.

Id.; Pullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).

32a

Case: 17-11152 Date Fed: 07/1612018

Page: 4 or 21

First, we are unpersuaded by Robertson's claim that the district court abused

its discretion by denying him leave to file an amended complaint and attachments

as futile and out-of-compliance with court deadlines. Unless otherwise specified, a

party may amend its pleading "only with the opposing party's written consent or

the court's leave," though "[tjhe court should freely give leave when justice so

requires." Fed. R. Civ. P. 15(a)(2). However, the court may deny leave to amend

due to undue delay. Maynard v. Bd. of Regents of Div. of Univs. of Fin. Dep't of

Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1287 (11th Cir. 2003).

A district court in a civil action shall issue a scheduling order in which it

must limit the time to amend the pleadings. Fed. R. Civ. P. 16(b)(3)(A). Once a

scheduling order is entered, a party must demonstrate good cause for seeking leave

to amend its complaint after the deadline. S. Grouts & Mortars, Inc. v. 3M Co.,

575 F.3d 1235, 1241 (11th Cir. 2009); Fed. R. Civ. P. 16(b)(4).

A lack of

diligence in pursuing a claim is sufficient to show a lack of good cause. S. Grouts

& Mortars, 575 F.3d at 1241. Similarly, a relevant factor in concluding that a court

did not abuse its discretion in denying leave to amend is that "the information

supporting the proposed amendment to the complaint was available to [the

plaintiff] even before [he] filed suit." Sosa, 133 F.3d at 1419.

Here, the district court did not abuse its discretion in denying Robertson's

motion to

amend. As the record reveals, Robertson's motion to amend was

Case: 17-11152 Date Fed: 07/16/2018

untimely

Page: 5 of 21

Robertson filed his motion to amend on March 10, 2016, which was

after the deadlines both in the defendants' joint preliminary report and discovery

plan, as well as in Robertson's separate joint preliminary report and discovery

plan. He was, therefore, required to show good cause for an amendment after the

deadlines and he failed to do so. Not only did he not mention good cause, or the

appropriate rule

Fed. R. Civ. P. 16(b)

but he did not allege due diligence in

attempting to obtain the information in his amended complaint, even though it

appears that the facts with which Robertson wished to amend his complaint were

known to him at the time he filed his initial complaint. See Sosa, 133 F.3d at 1419.

As Robertson explained in his motion to amend, he was not seeking "to add facts,

but to provide clarity and more details to facts already alleged." On this record, the

district court did not abuse its discretion in denying Robertson leave to amend.

We are also unconvinced by Robertson's claim that the district court erred

by not considering certain hearsay testimony and unauthenticated documentary

evidence on summary judgment. Rule 56 permits a proper summary judgment

motion to be opposed by evidentiary materials listed in Rule 56(c), including

depositions, documents, electronically stored information, affidavits, and other

materials. Fed. R. Civ. P. 56(c)(1)(a). in turn, Rule 56(c)(2) provides that a "party

may object that the material cited to support or dispute a fact cannot be presented

in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). The

Case: 17-11152

Date Fed: 07/16/2018

Page: 6 of 21

Rule further provides that an affidavit used to support or oppose a summary

judgment motion must be made on personal knowledge, set out facts that would be

admissible evidence, and show that the affiant is competent to testify on the stated

matters. Fed. R. Civ. P. 56(c)(4).

"On motions for summary judgment, we may consider only that evidence

which can be reduced to an admissible form." Rowell v. BellSouth Corp., 433

F.-)d 794, 800 (11th Cir. 2005); see Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986) (explaining that the nonmovant need not produce evidence at the summary

judgment stage "in a form that would be admissible at trial in order to avoid

summary judgment"). Hearsay

the matter asserted

an out-of-court statement offered for the truth of

is generally not admissible as evidence at trial. See Fed. R.

Evid. 801(c), 802. So, while inadmissible hearsay typically cannot be considered

on summary judgment, Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999),

"a district court may consider a hearsay statement in passing on a motion for

summary judgment if the statement could be reduced to admissible evidence at

trial or reduced to admissible form," Jones v. UPS Ground Freight, 683 F.3d 1283,

1293-94 (11th Cir. 2012) (quotations omitted). However, the mere possibility that

unknown witnesses will emerge to provide testimony is insufficient to establish

that a hearsay statement could become admissible at trial. Td. at 1294. We've also

explained that if evidence otherwise inadmissible provoked no timely objection, it

Case: 17-11152 Date Fifed: 07/16/2018

Page: 7 ci 21

could and, if material, should be factored into a summary judgment decision.

Offshore Aviation v. Ti ranscon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)

The district court did not abuse its discretion in excluding certain evidence

in this case. One piece of evidence Robertson sought to admit was the testimony

of his wife, Carolyn Robertson, to rebut the argument that Robertson had been

fired for not calling his direct supervisor when he was out sick. Specifically, Ms.

Robertson testified in her affidavit that: "Sometime around October 2014, I had a

conversation with Mr. Victor Ramirez, about his being removed from his office of

several years by Elmer Smith and Thomas Blair, of what Victor said was due to a

no-call, no-show of three days and not calling his direct supervisor or anyone else

at the I.C.T. facility informing of his absence." However, the testimony relaying

what Ramirez told Ms. Robertson about his absences and termination constitutes

hearsay, because Ramirez's statement is being used to prove the truth of the matter

asserted. See Fed. R. Evid. 801. Moreover, nothing in the record indicates that

Ramirez or anyone else with personal knowledge of the incident was going to

testify at trial so as to reduce the hearsay testimony into an admissible form. See

Jones, 683 F.-)d at 1293-94. The district court properly excluded this testimony.

Robertson also claims that the district court improperly excluded a large

amount of documentary evidence. But even assuming the district court erred in

sua spdnte excluding this evidence, we cannot say the error prejudiced Robertson.

Case: 1741152 Date Red: 07/16/2018

Page: 8 of 21

As we detail below, the defendants would still be entitled to summary judgment on

all of the claims, even considering the excluded materials that Robertson discusses

in his brief. Since the error, if any, was harmless, we affirm on this issue as well.

Turning to the summary judgment rulings, we find no merit to Robertson's

claim that the district court erred in granting summary judgment against him on his

wage discrimination claim. Title VII prohibits an employer from discriminating

against an individual by providing that individual lower compensation because of

his race or color. 42 U.S.C. § 2000e-2(a)(1). When the plaintiff lacks direct

evidence of discrimination, we use the McDonnell Douglas CoLp. v. Green, 411

U.S. 792 (1973), framework to analyze circumstantial evidence of discrimination.

McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008).

To state a prima facie case of wage discrimination under Title Vii, a plaintiff

must show that: (1) he belongs to a racial minority; (2) he received low wages; (3)

similarly situated comparators outside the protected class received higher

compensation; and (4) he was qualified to receive a higher wage. Cooper v. S.

Co., 390 F.3d 695, 734-35 (11th Cir. 2004), overruled on other grounds by Ash v.

Tyson Foods, Inc., 546 U.S. 454, 457 (2006).. Once the plaintiff establishes a

prima facie case, the defendant must state a legitimate, non-discriminatory reason

for the pay disparity. Meeks v. Computer Assocs. Intern., 15 F.3d 1013, 1019

(11th Cir. 1994) (discussing McDonnell Douglas framework for gender-based

Case: 1711152 Date Fed: 07/1612018

Page: 9 of 21

wage discrimination). If the defendant advances a legitimate, non-discriminatory

reason, the plaintiff must then establish by a preponderance of the evidence that the

proffered justifications are actually a pretext for discrimination. Miranda v. B & B

Cash Grocery Store, Inc., 975 F.2d 1518, 1528-29 (11th Cit. 1992).

The plaintiff may demonstrate pretext by showing that the defendant's

proffered reason for an adverse action is a cover-up for a discriminatory decision.

Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). A reason is pretextual

only if it is false and the true reason for the decision is discrimination. Springer v.

Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007). In

other words, the plaintiff must show that a discriminatory reason more likely than

not motivated the employer to pay him less. Miranda, 975 F.2d at 1529. We have

explained that unfair treatment, absent discrimination based on membership in a

protected class, is not an unlawful employment practice under Title VII. Coutu v.

Martin Cnty. Bd. of Cnty. Cornrn'rs, 47 F.3d 1068, 1074 (11th Cir. 1995).

Here, the district court did not err in holding that Robertson failed to present

a genuine factual issue of pretext to challenge ICT's non-discriminatory reason for

paying him less than Williams Spyers, a white co-manager. For starters, the

defendants' proffered legitimate, non-discriminatory reason for paying Spyers

more money is supported by the undisputed record. In October 2008, Robertson

was promoted to co-manager of the maintenance department, along with Spyers, in

Case: 1741152 Date Filed: 07/16/2018 Page: 10 of 21

order to take stress away from Spyers. As co-manager, Robertson took over some

of Spyers's responsibilities and handled additional responsibilities. In 2011,

Spyers was paid about $4000 more per year than Robertson. Spyers had been

ICT's maintenance department manager since 1996, and, thus, had 12 more years'

experience and seniority working as a manager than Robertson. Robertson did not

dispute that Spyers was a loyal, dedicated, hard-working, and trusted employee. In

addition, Robertson received a pay raise every year he worked at ICT, and the

difference between Spyers's pay and Robertson's was shrinking over time. On this

record, ICT reasonably presented Spyers's seniority and managerial experience as

a legitimate, nondiscriminatory reason for paying him more than Robertson.

The burden then shifted to Robertson to show pretext, but he failed to offer

any record evidence suggesting that ICT's proffered reason for paying Spyers a

higher salary was motivated by discriminatory animus based on Robertson's race.

Instead, Robertson presented evidence that: (1) as a co-manager, he had more

responsibilities than Spyers did; and (2) ICT does not have a formal seniority

system of pay. But both of those arguments go towards showing that ICT's

explanation was false, not to whether discrimination was the real reason. See

Brooks, 446 F.3d at 1163. And while it may have been unfair that Robertson had

more management responsibilities than Spyers, yet was paid less for a period of

time, unfair treatment, absent racial discrimination, is not an unlawful employment

Case: 17-11152 Date Fed: 07/16/2018 Page: 11 of 21

practice under Title VII. See Cout, 47 F.3d at 1074-75. As a result, the district

court did not en in granting summary judgment on the wage discrimination claim.

Similarly, we find no merit to Robertson's claim that the district court erred

in finding that he failed to establish a prima facie case of race discrimination based

on his suspension and demotion. 2 Under Title VII, it is unlawftil for an employer

to "discharge any individual, or otherwise to discriminate against any individual"

because of the individual's race. 42 U.S.C. § 2000e-2(a)(1). To prevail under

Title VII, evidence must be presented which is "sufficient to create an inference of

discrimination." Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997).

An. employee may establish a claim of illegal disparate treatment through

either direct evidence or circumstantial evidence. Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079, 1085 (11th Cir. 2004). When reviewing race discrimination claims

supported by circumstantial evidence, courts may use the McDonnell Douglas

framework. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir.

2006). To establish a prima facie case for disparate treatment, the plaintiff may

show that: (1) he is a member of a protected class; (2) he was subjected to an

adverse employment action; (3) his employer treated similarly situated employees

outside of his protected class more favorably than he was treated; and (4) he was

Robertson has made clear before the district court and on appeal that he was not claiming

that he was terminated due to racial discrimination, but rather for retaliation. Therefore, he has

abandoned that claim. See Jernican, 341 F.3d at 1283 n.8.

iDa

Case: 1741152 Date Red: 07116/2018

Page: 12 of 21

qualified to do the job. Id. To determine whether employees are similarly situated

in a discriminatory discipline case, we evaluate "whether the employees are

involved in or accused of the same or similar conduct and are disciplined in

different ways." Id. (quotations omitted). When making that determination, we

require that the quantity and quality of the comparator's misconduct be nearly

identical to prevent courts from second-guessing employers' reasonable decisions

and confusing apples with oranges. Id If the plaintiff can present a prima facie

case of race discrimination, and the employer articulates a legitimate,

nondiscriminatory reason for the adverse employment action, the plaintiff must

show that the articulated reason is a pretext for unlawful discrimination. Id.

Where the defendant offers the plaintiff's violation of a work rule as its

defense, the reason "is arguably pretextual when a plaintiff submits evidence (1)

that [he] did not violate the cited work rule, or (2) that if [he] did violate the rule,

other employees outside the protected class, who engaged in similar act, were not

similarly treated." Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,

1363 (11th Cir. 1999). Nevertheless, this framework does not vitiate a plaintiff's

ultimate burden to prove that his employer terminated him based on a

discriminatory motive. Id: at 1363 n. 3.

As for his race discrimination claim based on his suspension, Robertson did

not present a prima facie case. It is undisputed that in July 2012, Robertson was

IJa

Case: 17-11152 Date Filed: 07/16/2018 Pace: 13 of 21

suspended after he got into a verbal altercation with Blair about why the

maintenance department left furniture in the hallway. in his deposition, Robertson

testified that, during the conversation, Blair warned that he could replace

Robertson if he couldn't get the job done. Robertson said he took offense to this

threat, stood up from his chair, pointed a finger at Blair, and was ready to

physically fight him. While Robertson argues it was Blair's fault the furniture was

left in the hallway, he does not dispute that he got into a verbal confrontation with

Blair. And since Roberson has not identified a comparator outside his protected

class who was not suspended under these circumstances, or presented any other

evidence that would show that his suspension had anything to do with race, he did

not establish a prima facie case of discrimination. Accordingly, the district court

did not en in granting summary judgment to ICT on this claim.

As for his race discrimination based on his demotion, Robertson also did not

present a prima facie case because he did not present a similarly-situated employee

who was treated more favorably than him. it is undisputed that, on December 13,

2012, ICT removed Robertson's management responsibilities and reassigned him

as a maintenance worker. ICT claims it took away Robertson's managerial

responsibilities after several incidents in the maintenance department, including

that: (1) Robertson assigned a student worker to clean an accounting office around

the time money was stolen, even though Robertson had been told that student

12a

Case: 17-11152 Date Flied: 07/16/2018

Page: 14 of 21

workers were prohibited from cleaning administrative offices; (2) Robertson took

the company truck to his nephew's auto shop for repair, and his nephew was

arrested for driving the truck while intoxicated, which resulted in the vehicle being

impounded; and (3) using ICT's master key, for which Robertson was responsible,

a student worker assigned to Robertson's department stole two laptops.

Robertson disputes some facts surrounding these incidents with evidence

and arguments about what the rules were, whether the student worker under his

supervision actually stole money, what Blair knew beforehand about Robertson

taking the company truck to his nephew's shop, whether the student who stole

laptops from the IT department used a master key, and whether his personnel file

included oral or written warnings about wrongdoings on his part related to these

incidents. At the same time, he conceded that as the maintenance manager, he was

responsible for his team and to get the job done. As for comparators, Robertson

claimed that when students broke into ICT's production department and stole

$600, the production manager, David Flores (Guamanian), was not demoted. He

added that when students broke into another ICT building and stole copper because

the plant manager, John Miller (white), had not reconnected the alarm system,

Miller was not demoted. And he said that when money was stolen from the

accounting department, neither the accounting manager, Bridgett Chrysanthis

(white), nor the white employee who left her purse unattended were demoted or

13a

Case: 17-11152 Date Red: 07/16/2018 Page: 15 of 21

fired. Lastly, he argued that his suspension and demotion after Spyers's death

shows preferential treatment of Spyers, as well as the white student who stole the

laptops but was allowed to continue his education at ICT.

Fatal to Robertson's claim is that he did not offer evidence that a similarlysituated ICT manager outside his protected class was also accused of multiple

similar infractions, but was not demoted from a managerial position. As managers,

Flores, Chrysanthis, and Miller were not involved in incidents "nearly identical" to

Robertson's. See Burke-Fowler, 447 F.3d at 1323. Students did steal money and

copper from ICT areas managed by Flores, Miller, and Chrysanthis, but Robertson

was involved in three separate incidents calling into question his management

judgment, whereas the other managers were not. As for the white student and

other employee, they were not similarly situated to Robertson, since neither was a

manager. As for Spyers, there is no evidence he managed student workers who

stole from ICT or was otherwise involved in anything involving property damage.

Because Robertson failed to establish valid comparators and to present any other

evidence of racial discrimination, Robertson did not establish a prima facie case of

race discrimination, indeed, after Robertson was demoted, it is undisputed that

ICT replaced him with another African-American employee. Overall, 44 percent

of the managers at ICT were minorities and, between 2008 and 2012, all full-time

employees in the maintenance department were African-American, except for

14a

Case: 17-11152 Date Filed: 07/16/2018

Page: 16 of 21

Spyers. In addition, after Spyers passed away, ICT named Robertson the

supervisor and sole manager of the maintenance department. On this record, the

district court did not en in granting summary judgment to ICT on this claim either.

We also reject Robertson's argument that the district court erred in granting

summary judgment against him on his retaliation claims based on his demotion and

firing. Title Vii provides that "[i]t shall be an unlawful employment practice for

an employer to discriminate against any of his employees.

because he has

opposed any practice made an unlawful employment practice by [Title Vii], or

because he has made a charge" under Title VII. 42 U.S.C. § 2000e-3(a). Without

direct evidence of unlawful retaliation, a plaintiff may avoid summary judgment

with circumstantial evidence, using McDonnell Douglas 's burden-shifting analysis.

Brownv. Ala. Dep'tofTransp., 597 F.3d 1160, 1181 (llthCir. 2010).

A prima facie case of retaliation has three elements: (1) the plaintiff engaged

in statutorily protected conduct; (2) he suffered an adverse employment action; and

(3) the adverse action was causally related to the protected expression. Williams v.

Motorola. Inc., 303 F.3d 1284, 1291 (11th Cir. 2002). As is the case with

discrimination claims, the employer must then proffer legitimate, non-retaliatory

reasons for its actions upon an employee's prima facie showing. Pennington v.

City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). The ultimate burden of

proving that these reasons are pretext for prohibited retaliation remains with the

15a

Case: 17-11152 Date Filed: 07/1612018

Page: 17 of 21

plaintiff. Id To show pretext, the plaintiff must show both that the reasons were

false, and that retaliation was the real reason for the employment decision. St.

Maa's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Alternatively, an employer

may prevail on a retaliation claim if it proves that it would have made the same

decision in the absence of the alleged bias. Pennington, 261 F.3d at 1269.

Title VII retaliation claims require proof that the desire to retaliate was the

but-for cause of the challenged employment action

i.e., the plaintiff must show

that the unlawful retaliation would not have occurred without the alleged wrongful

action or actions of the employer. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570

U.S. 338, 358-59 (2013). The burden of causation can be met by showing close

temporal proximity between the statutorily protected activity and the adverse

action. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

But mere temporal proximity, without more, must be "very close." Id. (quotations

omitted) (holding that a three- to four-month disparity between the statutorily

protected expression and the adverse employment action was not enough).

Again, the district court did not err in granting summary judgment to ICT on

Robertson's retaliation claims. As for his July 10, 2012 complaint of racial

discrimination, Robertson failed to present evidence from which a reasonable jury

could find any causal connection between that complaint and his demotion and

termination flve months later in December 2012. Five months between the

16a

Case: 1741152 Date Filed: 07/16/2018 Page: 18 of 21

statutorily protected activity and adverse action is not "very close," as to establish

causation, without more. See Thomas, 506 F.3d at 1364. On appeal, as evidence

of Blair's delayed retaliation, Robertson points to a memo written by Blair to

Smith on July 10, 2012, in which Blair describes his suspension of Robertson for

insubordination and suggests that Robertson be demoted from a manager to a

supervisor. But assuming Blair had received Robertson's July 10, 2012, complaint

before writing the memo that same day, Blair's memo suggested demoting him

based on his insubordination, not based on his discrimination complaint. This

evidence does not tend to show causation, especially since Robertson was neither

demoted, nor fired, until five months later. On this record, he did not establish a

prima facie case for retaliation based on the July 2012 complaint.

As for his December 14, 2012, letter to Blair, in which he threatened to file a

racial discrimination charge with the EEOC, the magistrate judge did not consider

this issue, and Robertson did not object to the magistrate judge's failure to do so.

But even assuming Robertson stated a prima facie case of retaliatory discharge

based on this December 14 letter, the defendants presented evidence of a legitimate

reason to terminate his employment unrelated to his EEOC threat. It is undisputed

that, after Robertson's demotion on December 13, 2012, he was supposed to report

to work the next day at 11:00 p.m., but failed to report to his new work assignment

on December 14, 18, 20, and 21, 2012. While Robertson called Brandon Smooth,

11)

17a

Case: 17-11152 Date Red: 07/16/2018

Page: 19 of 21

a maintenance technician, to report his December 14 absence, he did not call Blair

or Smith to report his absences on December 14, 10', 20, and 21, 2012. Robertson

admitted that ICT had a written policy for employees to call their direct supervisor

when absent from duty. According to Blair and Smith, Robertson was fired on

December 26, 2012 for missing work and failing to notify Blair, his supervisor,

about his absences in accordance with ICT written guidelines. Blair testified that

ICT had terminated other employees for violating the attendance policy.

Because ICT articulated a legitimate, non-retaliatory reason for terminating

Robertson's employment, the burden then shifted to Robertson to produce

sufficient evidence for a factfinder to conclude that this reason was pretextual.

Robertson argues that, as a co-manager, neither he, nor Spyers, had ever been

required to call Smith or Blair when absent, and showed that ICT did not enforce

the policy against his wife. Specifically, Ms. Robertson, an African-American,

testified that she only received a 60-day probationary period for missing too many

days of work and not calling her direct supervisor.

However, Spyers and Ms. Robertson are not appropriate comparators, since

Ms. Robertson is not outside her husband's protected class, and no evidence exists

that Spyers had ever been demoted and subsequently failed to report to work

without notiiing his supervisor: See Burke-Fowler, 447 F.3d at 1323; Damon,

196 F.3d at 1363. Nor does Robertson dispute that ICT had a written policy

110

ZEN

Case: 17-11152 Date Filed: 07/16/2018

Page: 20 of 21

requiring employees to notify their super visors of any absences, or that he received

a copy of the employee handbook with the attendance policy. Further, Robertson

has not presented evidence that Blair or Smith harbored any intent to retaliate

against him for threatening to file a grievance. Because Robertson did not show

that ICT's proffered reason for his termination was false or that the real reason was

retaliation, he failed to establish pretext. See St. Mary's, 509 U.S. at 515.

Finally, we are unconvinced by Robertson's claim that the district court

erred when it concluded that he lacked standing to bring a Title VI claim on behalf

of a student, Anthony Bryant. To satisfy Article Ill's case or controversy

requirement, a plaintiff must show that: (1) he has suffered injury in fact

amounting to the invasion of a legally protected interest that is concrete and

particularized and actual or imminent; (2) the injury is fairly traceable to the

actions of the defendant; and (3) the injury is likely to be redressed by a favorable

decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 180-81 (2000); Hollywood Mobile Estates, Ltd. v. Seminole Tribe of Fla.,

641 F.3d 1259, 1265 (11th Cir. 2011).

Here, the district court did not err in concluding that Robertson lacked

standing to bring a Title Vi claim on behalf of Bryant. Title Vi provides that "[n]o

person in the United States shall, on the ground of race, color, or national

in, be

excluded from participation in be denied the benefits of, or be subjected to

19a

Case: 741152

)a--Filed: 07I/2018

Page: 21 0!. 21

discrimination under any program or activity receiving Federal financial

assistance."' 42 USC. § 2000d, However, Robertson did not allege how he

suffered any injury as a result of the disparatc treatment of Bryant and I1amn10 jSee

H, arris, 20 K3d at 1122. Indeed, Robertson only alleged that Bryant was a student

employee who he managed in ICT9s maintenance department. Robertson testifled

that, after Bryant was accused of stealing the money, Bryant asked Robertson what

he could do about the accusations and Robertson told him to contact the

Deparent of Education and hire an attorney. Robertson testified further that he

talked to Bryan twice after he got expelled, which was sometime before his

demotion in 2012, but has not spoken to him since and does not know whether he

ever hired a lawyer. These facts are insufficient to establish an injury-in-fact for

purposes of standing. Accordingly, Robertson failed to establish standing to bring

a suit on behalf of Bryant.

AFFmME1.

20a

17-11 11-~01,

vt"

M 1

IQL

Case 1:14cv-02728MHC Document % Fed 02I1/17 Page of 10

IN THE UNITED STATES J0HflFPJOT COURT

OR TW. NORTHERN ID'LSTRICT OF GEORGIA

ATLANTA ID)IIVI[SitON

N,, SR.,

A. ROBERTSON

and all others similarly situated,

CiVIL ACTION FILE

Ffliff,

NO. 1:14CV2729,461HC

UTERACTWE COLLEGE OF

TECOL0GY/INTERACTWE

LEARNING SYSTE2\111 S9 JINC a

Georgia For Profit College,

ELMER SMITH, individually and in

his capacity as Owner and Campus

President, and THOMAS BLMR9

individually and in his capacity. as

Vice President/Dean of College,

Defendants.

ORDER

L BACKGROUND

Plaintiff, acting pro se, filed his Complaint on August 22, 2014, against his

former employer, Interactive College of Technology/interactive Learning Systems,

Inc. ("ICT"), Elmer Smith, the President of ICT, snd Thomas Blair, the Vice

President and Dean of ICT (collectively, 'Defendants"), alleging discrimination on

the basis of his race, and retaliation for making complaints about discrimination, in

21a

Case 4cv-C7728MHC Documeet 96 FIed 02115/17 Page 2 ci

vclson of Title VII of the Civil Rights Act of 1964, 42 USC. §

2000e, et seq.

ed claims against Defendants

(The VII"). Oomph [Doe. 2]. Plaintiff also assert

under Title Vi of the Civil Rights Act of 1964,

42 U.S.C. § 2000(d) ("Title VI");

Act,

42 U.S.C. § S 1981 and 1985(3); the Fair Labor Standards

29 '[JS.C. 201,

et seq. ("FLSA"); the Lilly Ledbetter Fair Pay Act 012009 ("the

Ledbetter Act");

l By Order dated September 2, 2015, this Court

and O.C.U.A. § 51-5-4(a). LoL

dants Smith

dismissed Plaintiffs claims under Title VI and Title VII against Defen

st ICT

and Blair; Plaintiffs claims of race discrimination and retaliation again

iffs claims

based on any actions that occurred prior to June 19, 2012; and Plaint

under the FLSA, 42U.S,C: § 1985(3), and O,C.G.A. §515-4(a).

Order of Sept. 2,

2015 [Doe. 451. The only claims allowed to proceed were Plaintiff's

claim of race

mination

discrimination against ICT under Title VI; Plaintiff's claims of race discri

tter Act, for

and retaliation against ICT Under Title VII, as amended by the Ledbe

actions taken on or after June 19, 2012; and Plaintiffs, claims against

all

Defendants under 42 U.S.C. § 1981. Id

t and

This case is now before the Court on the January 13, 2017, Final Repor

Recommendation ("R&R") of Magistrate Judge Justin S. Anand [Doe.

92]

ning

remai

recommending that Defendants' Motion for Summary Judgment on all

claims [Doe. 74] be granted. The Order for Service of the R&R [Doe.

22a

93] provided

Case 1:14cv02728-MHO Documer 96 FUad 02/15/17 Fags 3 of

notice that, in accordance with 28 TJS.C. § 636b)(1),

file objections within fourteen (14) days

the parties were authotizedto

of the receipt of that Order. On January

30, 2017, Plaintiff filed a "Motion Requesting

Leave of Court for an Extension of

Time" to file objections to the R&R and also aft ached his specific objections

(styled as "Plaintiffs Memorandum and Points of Authority to Plaintiff

Objection to the Magistrate Judge's [Entire] R&R.") [Doe. 94] ("Pl.'s

Objs."). As

Plaintiff is not subject to the same rules as parties who electronically -1le their

briefs and still is allowed the three-day period for mailing,' his objections have

fact been timely filed and have been considered in their entirely. Consequentl

Plaintiffs motion for an extension of time Doc. 94] is DENIID AS MOOT.

II.

STANDAP.D OF IJV1fEW

In reviewing a Magistrate Judge's R&R, the district court "shall make a de

s or

novo determination of those portions of the report or specified proposed finding

recommendations to which objection is made," 28 U.S.C. § 636(b)(1). "Parties

filing objections to a magistrate's report and recommendation must specifically

identify those findings objected to. Frivolous, conclusive, or general objections

Rule 6(d) of the Federal Rules of Civil Procedure provide s that "[w]hen a party

may or must act within a specified time after being served and service is made

under Rule 5(b)(2)(C) (mail) ..3 days are added after the period would otherwise

expire under Rule 6(a)." FED. R. CIV. P. 6(d),

23a

Case 4-cv02725MHC D3CU[Tflt 56 EUad 02115117 Pae 4 at 20

need not be considered by the district courh" United_Sstes v, Schultz,.563 F3d

1353, 1361 (llthCir. 2009) (quotingl

ev.Moe, 847 R2d 1536, 1548

(11th Cir. 1988)) (internal quotation marks omitted). If there are no specific

objections to faciiial findings made by the Magistrate Judge, there is no

requirement that those findings be reviewed de novo. Ganiyv.Vaughn, 993 F.2d

776, 779 n.9 (11th Cir. 1993). Absent objection, the district court judge "may

accept, reject, or modify, in whole or in part, the findings and recommendations

made by the magistrate judge," 28 U.S.C. § 636(b)(1), and "need only satisfy itself

that there is no clear error on the face of the record" in order to accept the

recommendation. FED. R. CIV. P. 72, advisory coniniittee note, 1983 Addition,

Subdivision (b). In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the

Federal Rules of Civil Procedure, the Court has conducted a de novo review of

those portions of the R&R to which Plaintiff objects and has reviewed the

remainder of the R&R for plain error. See United States v,

714 F.2d. 1093,

1095 (11th Cir. 1983).

Jill. PLAJiNT]UFFSOBJECT][ONS

Ob jections to Entire Findings

Plaintiff contends that this Court should decline to adopt the RR' s findings

C f fact because Judge A11--nand "disreCPgarded 'all' of Plaintiff's authenticated

24a

case 1:14-ov-02723MHC Document 6 FUed 02/15/17 Paoe S ci 10

substantive probative documented evidence'2 and "only consider[ed] the

legitimate nondiscriminatoiy/retaliato'y explanation as true," FL 's

Objs. at 2-3. More specifically, Plaintiff asserts that his own

affidavit, as well as

his opposition brief and other attachments thereto, create disputed issues

of fact

that should defeat Defendants' motion for summary judgrn.ent, Id. at 4-8.

Plaintiff objections fail to consider the application of the local rules of this Court,

the facts that he asserted that were considered by Judge Anand, and the documents

that were not authenticated by either party that were not considered by Judge

Anand in his R&R.

First, the local rules of this Court require a party opposing a motion for

summary judgment to file a response to the movant's statement of undisputed

facts. LR 56.1B(2)(a), NDQa. If the respondent does not directly refute a fact

asserted by the movant with "specific citations to evidence (including page or

paragraph number)," state "a valid objection to the admissibility of the movant's

fact," or show that the movant has failed to otherwise comply with the local rule,

then that fact is deemed to be admitted. LR 56.1B(2)(a)(2), NDGa. Because

Plaintiff failed to contest or properly refute a number of facts contained h

Defendants' Statement of Material Facts [Doc. 74-1], those facts Were deemed

admitted. It is not an abuse of discretion for a district court to apply Local Rule

25a

Case :.t4cv0272I\uiHC DDC:Urflaflt 9

Ried 02/L7 Paqe E ot ItO

56.1 against a party who fails to comply with the reuiremerfis of that rule, oven

when that party actopio ce

oe Omlth v4ero, 572. F. App 9 x 676, 678 (11th

Cir. 2014) ("[Djespite [the plaintiffs] pro se status, the district court did not abuso

its discretion in applying ND. Ga. L.R. 56.1 to deem Defendants' facts

admitted."); Brandon v. Lockheed Martin Aeronautical Sys., 393 F. Supp. 2d 1341,

134748 (ND. Ga. 2005) (holding pro so litigant to the procedural requirements of

Local Rule 56.1).

Second, a review of Judge Anand's factual findings reveals that he did

consider those facts asserted by Plaintiff which were supported by competent and

admissible evidence, See R&R at 821. Judge Anand also considered many of

Plaintiff opposing contentions, although they did not result in creating a disputed

material fact that would preclude the grant of summary judgment.

Third, Judge Anand did not consider "any fact submitted by either party that

is supported by a citation to a document that is not properly authenticated as

required by the Federal Rules of Civil Procedure" or "assertions of fact by either

party that are immaterial or presented as arguments or legal conclusions.

R&R at 67. Judge Anand also applied the proper standard on summary judgment

to view "the evidence and factual inferences in the light most favorable to Plaintiff

T.,.,.'

LU. 0C

26a

Case L:14-cv-02728MHC Documert 96 Fec 02/5/:L7 Page 7 of 10

Finally, Judge Anand properly failed to consider a large number of exhibits

attached to Plaintiffs brief that were t authenticated and not competent for the

purposes of summary judgment. R&R at 56 (citing FED. R. CIV. P. 56(c)(2, 4)).

Plaintiffs citation of Macuba v. Deboer, 193 F.3d 1316 (3. lth Cir. 1999), rather

than supporting his objections, in fact supports the.R&R, because that decision

reversed the denial of summary judgment to the defendants, in part, because "the

district court erred in considering the hearsay testimony" contained in a deposition

and subsequent affidavit. Id. at 1322, 1325.

Plaintiff's objections to Judge Anand's factual findings are therefore

OVERRULED.

Objection to R&-R's Conclusion as to Plaintiffs Failure to Establish

Was a

that Defendants' Proferred Non-Discriminatory

Pretext for Discrimination.

Plaintiff next objects to Judge Anand's conclusion that he failed to establish

that Defendants' explanation of disparate pay was a pretext for discrimination,

Pl.'s Obis, at 89. Specifically, Plaintiff contends that, because TOT had no formal

"seniority system," it was not valid for ICT to pay Spyers, his comanager, a higher

salary although Spyers had been employed by lOT for twelve years longer than had

Plaintiff.

27a

Casa 1:14cv-02728'/?RC Document 90Red 02/15/17 Peoe S ci 10

However, as Judge Anand pointed out, "aj reason is not pretext for

ii it is shown both that. the reason was false, and-di-a-,dirintin:ioxi iiess

discrimInation was the real reason." R&R at 47; Brooks _v.Ctpnof

Jeersonr,, Al, 446 P.3d 1160, 1163(11th Cir. 2006) (emphasis in original)

(quoting

.IJ4py's Honor Ctr. v. Hicks, 509 US. 502, 515 (1993)).

Here,

Plaintiff has presented no evidence of pretext, let alone the required "significantly

probative" evidence that would be required to avoid summary judgment, See

Young v.GenFoods Corp, 840 P.2d 825, 829 (11th Cir. 1988). Judge Anand

analyzed the facts and concluded Plaintiff failed to provide any evidence of

pretext. R&R at 4952. As stated in the R&R, "Harsh or unfair treatment by itself

is not a violation of Title VII, and the Court cannot sit in judgment of an

employer's decision, absent evidence that a discriminatory motive was the

underlying basis," Id, at 50; see also Nix vWLCYRadioahall Comm., 738

F'.2d 1181, 1187 (11th Cir, 194) (stating that an "employer may fire an employee

for a good reason, bad reason, a reason based on erroneous facts, or for no reason

at all, as long as its action is not for a discriminatory reason."). Here, as Judge

Anand concluded, Plaintiff contends that it was unfair for him to be paid less than

Spyers, but has provided no evidence that the discrepancy in pay was due to

28a

Case 2:14cv02728MHO Document 05 Red 02/15117 Paae 9 of 10

discrimination, or that ITC s proffered reascrn was pretext for discrimination.

Plaintiffs objection is therefore OYfiPULE).

Qjectionto R&R's Handling of Factual Allegations

Next, Plaintiff again objects to the way Judge Anand handled the factual

allegations; specifically, Plaintiff objects to what he terms Judge Anand's

"omi[ssion of] Plaintiffs factual allegations" and "accept[ance of] Defendants[']

unsubstantiated factual allegations of poor job performance. . . ." Pl.'s Objs. at 913. He states that Judge Anand "failed to view Plaintiff's facts in the proper light"

and contends that the R&R "passes over the particular facts favoring the plaintiffs

claims" and "does not cite to any evidence provided by Plaintiff in dispute of

ICT's claims. .. ." [4. at 10. Essentially, Plaintiffs argument is the same as that

for his first objection; for the same reasons discussed supra, Judge Anand did not

err in his application of Local Rude 56.1 to Plaintiff. Therefore, this objection is

OVERRULED.

Objection to R&R's Conclusion on Title VI Claims

Finally, Plaintiff objects to Judge Anand's conclusion on his Title VI claims

Pl.'s Objs. at 13-14. Specifically, Plaintiff contends that Judge Anand has

"completely misconstrued" these claims, and that his complaint actually involved

"the discriminatory disciplinary treatment between two students who worked under

29a

Pao; 10 o/ 10

Case 1:14cv0272MC Doeumen 6 FiIC31C, 02115/17

his 6ireetion[1.

Id. at 13. However, Plaintiff has net provided any

he would have standing to pursue claims on be1'alf of these students.

Cash

reason why

e Lo1f v,

fore PlaintifPs

ides, 351 F,3d 1348, i35758 (11th Cir. 2003). There

objection is OVERRULED.

IV. CONCLUSION

Based on the foregoin, Defendant's objections to the R&R [Doe. 94]

are

PTS the Report

OVERRULED. Accordingly, the Court APPROVES AND, ADO

and Recommendation [Doe. 92] as the opinion and order of

this Court.

ent

It is hereby ONJOERED that Defendant's Motion for Summary Judgm

[Doe. 74] is GRAPITED.

The Clerk is DIRECTED to close the file.

IT is so ORDERED this /

—day of February, 2017.

MARX H. COFN

United States District Judge

30a

Cass 14cv-O2728-MHC Document 97 Fed

02/15/17 Page 1 cf 1

VIN11, III

ISTAIT128 Dmioir co

kRN WSTFUCT O

oirti

AT LANTA D)WM5,40H

CARL A. ROBERTSON, SR., and all others,

eimllarly sliva ied,

Plairttiff,

CIVIL ACTION FILE

vs.

NO. 1:14-cv-27213

INTERACTIVE COLLEGE OF

TECHNOLOGY/INTERACTIVE LEARNING

SYSTEMS INC., a Georgia for Profit College,

ELMER SMITH, individually and in his

capacity as Owner and Campus President,

and THOMAS BLAIR, individually and in his

capacity as Vice Presidnt/Dean of College,,

Defendants.

JUDGMENT

This action having come before the court, Honorable

Mark H. Cohen, United States

District Judge for consideration of the Report end Reco

mmendation, and the Court adopting

the same, Defendant's Motion for Summary judgm

ent is granted, Therefore, it is

Ordered and Adjudged that the plaintiff take nothing;

that

the defendant recover its

costs of this action and the action is dismiseed.

Dated at Atlanta, Georgia, this 15" day of February,

2017.

JAMES N. HATTEN

CLERK OF COURT

By:

Prepared, Filed, and Entered

in the Clerk's Office

January 15, 2017

James N. Hatten

Clerk of Court

By:

s/Jill Ayers

Deputy Clerk

31a

eLJJII Ayers

Deputy Clerk

Case 1:i4-cv-027284HC Documeri 92 Fec CL

aqe of 73

IN THE ITNi[113D STATES DISTRICT COURT

FOR THE NORTEERN DISTEICT OF GEORGIA

ATLANTA DIVISION

CARL A. ROBERTSON, SR., and all CIVIL ACTION NO.

others similarly situated,

I :14-CV-2728-M-IC -JSA

Plaintiff,

INTERACTIVE COLLEGE OF

TECHNOLOGY/INTERACTIVE

LEARNING SYSTEMS, INC., a: FINAL RE

PORT AND

Georgia For Profit College, et at.,

RECOMMENDATION ON A

I\OTION FOb. SUMMARY

Defendants.

J IM

, CMENT

Plaintiff Carl A. Robertson, Sr., filed the above-styled civil action

pro se on

August 22, 2014. He claims that the Defendants Interactiv

e College of

Technology/Interactive reaming Systems, Inc. ("ICT"), his forme

r employer, along

with Elmer Smith, the President of lOT, and Thomas Blair, the Vice

Dean of ICT, discriminated against him on the basis of his race

President and

(Aft- jean-American),

and retaliated against him for making complaints about discrimination,

of Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e,

in violation

et seq. ("Title VII"),

and 42 U.S.C. § 1981. He also asserts claims against the Defen

dants under Title VI

of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000(d) ("Title VI")

The action is before the Court on the Defendants5 Motion for

Judgment [741. For the reasons discussed below, the und:ersignecL RECO

Summary

l\D\fEI\TDE.

32a

Casa

Dcc

Th30t 92 Elaci G

;i 7 age 2 of 73

that D:efertclants' MOtion for Summary Judgment [741 he GRAJ TED:, and that

summary judgment be entered in fdvo•r of Defendants on all claims asserted in

Plaintiffs Complaint.

FAC1FS

Unless otherwise indicated, the Court draws the following facts from the

Defendant's "Statement of Material Facts" [74 I] ("Def. Sh7"), and the "Plaintiffs

Counterstatement of Material Facts" [8831 ("Ph SIviF'). The Court also draws some

facts from Plaintiffs "Responses to Defendants' Statement of Undisputed Facts for

their Motion for Summary Judgment" [883} ("Ph Resp. S.MF'), and some objections

to Plaintiff's facts from "Defendants' Responses to Respondent's Material E acts" [90]

("Def. Resp. ShF").

For those facts submitted by the Defendants which the Plaintiff has not

specifically controverted or disputed with citations to admissible evidence in the

record, the Court deems those facts admitted, pursuant to Local Rule 56.lB. See LR

56.1(E:)(2)(a)(2), NDGa ("This Court will deem each of the movant's facts as

admitted unless the respondent: (i) directly refutes the movant's fact with concise

responses supported by specific citations to evidence (including page or paragraph

number); (ii) states a valid objection to the admissibility of the movant's fact; or

(iii) points out that the movant's citation does not support the movant's fact or that

Cane 1:24-cv-O2728-k-C Docum.&it 92 Fied 01/13/17 Paoe 2 o 73

the movant' s fact is oat ii terial. or otherwise PraS failed to comply with the provisions

set out in LR 5 6. 1 B.(i)").

The Eleventh Circuit has held that a failure to comply with Local Rule 56.1 is

not a "mere technicality" because "[tlhe rule is designed to help the court- identii and

organize the issues in the case." Mann P. laser Int'l, Inc., 588 F.3d 1291, 1302 (11th

Cir. 2009) (citing Reese w. Herbert, 527 F.3d 1253, 1268 (11th Cir.2008)). "Local

Rule 56.1 protects judicial resources by msidng the parties organize the evidence

rather than leaving the burden upon the district judge.'" Reese, 527 F.3d at 1268

(internal quotes, alteration, and citation omitted); see also Libel i Adventure Lands

ofAm., Inc., 482 F.3d 1028, 1032 (8th Cir. 2007) ("Courts- have neither the duty nor

the time to investigate the record in search of an unidentified genuine issue of

material fact to support a claim or a defense.").

Thus, it is each party's obligation to cite to evidence in the record that

establishes a triable issue of fact, and the Court cannot cull through the record in an

effort to search for evidence that creates a disputed issue. See U E. v. Adlcinson, 135

F.3d 1363, 1378-80 (1 Ith Cir. 1998); Johnson v. Clify ofFort Lauderdale, F/a., 126

F.3d 1372, 1373 (11th Cir. 1997); see also Dickson v. Amoco Peiformance Prods.,

Inc., 845 F. Supp. 1565, 1570 (NI. Ga. 1994) ("It should be a party's responsibility

to direct the Court's attention separately to each portion of the record which supports

34a

Cars i:I4-cv-02728-R4HC D.oc:Lflsflt 02 Fsd 01/13117 Pars 4 of 73

each ot the party's cilistiact argmeots") Although Plaintiff is proceeding 72r0 Sc,

benefit of counsel, a partT who proceeds pr se mast comply with the same

v bout

iorocedural rules that other litigants must fottow, M6c•i v. J'/e'sc'Tne, 863 F.2d 835,

837 (11th Cit. 1989).

Defendants have also nIce an Objection to the evidence submitted by Plaintiff

in support of his response to their Motion -,Cr Suimnary iudgment on the ground that

th.e Affidavits submitted by Plaintiff contain hearsay, speculation, information not

based on personal knowledge, or otherwise inadmissible evider.ce. See Defs.

Objection [911,. un particular, the Defendants object to portions of the Afidavits of

the Plaintiff, Brandon Smoot, and Carolyn Tate Robertson. Id. Defendants are correct

that evidence which would be inadmissible hearsay at trial may not be considered by

the Court on a motion for summary judgment. Mactha v. DeBoer, 193 F.3d 1316,

132223 (11th Cit. 1999); see also PED.R.EVm. 801 (`Hearsay' is a statement, other

than one made by the declarant while testiiing at the trial or hearing, offered in

evidence to prove the truth of the matter asserted."). Because the Defendants have

made numerous evidentiary objections on various grounds, the Court will not rule on

every

specific objection, but will discuss the Defendants' objections to Plaintiffs

factual allegations when necessary regarding a disputed mat-erial fact.

35a

Case 1:i4-cvO27284HO

DDCL[fl am

2 Fed OJ13.IL7 Pare 5 of 73

Moreover, the Court notes that the parties have submitted

VaLOUS

unauthenticated documents as exhibits to their motion arc briefs, documents that are

not attached to any affidavits or tTanscripts of deposition testimony, requests for

admissions, or mte1TogatonesSee Def App. 1110-2-10, [74-4j; FL App. 1-363,

516-47 {88-1][88-2]. Indeed, Nairitiffs exhibits attached to his brief consist largely

of unauthenticated documents. In general, the Court cannot consider unidentified and

unauthenticated documents in ruling on a motion for sunimary judgment Rule 56 of

the Federal Rules of Civil Procedure provides, in relevant part:

Affnavlta or Dedliartions Al affidavit or declaration used to support

or oppose a motion must be made on personal knowledge, set out facts

that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.

FEDR.CIv.P. 56(c)(4). In addition, "[ai par' may object that the material cited to

support or dispute a fact cannot be presented in a form that would be admissible in

evidence." FED.R. Cf\7.P. 56(c)(2).

While a fact supported by a sworn affidavit, sworn deposition testimony,

answer to interrogatory, or response to request for admission, may be considered at

summary judgment if such fact "would be admissible in evidence" at trial,' in order

I a document to be considered on a motion for summary judgment, it must be

'See Macuba v. Deboer, 193 F3d 1316, 1323 (11th Cit. 1999); United States

FourParcels of Real Prop., 941 R2J 1428, 1444 (11th Cir, 1991).

36a

Caa. 2:I4-cv-02728-MHC DooLat 9:2 EFac

7 Raça 6 ci 73

authenticated by an affidavit or other sworn testimony that meets the requirements of

Rule 56 of the Federal Rules of Civil Procedure, or otherwise authenticated pursuant

to the Federal Rules of Evidence. See Burnett n. Stagner Hotel Courts, Inc.. 821 F.

Supp. 6.78, 683 (N.D. Ga. 1993). (Cannes, J) ("Iiri order for a document to be

considered in support afar in opposition to a motion for summary judgment, it must

he authenticated by and attached to an affidavit that meets the requirements of [Rule

56] and the affiant must he a person through whom the exhibits could be admitted

into evidence."); see also Saunders v. EmoiyHea/thcare, Inc., Civil Action No. 1:07CV-0282-WSD, N.D. Ga., Order dated Dec. 30, 2008 at 15-17 (Dufley, J.), affd,

2010 WL 65170 (11th Cir. Jan. 11, 20 10) ("This Court typically refuses to consider

evidence

which is not authenticated and thus not competent fbr the purposes of

suimmar) 7 judgment.").

Accordingly, for any fact submitted by either party that is supported by a

citation to a document that is not properly authenticated as required by the Federal

Rules of Civil Procedure, the Court has not considered those facts or documents in

connection with the Defendants' Motion for Summary Judgment unless the fact

appears to be undisputed by the opposing party. Because the Plaintiff has relied

largely on unauthenticated documents as his exhibits, and the Defendants have

objected to many of the Plamn.tifPs alleged facts on the ground that he has fulled to

37a

Case L:14-cv-0272B-M[-C Documeot2 Fed OL'i3!7

&O15 7 ci 72

cite to competent eTidence in the record supporting each alleged fact, the Court has

excluded the majority of Plaintiffis alleged facts from consideration. The Court has

s to

nevertheless attempted to discern which facts have been supported by citation

admissible record evidence. As explained further below, however, Plaintiffis failure

LO cite properly to his supporting evidence has significantly unden-nined the

Court's

ability to do so.

The Court has also excluded assertions of fact by either party that are

immaterial or presented as arguments or legal conclusions, and has excluded all

assertions of fact unsupported by a citation to admissible evidence in the record or

asserted only in the party's brief and not the separately numbered statement of facts.

See LR 56.i(B)(1), NDGa ("The court will not consider any fact: (a) not

by a citation to evidence.

supported

or (d) set out only in the brief and not in the movant's

[or respondent's] statement of undisputed facts."). The Court has also viewed all

evidence and factual inferences in the light most favorable to Plaintiff, as required on

a defendanfs motion for summary judgment. Matsushita Rice. Indus. Co. v.

Radio Corp., 475 U.S. 574, 587 (1986); McCabe v. Shai-rett, 12 F.3d

Zenith

1558, 1560

(1 Itli Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465,

469 (11th

Cir. 1993). Applying those standards, the Court finds the following facts to be largely

undisputed except when noted,

738a

Casa

4-cv-02728-k1HC

DOCUnTh?nh.

1ad Ch3JJt7 age 8 Oi 73

Defendant Elmer Smith is President of fiterscticie College of Technology

("ICY") snci has been its President since 1986, D'ef. Sl'\F at c¶1. Defendant Thomas

Blair is the Vice President and Dean of ICYI and has been since 2009. Def. SI\F at

¶ 2. It is undisputed that ICY has a diverse woridorce, that the majority of !CT

employees are minority, and that 44% of the ICY managers are minorities. Def. SiO

at ¶J 3-5. It is further undisputed that all employees in the maintenance department

were African-American, except for William Spyers. Def. SlvI}' at ¶ 6.

Plaintiff Cdri A. Robertson, Sr., was a student at ICY in 2006. Def. SIVEF at ¶ 8;

P1. SME at ¶ 3. Plaintiff was a work-study student at ICY, and his supervisor was

William Spyers. Def. SMF at 1 9. in January of 2008, ICY hired Plaintiff as a

maintenance techaician. Def. S•ME at ¶ 10.. in October of 2008, ICY promoted

Plaintiff to a co-manager position in the maintenance department at the Chamblee

campus. Def. SME at ¶ 12; P1. Resp. SME at ¶ 12; P1. SME at ¶ 7. After the death of

William Spyers in May of 2012, the Only person who held the title of maintenance

manager at ICT's Chamblee campus was Plaintiff. Def. She' at ¶ 13. ICY gave

Plaintiff annual pay raises, and P1aintiffs pay went up every year. D'ef. SIVUF at

¶9J 14-15. P1aintiff's salary increased in 2008 when he became a co-manager. Def.

81vU7 at ¶ 16. ICY also acknowledged, praised and rewarded Plaintiff when he did

good work. Def. SME at ¶ 17. in 2010, Elmer Smith gave P laintif±a pay raise in 2.010

Case iiA-cv-O2728-FYHC Document 92 Fed 0i!31i7 P5G5 9 01 73

10 appreciation for him and. the good work he was doing, and Smith atso raid good

things about Plaintiff. Def. SlYff at ¶ 19.

ICT also approved Plaintiffs recommendation to increase the wages of the

maintenance workers at 1CT's Chamblee campus, which consisted wholly of

African-American employees. ]Def, SMF' at ¶20. ICT reinstated Jonathon McGee, an

Afi-ican-American employee, after McGee appealed his termination by Plaintiff. Def.

SlV' at ¶ 21. ICT also approved Plaintiffs recommendation to promote an

African-American employee, Reginald Lewis, into a supervisory position. Def. S1\4]F

at ¶ 22. In 2007, iCT hired Plaintiff's wife, Carolyn Robertson, who is

ican-American, and she is still employed by lOT. Def. SI at ¶ 23.

It is undisputed that the pay difference between Plaintiffs and William Spyers'

annual salary as of December 9, 2011, was $3,894 per year. D'ef. ShfP at ¶ 38. Spyers

started with TOT in 1996 at Maintenance Supervisor, and Plaintiff started with ICT

12 years later in January of 2008. Def. Shtfl3 at ¶ 34. Spyers had 12 years more

seniority in years and experience working at TOT as a manager than did the Plaintiff.

Def. SI at ¶ 35. At the time of Spyers s death on May 1, 2012, Spyers had been a

manager for 16 years and Plaintiff had been a manager for less than 4 years. Def.

S, 1\ at ¶ 37. When Plaintiff started working at lOT, William Spyers had already been

working for ICT for quite. some time. ]Def. Sl\'fF at ¶ 39. According to the Defendants,

Case : cv-CJ2728-kiRO Cccumeln 92 Lac 01/t3/:L7

oeI0 at 73

the difference between Plantiffs. salary and William Spyerr salary was bared on the

differences in their experience arid senJOrit3T. Def, 'S E- at ¶ 36.

While Plaintiff does not dispute that Spyers bad many more years of seniority

at ICT, he claims that Spyers did not have the eqtnvatent responsibilities that Plaintiff

had when they were comanagers Of- the maintenance department. FL Resp SIvtF at

¶ 36. Plaintiff contends that, between October of 2008 when he was named co-

manager of the maintenance department, and December of 2012, he "recommended

all, hiring, firing, promotions, and demotions, scheduling, and duty assignments." FL

SMF at ¶ 10. He further contends that he interviewed and recommended the hiring of

several employees, interviewed and hired work-study students who worked for the

maintenance department, and was responsible for the scheduling of all of the

maintenance employees. FL Sh' at ¶J 11-13. Smith asked Plaintiff to create job

descriptions, and daily, weekly, and monthly work schedules for all full-time

maintenance employees and work-study students, and Smith refelTed to this schedule

as the "Maintenance Manual," which was updated in 2012. P1. SMF at ¶J 15-16,

18, 56, 57, 74. Plaintiff also contends that Spyers did not have any college credits,

higher education background, or the "educational qualifications (computer

knowledge, writing, typing, or other managerial skills), needed to keep up with a

growing maintenance department" FL 5 1,: at ¶(J 2022. Although Plaintiff and

41a

Case IL4cv02728k1iHC

$pyers were co-managers of

1 /1-2/17 Page 11 of 73

Document 92 Red 0-

the maintenance dejartnaent, Plaintif± contends that he

was the person who directed the duties and scheduling ofall maintenance employees,

uociudmg work—study StudentS and Spyers. FL SI\'fF at 28.

The parties do not dispute that Spyers was a loyal, dedicated, hard-working and

trusted employee. Def. SM at 9J40. Spyers was hired in 1996 at a rate of $9.00 per

hour, while Plaintiff was hired in 2008 at a rate of $11.00 per hour.. Def. S1Y' at 41.

In 1997 Spyers first received a salary of $900 per pay period; his pay was increased

over the years, but he did not reach the salary rate Plaintiff initially received upon hire

until approximately 2002. Def. SM1L• at ¶ 42. In 2002, after five years of service,

Spyers was paid $1,140 per pay period, while Plaintiff received $1,145.83 per pay

period immediately upon being made co-manager on October 16, 2008, after only

nine months of being a full-time maintenance employee. Def. SIvEF at ¶ 43. In

comparison, as of October 2008, Spyers had fourteen years of service and made

$1,450 per pay period (a difference of $304.17 per pay period between the two

salaries). De f. SIAT at ¶ 44.

Over the years, the pay difference between Plaintiff and S. pyers started

shrinking. Def. SNOF at ¶ 45. In 2009, Spyers earned $1,480 per pay period and

Plaintiff earned $1,260.42 per pay period, which is a difference of $219.58 per pay

period. Def S1' at ¶ 46. In 2010, Spyers earned 81,520 per pay period and Plaintiff

42a

Case 1:14-cv-02728-HC Documeot C22

fi7

earned $i,336G per pay period, for a difference of $184.00

S,11

ci 73

pay period. Def.

at ¶ 47. fri 2011, Spyers earned $1,545 per pay eriocL and Plaintiff earned

$1,382.75 per pa' period, for a difference of $162.25 per pay period. Fef. $MF at

¶48. In 2012, Spyers began wortulig part-time due to health conditions and was paid

E flat rate of $450 per morn. Def, SL4 a ¶ 49. For the relevant time period, Plaintiff

was paid $1,382.75 semi-monthly ($33,186 per year):, and Spyers was paid $1,545

semi-monthly ($37,080 per year). Def. SI at ¶ 50.

According to the Defendants, Plaintiff was counseled on his management skills

and his need not to be so harsh with two African American Male workers, especially

in his memoranda to them. Def. SIVETF at ¶ 51. In response, Plaintiff contends that there

are no such warnings contained in his personnel file. FL Resp. SI/IF at ¶ 51.

Defendants also contend that Smith and Blair instructed Plaintiff that second

interviews of applicants had to be done by Blair, but Plaintiff failed to permit Blair

conduct the second interview of a candidate being considered for a vacant

maintenance position, which resulted in Piainti±rs offering a position to an applicant

who could not meet the needs of the work schedule. Def SIvT at ¶J 52-53. Plaintiff

disputes

that any such direction was giver to him, FL Reap. SirIF at ¶J 52-53.

Plaintiff offered a position to a person with a criminal conviction who was unable to

work the shift needed because of his postreIease obligations. Def ShillS at

12 43a

Case

4-'027284k'i-C ccument 22

ed 0- 1 /13!1

aç:e 12 o 73

P laintif±reconimended and ICT hired another African-American to replace the person

illiff initially hired who was unable to work the shift required. Def. S.LfF at 55.

Defendants also contend that Plaintiff responded to his year-end review by wi'ting

a "defensive, argumentative and insulting response" to his sujervisor. Def. 8L41F at

¶ 56. Plaintiff disputes this characterization and contends that be "expressed his belief

that he was decisively under paid as compared to his co/manager whose

responsibilities he had taken over." FL Resp. ST\67F at ¶ 56.

As the manager, Plaintiff was responsible to get the job done, and was

responsible if his team did not do something right or if they did not get the job done.

Def. SIAF at 79f 57-58. In July of 2012, an -A =6

staff member, Jamillah

Booker, complained that the maintenance department left classroom furniture in the

hallway. Dief. SMF at ¶ 59. On July 9, 2012, the maintenance department left

classroom furniture sitting in the hallways and lobby area. Def. ShfF at 60. On July

9, 2012, Plaintiff got into a verbal altercation with his supeTisor Thomas Blair

regarding why the maintenance department left classroom furniture in the hallway.

Del. S MiF at ¶ 61. According to the Defendants, when Plaintiff was questioned about

the classroom funiture being left in the hallway by the maintenance department, he

yelled at Dean Blair. Def. SL' at ¶ 62. Plaintiff disputes that he yelled at Dean Blair,

but admits that a "verbal confrootatiba occurred wL- en Thomas Blair refused to allow

44a

22 [[ed OLii7

Case 1i4-cv-O2723-'iHC Dcosnt

left out,"

Plaintiff to exptain why the turrurure was

L4 ci 73

P1, Resp. Sl\JF at ¶ 62. Plaintiff

airtlireatenedto replace him, he stood up from

rBl

afte

that

eve

how

ute,

disp

not

does

63.

. SIYLF at ¶ 63; Ph Resp. SMF at

his chair and pointed his finger at Blair. Def

Plaintiff also does not dispute that he

him off"

has a temper when somebody "tees

per and

65. ffs inability to control his tem

i - at ¶ 65; FL Resp. S", \ T at ¶

Def. SlT

accept constructive criticism or reprim

and has caused him problems with

Def. SMT

relationships and employment in the past.

at ¶ 69.

ended for insubordination, Def. SILT- at ¶

susp

was

inti

Pla

201

luly

with

July 23, 2012, Blair held a meeting

lifte

was

sion

pen

sus

ffs

inti

After Pla

ectations of

all issues, as well as clariT ICT's exp

and

any

lve

reso

and

uss

disc

him

ting with him,

does not dispute that Blair held a mee

inti

Pla

77.

SMI

Def

him

tions to

ument "which provided ICT's expecta

but contends that Blair gave him a doc

rmal

July of 2012, Plaintiff filed a "fo

Als

78.

be met" P1. Res

other racial animus" with ICT' s Human

and

pay

ion

inat

rim

disc

ial

rac

grievance

inst ICT, Smith, and

Resources Department aga

Smith

discrimination policy. P1. 5kW atJ 112.

discrimination complaint. FL SkW at ¶

Blair, based on ICT's anti-

personally responded to the Plaintiffs

113.

ain student workers at ICT worked in

In 2012, during the relevant tine, cert

ff's super\71s10n. Def. SHIP at 51 7.

maintenance deoartment under Plainti

45a

the

Student

Case 1:14-cv-02728-MHC DocLme

[ec! 01/13.117 Page 15 of 73

workers fur whom Plaintiff was responsible were present in the Accounting

Department near the time of the theft of money from that department. Del SMF at

¶ 79. According to the Defendants, CT believed that Plaintiff

permitted a student

worker to clean the Accounting Department office despite ICT's prior instructions to

Plaintiff to the contrary. Def. SI\iF at ¶ 80, Plaintiff disputes this and contends that

he was following the "routine practice within the department," and "there are no oral

written warnings in Plaintiff's personnel file indicating wrcngdomgs involving this

matter." P1. Resp. SI\AT at ¶ 81,2 According to Plaintiff, work-study students regularly

cleaned in the Accounting Department even before he was promoted to co-manager

ofthe maintenance department. P1. SMP at 7 54; Tate-Robertson Aff. at 9f 11 (P1. App.

at 366). Plaintiff further contends that, although an African-American male student

named Anthony Bryant was accused of theft, he was searched by the Chamblee

Police, and they refused to arrest him after no money or checks were discovered. P1.

S1 LT at ¶CjJ 45-48, 58-61. Plaintiff does not dispute that, after the alleged theft, Dean

Blair informed him that work-study students were not allowed to work in the

Accounting Department. FL SlvfF at ¶71; Smoot Aff at ¶ 33 (P1. App. at 492).

2 P1aiti s numbered responses to the Defendants' Statement of Material Facts

T not colTesoond to the Defendants' numbered facts after fact number 72. See Del

51fF at 72-73; P1. Resp. Si\fF at ¶j 72-73

46a

Casa 1: i4-c-O2723-kHC Dccut 22 Pd C 1/t3/L7 Face :LC c 73

On an unspecified date, fCT instructed Plaintiff to take the company truck to

Firestone for repairs. Def. SIF at ¶ 81. Plaintiff entrusted a: company truck to his

nephew for body work to the truck, and recommend-6 his nephew do body work on

the truck. De-f, SMF at Cfl 82-83. After Plaintiffs nephew had completed the body

work on the truck, police arrested Naintifiis nephew fdr driving the company truck

0 5. The company truck was impounded, and

\krt:e intoxicated. Def. S16F at ¶J 844

lOT incurred approximately $1 10 in costs to retrieve the impounded truck. Def. S•J\4JF

at ¶J 86-87. Defendants contend that the company truck sustained additional damage

while it was in possess ion of Naintifls nephew, which Plaintiff disputes. De f. S14}'

at ¶ 88; P1. R--sp. S1\/1T. at ¶ 89. Defendants ftirther contend that JOT believed that

Plaintiff negligently entrusted the truck to Lis nephew and failed to have Firestone do

the repairs as instructed. Def, SbF at ¶ 90. Plaintiff disputes this and contends that

]iCT was "completely aware ofSen-Lm ore Automotive doing bodywork on the donated

Sonoma Truck." P1. Resp. SI at

A student worker for whom p:iad; ntiff was responsible was suspected of stealing

trvo laptop computers from JOT's IT Department. Def. SI at ¶ 91. The student

worker, Kenneth Hamm, confessed to the police and told police he used the

M2-

keys on a stick to enter the IT Department, where a theft occurred, to

clean the office. Def. S1V' at ¶ 92; P1. $hfF at ¶ 89. According to Defendants,

47a

- Fao:e 18 of 73

Case i:14-cv-02728-MHC 0ocum.ent 22 FiFed 01/133,11 17

that he "never received any oral or written warnings placed into his personnel file

after his suspension in July 2012 and/or up to his discharge from employment in

December 2012." FL Rasp. $I\

at ¶ 97.

Defendants contend that Blair advised Plaintiff of the changes to his duties and

advised him to report to work on December 14 for his new assignment. Def. '-31vT at

¶ 97. Plaintiff was supposed to return to work on December

14, 2012 at 11 p.m., but

Plaintiff failed to report to his new work assignment on December 14, 18, 20 and 21,

2012. Def. S--N,/LT- at ¶9198-99. En December 14, 2012, Plaintiff called Brandon Smoot

about not working. Def. Sl at ¶ 100; Fl. Siv' at ¶ 107. Brandon Smoot was a

fellow maintenance worker but was not PlaintifFs supervisor or manager. Def. SIMIF

at 9J10l. Plaintiff did not call Elmer Smith or Thomas Blair about not working on

December 14, 2012. Def. SIvUF at ¶ 102. Plaintiff missed four out of six days after

being demoted on December 13, 2012. Def. SIAIF at ¶ 103. Plaintiff also did not notiT

his supervisor Thomas Blair about his absences on December 14, 18, 20 and 21,

2012. Def. S1\' at 91 104. ICT's written policy required Plaintiff to riotiJ his

supervisor of any absences as soon as possible. Def. STAIF at 91 105. Plaintiff received

a copy of the Employee Handbook containing the attendance policy. Del. SI\F at

¶ 106. Following the removal ofF laintifFs managerial duties

-o

on December 13, 2012,

Care Di4-cv-02723-EHC DOCumSEi 92

Iec

Ear L9 ci 73

Blair remained Plaintiffs supervisor, andPtaiotiffs time cards for December of20 12

reference hus supervisor as being Dean Thomas B lair. Def. SI\4iF at ¶9f 107-08.

Although Plaintiff does not dispute that he fdiled to notify Blair about his

absences, he contends that Blair did not follow lOT's policy at providing a written

appraisal to an employee demoted with a salary decrease, "which would have or

should have provided the specifics of Plaintiffs demotiom" P1. Resp. SIv' at

77 98-100. Plaintiff further contends that he "called out ill each day when absent from

duty and called who was moved into the Lead Maintenance Technician (supervisory

position) because the chain-of-command had changed within the --department." P1. Resp. SMIF at ¶91 100, 102-03. According to Plaintiff, he had never

called Blair or Smith when he had been absent previously, and his usual practice in

the past had been to report his absence to Spyers. Ph. Resp. SI\3 at ¶9J 103-09; P1.

SMIF at ¶ 106.

On December 26, 2012, Plaintiff was terminated from his position for missing

work and failing to properly notiT Blair, his supervisor, about his absences. Def.

1 1040. Plaintiff was an at-will employee and could be fired

ShE at 91 110; P1. SMT at 1

any time. Def. SIYOS at ¶ lii. =Has terminated other employees for violating the

attendance policy. Def. Sb/IF at ¶ 109. On the dy Plaintiff failed to report to work as

scheduled on December 14, 2012, PlaimiffvTote a letter to Smith. Def, SMIF at 91 112.

}e,.

11.

Case :i4-cv-O2723-MHC

DCYCWTCOt 02 EFed.0JL2!:L7 Pace 20 ci 73

On the day PlaintifF failed to report to work as scheduled cii December 15, 2012,

Plaintiff sent documents to the Equal Employment Opportunity Commission

("EEOC"). Def. SMH at ¶ 113. On the day Plaintiff failed to report to work as

scheduled on December 17, 2012, Plaintiff contacted the Occupational Safety and

Health Administration ("OSHA"). Def. SI at ¶ 114. Plaintiff also contacted the

wage and hour division and the Department of Education, Def. Si at ¶91 115-16.

CT has a written progressive disciplinary procedures policy which requires all

disciplinary actions follow an oral written warning, written warning, suspension

and/or termination if necessary, according to the seriousness of the offense. El. Sh'fF

at ¶ 34. Plaintiff contends that he has never been given an oral or written warning as

maintenance co-manager from October of 2008 through July of 2012, and also has

never received any warning or counseling letter between October of 2008 and

December 26, 2012, for not calling his direct supervisor. El. ShArT at ¶91 3 5-36, 103.

Plaintiff also contends that his wife, Carolyn Tate-Robertson, was given a sixty-day

probationary period by Blair for missing days and not calling her direct supervisor.

El. SIAT at 791 85, 101; Tate-Robertson Aff. at ¶ 58 (Fl. App. at 374).

Plaintiff further alleges that another 1CT employee, Victor Ramirez, missed

three days of work and did not call ]CT at all, but Smith and Blair did not discharge

him from employment. EL Sl\JfF at 91 102; Tate-Robertson Aff at 91 59 (El. App. at

50a

ed 011 _12'J-17Pace 21 of 73

Case 1:14cv-02728-MHC Documert K

cites

374).. un support of that allegation, Plaintiff

to the Affidavit of his wife, Carolyn

e around October 2314, 1

Tate-Robertson, in which she states as fbllows: "Sometim

removed from his office

had a conversation with Mr. Victor Raniirez, about his being

of several years by Elmer Smith and Thomas l3lair,

what Victor said was due to a

no-call, no-show of three days and not calling his direct

the I.C.T. facilftj informing of his absence"

supervisor or anyone

else at

Tate-Robertson Aff. at ¶ 59 (P1. App. at

nd that Tate-Robertson's

374). Defendants have objected to this allegation on the grou

statement in her Affidavit regarding what Ramirez told

her is hearsay, and further,

because the evidence does not support the alleged fact. Def.

Court sustains the objection on both grounds.

Resp. S1 at 9J 102. The

First, whatever Ramirez allegedly said

Tate-Robertson about his absence and termination is

statement from Ramirez is being used to prove the

truth of the matter asserted. See

FEn.REvm. 801 ('"Hearsay' is a statement, other than

while testi'ing at the trial or bearing, offered

hearsay, because the

one made by the declarant

in evidence to prove the truth of the

t may not consider

the Cour

matter asserted."). Thus, because the statement is hearsay,

.3 Second, even if Tate-

it as admissible evidence to support Plaintiffis allegation

lish that Ramirez was not

Robertson's statement were not hearsay, it does not estab

hearsay at trial may

As discussed above, evidence that would be inadmissible

for summary juctgment. Macuba v.

not be considered by the Court- on a motion

DeBoer, 193 K3d 1316. 1322-23 (11th Cir, 1999

—

Cass L:14-cv-02728-MHC •Dcrcumaot 82 Fad 0 1 1311

Pace 22 ci 73

terminated from his employment; instead., it implies the opposite, that Ramirez was

"remove[d from his office of several years by Elmer $mith and

Thomas Blair" after

he failed to call in, Tate-Robertson ALL at ¶ 59 (P1.. App. at 374).

ance

Following the PlaintifPs termination, ICT replaced P laintiff as the Mamten

Manager with another African-American, Reginald I.ewis. DeL. S1 at ¶ 117.

Smith, an African-American, subsequently replaced Reginald Lewis

manager. DeL. SJ

Brian

as maintenance

at ¶ 118.

In the Plaintiffts Complaint, he alleged that he filed a timely charge

ssion ("EEOC")

discrimination with the Equal Employment Opportunity Commi

against ICT on December 26, 2012, and amended that Charge on

Comp. [2] at ¶9f 12, 60, and attachment (P1. EEOC Charge

March 8, 2013.

against ICT d.ted

and

December 26, 2012, stating that he a ileged discrimination on the basis of his race

retaliation, starting July 9, 2012, and ending December 13, 2012). On March 8, 2013,

Plaintiff amended his EEOC Charge to include wrongful discharge. Id.

also attached to the Complaint a Dismissal and Notice ofRights from the

June 5, 2014. See Id, and attachments.

52a

at ¶ 60. He

EEOC dated

Casa i:4cvO2722MHC Dccusnt 2 F([!d Q /'i3/:7 P age 23 ci 72

DfSCUStfliON

Su1\inARY tUT)CiTh1T STA1\TDARD

Summary judgment is authorized when "the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to ajudgment aS a marter of law."

FED.R.Civ.P. 56(c). The party seeking summary judgment bears the burden of

demonstrating the absence of a genuine dispute as to any material fact. See Adieices

v. S. H. Kress & Co., 398 U.S. 144, 175 (1970); Bingham, Ltd. v. United States, 724

T-,-.2G- 1921, 924 (11th Cir. 1984). The movant carries this burden by showing the court

that there is "an absence of evidence to support the nonmoving party's case." Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). in making its determination, the court

must view the evidence and all factual inferences in the light most favorable to the

nonmoving party.

Once the moving party has adequately supported its motion, the norimoving

party must come forward with specific facts that demonstrate the existence of a

genuine issue for trial. Mats ushita Lice. 17,0711S. Co. v. Zenith Radio Coip., 475 U.S.

574, 587 (1986). The norimoving party is required "to go beyond the pleadings" and

to present competent evidence designating "specific facts showing that there is a

genuine issue for trial." fie/otez, 477 U.S. at 324. Generally, "[t)he mere existence of

53a

Case 1:1-cv-02728-kHC: Doc.jmeot g2 Fed 0J13I17 P8:oe 24 o 72

a scintilla of evidence" supporting the nonmoving partys case is insufficient Co defeal

242, 252

a motion for summary judgment. 14IwersGn LiberiyLobb Inc, 477 U.S.

(1986).

When considering motions for summary judgment, the court does not make

decisions as to the merits of disputed factual issues. See Anderson, 477 U.S.

Ryder kit Co r

at 249;

First American 1\Tat'l Bank, 943 R2d 1521, 1523 (11th Cir.

1991). Rather, the court only determines whether there are genuine issues of

material

fact to be fried. Applicable substantive law identifies those facts that are material and

those that are ineievant. Anderson, 477 U.S. at 248. Disputed facts that do not resolve

or affect the outcome of a suit will not properly preclude the entry of summa

judgment. Id.

if a fact is found to be material, the court must also consider the genuineness

O. -IF the alleged factual dispute. Id. An issue is not genuine if it is unsupported

evidence, or if it is created by evidence that is "merely colorable" or is "not

significantly probative." Id. at 250. A dispute is genuine "if the evidence is such that

477 U.S.

a reasonable jury could return a verdict for the nonmoving party." Anderson,

er, fofactual issues to be genuine, they must have a real basis

Moreovver,r

at 242. Moreo

in the

record. Matsushita, 475 U.S. at 587. The nonmoving party "must do more than simply

show that there is some metaphysical doubt as to the material thots," Id. at 586.

Case i:i4-cv-O2728-14HO Documant 22 Ead 0L'3i17 Page 28 Ci 73

"Where the record taken as a whole could riot lead a rational trier of fact to find for

the non-moving party, there is no gonuine issue fdr trial."' La at 587 (quoting First

Mat'! Bank qf Arizona v. Cities Senfce Co., 391 U.S. 253, 289 (1968)). Thus, the

standard for summary judgment mirrors that for a directed verdict: "whether the

evidence presents a sufficient disagreement to require submission to ajury or whether

it is so one-sided that one parry must preyed as a matter of law," Anderson, 477 U.S.

259.

LLI

PLA1ITFF'S CLAIIYIS

LLS L.TJL 11!t fl-.' ..anaius Ldscr11L!n1Lea CLgmL

::t-,-,-

him on the basis of his race, and retaliated against him for making complaints about

discrimination, in violation of Title VII and 42 U.S.C. § 1981. He also asserted claims

against the Defendants under Title VI; 42 U.SC. § 1985(3); the FLEA; the Ledbetter

Act; and O.C.G.A. § 51-5-4(a). In an Order dated September 2, 2015, the Court

dismissed the following claims: Plaintiff's claims under Title Vi and Title VII against

the individual Defendants Smith and Blair; Plaintiff claims of race discrimination

and retaliation against ICT under Title VII based on any actions that occurred prior

LO June 19, 2012; and Plaintiff's claims under the FLSA. 42 U.S.C. § 1985(3), and

CI,C.G.A, § 51-5-4(a)(3) against all Defendants. See Order [45]. Thus, the Court

permIttec only the following claims to proceed: Plaintiff's claim of race

55a

Oac i:i4cv-02728-RHC Document 2 FEec 0i/L2/17 Face "213 of 73

discrimination against TCT under Title VI; Plaintiff's claims of race discrimination

and retaliation against ICY under Title Vii, as amended by the Ledbetter Act, for

actions taken on or after June 19, 2012; and Plaintiff's claims against all Defendants

under 42 U.S.C. § 1981 for race discrimination and retaliation. The Court will first

discuss Plaintiffs claims under Title 'Th then 42 U.S.C. § 1981, then Title VI.

Plaintiffs Title WI Claims

Standards ofProof under Title WI

Plaintiff has asserted claims of race discrimination and retaliation under

Title VII of the Civil Rights Act of 1964, which provides that it is unlawful for an

employer "to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race,

color,

religion, sex, or national origin." 42 U.S.C. § 2000e2(a)(1). To prevail on a

Title VII claim, a plaintiff must prove that the defendant acted with discriminatory

intent. Ha.'ldns v. Ceco Corp., 883 F.2d 977, 980-981 (11th Cir. 1989); Clark v.

Huntsville Citylld ofEduc., 717 F.2d 525, 529 (llthCir. 1983). Such discriminatory

intent may be established either by direct evidence or by circumstantial evidence

meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp.

v.Green, 411 U.S. 792 (1973). See HolfieZd v. Reno, 115 F.3d 1555, 1561-62(1-1 1-1

Cir. 1997); Nix v. LCYRadio½?inhall Comm., 738 F.2d 1181. 1184 (11th Cix. 1984)..

56a

Case i:i4-cv-Ci2728MHC Dcc mrt 02

ed 01/13117 Pace 27 cf 73

Additonaily, statistical proof nvay be Usen 5 ci unisantia

Tjer

intent Cw-ter v. City cfMiazni, 270 R2d 573, 581-82 (11th Cit. 1989).

Direct evidence is defined as evidence "that is based on personal 1nowiedge

or obseiniation and that, if true, proves a fact without inierence or presumption."

BLACIC S LAW DCTIoNAY 596 (8th ed. 20,04-)- sec-also, Clark v. Coatt

& Clark,

990 F.2d 1217, 1226 (11th Cit. 1993); Carter v. Cizy ofMlaini. 870 F.2d

(11th Cit. 1989); Rollins V. TechSouth, Inc., 833 F.2d 15255

578, 581-82

1528 n.6 (11th Cit.

inate

1987). Only the most blatant remarks whose intent could only be to discrim

constitute direct evidence. Glark, 990 F.2d at 1226; Carter, 870 F.2d at 581.

Evidence

that only suggests discrimination, see Earley v. Champion Intern. Corp.,

907 F.2d

1077, 1081-82 (11th Cit. 1990), or that is subject to more than one interpretation,

Harris v. Shelby Coutuy Ed of Educ., 99 F.3d 1078, 1083 n,2 (110h Cit. 1996),

see

does

not constitute direct evidence. "D}irect evidence relates to actions or statements of

an employer reflecting a discriminatory or retaliatory attitude correlating to the

r 12.

discrimination or retaliation complained of by the employee." Caban- Wheele

Elsea, 904 F.2d 1549 1555 (11th Cit. 1990); see also Garter v. Three

Springs

Residential Treatment, 132 F3d 635, 641-42 (11th Cit. 1998).

Evidence that merely "suggests discrimination, leaving the trier of fact to infer

discrimination based on the evidence" is, by definition; circumstantial, Earley

2/'7

Case 1:14-cv-0272B-MHC Documen 02 Fec 01/13/17 Page 23 ci 73

Champion Intl Corp., 907 R2d 1077, 108 i82 (11th Cir. 1990). Because direct

evidence of discrimination is seldom available, a plaintiff must typically rely on

circumstantial evidence to prove discriminatory intent, using the framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Tex os

Dep't of onununity Affairs v. Burdine, 450i U.S. 248 (1981). See Holrfleid v. Rena,

115 F.3d 1555, 1561-62 (11th Cir. 19.97); Combs V. Plantation Patterns, 106 F.3d

1519, 1527-1528 (11th Cir. 1997). Under this framework, a plaintiff is first required

to create an inference of discriminatory intent, and thus carries the initial burden of

establishing aprinzafacie case of discrimination. McDonnell Douglas, 411. U.S. at

802; see also Jones v. Bessemer Carraway Medical tr., 137 F.3d 1306, 1310, reh 'g

denied and opinion superseded in part, 151 E.3d 1321 (llthCir. 1998); Combs, 106

F.3d at 1527.

Demonstrating a prima facie case is not onerous; it requires only that the

plaintiff establish facts adequate to pemiit an inference of discrimination. Jones, 137

F.3d at 1310-1311; Ho4fieid, 115 F.3dat 1562; see Burdine, 450 U.S. at 253-54.

Once the plaintiff establishes aprimo:facie case, the defendant must "articulate some

legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell

Douglas, 411 US. at 802; Jones, 137 F.3d at 1310'. This burden's "exceedingly light"

in comparison to the burden required if the plaintiff has presented direct evidence of

58a

Case

4-crQ2728-FYHC

F&d CJ3/i7 Rae 29 ci 3

DoCLp.Eflt 92

c1 1530, 1537 (11th Cm l98 8j if the

839 ]F,2

discrimination. Srintf v. Homer,

burden

defendant is able to carrT this

ext for

the proffered reason is merely a pret

to prevail, must then show that

. at

discrimination. Se Bnrdine, 450 U.S

698 F.2d 1138, 1142 (11th Cir.

order

and explain: itS rationale, the plaintiff in

25354; Per'ryTnan n Johnson Products

Co.,

1983).

ive a defendant's motion for summary judgmen

A plaintiff is entitled to suri

iI there is sufficient evidence to demonstrat

the existence of a gpnuine issue

r's proffered reasons for its actions

the employe

material fact regarding the truth of

facie case

thnbs, 106 F.3d at 1529. Aprirna

employer's explanat-iori is all

along with sufficient evidence to reject

ntional

that is needed to permit a finding of inte

discrimination. Reeves v. Sat-tcierson

0); see

PlumbingEmod, Inc., 530 U.S. 133 (200

U.S. 502, 511 (1993); CoTnbs, 106

also St. Hwy 's Honor Ctr. v. ;--Ticks, 509

F.3d at

1529.

This McDonnell Douglas-Burdine

proof structure "was never intended to be

rigid, mechanized, or ritualistic. Rather, it

merely a sensible, orderly way to

nce as it bears on the critical

experie

evaluate the evidence in light of common

question of discrimination." United Stat

also

460 U.S. 711, 715 (1983); see

594 (11th Cir. 1987). The Eleventh

Postal Sen'. Bd of Governors v. Ailcens,

Grigsby v. Reynolds Metals Co., 821 F. —

Circuit has held that this framework of

59a

590,

shifrLing

Case

4-cv-02728-kHC Docuroen 92 Pikerf 0i!13/7 Re 30 of 73

burdens of proof is a valuable tüul for analyzing evidence in cases involving alleged

disparate treatment, but the framework is oinly a tool. I\Tix i'.

WLCJT Radio./Rahail

Comm., 738 F.20' 1181, 1184 (11th Cir. 1984). The "ultimate question"

is not whether

a plaintiff has established aprimafacie case or demonstrated retec, but "whether

the defendant intentionally discriminated against the plaintiff." Id., 738 F.2d at 1

184

(quotingAikens, 460 U.S. at 713-14); see also Jones, 137 F.3d at 1313. The plaintiff

retains the ultimate burden of proving that the defendant is guilty of intention

discrimination. Burdine, 450 U.S. at 253.

T)-.

flr

KLauon

ce L4s..dL/nL

In the Complaint, Plaintiff claims that he is African-American, and that ICT

I iscriminated against him on the basis of his race, in violation of Title Vii. Comp. [2]

at ¶9J 1, 4. Plaintiff does not contend that he has produced any direct evidence of

any

discriminatory intent, and the undersigned finds that he has not done so. Thus,

Plaintiffs claim of race discrimination rests purely on circumstantial evidence and

must be analyzed under the IVIcDonneJl Douglas-Burdine framework.

(1)

Plaintifrs Prima Facie Case

Under the McDonnell Douglas-Burdine framework, a plaintiff can generally

establish apriinafcie case of urdavuuJ discrimination under Title VII by

60a

showing

Case 1:14-cv-O2728-\'HC Docurretil 22 Eec 01/12/17 Fage 3.1 of 73

that: 1) he is a member of a otected class;4 2) he was subjected to an adverse

employment action by his employer; 3) he was qualified to do thejob in question, and

4-) his employer treated similarly

suuaLeot

employees outside his protected

classification (i.e., those of a different sex, race, or religion) more favorably than it

treated him. See McDonnell Doug/as, 41 1 U.S. at 802; see also Wright v. South/and

C07-P., 187 F.3d 1287, 1290 (11th Cir. 1999);Hoifie/di'. Rena, 115 F.3) I555 1562

(11th Cir. 1997). The Defendants do not dispute that Plaintiff is a member of a

protected class and he was qualified to do the job in question. Defendants contend,

aL cLu1LSL! a. JJ1'Lma 1acte case ol race alsclLmmaLlon

r1LLL1II aLLPL

nowever, LaL

because he has failed to present evidence showing that ICT treated anyone outside his

protected class more favorably than It treated him.

As noted above, Piainti.iTs claim of race discrimination against ICT under

Title VII is limited to actions taken by ICT on or afcer June 19, 2012. Although the

Plaintiffs allegations in the Complaint are not entirely clear, it appears that the

10though courts continue to include the requirement that a plaintiff establish

as part of aprimafacie case that he or she is a member of a "protected class," it is

clear that individuals of any sex, thee, or religion may pursue claims of employment

discrimination under Title VEt. See Wright v. Southland Coip., 187 F.3d 1287, 1290

n3 (11th Cir. 1999) (citing McDa a/dy. SantaFe 2}ail Transp. Co., 427 U.S. 273,

27880 (1976)). Thus, the he element of the pi-/inafacie case is establishing that

persons outside of the plajntnSs protected classification (i.e.• those of a different sex,

race, or religion) were treated more favorably by the employer. See FT" -ig/ot. 187 F.3d

at 1290 n.3.

61a

T L1S s:jcc1

ST4 JT4 STJ p9 UUA

dst

xs Id sm o

mumIosp Oj. PflUt.UO JJJ 1 T4 tTTpuUOo Si JJU,TJTJ

TM Um4 SLTS

Te iNS JG S 'iOZ '1 'JAI UO pLp siicds

rSO JU1JflQ 10L1 Si I L

1 SUOT4 OJ, PIUII

pndsipun o q ol sdde J Z 10 Z '61 OUT If 79 TJO u jj zq UQ)j72

Tf{ 'AoqE p4OU

S JJj\. 0111j, JpUfl UOT4UTTflUDSip OJ JO UflJ SJ1J,U

g1 4-,2 lliS JU U1OULIF-U Jy

J, m

ooz mo

srsd

pupi ou

o zT uiç Jo oai

ui qp s, sicds iiun

OU SM OWA ULUdp uuLirn

iodsi

pndsipun Si ii 'sojo

1c1du ijuo gqj s' scds

qnoy - Z [- 0z

'nuaEdp ouumEmoup ,jo

ireui-oo 'qol

TLTS oup f-,.i:-auo-jjod JoJ sJJcds LUilTLi

pied ;i utp ss mq pmcl j[j

spuo

dwoj

1cdm uoimm L -To sTp JIOJJO s

i1jUoJM

Ti.

o unq p

tij

tnj tnTdmo3

fqns jjj -ei

()

JO oo

LUri1 UT SUOTO sJApU

SSnSp ITTM fl.O3

•1cq

LI Z1OZ '9Z

TOZ 'El JqUiO

qmoo

nOq2 JO UO UOUTSOd

1cp m UflT UTPLTOdSnS !cq qOfJJiLUTS

cq : Z 0

SUDI 2J S ALS JTIOJ ITDSI. c.q U1T IS

EL .° ZE £'8.d 1!EiTO pu

TUUULTO3

noqU io uo LTouDcocIUx ST

uu srq -mou miii 23upcLugp

UiU.UOJ.i-OdJOJ s1cd uTiJ .

7, oun iojj Jo 7u UT JSU

p JSumTuosp J3T YSTJ

SLTIET.IJ

5 LieUflOOc

Case I:4-cv-02723-M-C Document 22 PIed 011L3/17 .iape 33 ot 73

involving claims of wage discrimination under Title VII, the discriminatory

duct

constitutes a contmumg violation so tong as the employer continues to make

discrirninatoiy payments to the jla.int iff See Callo14;ay V. Pm-'

No:tl Health.

-;r. 10/9 3)), ("When the claim is one for discriminatory

Plans, 986 R2d 446, 449(11th Cwages, the violation exists every single day the employee works."); see also

Baeznore v. Friday, 106 S. Ct. 3000, 3006 (1986) ("Each week's paycheck that

delivers less to a black than to a similarly situated white is a wrong actionable under

Title VII

."). Although Plaintiff does not argue speciflcally that his alleged

discriminatory pay was a "continuing violation" even after Spyers 's death in May of

2012, in deference to his pro se status, the Court will assume for the purpose of this

discussion that Plaintiff is arguing that JCT continued to discriminate against him

with respect to his pay after June 19, 2012.

Generally, in order for a plaintiff to establish apriinafacie case of unlawful

wage discrimination under Title VII, he must show that: (1) he is a member of a

protected class; (2) he received low wages; (3) similarly situated people outside his

protected classification (i.e., those of a difterent race or gender) received higher

wages; and (4) he was qualified to receive the higher wages. Lee v. Mid—State Land

& Timber Co., 285 F. App'x 601, 606 (11th Cir. 2008).

63a

Case

Docuert 92

[ec 0Ji3!i7 Pace 34 ci 73

It is undisputed. thar Plaintiff is a member of a protected class as an African

American male, and that Spyers was an individual outside of his protected class. It

is also undisputed that, in October of 2 00 8, ICT promoted Plaintiff to a comanager

position in the mamtenance department at the Chamblee campus, and that he shared

the co-manager position with Spyers. Def. SlvlIF at ¶91 12-13; P1. Resp. SMT at917 12-

13; P1. Shffi at 9J 7. It is further undisputed that, as of December 9, 2011, ICT paid

Spyers $3,894 more per year than it paid Plaintiff for performing the same job of coiF at ¶ 38. Thus, Plaintiff argues, he

manager of the maintenance department. Def SI

has presented sufficient evidence to establish that ICT discriminated against him

because of his race by paying him less than Spyers for performing the same job, and

because Plaintiff was qualified to receive the higher wages that Spyers received.

Defendants argue that, although ICT paid Plaintiff less than Spyers for performing

the same job, Plaintiff has failed to demonstrate that Spyers was similarly situated to

the Plaintiff in all respects, because it is undisputed that Spyers had tvvelve more years

of experience than the Plaintiff as ICT's maintenance supervisor. Defs. Br. [74-2]

at 11.

"When evaluating an allegation of disparate treatment5" courts "require that a

comparator be similarly-situated to the plaintiff in all relevant respects." Stone &

Webster Constr. V. U.S. Dept cfLahci. 684 F.3d 11275 ii3S (11th Cir. 2012)

64a

Case LL4cvO2723F\r{C Documeni 02 F[eci 0:Lit2/:L7 Pae 35 Of 73

(quotaticns and citation omitted). Endeed, the comparator employee "must be nearly

identical to the plaintlifto prevent court-s from second-guessing a reasonable decision

by the employer." Wi/son v. BYE Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.

2004). "Even if a plaintiff and comparator are similar in some respects, differences

in their overall record may render them not 'similarly situated' for purposes of

establishing a prima facts ease." Brown i Jacobs Erg

)g Inc., 401 F. App 'x 478, 480

(11th Cir. 2010). Courts also consider whether the plaintiff and the proffered

comparator were employed for similar periods. See Roy v. BrowardSherff 3s Office,

160 F. App 'x 873, 875 (11th Cir. 2005) (finding that proffered comparator was not

similarly situated because comparator had been with department for sixteen years,

while plaintiff had less than 18 months of service).

The Plaintiffs obligation to demonstrate apr/ma fade case, however, is not a

heavy one. Plaintiff has shown that another employee, who was not AfricanAmerican, held his exact position and was paid a higher salary during the same time

Period. While the Defendants argue that Spyers's significant seniority over Plaintiff

explains the disparity in pay, the Court funds that Defendants' explanation does not

defeat the Plaintiffs prima fficie case but instead.fa1ls under the next part of the

McDonnell-Doug/as analysis, that is, the Defendants' obligation to provide a

legitimate, non-discriminatory reason for the pay disparity between Spyers and

65a

Case 4-cv-02728-MHC Documerr 92 F[sc Qi/i3'i7 Page 36 of 73

Plaintiff. Accordingly, the Court finds that F laintiff has presented sufficient evidence

to establish apririiofacie case of race discrimination based on pay.

(b) Suspension

Although it is not entirely clear in the plaintiff's Complaint, the Plaintiff may

be alleging that his suspension in July of 2012 was another act of race discrimination

by ICT. See Comp. [2] at ¶9J 37-43 (discussing his suspension). It is undisputed that,

in July of 2012, Piaintiff'was suspended for insubordination. Def. Sl\ at ¶ 75. The

suspension occurred after an African-American staff member, iamillah Booker,

complained that the maintenance department left classroom furniture in the hallway.

Def. SM.IF at ¶ 59'. On July 9, 2012, the maintenance department left classroom

furniture sitting in the hallways and lobby area. Def. S1vF at 91 60. On July 9, 2012,

Plaintiff got into a verbal altercation with his supervisor Thomas Blair regarding why

the maintenance department left classroom furniture in the hallway. Def. STY F at ¶61.

According to. the Defendants, when Plaintiff was questioned about the

classroom furniture being left in the hallway by the maintenance department, he

yelled at Dean Bladr. Def. STAT at ¶ 62. Although Plai-ntiff disputes that he yelled at

Dean Blair, he admits, that a "verbal confrontation occurred when Thomas Blair

refused to allow Plaintiff to explain why the furniture was left out." P1. Resp. Sl\

at 9162. Plaintiff further admits that after Blair threatened to replace him, he stood up

Case 1:i4-cv-0272$-KHC Docuirtent 92 EEic 02/13i7 Page 37 at 73

from his chair and pointed his finger at Biair. Def. 31fF at ¶ (53; P1, Resp. Sh'II]F at

9j 63.

The Defendants argue that the Plaintiff cannot establish apr/innfade case of

race discrimination based on his suspension because he has failed to demonstrate that

his race played any role in the decision to suspend him. Def. Br. [742J at 10, The

Court agrees. Even assuming that the Plaintiff's suspension would be considered an

adverse employment action under Title VII, the Court finds that Piniritiff has failed

to present any evidence that any ICT employee outside his protected class was also

involved in a "verbal confrontation" with Blair or any other official at ICY, and was

not suspended as a result. Moreover, Plaintiff has presented no other evidence that

would lead to an inference that his suspension had anything to do with his race.

Accordingly, the Court finds that Plaintiff has failed to present sufficient evidence to

establish api-/mafacie case of race discrimination based on his suspension in July of

2012.

In the Complaint, Plainriff alleges that he was subjected to a "retaliatory

demotion." Comp. [2] at 18. Thus, it appears that Plaintiff is alleging that his

demotion from his manager position in December of 2012 was act of retaliation for

opposing discriminatory practices, and was not an act of race discrimination. Even

67a

CasE :i4-cv-02728-f''iHC

DOCUmEnt 92 FILEd 01113/17 Paos 3 of 73

assuming that Plaintiff intended to argue that lids demotion was an act of race

discrumnation, the Court foids that he has failed to present apr' -in afdcie case of race

discrimination because he has failed to present any evidence that would lead to an

inference that his race played any role in the demotion.

It is undisputed that, on December 13, 2012, ICT removed Plaintiffs

managerial duties. Def. SI\4 at ¶ 95. According to the Defendants, ICT removed

Plaintiffs managerial duties because of the series of incidents concerning the

maintenance department, such as theft and damage to ICT property, and Plaintiffs

inability to accept constructive criticism and issues occurring under Plaintiffs

supervision. Def. SI

at ¶ 96. Although Plaintiff disputes some of the facts

surrounding the various incidents that occurred in the maintenance department while

he was the manager, he has not presented any evidence that any similarly situated CT

managerial employee, much less one outside his protected class, was also accused of

multiple similar infractions, but was not demoted from a manager position. in his

response opposing the Defendants' Motion for Summary Judgment, Plaintiff contends

that ICT treated several employees outside his protected class more favorably than

it treated him: Willani Spyers (Caucasian male), Bridgett Ch_rysanthis (Caucasian

female); Larissa Nesvetailova (Caucasian female); John Miller (Caucasian male);

David Flores (Guamanian male); Victor RaiAlrez (HispanicCarolyn Tate-

68a

Casa 1: .-c:vtj272B-R/HC Document 92

[sd 01113/t7 Rage 3.9 ci 73

Robert-son (AfricanAnerican female).; and Kenneth E-Iamm (Caucasian male).

P1.

Resp. [88f at ¶ 10. \Vhihi Plaintiff contends that some ofthose employees committed

alleged acts of wrongdoing, he has not presented any evidence that any oil those

employees was similarly situated to him as a managerial employee, or that any of

those employees was accused of multiple similar infractions as was the Plaintiff.

atwould leadto an inference that

a presented no oth er evidence th

Plaintiff hs

his demotion had anything to do With his race. Accordingly, the Court finds that

Plaintiff has failed to present sufficient evidence to establish aprimafacie case of

race discrimination based or his demotion in December of 2012.

(d) Discharge

In the Complaint, Plaintiff alleges that he was also subjected to a "wrongfiul

discharge." Comp. [2) at 10. Thus, although it is not entirely clear, it appears that

Plaintiff may be alleging that ICT discriminated against him on the basis of his race

when it ten-ninated his employment on or about December 26, 2012.

A plaintiff alleging discriminatory discharge under Title VII may ordinarily

establish apiimafacie case by presenting evidence that he was replaced by someone

outside his protected class. ee CiaTdebocki'. Florida Rd qfEdc., 381 F.3d 1230,

1235 (11th Cir. 2004); Haw/cii'ts v. Cbco Corp., 883 R2d 977, 982 (11th Cir, 1989);

see also 1fcDoni'iell Douglas Conn, 411 'U.S. at 802. In this case, it is undisputed that

69a

Case i:14-cv-02728-HC Document 02 Fiecc 0ih.3/7 Pace 40 of 73

Plaintiff was replaced by a member of his protected class, Following Plaintiff's

termination, jr.T replaced Plaintiff as the Maintenance Manager with another

African-American, Reginald Lewis. Def. SMF at ¶ 1 17. Brian Smith, an

African-American, subsequently replaced Reginald Lewis as maintenance manager.

De L' SMF at 9[ 118.

When apiaintiffis unable to show that he was replaced by someone outside his

protected class, he may also establish aprimafacie case of discrimination under Title

VU, by showing that his employer treated a similarly situated person outside his

protected class more favorably than it treated him under similar circumstances. See

Hoiifleidv. Rena, 115 R3d 1555, 1562 (11th dir. 1997); see also Khigiitv. Baptist

Hospital of Miami, 330 F.3d 13 13, 1316 (11th dir. 2003); Si/vera v. Orange County

SchoolBd, 244 R3d 1253, 1259 (11th Cir. 2001); Nix v. WLCYRadio/Ralza/l Comm.,

738 F.2d 1181, 1185 (11th dir. 1984). The Defendants argue that Plaintiff has failed

to present evidence establishing a prima fade case of race discrimination based on

his discharge because he has failed to present any evidence that the Defendants

treated a similarly situated person outside his protected class more favorably than it

treated him under similar circumstances. The Court agrees.

The facts surrounding the Plaintiffs tenrdnation are set forth in detail above

As discussed, on December 13, 2012, ICT demoted the Plaintiff by removing his

70a

Casa 1:14-cu02728-1-,4HO Docurriar. 92 Fad 01/13/17 P'aoe 41 cr1 73

]kiaintiffs managerial ciuties, Def SivfF at ¶ 95 tt iS undisputed that Plaintiff was

sup-posed to return to worlc on December 14, 2012 at 11 p.m., but Plaintiff fbiled to

report to his new work assignment on December 14, 18, 20 and 21, 201-112, Def. SI

at 791 9899. On December 14, 2012, Plaintiff called Brandon Smoot about his

er, not Plaintiff'

absence from work, but Smoot was a fellow maintenance io•r,

supervisor

or manager. Def, SI\'ff' at ¶9J i 0G0 1; P1. SMF at ¶ 107. it is undisputed that

Plaintiff did not call Smith or Blair about not working on December 14, 2012. Def.

at 91 102. Plaintiff missed four out of six days after being demoted on December

13, 2012. Def, SMF at 91 103. Plaintiff also did not notij his supervisor Blair about

his absences on December 14, 1 OR, 20 a rid 2l, 2012. Def. Slv' at 9J 104. !CT's written

policy required Plaintiff to notify his supervisor of any absences as soon as possible.

Def. S.iF at 91105. On December 26, 2012, Plaintiff was terminated from his position

for missing work and failing to properly notify Blair, his supervisor, about his

absences. Def. SI

at ¶ 110; Fl. SI\41' at ¶ 100. it is undisputed that ICT has

terminated other employees for violating the attendance policy. Def. S1v at ¶ 109.

As noted above, Plaintiff claims in his response opposing the Defendants'

Motion for Summary Judgment that ICT treated several employees outside his

protected class more favorably than it treated him: Willam Spyers (Caucasian male),

Bridgett C11r5TSaLY'thiS (Caucasian female); Larissa Nesvetailova (Caucasian female);

71a

Case i:i4-cv-02728MFC Document 92 Fec 0fif 3/17 ace 42 of 73

john Miller (Caucasian male); Davin Fires (Guananian male); Victor Ramirez.

(Hispanic male); and Kenneth Hanini (Caucasian male). See P1. Resp. [881 at ¶ 10.

While Plaintiff contends that some of those employees committed alleged acts of

wrongdoing, he has not presented any evidence that any of those employees was

similarly situated to him, or that any of those employees failed to report to work on

multiple days withoutt horming their supervisor.

in his Statement of Facts, Plaintiff contends that his wife, Carolyn lateRobertson, was given a sixty-day probationary period by Blair for missing days and

not calling her direct supervisor. Fl. SIv' at ¶f 85, 101; Tate-Robertson -k-ft' at ¶ 58

(P1. App. at 374). But Plaintiff admits in his response that his wife is also AfricanAmierican, and thus, she is not a similarly situated employee outside his protected

class. See P1. Resp. [8 81 al 10.

Plaintiff further contends in his Statement of Facts that another ICT employee,

Victor Ramirez, missed three days of work and did not call ICT at all, but Smith and

Blair did not discharge him fiom employment. P1. SIVE FA T 102; Tate-Robertson Aff.

at ¶ 59 (P1. App. at 374). Significantly, in his Statement of Facts, Plaintiff has not

cited to any evidence, or even alleged, that Ramirez is a different race from Plaintiff.

Furthermore, as set forth in the facts section above, the Plaintiff has not cited to any

admissible record evidence to support his allegation that Ramirez missed three days

72a

- I Ci e IiL 92

Case J4-cv-02728-HC D C','-,Ij

[ec 0i/3i7 Pros 43 of 73

of work without CZ[Hnoo- His supervisor. Plaintiff cites only to the Affidavit ofhis wife,

Carolyn TateRobertson, in which she states as follows: "Sometime around October

2014, ii had a conversation with Mr. Victor Ramirez, about his being removed from

his office of several years by Elmer Smith and Thomas BJair, of what Victor said was

due to a no-call, no-show of three days and not calling his direct supervisor or anyone

else at the LC.T. facility informing of his absence," Tate-Robertson Aff at ¶ 59 (FL

App, at 374). Defendants have objected to this allegation on the ground that TateRobertson's statement in her Affidavit regdrding what Ramirez told her is hearsay,

and ffirther, because the evidence does not support the alleged fact. Del Resp. SbOF'

at ¶ 102. As discussed above, the Court sustains the Defendants' objection on both

grounds, and cannot consider the Plaintiffs allegation regarding Ramirez.

Thus, even assuming that Plaintiff had presented evidence to establish that

Ramirez is of a different race from F laintiff, the Court finds that Plaintiff has failed

to cite to admissible record evidence that Ramirez was similarly situated to him in all

relevant respects, or that Ramirez received more favorable treatment under similar

circumstances. For that reason, the Court finds that Plaintiff has failed to present

sufficient evidence to create a genuine issue of fact as to whether Defendant treated

a similarly situated employee of a different race from Plaintiff more favorably

Fthan

it treated Plaintiff Accordingly, the Court finds that Plaint-if± has failed to present

44 of 73

Case i:14-cv-02728-MHC. DocUmen 02 F1ed 01/13/7 Page

race discriir1ination based

sufhcisnt ijonce to establish a iiiinaJcie case of

2012.

t mber 26,

Dece

termmation of his employment on C"--abou

(2)

on the

Defendants Legitimate Reason

nted sufficient

As discussed above, the Court finds that Plaintiff has prese

based solely on his

evidence to establish aprimfacie case of race discrimination

allegation that he was paid less than William Spyers on

the basis of his race. in order

for lOT to establish that it is entitled to summary judgment on

discrimination under Title V, it must present. sufficient

Plaintiff claim of race

evidence that it had a

it paid

legitimate non-discriminatory reason to pay Spyers more than

Plaintiff

Defendants contend that ICT paid Spyers a slightly higher salary

than it paid

as a manager than

Plaintiff solely because Spyers had many more years of experience

nager position in the

the Plaintiff. As discussed, Plaintiff was promoted to the co-ma

er of 2008. Def. SiVfF

maintenance department of lCTs Chamblee campus n Octob

puted that Plaintiffs salary

at ¶ 12; P1. Resp. Sl\4' at ¶ 12; P1. Sh/' at ¶ 7. it is undis

increased in 2008 when he became a co-manager. Def. SbO

at ¶ 16, it is also

m Spyers' annual

undisputed that the pay difference betveen Plaintiffs and. Willia

per. Def.

salary as of December 9, 2011, was $3894 year.

Sl\ at ¶ 38. Spyers started

d with 1C 12 years

with ICT in 1996 at Mamtenance Supervisor, and Plaintiff starte

later in January of 2008. Def, SinOF at ¶34. Thus, 3p37ers had

74a

12-ears more senlonty

Case I: 4-cv-02728-MHC Documeot 92 Fed 0i/U/J7 Page 45 of 7.3

in years and experieflcC woriring at ICT as a manager than did the Plaintiff, Def, 81111

atGj35, A_t the time of Spyers's death on May 11 20, 121 Spyers had been amaasger for

f, S1vF at ¶ 37.

16 years and Plaintiff had been a manager for less than 4 years. De

According to the Defendants, the small difference between P1aint-ifis salary and

Williah-i Spyers' salary was based solely on the differences in their experience and

s.eniorry. See Def, 51YU3 at ¶ 36.

The Defendants further contend that the difference between Spyers 'S pay and

F, at ¶ 45. S.pyers was hired in

the Plaintiff's pay was shrinking over time. Def. SEL

1996 at a rate of $9.00 per hour, while Plaintiff was hired in 2008 at a rate of $11.00

per hour. Def. SMF at ¶ 41. In 1997, Spyers first received a salary of $900 per pay

period; his pay was increased over the years, but he did not reach the salary rate

Plaintiff initially received upon hire until approximately 2002. Def. 81fF at ¶ 42. In

2002, after five years of service, Spyers was paid $1,140 per pay period, while

Plaintiff received $1,145.83 per pay period immediately upon being made co-manager

on October 16, 2008, after only nine months of being a fuJi-time maintenance

employee. Def. S1V' at ¶ 43. In comparison, as of October 2008, Spyers had fourteen

years of service and made $1,450 per pay period (a difference of $304.17 per pay

, at ¶ 44.

period between the two salaries). Def. SEE

Case I:14-cv-92728-MHC Documer: 92 Fed 0iJi3/7 R 8I9C 46 ol 73

fu 2009, Spyers earned $1 ,480 per pay period and Plaintiff earned $ L260 .42

per pay period, which is a difference of $219.58 per pay perlodf, Def. SMJP at TJ 46 In

2010, Spyers cameo. $1,520 per Lay period and Plaintiff earned $1,336.00 per pay

period, for a difference of $184.00 per pay period. Def, Shff' at ¶ 47. Li 2011, Spyers

earned $1,545 per pay period and Plaintiff earned $1,382.75 per pay period, for a

difference of $162.25 per Pay period. Def. SMJ at ¶ 48. In 2012, Spyers began

workIng part-time due to health conditions and was paid a fiat rate of $450 per month.

Def. S1\

at ¶ 49. For the relevant time period, Plaintiff was paid $1,382.75

semimonthly ($33,18' per year', and Spyers was paid $1,545

semi-monthly

($37,080

per year). Def. S.hff at ¶ 50.

In sum,

the Court finds that the Defendants have met the burden of presenting

sufficient evidence that ICT had a legitimate non-discriminatory reason for paying

Spyers more than it paid Plaintiff for perfonning the same job. Thus, in order for

Plaintiff to defeat the Defendants' Motion for Summary Judgment, he must cite to

competent evidence in the record that would be su1cient to establish that the

Defendants' proffered reason is a pretext for race discrimination.

(3) Pretext

A plaintiff may

reasons are pi e-

carry

the burden of showing that the employer's proffered

by showing that they have no basis in fact, that they were not

7 6e

Case i:4cv-02723-kHC Documeot 02

csc 0L113LL7 Pags 47 of 73

the true factors motivating the decision, or that the stated reasons were insufficient

to motivate the decision, A plaintiff can either directly persuade the court that a

discriminatory reason more likely motivated the employer or show indirectly that the

ti;

employer's ultimate justification is not believable. See Teras Dsp t of Coiiiun

Affairs v. Burdine, 450 U.S. 248. 256 (1981); Weaver v. Casa Gailardo, Inc., 922

tity to

F.2d 1515, 1522 (11th Cir, 1991). in other words, the plaintiff has the opToortr

come foivard with evidence, including the previously produced evidence establishing

the primafacie case, sufficient to permit a reasonable factfinder to conclude

that the

reasons given by the employer were not the real reasons for the adverse employment

decision. Burdine, 450 U.S. at 256; McDonnell Douglas, 411 U.S. at 804.

A plaintiff may carry his burden of establishing pretext by demonstrating "such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a reasonable fac.tfinder

could find them unworthy of credence." Combs v. Plantation Patterns, 106 F.3d

ation

1519, 1538 (11th Cir. 1997). However, "[a7 reason is not pretext for discrimin

unless it is shown both that the reason was false, and that discrimination was

reason." Brooks V. Cly. Comm. ofjeffersom2

the real

Ala., 446 F.3d 116:0, 1163 (11th Cir.

2006) (emphasis in original) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

515 (1993)).

77a

Case 11 4-cv-02728-1-4HC Document 2 Esd 01/13/:L7 Pane 48 of 73

Because a plaintiff bears the burden of establishing that a defendant' s reasons

bati ve'

are a pretext for discrimination, a laintiff, "must present significantly pro'

evidence on the issue to avoid sun-imary judgment" Young v. Genera

l Foods Corp.

84.0 F.2d 825, 829 (llthCir. 1988) (quoting 0e/otex Corp. v. Oatrei't, 477

322-25 (1986)). "Conclusory allegations of discrimination, without

U.S. 317,

more, are not

sufficient to raise an inference of pretext or intentional discrimination where [a

defendant] has offered extensive evidence of legitimate, non-discriminatory reasons

for its actions." Young, 840 F.2d at 830.

etext

In this case, Plaintiff argues that he has presented sufficient evidence of -pr

because, he contends, the evidence demonstrates that he was perfoniñng more of the

responsibilities of the. co-manager position than Spyers. Significantly, Plaintiff does

not dispute that Spyers had many more years of seniority at lOT. Plaintif

nevertheless contends that Spyers did not have the equivalent responsibilities that

Plaintiff had when they were co-managers of the maintenance department. P1. Resp

STAT at 9j 36. Plaintiff contends that, between October of 2008 when he was named

co-manager of the maintenance department, and December of 20125 he

"recommended all hiring, firing, promotions, and demotions, scheduling, and duty

assignments." P1. Sh'

at ¶ 10. He further contends that he interviewed and

reconmended the hiring of several employees, interviewed and hired work-study

78a

Case

L4-cv-02728k4HC Dc.cumeot 22 Hued OL'13117 Pace 49 of 73

students who worlced fbr the maintenance d.epartnierit, arid. was responsible fbr the

scheduling of all of the maintenance employees. Ph SI\/iiS' at fj 11-13.

According to Plaintiff, Smith asked him to create job descriptions, and daily,

weekly, and monthly work schedules for all fLdl-time maintenance employees and

work-study students, and Smith referred to this schedule as the "Maintenance

Manual," which was updated in 2012. Fl. S•Iv at ¶J 15-16, 18, 56, 57, 74. Plaintiff

also contends that Spyers did not have any college credits, higher education

background, or the "educational qualifications (computer knowledge, writing, typing,

or other managerial skills) needed to keep up with a growing maintenance

department." P1. SMF at ¶J 20-22. Although Plaintiff and Spyers were comanagers

of the maintenance departineth, Plaintiff contends that he was the person who directed

the duties and scheduling of all maintenance employees, including work—study

students and Sp)7ers. P1. S1E at ¶ 28.

Upon a review of the evidence in the record, the Court finds that Plaintiff has

failed to present any evidence that the Defendants' proffered reason for paying Spyers

more than it paid him was a pretext for race discrimination. First, the Plaintiff does

not dispute that Spyers had tvel\Te more years of experience in the manager position

at the time the Plaintiff was promoted to the co-manager position with Spyers. It is

undisphted that, at the thine of Spyers5 s death on May 1, 2012, Spyers had been a

79a

Casa :i4-cv-O2728MHC Document 22 111ed 0L1131L7

Page

O of 73

manager for sbcteen years and Plaintiff had been a manager for less than four years.

Def Si at ¶ 37. Second, the law is clear that seniority may be a valid reason for an

employer to pay one employee more than another. See 42 LLS.C. § 2030e-2(1)

("it

shall not be an unlawful employment practice for an employer to apply different

standards of compensation, or different terms, conditions, or privileges of

employment pursuant to a bona tide seniority or merit system.

provided that such

differences are not the result of an intention to discriminate because of race, color,

religion, sex, or national origin")

The core of the Plaintis argument is that it was simply unfair for ICT to pay

Spyers a higher salary when the Plaintiff was performing more of the responsibilities

of the co-manager position. Harsh or unfair treatment by itself is not a violation of

Title VII, and the Court cannot sit in judgment of an employer's decision, absent

evidence that a discriminatory motive was the underlying basis. As the Eleventh

Circuit has explained:

Title VII does not take away an employer's right to interpret its rules as

it chooses, and to make determinations as it sees fit under those rules.

Title VII is not a shield against

Title VIII addresses discrimination..

harsh treatment at the workplace. Nor does the statute require the

employer to have good cause for its decisions. The employer may fire an

employee for a good reason, a bad reason, a reason based on erroneous

facts, or for no reason at all, as long as its action is not for a

discriminatory reason. While an employer's judgment or course of

action may seem poor or erroneous to outsiders, the relevant question IS

80a

Casa 1:14-cj-02728kHC

Documset

02 F{cd 01/13/17 Pape 51 of 7.3

simply WI et er the given reason was a pretext fbr illegal discrimination,

The employer's stated legitimate reason, does not have to be a reason

that the judge or jurors would act on or approve,

1\T17

v. T11LCYRadia/Ro:/wl/ Comm., 738 R2d 1181, 1187(11th Cit. 1984) (internal

quotes and citations omitted, emphasis added); see also Rojas v. State ofF/or/ha, 285

F. 3d 1339, 1344(11th Cir, 2002) (Title VIII does not permit courts to sit in judgment

of "whether a business decision is wise or nice or accurate"); combs v PlantatIon

Patterns, 106 F.3d 1519, 1543 (11th Cit. 1997) ("[federal courts do not sit to

second-guess the business judgment of employers"); Shealy v. CIty ofAlbany, 89 F.3d

O(/ OflC

C (

PLP U,() 11 (LI

(J-?,

officer

1C,CLC\ (,-,,-.

IL. !YYLPJ

(JuLu

LLOC

LLU

'-,

J1L

-'c,

ul SI4/L j.5OflCiI

coecting what the judge perceives to be poor personnel decisions");

Etroa'v. Sears, Roebuckh. Co., 939 F.201 1466, 1470 (11th Cit. 1991) (the court does

"not sit as a super-personnel department that reexamines an entity's business

decisions

no matter how mistaken").

Therefore, the issue is not whether ICT treated Plaintiff fairly when it paid

Spyers a higher salary than the Plaintiff, even if, as the Plaintiff contends, it was

Plaintiff who performed most of the responsibilities of the co-manager position. The

issue is whether ICT's reason for paying Spyers a higher salary was, in fact, the actual

reason. Plaintiff cites to no evidence in the record that would indicate that ICT's

Casa 1:14-cv-D2728-MFC Document 2 H[ed 01113/17 page 52 of 73

ting that

reason was not genuine, nor does he cite to any other record evidence sugges

his race played any role in the salary disparity.

nt evidence that

Thus the Court finds that Plaintiff has failed to present sufficie

pretext to

ICT's proffered reason for paying S'pyers a higher salary was merely a

disguise race discrimination. Accordingly, the undersigned ECC.fV

ENDS that

Defendants Motion for Summary Judgment [74] be GRAJSTTKD on PlaintiC

i s claim

of race discrimination under Title VII against ICT.

Retaliation

In the Complaint, Plaintiff also claims that ICT urdawftilly retaliated agains

him, in violation of Title VII. In particular, he alleges that he was subjec

"retaliatory demotion." Comp. [2] at 1, 18. He also alleges a "wrongful

which he may be including as part of his claim of retaliation. Id. at 25.

ted to a

discharge,"

ConstTuing the

ng a claim

Complaint liberally, the Court interprets the Plaintiffs Complaint as asserti

of retaliation under Title VII based on his demotion and discharge that

occurred in

December of 2012.

ted

Title VII acts to shield employees from retaliation for certain protec

practices. Specifically, the statute provides, in relevant part:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees or applicants for

any

employment. because [the employee or applicant] has opposed

Case i:14-cv-02728-Ff C Docunien: 02

ed 01/13117 F'eoe 53 ci 73

practice macic an dawfiul practice Dy 1215 Subchapter, or because Ire has

made a charge, testified, assisted, or participated in any manner in an

mvestigation, proceeding. or hearing under this subchapter.

42 U.S.C. § 2000e-3(a).

Proof of retaliation is governed by the framework of strifi g eVicientLary

burdens established inMcDonr'iellDougiors Cop. v. Green, 411 U.S. 792 (1973), and

Texas Dep't of Coinmunily i5cairs v. Burdine, 450 U.S. 248 (1981). Donnel/on v.

FrueharfCoip., 794 F.2d 598, 600 (11th Cir. 1986); see also Goldsmith V. City of

Atmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993). in order to prevail, a plaintiff must

first establish a prima facie case of retaliation. Goldrmith, 996 17.2d at 1162-63;

Donnellon, 794 F.2d at 65,00-601 ; see also Pi'eaver v. Casa Gallardo, Inc., 922 F.2d

1515, 1524 (11th Cir. 1991); 15'i7nrnons v. Camzden county Rd. of Educ., 757 F.2d

1187, 1189(1lthCir. 1985).

Once aprimafacie case has been established, the employer must come forward

with a legitimate non-discriminatory reason for its action. Goldsmith, 996 F.2d at

1162-63; Donneilon, 794 R2d at 600-601; see also Weaver, 922 F.2d at 1525-1526.

If the employer carries its burden of production to show a legitimate reason for its

action, the plaintiff then bears the burden of proving by a preponderance of the

evidence that the reason offered by the defendant is merely a pretext- for

iscrjLmrsnon. Gal inha, 996 R2d at 1162-63; Dcnzrelton, 794 F.2d at 600-601..

83a

Page E4 of 72.

Case 1:14-cv-02728-4[-C Docuner 92 Ped 01113/1]

(I)

Plaintiff's Prima Foe/c Case

To establish apr/ma foe/c case of illegal retaliation dader

Title VII, a pfaintif±

sion; (2) he

must generally show that: (1) he engaged in a protected activity or expres

received an adverse employment action, and (3) there was

a causal link between the

an v. Wal-Mart Stores,

protected expression and the adverse action. See, e.g., l7i7idem

Pie., 141 R3d 1453, 1454 (11th Cir. 1998); Weaver v.

Cirsa Gallardo, Inc., 922 F.2d

1515, 1524 (11th Cir. 1991); Simmons v. Camden

'owiIy Rd. of Educ., 757 F.2d

1187, 1189 (11th Cir. 1985)..

ion and

In their brief, the Defendants do not dispute that the Plahi.tis demot

discharge in December of2012 would both quali as adverse actions

Defendants argue, hovrever, that Plaintiff cannot establish a

prima foe/c case of

retaliation under Title VII because, they argue, he has failed to show

in a

protected activity, and even if he did so, he has failed to

there was a causal link between his protected activity

under Title VII.

that be engaged

present any evidence that

and the adverse actions. See

Defs. Br. [74-2] at 13-24.

(a)

Protected Activity

show that he

A plaintiff claiming unlawful retaliation under Title 1II can

"participation"

engaged in a protected act under Title VII through evidence of either

or "opposition." An act of participation ordinarily requires the

RIMS

existence of a Title VIII

Casa t:i4-cv-0272BMHC Document 02 Ffed 01/13/17 Pacs 56 01 73

proceeding or investigation. See EEOCv. Tc a/5ye. Serve., 1720., 221 ]F.3d I i7i 1174

(11th Cir. 2000); Clover v. Total 5ys. Serve., liw., 176 R3d 1346, 1353 (11th Cia

1999). in this case, Plaintiff does not argue that he engaged in a protected act under

Title VII by any "participation" in an EEOC proceeding. It appears to be undisputed

that Plaintiff did not file charge of discrimination with the EEOC until December 26,

2012, the day that his employment was terminated.

Estead. Plaintiff argues that he engaged in a protected activity under the

"opposition" clause of Title VII when he allegedly complained about race

discrimination based on the disparity in pay between him and Spyers. According to

Plaintiff, in July of 2012, he filed a "formal grievance of racial discrimination in pay

and other racial animus" with ICT's Human Resources Department against ICT,

Smith, and Blair, based on ICT's antidiscrimination policy. Ph SIAT at ¶ 112.

Making informal complaints to superiors about suspected illegal discrimination

may qualify as protected expression under the opposition clause of Title VII.

Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997); see also Rollins v. Fla.

Dept. Of L014' Enforcement, 865 R2d 397, 400 (11th Cir. 19 89), ("[W]e recognize

that the protection afforded by the statute is not limited to individuals who have filed

formal complaints, but extends as well to those, Eke [the piaintiffj, who informally

voice complaints to their superiors."). Nevertheless, rot every iri±oniial complaint

85a

Cs:se i:14-cv-02728MK0 Documenf 92 F[sc DJi3/:L7 Page 58 of 72

made by an employee automatically qualifies as a protected expression that shields

the employee -om subsequent retaliation.

in order for an employee engaging in opposition activity to be protected under

the antiretaliation provision of Title VII, he must be opposing conduct that is made

an "unlawful employment practice" by Title Vii Title VII defines an "unlawful

employment practice" as, tnter a/la, discrimination against an employee "with respect

to his compensation, terms, conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). in

other words, it is not enough for a plaintiff to thow that he opposed gardenvariety

unfairness or harsh treatment in the workplace; he is only protected from retaliation

if the practice he opposed is specifically prohibited by Title VII.

To recover under a theory of retaliation, a plaintiff need not prove the

underlying claim of discrimination that led to the complaint, so long as he had a

"good faith, reasonable belief' that the conduct or practice he was opposing

constituted unlawful discrimination. Clover v. Total System Sen.'ices, Inc., 176 F3 d

1346, 1351 (11th Cir. 1999); Taylor v. Runyon, 175 F.3d 861, 868 (11th Cir. 1999);

Tpton v. canadian Imperial Rank of Commerce, 872 F.2d 1491, 1494 (11th Cir.

1989). The reasonableness of the plaintiffs belief is measured against the law as it

edsted at the time of the protected activity; thus, the plaintiff is charged with

0 Ji3/i7 Rage 7 Of 73

Case i:i cv-02728-C

M.H Docu m en'i9ed

knowledge of the parameters of what Title VII does and does not prohibit. c/over",

176 RS 0` at 1351;hTarrperni Biockbustei"Entertainrnentcorp., 139 F3 a, 1385, 1388

n.2 (11th Cir. 1998); Little v. United Technologies, 103 F.3d 9561 960 (11th Cir.

J,9

The Defendants argue that the PIainti"s retaliation claim fails because he did

not have a "good faith" or "reasonable belief' that he was opposing an unlawful

employment practice at the time he made a complaint in July of 2012 about his pay.

According to Defendants, the Plaintiff did not engage in a protected activity because

"[njo reasonable person would believe the difference in their annual income was

based on race, especially when considering the differences in seniority and experience

between them. And, his complaint was not based on race." Defs. Br. at 13. The Court

finds that the Defendants' argument that the Plaintiffs complaint "was not based on

race" is contrary to the Plaintiff description of his grievance. Plaintiff contends in

his Statement of Facts that he filed a "formal grievance of racial discrimination in pay

and other racial animus" with ICT's Human Resources Department against ]iCT,

Smith, and Blair, based on 1CT's antidiscrimination policy. FL STAT at ¶ 112. in

response, the Defendants state that they "concede[] that the court can properly

consider the respondent's evidence for purposes of the summary judgment motion."

D;ef. Resp SivB at ¶ 112.

87a

Case i:i4-cv-O2728-R'fl-[C Cocument 92 Fed O1/ 13/t7 Page 58 of 73

Thus, the Defendants have not challenged the Plaintiff's assertion that he filed

a "formal grievance of racial discrimination in pay and other racial animus" with

ICT's Human Resources Departmnt. Moreover, the Defendants have also not

challenged the Plaintiff's allegation that his complaint related to "pay and other racial

animus." For that reason, the Court rejects the Defendants argument that the

Plaintiffs formal grievance cannot be considered a protected activity under Title VII

because it concerned only the pay disparity between Spyers and Plaintiff.

Accordingly, although Plaintiff does not provide the Court with much detail

regarding the substance of the formal grievance, the Court finds that Plaintiff has

presented some evidence to create a genuine issue of fact as to whether his formal

grievance was a protected activity under Title VII.

(b)

Causal Link

For the third and final element of aprimafacie case of retaliation, -a plaintiff

must establish that there is a causal link between the protected activity and the

adverse employment action. A plaintiff is not required to establish "the sort of logical

connection that would justify a prescription that the protected participation in fact

prompted the adverse action. Such a connection would rise to the level of direct

evidence of discrimination, shiftding the burden of Persuasion to the defendant."

Szirriiioris. Cai'ndeii CounyBo ofEduc., 757 F.2d 1157. 1189 (llthCir. 1985); see

Cas& 1

cv-02728-MHC Dcciimsnt 92 [ad 01/13111 Pace 52 ci 73

also air'ston v. Gainesville 1Skn Pth. Co., 9 F.3d 913, 0,20, (11th Cir. 1991);

Weaver v. Casa Gal/crab, Inc., 922 F.2d 1515, 1525 (110-1-1 Cir. 1991).

Rather, to establish a causal connection, a plaintiff was traditionally required

show that the relevant dCC1SiOfl maker was aware of the plaintiff's protected

conduct, and that the protected activity and the adverse action "were not wholly

unrelated." 57sannon v. BellSouth Tetecomnunicat1ons, Inc., 292 P,3d 712, 716(11th

Cir. 2002) (internal citation and quotations omitted). The Supreme Court has ruled,

however, that "Title VII retaliation claims must be proved according to traditional

principles of but-for causation." ½iv. of Texas S. W Med. Ctr. v. Nassar, 133 S. Ct.

2517, 2533 (2013). This standard "requires proof that the unlav1retaliation would

not have occurred in the absence of the alleged wrongl action or actions of the

employer." Id.

In order to establish a causal connection between protected conduct and an

adverse employment action, however, "[a]t a minimum, a plaintiff must generally

establish that the employer was actually aware of the protected expression at the time

L took the adverse employment action." Goldsmith v. City ofAtomore, 996 F.2d 1155,

1163 (11th Cir. 1993); see also H/go/on v. Jackson, 393 F.3d 1211, 1220(11th Cir.

2004) ("A plaintiff satisfies this element if she provides sufficient evidence of

knowledge of the protected expression and that there was a close temporal proximity

O(.

o a.

73.

Case i:i4-cv-02723-kiHC Document 22 Ped 0i/2ii7 Ps:g.e 60 cf

between this awareness and the adverse action"); Gupta v. Florida Ed. of Regents,

212 F.3c1 571, 590 (11th Cir, 2000) ('To establish a.causal connection, a plaintiff

must show that the decision-maker[s [were] aware of the protected conduct, and that

the protected activity and the adverse action were not wholly unrelated.") (emphasis

added). As the Eleventh Circuit has stated, this requirement "rests upon common

sense. A decision maker cannot have been motivated to retaliate by something

unknown to him" Brungart v. BellSouth Telecommunications, Inc., 23 1 F.3d

791,

799 (11th Cir. 2000). The defendant's awareness of the. protected statement, however,

may be established by circumstantial evidence. Goldsmith, 996 F.2d at 1163.

A plaintiff may establish an inference of causation merely by showing that he

suffered the adverse action shortly after he engaged in the protected activity. Higdon,

393 F.3d at 1220; Bass v. Board of County Comm., Orange County, F/a., 256

F.3d

1095, 1119 (11th Cir. 2001); Brungart, 231 F.3d at 798. For a plaintiff to establish

such a link by more temporal relationship, however, the challenged decision must

follow almost immediately aft-er the protected expression to support the logical

inference that the two events were related. See Clark County Sch. Dist. v. Breeden,

532 U.S. 268, 273 (200 1) ("The eases that accept mere temporal proximity between

an employer's knowledge of protected activity and an adverse employment action as

90a

1:14c:v-02728-fYHC DOCUrO&Fx 02 Fo 0i/%!17 Eaga 31 of 73

suthotent evidence of causality to establish aprfnajcte case uniformly hold that the

temporal proximity must be vmy close.") (internal quotes omitted).

The Eleventh Circuit has held that a gap of three months or more between the

protected activity and the challenged personnel action, absent any other evidence

linking the events, is too long to support the inference that the two events were

connected. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (three-month period does not rise to the level of "very close" to support an

inference of a causal link); H/gdon, 393 F3a' at 1221 (three-month period does not

allow a reasonable inference of causation); see cisc Conner v. Schnuck Markets, Inc.,

123 F.3d 1390, 1395 (10th Cir. 1997) (lapse of four months between protected

activity and termination did not support inference of casual connection); Feitmann

v. Sieben, 108 F.3d 9705 977 (8th Cir. 1997) (passage of six months between

plaintiffs complaint and firing insufficient, without more, to establish causation);

Hughes v. Der4'insId, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four-month gap

between filing discrimination complaint and receipt of disciplinary letter did not give

rise to inference of causal relation).

In this case, the Defendants argue that Plaintiff has failed to present any

evidence of a causal link between his alleged Protected activity and the adverse

employment actions. According to Defehaants, the five-month period between the

91a

Case

4-cv-027234M1 C Docuro&nt2 Fisd 01/13/17 Pace 2 c 73

Plaintiff's formal grievance, filed in July of 2012, and his demotion and discharge,

which occurred in December of 2012, is "too remote to establish causatioit" Defs. Br.

at 14. The Defendants argue further that the undisputed evidence in the record

establishes that ICT had legitimate reasons for its decision to demote Plaintiff and

his employment, and Plaintiff has failed to present evidence that those

reasons were a mere pretext to disguise retaliation. The Court agrees.

As discussed above, the Eleventh Circuit has held that temporal proximity may

establish a causal link if the temporal proximity is "very close." See Clark County

Sch. Dist. v. .Breeden, 532 U.S. 268, 273 (2001) ("The eases that accept mere

Iemporal proximity between an employer's knowledge of protected activity and an

adverse employment action as sufficient evidence of causality to establish apr/ma

fade case uniformly hold that the temporal proximity must be very close.") (internal

quotes omitted). The Plaintiff contends that he filed a formal grievance in July of

2012, and he was demoted and discharged in December of2012. Under the law of the

Eleventh Circuit, that five-month period is too long to suggest any causal link by

temporal proximity alone. Plaintiff has not cited to any record evidence that Smith,

Blair, or anyone else at JICT, said anything to him that suggested any intent to retaliate

against him for filing a formal grievance. Plaintiff has also failed to present any other

/17 Page 6.3 ci 73

Casa i:t4-cv-02723-Mt-0 Documert 92 F[ed Oi!L3

eidence that suggests that there was any causal link

hertveen his grievance and. his

demotion and discharge.

Accordingly, for that reason, the Court finds that Plaintiff

establish a prima facie case of retaliation under Title

WE, and ICT is entitled to

summary judgment on that claim. Moreover, even assuming

presented sufficient evidence to establish aprima facie

has failed to

that the Plaintiff iad

case of retaliation, the Court

se it has presented

finds that ICT would still be entitled to summary judgment becau

nate

sufficient evidence

that it had a legitimate reason to demote Plaintiff and termi

his employment that was unrelated to his grievance, and the

Plaintiff has failed to

n was pretextual.

present sufficient evidence to show that ICT's proffered reaso

(2)

Defendant's Legitimate Reason

The Court finds that the Defendants have presented sufficient

create a genuine issue of material fact as to whether

evidence to

ICT had a legitimate reason to

ated to his grievance

demote the Plaintiff and terminate his employment that was unrel

tiffs demotion and

flied in July of 2012. The circumstances surrounding the Plain

termination are set forth in detail in the facts above. In sum,

the Defendants have

presented evidence that Plaintiff was demoted on December

13, 2012, when ICT

removed Plaintiffs managerial duties. Def S1vffi at ¶ 95.

The Defendants contend that

s because of the series of incidents

ICT removed Plaintiffs managerial dutie

93a

C ae 1:14-cv-02728-R'iFC Documant 02 Ffec 01/13/17 Pace 64 of 73

concerning the maintenance department, such as theft and damage to ICT properLy,

and Plaintiffs inability to accept constructive criticism and issues occurring under

Plaintiffs sulervision. Def. SkfF at ¶ 96.

It is undisputed that, after Plaintiffs demotion on December 1.3, 20 12, the

Plaintifr Was supposed to return to work on December 14, 20, 1

1 2 at 11 p.m., but

Plaintiff failed to report to his new work asignment on December 14, 18, 20 and 21,

2012, Def, S-11AY at ¶9j98-99. On December 14, 2012, Plaintiff called Brandon Smoot

about his absence from work, but Smoot was a fellow maintenance worker, not

Plaintiffs supervisor or manager. Def. SIv' at ¶9f 100-01; P1. S1\ at ¶ 107. It is

undisputed that Plaintiff did not call Smith or Blair about not working on December

14,2012. Del' SM[F at ¶ 102. Plaintiff missed four out ofsix days after being demoted

on December 13, 2012. Def. SILT at ¶ 103. Plaintiff also did not notify his supervisor

Blair about his absences on December 14, 18, 20 and 21, 2012. Def. SI

at ¶ 104.

On December 26, 2012, Plaintiff was terminated from his position for missing work

and failing to properly noti 1 Blair, his supervisor, about his absences. Def. S- IvM at

¶ 110; P1. SI\1at91 100.

Thus, the Court finds that Defendants have presented evidence that iCT had

a legitimate reason to demote the Plaintiff and terminate his employment that was

unrelated to his grievance filed in July of 2.0 12. Under the McDore7l Dcsg7as

94a.

Case 14 -cv02728 - MHC Do cu ment 2 Filed 01113/JJ Pane 65 of 72

frameworlc, the burden shifts to Plaintiff to present sufficient evidence that the

purported reason was a pretext for unlawful retaliation.

(3) Pretext

As discussed above, a plaintiff may cany the burden of showing thet the

employer's proffered reasons are retexmal by showing that they have no basis in

fact, that they were not the true factors motivating the decision, or that the stated

reasons were msufficient to motivate the decision, A plaintiff can either directly

persuade the court that a discriminatory or retaliatory reason more likely motivated

the employer or show indirectly that the employer's ultimate justification is not

believable. See Texas Del p 't of Conununi Affairs v. Bwdine, 450 U.S. 248, 256

(1981); Vieaver V. Casa Gallardo, Inc., 922 F.2d 1515, 1522 (11th Cir. 1991).

if the employer offers more than one legitimate, nondiscrirninatoiy reason, the

plaintiff must rebut each reason. See Chapman v. Al Transp., 229 F.3d 1012, 1037

(11th Cir.2000) (en banc). Moreover, in order to establish that the employer's reasons

were pretextual, a plaintiff must show both that the reasons were false, and that

retaliation was the real reason for the employment decision. See St. Jlay 's Honor

Ctr. v. Hicic.c, 113 S.Ct. 2742, 2752 (1993). The Eleventh Circuit has held that, when

a plaintiff has brought a claim of retaliation under Title VE, the plahtiff must show

that the legitimate reasons offered by the employer fOr taldiig the adverse action were

Case 1: t4-cv-02728-MHO DocLment 92 Fed Q1/t2/i7 Paoe 36 of 73

pretexts for unlavTa1 retaLiation, and that the olairitiff's protected acti\iity Was die

"hutfor" cause of the adverse action. Mealing v. Georgia Dep tt of Juvenile Justice,

564 F. App'-511 421,427(11th Cir, 20.14); see also Univ. of Texas P. FR Med. Cr. V.

Nassar, 133 S. Ct. 2517, 2534 (2013); Pennington v. Ciz of Huntsville, 261 F.-3d

1262, 1266 (11th Cir, 200i

In this case, Plaintiff argues that the evidence demonstrates that the

Defendants' reasons are pretextual because, he contends, he has presented evidence

that Smith and Blair were wrong about several of the incidents that occurred in the

maintenance department during his tenure as manager, and unfairly blamed the

Plaintiff for things that were not his fault, which led to the Plaintiff's demotion. The

Plaintiff focuses on the details of the incidents involving the student workers Anthony

Bryant and Kenneth Hamm, and the incident involving his nephew, and contends that

Smith and Blair failed to review all of the evidence fairly. According to Plaintiff, if

they had properly reviewed the evidence and considered Plaintiff's side of the story,

they would have concluded that Plaintiff was not at fault.

But the Defendants have shown that, based on the information provided to

them ICY reasonably believed that Plaintiff permitted a student worker to clean the

Accounting Department office despite !CT's prior instructions to Plaintiff to the

contrary. Def. SI\

at ¶ 2 0. Plaintiff also does riot dispute that he entrusted a

96a

Case i:14-cv-02728-MHC Dooum.eot 92 Fer O1!13/L7 Page 67 of 73

company truck to his nephew for body work to the track, or that the police arrested

Plaintiff's nephew for dnvmg the company truck while intoxicated. DeC SMF at

¶f 84-85. He does not dispute that the company truck was mpounde,

and ICT

iately $110 in costs to retrieve the impounded truck, ID-elf. $1th at

incurred approxm

Cfl 86-87. Finally, Defendants have shown that, based on the information provided to

it, ICT believed that Plaintiff did not take proper measures to secure and control the

master key to the offices and classrooms, DeC SI\7 at TIJ, 93-94.

It is not the role of a jury to sit through mini-trials on whether Anthony Bryant

or Ke eth namm ac

uus Lu vc•

-1

ausu 0!L' Lea1u!, tJL wlletner

it was fair for JOT to hold the Plaintiff responsible for his nephew's misconduct when

he was in possession of the company truck. Indeed, Smith and Blair could have been

wrong when they concluded that Plaintiff had failed to follow instructions and had

been negligent in the performance of his duties as the manager of the maintenance

epartment, but that is not evidence of pretext. See Pennington v. City of Huntsville,

261 F.3d 1262, 1267 (11th Cir. 2001) ("a plaintiff employee may not establish that

an employer's proffered reason is pretextual merely by questioning the wisdom of the

employer's reason, so long as the reason is one that might motivate a reasonable

employer") (internal quotes omitted); Shenly v. Ctty ofA/bany, 89 F.3d 804, 806 n.6

(11th Cif -. 1996) (court "does not sit as a sort of super personnel officer'.

Case 1: JA-cv-02728-MHC Document

I sd 07 Fans 68 of 73

correcting

what tile j ucige .ercerves to btpoor Prs

oJi

decisions"); gee also Rclas

v. State ofFlorida, 285 F3d 1339, 134

4 (11th Cir. 2002) (Title VII does not

courts to sit -Ill judgmenit of "whether a

permit

business decision is wise or nice or accura

te");

Combs v. Plairtation Patterns, 106 F.3

d 1519, 1543 (11th Cir. 1997) ("[fjede

ral

courts do not sit to second-guess the bus

iness judgment of employers'5); F/r

Sears, Roebuck & Co., 939 F.—Id 1466,

od V.

1470(11th Cir. 1991) (the court does "no

t sit

as a super-personnel department that reex

amines an entity's business decisions

no matter how mistaken").

In the end Plaintiffs argument is nothing mo

re than a dispute with the wisdom

or fairness of ICT's decision to demote him

and terminate his employment and the

way it went about doing it. As cited abo

ve, the Eleventh Circuit has repeatedly

rejected this as evidence of pretext. Plainti

ff has not presented any evidence that

either Smith or Blair, or anyone else at

ICY, harbored any intent to retaliate

him for filing a evance. hi sum, upo

against

n a review of the evidence in the record,

Court concludes that Plaintiff has not

decision to demote him and terminate his

retaliate against him for filing a grie

the

presented sufficient evidence that !CT

employment was the result of any inte

nt to

vance

against Smith and Blair.

Thus, even assuming that Plaintiff had

retaliation, Defendants have presented evid

presented a prima fade case of

ence that ICY hdd legitLirate reasons to

980"

Case 1:24-cv-027284MKC Docu ant

92 Eed 01113/17

terminate his employment, and

oeructe Plaintiff ai

merely pretentual to

evidence that the reasons were

Accordingly, the undersigned

Par 89 of 73

Plaintiff has not presented

disguise unlawful retaliation.

ts' Motion for

CQfJT;S that the Defendan

AM1I1KD on

Summary Judgment [74] be GR

liat

Plaintiffs claim of unlawful reta

ion

under Title VU against Id.

Plains Chmns under 42 U.S. C. If 198

In the Cotuplaint, the Plaintiff' has

for

under 42 U.S.C. § 1981 ( 1981)

endant

brought claims against alFof the Def

race discthination and retaliation. That

statute

provides as follows:

(a) S

erneral of equal rights

United States shall have the

All persons within the jurisdiction of the

ry to make and enforce contracts,

same right in every State and Territo

and to the full and equal benefit of all

to sue, be parties, give evidence,

urity of persons and property as

laws and proceedings for the sec

subject to like punishment, pains,

enjoyed by white citizens, and shall be

er..

ctions of every kind, and to no oth

penalties, taxes, licenses, and exa

defined

(h) "Make and enforce contracts"

"make and enforce contracts"

For purposes of this section, the term

dification, and termination of

includes the making, performance, mo

efits, privileges, terms, and

contracts, and the enjoyment of all ben

conditions of the contractual relationship

c) Protection against impairment

protected against impairment by

The rights protected by this section are

airment under color of State

nongovernrpental discrimination and imp

law.

99a

Case 1:4cv0272E4M1--{C Document 92 FUed 0Ii3l7

Page 70 oi 73

42 U.S.C. § 1981.

n in both the

It is well-settled law that § 1981 prohibits race discriminatio

Techs., Carrier

public and private employment context. See Little v. United

stablished that

Transicold Div., 103 F.3d 956, 961 (11th Cir, 1997) ("It is well-e

ination in the making and enforcement of

§ 1981 is concerned with racial discrim

contracts."); Brown v. American Honda Motor Co., 939 F.2d

10, 9,

946, 99 (11th Cir.

ination from

("The aim of the statute is to remove the impediment of discrim

y in the marketplace."); see

a minority citizen's ability to participate -Fully and equall

ough § 1981

also St. Francis College v. Al..KhazraJi, 481 U.S. 604, 609 (1987) ("Alth

does not itself use the word 'race,' the Court has construed the

section to forbid all

contracts."). The

'racial' discrimination in the making of private as well as public

-based retaliation

Supreme Courthas also held that § 1981 encompasses claims ofrace

hries, 553 U.S.

as well as claims of race discrimination. cBOcS West, Inc. v. Hump

442 (2008); see also Bryant v. Jones, 575 F. 3d 1281, 1301 (11th

Cir. 2009).

Moreover, in cases in which a plaintiff has asserted a claim under §

1981 as a

nts required- to

remedy for race discrimination in the employment context, the eleme

establish a claim under § 1981 generally mirror those required for

a Title VII claim.

See Standard v.A.B.E.L. Sers., iflO., 161 F.3d 1318, 1330 (11thCir. 1998) (the

same

and a § 1981 race

analyis applies t-o a Title VEt race discrimination claim

10Oa

Casa 1

ad 01/13117 Pao;•e 71 of 73:

discrimination claim because both statutes ¶isve the same requirements c fpsoo S and

use the same analytical framework"); see n/so Hoi''nrd v. B'.?. O/ Co., 32 R3c1 520,

524 n.2 (11th Cir. .1994) (c/ting Patterson v. McCien

o: C'eo/it Ui foi', 491 U.

U.S , 64

(1989)); Bro1..'n v. American HonoTa Motor Co., 1,1 39 R2d 946, 949 (11th Cir, 1991).

As discussed above, although the Court limited the PIaintitis Title VII claims

to actions taken by ICT on or after June 19, 2012, there was no such limitation placed

on the Plaintiffis claims under § 1981. See Order [45j. Nevertheless, the Cnnst finds

that Plaintiff claims under § 1981 fail because he has failed to cite to any record

evidence that the Defendants discriminated against him on the basis of his race, or

unlawftdly retaliated against him, by taking any adverse actions against him before

June 19, 2012.M

oreover, forthe same reasons discussed above in connection with

Plaintiff s claims under Title VII, the Court finds that the Plaintiff has not presented

sufficient evidence to demonstrate that the Defendants took any actions against him

after June 19, 2012, that were acts of race discrimination or unla\11 retaliation for

opposing race-based discrimination.

Accordingly, the undersigned

COh'fMPITiS that the Defendants' Motion

or Summary Judgment [74] be GJiTED: on Plaintiffs claims of race

discrimination and retaliation under 42 U.S.C. § 1981.

I 01 a

01 73

Cass L:l4-cv-02728-k'-C Docureit 92 Fed 011:L3117 Fags 72

P!aint.iTs Title T'7 c/atm

Finally, Plaintiff has asserted a claim under Title VI against Defendant ICT.5

Title VI of the Civil Rights Act of 1964 provides:

No person in the United States shall, on the ground of race, color, or

national origin, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any program or activi y

receiving Federal financial assistance.

42 U.S.C. § 2000d.

Title Vi thus prohibits any "program or activiT receiving Federal financi

assistance" from discriminating against any person in the United States "on

the

bes only

ground of race, color, or national origin." 42 U.S.C. § 2000d. Title Vi proscri

classifications

based on race, color, or national origin that would violate "the Equal

Protection Clause of the Fifrh Anendment." Alexander v. Sandoval, 523

U.S. 275,

280 (2001) (quoting Regents of Univ. of cal. v. Bakke, 537 U.S. 265, 287 (1978)

under

Generally, claims of race discrimination under Title VI should also be analyzed

the same standards for claims of discrimination brought under § 1981 and

Title VII.

See Pryor v. Mat CollegiateAthietic Ass 'n.,

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.