Petition for Writ of Certiorari — Hill v. Emory University

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09-638 NOV 23 2008

No. 09-

IN THE —

Supreme Court of the United States

LEROY HILL, JR.,

Petitioner,

EMORY UNIVERSITY, EMORY HEALTHCARE, INC.

d/b/a, EMORY WINSHIP CANCER INSTITUTE,

DEDRA F. CANTRELL a/k/a DEDRA FRUTCHEY,

and SANDRA MURDOCK,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED States Court ofr APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Bossy C. ANIEKWU

Counsel of Record

Boppy C. ANIEKWU & ASSOCIATES

127 Peachtree Street, N.E.

Suite 410 - The Candler Building

Atlanta, GA 30803

(404) 885-1717

Counsel for Petitioner

226547 cel

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

(1).

(2).

QUESTIONS PRESENTED

Two questions are presented:

Under what circumstances, if any, in the context of a

one-man reduction in force (“mini-RIF”) may a

Plaintiff establish the existence of invidious

discrimination in employment by adducing evidence

that the terminated employee’s duties were

absorbed by other employees, rather than eliminated

from the company altogether, amid circumstances

that suggest unlawful discrimination?

Because this Court has held that “In determining

whether actionable hostile work environment exists,

we look to ‘all the circumstances,’ including the

‘frequency of the discriminatory conduct; its severity;

whether it was physically threatening or humiliating,

or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work

performance.’ National Railroad Passenger Corp.

v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074,

158 L. Ed. 2d 106, 124 (2002)”, what is the requisite

quantum of proof a plaintiff must adduce in order to

sustain a claim of actionable hostile work

environment?

TABLE OF CONTENTS

QUESTIONS PRESENTED ................

TABLE OF CONTE 6 ccccceesccscccccces

TABLE OF APPEENDIICIS oc ccsccccssccceee.

TABLE OF CITEDAUTHORITIES .........

OPINIONS Bape ee ieee eka cee seccces

STATEMENT OF JURISDICTION ..........

STATUTORY PROVISIONS INVOLVED .....

STATEMENT OF THE CASE ...............

1. FACTUAL BACKGROUND ............

Murdock Hires Hubbard into WCI

Organization, Moves her into Building B,

Transfers all of Hubbards Projects to Hill

and Initiates a Plan to Elevate her to

Directorship Position and Replace Hill

with BEUR Go eee eee ct cccce.

Page

iil

Contents

Page

REASONS FORGRANTINGTHE PETITION ... 2

I. There Is Important Conflict Among The

Circuit Courts Regarding The Relevant

Inquiry To Prove Invidious

Discrimination In Employment Where

The Terminated Mini-Rif Employee’s

Duties Were Absorbed By Other Non-

Protected Employees Rather Than

Eliminated Altogether By The

CE 5-0-5 c40subeud sueeuentesiaes 22

II. Review Is Warranted To Resolve A

Conflict Among The Circuit Courts

Concerning What Employer Actions

Constitute Adverse Employment Action,

And The Quantum Of Proof A Plaintiff

Must Adduce To Sustain An Actionable

Hostile Work Environment Claim. ...... 30

CR CRANY bed cecveecediavceaveesussseee 35

TABLE OF APPENDICES

Appendix A — Per Curiam Opinion Of The

United States Court Of Appeals For The

Eleventh Circuit Filed August 25, 2009 .....

Appendix B — Order Of The United States

District Court For The Northern District Of

Georgia, Atlanta Division Filed December 17,

| ERIS OF aero ert eer Te eee oper eee

Appendix C — Final Report And

Recommendation And Order Of The United

States District Court For The Northern

District Of Georgia Atlanta Division Filed

PUQUGUIIOE TG, BG vce vic vcccvccccucccunce

TABLE OF CITEDAUTHORITIES

Page

CASES:

Berry v. Stevinson Chevrolet,

74 F.3d 980 (10 Cir, 19906) ..... cc ccccccccce 33

Branson v. Saccomanno,

853 F.2d 768 (10 Cir. 1988) ............000. 25

Coburn v. Pan American World Airways, Inc.,

711 F.2d 339 (D.C. Cir.), cert. denied,

464 U.S. 994, 104 S. Ct. 488, 78 L. Ed. 2d 683

aa oak ecu avaa ec uepenisewseaneens 25, 28

Corneveauz v. CUNA Mutual Ins. Group,

76 F.3d 1498 (10% Cir. 1996) ...........20e0. 33

Duffy v. Wheeling Pittsburgh Steel Corp.,

738 F.2d 1393 (3™ Cir. 1984), cert. denied,

469 U.S. 1087, 105 S. Ct. 592, 83 L. Ed. 2d 702

Toes ok ek ie snae nec eaes eres aauene 26

EEOC v. Western Electric Co.,

ver pp Bl OeES oot 4h. | Sere 26

Foster v. MCI Telecommunications Corp.,

Te Pee ING CIS Cie TRB) oc ccc cccccccecs 28

Gadsby v. Norwalk Furniture Corp.,

rebe G) vat 3. | re 27

Cited Authorities

Page

Harris v. Forklift Sys., Inc.,

510 U.S. 17, 114 S. Ct. 367,

SO as Es OE EE EEUEED Sc cccccccecvceccces 22

Jameson v. Arrow Co.,

76 F.8d 1628 (11 Cir, 1996) ......cccccccecs 23

Knox v. Indiana,

98 F.8d 1827 (7" Cir, 1996) .....ccccccccccer 33

Massarsky v. General Motors,

706 F.2d 111 (8" Cir.), cert. denied,

464 U.S. 987, 104 S. Ct. 348, 78 L. Ed. 2d 314

rari see eatenev et ina’ 000k) 25, 26

Matthews v. Alls Chalmers,

769 F.2d 1215 (7 Cir. 1985) ........ cece eeee 26

Michas v. Health Cost Controls of Ill., Inc.,

208 F.8d 687 (7™ Cir, 2000) 2... cc ccccccccvens 27

Montana v. First Federal Sav. and

Loan Ass'n of Rochester,

869 F.2d 100 (2™ Cir. 1989) ................. 28

National Railroad Passenger Corp. v. Morgan,

536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d

a tec ae kee esas adh eee s i, 22, 30, 31

Oxman v. WLS TV,

846 F.2d 448 (7% Cir. 1988) ................ 25, 27

vil

Cited Authorities

Page

Padilla v. N. Broward Hosp. Dist.,

270 Fed. Appx. 966 (11" Cir. 2008) ......... 23, 25

Paluck v. Gooding Rubber Company,

221 F.8d 1003 (7 Cir, 2000) ........2cccceee 27

Passer v. American Chemical Soc.,

986 F.2d 322 (D.C. Cir. 1991) .........eceees 33

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 183, 120 S. Ct. 2097,

LOT Ee: BG, Be BOW GUUOO) cect cccrecceseccces 22-23

Rutherford v. American Bank of Commerce,

565 F.2d 1162 (10 Cir. 1977) ......ccceccees 33

Shockley v. Healthsouth Central Georgia

Rehabilittion Hospital,

2008 U.S. App. LEXIS 20011 *12

tht 2 Sy A 31

Smith v. Smith Lanier & Co.,

352 F.3d 1342 (11 Cir. 2003) .............. 23, 24

Texas Department of Com’ Affairs v. Burdine,

450 U.S. 248, 101 S. Ct. 1089,

Oe ic ee I oo bos cok cece wedences 24

Thornbrough v. Columbus & Greenville

R.R. Co.,

760 F.2d 633 (5" Cir. 1985) .............208- 25

vill

Cited Authorities

Page

United States Postal Serv. Bd. of Governors v.

Aikens,

453 U.S. 902, 69 L. Ed. 2d 9839,

Se EE So cos csserccccccsever 28-29

Wideman v. Wal Mart Stores, Jnc.,

141 F.3d 1453 (11 Cir. 1998) ............... 33

Williams v. General Motors Corp.,

656 F.2d 120 (5 Cir. 1981),

cert. denied, 455 U.S. 943, 102 S. Ct. 1439,

Fe ee ED bbc ciccncecsecceess 23-24

Windham v. Time Warner, Inc.,

yy Boe By, Th yal ©) ) 25

Wyatt v. City of Boston,

Be ee Be Ce Ge BOE) ocd cvcdcrcaccsceess 32

Yates v. Rexton, Inc.,

267 F.3d 793 (8 Cir. 2001) ..........eseeeee 28

Cited Authorities

Page

STATUTES:

28 U.S.C. 5 Tee ea aie cccceccccccs ]

28 U.S.C. § 2101(c) ....... PDTC hg es ees. 1

42 U.S.C. $§ 1981/198la, et seq. ......ceeeeeees 2

43 U.S.C. § Recs s cece cccccce. 2,31

Civil Rights Act of 1964, as amended .......... 2

U.S. SUPREME COURT RULES:

Rules 10(1)(a) & (c) of the

Rules for the Supreme Court .............. l

Petitioner, Leroy Hill, Jr. (“Hill”) respectfully

petitions for a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for

the Eleventh Circuit in this case on August 25, 2009.

OPINIONS BELOW

The Order of the United States District Court for

the Northern District of Georgia, in which it granted

summary judgment against Petitioner Hill, is

unreported, and is reproduced in the Appendix to this

Petition (“App.”) at 15a to 47a. The Per Curiam opinion

of the Eleventh circuit whose review is sought is

reproduced in the Appendix at la to 14a.

STATEMENT OF JURISDICTION

Jurisdiction is proper in this Court. The Per Curiam

opinion of the eleventh circuit court of appeals was

entered on August 25, 2009. This Court has jurisdiction

under 28 U.S.C. § 1254(1). The present Petition for Writ

of Certiorari is filed within Ninety (90) days of the

Opinion of the court of appeals affirming the Order of

the district court below, and is timely pursuant to

28 U.S.C. § 2101(c) and Rules 10(1)(a) & (c) of the Rules

for the Supreme Court.

STATUTORY PROVISIONS INVOLVED

Section 703(a)(1) of the 1964 Civil Rights Act,

42 U.S.C. § 2000e-2(a)(1), provides in pertinent part:

It shall be an unlawful employment practice

for an employer . .. to discriminate against

any individual with respect to his . . . terms,

conditions, or privileges of employment,

because of such individual’s race, color,

religion, sex, or national origin.

Section 1981 of the 42 United States Code provides

in pertinent part:

(a) All persons within the jurisdiction of the

United States shall have the same right in every

State and territory to make and enforce

contracts .. . as is enjoyed by white citizens...

(b) For the purposes of this section, the term

“make and enforce contracts” includes the

making, performance, modification, and

termination of contracts, and the enjoyment of

all benefits, privileges, terms and conditions of

the contractual relationship.

STATEMENT OF THE CASE

1. FACTUAL BACKGROUND

Leroy Hill (“Hill”), is a Black citizen of the United

States. He was initially hired by Emory Healthcare, Inc.

(“EHC”) on February 9, 1998 as the Director of Data

Services and Decisions Support (“Data Services”), and

directly reported to the Executive Director of Applications

Services of the EHC Information Services (“EHC-IS”),

Dedra Frutchey Cantrell (“Cantrell”), white female, who

herself reported to the Chief Information Officer (“CIO”),

Ron Palmich (“Palmich”), white male. The Director of Data

Services position was a full-time, regular position. Prior

to being recruited by EHC-IS, Hill possessed extensive

experience base in Information Technology. All of the other

Directors at this time were Caucasians, and included: Jack

Morford; Katherine Casey; Rick Aaron; Tim McCrary;

John Mason; Terry Willey; Malcolm Barnes; Joe Medley

(Manager of Systems Support). The Clinical Applications

(directed by Willey and Beck), Data Services (Hill),

Business Applications (Barnes), and Systems Support

(Medley) were all a part of the Application Services, and

the directors all reported directly to Cantrell. Hill directed

the development and deployment of Data warehousing and

technology solutions to support patient care, teaching and

research, and led a staff of about fifteen (15).' Hill

1. Data warehousing is an architecture, and a central

repository which goal is to take typical day to day transactional

information, put it into a common database, common repository,

and allow the users to ask and receive answers of that data

across the population of data, with the biggest difference from

transactional applications being that in transactional)

applications, one looks at one person at a time while in Data

warehousing one looks at populations at a time.

performed excellently in his position in 1998 and 1999,

and often took over other directors’ assigned tasks when

they were unable to execute.’ Hill also received excellent

performance reviews in 2000 and 2001, and received

high praises from his departmental “peers”.® Hill’s Data

2. Hill successfully implemented a TSI application

implementation after another Director failed to competently install

same, within budget and on schedule; received Best ROI award in

1999 for identification of $1.5 million of unpaid reimbursements.,

among other accomplishments, and transformed iow-use Data

Warehouse to mission critical application within 2 years.

3. On August 10, 1998, Mr. Hill received his first 6 month

performance evaluation, and received high praises from his

departmental “peers” who contributed to the evaluation. The first

peer specifically mentioned that “{L]eroy listens well, is a calming

force, is proactive, and he wants to do the right thing.” The second

peer statement provided very favorable comment on Hill’s

technical knowledge and ability to share/apply his experiences.

The third peer comment again emphasized that “Leroy has been

good to work with - he actually listens to what you are saying and

tries to accommodate all sides of the issue. . . .” On April 5, 1999,

Hill received his first annual performance review as Data service

Director, and was rated very highly (4 out of 5) in each and every

review category by Cantrell., who stated in the comments section

of the performance evaluation as follows: “Leroy brought a wealth

of knowledge to the data services work group. He takes the time

to teach and mentor his staff. He works well w/Directors and our

clients. He maintains a positive attitude & is always professional

in his approach. .. .” With respect to communications evaluation

category, Cantrell noted in her own handwriting about Hill “[cJlear

in communications, listens, does a great job @ keeping me

informed.” On July 20, 2000, Hill received another performance

review for the period 1/01/00 - 7/31/2000, and was rated as “Meets

Expectations” in all evaluation categories. On July 13, 2001, Hill

received his performance review as Manager of Data Applications

(Cont’d)

Services workgroup was consistently the least staffed,

with typically 25 projects and only 13-15 employees to

perform the work. Invariably, the Data Service data

administration team inherited by Hill was poorly-trained

and skilled, with only 2 employees with sufficient skills

to run technical projects with minimal supervision in

terms of project design and analysis. Nina Gangadharan

was the least experienced, and skilled. Despite his

accomplishments, within a few months after his hire,

Cantrell and Palmich, subjected Plaintiff to relentless

disparate and dissimilar standards in the terms and

conditions of his employment relative to other similarly-

situated white managers.

On January 25, 2000, Douglas, informed Hill that

he desired to transfer out of the EHC-IS to another

department within EHC.‘ As his reason for requesting

(Cont’d)

for the period 7/00 - 7/01, and was again rated as “Meets

Expectations” in all evaluation categories, and there was no

adverse rating regarding Hill’s performance and skills with

respect to Customer Service, Communication, Leadership,

Employee relations, Teamwork, Initiative, Job Knowledge,

Attendance and Work Routine, Project Management, and/or

Listening skills.

4. Douglas, was a white male Data Administrator under Hill’s

supervision, who was an average performer as an employee, and

although, he met the performance requirements of his position,

he was neither a top performer nor a critical or indispensable

member of the Data Service team. Douglas constantly challenged

Hill’s project management style, resented Hill’s criticisms and

supervision, and resisted cross training other Data Services less

skilled staff in accordance with Palmich’s espoused “cross-

pollination” or cross-training philosophy.

a transfer, Douglas stated that; he desired to be closer

to healthcare operations, closer user contact; wanted

to be involved in full application development; and lack

of new technical challenges in his current position.

Douglas also complained that there was not enough

people with sufficient skills to deliver on the excessive

commitments by Data services, and the fact that he was

required to perform both development and production

support. Douglas and Cantrell also confirmed the

completeness of Hill’s summary. After meeting with

Douglas on 1/25/2000 about the foregoing, Hill informed

Cantrell and Palmich on the same day. Palmich and

Cantrell were very upset by the news that Douglas

desired to transfer out. On 1/26/2000, Palmich and

Cantrell, in an unusual move that had never happened

in the department during Hill’s tenure, invited Douglas

and Hill to a meeting to discuss the reasons for Douglas’

transfer request, and during the meeting, Douglas

repeated his above-stated concerns including the under-

staffing issues to Cantrell and Palmich. Cantrell and

Palmich instructed Hill to include 2 FTE allocations

requests in his fiscal year 2001 budget request to help

ease the staff problem, however, after Hill requested

the 2 FTE’s in the budget request as instructed, Palmich

and Cantrell turned down the request.

Cantrell and Palmich had the administrative

authority to approve and/or strike requested additional

2 FTE’s within or outside the budget, and did not

hesitate to exercise that authority regularly. One week

later, Cantrell met with Douglas and demanded to know

his “true reasons” for resigning, and Douglas repeated

his previous reasons and also added that the problem

was primarily “over commitment” on projects by Data

services. Other than the reasons identified above, and

as summarized in Hill’s summary, Douglas did not

provide any other reasons to Cantrell as the cause of

his request for a transfer. Between February 1 and

March 30, 2000, Cantrell embarked on a series of

clandestine interviews, meetings, “pulse check”

meetings with Data services employees in Hill’s absence,

and solicited complaints, criticisms, unflattering

statements about Hill’s project management skills,

perceived dysfunction and chaos in Data services,

secretly convened and/or attended meetings of Data

services staff in Hill’s absence seeking to elicit the

foregoing types of information, but was unsuccessful.

Also, between March 7 and 22, 2000, Cantrell issued

series of threatening memos in which she accused Hill

of leadership performance deficiencies, threatened him

with termination, and ordered his entire staff

investigated and subjected to psychological interviews

and counseling by the Wellness Center (“Wellness

Center” or “Wellhouse”).

Between March 29, 2000 and April 7, 2000, Hill and

his entire Data Services staff were interrogated by the

Emory Well House staff, and Hill’s personal habits,

management style, communication, interaction with his

staff, mannerisms, his project assignments philosophy

were scrutinized, and his were pressured by the

Wellness Center’s staff to make criticisms and

statements about his management skills. Yet, during the

Wellhouse sessions or group meetings Data services

staff, which Hill also attended, there was no discussion

of the real causes of Douglas’ transfer out of EHC-IS

as stated by him during the interview meetings with

him.

Significantly, many EHC-IS employees previously

resigned, complained about their managers, and/or

transferred out of other EHC-IS work groups, but no

White directors/managers the staff had ever been

investigated, intimidated, threatened with termination

or had the employees interviewed or ordered to undergo

psychological counseling or questioning sessions by

Cantrell or Palmich in the entire history of the EHC-

IS. Instead, it was the common practice for Directors

and managers to informally announce any resignations

or transfers from their respective work groups during

the regular weekly management meetings.

On 3/22/2000, Hill lodged a complaint of

discrimination and different treatment with Larry

Hodges (“Hodges”), white male EHC-HR Director,

against Cantrell and Palmich. In response, Hodges

warned Hill that “it is typically a no-win for an employee

to go against management,” and never acted on Hill’s

complaint, and meanwhile, the discriminatory practices

intensified. On May 2, 2000, Hill separately met with

and reported the discriminatory Wellhouse referral, and

other harassing conduct by Palmich and Cantrell to the

Emory’s University-wide Equal Opportunity Program

(“EOP”) administrator, Robert “Bob” Etheridge, and

also returned to Hodges to update his March 22, 2000

complaint. Again, Etheridge listened to Hill’s allegations

but, failed to take any actions to address the issues, and

Hill never heard from the EOP office, or Etheridge

thereafter. On 5/4/2000, Hodges directed 2 separate

memoranda to Palmich, Cantrell, and HR, in which he

provided partial summaries of the substance of Hill’s 3/

22/2000 and 5/2/2000 complaints of discrimination. About

3 % weeks later on 5/30/2000, Hill met with Cantrell at

her request, for an off-site lunch meeting, and proposed

that they each wipe the slate clean. However, at the same

time, Cantrell transferred all of Hill’s DBA direct reports

away to Medley’s supervision, and moved another staff

to report to Barnes.

Accordingly, on 10/17/00, Hill filed another complaint

of discriminatory treatment of Blacks and Black

applicants to EHC-IS with Dana Bible of the EHC-HR

in regard to the unfair interview process, hostile work

environment, and the overall pervasive racial

harassment in EHC-IS department. Specifically,

Cantrell and Palmich established a dual-system

disparate practice of requiring Black job applicants to

be interviewed by no less than 10 -12 people from

various EHC-IS workgroups, while the White

candidates were only interviewed by 3-5 people; Cantrell

repeatedly attempted to convert Hill’s full-time positions

to temp-to-full-time positions when it became apparent

that Black persons were the top candidates. Hill

complained that employees from other IS workgroups

were allowed to interview job applicants for Data

Services positions, while Hill was never designated to

participate in interviews for whites, or candidates that

applied to other workgroups than Data Services, and

also complained about the hostile work environment that

Blacks were subjected to at EHC-IS. Once again, on

11/1/2000, Hill was informed that his title had been

changed, retroactive to July, 2000, to Manager of

Application Services with the express approval of

Hodges to whom Hill lodged 2 previous complaints of

discrimination.

In late 2/2001, Palmich and Cantrell informed Hill

that they negotiated a promotion and transfer for him

to the Winship Cancer Institute (““WCI”) of the Emory

School of Medicine with its director, Dr. Jonathan

Simons (“Simons”), and instructed him to post for the

position. The posted advertisement for the DOI position

did not disclose that the position was a temporary or

charge back position, nor was Hill informed that the

position was a temporary “charge back,” or different

in in any way from Hill’s full time, regular position at

Data Services. Effective 3/9/2001, Hill was physically and

administratively severed from Data Services, and his

office was moved to the 2" floor of the IS building with

the IT security group.

As DOI, Hill provided primary leadership in the

implementation and support of the multimillion-dollar

bio-informatics system for cancer research and

treatment known as Genesys SI (“GSI”). However, on

May 6, 2001, Hill was alerted by a WCI project

management staff, Patina Sidner (Black female) that his

“promotion” to DOI was engineered by, and was a

disguised ploy by Cantrell and Palmich to get rid of Hill

from EHC-IS. Deeply concerned, Hill confronted

Palmich and Cantrell with Sidner’s claims, and they

denied and reassured Hill that no such designs existed,

and that his DOI position was a permanent, full-time

position.

Murdock, as the WCI COO, directed the patient and

family services, informatics, administration, decision

support, billing and collection, oncology nursing, bone

marrow transplant departments of WCI, and reported

to Simons. At WCI, all of Hill’s peers were white, had

director level positions, and all reported to Murdock.

Between March, 2001 and end of 2003, Hill was the

Project Lead/Manager of GSI development, yet,

Murdock and Simons denied Hill any staff, whatsoever,

although his peers had direct reports with much fewer

number of projects than Hill.’ On 12/11/2001, Murdock

authorized Hill to fill a Business Analyst III (“BA III”)

position, and Hill selected a Black female candidate,

Lillie Reid (“Reid”) and made a verbal offer to Reid anc

after she accepted, Murdock rescinded the offer to

Reid, removed the hiring decision from Hill, and instead,

placed the position and hiring decision under a white

IS Director, Willey, who offered the BA III position to a

white female, Cindy Hubbard (“Hubbard”). Hubbard

was hired as BA III, and reported to Willey/Murdock.

5. At WCI, all of Hill’s peers had director level positions,

all reported to Murdock and included Elaine Koenig (White

female, and Director of Patient Family Services), James McKay

(White male, and Director of Decision Support services), Chery!

Martin (White female, and Director of Oncology Nursing),

Debbie Hoaks (White female, and Director of Oncology Nursing

for the Bone Marrow Transplant program), Ashley Boaz (White

female, and Director of Administration), Vickie Miller (White

female Director). Roz Robinson, Black Female, was the Director

of and the tissue procurement was a part of nursing services of

the hospital. Invariably, between March, 2001 and end of 2003,

Hill was the Project Lead/Manager, and was assigned

approximately 21 of the 25 on-going projects at WCI as reflected

on the Functional Organization Chart of WCI.. Yet, Murdock

and Simons denied Hill, and he did not have any direct reports

or staff, whatsoever, although his peers had direct reports.

McKay had 4 direct reports and about 8 projects; Martin was

assigned 20 employees.

On 10/4/2002, the Alpha release of GSI was

completed with Hill’s leadership and on October 22,

2002, Hill was issued a glowing review by Cantrell, and

received high ratings and lavish praises for his

Leadership, Decision Making/Judgment, Employee

Relations, Staff Development, Budget/Expense Control,

etc. Yet, on 11/7/2002, Hill submitted a request for

funding to attend a BRIITE conference which was

relevant to the GSI project, and Murdock turned down

his request, and Hill was forced to pay his own way to

the conference, but, Murdock approved Hubbard’s

request for funding to attend a conference in California

at the same time.

Two years after his presumed transfer to WCI

Directorship position, Hill was still not assigned an office

by Cantrell and Murdock, and worked out of a cubicle

located at the EHC building. On 2/25/2003, Hill

requested that Murdock provide him with office space

at the WCI’s new building (“Building C”) that was about

to be completed, and Murdock declined. The Building

C was completed on July 4, 2003, and the entire white

WCI’s senior and Director-level staff, except Hill, were

moved into private offices there.’ On August, 4, 2003,

Hill again requested to be moved to Building C or, even

the older “B” building, but Murdock and Cantrell

consistently denied his requests, and claimed there was

no space available. On 10/10/2003, the Beta Release of

6. The WCI Building C was completed on July 4, 2003, and

the WCI’s senior management and Director-level staff moved

into private offices in the building, including Simons, Murdock,

Koenig, McKay, Martin, Hoaks, Boaz, Miller, Bloomfield, all

white persons.

GSI was implemented and the Final product was

installed, and on 10/29/2003. Hill began to transition into

GSI production support and maintenance phase. Hill

complained to Simons about his continuing office space

denial ordeal to no avail, such that 30 months after his

transfer to WCI director position, Hill was still not

assigned an office space at WCI. Hill contacted John

Fox (EHC - CEQ) and complained about Murdock and

Cantrell’s refusal to provide him with an office space at

WCI, and on the next day, Cantrell assigned Hill office

space in Building B, and on 01/27/2004, Hill moved into

the office, but not in Building C where the other

Directors were moved.

Murdock Hires Hubbard into WCI Organization,

Moves her into Building B, Transfers all of

Hubbards Projects to Hill and Initiates a Plan to

Elevate her to Directorship Position and Replace

Hill with Hubbard

On 6/8/04, Hubbard transferred to WCI as BA III

charge back with Murdock’s approval. Hubbard was

previously assigned office space in Building B. On 8/1/

2004, Murdock and Cantrell transferred all but One (1)

of Hubbard’s projects, valued under $100,000, to Hill in

addition to Hill’s assigned projects, because she could

not efficiently execute her assigned projects. However,

for Hubbard’s one (1) project, Murdock approved 3

FTE’s for Hubbard, but denied ANY FTE for Hill who

had more than 15 projects valued over $2,300,000. After

her move to WCI effective 6/2004 as a BA III, one of the

Top Priorities assigned to Hubbard by Murdock was to

Work with Murdock to develop a job description for

classification as Director. On 2/3/2005, Murdock

requested that Hubbard’s position be reclassified to

Director level title from BA III, and confirmed that

Hubbard had 10 employees reporting to her at that

time. Effective, March 1, 2005, Murdock promoted

Hubbard to Director of IT Operations. Hubbard was

placed in an IT leadership position such that her job

was comparabie to Hill’s, with 10 FTE’s, while Hill was

denied any FTE support, whatsoever..

On 6/7/2004, Hill submitted a Total Cost of

Ownership proposal to Cantrell and Murdock for the

GeneSys SI Enterprise Rollout (with hardware,

software, implementation costs, FTEs.). In addition, Hill

included in the package, a request for 5.4 new FTEs; 2

of the FTEs were for EHC-IS positions, and the other

3.4 resources were for my WCI Oncology Informatics

area. Within three (8) days, Hill received from Cantrell,

the GeneSys SI expansion net new costs for the GSI

Enterprise Rollout, and the only FTEs approved in the

budget were the 2 allocated to EHC-IS, while Hill’s

department, the Oncology Informatics department

received ZERO (0) FTEs, and thus, Hill remained the

only WCI Director and project manager with no FTEs

or administrative support of any kind. Undeterred, on

6/29/2004, Hill submitted a budget proposal for Fiscal

Year 2005 that included 2 FTE positions request for WCI

Oncology Informatics as follows: 1 Data Entry Specialist,

and 1 Information Analyst position. Again, Murdock,

Cantrell and Simons struck Hill’s request for 2 FTE’s,

and Hill remained the only WCI or EHC-IS Director

that had absolutely no support staff.

On 2/25/2005, Dr. Rogatko (WCI Biostatistics

Director), talked to Hill about assisting him with

recruiting and management of a new Database Analyst

to work on a Biostatistics grant he obtained. Murdock

stopped the effort claiming she had not approved it, yet,

around this same time, Murdock promoted Cindy

Hubbard to a Director position at WCI, and immediately

moved her to the Building C to join other white WCI

directors, and gave her 10 FTE direct reports. Shortly

thereafter, Murdock and Cantrell demanded to have a

mid-period or half-year performance checkpoint meeting

with Hill, although, in the entire time that he was

employed at WCI from March, 2001 until March, 2005,

Hill’s job performance had never been appraised mid-

term by Murdock, Cantrell or anyone else, as he always

received only annual review per 12 month period, nor

was Hill previously informed of any policy change to mid-

year reviews at WCI.

On 3/31/2005, Hill met with Cantrell and Murdock

for the mid-year Performance Checkpoint, and during

the meeting, Hill handed out his completed Employee

Discussion Questionnaire, and sought to discuss the

contents, however, Murdock showed absolutely no

interest and went over to the white board with her back

turned to Hill and Cantrell. At the end of Hill’s

presentation, Murdock interjected that she wanted to

discuss other things, and proceeded to list all project

items that were not completed (IS plan, StemSoft,

Clinical Trial, NMDP and Tissue Bank). Hill immediately

explained, and fully contradicted each assertion of

project incompleteness made by Murdock, and showed

that she either misunderstood or forgot previous 3"

party vendor actions that affected GSI project status.

During this meeting, Hill complained to Murdock

and Cantrell that they were discriminating and treating

him differently from his Director peers; that they were

intentionally setting him up to fail by refusing him

resources and then complaining about projects

incompleteness and holding him to a much higher

standard of performance than was being applied to his

WCI peers, because all of them stated to him that they

were never subjected to mid-year reviews by Murdock.

On 4/6/2005, Hill submitted his status report to Murdock

and Cantrell, and indicated therein that he had been

appointed the Co-Director of Data Mgt. component of

Biostat/Data Mgt. core by Dr. Andre Rogatko. Just as

she did with Sidner, Murdock immediately sent Hill an

e-mail accusing him of overstating his role in the project

as co-director. Murdock then asked Dr. Rogatko to

withdraw the appointment, and remove Hill’s name as

the Co-Director from the Grant documents, because Hill

would not be at WCI much longer, and Rogatko

complied. Dr. Rogatko and the Emory University CIO,

Rehan Khan, both white males, separately informed Hill

that the reason he was not getting resources and

support for his projects was because of the color of his

skin.

On 4/7/2005, Cantrell and Murdock requested to the

EHC-HR that Mr. Hill’s position be eliminated;

they provided 2 reasons for their request as follows:

“(1) Genesys SI project is complete and in production

support mode; and (2) Further Genesys SI expansion

across EHC has not been funded.” They made no

mention of WCI budget issues. In fact, in Fiscal Year

2003, Hill’s salary was paid out of the School of

Medicine’s portion of the WCI Fund Budget100%, in the

amount of $119,018 (Account #280087). The evidence

showed that the Woodruff Fund did not experience

Salary deficit in that fiscal year. Similarly, the 2005 Fiscal

Year Emory Clinic Operation Budget of the WCI showed

net profit of $142,307 in that fiscal year. (August, 2004

to August, 2005). The 2005 Fiscal Year Schoo! of

Medicine budget of the WCI showed Hill’s salary of

$121,982 was shared equally in that fiscal year between

Woodruff Fund and Emory Healthcare IS Department

in the equal amounts of $60,996, each, and not 100% paid

by EHC-IS. Significantly, at the time of Hill's

termination, the WCI budget Deficits account chart as

of end of 2004 fiscal year did not include the Woodruff

Fund. On the contrary, the Actual fiscal year 2005 budget

of the School of Medicine component of WCI annual

budget (Sept, 2004 - Sept. 2005) reflected a total

expenses for the Woodruff Fund of $3,612,143, and

expected Woodruff Fund income of $3,676,122, for a

computed Net income of $63,979. Thus, Hill’s entire

annual salary of $121,922 was already taken into account

in the budget and there still existed a surplus for that

year. Similarly, WCI’s Woodruff Fund’s Actual Sources

and Uses of Funds showed Total (Revenue) Sources in

the amount of $3,355,068, and Total (Expenses) uses of

funds in the amount of $2,986,869, amounting to a

computed net Revenue in the amount of $368,199 that

was left over in the account on September 27, 2005

shortly after Hill was already terminated on May 9, 2005.

Importantly, in 2004 Fiscal Year, the Woodruff Fund

experienced total Actual Revenue Sources in the

amount of $5,391,454, and total Actual Expenditure Uses

of $5,133,903, for a Net Revenue in the amount of

$311,571. Thus, the Woodruff account was not running

any deficits.

In fact, on 4/6/2005 date of the request to HR to

eliminate Hill’s position, neither Cantrell nor Murdock

knew Hill’s salary, and on 4/15/2005, Murdock requested

the information from WCI staff. On same 4/7/2005, Hill

was informed by Hubbard that Murdock told her that

he will not be hiring a Database Analyst, that the FTE

had been given to her, and that Murdock was pushing

her to get a Data Analyst hired despite the well known

fact that Hubbard had never managed Database

Analysts before. On 4/10/2005, Hill complained to

Cantrell and Murdock by e-mail that he was concerned

that none of Murdock’s 3/31/2000 concerns were ever

mentioned to him prior to the 3/31 meeting. On 5/6/2005,

Cantrell requested Hill to attend a meeting on 5/9/2005

at 9:00AM., to discuss “new developments in projects

and workload,” but was later moved to 4:30 pm.

Meanwhile, on 5/9/2005, at about 1:00 pm, Hill filed an

internal complaint of discrimination with the Emory EOP

office, and met with Sylvester Hopewell (EOP Associate

Director) for about 1 hour, and returned to his office.

Upon returning to his office, he telephoned Murdock to

inform her that he had filed a charge of discrimination.

At about 4:30 pm on 5/9/2005, Mr. Hill met with Cantrell

and Murdock, and tney informed Hill that his position

was eliminated, effective, immediately with 12 weeks

severance, and that there was no position available for

him in EHC-IS. They noted several times that “This is

not about performance”.

Significantly, after Hill was terminated, his duties

or job responsibilities were absorbed by Cynthia

Hubbard (white female) and Michael Graiser (white

male); Graiser continued as the Genesys SI Liaison,

while the rest of Hill’s projects were transferred to

Hubbard.

In the entire time that Hill was employed by EHC-

IS in 2/1998, EHC had a policy and practice of

reabsorbing chargeback IS staff whose positions were

either eliminated, terminated and/or chargeback

projects were terminated, back into the EHC-IS.

Palmich and Cantrell routinely did so for numerous

white IS directors, managers and staff, including John

Morford, Bill Marcus, Bruce Douglas, Michael Graiser,

David Beaulieu, Scott Mazur, Malcolm Barnes, and

others. However, Hill was denied such reabsorption by

Cantrell after the elimination of his chargeback position

at WCI. Also, Hill was never given any FTE support

staff, whatsoever, by Cantrell or Murdock, although, he

managed in excess of 25 complex projects. No other

position was eliminated by pursuant to any restructuring

at this time, except Hill’s.

2. PROCEEDINGS BELOW

I. The District Court

Petitioner filed his Complaint against Respondents

on July 19, 2006. On April 4, 2008, the Defendants filed

their summary judgment motion. Hill filed his response

on May 12, 2008, and on November 10, 2008, Hon. Mag.

Brill entered an Order to serve Parties with her Final

Report and Recommendation (“R & R”) to grant the

employer’s motion for summary judgment. Judge Brill

concluded, and was adopted by the District judge, that

Hill failed to establish a prima facie case of wrongful

termination based on his race because Hill did not

provide evidence [direct] that Defendants considered

race in making the decision to eliminate his position.

The district court concluded that Hill’s argument that

the circumstances of his termination suggested unlawful

discrimination was conclusory and unsupported by

citation to the record, and that Hill did not establish

pretext for Retaliation, and/or racially discriminatory

discharge. Mr. Hill timely filed his Objections to the

R & R on November 26, 2008. On December 17, 2008,

Judge Shoob entered an Order adopting the R & R,

dismissed Hill’s claims, a clerk’s Judgment of same date

in favor of Defendants was entered, and the civil case

was terminated on same date.

Additionally, and contrary to the clear guidance of

this Court, Brill concluded that Petitioner’s unlawful

hostile work environment discrimination and disparate

treatment clams with regard to his annual merit

increases; referral of his team to Wellhouse

investigation; demotion to Manager from Director;

denial of WCI office space for over 3 years, denial of

administrative support and FTEs; undermining of his

management authority; refusal of funds to attend work

related conference; denial of permanent employee

status; refusal to reabsorb him after his position

elimination; failure to provide Hill with a list of vacant

positions at EHC upon his termination; failure to allow

Hill the usual 60-90 days to find another job within the

company prior to his effective termination date, and

other challenged mistreatment from 2000 until his

termination in May, 2005, were trivial, facially neutral

and, were not sufficiently severe or perversive to

constitute actionable hostile work environment.

With regard to Petitioner’s Race discrimination and

retaliatory discharge claims, the Magistrate and District

Court concluded that Plaintiff could not make our prima

facie case of race discrimination or Retaliations or

Pretext, and Granted Respondents’ motion for summary

judgment. Copies of the Magistrate’s Order, as well as

the District Judge’s Order adopting the Magistrate’s

recommendations are attached in the Appendix at 48a

to 82a and, 15a to 47a, respectively.

II. The Court of Appeals

Petitioner appealed the lower Court’s Order

granting summary judgment to the Respondents to the

Eleventh circuit, and the district court’s decision was

Affirmed on August 25, 2009, and a copy of the Eleventh

Circuit’s unpublished Opinion is included in the

Appendix at la to 14a. With regard to Petitioner’s

Hostile Work Environment claim, the Eleventh Circuit

concluded that while the foregoing employment actions

may have been “subjectively humiliating, they were

neither objectively threatening nor humiliating.

Concerning Petitioner’s discriminatory termination and

retaliation claims, the Eleventh circuit conflated both

claims and incorrectly applying the wrong analytical

standard, concluded that Hill failed to show that his

termination by WCI was pre-textual, ostensibly, because

the

WCI Woodruff Fund from which Hill was paid

were running budget deficits; the program

that Hill was hired to develop had moved into

a maintenance phase that required less of

Hill’s time and was handled primarily by an

outside vendor; and Hill’s remaining job

duties were shared among lower earning

employees after his termination.

Although, the Court’s foregoing conclusions are not

true, and although Hill offered unrefuted evidence that

the WCI Funds from which his salary was paid were not

running budget deficits; that about 9 months earlier,

Murdock intentionally elevated Hubbard from a BA III

position to WCI Directorship, and transferred all of Hill’s

duties to her, except one project which was transferred

to a white male, Graiser; and that these two employees

that were assigned his job duties after he was

terminated were members of non-protected class,

however, their entire line of inquiry was faulty and

misplaced, and should be reviewed by this Court.

REASONS FOR GRANTING THE PETITION

I. There Is Important Conflict Among The Circuit

Courts Regarding The Relevant Inquiry To Prove

Invidious Discrimination In Employment Where

The Terminated Mini-rif Employee’s Duties Were

Absorbed By Other Non-Protected Employees

Rather Than Eliminated Altogether By The

Company

In the present case, a jury question is present

because the petitioner presented evidence that, when

taken as a whole, created a fact issue as to whether the

employer created a hostile work environment for Hill,

and whether Hill’s termination was retaliatory and/or

discriminatory. In granting summary judgment, the

district court departed from the accepted analytical

standard of review set by this Court in National

Railroad Passenger Corp. v. Morgan, 586 U.S. @ 116,

quoting, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,

114 S. Ct. 367, 126 L. Ed. 2d 295 (1993); Reeves v.

Sanderson Plumbing Products, Inc., 580 U.S. 133, 144,

120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). This departure

was sanctioned by the Eleventh Circuit Court of

Appeals. Further, the decisior of the Eleventh Circuit

Court of Appeals conflicts with the decisions of other

Circuit Courts of Appeals on the issue of the quantum

of proof necessary to sustain an actionable hostile work

environment claim, whether proof of intent is required

to carry the prima facie case burden and the appropriate

pretext analysis standard in the mini-RIF termination

context where the Petitioner has alleged race and/or

retaliatory termination. For these reasons, the petition

for writ of certiorari should be granted.

This case presents questions about what constitutes

invidious discrimination in the context of a one man

reduction in force by an employer who terminates a

minority (Black) employee in the mini-RIF and,

distributes his duties among two retained non-minority

(White) employees. The Eleventh circuit answered the

question by requiring that such Plaintiff must establish

a prima facie case [of age discrimination] that includes

proof of intent of the employer to discriminate against

the employee. Smith v. Smith Lanier & Co., 352 F.3d

1342, 1344 (11" Cir. 2003); Padilla v. N. Broward Hosp.

Dist., 270 Fed. Appx. 966, 971 (11 Cir. 2008).

In so holding, the Eleventh circuit relied on its

previous 1996 holding in Jameson v. Arrow Co., 75 F.3d

1528, 1531-32 (11% Cir. 1996) which equally relied on a

similar ADEA prima facie case analysis in its finding and

departed from the prevailing rule in other circuits. The

analytical] variation was first introduced by the Fifth

circuit in Williams v. General Motors Corp., 656 F.2d

120, 129 (5 Cir. 1981), cert. denied, 455 U.S. 948, 102 S.

Ct. 1489, 71 L. Ed. 2d 655 (1982). At that time, the Fifth

circuit recognized that the reduction in force age

discrimination cases were unlike the typical age

discrimination cases where the terminated employee was

required to provide evidence of disparate treatment from

persons who were under 40 years of age, and thereby

introduced a variation of the Texas Department of Com’

Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed.

2d 207 (1981) prima facie analysis framework that required

the employee to present evidence that must lead the fact

finder reasonably to conclude either (1) that defendant

consciously refused to consider retaining or relocating a

plaintiff because of his age, or (2) defendant regarded age

as a negative factor in such consideration.

However, only the Sixth, Eighth and Eleventh circuits

subscribe to or follow the above Fifth circuit’s former RIF

prima facie case analyses framework. In analyzing

Petitioner’s racially discriminatory and retaliatory claims

hereof, the Eleventh Circuit relied on its prima facie

analysis in Smith, id, as follows: (1) she was in a protected

age group and was adversely affected by an employment

decision, (2) that she was qualified for her current position

or to assume another position at the time of discharge,

and (3) evidence by which a finder of fact could reasonably

conclude that the employer intended to discriminate on

the basis of age in reaching that decision in Smith v. Smith

Lanier & Co., 352 F3d 1842, 1344 (11 Cir. 2003). The

Eleventh circuit further explained the third “intent” factor

above by opining that

To establish intent, the plaintiff needs to

proffer evidence that could lead a fact finder

to conclude that (1) the defendant consciously

refused to consider retaining the plaintiff

because of his race or national origin, or

(2) the defendant regarded race or national

origin or another protected characteristic as

a negative factor in such consideration.

Padilla v. N. Broward Hosp. Dist., 270 Fed. Appx. 966,

971 (11 Cir. 2008).

Respectfully, the D.C., First, Second, Third, Fifth,

Seventh and Tenth circuits have explicitly rejected the

above view of the Eleventh circuit requiring proof of

intent, or what amounts to proof of direct evidence at

the prima facie case stage in a mini-RIF case. Instead,

these circuits require that in mini-RIF cases, the

Plaintiff is not required to show that he was treated

differently from similarly-situated employees but, only

that his duties were absorbed by other employees who

were not members of the protected class’. See, Coburn

v. Pan American World Airways, 229 U.S. App. D.C.

61, 711 F.2d 339 (D.C. Cir.), cert. denied, 464 U.S. 994,

104 S. Ct. 488, 78 L. Ed. 2d 683 (1983), (in a reduction-

in-force suit, an employee can establish a prima facie

case merely by proving that, while he was fired from a

7. .Coburn v. Pan American World Airways, Inc.,711 F.2d

339, 342-43 (D.C. Cir.), cert. denied, 464 U.S. 994, 104 S. Ct. 488,

78 L. Ed. 2d 683 (1983); Windham v. Time Warner, Inc. , 275 F.3d

179 (2"¢ Cir. 2001); Massarsky v. General Motors, 706 F.2d 111,

118 & n. 13 (8. Cir.), cert. denied, 464 U.S. 937, 104 S. Ct. 348, 78

L. Ed. 2d 314 (1983); Thornbrough v. Columbus & Greenville

R.R. Co., 760 F.2d 642-48 (5 Cir. 1985); Ozman v. WLS-TV, 846

F.2d 448, 455 (7 Cir. 1988); Branson v. Saccomanno, 853 F.2d

768, 770 (10% Cir. 1988).

job for which he was qualified, “younger persons were

retained and others later promoted.” Jd. at 343. In

support of this conclusion, the court stated, “We believe

the exigencies of a reduction-in-force can best be

analyzed at the stage where the employer puts on

evidence of a nondiscriminatory reason for the firing.”

Id. Similarly, in Massarsky v. General Motors Corp., 706

F.2d 111 (3™ Cir.), cert. denied, 464 U.S. 987, 104 S. Ct.

348, 78 L. Ed. 2d 314 (1983), the Third Circuit stated

that “a plaintiff alleging a discriminatory layoff need

show only that he is a member of the protected class

and that he was laid off from a job for which he was

qualified while others not in the protected class were

treated more favorably.” Jd. at 118. The court held that

the plaintiff had established a prima facie case by proving

that while he was laid off, a younger person outside of

the protected class was retained. /d.; see also Duffy v.

Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395

n. 2 (3™ Cir. 1984) (plaintiff “established a prima facie

case by proof that he was discharged while... a younger

employee was retained”), cert. denied, 469 U.S. 1087,

105 S. Ct. 592, 83 L. Ed. 2d 702 (1984). The Fourth Circuit

held in EEOC v. Western Electric Co., 713 F.2d 1011

(4 Cir. 1983), that an employee can demonstrate

unequal treatment by proving that he was demoted and

a younger person in the same position was retained.

Id. at 1015.

Fundamentally, the Seventh Circuit briefly adopted

the rule in Matthews v. Allis-Chalmers, 769 F.2d 1215,

1217 (7 Cir. 1985), but promptly retreated three years

later and explicitly rejected and overruled Matthews,

and adopted a more workable and practical rule in

Ozman v. WLS-TV, 846 F.2d 448, 455 (7 Cir. 1988). The

Seventh Circuit subsequently opined that:

“A RIF occurs when an employer permanently

eliminates certain positions from its work

force, and because the employer has removed

the position entirely from its work force, the

position will never be refilled. ... In such a

case it makes little sense to require a plaintiff

to meet the fourth prong of the Mcdonnell

Douglas test in which the plaintiff must

demonstrate that the position remained open

or was filled by someone who is not a member

of the protected class. Instead, we require a

plaintiff to demonstrate that other similarly

situated employees who were not embers of

the protected class were treated more

favorably.” Michas v. Health Cost Controls of

Ill., Inc., 209 F.3d 687, 693-94 (7™ Cir. 2000).

Furthermore, “{(WJhen a terminated employee’s duties

are absorbed by other employees, rather than

eliminated from the company altogether, the appellate

Court does not require the former employee plaintiff to

make out a prima facie case normally required for

reduction in force cases.” Paluck v. Gooding Rubber

Company, 221 F.3d 1008, 1012 (10) (7 Cir. 2000), citing,

Michas v. Health Cost Controls of Ill., Inc., Id. “The

fungibility of jobs is implicit when a terminated

employee’s responsibilities are absorbed by other

employees.” Gadsby v. Norwalk Furniture Corp., 71

F.3d 1324, 1331 (7 Cir. 1995).Thus, in a mini-RIF the

relevant inquiry is not whether the plaintiff was replaced

by a younger [non-protected] employee, but whether

the plaintiff was terminated amid circumstances that

suggest unlawful discrimination. Yates v. Reaton, Inc.,

267 F.3d 793, 799 (8" Cir. 2001); Montana v. First Federal

Sav. and Loan Ass’n of Rochester, 869 F.2d 100, 104 (2"¢

Cir. 1989).

The Tenth Circuit has similarly held as follows:

“We hold that the district court erred in

concluding that plaintiffs failed to establish a

prima facie case of discriminatory discharge.

Evidence that an employer fired qualified older

employees but retained younger ones in similar

positions is sufficient to create a rebuttable

presumption of discriminatory intent and to

require the employer to articulate reasons for

its decision. While reduction-in-force cases

present exigencies not present in other

employment discrimination cases, these

exigencies are best analyzed at the stage

where the employer puts on evidence of a

nondiscriminatory reason for the discharge. See,

e.g., Coburn v. Pan American World Airways,

Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 343

(D.C. Cir.), cert. denied, 464 U.S. 994, 78 L. Ed.

2d 683, 104 S. Ct. 488 (1983)... . In Foster v.

MCI Telecommunications Corp., 773 F.2d 1116

(10th Cir. 1985), we stated that the plaintiff in a

reduction-in-force case must show he was “as

qualified” as the retained workers in order to

establish a prima facie case. However, careful

rereading of the case relied on as support for

this statement, United States Postal Serv. Bd.

of Governors v. Aikens, 453 U.S. 902, 69 L. Ed.

2d 989, 101 S. Ct. 3135 (1981), convinces us this

statement was inaccurate.

Thus, it is clear that there is an important split among

the circuits in the proper prima facie analysis standard

in the context of the so-called “one-man” or “mini-RIF”

terminations claims. No doubt, it is clear that the prima

facie case rule applied by the Eleventh Circuit is the

minority position and should be rejected in favor of the

Seventh and Tenth circuits’ analytical rationale and

standard. Applied to the Petitioner’s case hereof, it is

undisputed that all of Hill’s job duties (over 21 projects),

except one project, were absorbed by a white female,

Hubbard, and the one project was absorbed by a white

male, Graiser. Thus, Hill clearly satisfied his mini-RIF

racial termination and retaliation case burden contrary

to the Eleventh Circuit’s finding.

Furthermore, the Eleventh Circuit’s conclusion that

Hill did not show pretext is in error and should be

rejected by this Court. Interestingly, no mini-RIF

discrimination plaintiff in the Eleventh circuit has ever

prevailed under the Eleventh circuit’s unattainable

analytical standard. Whether the foregoing split among

the circuits reflect a continuing difficulty lower courts

face in discerning the “subtle” and practical realities

associated with fitting the reduction in force factual

circumstances within the well established prima

facie case analytical framework, or an intentional

unwillingness of the Eleventh Circuit to adhere to the

majority prevailing analytical rule, the decision below

should be reviewed and corrected by this Court. One of

this nation’s largest circuit courts, encompassing some

of the most populous regions in the southeast, has

misconstrued this Court’s precedents. To allow the

Eleventh circuit’s ruling below to stand will invite

further confusion in this important area of

discrimination law, and will continue to work

immeasurable damage to putative plaintiffs whose

discrimination claims will continue to be analyzed under

erroneous standards.

II. Review Is Warranted To Resolve A Conflict Among

The Circuit Courts Concerning What Employer

Actions Constitute Adverse Employment Action,

And The Quantum Of Proof A Plaintiff Must

Adduce To Sustain An Actionable Hostile Work

Environment Claim.

The foregoing clear and acknowledged conflict is

more than sufficient, by itself, to justify review. But

review is all the more necessary because the Eleventh

circuit’s decision departs from this Court’s precedents,

and sets the quantum of proof bar far higher than the

precedential cases of this Court dictate. The decision

also conflicts with the Eleventh Circuit’s own precedents

and those of other Circuits. This Court has instructed

that “In determining whether actionable hostile work

environment exists, we look to ‘all the circumstances,’

including the ‘frequency of the discriminatory conduct;

its severity; whether it was physically threatening or

humiliating, or a mere offensive utterance; and whether

it unreasonably interferes with an employee’s work

performance.” National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 2074, 153

L. Ed. 2d 106, 124 (2002). Thus, “a hostile work

environment claim is comprised of a series of separate

acts that collectively constitute one ‘unlawful

employment practice.” Jd., 42 U.S.C. §2000E-5(E)(1).

Interestingly, the Eleventh Circuit has previously

opined that

{[H]arassment need not be shown to be so

extreme that it produces tangible effects on

job performance in order to be actionable, and

the establishment of the frequency, severity,

and humiliating nature of the conduct can be

sufficient even if a plaintiff fails to establish

convincingly how the conduct interfered with

her duties.

Shockley v. Healthsouth Central Georgia Rehab. Hosp.,

2008 U.S. App. LEXIS 20011 *12 (11 Cir. 2008).

Contrary to this Court’s foregoing guidance, the

Court below held that Petitioner’s proof of unlawful

adverse action and hostile work environment

discrimination and disparate treatment with regard to

his annual merit increases; referral] of his team to Well

House investigation; demotion to Manager from

Director; denial of WCI office space for over 3 years after

he became a director, denial of administrative support

and FTEs; undermining of his management authority;

denial of work related conference attendance;

assignment of overwhelming workload; denial of

permanent employee status and title as he previously

held; refusal to reabsorb him after his position

elimination; failure to provide Hill with a list of vacant

positions at EHC upon his termination; failure to allow

him the usual 60-90 days to find another job within the

company prior to his effective termination date, and

other disparate treatment from his white counterparts

in his terms and conditions of employment from the

moment of his employment in 1998, and which continued

through his termination in May, 2005 were trivial, or

facially neutral and “normal workplace decisions that

strike at the very hear of an employer’s business

judgment and expertise because they challenge a

employer’s ability to allocate its assets in response to

shifting and competing market priorities” and thus,

were not severe or perversive enough to constitute

actionable hostile work environment. The holding is in

error, conflicts with other circuits, and should be

reviewed and reversed. Respondents’ misconduct were

clearly numerous in frequency, grave in severity, greatly

deteriorated Petitioner’s health, and humiliating nature

of the conduct is subjectively and objectively evident.

No doubt, the Eleventh circuit’s foregoing

restrictive decision conflicts with its own precedents and

the First, Seventh, Ninth, Tenth, and D.C. circuits which

take an expansive view of the types of employment

actions that constitute actionable hostile work

environment and adverse employment action. Thus,

there is a clear split in the Circuit Courts of Appeal on

the issue of what constitutes an adverse employment

action sufficient to sustain an actionable hostile work

environment claim under Title VII. The First, Seventh,

Tenth, and D.C. Circuits all take an expansive view of

the types of action that can be considered adverse

employment actions. Wyatt v. City of Boston, 35 F.3d

13, 15-16 (1* Cir. 1994) (adverse employment actions

include “demotions, disadvantageous transfers or

assignments, refusals to promote, unwarranted negative

job evaluations and toleration of harassment by other

employees”); Knox v. Indiana, 93 F.3d 1327, 18384 (7%

Cir. 1996) (employer can be liable for retaliation if it

permits “actions like moving the person from a spacious,

brightly lit office to a dingy closet, depriving the person

of previously available support services . . . or cutting

off challenging assignments”); Corneveauz v. CUNA

Mutual Ins. Group, 76 F.3d 1498, 1507 (10" Cir. 1996)

(employee demonstrated adverse employment action

under the ADEA by showing that her employer

“required her to go through several hoops in order to

obtain her severance benefits”); Berry v. Stevinson

Chevrolet, 74 F.3d 980, 986 (10 Cir. 1996) (malicious

prosecution by former employer can be adverse

employment action); Rutherford v. American Bank of

Commerce, 565 F.2d 1162 (10 Cir. 1977) (Act of

defendant, plaintiff’s former employer, in advising a

prospective employer of fact that plaintiff had filed a

sex discrimination charge against defendant was an act

of retaliation and, as such, a violation of Title VII,

making it an “unlawful employment practice” for an

employer to discriminate against an employee for

making a discriminatory employment charge); Wideman

v. Wal-Mart Stores, Inc., 141 F.3d 1458, 1456 (11th Cir.

1998) (adverse employment actions include an employer

requiring plaintiff to work without lunch break, giving

her a one-day suspension, soliciting other employees for

negative statements about her, changing her schedule

without notification, making negative comments about

her, and needlessly delaying authorization for medical

treatment); Passer v. American Chemical Soc., 935 F.2d

322, 330-331 (D.C. Cir. 1991) (employer’s cancellation of

a public event honoring an employee can constitute

adverse employment action under the ADEA, which has

an anti-retaliation provision parallel to that in Title VII).

Here, in addition to the foregoing hostile actions, it

is undisputed that Hill and his team were selectively

subjected to a psychological investigation and

counseling by the Emory Wellhouse; that Cantrell

actively solicited derogatory comments from Hill’s

subordinates about him to justify her subsequent threat

to terminate Hill, deceptively moved Hill from a full time

permanent Manager EHC position to a temporary

charge-back WCI position without informing him, all of

which caused Hill tremendous mental and physical

distress and interfered with his work.’ This Court should

grant the petition to resolve this actual conflict,

particularly, as many courts will continue to confront

similar issues as to the quantum of proof required to

sustain actionable hostile work environment claims.

8. As a direct result of the foregoing discriminatory

conduct of Murdock, Cantrell, and Simons, Hill suffered a severe

decline of good health, developed irregular heart beat in 2003,

suffered loss of hair and other skin conditions, abdominal pains,

headaches, nervousness, insomnia, loss of appetite, severe

stress and other ailments as a result of the discrimination he

suffered and was treated by his family medical practitioners.

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be Granted.

Respectfully submitted,

Bossy C. ANIEKWU

Counsel of Record

Bossy C. AnieKwu & ASSOCIATES

127 Peachtree Street, N.E.

Suite 410 - The Candler Building

Atlanta, GA 30303

(404) 885-1717

Counsel for Petitioner

APPENDIX

APPENDIX A — PER CURIAM OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT FILED AUGUST 25, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 09-10350

Non-Argument Calendar

D.C. Docket No. 06-01699-CV-MHS-1

LEROY HILL, JR.,

Plaintiff-Appellant,

versus

EMORY UNIVERSITY, EMORY HEALTHCARE,

INC., d.b.a. Emory Winship Cancer Institute,

DEDRA F. CANTRELL, a.k.a. Dedra Frutchey,

SANDRA MURDOCK,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Georgia

(August 25, 2009)

Before MARCUS, WILSON and ANDERSON, Circuit

Judges.

Appendix A

PER CURIAM:

Leroy Hill, Jr., appeals the district court’s grant of

summary judgment in favor of his employer, Emory

University and Emory Healthcare, Inc. (“EHC”), which

operated the Emory Winship Cancer Institute, (““WCI”),

and two of its employees, EHC Chief Information Officer

Dedra F. Cantrell and WCI Chief Operating Officer

Sandra Murdock, on his claims of termination based on

race, in violation of 42 U.S.C. § 1981; termination based

on race, retaliation, wage discrimination; and a hostile

work environment, in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-

2(a)(1), 2000e-3(a); and, a state law claim of negligent

retention. He also appeals the court’s denial of his motion

to compel discovery and the court’s subsequent award

of attorneys’ fees to the defendants, which we will

address first.

I. Award of attorneys’ fees and motion to compel

Hill argues that the district court’s award of

attorneys’ fees was unwarranted because his motion to

compel was substantially justified. The dispute between

the parties centered around the breadth of discovery.

Hill contends that his work was university-wide in scope

because he worked for WCI, but continued to report in

part to Cantrell at EHC. Furthermore, Hill argues, the

defendants later produced most of the objected-to

information. Hill thus contends that a genuine dispute

between the parties existed and that the motion was

substantially justified.

Appendix A

We review the denial of a motion to compel discovery

for an abuse of discretion. Holloman v. Mail-Well Corp.,

443 F'3d 832, 837 (11th Cir. 2006) (citation omitted). We

also review a district court’s decision regarding

sanctions under Federal Rule of Civil Procedure 37 for

an abuse of discretion. Serra Chevrolet, Inc. v. Gen.

Motors Corp., 446 F.3d 1137, 1146-47 (11th Cir. 2006)

(citation omitted). A district court abuses its discretion

when it misapplies the law in reaching its decision or

bases its decision on findings of fact that are clearly

erroneous. Mincey v. Head, 206 F.3d 1106, 1137 n. 69

(11th Cir. 2000), cert. denied, 532 U.S. 926 (2001) (citation

omitted).

Under the Federal Rules of Civil Procedure, a party

is permitted to “obtain discovery regarding any

nonprivileged matter that is relevant to any party’s

claim or defense. .. .” Fep. R. Civ. P 26(b)(1). The

information sought does not need to be admissible at

trial “if the discovery appears reasonably calculated to

lead to the discovery of admissible evidence.” Jd. District

courts can limit discovery when “the burden or

expense of the proposed discovery outweighs its likely

benefit... .” Fep. R. Crv. P 26(b)(2)(c)(iii). Under Rule

37, a party may move to compel disclosure under Rule

26, and “[{a] party seeking discovery may move for an

order compelling an answer, designation, production, or

inspection.” Feb. R. Civ. P 37(a)(3)(A), (B). When such

motion is denied, the court “must... require the

movant, the attorney filing the motion, or both to pay

the party . . . who opposed the motion its reasonable

expenses incurred in opposing the motion, including

Appendix A

attorney’s fees.” Fep. R. Civ. P. 37(a)(5)(B). However,

the court should not order payment “if the motion was

substantially justified or other circumstances make an

award of expenses unjust.” Jd. “Substantially justified

means that reasonable people could differ as to the

appropriateness of the contested action.” Maddow v.

Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir.

1997) (citation omitted).

Hill has not established any abuse of discretion in

the denial of his motion to compel discovery or in the

award of attorneys’ fees because he did not challenge

the district court’s conclusion that several of his

requests were difficult to interpret and improperly

worded. Therefore, he has not shown that his motion

was substantially justified.

II. Discriminatory termination claim

Hill argues that the district court erred in granting

summary judgment on his § 1981 and Title VII

discriminatory termination claims because he believes

that the court required him to produce direct evidence

of discrimination in order to meet his burden. Although

he concedes that he “did not necessarily produce any

direct evidence” of discrimination, he argues that the

coincidental events surrounding his termination could

lead reasonable jurors to conclude that he was

terminated and not considered for retention because of

his race. In support, Hill cites: (1) the rapid rise of Cindy

Hubbard, a Caucasian woman; (2) the defendants’

acknowledgment that his termination was not based on

Appendix A

performance; and (3) the defendants’ refusal to

reabsorb him into a different position after he was

terminated as they had done for others. Furthermore,

Hill argues that he established that the defendants’

proffered reasons for his termination were pretextual

because Hill worked on several projects beyond the

development of the GeneSys SI (“GSI”) program, which

was the main program he was hired to develop, including

many projects initially assigned to Hubbard that were

all reassigned to Hubbard when he was terminated.

He also emphasizes his belief that the WCI account

consistently had a budget surplus. Hill relies on the same

evidence in arguing that the district court erred in

granting summary judgment to the defendants on his

retaliation claim.

We review a district court’s grant of summary

judgment de novo, viewing all evidence in a light most

favorable to the non-moving party. Martin vu. Brevard

County Pub. Schs., 548 F.3d 1261, 1265 (11th Cir. 2008)

(per curiam) (citations omitted). Summary judgment is

appropriate when there is no genuine issue of material

fact, thereby entitling the movant to judgment as a

matter of law. Fep. R. Civ. P 56(c). Summary judgment

should be awarded “against a party who fails to make a

showing sufficient to establish the existence of an

element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986).

Additionally, a mere scintilla of evidence is not enough

to survive summary judgment; a plaintiff must present

enough evidence to enable a reasonable jury to find for

Appendix A

her by a preponderance of the evidence. Shotz v. City

of Plantation, 344 F.3d 1161, 1184 (11th Cir. 2003).

Under 42 U.S.C. § 1981, “[aJll persons within the

jurisdiction of the United States shall have the same

right in every State .. . to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white

citizens. .. .” 42 U.S.C. § 1981(a). Title VII makes it

unlawful for an employer “to discharge any individual,

or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin. ...” 42 U.S.C.

§ 2000e-2(a)(1). Claims of race discrimination under

§ 1981 are analyzed in the same manner as claims

brought under Title VII. Rice-Lamar v. City of Fort

Lauderdale, 232 F.3d 836, 843 n. 11 (11th Cir. 2000), cert.

denied, 584 U.S. 815 (2001) (citation omitted).

To establish a prima facie case of the discriminatory

elimination of a position under Title VII, a plaintiff may

show “(1) that [he] was in a protected [class] and was

adversely affected by an employment decision, (2) that

[he] was qualified for [his] current position or to assume

another position at the time of discharge, and

(3) evidence by which a fact finder could reasonably

conclude that the employer intended to discriminate . .

.in reaching that decision.” Smith v. J. Smith Lanier &

Co., 352 F 38d 1342, 1344 (11th Cir. 2003) (per curiam)

(internal quotation marks and citation omitted). To

Appendix A

establish intent, a plaintiff needs to proffer evidence that

could lead a fact finder to conclude that “(1) [the]

defendant consciously refused to consider retaining a

plaintiff because of his [race], or (2)[the] defendant

regarded [race] as a negative factor in such

consideration.” Allison v. W. Union Tel. Co., 680 F.2d

1318, 1321 (11th Cir. 1982) (citation omitted).

Title VII prohibits retaliation against an employee

“because he has opposed any practice made an unlawful

employment practice by this [subchapter], or because

he has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or

hearing under this [subchapter].” 42 U.S.C. § 2000e-3(a).

To establish a prima facie case of retaliation under Title

VII, a plaintiff must show that: (1) he engaged in a

protected activity; (2) he suffered an adverse

employment action; and (3) a causal connection between

the protected activity and the adverse employment

action. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.

2008) (citation omitted). The causal connection prong

requires a plaintiff to show “that the decision-makers

were aware of the protected conduct, and that the

protected activity and the adverse action were not

wholly unrelated.” McCann v. Tillman, 526 F.3d 1370,

1376 (11th Cir. 2008), cert. denied, 129 S.Ct. 404 (2008)

(internal quotation marks, alterations, and citations

omitted). A causal connection can be established by the

close temporal proximity between the protected activity

and the adverse action. Thomas v. Cooper Lighting, Inc.,

506 F.3d 1361, 1364 (11th Cir. 2007) (per curiam) (citation

omitted).

Appendix A

When a plaintiff uses circumstantial evidence in an

attempt to prove discrimination or retaliation under

Title VII, we apply the burden shifting approach

articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817 (1973). Under the McDonnell

Douglas framework, a plaintiff has the initial burden to

establish a prima facie case of discrimination, which, if

sustained, creates a presumption that the employer

discriminated against the plaintiff. Brooks v. County

Comm'n of Jefferson County, 446 F.3d 1160, 1162 (11th

Cir. 2006) (citations omitted).

If the plaintiff establishes a prima facie case, the

burden of production shifts to the employer to provide

a legitimate, non-discriminatory reason for the action

taken, which rebuts the presumption of discrimination.

Id. If such a reason is presented, the plaintiff must

establish that the employer’s reason is a pretext for

unlawful discrimination. /d. Despite the shifting of

burdens of production, the ultimate burden to prove

intentional discrimination remains with the plaintiff. Jd.

In order to demonstrate pretext, a plaintiff must

show that the employer’s offered reason was not the

true reason for its decision, “either directly by

persuading the court that a discriminatory reason more

likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy

of credence.” Jackson v. State of Ala. State Tenure

Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal

quotation marks and citation omitted). “Provided ths

the proffered reason is one that might motivate

Appendix A

reasonable employer, an employee must meet that

reason head on and rebut it, and the employee cannot

succeed by simply quarreling with the wisdom of that

reason.” Chapman v. Al Transp., 229 F.3d 1012, 1030

(11th Cir. 2000) (en banc) (citations and footnote

omitted). To survive summary judgment, “a plaintiff

must produce sufficient evidence for a reasonable

factfinder to conclude that each of the employer’s

proffered nondiscriminatory reasons is pretextual.”

Id. at 1037. A plaintiff can establish pretext by

demonstrating “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action

that a reasonable factfinder could find them unworthy

of credence.” Combs v. Plantation Patterns, 106 F.3d

1519, 1588 (11th Cir. 1997), cert. denied, 522 U.S. 1045

(1998) (internal quotation marks and citation omitted).

Here, the record showed that both WCI and the

Woodruff Fund, from which Hill was paid, were running

budget deficits; the program that Hill was hired to

develop had moved into a maintenance phase that

required less of Hill’s time and was handled primarily

by an outside vendor; and, Hill’s remaining job duties

were shared among lower-earning employees after his

termination. Hill did not show that these stated reasons

for his termination were pretextual. Therefore, Hill did

not establish that the district court erred in granting

summary judgment to the defendants on his termination

or retaliation claims.

10a

Appendix A

III. Wage discrimination

Hill also argues that he established a prima facie

case of wage discrimination because the two employees

he identified, Hubbard and Michael Graiser, who are

both Caucasian, were similarly situated to him. Hill

notes that he was assigned almost all of Hubbard’s

projects in June 2004, thereby performing identical job

duties for much lower pay raises. Furthermore, when

Hubbard was promoted to director, they shared a job

title and reported to the same supervisor. Both Hill and

Hubbard established and managed a budget, served as

technical experts to clients, oversaw the administration

of GSI data, and supervised a staff of professionals. In

addition, Hill asserts that he was similarly situated with

Graiser because both “used users, technologies,

vendors” and “did some of the same work.”

In order to establish a prima facie case of intentional

compensation discrimination based on race, the plaintiff

must establish 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 the

higher wage. See MacPherson v. Univ. of Montevallo,

922 F.2d 766, 774 (11th Cir. 1991) (discussing wage

discrimination in the ADEA context). We have held that

the denial of a pay raise can constitute an adverse

employment action that affects a plaintiff’s

compensation. Gillis v. Ga. Dep’t of Corrs., 400 F.3d 883,

887 (11th Cir. 2005). We have held that a “comparator

must be nearly identical to the plaintiff to prevent courts

lla

Appendix A

from second-guessing a reasonable decision by the

employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1091 (11th Cir. 2004).

Hill failed to establish a prima facie case of wage

discrimination because he did not establish the presence

of any similarly situated comparators. The record

demonstrates that both Hubbard’s and Graiser’s jobs

involved different responsibilities than Hill’s job.

Furthermore, both Hubbard and Graiser received

salary increases when they presented their employer

with evidence of a competing offer of employment. In

contrast, Hill never received a competing offer of

employment. Therefore, Hill, Hubbard, and Grasier

were not “similarly situated in all relevant respects.”

Id. (internal quotation marks and citation omitted).

We find no error in the district court’s grant of summary

judgement to the defendants on Hill’s wage

discrimination claim.

IV. Hostile work environment

Hill further contends that the district court erred

by granting summary judgment to the defendants on

his hostile work environment claim because he

established that he experienced severe and pervasive

harassment. Hill argues that he experienced an

unbroken chain of harassment that included:

(1) a department-wide “pulse check” to gauge morale,

which resulted in a referral to a counseling session for

his workgroup; (2) a demotion in job title from director

to manager while at EHC; (3) the repeated denial of his

12a

Appendix A

requests for supporting office staff; (4) the fact that one

of his hiring decisions was denied, with Hubbard being

hired instead; (5) the denial of his request to attend an

educational conference; (6) failure to classify him as a

regular WCI employee instead of a “chargeback”

employee associated with EHC; (7) the failure to assign

him any direct reports; (8) the failure to assign him office

space; (9) the failure to award him pay raises comparable

to Hubbard and Graiser; (10) the failure to reabsorb him

after his job was terminated or provide him with a list

of available job openings; and (11) the termination of

his employment.

To establish a hostile work environment claim

pursuant to Title VII, a plaintiff must prove “that the

workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working

environment.” Miller v. Kenworth of Dothan, Inc., 277

F.3d 1269, 1275 (11th Cir. 2002) (internal quotation

marks and citation omitted). The employee has the

burden of proving a hostile work environment claim.

To establish such a claim, a plaintiff must show: “(1) that

he belongs to a protected group; (2) that he has been

subject to unwelcome harassment; (3) that the

harassment must have been based on a protected

characteristic ... such as [race]; (4) that the harassment

was sufficiently severe or pervasive to alter the terms

and conditions of employment and create a

discriminatorily abusive working environment; and (5)

that the employer is responsible for such environment

13a

Appendix A

under either a theory of vicarious or of direct liability.”

Id. at 1275 (citation omitted). The requirement that the

harassment be “severe or pervasive” contains an

objective and subjective component. Jd. at 1276. “Thus,

to be actionable, this behavior must result in both an

environment that a reasonable person would find hostile

or abusive and an environment that the victim

subjectively perceive[s] to be abusive.” Jd. (internal

quotation marks, alterations and citation omitted).

In evaluating the objective severity of the

harassment, we look at the totality of the circumstances

and consider: “(1) the frequency of the conduct; (2) the

severity of the conduct; (8) whether the conduct is

physically threatening or humiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably

interferes with the employee’s job performance.” Jd.

We agree with the district court that the employment

actions cited by Hill were not so objectively severe or

pervasive as to alter the terms and conditions of his

employment. Although he may have been subjectively

humiliated, Hill’s cited actions are objectively neither

threatening nor humiliating. Therefore, the district

court did not err in granting summary judgment to the

defendants on Hill’s hostile work environment claim.

V. State negligent retention claim

Finally, Hill argues that his state negligent retention

claim should be allowed to proceed because he

persistently complained to human resources, WCI’s

Executive Director Jonathan Simons, Murdock, and

14a

Appendix A

others about the discrimination, but they failed to act

to correct it. However, his Georgia law negative retention

claim is an “essentially derivative” claim that survives

summary judgment only if ‘»2 substantive claims on

which it was based also survive. See Phinazee v.

Interstate Nationalease, Inc., 514 S.E.2d 843, 846

(Ga. Ct. App. 1999). Here, the district court properly

granted summary judgment to the defendants on Hill’s

derivative state negligent retention claim because

summary judgment was appropriate for the other

substantive claims.

VI. Conclusion

Upon thorough review of the record and the parties’

briefs, we discern no reversible error. Accordingly,

we affirm.

AFFIRMED.

1Sa

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF GEORGIA, ATLANTA DIVISION

FILED DECEMBER 17, 2008

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CIVIL ACTION NO.

1:06-CV-1699-MHS

LEROY HILL, JR..,

Plaintiff,

EMORY UNIVERSITY, et al.,

Defendants.

ORDER

The matter before the Court is the Magistrate

Judge’s Report & Recommendation (R&R) and

plaintiff’s objections to the R&R.

Background

The Court adopts the following undisputed facts as

stated in the R&R and in plaintiff’s objections to the

R&R.

16a

Appendix B

A. Plaintiff is Hired

In February 1998, Plaintiff, who is African

American, was hired by Emory Healthcare

(“EHC”) as the Director of Data Services and

Decisions Support in EHC’s information

services (“IS”) department. Plaintiff reported

directly to the Executive Director of

Applications Services, Dedra Frutchey

Cantrell, who in turn reported to Ron Palmich,

the Chief Information Officer (“CIO”). Cantrell

and Palmich are both Caucasian. ...

As Director of Data Services, Plaintiff led

a team of about fifteen employees consisting

of application developers, database

administrators, data administrators, and

business analysts.

B. Plaintiffs Performance Evaluations

Plaintiff received his first performance

evaluation on August 10, 1998, approximately

six months after his employment began. The

evaluation included high praises from his

departmental peers, who contributed to the

evaluation. ...

17a

Appendix B

On April 5, 1999, Plaintiff received his first

annual performance review and was rated

very highly by Cantrell in every review

category... ..

That same year, Plaintiff received an award

from his employer for Best Return on

Investment. Plaintiff also received positive

performance evaluations in 2000 and 2001.

R&R, pp. 2-5. Plaintiff adds that:

On July 20, 2000, Plaintiff Hill received

another performance review as Data Services

Director for the period 1/01/00 - 7/31/2000, and

was rated as “Meets Expectations” in all

evaluation categories ..., and there was no

mention of any derogatory information or

adverse rating regarding Hill’s performance

and skill with respect to Customer Service,

Communication, Leadership, Teamwork,

Initiative, Job Knowledge, Attendance and

Work Routine, Project Management, and/or

Listening skills, nor was there any adverse

commentaries or mention by Cantrell about

any perceived inability of Hill to perform up

to expected standards in terms of “Staff

competency, Performance Expectations,

Overall Assessment and Feedback” evaluation

categories. On July 13, 2001, Plaintiff Hill

18a

Appendix B

received his performance review as Manager

of Data Applications for the period 7/00 -

7/01, and was again rated as “Meets

Expectations” in all evaluation categories... ,

and there was no mention of any derogatory

information or adverse rating regarding Hill’s

performance and skills .. . nor was there any

adverse commentaries or mention by Cantrell

about any perceived inability of Hill to

perform up to expected standards....

Pl.’s Objection to R&R, pp. 5-7.

The R&R continues:

C. Complaints about Plaintiff’s Management

Skills

In February 2000, Palmich asked Cantrell

to assist him in conducting what he called a

“Pulse Check” in the IS department. During

the Pulse Check, several employees under

Plaintiff’s supervision complained to Cantrell

about Plaintiff’s leadership skills. They also

reported that Plaintiff did not listen or

respond to concerns they raised, that he

failed to take action to solve problems, that

he failed to set priorities, that he would force-

fit tools or models that the staff found

confusing and frustrating, that he did not

fairly distribute work among the staff, and

that he lacked vision and strategy. Around the

19a

Appendix B

same time, a member of Plaintiff’s

workgroup, Bruce Douglas, requested a

transfer out of the IS department. ...

On January 26, Palmich and Cantrell met

with Plaintiff and Douglas to discuss the

reasons for Douglas’ transfer request.

Douglas repeated the comments he had made

to Plaintiff about his desire to transfer and

concern about insufficient staff. .. .

After the Pulse Check, Cantrell met

separately with Douglas and asked if he was

dissatisfied with Plaintiff’s leadership skills.

Douglas confirmed that he was and also

commented that working for Plaintiff was like

being in the movie “Groundhog Day,” where

every day is an exact repetition of the day

before and nothing is accomplished. Douglas

also reported to Cantrell that he believed that

most of the Data Services group shared his

opinion of Plaintiff and that he would not

return to the group as long as Plaintiff was

the manager.

R&R, pp. 6-7.

Plaintiff claims that the true purpose of the Pulse

Check, contrastingly, was because Cantrell and Palmich

were angry that Douglas, a white male, was leaving

plaintiffs department, and Woodley noted that

something had to be done about “Leroy.” (P1.’s Objection

to R&R, p. 5.)

20a

Appendix B

The R&R continues:

Around March 1, 2000, Cantrell and

Palmich met with Plaintiff regarding the

performance problems that were mentioned

by his employees during the Pulse Check.

After the meeting, Cantrell and Palmich

issued Plaintiff a written counseling regarding

the performance problems. The memorandum

warned Plaintiff that “these are serious

leadership performance deficiencies and if not

corrected immediately could result in

termination.” After Plaintiff received the

written counseling, he worked with Cantrell

to develop a written action plan to address the

performance issues.

During the process of developing the

written action plan, Plaintiff and Cantrell

consulted with EHC’s Human Resources

(“HR”) department. The HR department

recommended that Plaintiff’s group

participate in a dialogue facilitated by

Emory’s faculty and staff assistance program,

“Wellhouse.” Wellhouse offered a program

that encouraged employees to air frustrations

and assess interpersonal dynamics. In March

and April 2000, Plaintiff’s group participated

in the program... .

R&R, pp. 8-9.

2la

Appendix B

Plaintiff also has introduced evidence that he claims

shows that:

Plaintiff inherited a poor cadre of staff when

he took over the department, that the

contrived allegations of poor management

skills were not mentioned in his performance

evaluation by Cantrell covering the period

prior to and after such criticism, that the

identified individuals that made the

allegations received poor performance

evaluations from Plaintiff, and either resented

Plaintiff’s supervision of them, were unable

to cope with the fast pace of the rigorous

workload of the workgroup, and/or were low

skilled performers who were not technically

equipped to perform the work.

Pl.’s Objection to R&R, p. 4.

The R&R continues:

D. Plaintiff’s Complaints About Discrimination

On March 22, 2000, Plaintiff complained

to Larry Hodges, HR Director for EHC, that

the discipline he received from Cantrell and

Palmich was unfair and differed from that

received by other managers. Plaintiff also

complained to Emory’s Equal Opportunity

Program Administrator, Bob Etheridge,

about the discipline. After the complaints,

Plaintiff and Cantrell agreed to move forward

with a “clean slate.”

22a

Appendix B

On October 17, 2000, Plaintiff complained

to Dana Bible, an HR employee for EHC, that

African American job applicants were

interviewed by a greater number of

employees than Caucasian applicants. Plaintiff

also complained that he was subjected to race

discrimination, specifically in being required

to participate in the Wellhouse program... .

E. Plaintiff’s Job Title Changes

Effective July 31, 2000, the HR

department and Palmich changed the job

titles of several directors who were direct

reports of Cantrell to more accurately reflect

their roles in the department. The “directors”

were reclassified as “managers.” Plaintiff was

one of the directors affected by this change

in job title; his title changed from “Director

of Data Services and Decision Support” to

“Manager of Data Applications.” This change

in job title did not affect Plaintiff’s job duties

or salary.

FEF. Plaintiff Becomes a Director for WCI

In March 2001, Cantrell and Palmich

asked Plaintiff to apply for the position of

Director of Oncology Informatics at the

Emory Winship Cancer Institute (“WCI”).

Plaintiff applied for and was given the

position, which provided him with a 10% pay

23a

Appendix B

increase. Plaintiff’s primary role in his new

position was project manager for a high-

profile informatics project known as GeneSys

SI (“GSI”). GSI was a system that combined

information from multiple sources to allow

users to compare data in an effort to

determine the causes of a particular type of

cancer, the best methods of treatment, and

the most effective means of prevention. ...

Administratively, Plaintiff remained an

EHC employee. His salary was “charged back”

to WCI, meaning that WCI paid Plaintiff’s

salary while he remained an employee of

+ ae

Following his new assignment, Plaintiff’s

office was relocated to the second floor of the

EHC building. Plaintiff requested office space

from WCI but was toid that no space was

available at that time. In July 2003, WCI

Building C opened, and Plaintiff’s peers

moved into private offices in that building.

Plaintiff again requested office space from

WCI, but his request was denied. In October

2003, Plaintiff learned of plans to return his

office to the fourth floor of the EHC building.

Unhappy with this plan, he complained about

his office space situation to the Chief

Executive Officer of EHC. The next day, he

received office space in WCI Building B.

24a

Appendix B

Despite the number of assignments given

to Plaintiff, he was the only WCI director who

had no direct reports or staff. Plaintiff sought

new FTEs on two occasions in June 2004, but

both proposals were rejected. In December

2001, Plaintiff received permission to hire an

employee for the position of Business Analyst

III. Plaintiff conducted the hiring process and

made an offer to an African American

applicant. Cantrell and Murdock rescinded

the offer made by Plaintiff and ultimately

hired a Caucasian applicant, Cindy Hubbard.

In November 2002, Plaintiff requested

funding to attend a conference related to the

GSI project. Murdock rejected Plaintiff’s

request, and Plaintiff paid his own way to the

conference. Around the same time, Murdock

informed Plaintiff that she approved

Hubbard’s request for funding to attend a

work-related conference in California.

G. Salaries

During the 2004 fiscal year, Plaintiff

received a salary of $119,018. Plaintiff’s

annual salary as of his termination on May 9,

2005 was $125,652.80. Beginning in June 2004,

Hubbard received an annual salary of

$92,393.64. .. . Hubbard was promoted to

Director of Information Technology

Operations in March 2005, and her salary

increased to $101,863.92.

25a

Appendix B

Michael Graiser (“Graiser”) is a

Caucasian who was employed by WCI to

understand the needs of physicians and utilize

the existing systems within WCI to provide

solutions to their needs. Graiser received a

salary of $61,800 from September 2004 to

March 2005. In March 2005, Graiser’s salary

increased to $75,600.

H. Plaintiff Applies for CIO Position

In 2005, Emory University sought

candidates for a position with the title “Vice

President for Information Technology/Chief

Information Officer” (“CIO”). It retained an

executive search firm to seek an individual

with (1) previous CIO experience, preferably

at another academic institution; (2) previous

management experience at an organization

with a similar budget and number of

employees; and (3) a relevant graduate

degree....

On March 22, 2005, Plaintiff applied for

the CIO position. A recruiter employed by the

executive search firm evaluated Plaintiff’s

background and determined that he lacked

the minimum qualifications for the position.

At the time, the recruiter did not know

Plaintiff’s race... .

R&R, pp. 9-14.

26a

Appendix B

Plaintiff points out that, prior to plaintiff’s

termination Murdock elevated Ms. Hubbard from a

Business Analyst III to an IT leadership Director

position within less than 1 year, such that on March 1,

2005, Hubbard was promoted from Business Analyst ITI

to Director of Information Technology, and within

2 months thereafter, was assigned all but one of

Plaintiff’s previously assigned projects after his

termination. (Pl.’s Objection to R&R, p. 7.)

The R & R continues:

I. Plaintiff’s Termination

In 2004, GSI moved from its original

developmental phase into a maintenance

phase, which required less oversight by

Plaintiff. Also, GSI began to suffer from

budget problems as its spending far exceeded

its revenue. Due to the budget problems,

funding for GSI - including Plaintiff’s salary

— was thereafter provided by the Woodruff

Fund, Inc., a charitable foundation account.

Plaintiff met with Cantrell and Murdock

on March 31, 2005 for a mid-year evaluation.

During the meeting, Plaintiff told Cantrell and

Murdock that “they were discriminating and

treating [him] differently from [his] Director

peers ... by refusing [him] resources and

then complaining about projects [sic]

incompleteness.”

R&R, p. 15.

27a

Appendix B

Plaintiff contends that, at the mid-year Performance

Checkpoint: :

Hill handed out his completed Employee

Discussion Questionnaires, and sought to

discuss the contents, however, Murdock

showed absolutely no interest and went over

to the white board with her back turned to

Hill and Cantrell. At the end of Hill’s

presentation, Murdock interjected she

wanted to discuss other things, and proceeded

to list all project items that were not

completed ... Hill further complained to

Murdock and Cantrell that they were

discriminating and treating him differently

from his Director peers; that they were

intentionally setting him up to fail by refusing

him resources and then complaining about

projects incompleteness and holding him to a

much higher standard of performance than

was being applied to his WCI peers, because

all of them stated to him that they were never

subjected to mid-year reviews by Murdock.

Pl.’s Objection to R&R, p. 8.

The R&R continues:

Shortly thereafter, Murdock planned the

fiscal year 2006 budget, in which she

implemented various budget cuts. During this

process, she considered eliminating Plaintiff’s

position. She then discussed the elimination

of Plaintiff’s position with Cantrell. Murdock

28a

Appendix B

and Cantrell agreed to terminate Plaintiff’s

employment and, on April 6, 2005, formally

requested the personnel action from the HR

department. .. . Murdock and Cantrell then

scheduled a termination meeting with Plaintiff

for May 9, 2005 at 4°30 p.m. and prepared a

termination letter to give to him at the

meeting.

On May 9, at around 1 p.m., Plaintiff

complained of discrimination to an employee

with the Emory Equal Opportunity Programs

office. Upon returning to his office, Plaintiff

telephoned Murdock to inform her of his

complaint. At 4:30 p.m., Murdock and Cantrell

met with Plaintiff to inform him of the decision

to eliminate his position... .

Plaintiff filed a charge of discrimination

with the Equal Employment Opportunity

Commission (“EEOC”) on July 20, 2005,

alleging race discrimination and retaliation.

The EEOC issued Plaintiff a notice of right to

sue on March 31, 2006. This lawsuit followed.

R&R, pp. 15-16.

Standard of Review

The District Court conducts a de novo review of the

R&R prepared by the Magistrate Judge. Summary

judgment is proper when no genuine issues of material

29a

Appendix B

fact are present and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).

Resolving all doubts in favor of the nonmoving party,

the court must determine “whether a fair-minded jury

could return a verdict for the plaintiff on the evidence

presented.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). “The evidence of the non-movant is to

be believed, and all justifiable inferences are to be drawn

in his favor.” Anderson, 477 U.S. at 255. “Credibility

determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury

functions, not those of a judge... .” Jd.

Discussion

(1) Racial Harassment Claim

The R&R first assesses plaintiff’s racial harassment

claim. To establish a claim of racial harassment, plaintiff

must show that (1) he belongs to a protected group;

(2) he has suffered unwelcome harassment; (3) the

harassment was based on his protected characteristic;

(4) the harassment was severe or pervasive; and (5) a

basis for holding the employer liable exists. Hulsey v.

Pride Rests., 367 F.3d 1238, 1244 (11th Cir. 2004)

(applying equivalent standard for sexual harassment).

A racial harassment claim may be based on conduct that

is not explicitly of a racial nature. Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Plaintiff

‘must merely show that mistreatment was directed at

him because of his race. Jd. at 81. “In determining

whether an actionable hostile work environment claim

30a

Appendix B

exists, we look to “all the circumstances,” including “the

frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a

mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Nat'l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993)).

The Magistrate Judge considered the following

facially neutral actions in determining whether a hostile

work environment existed: (1) plaintiff’s Pulse Check,

written counseling, and referral to Wellhouse;

(2) plaintiff’s change in job title from ‘director’ to

‘manager’; (3) plaintiff’s denial of office space in a WCI

building; (4) plaintiff’s denial of adequate support staff;

(5) the rescission of plaintiff’s offer to hire an African

American candidate for a position at WCI; and

(6) plaintiff’s denied request for funding to attend a

work-related conference and a Caucasian employee’s

subsequent receipt of funding to attend a separate

work-related conference. After assessing these

instances holistically, the Magistrate Judge determined

that “Plaintiff’s complaints concern normal workplace

decisions, which ‘strike at the very heart of an

employer’s business judgment and expertise because

they challenge an employer’s ability to allocate its assets

in response to shifting and competing market

priorities.” R&R, p. 21 (quoting Davis v. Town of Lake

Park, Fla., 245 F.8d 1282, 1244 (11th Cir. 2001)).

Accordingly, the Magistrate Judge determined that

plaintiff had not met his burden of showing that he

3la

Appendix B

suffered severe or pervasive harassment because of his

race.

Plaintiff counters that the Pulse Check, the written

counseling, and the referral to Wellhouse were

unnecessary because Bruce Douglas’ stated reasons for

requesting a transfer were unrelated to plaintiff.

Plaintiff adds that “[a]lthough many employees have

resigned, complained about their managers/directors,

and/or transferred out of other EHC-IS work groups

previously ... no White directors/managers, or project

manager and his or her staff had ever been investigated,

intimidated, threatened with termination or had the

employees interviewed or ordered to undergo

psychological counseling or questioning sessions...

because their employees resigned or transferred to

another department in the entire history of the EHC-

IS.” (Pl.’s Objection to R&R, p. 13.)

This Court agrees with the Magistrate Judge that

the Pulse Check, the written counseling, and the

Wellhouse referral were not forms of harassment against

plaintiff. Rather, all three of these were legitimate

activities designed to assess employee morale and

address concerns with the leadership in the various

IS workgroups. Cantrell testified that she received

multiple complaints regarding plaintiff during this

process. Further, Bruce Douglas told Cantrell that

plaintiff was the reason why he had decided to leave the

IS department. Other department employees concurred

that plaintiff “did not listen or respond to concerns they

raised, that he failed to take action to solve problems,

32a

Appendix B

that he failed to set priorities, that he would force-fit

tools or models that the staff found confusing and

frustrating, that he did not fairly distribute work among

the staff, and that he lacked vision and strategy.” (R&R,

p. 6.) Plaintiff’s written counseling was the result of the

comments from department employees regarding his

leadership style acquired during the Pulse Check.

Similarly, referral to the Wellhouse program was another

tool of EHC’s to strengthen the IS department. None

of these activities has the appearance of facially neutral

harassment, as claimed by plaintiff.

Plaintiff next argues that his change of status from

‘director’ to ‘manager’ was discriminatory because it

occurred immediately after plaintiff lodged his initial set

of internal discrimination claims in 2000. This Court

agrees with the Magistrate Judge that the change in

job titles affected similarly situated Caucasians and had

no impact on plaintiff’s job duties or salary. Accordingly,

the change of status does not constitute an instance of

racial harassment.

Plaintiff then argues that he was discriminated

against through Emory IS and WCIs denial of

supporting office staff, through the sabotage of

plaintiff’s hiring of an African American by Cantrell and

Murdock, and by the denial of plaintiff’s request to

attend a work-related conference. Again, the Court

agrees with the Magistrate Judge that each of these

decisions falls within “the very heart of an employer’s

business judgment.” Davis, 245 F.3d at 1243.

33a

Appendix B

Similarly, plaintiff’s claims of racial harassment due

to the denial of his promotion application for the CIO

position are not persuasive because plaintiff lacked the

qualifications for the position. See infra pp. 29-31.

Next, plaintiff claims racial harassment due to

WCI’s failure to classify him as a full-time employee and

to assign him any direct reports at WCI. Although

plaintiff was not assigned any direct reports and was

not classified as a full-time employee, plaintiff provides

no evidence that this occurred because of his race.

Similarly, plaintiff is the only source of speculation that

WCI’s failure to assign plaintiff comparable office space

to other all-White WCI Directors was based on race.

Further, plaintiff ultimately did receive office space in

WCI Building B after complaining to WCI’s Chief

Executive Officer.

Plaintiff also contends that WCI’s failure to award

pay raises to plaintiff comparable to those awarded to

other employees constituted evidence of racial

harassment. However, this claim is meritless because

plaintiff was not similarly situated to other individuals

whom plaintiff specified for comparison. See infra

pp. 26-29.

Plaintiff then alleges racial harassment based on

“the failure to provide Plaintiff with a list of available

job openings, and/or allowing Plaintiff to continue to

perform work for the same period of time before the

effective date of the termination as was extended to the

white charge-back employees under Cantrell’s

34a

Appendix B

supervision” and “the failure to reabsorb Plaintiff back

into the Emory IS department as was done for other

white Emory IS charge-back employees.” (P1.’s

Objection to R&R, p. 14.) However, the material facts

which plaintiff cites for the former objection only discuss

his application and rejection for the position of CIO at

Emory and the material facts which plaintiff cites for

his latter objection make no showing that the failure to

reabsorb plaintiff into the Emory IS department was

based on race. Finally, plaintiff’s claim that his

termination of employment constituted racial

harassment is contradicted by the fact that defendants

offered legitimate non-pretextual reasons for that

employment decision. See infra pp. 18-26.

Therefore, even though plaintiff is able to show a

number of employment practices that may have been

harassing to him as an individual, he fails to make a

prima facie case for racial harassment because he offers

no showing that “the harassment was based on his

protected characteristic.” Hulsey, 367 F.3d at 1244.

Accordingly, the Court adopts the Magistrate Judge’s

recommendation to grant summary judgment on

plaintiff’s discriminatory harassment claim.

(2) Termination Based on Race Claim

Both Title VII and § 1981 prohibit an employer from

discriminating against an employee because of that

employee’s race, 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C.

§ 1981(a). Where plaintiff attempts to establish a case

of individual disparate treatment based on

35a

Appendix B

circumstantial evidence, the burden shifting approach

of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

04 (1973), applies. The plaintiff bears the initial burden

of establishing a prima facie case of discrimination.

McDonnell Douglas, 411 U.S. at 802-04. Once a prima

facie case is established, a legal presumption of uniawful

discrimination arises and the burden of production

shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the challenged

employment action. McDonnell Douglas, 411 U.S. at 802-

04. If the employer does so, the presumption is

eliminated, and the plaintiff must be given an

opportunity to prove by a preponderance of the evidence

that the legitimate reason offered by the defendant is a

pretext for discrimination. At all times, the plaintiff

retains the ultimate burden of persuading the finder of

fact that the defendant acted with discriminatory intent.

Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981).

The elements for a prima facie case of discriminatory

termination are that: (1) the plaintiff is a member of a

protected class, (2) the defendant subjected the plaintiff

to an adverse employment action, (3) the plaintiff was

qualified for the current position or another available

position with the defendant, and (4) the defendant in

taking the adverse action intended to discriminate

against the plaintiff because of the plaintiff’s race.

Earley v. Champion Int'l Corp., 907 F.2d 1077, 1083

(11th Cir. 1990). In order to establish the defendant’s

discriminatory intent under the fourth factor, the

plaintiff must put forward evidence that could lead a

36a

Appendix B

finder of fact to conclude that (a) the defendant had

consciously refused to consider retaining the plaintiff

because of the plaintiff’s race, or (b) the defendant

regarded the plaintiff’s race as a negative factor in such

consideration. Allison v. W. Union Tel. Co., 680 F.2d

1318, 1321 (11th Cir. 1982).

The Magistrate Judge found that because plaintiff

admitted that he had no evidence that defendants

considered his race in making the decision to eliminate

his position and relied only upon his own statements and

the statements of other third parties with no firsthand

knowledge of the decision, plaintiff failed to make out a

prima facie case of wrongful termination. Similarly, the

Magistrate Judge found that WCI’s transfer of

plaintiff’s remaining job functions to two Caucasian

employees did not create a genuine issue of material

fact regarding the defendants’ intent to unlawfully

discriminate.

Plaintiff first objects to the standard used to decide

the wrongful termination claim. In place of the fourth

prong of the McDonnell Douglas test, plaintiff argues

that he must “demonstrate that other similarly situated

employees who were not members of the protected class

were treated more favorably.” Michas v. Health Cost

Controls of Ili, Inc., 209 F.3d 687, 693 (7th Cir. 2000).

Further, plaintiff argues that when a terminated

employee’s responsibilities are absorbed by existing

employees, the relevant inquiry is whether plaintiff was

terminated amid circumstances that suggest unlawful

discrimination. Yates v. Rexton, Inc., 267 F.3d 798, 799

(8th Cir. 2001).

37a

Appendix B

Plaintiff argues that the circumstances surrounding

his termination suggest unlawful discrimination. First,

plaintiff claims that Murdock quickly elevated Hubbard,

a Caucasian, for the purpose of preparing her for

plaintiff’s position. Plaintiff claims that Murdock

deliberately sought to replace plaintiff, an African-

American, with Hubbard because she was Caucasian.

However, this assertion is a conclusory allegation

unsupported by citation to any evidence.

Second, plaintiff argues that during his termination

meeting with defendants, Cantrell and Murdock noted

several times that the termination was “not about

performance.” While Cantrell and Murdock would not

dispute this assertion, it was never offered as the basis

for plaintiffs termination. Accordingly, it does not create

a genuine issue of material fact.

Third, plaintiff alleges that he was denied

reabsorption by Cantrell after the elimination of his

charge-back position at WCI. The failure to allow

reabsorption in itself, however, is insufficient to

constitute evidence of racial discrimination.

“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.” Nix v. WLCY Radio/Rahall

Comme’ns, 738 F.2d 1181, 1187 (11th Cir. 1984). Further,

plaintiff has not established that he was similarly

situated to other WCI chargeback employees who were

subsequently reabsorbed after their positions were

eliminated; accordingly, there is no basis for finding

impermissible race discrimination.

38a

Appendix B

Finally, plaintiff claims that defendants’ assertions

of budgetary or financial distress at WCI were

pretextual because the GCI project was not suffering

from budget problems. However, as the R&R points out,

WCI in general and the Woodruff account fund from

which plaintiff’s salary was paid were experiencing

budget problems at the time of plaintiff’s termination.

Thus, the Magistrate Judge correctly declined to review

defendants’ budget allocations.

Because defendsnts offer legitimate non-

discriminatory reasons for dismissal, namely (1) that the

Genesys SI project was complete and in production

support mode; and (2) further Genesys SI expansion

across EHC had not been funded; and because none of

plaintiff’s budgetary measurements show these claims

to be pretextual, plaintiff fails to create a genuine issue

of material fact concerning his wrongful termination

claim. Therefore, the Court adopts the Magistrate

Judge’s recommendation to grant summary judgment

on plaintiff’s wrongful termination claim.

(3) Retaliatory Termination

Plaintiff next states a cause of action for retaliatory

termination under Title VII and § 1981. Both Title VII

and § 1981 prohibit employers from taking adverse

employment actions against employees in retaliation for

their opposition to discriminatory practices prohibited

by the statutes. CBOCS West, Inc. v. Humphries, 128

S. Ct. 1951, 1954-55, 1959 (2008). To establish a prima

facie case of retaliation, plaintiff must prove that (1) he

39a

Appendix B

engaged in statutorily protected activity, (2) he suffered

a materially adverse action, and (3) a causal connection

exists between the two. See Butler v. Ala. Dep't of Trans.,

536 F.3d 1209, 1212-13 (11th Cir. 2008). Protected

activity can take one of two forms: (1) opposing unlawful

discrimination (the opposition clause), or (2) making a

charge, testifying, assisting, or participating in any

manner in an investigation, proceeding, or hearing

regarding discrimination (the participation clause).

Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1350 (11th

Cir. 1999). If a plaintiff establishes a prima facie case of

retaliation, the burden shifts to the employer to

articulate a legitimate, non-discriminatory reason for the

adverse action. Goldsmith v. Bagby Elevator Co., Inc.,

513 F.3d 1261, 1277 (11th Cir. 2008). If the employer

meets its burden, then the plaintiff must show that the

employer’s proffered reason is mere pretext for

retaliation. /d.

In her R&R, the Magistrate Judge determined that

plaintiff was unable to prove that defendants’ proffered

reasons for his termination were a pretext for unlawful

retaliation. The Magistrate Judge stated that plaintiff’s

claim that defendant offered two separate rationales for

the termination was inaccurate and that defendants’

proffered reason for the termination was, in fact,

consistent with Murdock’s initial explanation at the time

of his request to the HR Department.

Plaintiff objects that he engaged in protected

activity on March 31, 2005, when he complained to

Murdock and Cantrell during his mid-point review that

40a

Appendix B

they were discriminating against him by treating him

differently than his Director peers, refusing him

resources and then complaining about projects’

incompleteness, and holding him to a higher standard

of performance than his WCI peers. Plaintiff argues that

within one week of his complaint, Murdock asked

Dr. Andre Rogatko to withdraw plaintiff’s appointment

as Co-Director of the Data Management component of

the Based/Data Management Core. Additionally, plaintiff

claims that on the following day Cantrell and Murdock

requested to the EHC-HR that plaintiff’s position be

eliminated. Plaintiff claims that the temporal proximity

between plaintiff’s complaint and Murdock and

Cantrell’s subsequent actions establishes a causal

connection between the two.

Plaintiff seeks to establish that the stated reasons

for plaintiff’s termination were pretextual by showing

that the supposed budgetary deficits in the Woodruff

Fund from which plaintiff drew his salary never existed.

Even though plaintiff establishes that the Woodruff

Fund was running a surplus in net revenue at the time

plaintiff was fired, plaintiff fails to establish pretext.

because tke fact that the Woodruff Fund was running a

budget surplus in no way undermines the stated reasons

for plaintiff’s termination, i.e., that the “Genesys SI

project [was] complete and in production support mode;

and ... [fJurther Genesys SI expansion across EHC

ha[d] not been funded.” (Murdock Depo. Ex. 42.)

Neither of defendants’ proffered reasons at the time of

plaintiff’s termination was dependent upon a finding

4la

Appendix B

that the Woodruff Fund was running a budget deficit.

Even though defendants subsequently referenced the

fact that “budget deficits were enormous” as one of four

reasons supporting Murdock’s decision to terminate

plaintiff (Mem. of Law in Supp. of Def.’s Mot. for Summ.

J., p. 16), defendants’ post hoc explanation for the

termination is secondary to the stated reasons provided

at the time of the termination. Further, WCI was running

a substantial deficit at the time of plaintiff’s termination,

forcing defendants to make tough budgeting decisions.

(Murdock Depo. Ex. 54.)

Because plaintiff cannot prove that defendant’s

termination decision was a pretext for unlawful

retaliation, this Court adopts the Magistrate Juage’s

recommendation to grant summary judgment on

plaintiff’s retaliatory termination claim.

(4) Wage Discrimination

Plaintiff’s fourth claim alleges that plaintiff was

subject to wage discrimination on account of his race.

Employers are prohibited from discriminating against

their employees with regara to wages because of their

race under Title VII and § 1981(a). 42 U.S.C. § 2000e-

2(a)(1); 42 U.S.C. § 1981(a).

A prima facie case of wage discrimination may be

established either through direct evidence of

discriminatory intent or through circumstantial

evidence capable of supporting an inference of

intentional discrimination. Carter v. Three Springs

42a

Appendix B

Residential Treatment, 132 F.3d 635, 641 (11th Cir.

1998). To establish a prima facie case using

circumstantial evidence, plaintiff must produce evidence

that (1) he belongs to a protected class; (2) he received

low wages; (3) similarly situated comparators outside

his protected class received higher compensation; and

(4) he was qualified to receive the higher wage. Cooper

v. 8. Co., 390 F.3d 695, 734-35 (11th Cir. 2004).

The Magistrate Judge’s R&R found that plaintiff

was not similarly situated to his chosen comparators,

Michael Graiser and Cynthia Hubbard, because plaintiff

was earning $125,652.80 at the time of his termination

while Graiser was earning $73,300 and Hubbard was

earning $101,863.92. The R&R found that plaintiff’s

attempt to compare the raises received by these

employees would not satisfy the prima facie requirement

of “similarly situated comparators outside the protected

class [who] received higher compensation.” Cooper, 390

F.3d at 735 (emphasis added).

Plaintiff objects that the Magistrate Judge

incorrectly applied the law in determining that pay

increases could not serve as a basis for a wage

discrimination claim. Plaintiff argues that the Supreme

Court has read Title VII to mean that “the phrase

terms, conditions or privileges of employment .. .

evidences a congressional intent to strike at the entire

spectrum of disparate treatment of men and women in

employment.” Nat. R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 116 (2002) ((quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1998)). Plaintiff adds that race

43a

Appendix B

discrimination in pay-increases have been analyzed

under the McDonnell Douglas framework in the

Eleventh Circuit in Gillis v. Ga. Dep’t of Corrs., 411 U.S.

792, 802 (1973).

In Gillis, the Eleventh Circuit noted that Title VII

specifically mentions compensz.-.on, making it “unlawful

for an employer to discriminate against an individual

with respect to her compensation on the basis of her

race.” Gillis, 400 F.3d at 887. Accordingly, the Eleventh

Circuit concluded that “an evaluation that directly

disentitles an employee to 4 raise of any significance is

an adverse employment action under Title VII.”

Id. at 887. Of the three cases cited by the Magistrate

Judge in the R&R, only one is an Eleventh Circuit

opinion. The Eleventin Circuit’s discussion of wage

discrimination claims in Cooper does not appear to

preclude a claim of wage discrimination based upon

disparities in raises. Thus, the Court disagrees with the

R&R’s determination that disparate pay increases

cannot satisfy the prima facie requirement of a wage

discrimination claim in the Eleventh Circuit.

Nonetheless, plaintiff still fails to make a prima facie

case of wage discrimination because he fails to show that

his comparators are “similarly situated.” Plaintiff alleges

that in 2005, Hubbard had received an annualized pay

increase of 13% while Graiser received an annualized

salary increase of 45%. Conversely, plaintiff consistently

received annual cost of living increases of 3% to 4%.

Despite this disparity, the fact that plaintiff, Graiser, and

Hubbard each had different job titles, different job

44a

Appendix B

responsibilities, and different base salaries precludes a

finding that they were “similarly situated.”

See MacPherson v. Univ. of Montevallo, 922 F.2d 766,

775 n.16 (11th Cir. 1991) (“In a comparator analysis, the

plaintiff is matched with a person or persons who have

very similar job-related characteristics and who are in

a similar situation to determine if the plaintiff has been

treated differently than others who are similar to him.”).

Accordingly, because plaintiff fails to make out a prima

facie case, the Court adopts the Magistrate Judge’s

recommendation to grant summary judgment on this

claim.

(5) Failure to Promote

Plaintiff’s fifth claim alleges that defendants failed

to promote him in violation of Title VII and § 1981. To

establish a prima facie case for failure to promote, a

plaintiff must demonstrate (1) membership in a

protected class; (2) he was qualified for and applied for

a position that the employer was seeking to fill;

(3) despite qualifications, he was rejected; and (4) the

position was filled with an individual outside the

protected class. Jd. at 768.

In his complaint, plaintiff alleges that he was

discriminated against when he was passed over for the

position of CIO at Emory University. Plaintiff claims he

was qualified for the CIO position because of his

experience as a change agent in information technology

in complex organizational environments and his

substantial responsibilities in his role as Director of

Oncology Informatics.

45a

Appendix B

In the R&R, the Magistrate Judge determined that

plaintiff did not present evidence establishing that he

met the job requirements but rather relied upon his own

assertion that he “was qualified to be considered for

the CIO position.” (Pl.’s Br. of Law in Opp’n of Def.’s

Mot. for Summ. J., p. 44.).

The Court agrees with the R&R that plaintiff could

not establish that he met the qualifications for the CIO

position. One of the stated criteria for the CIO position

was “[a] track record that clearly supports both the

capability and flexibility for operating effectively in a

dynamic environment where the CIO must lead, as well

as manage, change.” (P1.’s Depo., Def.’s Ex. 23, p. 11.)

Martha Hauser, an executive search recruiter

conducting the CIO search for Emory University, stated

that “being the director of oncology informatics is not

at a level, does not have the kind of management

responsibility for people or a budget that would even

minimally qualify [plaintiff] to compete with the

candidates that they were actually looking at.” (Hauser

Depo. p. 114.) At the time this determination was made,

Hauser was not even aware of plaintiff’s race.

(Jd. p. 125.) Therefore, because plaintiff could not

establish that “he was qualified for .. . a position that

the employer was seeking to fill,” Vessels v. Atlanta

Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005), the

Court adopts the R&R’s recommendation to grant

summary judgment on this claim.

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Appendix B

(6) Negligent Retention

Plaintiff’s final claim alleges that defendants EHC

and Emory University negligently retained plaintiff’s

supervisors, Cantrell, Murdock, and Palmich, even after

plaintiff had notified them of his supervisors’

discriminatory behavior. In Georgia, employers are

required to “exercise ordinary care in the selection of

employees and not to retain them after knowledge of

incompetency.” 0.C.G.A. § 34-7-20. A claim of negligent

retention requires the plaintiff to show that the

employer knew or should have known of the employee’s

propensity to engage in the conduct that caused the

plaintiff’s injury. Herron v. Morton, 155 Fed. Appx. 423,

425-26 (11th Cir. 2005). A claim of negligent retention is

derivative of the underlying claim. Therefore, if the

underlying claim fails, the negligent retention claim

must also be dismissed. MARTA v. Mosley, 280 Ga. App.

486, 489 (Ga. Ct. App. 2006).

Because the Court finds that ail of plaintiff’s

underlying claims fail to survive summary judgment,

plaintiff’s negligent retention claim is also without merit.

Thus, the Court adopts the Magistrate Judge’s

recommendation to grant summary judgment on this

claim.

Summary

For the aforementioned reasons, the Court

ADOPTS the Magistrate Judge’s R & R [#81],

GRANTS defendants’ motion for summary judgment on

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Appendix B

all claims asserted by plaintiff [#62], and DISMISSES

plaintiff’s complaint.

IT IS SO ORDERED, this 16" day of December,

2008.

s/ Marvin H. Shoob

Marvin H. Shoob, Senior Judge

United States District Court

Northern District of Georgia

48a

APPENDIX C — FINAL REPORT AND

RECOMMENDATION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF GEORGIA ATLANTA

DIVISION FILED NOVEMBER 10, 2008

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

CIVIL ACTION

No. 1:06-CV-1699-MHS-GGB

LEROY HILL, JR.,

Plaintiff,

EMORY UNIVERSITY; EMORY HEALTHCARE,

INC., d/b/a Emory Winship Cancer Institute;

DEDRA F. CANTRELL, a/k/a Dedra Frutchey; and

SANDRA MURDOCK,

Defendants.

FINAL REPORT AND RECOMMENDATION

AND ORDER

Plaintiff Leroy Hill, Jr. brings this employment

discrimination action against his former employer and

two of its employees. Plaintiff accuses Defendants of race

discrimination, racial harassment, and retaliation in

49a

Appendix C

violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seg. (“Title VII”), and 42 U.S.C.

§ 1981 (“§ 1981”). He also brings a state law claim of

negligent retention.

This action is presently before the Court on

Defendants’ Motion for Summary Judgment (Doc. 62),

Defendants’ Objection and Motion to Strike (Doc. 73),

and Plaintiff’s Motions for Leave to File Sur-Reply

(Docs. 74, 75).

I. PLAINTIFF’S CLAIMS

The nature and extent of Plaintiff’s claims are not

entirely clear from his Complaint. As a consequence,

Defendants appear to have interpreted the Complaint

slightly differently from Plaintiff. In light of Plaintiff’s

arguments in response to Defendants’ Motion for

Summary Judgment, I construe Plaintiff’s Complaint

as containing the following claims: (1) racial harassment;

(2) termination from employment based on race and

(3) in retaliation for complaints about discrimination;

(4) wage discrimination; and (5) negligent retention

under Georgia law.' Unlike Defendants, I interpret

Plaintiff’s reliance on a myriad of relatively minor

actions taken by Defendants during Plaintiff’s

employment as evidence in support of his harassment

1. Plaintiff's Complaint also contained claims for negligent

hiring and intentional infliction of emotional distress. Plaintiff,

however, has since abandoned these claims. (See Doc. 65 [PI.

Dep.] at 241-42).

50a

Appendix C

claim and/or his remaining discrimination claims, not as

separate claims based on each of the alleged actions.

II. FACTS

A. Plaintiff is Hired

In February 1998, Plaintiff, who is African American,

was hired by Emory Healthcare (“EHC”) as the Director

of Data Services and Decisions Support in EHC’s

information services (“IS”) department. (P!. Dep. at 16;

Doc. 69-5 [Pl. Decl.) at 1 3). Plaintiff reported directly

to the Executive Director of Applications Services,

Dedra Frutchey Cantrell, who in turn reported to Ron

Palmich, the Chief Information Officer (“CIO”). (Pl. Dep.

at 16). Cantrell and Palmich are both Caucasian.

(Pl. Decl. at 13). EHC employed several others at the

director level in the IS department, including Katherine

Casey, Rick Aaron, Tim McCrary, Kathy Beck, Jack

Morford, and Malcolm Barnes. (Doc. 70-7 [Barnes Dep. |]

at 19-20). All of these individuals are Caucasian.

(Id. at 20).

As Director of Data Services, Plaintiff led a team of

about fifteen employees consisting of application

developers, database administrators, data

administrators, and business analysts. (Pl. Decl. at 9 5;

P|. Dep. at 26-27). Plaintiff and others felt that the Data

Services section was understaffed considering the large

number of projects for which they were responsible.

(See Doc. 70-3 [Douglas Dep.] at 43). The Data Services

workgroup serviced customers across Emory Hospital,

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Appendix C

Crawford Long Hospital, the Emory Clinic, and Wesley

Woods. (Pl. Dep. at 18). The workgroup also managed

Data Warehouse, Bone Marrow Transplant, Infection

Control and Transplant Services applications; provided

database support for Cerner Clinical Data Repository,

Peoplesoft and Medical Records; conducted strategic

planning; and developed and managed budgets

approaching $1 million dollars. (Doc. 1 [Compl.] & Doc.

2 [Ans.] at 7 18; Pl. Dep. at 19). Data warehousing is a

technology that places information in a common

database through which users can analyze data. (PI.

Dep. at 19-20, 23). Shortly after Plaintiff’s hire, Cantrell

and Palmich asked Plaintiff to review an on-going

Transactional Systems, Inc.’s (“TSI”) managed care

financial application project that was at the time

assigned to the Clinical Application workgroup under

the leadership of Catherine Casey. (Pl. Decl. at 1 7; Pi.

Dep. at 259-61). Palmich and Cantrell informed Plaintiff

that Casey did not have the skills needed to successfully

implement the TSI project. (Pl. Decl. at 1 8). After

Plaintiff delivered his recommendations for project

improvement and more efficient execution, he was asked

to take over the project from Casey but was not

provided any additional resources. (/d.). In Plaintiff's

estimation, effective implementation of the TSI project

required between six and eight full-time employees

(“FTEs”). (/d.). Nonetheless, Plaintiff successfully

implemented the TSI application, within budget and on

schedule, with the staff he had available. (Compl. & Ans.

at 7 19).

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Appendix C

B. Plaintiffs Performance Evaluations

Plaintiff received his first performance evaluation

on August 10, 1998, approximately six months after his

employment began. The evaluation included high

praises from his departmental peers, who contributed

to the evaluation. (Doc. 70-13 [Cantrell Dep.] at 394 [Ex.

11 to Cantrell Dep.]). Cantrell commented that Plaintiff

“interacts well with his staff, his peers, his management

and his clients. It has indeed been my pleasure to bring

Leroy on board and to work with him on a daily basis!”

(Id. at 395).

On April 5, 1999, Plaintiff received his first annual

performance review and was rated very highly by

Cantrell in every review category. Cantrell commented:

Leroy brought a wealth of knowledge to the

data services workgroup. He takes the time

to teach and mentor his staff. He works well

[with] Directors and our clients. He maintains

a positive attitude [and] is always professional

in his approach. He worked diligently to meet

his 6 mo[nth] goals [and] objectives. He did a

great job [with] budget planning for next year.

It is indeed my pleasure to have Leroy on

staff.

(April 5, 1999 Performance Review, Plaintiff’s Ex. 3 to

Pl. Dep.). That same year, Plaintiff received an award

from his employer for Best Return on Investment.

(Compl. & Ans. 1 19). Plaintiff also received positive

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Appendix C

performance evaluations in 2000 and 2001. (Doc. 70-13

at 410 [Ex. 13 to Cantrell Dep.] and 414 [Ex. 14 to

Cantrell Dep.]).

C. Complaints about Plaintiff's Management

Skills

In February 2000, Palmich asked Cantrell to assist

him in conducting what he called a “Pulse Check” in the

IS department. (Doc 62-3 [Cantrell Decl.] at 17). During

the Pulse Check, several employees under Plaintiff’s

supervision complained to Cantrell about Plaintiff’s

leadership skills. (/d.). They also reported that Plaintiff

did not listen or respond to concerns they raised, that

he failed to take action to solve problems, that he failed

to set priorities, that he would force-fit tools or models

that the staff found confusing and frustrating, that he

did not fairly distribute work among the staff, and that

he lacked vision and strategy. (/d.). Around the same

time, a member of Plaintiff’s workgroup, Bruce Douglas,

requested a transfer out of the IS department. (Jd.) Two

other members of Plaintiff’s team — Nancy Carter and

Nina Gangadharan - reported that they were

considering leaving the IS department because of

Plaintiff. (/d.).

On January 25, 2000, Douglas informed Plaintiff that

he wanted to transfer out of the IS department so that

he could be closer to healthcare operations and because

of the lack of new technical challenges in his current

position. (Pl. Decl. at 19 18-14; Douglas Dep. at 54).

Douglas also complained that his workgroup was not

54a

Appendix C

staffed with enough or sufficiently skilled people to

complete the required work. (P]. Dep. at 76; Pl. Decl. at

1 138).

On January 26, Palmich and Cantrell met with

Plaintiff and Douglas to discuss the reasons for

Douglas’s transfer request. (Pl. Decl. at 1 14). Douglas

repeated the comments he had made to Plaintiff about

his desire to transfer and concern about insufficient staff.

(d.). Cantrell and Palmich instructed Plaintiff to include

in his fiscal year 2001 budget request a request for two

additional FTEs. (Cantrell Dep. at 113-14). Plaintiff did

make the budget request, but he received no additional

FTEs. (Jd.).

After the Pulse Check, Cantrell met separately with

Douglas and asked if he was dissatisfied with Plaintiff’s

leadership skills. (Cantrell Decl. at 1 8). Douglas

confirmed that he was and also commented that working

for Plaintiff was like being in the movie “Groundhog

Day,” where every day is an exact repetition of the day

before and nothing is accomplished. (/d.; Cantrell Dep.

at 149; Douglas Dep. at 37, 57, 58, 61). Douglas also

reported to Cantrell that he believed that most of the

Data Services group shared his opinion of Plaintiff and

that he would not return to the group as long as Plaintiff

was the manager. (Cantrell Decl. at 18; Cantrell Dep. at

149; Douglas Dep. at 37, 57, 58, 61, 62, 68, 69).

Around March 1, 2000, Cantrell and Palmich met

with Plaintiff regarding the performance problems that

were mentioned by his employees during the Pulse

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Appendix C

Check. (Summary of 3/1/00 Meeting Re: Work

Performance Issues, Defendants’ Ex. 5 to Pl. Dep.;

Cantrell Dep. at 184-85). After the meeting, Cantrell and

Palmich issued Plaintiff a written counseling regarding

the performance problems. Summary of 3/1/00 Meeting

Re: Work Performance Issues, Defendants’ Ex. 5 to PI.

Dep.; Cantrell Dep. at 185). The memorandum warned

Plaintiff that “these are serious leadership performance

deficiencies and if not corrected immediately could result

in termination.” (Summary of 3/1/00 Meeting Re: Work

Performance Issues, Defendants’ Ex. 5 to Pl. Dep.).

After Plaintiff received the written counseling, he

worked with Cantrell to develop a written action plan

to address the performance issues. (Action Plan,

Defendants’ Ex. 6 to Pl. Dep.; Re.: Updated Action Plan,

Defendants’ Ex. 7 to Pl. Dep.).

During the process of developing the written action

plan, Plaintiff and Cantrell consulted with EHC’s Human

Resources (“HR”) department. (P1l. Dep. at 126; Cantrell

Dep. at 163-64). The HR department recommended that

Plaintiff’s group participate in a dialogue facilitated by

Emory’s faculty and staff assistance program,

“‘Wellhouse.” (Cantrell Dep. at 163-64; Doc. 62-5 [Gomes

Dec}.] at 11 2-3). Wellhouse offered a program that

encouraged employees to air frustrations and assess

interpersonal dynamics. (Gomes Decl. at 1 3). In March

and April 2000, Plaintiff’s group participated in the

program. (Pl. Dep. at 180-133; Pl. Decl. at 1 17). Other

EHC employees had complained about their managers

or transferred out of other work groups, but their

managers had not been required to participate in the

Wellhouse program. (Cantrell Dep. at 162).

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Appendix C

D. Plaintiff's Complaints About Discrimination

On March 22, 2000, Plaintiff complained to Larry

Hodges, HR Director for EHC, that the discipline he

received from Cantrell and Palmich was unfair and

differed from that received by other managers. (PI. Decl.

at 1 18). Plaintiff also complained to Emory’s Equal

Opportunity Program Administrator, Bob Etheridge,

about the discipline. (Jd. at 119). After these complaints,

Plaintiff and Cantrell agreed to move forward with a

“clean slate.” (Cantrell Dep. at 254-55).

On October 17, 2000, Plaintiff complained to Dana

Bible, an HR employee for EHC, that African American

job applicants were interviewed by a greater number

of employees than Caucasian applicants. (Jd. at 327-28).

Plaintiff also complained that he was subjected to race

discrimination, specifically in being required to

participate in the Wellhouse program. (Doc. 70-13 at 496

[Ex. 38 to Cantrell Dep.]). Following this complaint,

Hodges investigated Plaintiff’s allegation regarding the

number of interviews for job applicants and determined

that no race-based disparity existed. (Doc. 62-4 [Hodges

Decl.] at 1 5). Hodges conducted a follow-up meeting

with Plaintiff in which he explained the results of his

investigation. (/d.).

E. Plaintiff’s Job Title Changes

Effective July 31, 2000, the HR department and

Palmich changed the job titles of several directors who

were direct reports of Cantrell to more accurately reflect

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Appendix C

their roles in the department. (Jd. at 80-81). The

“directors” were reclassified as “managers.” (/d.).

Plaintiff was one of the directors affected by this change

in job title; his title changed from “Director of Data

Services and Decision Support” to “Manager of Data

Applications.” (Emory Hospitals Human Resources

Request for Change/Action, Defendants’ Ex. 20 to PI.

Dep.). This change in job title did not affect Plaintiff’s

job duties or salary. (Jd. at 159).

FE. Plaintiff Becomes a Director for WC]

In March 2001, Cantrell and Palmich asked Plaintiff

to apply for the position of Director of Oncology

Informatics at the Emory Winship Cancer Institute

(“WCI”). (Pl. Dep. at 163). Plaintiff applied for and was

given the position, which provided him with a 10% pay

increase. (Jd. at 163-64). Plaintiff’s primary role in his

new position was project manager for a high-profile

informatics project known as GeneSys SI (“GSI”).

(Jd. at 48; Murdock Decl. at 1 2). GSI was a system that

combined information from multiple sources to allow

users to compare data in an effort to determine the

causes of a particular type of cancer, the best methods

of treatment, and the most effective means of prevention.

(Pl. Dep. at 56-57). Plaintiff also had several other job

duties not related to GSI, including providing input on

technology solutions for grant requests. (/d. at 51).

Administratively, Plaintiff remained an EHC

employee. (Cantrell Dep. at 296). His salary was

“charged back” to WCI, meaning that WCI paid

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Appendix C

Plaintiff’s salary while he remained an employee of

EHC. (/d.). As a result, Plaintiff was jointly supervised

by Defendants Cantrell and Sandra Murdock, WCI’s

Chief Operating Officer. (P]. Dep. at 46-47),

Plaintiff was not informed prior to his acceptance of

the position that he would remain an EHC employee

and his salary would be charged back. (Pl. Dep. at 167).

In May 2001, Plaintiff confronted Cantrell and Palmich

about allegations made by Patina Sidner, an African

American WCI project management staff member, that

Plaintiff’s promotion was a ploy to “get rid of Plaintiff.”

(Pl. Decl. at 1 32). Cantrell and Palmich denied the

allegation. (Jd.).

Following his new assignment, Plaintiff’s office was

relocated to the second floor of the EHC building.

(Id. at 1 29). Plaintiff requested office space from WCI

but was told that no space was available at that time.

(Id. at 11 46-47). In July 2003, WCI Building C opened,

and Plaintiff’s peers moved into private offices in that

building. (Jd. at 1 48). Plaintiff again requested office

space from WCI, but his request was denied. (/d.).

In October 2003, Plaintiff learned of plans to return

his office to the fourth floor of the EHC building.

(Id. at 1 49). Unhappy with this plan, he complained

about his office space situation to the Chief Executive

Officer of EHC. (Jd. at 1 53). The next day, he received

office space in WCI Building B. (/d.).

Despite the number of assignments given to

Plaintiff, he was the only WCI director who had no direct

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Appendix C

reports or staff. (P]. Decl. at 155). Plaintiff sought new

FTEs on two occasions in June 2004, but both proposals

were rejected. (Jd. at 171 55-56). In December 2001,

Plaintiff received permission to hire an employee for the

position of Business Analyst ITI. (Pl. Decl. 134). Plaintiff

conducted the hiring process and made an offer to an

African American applicant. (Jd. at 11 35, 37). Cantrell

and Murdock rescinded the offer made by Plaintiff and

ultimately hired a Caucasian applicant, Cindy Hubbard.

(Id. at 19 38, 41).

In November 2002, Plaintiff requested funding to

attend a conference related to the GSI project.

(Jd. at 1 45). Murdock rejected Plaintiff’s request, and

Plaintiff paid his own way to the conference. (/d.).

Around the same time, Murdock informed Plaintiff that

she approved Hubbard’s request for funding to attend

a work-related conference in California. (/d.).

G. Salaries

During the 2004 fiscal year, Plaintiff received a

salary of $119,018. (Doc. 70-12 [Simons Dep.] at 64).

Plaintiff’s annual salary as of his termination on May 9,

2005 was $125,652.80. (Doc. 70-16 [Murdock Dep.] at

257). Beginning in June 2004, Hubbard received an

annual salary of $92,393.64. (Doc. 70-10 [Hubbard Dep.]

at 117-18). In December 2004, Hubbard’s salary

increased to $97,013.32. (/d. at 118). Hubbard was

promoted to Director of Information Technology

Operations in March 2005, and her salary increased to

$101,863.92. (/d. at 120).

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Appendix C

Michael Graiser (“Graiser”) is a Caucasian who was

employed by WCI to understand the needs of physicians

and utilize the existing systems within WCI to provide

solutions to their needs. (Doc. 70-9 [Graiser Dep.] at 17;

Pl. Dep. at 197). Graiser received a salary of $61,800

from September 2004 to March 2005. (Graiser Dep. at

100, 104). In March 2005, Graiser’s salary increased to

$75,600. (Id. at 104).

H. Plaintiff Applies for CIO Position

In 2005, Emory University sought candidates for a

position with the title “Vice President for Information

Technology/Chief Information Officer” (“CIO”). (Doc.

70-14 [Hauser Dep.] at 18-19). It retained an executive

search firm to seek qualified candidates for the position.

individual with (1) previous CIO experience, preferably

at another academic institution; (2) previous

management experience at an organization with a

similar budget and number of employees; and (3) a

relevant graduate degree. (Jd. at 56, 61, 114, 117). The

search firm received expressions of interest from around

150 individuals. (Jd. at 83). The search firm evaluated

the candidates and presented the most qualified ones

to an internal search committee with final

decisionmaking authority. (Jd. at 84-85).

On March 22, 2005, Plaintiff applied for the CIO

position. (/d. at 103). A recruiter employed by the

executive search firm evaluated Plaintiff’s background

and determined that he lacked the minimum

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Appendix C

qualifications for the position. (/d. at 113-14). At the time,

the recruiter did not know Plaintiff’s race. (/d. at 125).

The recruiter informed Plaintiff that his application was

rejected. (Jd. at 118, Ex. 13). She did not submit his

name to the search committee. (Doc. 70-14 at 186

[Ex. 15 to Hauser Dep.|).

I. Plaintiff's Termination

In 2004, GSI moved from its original developmental

phase into a maintenance phase, which required less

oversight by Plaintiff. (Doc. 62-6 [Murdock Decl.] at 4

5). Also, GSI began to suffer from budget problems as

its spending far exceeded its revenue. (/d. at 17). Due

to the budget problems, funding for GSI - including

Plaintiff’s salary — was thereafter provided by the

Woodruff Fund, Inc., a charitable foundation account.

(Id.; Simons Dep. at 64).

Plaintiff met with Cantrell and Murdock on March

31, 2005 for a mid-year evaluation. (Pl. Dep. at 215).

During the meeting, Plaintiff told Cantrell and Murdock

that “they were discriminating and treating [him]

differently from [his] Director peers ... by refusing [him]

resources and then complaining about projects [sic]

incompleteness.” (Pl. Decl. at 11 62).

Shortly thereafter, Murdock planned the fiscal year

2006 budget, in which she implemented various budget

cuts. (Murdock Decl. at 1 9). During this process, she

considered eliminating Plaintiff’s position. (/d.). She

then discussed the elimination of Plaintiff’s position with

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Appendix C

Cantrell. (Jd.). Murdock and Cantrell agreed to

terminate Plaintiff’s employment and, on April 6, 2005,

formally requested the personnel action from the HR

department. (Doc. 70-16 at 65 [Ex. 42 to Murdock’s

Dep.]). The HR department approved the personnel

action request on May 4, 2005. (/d. at 11 10). Murdock

and Cantrell then scheduled a termination meeting with

Plaintiff for May 9, 2005 at 4:30 p.m. and prepared a

termination letter to give to him at the meeting. (/d.).

On May 9, at around 1 p.m., Plaintiff complained of

discrimination to an employee with the Emory Equal

Opportunity Programs office. (Pl. Decl. at 1 67;

Doc. 70-8 [Hopewell Dep.] at 58-59). Upon returning to

his office, Plaintiff telephoned Murdock to inform her

of his complaint. (Pl. Decl. at 167). At 4:30 p.m., Murdock

and Cantrell met with Plaintiff to inform him of the

decision to eliminate his position. (/d.). They encouraged

Plaintiff to apply for any of the open positions within

Emory. (Cantrell Decl. at 1 17; Murdock Decl. at 1 10).

Plaintiff, however, never applied for an open position at

any Emory entity following his termination. (P]. Dep. at

232).

Plaintiff filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”)

on July 20, 2005, alleging race discrimination and

retaliation. (Notice of Charge of Discrimination,

Defendants’ Ex. 8 to Pl. Dep.). The EEOC issued

Plaintiff a notice of right to sue on March 31, 2006.

(Dismissal and Notice of Rights, Defendants’ Ex. 29 to

Pl. Dep.). This lawsuit followed.

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Appendix C

Ill. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when no genuine

issues of material fact are present and the moving party

is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c). Resolving all doubts in favor of the nonmoving

party, the court must determine “whether a fair-minded

jury could return a verdict for the plaintiff on the

evidence presented.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986). “The evidence of the non-

movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Anderson, 477 U.S. at

255. “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge... .”

Id.

IV. DISCUSSION

A. Racial Harassment

Title VII and § 1981 prohibit racial harassment that

is sufficiently severe and pervasive to alter the terms

and conditions of employment and alter the victim’s

working environment. Meritor Savings Bank v. Vinson,

477 U.S. 57, 67 (1986); see Jackson v. Motel 6

Multipurpose, 130 F.3d 999, 1008 n.17 (11th Cir. 1997)

(reading § 1981, as amended by the Civil Rights Act of

1991, to encompass claims for racially hostile work

environment). To establish a claim of racial harassment,

Plaintiff must show that (1) he belongs to a protected

group; (2) he has suffered unwelcome harassment;

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Appendix C

(3) the harassment was based on his protected

characteristic; (4) the harassment was severe or

pervasive; and (5) a basis for holding the employer liable

exists. See Hulsey v. Pride Rests., 367 F.3d 1238, 1244

(11th Cir. 2004) (discussing sexual harassment).?

Here, Defendants argue that Plaintiff cannot show

that he was harassed because of his race as he admits

that he was not subjected to racial slurs or comments.

(Doc. 62-2 at 41-43). In response, Plaintiff does not

explicitly address Defendants’ argument regarding the

absence of racial slurs. In reply, Defendants contend

that Plaintiff has abandoned his racial harassment claim.

(Doc. 71 at 26). Although Plaintiff can be faulted for

failing to address Defendants’ argument directly, he

plainly has not abandoned his racial harassment claim.

Indeed, a portion of his brief is devoted to this claim.

(See Doc. 69-2 at 46-47). Cf Bute v. Schuller Int'l Inc.,

998 F. Supp. 1473, 1477 (N.D. Ga. 1998) (finding

Americans with Disabilities Act retaliation claim

abandoned where plaintiff failed to respond to

defendant’s argument that claim was barred due to

plaintiff’s failure to pursue administrative remedies,

and where plaintiff otherwise failed to address the

claim).

At best, Defendants could argue that Plaintiff’s

failure to address their specific argument requires

2. The standards applicable to racial harassment are the

same as those used for sexual harassment. Nat'l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 116 n.10 (2002).

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acceptance of that argument as unopposed. However,

because the argument is not supported by any authority

(see Doc. 62-2 at 43) and is plainly incorrect, I decline to

rely on it to find in Defendants’ favor. A racial

harassment claim may be based on conduct that is not

explicitly of a racial nature. See Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“The critical

issue, Title VII’s text indicates, is whether members of

one [race] are exposed to disadvantageous terms or

conditions of employment to which members of [another

race] are not exposed.”). Plaintiff is merely required to

show that the mistreatment was directed at him becawse

of his race. Jd. at 81.

In an attempt to show that he was harassed because

of his race, Plaintiff points to a myriad of facially-neutral

actions taken by Defendants. (See Doc. 69-2 at 34-37,

46-47). These actions are listed below.

1. Pulse Check, Written Counseling, and

Wellhouse

Defendants’ Pulse Check revealed employee

complaints about Plaintiff’s leadership skills. (Cantrell

Decl. at 1 7). In addition, concerns about Plaintiff’s

leadership led one of his employees to transfer. (Jd. at

1 8). As a result of these concerns, Plaintiff received a

written counseling that warned of possible termination.

(Summary of 3/1/00 Meeting Re: Work Performance

Issues, Defendants’ Ex. 5 to Pl. Dep.). In addition,

Plaintiff’s group was referred to the Wellhouse program

for a facilitated dialogue involving, in part, Plaintiff’s

management. (Pl. Dep. at 130-133).

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2. Demotion in Job Title

Pursuant to EHC’s reclassification of job titles to

more accurately reflect employees’ roles, Plaintiff’s job

title was changed from a director to a manager. (Cantrell

Dep. at 80-81). This reclassification also affected

Caucasians whose titles were similarly changed from

director to manager. (/d.). The reclassification did not

affect Plaintiff’s job duties or salary. (Pl. Dep. at 159).

3. Office Accommodations

Upon his promotion to Director of Oncology

Informatics of WCI, Plaintiff was denied office space in

a WCI building until he complained to the Chief

Executive Officer of EHC. (Pl. Decl. at 11 53).

4. Support Staff

Throughout the course of his employment, Plaintiff

was denied adequate support staff. For example, in 2000

he was instructed to request two additional FTEs, but

his request was ultimately rejected during the budget

process. (Cantrell Dep. at 113-14). During his assignment

to WCI, Plaintiff was the only director with no direct

reports or staff. (Compl. and Ans. at 1 46; Pl. Decl.

at 7 155).

5. Hiring Decision

Plaintiff obtained authorization to hire a new

employee for WCI, but the offer he made to an African

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Appendix C

American candidate was rescinded and the position was

ultimately filled by a Caucasian. (Pl. Decl. at 11 34-35,

37-38, 41).

6. BRIITE Conference

Murdock rejected Plaintiff’s request for funding to

attend a work-related conference but told him that she

approved funding for a Caucasian employee to attend a

work-related conference. (Jd. at 7 61).

Plaintiff’s complaints concern normal workplace

decisions, which “strike at the very heart of an

employer’s business judgment and expertise because

they challenge an employer’s ability to allocate its assets

in response to shifting and competing market

priorities.” Davis v. Town of Lake Park, Fla., 245 F.3d

1232, 1243 (11th Cir. 2001). “We do not suggest that a

change in work assignments can never by itself give rise

to a Title VII claim. ... In the vast majority of instances,

however, we think an employee alleging a loss of prestige

on account of a change in work assignments, without

any tangible harm, will be outside the protection afforded

by Congress in Title VII’s anti-discrimination

clause... .” Davis at 1245; Cotton v. Cracker Barrel Old

Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006)

(finding that a reprimand and refusal to allow the plaintiff

to sit on a stool while working as a cashier was not

sufficiently adverse to constitute actionable retaliation).

Plaintiff has not met his burden of showing that he

suffered severe or pervasive harassment because of his

race. I therefore recommend that Defendants’ Motion

for Summary Judgment on this claim be GRANTED.

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Appendix C

B. Termination Based on Race

Title VII and § 1981 prohibit an employer from

discriminating against an employee because of that

employee’s race.’ 42 U.S.C. §2000e-2(a)(1); 42 U.S.C. §

1981(a). Where, as here, the plaintiff attempts to

establish a case of individual disparate treatment based

on circumstantial evidence, the burden shifting

approach of McDonnell Douglas Corp. v. Green, 411 US.

792, 802-804 (1973), applies. Plaintiff bears the initial

burden of establishing a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. 792, 802-

804; Combs v. Plantation Patterns, 106 F.3d 1519, 1527-

28 (11th Cir. 1997).

Once a prima facie case is established, a legal

presumption of unlawful discrimination arises and the

burden of production shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for the

challenged employment action. McDonnell Douglas,

411 U.S. at 802-04. If the employer does so, the

presumption is eliminated, and the plaintiff must be

given an opportunity to prove by a preponderance of

the evidence that the legitimate reason offered by the

defendant is a pretext for discrimination. Jd. At all times,

the plaintiff retains the ultimate burden of persuading

3. In the employment context, the same substantive

analysis applies to claims brought under § 1981 as to claims

brought under Title VII of the Civil Rights Act of 1964. Turner

v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir. 1994);

Crawford v. Western Elec. Co., 745 F.2d 1378, 1376 (11th Cir.

1984).

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Appendix C

the finder of fact that the defendant acted with

discriminatory intent. Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1

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