Copeland v. CVS Pharmacy, Inc.

Full title: CARL COPELAND, Plaintiff, v. CVS PHARMACY, INC., Defendant

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: Jul 28, 2006

Civil Action File No.: 1:03-CV-3854-JOF (N.D. Ga. Jul. 28, 2006)

Opinion

Civil Action File No.: 1:03-CV-3854-JOF.

July 28, 2006

ORDER FOR SERVICE OF REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SUSAN COLE, Magistrate Judge

Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Civil Rule 72.1. Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties.

Each party may file written objections, if any, to the attached Report and Recommendation within ten (10) days after being served with a copy of it. 28 U.S.C. § 636(b)(1). Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appeal of factual findings will be limited to a review for plain error or manifest injustice. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).

The Clerk is DIRECTED to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

SO ORDERED

FINAL REPORT AND RECOMMENDATION

Before the court is Defendant's Motion for Summary Judgment [Doc. 129]. For the reasons discussed below, it is RECOMMENDED that Defendant's motion be GRANTED.

I. Procedural History

Plaintiff Carl Copeland ("Plaintiff"), an African-American male, filed this employment discrimination Complaint [Doc. 1] on December 11, 2003. Plaintiff was formerly employed by Defendant CVS Pharmacy, Inc. ("Defendant" or "CVS") as a store manager at Store 4530, and he was terminated in February 2002. (Complaint, as amended, ¶¶ 6, 7, 35). Plaintiff alleges that Defendant discriminated against him on the basis of his race and retaliated against him for opposing discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1981. Specifically, Plaintiff alleges that he was deprived of promotional opportunities due to a discriminatory scheme whereby Defendant, inter alia, did not announce job openings for positions above store manager; assigned African-American managers "to ethnic and high crime neighborhoods where the shrink rates were higher and thus the compensation was lower"; and maintained a "deliberate policy of secretly selecting its mid and upper management [which] was designed and executed so as to deprive CVS's Black employees of career advancement beyond the store manager level." ("Introduction" to Complaint, as amended; see also Complaint, as amended, ¶¶ 63, 64).

Plaintiff also alleges that he was terminated because of his race and in retaliation for opposing the discriminatory treatment of African-American employees, including assistant store manager Felicia Dugger. (Complaint, as amended, ¶¶ 65-66). In addition, Plaintiff alleges that Defendant created a hostile work environment for African-American employees, as evidenced by:

Sears' [the District Manager's] routine mistreatment of his Black employees, CVS's established practices of assigning Black managers and assistant managers to high crime low volume stores, and CVS's long standing policy and practice of not posting jobs or soliciting applications for any positions above the level of store manager and never filling those positions with anyone who was Black. . . .

(Complaint, as amended, ¶ 67). In his original Complaint, Plaintiff purported to bring this action "on behalf of himself and all other similarly situated persons." (Complaint, p. 1). Plaintiff seeks injunctive relief "to restrain defendant from the application of its continuing discriminatory practices," compensatory and punitive damages, attorneys fees and costs, and "all such other relief as the Court deems appropriate and just." (Complaint, as amended, pp. 1-2).

Defendant filed its answer [Doc. 5] on May 24, 2004. On August 31, 2004, Plaintiff filed an Amended Complaint [Doc. 29] in order to remove assertions that the action was brought on behalf of "similarly situated persons" and "to clarify that this case had not been filed as a class action." (Amended joint preliminary report and discovery plan, Doc. 28, p. 8). Counsel for both parties appeared before the district court on September 2, 2004 to discuss their preliminary report and discovery plan and to discuss generally the progress of discovery in the case. [See Doc. 31]. The parties' request that the case be placed on an 8-month discovery track was granted. [See id.]. The district court advised counsel for the parties that they could not conduct class-wide discovery because this is not a class action. [See id.]. Discovery proceeded, several extensions of the discovery period were granted, and discovery ended January 30, 2006. [Doc. 116].

On February 22, 2006, Defendant filed a motion for summary judgment [Doc. 129] and a notice of objection to Plaintiff's expert report [Doc. 130], in which it objected to the report of Plaintiff's expert, Dr. Steven Crunk. On April 3, 2006, Plaintiff filed a response in opposition to Defendant's motion for summary judgment [Doc. 156] which included several supporting exhibits. [Docs. 157-61]. Plaintiff also filed a response to Defendant's objection to Dr. Crunk's report. [Doc. 155]. On April 17, 2006, Defendant filed a reply in support of its objection to Dr. Crunk's report. [Doc. 171].

On May 1, 2006, Defendant filed objections to the declarations of Angel Garcia, Warren Glenn Johnson and Carl Copeland which Plaintiff had filed in support of his response to Defendant's motion for summary judgment [Docs. 175-77]. Defendant also filed an objection to the declaration and supplemental analysis of Dr. Crunk which Plaintiff had filed in support of his response to Defendant's motion for summary judgment. [Doc. 178]. In addition, Defendant filed a reply in support of its motion for summary judgment [Doc. 179], a response to Plaintiff's statement of material facts in dispute [Doc. 180], and a reply to Plaintiff's response to Defendant's statement of material facts not in dispute [Doc. 181]. On May 12, 2006, Plaintiff filed a response to Defendant's objections to the Garcia, Johnson, Copeland and Crunk declarations. [Docs. 182-85]. On June 2, 2006, Defendant filed replies in support of its objections to those declarations. [Docs. 188-91].

II. Defendant's Evidentiary Objections

A. Objections to Dr. Crunk's October 31, 2005 Report [Doc. 130] and March 20, 2006 Declaration [Doc. 178]

On October 31, 2005, Plaintiff filed the report of expert Dr. Steven M. Crunk, Ph.D. (hereinafter "Crunk report") [see Doc. 113], who performed the following statistical analyses: 1) rates of termination of store managers by race (Table 1); 2) rates of termination of store managers "for cause" by race (Table 2); 3) rates of termination of store managers for "gross violations" by race (Table 3); 4) rates of store managers choosing to leave CVS by race (Table 4); 5) rates of demotion of store managers by race (Table 5); 6) placement of store managers by race in areas with "minority" populations (Figure 1); 7) rates of promotion from store manager to positions above store manager by race (Table 6); 8) racial make-up of store managers compared to those above the level of store manager (Tables 7 and 8); and 9) unused vacation time of store managers and training store managers by race (Tables 9 and 10). Dr. Crunk's "Summary and Principal Conclusions" were that, in comparison to white store managers, black store managers are:

• terminated for cause at a substantially higher rate, and the difference is statistically significant;

• demoted at a substantially higher rate, and the difference is statistically significant;

• placed in communities having substantially higher proportions of minorities, and the difference is statistically significant;

• paid about the same during the time they are employed in a given position;

• promoted to higher positions at a substantially lower rate compared to white employees.¹

1 Dr. Crunk did not state that this difference was statistically significant.

(Crunk report, p. 4). Crunk also opined that black employees are "significantly less likely to hold positions above the level of Store Manager than are their White counterparts," and that in 1999, 2000, and 2001, black store managers "have substantially greater percents of unused, forfeited vacation time than Whites," though that difference was not statistically significant in one of the three years. (Id.).

In its objections [Doc. 130], Defendant points out several flaws in Dr. Crunk's methodologies, which are discussed in greater detail in the analysis of Plaintiff's claims, infra.

In response, Plaintiff filed the Declaration of Steven M. Crunk (hereinafter, "Crunk Decl.") signed on March 20, 2006, in which Crunk addresses some of Defendant's objections. He also attaches as Exhibit 4 to his declaration two tables which "treat data on differences in employment outcomes between Black and White store managers who were employed during the period December 1, 1999 through February 29, 2004." (Crunk Decl., ¶ 17). Crunk explains at length what each table indicates, and summarizes his conclusions with respect to the analyses he sets forth in these tables. For example, with respect to Table 1, Crunk states:

[A] review of the values shows that — with the sole exception of the odds of "Choosing to leave" — there are large differences between the employment outcomes of Black and White store managers in the direction of unfavorable outcomes for Blacks. Further, although this is true in both periods, it is more pronounced in the first period, pre EEOC filing, providing further evidence of possible changes in CVS' methods after the EEOC filing. If we examined the odds of this outcome under an assumption that CVS' employment process was indifferent to race, they would be small to infinitesimal. The sizes of these differentials are the starting point in a statistical investigation. If the differences had no practical importance, then the investigation would stop right there. In fact the differences are clearly of large practical impact on the employment prospects of Blacks.

(Id.).

With respect to Table 2, attached to his declaration, Crunk states that the table:

takes up an entirely different inquiry in statistics. That inquiry asks whether — given the sample sizes and other features of the data — the evidence is strong enough to rule out an hypothesis that, notwithstanding the large observed differences, these differences might be the result of chance — so that the underlying employment process is in fact indifferent to the race of the store managers. In both Tables, the results are that among five of the first six outcomes which include the more serious of the possible differentials, in only one instance is the difference not statistically significant at the 5 percent level, the level used by me in making the tests. In several instances the differences are significant at a more stringent level of proof, the 1 percent level.

For the outcome of unused vacation time, the results show that in each of the 3 years for which data was provided by CVS for this outcome, Blacks ended up the year with substantially more unused time. Half of these differences are statistically significant at the 5 percent level.

With only one exception the differences are substantially smaller than the differences in the first period up to the EEOC filing. This result is consistent with a change in CVS' employment practices towards less unfavorable outcomes for Blacks.

(Id.).

Defendant objects to Dr. Crunk's declaration, and Tables 1 and 2 attached thereto as Exhibit 4 [Doc. 178], because the opinions set forth in the declaration and the analyses contained in Exhibit 4 were not included in Dr. Crunk's October 31, 2005 report. Defendant cites Fed.R.Civ.P 26(a)(2), pursuant to which an expert's report "shall contain [, inter alia,] a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions. . . ."

In response [Doc. 183], Plaintiff contends that Crunk's declaration and analyses are being provided to rebut Defendant's challenge to the adequacy of Crunk's analysis in his October 31, 2005 report. He denies that there are "conclusions of analytical results in his affidavit that were not previously stated in his original report," and asserts that "[n]o new data was analyzed." (Id. at 2). Plaintiff also asserts that Dr. Crunk's declaration testimony simply "offer[s] an explanation of his analysis and a rebuttal of Defendant's objections." (Id. at 3).

The undersigned will consider and discuss Dr. Crunk's October 31, 2005 report, including his analyses and conclusions, as well as Defendant's objections in the discussion of Plaintiff's claims. As for Defendant's objections to Dr. Crunk's March 20, 2006 declaration and attached analyses (Exhibit 4 to Crunk Decl.), the undersigned finds that Exhibit 4 to Crunk's declaration constitutes an expert report containing new analyses, and that the opinions expressed in the declaration which concern the analyses in Exhibit 4 should have been provided in Crunk's expert report filed on October 31, 2005.² Because the analyses set out in Exhibit 4 to Crunk's declaration, and Dr. Crunk's opinions concerning those analyses, were filed well after the deadline for filing an expert report, Defendant's objections to Exhibit 4 of Crunk's declaration and to those portions of the declaration which set forth opinions based on the analyses contained in Exhibit 4 are SUSTAINED as those analyses and opinions are untimely.³

2 The undersigned notes that the court allowed Plaintiff to disclose his expert well after the deadline for doing so and enlarged the discovery period so that Plaintiff could disclose his expert and provide the expert report required by Rule 26(a)(2), and discovery concerning his expert could be conducted. (See Doc. 102). The extended deadline for Plaintiff to make his expert disclosures was October 31, 2005 (see id.).

3 Even if Crunk's second report is considered by the court, the undersigned finds that the evidence contained therein is insufficient to create a genuine issue of material fact with respect to whether Plaintiff was subjected to an adverse employment action because of his race, as discussed below.

B. Objections to Declarations of Garcia, Johnson and Copeland [Docs. 175-77]

Defendant contends that these declarations, or at least significant portions thereof, should not be considered by the court because of inconsistencies between the testimony set forth in the declarations and testimony provided in depositions, and because the declarations contain hearsay and self-serving, conclusory allegations, lacking a basis in personal knowledge. The court will address these objections in its discussion of the evidence offered by Plaintiff in support of his response to Defendant's motion for summary judgment.

III. Background Facts

A. Standards for Determining Facts for Summary Judgment

The "facts," for summary judgment purposes only, are derived from Defendant's Statement of Material Facts [Doc. 129] (hereinafter referred to as "Def. SMF"), Plaintiff's Response to Defendant's Statement of Material Facts Not in Dispute [Doc. 156]; Plaintiff's Statement of Disputed Material Facts as to Which Genuine Issues Exist to be Tried [id.] (hereinafter referred to as "Pl. SMF"); Defendant's Response to Plaintiff's Statement of Disputed Material Facts [Doc. 180]; Defendant's Reply to Plaintiff's Response to Defendant's Statement of Material Facts [Doc. 181], and the uncontroverted record evidence, including exhibits and depositions filed by the parties.

The court has reviewed the materials cited to by the parties to determine if issues of material fact exist to be tried. However, "it is not the Court's duty to comb the record to attempt to find reasons to deny a motion for summary judgment." BFI Waste Sys. v. DeKalb Co., 303 F.Supp.2d 1335, 1342 (N.D. Ga. 2004) (citation omitted); see also Tomasini v. Mt. Sinai Med. Ctr. of Fla., Inc., 315 F.Supp.2d 1252, 1260 n. 11 (S.D. Fla. 2004) (court is not obligated to "scour the record" to determine whether triable issues of fact exist). The undersigned has construed the facts in the light most favorable to Plaintiff as the non-movant. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001).

B. The Facts Relevant to the Undersigned's Consideration of Defendant's Motion for Summary Judgment

1. The Parties

Plaintiff is a former store manager for CVS in Atlanta, Georgia. (Def. SMF, ¶ 1). Plaintiff began his employment as a store manager with Revco, CVS's predecessor Company, in 1995. (Def. SMF, ¶ 2). CVS acquired Revco in 1997. (Def. SMF, ¶ 1). While working for Revco, Plaintiff was assigned to Store 4530, located in Decatur, Georgia. (Def. SMF, ¶ 4). Plaintiff remained in Store 4530 until his termination in February 2002. (Def. SMF, ¶ 5).

CVS is a drug store chain with over 5,400 retail stores nationwide. (Def. SMF, ¶ 7). During Plaintiff's employment with CVS, CVS's Southeast Region was called "Area 4." (Def. SMF, ¶ 9; Pl. resp. to Def. SMF, ¶ 9). Area 4 was comprised of five Regions: Region 25 (Eastern Georgia); Region 27 (Western Georgia); Region 28 (Alabama); Region 36 (Tennessee); and Region 51 (Florida). (Def. SMF, ¶ 10). Juan Mora was the Area 4 vice president ("VP") from 2001 to December 2002. (Def. SMF, ¶ 16). As Area VP, Mora's job responsibilities included complete oversight of the entire Area. (Def. SMF, ¶ 17). Mora reported to Larry Merlo, executive vice president of stores. (Def. SMF, ¶ 18). John Roberts was the Area 4 vice president prior to Mora, and Bobby Tamplin was the Area 4 vice president after Mora. (Def. SMF, ¶¶ 19, 20).

Plaintiff's store, Store 4530, was located in Region 25. (Def. SMF, ¶ 13). Region 25 consists of approximately 144 stores. (Def. SMF, ¶ 14; Pl. resp. to Def. SMF, ¶ 14). The regional manager of Region 25 was (and is) Russ Dossey. (Def. SMF, ¶ 21). Dossey has been the Region 25 regional manager since 1997. (Def. SMF, ¶ 22). As regional manager, Dossey was responsible for all operations and bottom line profits and losses of Region 25. (Def. SMF, ¶ 23; Pl. resp. to Def. SMF, ¶ 23). His job duties included supervision, development, hiring and firing of district managers and pharmacy supervisors, realigning districts, protecting market share, overseeing all Region 25 stores and employees, analyzing real estate with respect to relocations and new stores, communicating with the corporate office, and networking with the Area vice president. (Def. SMF, ¶ 24; Pl. resp. to Def. SMF, ¶ 24). Dossey reported to the Area vice president. (Def. SMF, ¶ 25; Pl. resp. to Def. SMF, ¶ 25).

Prior to September 2001, Plaintiff's district manager ("DM") was William Burkett. (Def. SMF, ¶ 29). In September 2001, Kent Sears was promoted to DM of District 03, the district in which Plaintiff's store was located. (Def. SMF, ¶ 26). Sears graduated from the University of Georgia ("UGA") Pharmacy Professional School in 1978 and is a licensed pharmacist. (Def. SMF, ¶ 33). Immediately after graduating from UGA, Sears joined Revco. (Def. SMF, ¶ 34). In 1981, Sears was promoted to a combination store manager/pharmacist position. (Deposition of Kent Sears, hereinafter, "Sears depo.," pp. 30, 117). As a store manager/pharmacist, Sears closed stores, conducted inventories, took part in acquisitions, and trained pharmacists. (Sears depo., p. 118).⁴ In 1998, Sears was promoted to pharmacy supervisor. (Def. SMF, ¶ 37).

4 In the late 1980's, Revco began using separate front store managers, and Sears went back to being a pharmacist. (Sears depo., pp. 117-18).

As of January 2002, there were 19 stores in Sears's district, including Plaintiff's store. (Def. SMF, ¶ 15). As a DM, Sears was responsible for all operations of his district. (Def. SMF, ¶ 30; Pl. resp. to Def. SMF, ¶ 30). Sears's job duties included hiring, firing and making transfer decisions concerning store managers, assistant store managers and pharmacists, tracking the inventory and sales levels of the stores in his district, and ensuring that the stores in his district were prepared for and underwent inventories in accordance with Company policy and procedure. (Def. SMF, ¶ 31; Pl. resp. to Def. SMF, ¶ 31).⁵ Sears reported to Dossey. (Def. SMF, ¶ 32).

5 In response to Def. SMF, ¶ 31, Plaintiff disputed that Sears "had complete autonomy in terms of hiring, firing, demoting, transferring, or scheduling inventories," and cited Dossey's deposition testimony at p. 58. That citation does not support Plaintiff's assertion, however.

2. Succession Planning

Defendant employed a "succession planning" system as a method to rate store managers in a number of performance areas, and then to "force rank" the store managers in each district in order to determine the top, middle and bottom performing managers. (Deposition of Russ Dossey, hereinafter, "Dossey depo.," pp. 75-76; Sears depo., pp. 162-63; Deposition of David Valois, hereinafter, "Valois depo.," p. 110). Generally on a quarterly basis, each district manager rated and then ranked the store managers in his or her district, and then meetings were conducted between the DMs, the regional manager and human resources managers to discuss these rankings and other information, such as the financial performance of the stores, and to discuss further professional development of the managers. (Dossey depo., pp. 76-79, 81; Sears depo., p. 159; Valois depo., p. 110; Deposition of Renee Hay, hereinafter, "Hay depo.," pp. 379-80; see also Pl. Ex. 34). Such discussions might concern transferring or promoting the top performers to higher volume stores or into upper-level positions as district managers or other areas such as human resources, or they might concern improving the performance of those managers ranked in the bottom third of the rankings or taking other action with respect to those employees. (Dossey depo., pp. 80-84; Sears depo., pp. 153-54; Valois depo., p. 111).⁶

6 Plaintiff asserts that "[t]hese meetings are also used to move Black managers around to make room for White managers." (Pl. SMF, ¶ 20). Plaintiff cites as evidence in support of this assertion Plaintiff's Exhibit 40, which appears to be part of a spreadsheet listing the names and races of store managers and describing personnel action, including transfers. By itself, this exhibit does not show that black managers were moved around "to make room" for white managers, but simply that both white and black managers are transferred. Plaintiff also cites the declaration of Angel Garcia (hereinafter, "Garcia Decl.") (Pl. Ex. 14). Garcia is a former store manager at CVS. (Garcia Decl., ¶ 2). Garcia's declaration does not support the contention that these meetings were "also used to move Black managers around to make room for White managers" as Garcia does not, in his declaration, state that he participated in these meetings or discuss these meetings. Accordingly, the undersigned finds that Plaintiff has failed to point to evidence in support of Pl. SMF, ¶ 20.
Garcia does assert that he was demoted as store manager of 4530 "for no reason," and that the new manager of Store 4530, Charlene Glass, told him "that the changes were being made to accommodate John Patterson, a White manager whose position was being eliminated. . . ." (Garcia Decl., first ¶¶ 10, 11, 13). Garcia further asserts that Larry Hudson was moved out of Store 2367 in Decatur, a "higher volume store in a mixed neighborhood," and Patterson was put in that store. (Garcia Decl., first ¶ 14). Garcia concludes, "[s]o in the end Patterson, the White manager was in the location that he wanted and I was demoted." (Garcia Decl., first ¶ 14). Garcia has not demonstrated how Patterson's replacement of Hudson in Store 2367 is related to Garcia's demotion as store manager in Store 4530. His apparent speculation that the events are related, and the hearsay evidence of Glass's alleged assertion, are insufficient.
The undersigned notes that Defendant filed objections to Garcia's declaration and pointed out apparent inconsistencies with respect to some of Garcia's assertions. [Doc. 175]. For example, Defendant points out that in spite of Garcia's allegation that the decision to demote him "took [him] by complete surprise as [he] had never been written up for anything" (Garcia Decl., first ¶ 11), Garcia admitted during his subsequent deposition that he had received oral and written performance memoranda. (Deposition of Angel Garcia, hereinafter, "Garcia depo.," Def. Ex. B to Doc. 175, pp. 74-75, 86-91, 98-99, 105-06; Doc. 175, pp. 5-6). Defendant also points out that, in spite of Garcia's assertion that he "had observed the treatment of other Black managers and [he] felt at the time as [he does] now that the decision was racially motivated" (Garcia Decl., first ¶ 11; Doc. 175, pp. 4-5), in his deposition, Garcia was asked, "Do you believe that Mr. Sears demoted you because you're black," and Garcia responded, "No," that he simply believed that it was unfair because Sears did not go through the progressive disciplinary policy. (Garcia depo., p. 81). Regardless of these contradictions, Garcia's subjective belief that his demotion was racially motivated or unwarranted does not create an issue of fact on the question whether Plaintiff was subjected to discrimination based on his race.

Quarterly Succession Planning Worksheets for 2000 and 2001 for Plaintiff's district show that the store managers were rated on the following areas: communication; store presentation; people skills; customer service; organization administration; and overall performance. (Def. Ex. 31). Those worksheets provide the ratings, on a scale of 1 to 5, in each of these areas for each store manager, and a ranking of the managers relative to each other. (Id.). There are also fields for "Promote, Transfer, or Remain"; "Release, Warning or Probation"; and "Long Term Prospects (DSM, TSM, LP, HR, Other)." (Id.). In July 2000 succession planning, Plaintiff was ranked 10th out of 17 store managers in his district by his then DM William Burkett. (Id.). In succession planning in the second quarter of 2001, Plaintiff was ranked 14th out of 17 store managers in his district by his then DM William Burkett. (Id.). In the third quarter of 2001, Plaintiff was ranked 13th out of 18 store managers in his district by Burkett. (Id.). In the last quarter of 2001, Plaintiff was ranked 15th out of 18 store managers in his district by Sears. (Id.). Dossey testified that he did not consider Plaintiff for promotion because Plaintiff was never brought to his attention for promotion by Plaintiff's district managers. (Dossey depo., pp. 303-04).

3. The Proposed Transfer of Felecia Dugger

Felecia Dugger, an African-American woman, was an assistant manager in Plaintiff's store, and as of January 2002, she had been an assistant manager at that store for five years. (Def. SMF, ¶¶ 254-55). Sears testified that at that time, he believed that Dugger "seemed maybe a little stagnant," although Dugger testified that she was happy in her position, had no desire to become manager and did not want to move further away from her home. (Sears depo., pp. 185, 190; Deposition of Felicia Michelle Dugger, hereinafter, "Dugger depo.," pp. 24-25, 76-77). Sears believed that in order to be promoted, an assistant manager needed "to see different views, different management styles, different stores, different experiences." (Sears depo., p. 185). Sears decided to transfer Dugger to a store in Decatur, Georgia managed by Larry Hudson, an African-American. (Def. SMF, ¶¶ 99, 257). Hudson was Sears's best store manager and in fact had won the Paragon Award for being the best store manager. (Def. SMF, ¶ 258; Pl. resp. to Def. SMF, ¶ 258).

On January 14, 2002, Sears approached Dugger on the sales floor and told her that he had decided to transfer her. (Def. SMF, ¶ 260; Pl. resp. to Def. SMF, ¶ 260). Plaintiff joined Sears and Dugger and suggested that they continue the conversation in the back room. (Def. SMF, ¶ 261; Pl. resp. to Def. SMF, ¶ 261). Plaintiff testified that he does not "know who started it," but the conversation between Sears and Dugger "got loud." (Deposition of Carl Copeland, hereinafter, "Copeland depo.," pp. 153-54). Plaintiff testified that both Sears and Dugger were "upset." (Id. at 155). Dugger stated that she did not want to transfer because she loved her store, and it was close to where she lived. (Def. SMF, ¶ 263). Plaintiff told Sears "this is not the right time or right place to do this. . . ." (Id. at 156). Plaintiff also testified that he commented to Sears, "you wouldn't stand in front of a white lady or a white woman and treat her like you are treating this woman. She is still a woman regardless of her color, and you're treating her with — this is not the way we treat our employees." (Id.). According to Plaintiff, Sears "seemed to get more emotional and started to want to push on out the door." (Id.). Plaintiff did not make any complaints to Sears about race discrimination other than his comment to Sears about his treatment of Dugger. (Def. SMF, ¶ 269). Dugger's transfer did not occur while Plaintiff was still employed at Store 4530. (Copeland depo., p. 155).

4. The January 2002 Inventory of Plaintiff's Store

In early January 2002, Sears gave notice to Plaintiff that an inventory was scheduled in his store for January 25, 2002. (Def. SMF, ¶ 92). On inventory days, CVS would bring in an independent crew early in the morning to count all the merchandise in the store. (Def. SMF, ¶ 93). An inventory count is critical to avoid any lost product or "shrinkage." (Def. SMF, ¶ 94; Pl. resp. to Def. SMF, ¶ 94). An inventory count is also used to determine the gross profit margins of the store. (Def. SMF, ¶ 95; Pl. resp. to Def. SMF, ¶ 95). An inventory is referred to as the "super bowl" in the life of a store. (Def. SMF, ¶ 96).

Plaintiff's inventory was Sears's first inventory as a DM. (Def. SMF, ¶ 97; Pl. resp. to Def. SMF, ¶ 97). If Plaintiff's inventory did not go well, it would reflect poorly on Sears and the store. (Def. SMF, ¶ 98). Hudson had been to Plaintiff's store with Sears and had told Plaintiff and Dugger how to prepare for the inventory. (Def. SMF, ¶ 107). In addition to his responsibilities as store manager for a store in Decatur, Hudson was also the asset inventory management ("AIM") expert for his district. (Def. SMF, ¶¶ 103, 106). As the AIM expert, Hudson was expected to train and help other store managers in the district on inventories. (Def. SMF, ¶ 104). Prior to Plaintiff's inventory, Sears expressed a concern to Plaintiff that his store might not be ready for the inventory. (Def. SMF, ¶ 108). Hudson also expressed a concern that the store was not being prepared for the inventory in a timely manner. (Def. SMF, ¶ 109; Pl. resp. to Def. SMF, ¶ 109). Plaintiff testified that he assured Sears the store would be ready for the inventory. (Copeland depo., p. 128).

Another store, Store 4708, was closed in early January 2002, a decision made prior to the time Sears became DM. (Def. SMF, ¶¶ 110-11). After Store 4708 was closed, CVS made arrangements to have the merchandise in the closed store transferred to all of the other stores in Sears's district, including Plaintiff's store. (Def. SMF, ¶ 113). The merchandise from the closed store was shipped to other stores to see if it could be sold to avoid a loss. (Def. SMF, ¶ 114). The store manager was responsible for making sure the product was shipped to his or her store. (Def. SMF, ¶ 116; Pl. resp. to Def. SMF, ¶ 116). Plaintiff testified that he went to the closing store and picked up the merchandise, but that after that, prior to the inventory, 24 cases of merchandise were sent to him. (Copeland depo., p. 171).

According to Defendant's exhibits, on or about January 18, 2002, 24 boxes of merchandise were transferred from the closed store to Plaintiff's store. (Exs. 2, 9 to Copeland depo.).⁷ After Plaintiff received the transferred merchandise, he called Sears because he thought it would be "impossible" to be ready for the inventory with the recently shipped product. (Def. SMF, ¶ 121). In response, Sears told Plaintiff to do his best. (Def. SMF, ¶ 122). During the call with Plaintiff about the transferred merchandise, Sears told Plaintiff that if any of the transferred merchandise was "unsellable," he was to mark the price down to zero and destroy it pursuant to standard practice. (Def. SMF, ¶ 123). Sears did not instruct Plaintiff to deviate from the markdown procedure for any product that was sellable. (Def. SMF, ¶ 124).

7 In Plaintiff's affidavit submitted to the EEOC, he testified that that transfer occurred on the evening of January 18, 2002. (Ex. 9 to Copeland depo., p. 3). In Plaintiff's letter to Tom Ryan, Defendant's CEO, written after his termination, Plaintiff provided a chronology of events in which he wrote that the transfer of the 24 boxes of merchandise occurred at 7 p.m. on January 18, 2002. (Ex. 2 to Copeland depo.). Plaintiff testified that the chronology of events listed in his letter to Ryan was correct. (Copeland depo., pp. 67-68). Sears testified in his deposition that the transfer occurred around January 19, 2002, but he "[did not] know the exact date." (Sears depo., p. 86). Plaintiff testified in a subsequent declaration that the transferred merchandise was delivered to his store on January 19, 2002, apparently in an effort to raise a question about whether items on a markdown report that were "zeroed out" came from the closing store because they were "zeroed out" before January 19, 2002. (Copeland Decl., Pl. Ex. 11, ¶ 5). The undersigned does not find this date difference to be material to whether Sears or other decisionmakers involved in this case believed that merchandise had been improperly marked down in Plaintiff's store and lost or destroyed, as discussed below.

As DM, Sears scheduled regular, mandatory store manager meetings. (Def. SMF, ¶ 125; Pl. resp. to Def. SMF, ¶ 125). The managers are given 3-4 weeks of advance notice of the meetings, and Plaintiff was given prior notice of the mandatory managers' meeting scheduled for January 24, 2002. (Def. SMF, ¶¶ 126, 128;see also Copeland depo., p. 131). During the mandatory meeting, Sears called Plaintiff at the store and told him it was important to come to the meeting. (Def. SMF, ¶ 130). Plaintiff asked to be excused from the meeting, but Sears denied that request. (Copeland depo., p. 132). Plaintiff attended the mandatory meeting after being asked to do so by Sears. (Def. SMF, ¶ 131). He did not return to his store after the store managers' meeting was over, at approximately 4:30 p.m. (Def. SMF, ¶¶ 152, 159). Plaintiff's store did not close until 9 p.m. (Sears depo., p. 350). Sears testified that if Plaintiff had returned to the store after the meeting, and Plaintiff and Dugger had worked until midnight or 1 a.m., or had come in early in the morning, they could have prepared the store for inventory. (Id. at 350-51). Sears also testified that he has had managers "get to the store at 3 a.m. to complete their inventory." (Id. at 351). Dugger testified that the store "would have been as ready as any other store" for an inventory if Plaintiff had returned to the store and helped her get ready for the inventory. (Dugger depo., pp. 153-54).

Sears did not believe that Plaintiff's store was ready for the scheduled inventory on January 25, 2002. (Def. SMF, ¶ 132; Pl. resp. to Def. SMF, ¶ 132).⁸ Sears called his regional manager, Dossey, and outlined his concerns, including his views that:

8 In response to Def. SMF, ¶ 132, Plaintiff asserts that Sears "intentionally planned for the store not to be ready for inventory on January 25, 2002," but he offers no record support for this assertion. Plaintiff also disputes "that [the] store condition was as bad as Sears indicated." He offers no evidence to controvert Sears's opinion that the store was not ready for an inventory.

cosmetics [was] disorderly. The cigarettes weren't faced properly. The school and office section looked a mess. The toothbrushes were a mess. There was several other sections in the store. Mainly the pegged item sections. They were missing labels. There were end caps that weren't labeled. There were side wings and power wings that weren't labeled. . . .

(Sears depo., p. 59). Dossey advised Sears to call in as many managers to help, so Sears called at least three managers to assist in getting the store ready for inventory. (Sears depo., p. 61; Copeland depo., pp. 126-27; Deposition of Larry Hudson, hereinafter, "Hudson depo.," p. 27). Plaintiff admitted during his deposition that there were "aspects of the store that were not prepared," specifically the cosmetics section. (Copeland depo., pp. 123-24). Plaintiff admitted that not all of the labels of his merchandise were up and correct and matching the appropriate SKU number before 7:00 a.m. the day of the inventory. (Id. at 127). Plaintiff admits that it was crucial to getting an accurate inventory count that the labels of his merchandise be up and correct with the SKU numbers matching the labels. (Def. SMF, ¶ 142). Plaintiff also admitted that as of 7 a.m., he did not know whether the cosmetic, electrical, school, toothbrushes, hosiery and other sections were properly "faced." (Copeland depo., pp. 143-44).

The store managers who were called in to get Plaintiff's store ready for the inventory worked on the cosmetic wall. (Def. SMF, ¶ 144; Pl. resp. to Def. SMF, ¶ 144). Hudson was present with Sears during the inventory at Plaintiff's store on January 25, 2002, and he helped prepare the store for inventory. (Def. SMF, ¶ 145; Hudson depo., p. 27).⁹ Hudson testified that "the store was not in good shape. There were several areas [that were] not prepared for an AIM inventory." (Hudson depo., p. 26). Hudson testified that the managers "would be straightening up sections before the inventory crew got there to that section so that they could count it properly," and that "it was a tough inventory . . . it was tough. It was hard." (Id. at 27). Nevertheless, the crew finished the inventory that day. (Id. at 28). Hudson testified that Plaintiff told him that the store was not ready for the inventory because he was at the meeting the day before, discontinued merchandise had been shipped to him, and "he didn't have time to do all that stuff." (Id.). According to Hudson, Dugger "said that [Plaintiff] didn't come back after the meeting to help her. . . . So she did all she could, the best she could but . . . she was there by herself." (Id.).

9 Plaintiff disputes that Hudson helped prepare the store for inventory and states that "Hudson's testimony was that he was running around doing other things." (Pl. resp. to Def. SMF, ¶ 148). Plaintiff has mischaracterized Hudson's testimony. Hudson was asked if he was one of the people that was helping get the store ready, and Hudson responded, "Well, I was — yeah. I was running around doing that and other stuff, too." (Hudson depo., p. 27).

Sears issued final written warnings to Plaintiff and Dugger on January 25, 2002. (Def. Exs. 15, 16). In those warnings, Sears indicated that the store was not prepared correctly for the AIM inventory, and stated that:

The store was not faced properly. The SKU's did not match the labels. The cosmetic section along with the electrical, school, toothbrushes, hosiery and other sections were not properly faced and did not match the labels in front of the product. Sidewings and endcaps were not properly labeled. Cigarettes were not faced behind the counter. Other items in various sections of the front store were not labeled.

(Def. Exs. 15, 16). During his deposition, Hudson was asked to review the warning issued to Plaintiff on January 25th, which appears to bear his signature and that of Sears.¹⁰ Hudson stated, with respect to the condition of the store as stated in the document, that "everything in there" was "true." (Hudson depo., p. 29).

10 Hudson testified that the signature on the documents was his, although he did not remember signing them. (Hudson depo., pp. 30-31).

5. Plaintiff's Termination

CVS's markdown policy allowed for gradually marking down the price of discontinued or incompatible merchandise using a three-tier process. (Def. SMF, ¶ 164). If, after graduating through the tiers, the marked-down merchandise still had not been sold, the store manager or assistant store manager could mark the merchandise down to zero and destroy it, to avoid someone retrieving the merchandise from the trash and returning it for a refund. (Def. SMF, ¶ 166). A damaged product which is still useable may also be marked down and sold under the markdown policy; otherwise, it is marked down to zero and destroyed if it cannot be returned to the vendor. (Def. SMF, ¶ 169; Pl. resp. to Def. SMF, ¶ 169). Dugger and Plaintiff were familiar with the markdown policy. (Def. SMF, ¶ 167).

Plaintiff agreed that the decision whether to mark down merchandise and the amount of the markdown was very important because it could have a direct effect on the shrinkage of the store. (Def. SMF, ¶ 170; Pl. resp. to Def. SMF, ¶ 170). Shrinkage was a factor in measuring the performance of a store and reduction of shrinkage was one of the goals of a store manager. (Copeland depo., pp. 94-95). If merchandise was properly marked down and destroyed, it would not count toward shrinkage. (Def. SMF, ¶ 172). The store manager or assistant store manager would keep a document reflecting the markdowns in the form of a "markdown report." (Def. SMF, ¶ 173). It would be a "gross" violation of the markdown policy to mark down regular merchandise 100 percent to zero. (Def. SMF, ¶ 174; Pl. resp. to Def. SMF, ¶ 174). It would also be a "gross" violation to mark down discontinued merchandise without going through the graduated tiers to zero and destroy it. (Def. SMF, ¶ 175; Pl. resp. to Def. SMF, ¶ 175).¹¹ Plaintiff admitted that to mark down to zero and destroy regular product would be a dischargeable offense. (Def. SMF, ¶ 176; Pl. resp. to Def. SMF, ¶ 176).

11 Dossey defined a "gross" violation as one which "should lead to immediate termination or could lead to immediate termination. Typically a gross violation is an incident that is of the magnitude that it has impacted company assets. . . ." (Dossey depo., pp. 117-18).

Sears testified that he did not see any markdown merchandise on the day of the inventory,¹² and so he twice asked Charlene Glass (the person who was acting as store manager for the store that was closing), to go to Plaintiff's store to see if she could find the markdown and regular merchandise that had been transferred from the closing store to Plaintiff's store. (Sears depo., pp. 71-78).¹³ Glass testified that she never told Sears that she had been to Plaintiff's store and looked for products that had been sent there, but that she compared the markdown report with the transfer sheets and determined that product had been improperly marked down to zero. (Deposition of Charlene Glass, hereinafter, "Glass depo.," pp. 60-68).¹⁴ Hudson also testified that Glass was asked to review these reports, and that he reviewed the reports as well and also concluded that regular product had been marked down to zero. (Hudson depo., pp. 35-38).

12 Dossey testified that Sears called him and stated that he could not recall seeing the merchandise that had been transferred to Plaintiff's store, and Dossey told him to investigate. (Dossey depo., p. 60).

13 Hudson testified that it "[s]eemed like it was some markdowns in a tote, in some totes, in a couple totes in the stock room" (Hudson depo., p. 38), and Dugger testified that there was some markdown merchandise from her store on the "end caps" during the inventory, but that their store did not receive any markdown merchandise from the closing store. (Dugger depo., pp. 38, 82). Plaintiff has not pointed to evidence that Sears saw any markdown merchandise at Plaintiff's store during the inventory, or that Sears was not concerned about the merchandise that had been transferred from the closing store to Plaintiff's store, however.
Hudson also testified that on the day of the inventory, he reviewed Plaintiff's markdown report, which indicated a large amount of product that had been marked down, and that Plaintiff told Sears that he had thrown the product away. (Hudson depo., pp. 34-35). Plaintiff cites this testimony as evidence to dispute Defendant's assertion that Sears was concerned about not seeing transferred merchandise (see Def. SMF, ¶ 180 and Pl. resp. to Def. SMF ¶ 180), apparently to suggest that Sears was not really concerned about the whereabouts of the product from the closing store because he knew what happened to it. But even if, as Hudson testified, Plaintiff told Sears on the day of the inventory that marked down product had been thrown away, Plaintiff has not pointed to evidence showing that Sears was not concerned about the location of the transferred product or that Sears was not concerned that product had been marked down improperly and lost or destroyed.

14 In a declaration signed May 19, 2005, Glass testified that after she turned the transfer documents over to Sears the day before the inventory, she "never had any discussions with him about the merchandise from store #4708," and Sears "never asked [Glass] anything about hair coloring or marked down merchandise." (Glass Decl., Ex. 3 to Glass depo., ¶¶ 5, 9). Glass also testified that she "did not highlight any information on the transfer documents for store #4708 which [she] turned over to Kent Sears. . . ." (Id. at ¶ 10). During her deposition, Glass stated that paragraphs 9 and 10 of that declaration were incorrect. (Glass depo., pp. 66-67).

Sears called Dossey and reported that he believed they had a significant loss of merchandise, and that they could not find markdown merchandise or certain cosmetics that were regularly stocked in Plaintiff's store. (Sears depo., p. 90; Dossey depo., p. 62). Dossey testified that Sears told him that markdown sheets showed that merchandise was marked down to zero and they could not find the merchandise, including regular merchandise. (Dossey depo., pp. 62-63). Sears then had a conference call with Dossey, David Valois (a human resources business partner) and Jim Berry (regional loss prevention manager) sometime around January 30, 2002. (Sears depo., pp. 96-97).¹⁵ Sears testified that he was "ready to terminate [Plaintiff] because the merchandise was not in the store," but Dossey wanted to consult with the human resources and loss prevention departments first. (Id. at 97). Sears presented his evidence, and "everyone agreed on the phone call, yes, there's definite cause for termination." (Id. at 99). Dossey testified that they concluded that "there was a gross violation, there was an inability to protect company assets, there was the wrong use of the markdown policy and the product was missing. And for failure to protect company assets as a gross violation he was going to terminate [Plaintiff]." (Dossey depo., p. 64). Dossey also testified that the human resources and loss prevention departments supported the decision to terminate Plaintiff. (Id. at 68).

15 Dossey stated that Tom Stahalek, who was a loss prevention manager, also took part in that call. (Dossey depo., p. 66).

On February 5, 2002, Sears and Tom Stahalek, the district loss prevention manager, met with Plaintiff to ask him about the markdowns and to terminate him. (Def. SMF, ¶ 203). Stahalek indicated that Sears and Stahalek had reviewed the markdown reports prior to their meeting with Plaintiff. (Def. SMF, ¶ 251; Pl. resp. to Def. SMF, ¶ 251). Sears, Stahalek and Plaintiff discussed the markdowns and the merchandise that had been transferred to Plaintiff's store. (Def. SMF, ¶ 204). During that meeting, Sears and Stahalek were focused on the markdowns. (Def. SMF, ¶ 205). Plaintiff testified that in the meeting, "mostly they asked me about the markdown. . . . They didn't spend too much time about the merchandise that was transferred. They wanted to know about the merchandise that was marked down." (Copeland depo., p. 59). Plaintiff also testified that there was merchandise that was marked down to zero because "it was old merchandise, nonsellable, out of date, not on file merchandise. . . ." (Id. at 60, 62). He also recounted that he told Sears and Stahalek that after the merchandise was marked down to zero, it was destroyed. (Id. at 63). He testified that he told them that the markdowns were "taken on [Dugger's] watch," and that she had destroyed the product, although in fact he had not instructed her to do that. (Id. at 63-64). According to Sears, Plaintiff told Sears and Stahalek that he did not mark down transferred merchandise and does not know who did. (Sears depo., pp. 207, 209). Plaintiff testified that he does not know if Dugger marked down and destroyed regular or sellable product. (Copeland depo., pp. 84, 91).

Sears terminated Plaintiff during that meeting and asked for his keys. (Sears depo., p. 210). Sears and Stahalek then interviewed Dugger. (Def. SMF, ¶ 222; Pl. resp. to Def. SMF, ¶ 222; Sears depo., p. 210). During the meeting with Dugger, Sears told Dugger that Plaintiff had been terminated for improper markdowns. (Def. SMF, ¶ 223). Dugger stated that Plaintiff instructed her to mark down merchandise to zero and destroy it. (Sears depo., pp. 210-12). During the meeting with Dugger, Sears and Stahalek asked Dugger to give them a written statement, and she did so. (Def. SMF, ¶ 228; see also Def. Ex. 20). Dugger wrote:

Between the dates of 1-19/1-24 complete markdown with a total of $10,000.00 some regular stock and some disc. Some mdse came from sales floor and stockroom. I was just instructed by the store manager to make down [sic] at 100% and throw into trash can. The store manager and I throw [sic] out about $7,000.00 worth of mdse. and poured bleach, oil on it. This happen about 5 to 6 times. None of this mdse. is in the store it was put in the trash.

(Def. Ex. 20). Dugger did not know the dollar amount of the merchandise that was destroyed, she simply stated that "she threw it all out," so Sears and Stahalek provided her with the dollar amounts to include in her statement. (Sears depo., p. 212). Dugger admits that she told Sears and Stahalek on February 5, 2002 that she had marked down regular product 100 percent and marked down discontinued product and destroyed it, in violation of the markdown policy. (Def. SMF, ¶¶ 231, 232).¹⁶ Sears then transferred Dugger to Hudson's store. (Sears depo., p. 214).¹⁷

16 Plaintiff asserts that Dugger was not talking about marked down merchandise from the closing store when she answered the questions and she was not asked if the merchandise she marked down to zero had been taken through the tiers. (Pl. resp. to Def. SMF, ¶ 225). Plaintiff also asserts that Dugger's responses during the February 5, 2002 meeting "were to deliberately misleading questions from Sears." (Pl. resp. to Def. SMF, ¶ 231). Although Dugger testified that the merchandise she marked down was actually regular discontinued and clearance merchandise, she also admitted that she did not tell Sears and Stahalek that they had "already taken the tiers," and she admitted that what she told Sears and Stahalek on February 5, 2002 she had done was a gross violation. (Dugger depo., pp. 38, 41, 170). She also testified that, other than the dollar amounts, she was not coached on any other part of her statement. (Id. at 171).

17 Sears testified that he decided to transfer rather than terminate Dugger because she stated that her supervisor had instructed her to take the markdowns and destroy the merchandise. (Sears depo., p. 214).

After the meeting on February 5, 2002, Plaintiff tried to contact Renee Hay and David Valois in the human resources department. (Copeland depo., p. 197). He reached Hay, and he talked with her for more than an hour; Hay told Plaintiff that she would have Valois call him. (Id.). Hay testified that she called Valois and asked him "to tell [her] the steps that they went through to verify that the markdowns were done inappropriately or that the product was missing." (Hay depo., p. 120). She testified that Valois "did go through all the steps with me, and [she] validated in [her] mind that it was an appropriate termination for [Plaintiff]." (Id.). Valois subsequently spoke with Plaintiff and informed Copeland that he stood by the termination based on information that Valois received from Sears. (Copeland depo., p. 197). Sears and Stahalek each provided Valois with a written statement about their investigation and their interviews with Copeland and Dugger. (Def. SMF, ¶ 249; see also Def. Exs. 19, 22). Valois concluded that the evidence against Plaintiff, such as the dollar amount and the list of improperly marked down merchandise, "was pretty clear." (Def. SMF, ¶ 250; Pl. resp. to Def. SMF, ¶ 250).¹⁸ After Plaintiff was terminated, Sears replaced Plaintiff with Willie Chestnut, who is African-American. (Def. SMF, ¶ 282).¹⁹

18 Valois admitted that he is "not that familiar with the system" for tracking merchandise and SKU numbers. (Valois depo., pp. 100-01).

19 In response to Def. SMF, ¶ 282, Plaintiff "states further that store 4530 is considered an undesirable assignment because it is in a high crime area and it has never had a White manager or assistant manager." Plaintiff cites his declaration testimony (Pl. Ex. 11) and the declaration of Angel Garcia (Pl. Ex. 14). Plaintiff provides no statistical evidence about the crime rate in the area where his store is located, but makes the conclusory assertion that his store "was one of the least desirable locations in the district." (Pl. Ex. 11, ¶ 14). He also asserts in conclusory fashion that black managers "are almost exclusively assigned to high crime areas in predominantly ethnic neighborhoods where the shrink [rate] is high, the volume is low, and chances for advancement are non exist[e]nt." (Pl. Ex. 11, ¶ 17). Garcia offers the same types of conclusory assertions in his declaration. (See Pl. Ex. 14, ¶¶ 5, 13). Such assertions, with no citation to evidence to support them, are insufficient to create an issue of fact as to whether black managers are assigned to "high crime areas" with high shrink rates, low volume and "non-existent" chances for advancement.
The undersigned notes that Plaintiff has offered statistical evidence that shows that black managers are more likely to be assigned to stores in neighborhoods "having substantially higher proportions of minorities" (October 31, 2005 report of Dr. Crunk, p. 4). However, Plaintiff does not point to evidence of record that correlates the ethnicity or racial composition of the neighborhoods surrounding the stores to such factors as high crime rates and high shrink rates (other than the conclusory assertions of Plaintiff and Garcia), and the court will not assume such a connection. The undersigned notes that in response to Defendant's objections to Plaintiff's declaration [see Doc. 177], Plaintiff attached a working paper of two sociologists at the Center for Demography and Ecology at the University of Wisconsin-Madison entitled, "Black Neighbors, Higher Crime? The Role of Racial Stereotypes in Evaluations of Neighborhood Crime" [Doc. 182, Ex. A]. No proper foundation has been laid for the introduction of this working paper; there is no showing that the conclusions set forth in the paper are relevant to the geographical area relevant to this case; and the paper provides no support for Plaintiff's conclusory assertions that Defendant assigned black store managers to high crime, high shrink stores in an effort to stifle their professional advancement.

Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on August 5, 2002 in which he alleged that he was terminated because of his race and in retaliation for expressing concerns "about the racist working environment" at CVS. (Def. Ex. 36). The EEOC dismissed Plaintiff's EEOC Charge as untimely on September 22, 2003. (See Def. Ex. 37). Plaintiff filed the instant action on December 11, 2003.

IV. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." "According to the Supreme Court:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial."

Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)),cert. denied, 488 U.S. 1004 (1989). "[T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). If the party seeking summary judgment meets the initial burden of demonstrating that there is no genuine issue of material fact, the burden then shifts to the non-moving party to come forward with sufficient evidence to rebut this showing with affidavits or other relevant and admissible evidence. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991), cert. denied, 506 U.S. 952 (1992). In determining whether the moving party has demonstrated that no genuine issue of material fact exists in a case, the court views the evidence and all facts in the case in the light most favorable to the party opposing the motion. See Frederick, 246 F.3d at 1309; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987); Thrasher v. State Farm Fire Casualty Co., 734 F.2d 637 (11th Cir. 1984).

V. Discussion

A. Plaintiff's Claims

In the "Statement of Claims" section of his brief, Plaintiff alleges that:

• his white district manager terminated him for reasons that were untrue and were a pretext for discrimination and retaliation;

• Defendant's "secretive succession planning scheme" discriminates against black store managers in terms of store assignments, transfers, demotions, terminations, mentoring and promotions;

• this practice also "negatively impacts on the compensation of Black managers creating a hostile work environment for them."

(Pl. Br., pp. 1-2). In his Complaint and Amended Complaint, Plaintiff alleges that these actions were taken in violation of Title VII and § 1981. Plaintiff asserts three distinct theories in support of his claims: disparate treatment, pattern and practice and disparate impact. "The first two theories require [Plaintiff] to prove discriminatory intent; the third does not."Cooper v. Southern Co., 390 F.3d 695, 723 (11th Cir. 2004) (citing EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1273 (11th Cir. 2000)), cert. denied, ___ U.S. ___, 126 S.Ct. 478, 163 L.Ed.2d 363 (2005), overruled in part on other grounds by Ash v. Tyson Foods, Inc., ___ U.S. ___, 126 S.Ct. 1195, 1197-98, 163 L.Ed.2d 1053 (2006).²⁰ 42 U.S.C. § 1981 provides a cause of action only for claims involving intentional discrimination; therefore, the disparate impact theory is inapplicable to Plaintiff's § 1981 claims. See Cooper, 390 F.3d at 723.

20 In Ash, the Supreme Court disapproved of the court's language in Cooper that "[p]retext can be established through comparing qualifications only when `the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.'" Ash, 126 S.Ct. at 1197-98.

B. Plaintiff's Title VII and § 1981 Failure to Promote Claims

Plaintiff asserts that he was "promotable," but that Defendant denied him an opportunity for promotion. (Pl. Br., p. 28). The only specific promotions Plaintiff refers to in his summary judgment filings are the promotions of Kent Sears, Amir Labib and Ray Sledge. (Id. at 29-30). Defendant has provided evidence that Plaintiff also identified the following promotions to district manager that Plaintiff believes he was denied because of his race:

• Barnwell, promoted from store manager on October 8, 2000

• Berry, promoted from store manager on February 18, 2002

• Crane, promoted from store manager on July 30, 2000

• Devine, promoted from store manager on June 30, 2002

• Frawley, promoted from pharmacy supervisor on November 4, 2001

• Hughes, promoted from store manager on September 2, 2001

• Labib, promoted from store manager on April 8, 2001

• Passereni, promoted to district manager prior to 1999 and then transferred to another DM position on August 1, 2001

• Sears, promoted from pharmacy supervisor on September 9, 2001

• Urrutia, promoted from new store coordinator on December 16, 2001

(See Def. SMF, ¶¶ 384-87).

Defendant has also presented evidence that only four training store manager positions were filled in Region 25 during the discoverable period²¹ — Good on March 30, 2003, Roquemore on September 8, 2002, Sledge on January 6, 2002 and Hinkle on June 11, 2000. (Def. SMF, ¶ 426). In addition, Defendant has presented evidence that Plaintiff claims he was denied two regional learning center promotions — one that was given to Tucci on April 2, 2000, and another that was given to Romesburg on November 11, 2001. (Def. SMF, ¶ 432). Defendant shows that Plaintiff alleges he was denied three regional category specialist positions — those given to Harvey on January 5, 2003, Welch on July 21, 2002 and Bingham on August 6, 2000. (Def. SMF, ¶ 440). Defendant also shows that Plaintiff alleges he was denied one human resources business partner position because of race, a position filled by Stanley, who was laterally transferred to the position on February 23, 2003. (Def. SMF, ¶ 449-50).²² Defendant further shows that Plaintiff alleges he was denied three loss prevention positions because of his race — those given to Bradford on November 1, 2002, Stocus on February 23, 2003 and D'Narvarte on May 13, 2002. (Def. SMF, ¶ 452). Finally, Defendant has presented evidence that Plaintiff alleges he was denied an HR Area 4 Director position filled by Hay in 2001. (Def. SMF, ¶¶ 54, 457).²³

21 In an April 14, 2005 order, the court ruled that the discoverable period ran from December, 1999 to February, 2004. [Doc. 66].

22 Although Plaintiff apparently alleges that he was denied HRBP positions which were filled by Valois, Freeman, Ballew and Bonanno, Defendant has presented evidence that those were title changes only, not promotions. (Def. SMF, ¶¶ 459-60).

23 To the extent that this list is incomplete, the undersigned finds that Plaintiff has abandoned his claims with respect to any promotion not listed because he has failed to identify with any specificity in his summary judgment filings the positions that he claims he was denied on the basis of his race.

As an initial matter, the undersigned notes that the promotions that occurred after Plaintiff was terminated, i.e., after February 5, 2002, cannot be part of Plaintiff's claim because Plaintiff was no longer working for Defendant when those promotions occurred and he therefore was not eligible for them.

1. Timeliness of Plaintiff's Claims a. Title VII Claims

Under Title VII, a charge of discrimination must be filed within 180 days of the last alleged act of discrimination. See Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000) ("Title VII requires a plaintiff to file a charge with the EEOC no more than 180 days after `the alleged unlawful employment practice occurred'" (quoting 42 U.S.C. § 2000e-5(e)(1))). Defendant contends that Plaintiff may only challenge promotion decisions that were made within 180 days of his charge, i.e., between February 6, 2002 and August 5, 2002, the date he filed his EEOC charge. (Def. Ex. 36; Def. Br., p. 25). Defendant argues that because Plaintiff was terminated on February 5, 2002, the only promotion decisions possibly at issue occurred prior to February 6, 2002, and any claim with respect to those promotions is untimely. The undersigned agrees.

Plaintiff has failed to address this issue explicitly in response to Defendant's motion for summary judgment. Plaintiff does assert, however, that Defendant's "succession planning scheme," which "determine[d] assignments and who should be promoted and who should be terminated" is a "systemic violation," which is a "continuing one." (Pl. Br., p. 8).²⁴ Plaintiff goes on to state:

24 Plaintiff also asserts that his claims are not "simply [a] failure to promote" (Pl. Br., p. 29). However, the harm Plaintiff appears to assert he suffered as a result of Defendant's "succession scheme" was that he did not receive promotions to positions above store manager and white persons filled those positions. While Plaintiff makes general allegations about the harm visited upon black store managers in general with respect to compensation, store assignments, etc., this is not a class action, and the court must focus on the particular harm Plaintiff claims to have suffered, i.e., lack of promotion and termination.

A systemic violation has its roots in a discriminatory policy or practice; so long as the policy or practice itself continues into the limitations period, a challenger may be deemed to have filed a timely complaint." Sabree, 921 F.2d at 400 n. 7 (citing Jensen, 912 F.2d at 523). This type of claim requires no identifiable act of discrimination in the limitations period, Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994), and refers to general practices or policies, such as hiring, promotion, training and compensation. See, e.g., Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 183 (1st Cir. 1989) (alleging a discriminatory promotional system); Rich v. Martin Marietta, 522 F.2d 333, 348 (10th Cir. 1975) (entire promotional system challenged as resulting in plaintiffs' stying in lower echelons interminably); Barbara Lindemann Paul Grossman, Employment Discrimination Law 1355-59 (3d ed. 1996). Provencher v. CVS 145 F.3d 5, 14 (1st Cir. 1998); 1998 U.S. App. LEXIS 10480; 76 Fair Empl. Prac. Cas. (BNA) 1569; 73 Empl. Prac. Dec. (CCH) P45,393.

(Id. at 8-9). The undersigned notes that all of the authority and cases cited by Plaintiff pre-date 2002, when the Supreme Court decided Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

In Morgan, the Supreme Court rejected a Title VII plaintiff's attempt to link discrete acts together as one "practice" or "ongoing violation that can endure or recur over a period of time" so that he could maintain that his administrative charge was timely. Id. at 110-11. The Court stated that "[a] discrete retaliatory or discriminatory act `occurred' on the day that it `happened.'"Id. at 110. Examining the language of 42 U.S.C. § 2000e-2, the Court noted that "[t]here is simply no indication that the term `practice' converts related discrete acts into a single unlawful practice for the purposes of timely filing." Id. at 111. The Court concluded that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. Finally, the Court determined:

Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'

Id. at 114.²⁵

25 The Court reversed the holding of the lower court which had applied the "continuing violations doctrine" to "serial violations" and had held that "so long as one act falls within the charge filing period, discriminatory and retaliatory acts that are plausibly or sufficiently related to that act may also be considered for the purposes of liability." Id. at 114.

As noted, Plaintiff cannot recover on a failure to promote claim for promotions made after he was fired on February 5, 2002. The undersigned also finds that Plaintiff cannot recover for promotion decisions made prior to 180 days before he filed his EEOC charge on August 5, 2002, i.e., prior to February 6, 2002, because those promotions were discrete acts that triggered the 180-day limitations period and any claim arising from those promotions is time-barred. See, e.g., Cantrell v. Jay R. Smith Mfg. Co., 248 F.Supp.2d 1126, 1134-35 (M.D. Ala. 2003) (alleged unlawful acts of demotion including changes in job title, membership in several committees, job duties and job description; decrease in trips to job sites; exclusion from trade shows, departmental activities and the "information loop"; and relocation of plaintiff's office occurred more than 180 days before EEOC charge filed and Plaintiff's Title VII demotion claims therefore fail for lack of exhaustion and are time-barred (citing Morgan)); see also Pegram v. Honeywell, Inc., 361 F.3d 272, 280 (5th Cir. 2004) ("Under Morgan, discrete acts such as failure to train and refused admission to an MBA program, which are separately actionable, may not be pursued outside the relevant limitations period."); Buzzi v. Gomez, 62 F.Supp.2d 1344, 1352 (S.D. Fla. 1999) (allegations of "denied promotions, training and transfer" are "discrete acts").

In an apparent effort to evade the result in Morgan with respect to the acts alleged in his administrative charge, Plaintiff contends that these acts are the result of an on-going policy of subjective decision-making that results in less favorable treatment of black store managers. (See Pl. Br., pp. 9-10). As discussed above, Plaintiff brings his claims pursuant to a disparate treatment theory, a "pattern and practice" theory, and a disparate impact theory. The resolution of this case does not turn on the particular label that Plaintiff, or the court, employs, however. In Morgan, the court rejected the plaintiff's attempt to link discrete acts as one "practice" or "ongoing violation," even when those acts may be related. Morgan, 536 U.S. at 110-11, 113. The result in Morgan would be subverted if Plaintiff could avoid the administrative exhaustion requirement simply by naming his claim "disparate impact" or "pattern and practice" based on the argument that was rejected in Morgan, i.e., that discrete acts constitute a "continuing" and "systemic violation. . . ." (Pl. Br., p. 8).

The undersigned acknowledges that in Morgan, the Court stated that it was not "consider[ing] the timely filing question with respect to `pattern-or-practice' claims brought by private litigants" as such claims were not at issue. Morgan, 536 U.S. at 115 n. 9. Since Morgan, courts have considered whether evidence that discrete acts were taken pursuant to a policy could "save" otherwise untimely claims, and they have generally held that it cannot. See, e.g., Davidson v. Am. Online, Inc., 337 F.3d 1179 (10th Cir. 2003). In Davidson, the court determined that discrete acts that occurred prior to the appropriate time period for filing an administrative charge are time-barred "even if the discrete act was part of a company-wide or systemic policy. Davidson's allegation that the discrete refusals to hire were undertaken pursuant to AOL's discriminatory hiring policy does not extend the statutory limitations period." Id. at 1185-86 (citing Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003)). InCherosky, the court stated:

In this case, we consider the impact of Morgan on employment decisions that occurred outside of the limitations period, but were made pursuant to an allegedly discriminatory policy that remained in effect during the limitations period. We conclude that Morgan precludes recovery under these circumstances.

Cherosky, 330 F.3d at 1244. The court explained:

The allegation that these discrete acts were undertaken pursuant to a discriminatory policy does not extend the statutory limitations period set forth in 29 C.F.R. § 1614.105(a)(1). Rather, as we concluded in Lyons [ v. England, 307 F.3d 1092 (9th Cir. 2001)], `[plaintiff's] assertion that this series of discrete acts flows from a company-wide, or systematic, discriminatory practice will not succeed in establishing the employer's liability for acts occurring outside the limitations period because the Supreme Court has determined that each incident of discrimination constitutes a separate actionable unlawful employment practice.'

Id. at 1247 (quoting Lyons, 307 F.3d at 1107). "Thus, `[a] discriminatory practice, though it may extend over time and involve a series of related acts, remains divisible into a set of discrete acts, legal action on the basis of each of which must be brought within the statutory limitations period.'" Id. (quotingLyons, 307 F.3d at 1108). Finally, the court in Cherosky noted:

[I]t would eviscerate Morgan's premise to circumvent the timely filing requirements merely because a plaintiff alleges that the acts were taken pursuant to a discriminatory policy. As the Fifth Circuit observed, `if the mere existence of a policy is sufficient to constitute a continuing violation, it is difficult to conceive of a circumstance in which a plaintiff's claim of an unlawful employment policy could be untimely.'

Id. at 1248 (quoting Abrams v. Baylor Coll. of Med., 805 F.2d 528, 533 (5th Cir. 1986)).

In Williams v. Giant Food Inc., 370 F.3d 423 (4th Cir. 2004), the court rejected the plaintiff's argument that "the continuing violation doctrine extends the ordinary limitations periods," explaining that "[t]his argument is foreclosed" by Morgan. Id. at 429. The court also rejected the plaintiff's argument that a 20-year `pattern or practice' of discrimination extended the applicable limitations period: "We see no reason why the general rule set out in Morgan should not apply to such separate incidents just because Williams alleges, in a general sense, that there was a `pattern or practice' of discrimination." Id. at 429-30. The court stated, "The question here is whether Williams's background allegations of systemic discrimination change the nature of the discrete claims she asserts such that the Morgan rule should not apply. We answer that question in the negative." Id. at 430 n. 3.

The undersigned is persuaded by the reasoning of these courts and finds that the simple labeling of Plaintiff's claim as "disparate impact" or "pattern and practice," or the assertion that the allegedly discriminatory acts were taken pursuant to a discriminatory policy, does not save Plaintiff's untimely pre-February 6, 2002 claims of discrete acts of discrimination.²⁶ b. § 1981 Claims

26 The undersigned acknowledges that courts have not decided this issue uniformly. See e.g., Murphy v. Gen. Elec. Co., 245 F.Supp.2d 459 (N.D. N.Y. 2003), where the court relied on the "continuing violations doctrine" to consider otherwise untimely discrete acts that were alleged to have been taken pursuant to a discriminatory policy. Id. at 470-71. The court noted that Morgan stated that discrete acts "do not generally form the basis for a continuing violation," but then went on to cite pre-Morgan cases addressing the continuing violation doctrine. The continued viability of the analysis in these cases is in question givenMorgan's analysis of the timeliness of allegations of discrete acts. In fact, the Murphy court's analysis of the plaintiff's claims seems very similar to the Ninth Circuit's analysis inMorgan v. Nat'l R.R. Passenger Corp., 232 F.3d 1008, 1016-17 (9th Cir. 2000), which was rejected by the Supreme Court in Morgan. The undersigned does not find the court's reasoning in Murphy to be persuasive.

Defendant contends that, with the exception of certain promotions, Plaintiff's § 1981 promotion claims are barred by the applicable statute of limitations for any promotion occurring prior to December 11, 2001, i.e., two years before he filed the instant Complaint on December 11, 2003. (Def. Br., pp. 25-27). Plaintiff did not address this argument or discuss the statute of limitations issue in response to Defendant's motion.

§ 1981 does not contain a statute of limitations. However, inGoodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987), the Supreme Court held that federal courts should apply "the most appropriate or analogous state statute of limitations" to § 1981 claims. As this court has previously noted, the Eleventh Circuit has held that Georgia's two-year statute of limitations applies to § 1981 claims. Moore v. Wellstar Health Sys., Inc., No. 1:03-CV-3244-TWT, 2005 U.S. Dist. LEXIS 21321, *4-5 (11th Cir. Mar. 7, 2005) (citing Hill v. Metropolitan Atlanta Rapid Transit Auth., 841 F.2d 1533, 1545-46 (11th Cir. 1988)). In 1990, Congress enacted 28 U.S.C. § 1658, which provides a four-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990. In Jones v. R.R. Donnelley Sons Co., 541 U.S. 369 (2004), the Supreme Court held that the four-year statute of limitations applies only to those claims that were not already recognized pursuant to § 1981 in 1990, when § 1658 was passed. Jones, 541 U.S. at 382. The Eleventh Circuit has held that because failure to promote claims were recognized under § 1981 prior to the enactment of the four-year statute of limitations, see Patterson v. McLean Credit Union, 491 U.S. 164, 185 (1989), failure to promote claims "remain properly subject to the analogous statute of the state in which the hearing court sits." Moore, 2005 U.S. Dist. LEXIS 21321 at *4.

Accordingly, Plaintiff's § 1981 promotion claims are subject to a two-year statute of limitations, and thus any claim arising from a promotion decision made prior to December 11, 2001 is barred. Although Plaintiff does not, in response to Defendant's motion for summary judgment, set out with specificity the promotions he claims he was discriminatorily denied — with the apparent exception of the Sears, Labib and Sledge promotions (see Pl. Br., pp. 29-30) — the undersigned notes the evidence identified by Defendant of other promotions Plaintiff claims to have been discriminatorily denied, discussed above. According to this evidence, it appears that the only promotions that occurred on or after December 11, 2001 (and prior to Plaintiff's termination on February 5, 2002) were the promotions of Urrutia, an Hispanic male, from new store coordinator to district manager on December 16, 2001 (see Def. SMF, ¶ 384), and Sledge, a white male, from store manager to training store manager, on January 6, 2002. (See Def. SMF, ¶ 426). Those are the only promotions the undersigned will consider in addressing Plaintiff's promotion claims. Plaintiff's § 1981 claims with respect to any promotion that occurred prior to December 11, 2001 are barred by the applicable two-year statute of limitations.

c. Equitable Tolling

Although Plaintiff has not raised the issue of equitable tolling of the statute of limitations, the undersigned will address that doctrine out of an abundance of caution. "Although a court may equitably toll a limitations period, the plaintiff must establish that tolling is warranted." Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir.) (citing Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993)), cert. denied, 543 U.S. 1020 (2004). "The burden is on the plaintiff to show that he is entitled to the extraordinary remedy of equitable tolling." Williams v. Ga. Dep't of Def. Nat'l Guard Headquarters, 147 Fed.App'x 134, 136 (11th Cir. 2005) (unpublished decision) (citing Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir. 1993), cert. denied, 513 U.S. 814 (1994)), cert. denied, ___ U.S. ___, 126 S.Ct. 1318, 164 L.Ed.2d 57 (2006). "Equitable tolling is inappropriate when a plaintiff did not file an action promptly or failed to act with due diligence." Bost, 372 F.3d at 1242. "Equitable tolling `is an extraordinary remedy which should be extended only sparingly.'"Id. (quoting Justice, 6 F.3d at 1479).

If Plaintiff had actually addressed this issue, he might have argued that he did not know about the promotions at issue when they occurred, and that the statute of limitations should therefore be tolled. In Dorsey v. Pinnacle Automation Co., 278 F.3d 830 (8th Cir. 2002), the plaintiffs made a similar argument, i.e., "that they were not aware of a possible ADEA violation because [the employer] failed to communicate the promotions and they were not aware that they had been passed over for promotion until well within the limitations period." Id. at 835. Plaintiffs "argue[d] that they did not know of the promotions because the leadperson promotions and position openings were never posted or otherwise communicated to them and the challenged lead persons' job duties were never changed to demonstrate that they had been promoted." Id. at 836. The court noted, however, that the plaintiffs "stated in their affidavits that they heard rumors that younger people were promoted to leadperson, but still took no action." Id. The court found that if the plaintiffs "had suspicions they should have exercised due diligence, in which case they would have easily confirmed the promotions." Id. The court found, therefore, that the plaintiffs' "charges of discrimination were not subject to equitable estoppel or equitable tolling and the statute of limitations began to run as of the date of the promotions." Id.

Similarly, in this case, Plaintiff has presented evidence that "[s]oon after CVS purchased Revco [which occurred in 1997], [Plaintiff] participated in a focus group on racial concerns," and that among other things, they discussed "the lack of any career advancement opportunities for Black store managers." (Copeland Decl., Pl. Ex. 11, ¶ 12). Plaintiff also asserted in a declaration that positions "were always filled before anyone knew that the position had been vacant. The employees selected to fill those positions were almost exclusively white employees." (Copeland Decl., Pl. Ex. 12, ¶ 6). With due diligence, Plaintiff could have determined the identity and race of the persons who filled the positions he claims now that he wanted. It appears, based on his complaint that black store managers were not able to advance, that Plaintiff believed, as early as 1997, that white managers were obtaining these positions. In fact, one of the promotions Plaintiff appears to complain about is the promotion in September 2001 of Kent Sears to district manager (see Pl. Br. p. 29; Def. SMF, ¶ 26). Plaintiff clearly had notice of this event when it occurred, yet he filed no complaint or charge of discrimination within the limitations period.

Accordingly, the undersigned finds that Plaintiff has failed to meet his burden of establishing that the statute of limitations for his Title VII promotion claim should be equitably tolled. The undersigned finds further that all of these claims are barred due to Plaintiff's failure to file a charge of discrimination with the EEOC within 180 days of any of the promotions that Plaintiff did not receive. Similarly, with the exception of the Urrutia and Sledge promotions, which occurred after December 11, 2001, Plaintiff's § 1981 claims with respect to any promotion that occurred prior to December 11, 2001, are barred by the applicable two-year statute of limitations, and Plaintiff has not met his burden of showing that the statute of limitations should be equitably tolled.

Accordingly, it is RECOMMENDED that Defendant's motion for summary judgment be GRANTED with respect to Plaintiff's § 1981 failure to promote claims arising from any promotion that occurred prior to December 11, 2001 and to all of Plaintiff's Title VII failure to promote claims.

2. Intentional Discrimination

In light of the foregoing conclusions, the undersigned finds that the only promotion claims properly before the court are Plaintiff's § 1981 claims arising from the promotion of Urrutia to district manager on December 16, 2001, and the promotion of Sledge to training store manager on January 6, 2002.

a. Individual Disparate Treatment (1) Analytical Framework

A plaintiff alleging he has been subjected to disparate treatment by his employer may establish a prima facie case of discrimination in more than one way. First, he may produce credible direct evidence of discriminatory intent. Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). Direct evidence of discrimination is evidence that, if believed, would establish without inference or presumption that the employer's decision was based upon discriminatory intent. Id. If a plaintiff produces direct evidence, the burden then shifts to the defendant to prove by a preponderance of the evidence that the same employment decision would have been reached in the absence of the discriminatory intent. See Lee v. Russell County Bd. of Educ., 684 F.2d 769, 774 (11th Cir. 1982).

A plaintiff may also establish a prima facie case of race discrimination through circumstantial evidence under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981):²⁷

[A] plaintiff establishes a prima facie case of race discrimination under Title VII by showing: (1) he belongs to a racial minority; (2) he was subjected to adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job.

Holifield, 115 F.3d at 1562. See also Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1310-11 (11th Cir.), modified, 151 F.3d 1321 (11th Cir. 1998).

27 The method of proving unlawful discrimination using the burden-shifting scheme discussed above is frequently referred to as the McDonnell Douglas or McDonnell Douglas/Burdine framework or burden-shifting analysis. See, e.g., Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1315 (11th Cir. 2002); Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 510 (11th Cir. 2000). This framework is used in intentional discrimination cases brought under either Title VII or § 1981. Cooper, 390 F.3d at 724 n. 16.

If a plaintiff presents a prima facie case through circumstantial evidence, "the defendant must `articulate some legitimate, nondiscriminatory reason for the [adverse employment action].'" Bessemer, 137 F.3d at 1310 (quoting McDonnell Douglas, 411 U.S. at 802). If the defendant satisfies this rebuttal burden by producing evidence of a legitimate rationale for its decision, the plaintiff "may attempt to show that the proffered reason was merely a pretext for the defendant's acts." Bessemer, 137 F.3d at 1310 (citing Burdine, 450 U.S. at 253). In Burdine, the Court stated that after the defendant employer articulates a legitimate, non-discriminatory reason for the employment decision, the plaintiff has

the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [he] has been the victim of intentional discrimination. [He] may succeed in this 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.

Burdine, 450 U.S. at 256. The Supreme Court explained further inSt. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508-09 (1993), that the jury's disbelief of the employer's proffered explanation does not mandate a finding of intentional discrimination but rather permits the jury to make that finding. The Court elaborated:

The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. . . .

Hicks, 509 U.S. at 511 (footnote omitted) (emphasis in original).Accord Hall v. Ala. Ass'n of School Bds., 326 F.3d 1157, 1167 (11th Cir. 2003) ("[T]he mere disbelief of the employer's proffered reason does not `compel' a finding of discrimination.").

(2) Plaintiff's Prima Facie Case

Plaintiff has pointed to no direct evidence of discrimination. Therefore, the court will analyze Plaintiff's claim using theMcDonnell Douglas/Burdine framework, although it is questionable whether Plaintiff is proceeding on this framework as he did not address this framework with respect to any particular promotion.

A plaintiff may present a prima facie case of promotion discrimination by establishing the following elements:

1) he is a member of a protected class under Title VII; 2) he was qualified for the employment position in question; 3) he applied for the employment position in question and was rejected; and 4) the employment position remained open or was filled by a person outside the protected class to which the plaintiff belongs.

Walker v. Mortham, 158 F.3d 1177, 1179 n. 2 (11th Cir. 1998),cert denied, 528 U.S. 809 (1999). The undersigned will assume without deciding that Plaintiff has created an issue of fact with respect to each element of his prima facie case. However, as discussed below, the undersigned finds that Plaintiff has failed to create an issue of fact on the question whether Defendant's reasons for not promoting him were a pretext for race discrimination.

(3) Legitimate, Non-Discriminatory Reason For Employment Decision

The employer's burden to articulate a legitimate, non-discriminatory reason for its employment decisions is one of production, not persuasion. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998). This burden is "exceedingly light." Turnes v. Amsouth Bank, N.A., 36 F.3d 1057, 1060-61 (11th Cir. 1994) (citations omitted). Defendant has presented evidence that store managers are promoted to upper-level positions through a succession planning system in which managers are rated in several categories, including communication, store presentation, people skills, customer service and organization/administration, and then "force ranked" to determine the top managers who are then considered for advancement. (See Dossey depo., pp. 75-81; Sears depo., pp. 159-64; Valois depo., pp. 110-12; Hay depo., pp. 379-80; Def. Ex. 31). Defendant has presented evidence that in 2000 and 2001, Plaintiff was ranked in the bottom half of the store managers in his district by both of his district managers, William Burkett and Kent Sears. (Def. Ex. 31). Defendant has also presented evidence that Plaintiff was not considered for promotion during the relevant period because his district managers never ranked Plaintiff above 9th out of 17 store managers in 2000 or 2001 and never brought Plaintiff to the attention of the regional manager, Russ Dossey. (Dossey depo., pp. 303-04; Def. Ex. 31).

Furthermore, with respect to the promotions at issue, Defendant has presented evidence to show why each of the individuals was selected: Urrutia, who was a new store coordinator, was transferred to Region 51 to help establish the new Florida market and Urrutia had district manager experience with Eckerd prior to joining CVS, and he therefore had leadership and multi-store experience helpful to opening a new market. (Dossey Aff., Def. Ex. 3, ¶ 16; Dossey depo., p. 18). Dossey testified that in order to be promoted to training store manager, a manager must have been a phase one trainer (see also Hay Aff., Def. Ex. 5, ¶ 9), which Plaintiff was not, and must have a record of success in developing his assistant manager, while Plaintiff had had the same assistant manager for five years. (Dossey Aff., Def. Ex. 3, ¶ 8).²⁸ Dossey also testified that Sledge, who was promoted to training store manager, had been a phase one trainer, i.e., a store manager who had been designated by his or her district manager to train new hires, and had "demonstrated success developing [his] assistant managers and associates." (Dossey Aff., Def. Ex. 3, ¶ 12).

28 Plaintiff testified in a declaration that store managers are responsible for "oversee[ing]" Phase 1 and Phase 2 training of their own shift supervisors and crew members," but such training for assistant managers is done at a "Training Store." (Copeland Decl., Pl. Ex. 11, ¶ 24). Plaintiff does not indicate that he was actually designated as a phase one trainer.

The undersigned finds that Defendant has met the "exceedingly light" burden of articulating a legitimate, non-discriminatory reason for the promotional decisions at issue.

(4) Pretext

Because Defendant has articulated legitimate, non-discriminatory reasons for the decisions to promote Urrutia in December 2001 and Sledge in January 2002, Plaintiff must, in order to survive summary judgment, "come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (quotingCombs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. 1997), cert. denied, 522 U.S. 1045 (1998)). He may do this, for example, by pointing to "weaknesses, inconsistencies, incoherencies, or contradictions" in Defendant's proffered reasons. Combs, 106 F.3d at 1538.

Plaintiff asserts in general that he was "promotable" and cites his achievements in 2000 and 2001. (Pl. Br., pp. 28-29). However, Plaintiff has not controverted the fact that both of his district managers ranked him in the lower half of the rankings of store managers in their district, and that he therefore was not recommended for promotion. Nor has he addressed the specific qualifications of the successful candidates, i.e., Urrutia and Sledge, other than to assert, without citation, that "Ray Sledge is no better qualified than [Plaintiff]," and to point to the fact that Sledge received a final written warning in 2000. (Pl. Br., pp. 29-30).²⁹ "A plaintiff must show that the disparities between the successful applicant's and [his] own qualifications were `of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.'" Brooks v. County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). The undersigned finds that Plaintiff has not pointed to evidence of such a disparity, nor has he pointed to evidence that creates an issue of fact with respect to whether Defendant's articulated reasons for making the promotional decisions at issue were a pretext for unlawful discrimination.

29 On April 18, 2000, Sledge received a "Coaching and Counseling" because the back door to his store had been left unlocked at night, although nothing was stolen from the store. (Pl. Ex. 33). The document indicates that it is the "[f]inal [j]ob [w]arning on this issue only could result in termination if this occurs again." (Id.).

b. Pattern and Practice

Plaintiff also asserts that he was not promoted due to discriminatory succession planning which, in effect, prevents advancement by black store managers, through use of a system of subjective evaluation criteria and by filling positions without posting them. (Pl. Br., pp. 24-27). Plaintiff offers statistical evidence in support of this assertion.³⁰

30 Regardless of whether Plaintiff's statistical evidence is offered to support a pattern or practice theory or as evidence of disparate treatment pursuant to the McDonnell Douglas framework, "the ultimate inquiry remains whether the plaintiff has demonstrated that the defendant intentionally discriminated. . . ." Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 953 (11th Cir. 1991) (citing Grigsby v. Reynolds Metal Co., 821 F.2d 590, 595 (11th Cir. 1987)), cert. denied, 502 U.S. 1058 (1992).

In a "pattern and practice" case, "`the plaintiff must prove, normally through a combination of statistics and anecdotes, that discrimination is the company's "standard operating procedure."'"Cooper, 390 F.3d at 724 (quoting Joe's Stone Crab, 220 F.3d at 1274). "To meet this burden of proof, a plaintiff must `prove more than the mere occurrence of isolated or accidental or sporadic discriminatory acts. It has to establish by a preponderance of the evidence that . . . discrimination [is] . . . the regular rather than [the] unusual practice.'"Joe's Stone Crab, 220 F.3d at 1286-87 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)). "While `statistics as to [Defendant's] employment policy and practice may be helpful to a determination of whether [Defendant's failure to promote Plaintiff] in this case conformed to a general pattern of discrimination against blacks,' McDonnell Douglas, 411 U.S. at 805, to have probative value, statistical evidence must be tailored to the appropriate types of decisions and specific populations involved." Cooper v. Southern Co., 260 F.Supp.2d 1295, 1304 (N.D.Ga. 2003) (citing, inter alia, Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 651-55 (1989)), aff'd, Cooper, 390 F.3d 695 (11th Cir. 2004).

Plaintiff relies on evidence of Defendant's "secret" succession planning "scheme," which according to Plaintiff involves promotion through "invitation only" and use of subjective criteria, with the result that white store managers are promoted to higher level positions but black store managers are not. Plaintiff has failed to show, however, that the succession planning system itself is evidence of discrimination in making promotion decisions. The undersigned acknowledges that the ranking of store managers relies to some degree on the subjective perceptions of the district managers, that top-ranked employees are apparently "groomed" for advancement, and that positions are not posted to allow everyone who might be interested to apply. However, the use of subjective considerations and the absence of job posting do not necessarily render the system discriminatory. The Eleventh Circuit has determined that "[a] subjective reason is a legally sufficient, legitimate, nondiscriminatory reason [under theMcDonnell Douglas/Burdine analysis] if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion." Chapman, 229 F.3d at 1034; see also Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 n. 7 (11th Cir. 2001) ("Cofield also supports her pretext claim by arguing that Goldkist relied only on subjective factors in reaching a decision not to promote her. This argument lacks merit, however, in light of our recent en banc decision in Chapman."); Miller v. Bed, Bath Beyond, Inc., 185 F.Supp.2d 1253, 1270-71 (N.D. Ala. 2002).

With respect to job posting, Plaintiff cites to Joseph v. Publix Super Mkts., Inc., 151 Fed.App'x 760 (11th Cir. 2005) (unpublished decision) and Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir. 1984) for the proposition that employers are required "to post notices for vacant positions and to promulgate objective minimum qualifications for those positions." (Pl. Br., pp. 24-25). Those cases do not state that the failure of an employer to take such steps is evidence of discrimination, however. Rather, the issue in those cases was whether the plaintiff was required, in order to make out his prima facie case of discrimination, to show that he applied for a position that was not posted, and in each case the court determined that he was not. That issue is not presented in this case, because the undersigned has assumed that there is an issue of fact with respect to each element of Plaintiff's prima facie case.

Plaintiff also points to "evidence" of discrimination in the system by asserting that the managers used the succession planning meetings to assign black managers to "all the stores that are located in predominantly minority neighborhoods where the income is low and the crime rates are high," and that white managers "are never assigned to these stores and the Black managers are rarely, if ever, assigned to stores in predominantly White neighborhoods." (Pl. Br. p. 27). Plaintiff cites, as evidence in support of these assertions, the declaration of Angel Garcia, a former store manager (Pl. Ex. 14, ¶ 5), and Dr. Crunk's October 31, 2005 report and March 20, 2006 declaration, among other things. (Pl. Br., p. 27). The conclusory assertions set out in Garcia's declaration about the assignment of black managers to minority neighborhoods with high crime rates are discussed in footnote 19, supra. Plaintiff has not pointed to any competent evidence of record to support these allegations.³¹ Even Dr. Crunk's report and declaration (Def. Ex. 23; Pl. Ex. 15), set forth no analysis of the crime rates, store volume or shrink rates around and in the stores to which black store managers are assigned. Crunk simply concludes that black store managers are "placed in communities having substantially higher proportions of minorities, and the difference is statistically significant." (Crunk report, p. 4).

31 The undersigned notes that Plaintiff also testified that he had "observed [during his employment] that Black managers are almost exclusively assigned to high crime areas in predominantly ethnic neighborhoods where the shrink is high, the volume is low, and chances for advancement are non exist[e]nt." (Copeland Decl., Pl. Ex. 11). The undersigned finds that these conclusory allegations are insufficient to create an issue of fact, for the reasons discussed in the analysis of Garcia's similar testimony.

Finally, Plaintiff points to the statistical evidence provided by Dr. Crunk in his report, including his conclusion that black store managers are promoted to higher positions at a substantially lower rate compared to white employees. (Pl. Br., p. 34; see also Crunk report, p. 4). In the first place, the undersigned notes that Crunk did not state that the difference in the rates of promotions of white and black store managers was statistically significant, as he did with his other conclusions. (See Crunk report, p. 4). In his discussion of Table 6 regarding the promotion rates, Crunk stated, "The p-value is not statistically significant, but the magnitudes of the probabilities or odds are nonetheless, very different." (Crunk report, p. 11).

Moreover, the undersigned finds several deficiencies with respect to Crunk's "bottom-line" analysis of the rates of promotion of black versus white store managers (as well as Crunk's other "bottom-line" analyses contained in his report). Crunk's statistical analysis does not account for differences in qualifications, such as performance evaluations, work history, education, etc., between successful candidates and those not selected. Furthermore, his analyses do not account for different decisionmakers, especially since the analyses included data from different districts and even regions, each of which has its own district manager and regional manager, each of whom makes his or her own rankings of store managers and disciplinary, transfer and promotion recommendations. Crunk's analyses "did not incorporate variables that would allow for the comparison of individuals who were similarly situated with respect to managerial decision makers, job types, locations, departments, and the specific criteria relevant for the jobs in question." Cooper, 390 F.3d at 717.³² His analyses "did not take into account the type or level of acquired skills" of the store managers. Id. Like the deficient expert reports in Cooper, Crunk's analyses contain deficiencies that "render it `impossible to determine what the [promotions] gaps were, whether they were statistically significant, or whether factors other than race were involved.'" Cooper, 390 F.3d at 718 (quoting Cooper, 205 F.R.D. at 615). The undersigned reaches the same conclusion as that reached by the court inCooper: "basic analytical deficiencies in [Crunk's analyses and conclusions] render them insufficient to support a conclusion that intentional discrimination was [Defendant's] standard operating procedure. Even if we accept all the calculations underlying [Crunk's analyses and conclusions] as correct, the . . . conclusions are of very limited value because the data on which those calculations were based [were] not meaningfully tailored." Cooper, 390 F.3d at 726.

32 While Plaintiff may claim that he was not provided with some of this information, that does not alter the inadequacies of the analyses or lack of probative value of Crunk's conclusions.

Accordingly, the undersigned RECOMMENDS that Defendant's motion for summary judgment be GRANTED on Plaintiff's Title VII and § 1981 intentional discrimination in promotion claims, whether brought pursuant to a disparate treatment or a pattern and practice theory.³³ 3. Disparate Impact

33 Even if Plaintiff's untimely promotions claims were "saved" simply by Plaintiff's assertion of a "pattern and practice" theory, for the reasons discussed above, those claims would still fail due to Plaintiff's failure to point to evidence, including his statistical evidence, showing that discrimination was the regular, rather than the unusual, practice. See Cooper, 390 F.3d at 724.

Because the only timely promotion claims that exist in this case are Plaintiff's claims arising under § 1981, the disparate impact theory is not applicable to his promotion claims. See Cooper, 390 F.3d at 723. However, even if Plaintiff's Title VII promotion claims were deemed timely and considered under a disparate impact theory, for the reasons discussed above, the undersigned finds that Plaintiff's statistical evidence is insufficient "to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Cooper, 390 F.3d at 724 (quoting Joe's Stone Crab, 220 F.3d at 1274-75).

Accordingly, it is RECOMMENDED that Defendant's motion for summary judgment be GRANTED on Plaintiff's Title VII and § 1981 disparate impact claims of promotion discrimination.

B. Plaintiff's Title VII and § 1981 Discriminatory Discharge Claims

Plaintiff also alleges that he was terminated because of his race in violation of Title VII and § 1981.

1. Timeliness of Plaintiff's Title VII Claim

Defendant contends that Plaintiff's Title VII claim is untimely because he was terminated on February 5, 2002, but did not file his EEOC charge until August 5, 2002, after the 180-day period for filing his charge had expired, as found by the EEOC. (Def. Br., pp. 5-6). Plaintiff contends, inter alia, that he was not told on February 5, 2002 that he was terminated, and that he mistakenly believed that he was terminated on February 7, 2002. (Pl. Br., pp. 6-7). Plaintiff also asserts that the 180th day fell on a Sunday. (Id.). The undersigned assumes, without deciding, that Plaintiff's EEOC charge was timely filed with respect to his Title VII termination claim and that this claim is properly before the court.

2. Intentional Discrimination a. Disparate Treatment

Plaintiff has not pointed to any direct evidence of race discrimination. Thus the court will consider whether he has made out a circumstantial case of discrimination using the McDonnell Douglas/Burdine framework. Defendant argues that Plaintiff cannot establish a prima facie case of discrimination because Plaintiff was replaced by an African-American and because Plaintiff has not identified a similarly-situated non-African-American employee who was treated more favorably. (Def. Br., p. 8). Defendant points to Plaintiff's testimony that he was unaware of another assistant manager who had marked down and destroyed regular merchandise. (Id.). Moreover, Defendant has presented evidence that it has terminated two white store managers for not following proper markdown procedures. (Def. Br., p. 9 and n. 7; see also Def. SMF, ¶¶ 511-12). Plaintiff contends that he has presented a prima facie case of discrimination by showing evidence of pretext as to Defendant's articulated reason for terminating him, and by presenting statistical evidence concerning the termination rates of white and black store managers in Area 4. (Pl. Br., p. 8).

The undersigned will assume, without deciding, that Plaintiff has created an issue of fact on each element of his prima facie case. However, the undersigned finds that there is no triable issue with respect to whether Defendant's articulated legitimate, nondiscriminatory reason for terminating Plaintiff was a pretext for unlawful discrimination, as discussed below.

b. Legitimate, Non-Discriminatory Reason For Employment Decision

As noted, the employer's burden to articulate a legitimate, non-discriminatory reason for its employment decisions is "exceedingly light." Turnes, 36 F.3d at 1060-61. Defendant has produced evidence that Plaintiff was terminated because Dossey, and then Valois and Hay, believed that merchandise in Plaintiff's store had first been improperly marked down and then lost or destroyed, as discussed extensively in the "Background Facts" section, supra. The undersigned finds that Defendant has met the "exceedingly light" burden of articulating a legitimate, non-discriminatory reason for terminating Plaintiff.

c. Pretext

Plaintiff attempts to demonstrate pretext by denying that he engaged in or directed the alleged misconduct and by questioning the manner in which the alleged misconduct was investigated. (Pl. Br., pp. 10-11). Plaintiff's denial of misconduct is irrelevant, however, and it is not the court's duty to determine whether Plaintiff in fact engaged in the misconduct alleged. To demonstrate pretext, Plaintiff must produce evidence that raises a question about whether the decisionmakers believed that Plaintiff had engaged in the alleged misconduct. See Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (with respect to the legitimate, nondiscriminatory reason offered by the defendants for firing the plaintiff, the pretext "inquiry . . . is limited to whether [those who investigated the charges of sexual harassment against the plaintiff and made the decision to fire him] believed that Elrod was guilty of harassment, and if so, whether this belief was the reason behind Elrod's discharge" (emphasis in original)); see also Sweeney v. Ala. Alcoholic Beverage Control Bd., 117 F.Supp.2d 1266, 1273 (M.D. Ala. 2000). In Sweeney, the court explained,

Thus, to establish pretext, the employee must show more than facts establishing that he or she did not commit the work rule violation. The employee must point to evidence which raises a question as to whether the decisionmaker, in fact, knew that the violation did not occur and, despite this knowledge, fired the employee based upon the false premise of an alleged work rule violation. For example, where the employer relies on a subordinate's report that a plaintiff violated a work rule, the plaintiff must establish pretext by showing (or, at least, pointing to evidence that suggests) that the employer either did not rely on that report or that the employer did rely on the report but knew it was false.

Sweeney, 117 F.Supp.2d at 1273 (citation omitted).

Plaintiff has pointed to no evidence that Sears or Area human resources director Renee Hay and human resources business partner David Valois did not actually believe that merchandise was improperly marked down to zero and then destroyed, thereby violating Defendant's markdown policy and resulting in the loss of merchandise. It is undisputed that Sears began inquiring about the whereabouts of merchandise that had been transferred into Plaintiff's store prior to inventory, and that he began questioning whether merchandise had been properly marked down.³⁴ It is undisputed that, whether Sears asked Glass to go to Store 4530 to investigate the transferred merchandise or simply to compare markdown reports with transfer sheets, Glass reported to Sears that merchandise had been improperly marked down to zero. (Glass depo., pp. 61-68; Hudson depo., pp. 35-38). It is also undisputed that Sears told Dossey and others that he was terminating Plaintiff because he believed that merchandise had been improperly marked down to zero and lost or destroyed. (Sears depo., pp. 97, 99; Dossey depo., p. 64). It is further undisputed that when Sears and Stahalek spoke with Plaintiff, their focus was on the improper markdown of merchandise. (Def. SMF, ¶¶ 204-05; Copeland depo., pp. 59-64).

34 Plaintiff cites the testimony of Hudson that on the day of the inventory, Plaintiff told Sears that product listed on a markdown report had been thrown away (Hudson depo., pp. 34-35), in an effort to controvert the concern expressed by Sears about the location of the transferred product (see Def. SMF, ¶ 180 and Pl. resp. to Def. SMF, ¶ 180). Even if, as Hudson testified, Plaintiff told Sears on the day of the inventory that marked-down product had been thrown away, Plaintiff has not shown that Sears was not concerned about the location of the transferred product or that Sears was not concerned that product had been improperly marked down and lost or destroyed.

Furthermore, after Sears and Stahalek's meeting with Plaintiff on February 5, 2002, they spoke with Dugger, Plaintiff's assistant store manager, and it is uncontroverted that she gave them information, regardless of what she now claims she intended, that created the impression that merchandise had been marked down to zero and destroyed and that it should not have been. (Def. SMF, ¶¶ 231, 232; see also Dugger depo., pp. 170-71; Ex. A to Dugger depo.). It is uncontroverted that Plaintiff presented a challenge to his termination to Hay and Valois in human resources, that in connection with their review of his challenge, they had Dugger's statement and the statements of Sears and Stahalek, and that Hay and Valois also believed that merchandise had been improperly marked down, and that there was a loss of merchandise. (Hay depo., p. 120; Def. SMF, ¶ 249-50; Def. Exs. 19, 22). Even if Sears, Hay and Valois were all mistaken in their beliefs that merchandise had been marked down improperly and lost or destroyed, such a mistake is not evidence of pretext. "[M]erely showing that the employer was mistaken is not sufficient to show pretext. . . ." Chapman, 229 F.3d at 1055.

Furthermore, Plaintiff's denials that he directed his assistant store manager to mark down or destroy property in violation of Defendant's policy are irrelevant. Although Sears did not have the benefit of Dugger's statement that Plaintiff directed her to mark down merchandise to zero and destroy it when he decided to terminate Plaintiff, Valois and Hay did have that information, and they were free to consider Dugger's statement in connection with their decision to uphold Plaintiff's termination. Furthermore, Plaintiff has not shown that by holding Plaintiff responsible for the actions of his subordinate, whether Plaintiff directed those actions or not, Defendant's decision to terminate him was based on his race. While Plaintiff may believe that it was unfair to hold him responsible, Plaintiff must do more than question the fairness or wisdom of an employer's decision to show pretext. See Nix v. WLCY Radio/Rahall Commc'ns., 738 F.2d 1181 (11th Cir. 1984):

Title VII addresses discrimination. Title VII is not a shield against harsh treatment at the workplace. Nor does the statute require the employer to have good cause for its decisions. The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.

Id. at 1187 (citations and internal quotation marks omitted) (emphasis in original). "`[A] plaintiff employee may not establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the employer's reason' as long as `the reason is one that might motivate a reasonable employer.'"Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (quoting Combs, 106 F.3d at 1543 ("Federal courts do not sit to second-guess the business judgment of employers.")).³⁵

35 The same is true of Plaintiff's assertions about the difficulties he faced in readying his store for the January 25, 2002 inventory. (See Pl. Br. 13-14). Plaintiff has made the conclusory assertion that Sears was trying to "sabotage" him (Pl. Br., p. 14), but he has pointed to no evidence that Sears's actions were motivated by racial animus, and the court will not question the wisdom of Sears's decision to require Plaintiff to attend a meeting the day before the inventory or to accept merchandise from the closing store shortly before the inventory.

Accordingly, the undersigned finds that Plaintiff has not pointed to an issue of fact with respect to whether Sears believed that merchandise in Plaintiff's store had been improperly marked down to zero, with the resulting loss of that merchandise, when he decided to terminate Plaintiff. Furthermore, Plaintiff has not created an issue of fact with respect to whether Valois and Hay also shared that belief when they upheld the termination.

d. Comparator Evidence

Plaintiff asserts that Defendant "has specific policies and procedures for investigating violations of markdown procedure which it followed for White managers suspected of similar violations but did not follow for [Plaintiff]." (Pl. Br., p. 10). One of the documents that Plaintiff cites to is a chart that shows "Investigations of Improper Markdown Procedures" (Pl. Ex. 6), which Plaintiff asserts was submitted to the EEOC by Defendant. Plaintiff also cites to that chart to support his assertion in Pl. SMF, ¶ 73 that "Comparator employees accused of not following the proper markdown procedures were investigated by Loss Prevention before they were terminated, and it was determined in each of those cases that the person so accused had in fact done something wrong." The court notes, however, that this document does not state who investigated the alleged misconduct, whether it was loss prevention or otherwise. The undersigned also notes that the list shows that four white employees were terminated for markdown violations, and one black employee was terminated for markdown violations.

Plaintiff also asserts in Pl. SMF, ¶¶ 74, 75 that white employees who were terminated for violations of markdown procedure were terminated for "violations of company policy, while black employees were terminated for "gross violations" for the same offense and thus could not be rehired. Plaintiff cites his Exhibit 7, which lists store managers terminated for gross violations from 1999-2002. But those lists show that both white and black managers were terminated for gross violations and thus do not support Plaintiff's assertions in Pl. SMF, ¶¶ 74, 75.

Because Plaintiff has failed to show that there is a disputed issue of fact with respect to whether the legitimate, non-discriminatory reasons articulated by Defendant for terminating him were a pretext for unlawful discrimination, the undersigned RECOMMENDS that Defendant's motion for summary judgment be GRANTED on Plaintiff's Title VII and § 1981 discriminatory discharge claims under the disparate treatment theory.

e. Pattern and Practice

Plaintiff argues that the same succession planning system used by Defendant to identify candidates for promotion also identifies employees for termination. While Plaintiff has made the conclusory assertion that the succession planning system was used to target black store managers for termination because of their race, he has not pointed to evidence to support his assertion. He does offer statistics to support his contention that black store managers are terminated at a higher rate than white store managers. Plaintiff's expert, Dr. Crunk, opined that black store managers are terminated for cause at a substantially higher rate than white store managers, and the difference is statistically significant. (Crunk report, Def. Ex. 23, p. 4). The undersigned finds, that just as Plaintiff's statistical evidence was insufficient with respect to Plaintiff's promotion claims, so is Plaintiff's statistical evidence insufficient to support a conclusion that intentional discrimination was Defendant's standard operating procedure. "Statistics that merely describe these employees as minority or non-minority and disclose whether they were fired or disciplined less severely proves nothing without more information about the particular circumstances involved in each situation." Burke-Fowler v. Orange County, 447 F.3d 1319, 1325 (11th Cir. 2006) (unpublished decision) (citingCooper, 390 F.3d at 717). "Different types and degrees of misconduct may warrant different types and degrees of discipline, and a plaintiff does not show disparate impact racial discrimination or disparate treatment discrimination merely by citing statistics." Burke-Fowler, 447 F.3d at 1325 (citing Joe's Stone Crab, 220 F.3d at 1276).

Accordingly, the undersigned RECOMMENDS that Defendant's motion for summary judgment be GRANTED as to Plaintiff's Title VII and § 1981 discriminatory discharge claim under the pattern and practice theory.

3. Disparate Impact

"To state a claim under a disparate impact theory, in contrast, a plaintiff need not establish that he suffered intentional discrimination. Rather, `disparate impact theory prohibits neutral employment practices which, while non-discriminatory on their face, visit an adverse, disproportionate impact on a statutorily-protected group.'" Cooper, 390 F.3d at 724 (quotingJoe's Stone Crab, 220 F.3d at 1274). To state a prima facie case of disparate impact discrimination, a plaintiff must establish that:

(1) there is a significant statistical disparity among members of different racial groups; (2) there is a specific, facially-neutral employment policy or practice; and (3) there is a causal nexus between the specific policy or practice and the statistical disparity.

Cooper, 390 F.3d at 724 (citing Joe's Stone Crab, 220 F.3d at 1274). "Moreover, in order to satisfy the third, critical requirement, a plaintiff `must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.'" Cooper, 390 F.3d at 724 (quoting Joe's Stone Crab, 220 F.3d at 1274-75).

As an initial matter, it is unclear to the court what "specific, facially-neutral employment policy" that resulted in a statistical disparity between the termination rates of black and white store managers is at issue. Plaintiff repeatedly asserts that the succession planning system is used to target black store managers for more unfavorable treatment than white store managers. Even if it is assumed, however, that the succession planning system is a facially-neutral employment policy, for the reasons already discussed, the undersigned finds that Plaintiff has not offered statistical evidence "of a kind and degree sufficient" to show that the succession planning system caused the termination of black store managers because of their race.

Accordingly, it is RECOMMENDED that Defendant's motion for summary judgment be GRANTED on Plaintiff's Title VII and § 1981 discriminatory discharge claim under the disparate impact theory.³⁶

36 As has already been noted, the disparate impact theory is inapplicable to § 1981 claims.

C. Other Alleged Discriminatory Treatment

In its brief in support of its motion for summary judgment, Defendant addresses several actions claimed by Plaintiff to have been discriminatory, including Plaintiff's failing to receive a five-year service pin, being asked to retake AMD modules and not being allowed to take accrued vacation. (Def. Br., p. 39). Defendant has pointed to evidence to show why each of these actions was not discriminatory, including Plaintiff's admission that he does not know whether Defendant or a third party caused him not to receive his service pin, and he does not know if other employees received their pins; the undisputed fact that all store managers and assistant managers, regardless of race, retook the same AMD modules; and the absence of evidence showing that store managers asked, but were not allowed, to take their accrued vacation. (Def. Br., pp. 39-40). Plaintiff has not addressed these arguments in his response to Defendant's motion for summary judgment. Accordingly, any claims involving these actions, if indeed they are asserted as claims, are deemed to have been abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.) (en banc) ("[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned"), cert. denied, 516 U.S. 817 (1995); see also Snyder v. Time Warner, Inc., 179 F.Supp.2d 1374, 1385 (N.D. Ga. 2001); Welch v. Delta Air Lines, Inc., 978 F.Supp. 1133, 1140 (N.D. Ga. 1997).

Plaintiff also asserts in his brief that Defendant maintained "a hostile work environment that disenfranchises Black managers and denies them equal opportunities for advancement and increased compensation" by maintaining the "secretive succession planning scheme" discussed above. (Pl. Br., p. 3). The undersigned finds that Plaintiff's conclusory assertions and statistical data about this "scheme," including the purported assignment of black store managers to "undesirable" stores in allegedly high crime areas with low volume and high shrink rate, and Defendant's purported use of a succession planning process to deny Plaintiff opportunities for advancement or to terminate him because of his race, are insufficient to create a triable issue with respect to the existence of such a hostile environment. Therefore, the undersigned RECOMMENDS that summary judgment be GRANTED to Defendant on Plaintiff's hostile work environment claim.³⁷

37 The undersigned also notes that Plaintiff does not claim that he was subjected to a hostile work environment through the use of racial insult or slurs.

D. Plaintiff's Title VII and § 1981 Retaliation Claims

Plaintiff alleges that he was subjected to a hostile work environment and terminated for engaging in statutorily protected activity by complaining about racial discrimination.

1. Analytical Framework for Retaliation Claims

Pursuant to 42 U.S.C. § 2000e-3(a), it is "an unlawful employment practice for an employer to discriminate against any . . . 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." The participation clause of the statute "protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC. . . ." EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000); see also Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) (instigation of statutory proceedings is prerequisite to protection under participation clause).

The opposition clause, on the other hand, protects activity which occurs prior to the filing of a formal charge with the EEOC, such as filing an internal complaint of discrimination with the employer or informally complaining of discrimination to one's supervisors. See Rollins v. Florida Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) ("[T]he protection afforded by the statute is not limited to individuals who have filed formal complaints, but extends as well to those, like Rollins, who informally voice complaints to their superiors or who use their employers' internal grievance procedures."). See also Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997). "To recover for retaliation, the plaintiff `need not prove the underlying claim of discrimination which led to [his] protest;' however, the plaintiff must have had a reasonable good faith belief that the discrimination existed." Holifield, 115 F.3d at 1566 (quotingTipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989)); see also Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999) ("an employee who seeks protection under the opposition clause must have a `good faith, reasonable belief' that [his] employer has engaged in unlawful discrimination." (Citation omitted)).

To establish a prima facie case of retaliation under Title VII, in the absence of direct evidence, the plaintiff must show that "(1) [he] engaged in a statutorily protected activity; (2) the employer took an adverse employment action against him; and (3) there is a causal connection between the protected activity and the adverse action. . . ." Berman v. Orkin Exterminating Co., 160 F.3d 697, 701 (11th Cir. 1998). See also Meeks v. Computer Assocs. Int'l, 15 F.3d 1013 (11th Cir. 1994); Donnellon v. Fruehauf Corp., 794 F.2d 598 (11th Cir. 1986). The third prong is satisfied by evidence that the protected action and the adverse employment action are not totally unrelated. Berman, 160 F.3d at 701; Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525 (11th Cir. 1991).

If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a non-discriminatory basis for the action. Meeks, 15 F.3d at 1021. If the defendant does so, then in order to avoid summary judgment, "the plaintiff must . . . demonstrate that the employer's proffered explanations are a pretext for retaliation. . . ." Id. ³⁸ 2. Plaintiff's Prima Facie Case

38 Retaliation claims under Title VII and § 1981 are also analyzed using the McDonnell Douglas/Burdine burden-shifting framework used to prove disparate treatment cases by circumstantial evidence. See Burstein v. Emtel, Inc., 137 Fed. App'x 205, 208 (11th Cir. 2005) (unpublished opinion); Johnson, 234 F.3d at 511 n. 10.

Defendant contends that Plaintiff has not demonstrated a prima facie case of retaliation because there is no evidence that he engaged in statutorily protected activity, and there is no causal connection between Plaintiff's complaint and his termination. (Def. Br., pp. 9-12).

a. Statutorily Protected Activity

Plaintiff alleges that he complained to Sears that Sears had treated Dugger disrespectfully during a discussion between Sears and Dugger on January 14, 2002. Specifically, Plaintiff alleges that he told Sears, "[Y]ou wouldn't stand in front of a white lady or a white woman and treat her like you are treating this woman. She is still a woman regardless of her color, and you're treating her with — this is not the way we treat our employees." (Copeland depo., p. 156). Plaintiff also alleges that he complained to Sears that the transfer was unjustified. (Pl. Br., p. 13). Finally, Plaintiff asserts that he "had a history of questioning the total absence of any Black managers above the store manager level and the dead-end situation created by assigning Black managers to less profitable stores in high crime ethnic neighborhoods and leaving them there." (Pl. Br., p. 16).

The undersigned notes that while the activity alleged by Plaintiff does not fall under the participation clause, it arguably falls under the opposition clause. See Rollins, 868 F.2d at 400; see also Total Sys. Servs., 221 F.3d at 1174. In order to avail himself of protection under the opposition clause, Plaintiff must produce evidence that he had a good faith, objectively reasonable belief that his employer had engaged in unlawful discrimination. See Clover, 176 F.3d at 1351.

"The objective reasonableness of an employee's belief that [his] employer has engaged in an unlawful employment practice must be measured against existing substantive law." Clover, 176 F.3d at 1351; see also Hudson v. Norfolk Southern Ry. Co., 209 F.Supp.2d 1301, 1313 (N.D. Ga. 2001), aff'd, No. 01-12398, 2002 U.S. App. LEXIS 5704 (11th Cir. 2002) ("This `reasonableness' has an objective component, which is measured against existing substantive law."). While it is true that a retaliation claim can survive even where the underlying claim of discrimination fails, see Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1187 (11th Cir. 2001), "it must be close enough to support an objectively reasonable belief" that the conduct opposed is actionable discrimination. Clover, 176 F.3d at 1351.

When Plaintiff allegedly complained to Sears about Sears's purportedly disrespectful treatment of Dugger, the only basis for his complaint was this isolated incident. Plaintiff has not pointed to any evidence, other than his own subjective perception, that Sears's alleged "disrespect" of Dugger was based on Dugger's race. He has not pointed to the use of racial slurs or derogatory comments about Dugger's race, for example. He has not pointed to evidence showing that his own subjective belief was objectively reasonable. Furthermore, this single incident falls well below the threshold of conduct that is sufficiently severe or pervasive to alter the terms and conditions of Dugger's employment in order to sustain a racially hostile work environment claim. See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (isolated incident of male-coworkers laughing about applicant's sexually explicit comment not actionable because "[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standard.").

With respect to Plaintiff's alleged complaint about the proposed transfer of Dugger, Plaintiff has pointed to no evidence, other than his subjective belief that there was no business reason for the transfer, to show that the transfer was an unlawful employment practice pursuant to Title VII. The simple act of transferring Dugger to another store in Decatur, even if Dugger did not want to be transferred, does not run afoul of Title VII. Plaintiff believed that Dugger should be allowed to remain in a store closer to her residence pursuant to Dugger's preferences, and he questioned Sears's business decision to transfer Dugger. Plaintiff contends that "[e]ven if Sears was not acting with racial animus, it was both objectively and subjectively reasonable for both Dugger and Copeland to believe that he was." (Pl. Br., p. 13). He also cites the fact that Dugger "even contacted the NAACP about the incident almost immediately after it happened." (Id.). But while Plaintiff may have shown that he and Dugger subjectively believed that Sears was acting with racial animus, he has not pointed to any evidence that such belief was objectively reasonable. Accordingly, to the extent that he complained to Sears about the proposed transfer, Plaintiff has not shown that he was opposing an employment practice made unlawful by Title VII, even if he disagreed with the transfer or believed that the transfer lacked "a valid business justification." (See id.).

Because Plaintiff has failed to show that he had a good faith, reasonable belief that he was opposing an unlawful employment practice under Title VII when on January 14, 2002, he allegedly complained to Sears about Sears's treatment of Dugger and Sears's proposed transfer of Dugger, Plaintiff has failed to show that his complaint about Sears's conduct was statutorily protected activity.

The only evidence that Plaintiff identifies to support his assertion that he "had a history of questioning" the lack of black managers above store manager is Plaintiff's declaration testimony that "[s]oon after CVS purchased Revco," he "participated in a focus group on racial concerns," during which issues of discriminatory store assignments and lack of career advancement for black store managers were discussed. (Copeland Decl., Pl. Ex. 11, ¶ 12). The undersigned assumes, without deciding, that Plaintiff's testimony in his declarations, submitted in support of his response to Defendant's motion for summary judgment, creates an issue of fact with respect to whether he engaged in statutorily protected activity when he participated in the focus group.³⁹ b. Causal Connection

39 The undersigned also notes that in response to Def. SMF, ¶ 265, Plaintiff wrote that he "complained to Jon Roberts, a previous Area VP, and to numerous other district managers about the lack of career development opportunities for Black Store Managers as compared with their White counterparts. Plaintiff states further that he also complained about disparities in assignments, and treatment of the Black versus the White managers." Plaintiff cites only his declaration, Pl. Ex. 11 at ¶¶ 17, 18 in support of these assertions, but those paragraphs do not provide any support for his assertions that he complained to Roberts or to district managers about these issues. Plaintiff testified that he "actively sought information about vacancies and opportunities . . . for career advancement with CVS since 1998," that he observed that black managers were "almost exclusively assigned to high crime areas," etc., and that within the last year of his employment he "began to question [his] district managers more persistently about how to get [himself] considered for advancement in the company." (Pl. Ex. 11, ¶¶ 17, 18). Nowhere in those paragraphs does Plaintiff state that he complained about perceived racial inequalities when he was seeking advancement for himself.

In order to establish a causal connection, Plaintiff must show 1) that the decisionmakers were aware of the protected activityand 2) that the protected activity and the adverse action were not wholly unrelated. Gupta v. Florida Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000), cert. denied, 531 U.S. 1076 (2001). "Close temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated." Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1119 (11th Cir. 2001).

The undersigned finds that Plaintiff has not pointed to evidence that creates an issue of fact with respect to whether there is a causal connection between Plaintiff's alleged participation in the focus group and actions taken against him in January and February 2002. In the first place, there is a lack of temporal connection between his participation in the focus group "soon after CVS purchased Revco," an event that occurred in 1997, and the events of January and February 2002. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1370 (11th Cir. 1999) (The court found that the plaintiff had not established the causal connection element of her prima facie case because a fifteen-month period between the employee's grievance and the alleged adverse action "belies [the employee's] assertion that the former caused the latter.").

Furthermore, Plaintiff has not pointed to evidence that the decisionmakers, i.e., Sears, Valois and Hay, were aware of Plaintiff's alleged participation in the focus group, or that he complained to them about unfavorable treatment of black employees, with the exception of Plaintiff's complaint to Sears about Sears's treatment of Dugger, which has been discussed infra. See Breeden, 532 U.S at 273; see also Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997) (Plaintiff must establish "that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action. Since corporate defendants act only through authorized agents, in a case involving a corporate defendant the plaintiff must show that the corporate agent who took the adverse action was aware of the plaintiff's protected expression and acted within the scope of his or her agency when taking the action." (citations omitted)). See also Brochu v. City of Riviera Beach, 304 F.3d 1144, 1156 (11th Cir. 2002) (district court erred in denying motion and renewed motion for judgment as a matter of law where there was no evidence that decision-maker had knowledge of the protected activity and "coincidence in timing" between the protected activity and adverse employment action was insufficient to create a causal connection); Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) ("[T]emporal proximity alone is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct."), cert. denied, 532 U.S. 1037 (2001).⁴⁰

40 Although Brungart was an FMLA retaliation case, the court noted that courts in Title VII cases do not "imply" decision-makers' knowledge of protected activity from temporal proximity between the protected activity and the adverse employment action and rejected that approach in FMLA cases.Brungart, 231 F.3d at 800.

Accordingly, the undersigned finds that Plaintiff has failed to demonstrate the existence of a triable issue with respect to whether he engaged in statutorily protected activity when he complained to Sears on January 14, 2002, or whether there was a causal connection between Plaintiff's purported participation in a focus group addressing racial concerns in or around 1997, and actions taken against him in January and February 2002. Therefore, the undersigned finds that Plaintiff cannot make out a prima facie case of retaliation, and it is RECOMMENDED that Defendant's motion for summary judgment be GRANTED on Plaintiff's Title VII and § 1981 retaliation claims.⁴¹

41 Even if it is assumed, arguendo, there is an issue of fact on each element of Plaintiff's prima facie retaliation claim, Plaintiff has failed to show that an issue of fact exists with respect to whether Defendant's articulated reasons for terminating him were a pretext for unlawful retaliation, as discussed in the previous section analyzing Plaintiff's discriminatory discharge claims.

SUMMARY

For the foregoing reasons, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment [Doc. 129] be GRANTED and that Plaintiff's claims against Defendant be DISMISSED. The Clerk is DIRECTED to terminate the District Court's referral of this action to the undersigned.

IT IS SO REPORTED AND RECOMMENDED.