Opinion
CIVIL ACTION NO. 3:02CV-91-S.
June 23, 2004
MEMORANDUM OPINION
This matter is before the court on motion of the defendant, Norton Healthcare, Inc., for summary judgment (DN 29). In addition, the plaintiff, Marc Hampton, has filed a motion for leave to file a sur-reply (DN 38) and a motion for an evidentiary hearing or, alternatively, for oral argument on the motion for summary judgment (DN 39).
The motion of the plaintiff for evidentiary hearing is procedurally infirm. Further, the court finds that oral argument in this matter is unnecessary to the resolution of the summary judgment motion. The court will therefore deny the motion of the plaintiff on these matters.
Hampton's request for leave to file a sur-reply addresses, in part, the affidavit of Neal Augustus, an individual who the plaintiff did not depose during discovery. The Augustus affidavit was submitted by Norton in support of its reply. Thus it is new material which the plaintiff did not have the opportunity to address. The affidavit is responsive, however, to an issue raised by the plaintiff himself in his response to the summary judgment motion. In light of the fact that Hampton seeks to raise a number of points concerning this affidavit, and that Norton has responded to those points, the court will permit the sur-reply to be filed.
It appears that what the plaintiff offers as a "sur-reply" is already filed of record as the memorandum in support of his motion for leave to file a sur-reply (DN 38). The motion will be granted, therefore, not to permit the filing of another brief, but rather to indicate that the material already filed will be considered with the other briefs on summary judgment.
This action arose from Norton's selection of another applicant over Hampton for promotion to the supervisory position of Materials Associate II in May of 2001. Hampton is an African American male who contends that he was discriminated against in his employment on the basis of his race, and that Norton retaliated against him for having asserted his right to be free from such discrimination, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. Additionally, Hampton alleges that he has been subjected to a hostile work environment and he seeks relief therefore under the Kentucky Civil Rights Act, KRS 344.450.
The plaintiff also cites 42 U.S.C. § 1983 in his complaint. As there does not appear to be any allegation of state action in this case, nor does he discuss the applicability of the statute in his brief, the reference to the statute in the complaint will not be addressed.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L. Ed. 2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
In order to establish a prima facie case of race discrimination, Hampton must come forward with evidence that (1) he was a member of a protected group, (2) he applied for and was qualified for the desired position, (3) he was considered for and denied the promotion, and (4) the position went to a less-qualified applicant who was not a member of the protected group. Farmer v. Cleveland Public Power, 295 F.3d 593, 603 (6th Cir. 2002). There is no dispute that Hampton met the first three prongs of the test. Hampton does not address the requirement for the fourth prong that, not only must the successful applicant be an individual outside the protected group, but that applicant also must have been less qualified than himself. Hampton does not include the "less-qualified" language in his recitation of the elements of a prima facie case. The outcome of this motion turns on whether Hampton has come forward with any evidence, taken in the light most favorable to him, to suggest that Walls was less qualified for the promotion.
Whether Hampton was qualified for the position is made a debatable point by the deposition of Settles in which he was repeatedly asked by Hampton's counsel about "disqualifications" and what "disqualified" Hampton for the job, to which Settles responded with specific characteristics and criticisms which he felt were problematic for a supervisory position. Despite this unfortunate testimony, Norton continues to take the position that both Hampton and Walls were qualified for the promotion, but Walls' supervisory experience with Norton and his communication skills made him the superior candidate in the final analysis. For purposes of this motion we will accept Norton's premise.
We conclude that there is no genuine issue of material fact precluding summary judgment in this matter. The following facts are undisputed.
Hampton is employed by Norton in the Linen Department. He has been employed by Norton since 1992 when he began working in the dish room, and later became a nursing assistant. He resigned for a brief period in 1994, and was rehired to work in a restaurant in the hospital. A year later he began working as a cook in Food Services. Hampton's position as a cook was phased out, and in September of 1999 he took the position he currently holds in the Linen Department as a Materials Associate I.
Paul Walls is also a Linen Department employee. Walls has worked for Norton for over twenty years, including holding a supervisory position with Norton as a Dietary Supervisor from 1991 or 1992 to 1996. In that capacity, he supervised the work of forty-two employees, performed evaluations, and attended management classes. He left employment with Norton from 1997 to 1999. Upon being rehired in 1999, Walls worked in the warehouse where he became familiar with various areas of the hospital including the areas serviced by the Linen Department. Walls transferred to the Linen Department in the position of Materials Associate I in November, 2000.
In mid-April of 2001, Hampton applied for the position of Materials Associate II, the position of his former supervisor who had been terminated. At the time of his application, Hampton had been employed by Norton for nine years. In his application he indicated that he had been a shift leader at Wendy's restaurant from March, 1988 to August, 1990. He also indicated that he had worked in the linen department for three years and had helped divide the shift responsibilities, created a cart distribution system, and worked out disputes.
Walls applied for the same position at the end of April, 2001. John Settles, then-manager of the Linen Department, testified that he interviewed Walls and Hampton in early May, prior to the hiring of Walls for the position. Both applicants were considered by Norton to be eligible for promotion and qualified for the position. John Settles testified that he chose Walls over Hampton because Walls had worked as a supervisor for Norton for a number of years. Due to that experience, he was familiar with Norton supervisory procedures. He testified that Walls did a good job in voicing how he would handle various situations which might confront him. He stated that Walls was able to communicate well with people, could make assignments, and carry a supervisory workload at Norton, as evidenced by his prior supervisory experience there. Settles did not see a problem with Walls' work performance or attendance, despite his having a number of write-ups for attendance issues in 1992, 1996, and 2000.
In Hampton's brief at pg. 8, he states that "Hampton denies that he was interviewed," and cites "Hampton depo, at 145-46." There is no such statement on those pages.
While Hampton met the qualifications for the job, Walls was preferred for the position for a number of reasons. First, Settles felt that Walls communicated well with people, while Hampton had a number of incident reports in his file indicating verbal altercations and disagreements with co-workers. Hampton takes issue with certain write-ups which were in his employment file when he was considered for the promotion. He contends that they were either untrue or that he was written up because of his race. He contends in his recently added hostile work environment claim that he "was written up several times for matters that he was not guilty of for no other purpose than to harass him. For example, he was falsely accused of being rude and abusive to someone on the hospital staff." This allegation does nothing to support a prima facie case of discrimination in filling the Materials Associate II position.
First, there is no contention that Settles played any part in the allegedly false write-ups as he was not Hampton's supervisor at the time. Hampton contends with regard to his previous supervisor that "[n]umerous times Plaintiff was subjected to derogatory racial remarks and profanity by his supervisor, Dan O'Brien." However, Norton management was advised by Hampton of the use of the "n" word by O'Brien. O'Brien was terminated from his employment for that conduct. Ironically, O'Brien's termination created the opening for which Hampton and Walls applied.
Second, regardless of their truth or falsity, these incidents were properly included in Hampton's file. Hampton admits that the incidents were addressed at the time of their purported occurrence and the documentation concerning the outcome was placed in his file. As such, Hampton's employment record, including these documents, was necessarily considered by Settles in determining whether to offer Hampton the promotion.
Also, although Hampton had some supervisory experience at Wendy's, Settles found Walls supervisory experience within the Norton system to be preferable. While there had been some prior concerns about absenteeism, Settles did not find that issue to be a problem in hiring Walls for the position.
Hampton takes issue with the stated bases for the selection of Walls over him. He raises points concerning his own qualifications which he contends should have been given greater emphasis, and points concerning Walls which should have been given less. He also attempts to make much over the absenteeism write-ups. However his dissatisfaction or disagreement with the criteria used does not call into question the validity or legitimacy of the decision. It is not the function of this court in a Title VII action to micro-manage promotion decisions. Rather, the court may provide redress only for decisions in which a prima facie case of promotion based on race can be shown.
Hampton attempts to read a nefarious intent into a number of incidents. For example, he takes issue with the manner in which the position was filled. He has not shown that the time which elapsed between the posting and filling of the position was unusual nor that the procedure was in any way improper. He contends, however, that he and Walls were initially told not to apply because Settles was going to "fill a vacancy," then "pull from the department" to fill the position. Walls testified that at a later date he was called by Settles and asked if he intended to apply for the position. He was apparently told that "the job is not going to be there forever." Hampton has not shown that a suggestion to Walls that he apply was borne of any racial bias. Nor has it been shown that such a question to Walls was in any way improper. Walls was seen as more qualified for the position for a number of clearly articulated reasons. He was encouraged to apply, and then he was offered the promotion. Unless Hampton established that Walls was, in fact, less qualified for the job, a showing that he has not made, no inference can be drawn that the hiring was done with a discriminatory motive.
That Walls was not in fact hired until after he had been employed in the Linen Department for the requisite six months, but had not been in the department the full six months at the time he submitted his application and it was first reviewed, is a point of no significance. Hampton has stated no basis for his contention that the time table for filling the position was based on any motive to discriminate against him on the basis of race, and no such inference can properly be drawn from the undisputed facts. At best, he has arguably shown that Walls was identified early on as the preferred applicant for the position. Walls, the preferred candidate, had been in the Linen Department six months at the time he was hired, as he had been hired as Materials Associate I in November of 2000. He did not begin in the position of Materials Associate II until June of 2000.
Hampton states repeatedly that Cooper, Settles' predecessor, "might have told Walls that the job was his, citing to the Cooper deposition, pg 40, and the Walls deposition, pg. 29 and placing the critical language in quotation marks. There is no such testimony on those pages nor anywhere in those depositions. Counsel is strongly advised to avoid such misstatements in the future.
In any event, in the affidavit of Neal Augustus, he states that the six-month eligibility requirement does not apply to employees seeking promotion within the same department.
Having failed to establish a prima facie case of employment discrimination, summary judgment will be granted dismissing the Title VII claim.
Hampton has claimed that he suffered retaliation and was subjected to a hostile work environment. An incident which occurred prior to his filing of the EEOC complaint giving rise to this action is ipso facto not an incident of retaliation for filing the charge.
The incidents recited by Hampton in support of his hostile work environment claim have not been shown to be race-related. See, Farmer, supra. at 605. Nor have the incidents shown to be so severe and pervasive as to permeate the environment with discriminatory intimidation, ridicule and insult. Compare, Ammerman v. Board of Education, 30 S.W.3d 793, 799 (Ky. 2000); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Allen v. Michigan Dep't of Corrections, 165 F.3d 405 (6th Cir. 1999). Additionally, Hampton must show that Norton condoned such conduct in order for it to be held liable. Wilson v. Dana Corp., 210 F.Supp.2d 867, 877 (W.D.Ky. 2002), citing, Smith v. Leggett Wire Co., 220 F3d 752, 760 (6th Cir. 2000). The one employee who he identified as having used racial epithets, his immediate superior, O'Brien, was terminated for that conduct.
Finally, Hampton contends that there were two incidents which occurred after he filed the EEOC complaint which constitute retaliation.
To establish a prima facie case of retaliation under Title VII and the Kentucky Civil Rights Act, Hampton must show that (1) he engaged in an activity protected by Title VII; (2) that this exercise of his protected rights was known to defendant; (3) that defendant thereafter took an adverse employment action, adverse to him; and (4) there was a causal connection between the protected activity and the adverse employment action. Canitia v. Yellow Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir. 1990).
In the first incident, Hampton contends that he should not have been placed on administrative leave without telling him why. The second incident involved placing him on administrative leave for a "domestic situation" in which Hampton was charged with disorderly conduct and assault. He had been incarcerated for a number of days and thus was absent from work. He initially lied about the reason for his absences, but later provided the correct information. In both instances, Hampton was counseled, but not otherwise disciplined or terminated. The only complaint that Hampton has articulated about the first incident is his contention that he was not told why he was being placed on administrative leave. This alone is insufficient to establish retaliation for filing an EEOC complaint. His contention that being placed on administrative leave for having been charged and incarcerated for disorderly conduct and assault, and lying about the absence to his employer was unfair and retaliatory is not worthy of comment. Temporal proximity to the filing of an EEOC charge, without more, does not establish a causal connection. Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999).
For the reasons stated hereinabove, summary judgment will be granted in favor of Norton and the action will be dismissed.