Opinion
CIVIL ACTION NO. 1:05-cv-01658.
March 29, 2007
ORDER
The above-styled matter is presently before the court on:
1) the Magistrate Judge's Report and Recommendation ("R R") [docket no. 50] recommending that defendant's motion for summary judgment [docket no. 35] be granted; and
2) plaintiff's objections to the Magistrate Judge's R R [docket no. 51].
On June 23, 2005, plaintiff filed the instant action alleging that former employer, Fulton County Department of Health and Wellness, discriminated and retaliated against plaintiff based on his race, religion, and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981). Plaintiff filed an amended complaint on July 19, 2005. O n August 11, 2005, defendant filed a motion to dismiss, arguing that defendant is not an entity capable of being sued. On August 17, 2005, plaintiff filed a motion to amend his complaint and substitute Fulton County, Georgia as a party-defendant instead of Fulton County Department of Health and Wellness. On October 3, 2005, the Magistrate Judge issued a non-final R R recommending that plaintiff's motion to amend be granted, and defendant's motion to dismiss be denied. This court adopted as unopposed the Magistrate Judge's R R on October 31, 2005. Plaintiff filed his second amended complaint on November 1, 2005.
Defendant filed its motion for summary judgment on May 30, 2006. On December 15, 2006, the Magistrate Judge issued an R R recommending that summary judgment be entered in favor of defendant on plaintiff's claims for retaliation and religious discrimination under Title VII, finding plaintiff abandoned his claims of race and sex discrimination, as well as his claims under § 1981. Plaintiff filed his objections to the Magistrate Judge's R R on January 2, 2007. Defendant filed a response to plaintiff's objections on January 17, 2007.
Standard
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the R R within ten (10) days of the receipt of an order. If any party serves and files written objections, the district court is required to conduct a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C).
Discussion
Plaintiff does not object to the Magistrate Judge's statement of the law under Title VII as it applies to plaintiff's claims. This court agrees with the Magistrate Judge's statement of the law as it applies to plaintiff's claims and hereby adopts it as unopposed. Plaintiff does, however, object to several of the factual conclusions made by the Magistrate Judge, and this court will consider each in turn.Application of Summary Judgment Standard of Review
Plaintiff's first objection to the Magistrate Judge's R R is that the Magistrate Judge implemented the incorrect standard of review for deciding defendant's motion for summary judgment. Plaintiff states that the Magistrate Judge "did not follow the dictates of the Eleventh Circuit that the court should deny summary judgment if reasonable minds could differ on the inferences of discrimination (or retaliation) arising from the undisputed facts." Plaintiff fails, however, to point to specific undisputed facts from which a jury might differently infer discrimination or retaliation. The court analyzes plaintiff's specific objections below.
Magistrate Judge's Finding of Insufficient Evidence to Support Pretext for Plaintiff's Retaliation Claim
Plaintiff's second objection to the R R is that the Magistrate Judge erred in finding that summary judgment should be granted on plaintiff's retaliation claim because the Magistrate Judge resolved all reasonable inferences in defendant's favor and decided questions of fact which should go before a jury regarding plaintiff's claim that defendant's reasons for plaintiff's termination were pretextual. Specifically, plaintiff contends that the Magistrate Judge resolved all reasonable inferences in defendant's favor in deciding that the ultimate decision-maker, Dr. Katkowsky, sincerely believed that plaintiff was insubordinate regarding the incident that occurred between plaintiff and his supervisor, Ms. Murrell, on November 18, 2004. While plaintiff does present a different version of what happened on the telephone call between Ms. Murrell's assistant and plaintiff that day, the Magistrate Judge found that Ms. Murrell prepared a disciplinary action form after the conversation and recommended that plaintiff be suspended. Magistrate Judge Hagy further found that plaintiff provided no evidence that Dr. Katkowsky, as the ultimate decision-maker regarding plaintiff's termination, was not entitled to base his decision to terminate plaintiff on Ms. Murrell's account of what happened during the telephone conversation and her representations that plaintiff was insubordinate.
Contrary to plaintiff's objection, the Magistrate Judge did resolve all reasonable inferences in plaintiff's favor regarding the November 18, 2004 incident of alleged insubordination. An employer "may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio/Rahall Commc'ns., 738 F.2d 1181, 1187 (11th Cir. 1984) (citations omitted). While plaintiff contends that Ms. Murrell's allegations of insubordination against him were untrue, he fails to present evidence suggesting that Dr. Katkowsky's belief in those allegations is unworthy of credence. Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1471 (11th Cir. 1991).
Plaintiff further contends that the Magistrate Judge resolved all reasonable inferences in defendant's favor when he found that defendant's use of a sheriff's deputy to deliver a progressive discipline action form to plaintiff on November 23, 2004, did not demonstrate pretext. The discipline form was delivered to plaintiff at his worksite by Doris Daniels, Deputy Director of Administration, and Ms. Murrell. Daniels and Murrell were accompanied by a Fulton County Sheriff's Deputy assigned to the Health Department. Dr. Katkowsky testified that deputies were often used to hand deliver mail to employees. The Magistrate Judge found that defendant's use of a sheriff's deputy to accompany Murrell and Daniels when they delivered the discipline form to plaintiff might, at best, provide evidence that defendant "was mean, cold-hearted, or even that Defendant disliked [plaintiff], but this is not the standard for showing pretext."
Plaintiff's objection fails to show how the Magistrate Judge improperly resolved all reasonable inferences in defendant's favor in determining that the use of a sheriff's deputy to assist with the delivery of plaintiff's discipline form constitutes pretext. Dr. Katkowsky's testimony states that sheriff's deputies are sometimes used to deliver mail to employees. Plaintiff does not provide any case law that would support a finding that there was discriminatory pretext for his termination simply because a sheriff's deputy accompanied his supervisors when they presented plaintiff with the disciplinary form.
Plaintiff also objects to the Magistrate Judge's finding regarding plaintiff's allegation that he had no notice of the November 29, 2004 meeting with Dr. Katkowsky and that this showed discriminatory pretext for plaintiff's termination. Dr. Katkowsky sent plaintiff a letter, dated November 23, 2004, instructing plaintiff to meet with him on November 29, 2004, to discuss plaintiff's discrimination claims. Plaintiff contends he did not receive the letter until the afternoon of November 29, 2004, after the meeting was scheduled to take place, and thus he should not have been terminated for failure to attend the meeting. The Magistrate Judge found that, even assuming plaintiff's contentions are true, they were insufficient to establish pretext because plaintiff was terminated for other insubordination, not just for missing the November 29, 2004 meeting, and that plaintiff being unaware of the meeting does not demonstrate that defendant's actual reason for terminating plaintiff was retaliatory.
After reviewing the evidence, the court finds that the Magistrate Judge properly determined that plaintiff's awareness, or lack there of, of the November 29, 2004 meeting does not show discriminatory pretext for his termination. Plaintiff was terminated for more than his failure to attend the November 29, 2004 meeting. In addition, it is not enough for plaintiff to show that he was fired based on erroneous facts — plaintiff must show that he was fired for discriminatory reasons. See Nix, 738 F.2d at 1187 (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 10012 n. 6 (1st Cir. 1979) ("'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.'"). Accordingly, the Magistrate Judge properly found that plaintiff failed to meet his burden of demonstrating discriminatory pretext for his termination.
Magistrate Judge's Finding of No Disparate Treatment
Plaintiff's third objection to the R R is that the Magistrate Judge improperly concluded that plaintiff's loss of one half-hour per week of vacation time to attend religious services does not constitute an adverse employment action. While it was disputed among the parties, the Magistrate Judge accepted plaintiff's version of the facts that he was told by a supervisor that he would have to take one half-hour of vacation time on Fridays if he chose to attend religious services. Judge Hagy concluded, however, that being forced to use thirty minutes of vacation time once a week does not rise to the level of an adverse employment action. Plaintiff contends that whether losing 3.25 days of vacation time per year constitutes a "serious and material" change in the terms, conditions or privileges of employment is a question of fact for the jury.
Plaintiff further objects to the Magistrate Judge's determination that plaintiff failed to show proper comparators to establish his claim of disparate treatment. Plaintiff testified in his affidavit that several employees told him they were not required to work on Saturdays because of their religious commitments on that day. Plaintiff also testified that two employees worked alternative hours and that plaintiff was not permitted to do the same.
Even assuming that defendant's requirement that plaintiff use vacation time to attend religious services constitutes an adverse employment action, the court finds that the Magistrate Judge properly determined that plaintiff failed to sufficiently allege similarly situated employees who were treated more favorably than plaintiff. Plaintiff alleges that several employees told him that they did not have to work Saturdays because of religious reasons. The Magistrate Judge properly found, however, that this evidence is hearsay and is therefore inadmissible evidence. Plaintiff fails to present any evidence other than his own testimony that confirms that his co-workers did not have to work on Saturdays because of religious reasons. The Magistrate Judge further found that plaintiff failed to present evidence that these employees did not have to use vacation time on Saturdays.
Plaintiff asserts in his objections to the R R that this is not hearsay evidence because defendant has notice of the statements of the declarants and they are subject to cross-examination at trial. This does not change the fact, however, that plaintiff's testimony about what his co-workers told him is hearsay, as the statements were made out of court by other employees and used to prove the truth of the matter asserted, and plaintiff's testimony was the only evidence before the Magistrate Judge on this issue. Plaintiff further makes no showing that the content of the statements are capable of being reduced to admissible form at trial. See Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (finding that inadmissible hearsay cannot defeat a party's motion for summary judgment where the hearsay will not be reducible to admissible form at trial); see also Macuba v. DeBoer, 193 F.3d 1316 (11th Cir. 1999) (finding district court improperly considered hearsay testimony where the statements were being offered for their truth, none of the statements would be admissible at trial under an exception to the hearsay rule, and none of the statements would be admissible as substantive evidence).
Plaintiff further alleges that he observed two co-workers that were permitted to work earlier and later than the regular hours at the nutrition centers. Contrary to plaintiff's assertion, the Magistrate Judge did consider plaintiff's testimony, but found that even if these employees were permitted to work alternative hours, plaintiff failed to show that they are appropriately similar in that they were permitted to work alternative hours so that they could attend religious services. The simple fact that plaintiff "observed" these employees working alternative hours does not show that they were doing so to attend religious services during regular work hours. A similarly situated employee would be one that was not asked to take vacation time to attend religious services, and plaintiff fails to present any evidence of other employees who were not required to do so.
Magistrate Judge's Finding that Defendant Accommodated Plaintiff
Plaintiff also objects to the Magistrate Judge's determination that defendant did not fail to accommodate plaintiff. First, plaintiff asserts the same objections to the Magistrate Judge's determination that plaintiff did not suffer an adverse employment action by being required to take vacation time to attend religious services. Second, plaintiff contends that the Magistrate Judge erred in finding that defendant reasonably accommodated plaintiff. Plaintiff states that the accommodation he sought was to be permitted to work at a nutrition center with nontraditional hours one day per week to make up the one-half hour he needed to attend religious services on Fridays. Instead, plaintiff asserts he was told that he could only take the one-half hour off on Fridays to attend religious services if he used vacation time.
Under Title VII, a plaintiff demonstrates a prima facie case of religious discrimination based on failure to accommodate by showing that "(1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of his belief; and (3) he was discharged for failing to comply with the conflicting employment requirement." Beadle v. Hillsborough County Sheriff's Dep't, 29 F.3d 589, 592 n. 5 (11th Cir. 1994). If the plaintiff presents a prima facie case, the burden shifts to the employer to present evidence either that it offered to accommodate the plaintiff or that it could not reasonably accommodate him. Id. at 592.
In the present case, plaintiff's objection that defendant's accommodation was not reasonable presumes that plaintiff first establishes a prima facie case of religious discrimination. The court does not reach the question of whether the accommodation was reasonable until plaintiff establishes each element. The Magistrate Judge properly found that plaintiff failed to present any evidence showing he was disciplined or terminated for his inability to work on Friday afternoons while he attended religious services. Plaintiff states that he stopped attending religious services because he feared losing his vacation time, but he fails to explain how this constitutes discipline or how he was terminated as a result of his attending religious services on Fridays. Plaintiff's objection to the Magistrate Judge's R R does not refute the fact that plaintiff fails to present a prima facie case of discrimination for failure to accommodate.
The Magistrate Judge went on to find, however, that even if plaintiff successfully alleged a prima facie case of discrimination, that defendant's accommodation was reasonable. The terms of Title VII direct that "any reasonable accommodation by the employer is sufficient to meet its accommodation obligation." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986). Once it is established that a reasonable accommodation was afforded to the employee, the inquiry ends. Id. A reasonable accommodation does not have to be the one that the employee suggests. See id. ("We find no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation."). The Supreme Court previously found that the provision of unpaid leave for employees to attend religious services is generally reasonable. Id. at 70. Accordingly, the Magistrate Judge did not err in finding that requiring plaintiff to use one half-hour of vacation time one time per week was a reasonable accommodation for plaintiff's religious beliefs. See Cooper v. Oak Rubber Co., 15 F.3d 1375, 1379 (6th Cir. 1994) ("Under appropriate circumstances, the use of an employee's vacation entitlement may be reasonable.").
Totality of Circumstances
Plaintiff's final objection to the Magistrate Judge's R R is that, if all reasonable inferences are drawn in plaintiff's favor, "the totality of circumstances militates against summary disposition of the case" because, as a matter of law, it cannot be said that religion and/or retaliation were not motivating factors in defendant's treatment of plaintiff. As the court has responded to all of plaintiff's specific objections, the court finds plaintiff fails to present issues of material fact that warrant rejection of defendant's motion for summary judgment. Accordingly, plaintiff's objections to the R R are OVERRULED and the court ADOPTS and incorporates herein as if fully set forth the Magistrate Judge's recommendation [docket no. 50] that defendant's motion for summary judgment [docket no. 35] be GRANTED.
Summary
Plaintiff's objections [docket no. 51] to the Magistrate Judge's R R are OVERRULED. The Magistrate Judge's R R [docket no. 50] GRANTING defendant's motion for summary judgment is ADOPTED and incorporated herein as if fully set forth. Defendant's motion for summary judgment [docket no. 35] is GRANTED.
SO ORDERED.