Opinion
Civ. No. 99-588-AH-C.
June 16, 2000
JUDGMENT
This matter having come before the Court on motion for summary judgment and in accordance with the findings of fact and conclusions of law entered this day, it is hereby ORDERED, ADJUDGED, and DECREED that Plaintiff shall have and recover nothing from Defendant and that Plaintiffs claims are due to be, and hereby are, DISMISSED WITH PREJUDICE.
This matter is before the Court on Defendant's motion for summary judgment. (Doc. 66). After considering the motion, supporting briefs, evidence on file, and applicable law, the Court finds that the Defendant's motion for summary judgment is due to be GRANTED.
I. Background
This is an employment discrimination case. Plaintiff is an African-American male who claims that Defendant Williams Power discriminated against him on the basis of race and religion in violation of Title VII and 42 U.S.C. § 1981, and failed to accommodate Plaintiffs alleged disability in violation of the Americans with Disabilities Act.
Defendant employed Plaintiff as a carpenter, primarily to build industrial scaffolding. Plaintiff has worked for Defendant for several short terms and always on a temporary basis. Plaintiff has secured work with Defendant through the local carpenters' union which referred Plaintiff to Defendant's work site pursuant to a collective bargaining agreement between Defendant and the carpenters' union.
Plaintiff was employed with Defendant from January 13, 1998 to April 22, 1998. Plaintiff claims that it was during this term of employment in which Plaintiff was subject to discrimination.
Plaintiff was injured on the work site on March 26, 1998. After a twenty day leave of absence, Plaintiff returned to work. On April 22, 1998, Plaintiff was laid off from the job. On May 26, 1998, all of the carpenters were laid off and the project ended.
II. Summary Judgement Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted: "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A factual dispute is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992).
The basic issue before the Court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson, 477 U.S. at 251-252. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the Court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. See Adickes v. S.H Kress Co., 398 U.S. 144, 157 (1970); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank Trust v. Fidelity Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies their initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmovant to "come forward with `specific facts showing that there is a genuine issue for trial.'" See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Otherwise stated, the nonmovant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). "`The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Tipton, 965 F.2d at 999 (quoting Anderson, 477 U.S. at 255). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587 (internal quotation and citation omitted).
III. Discriminatory Discharge
In an employment discrimination case, the plaintiff bears the ultimate burden of proving that the defendant intentionally discriminated against the plaintiff. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff may prove discrimination through the production of direct or circumstantial evidence. See Schoenfeld v. Babbitt; 168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of discrimination is evidence which proves the existence of discrimination without inference of presumption. See id. The Eleventh Circuit has held that direct evidence is composed only of the most blatant remarks which clearly indicate an intent to discriminate. See id. Plaintiff has not produced any direct evidence of discrimination in this case.
To prove discriminatory treatment through circumstantial evidence: (1) a plaintiff must first make out a prima facie case, then (2) the burden shifts to the defendant to produce legitimate, nondiscriminatory reasons for the adverse employment action, and then (3) the burden shifts back to the plaintiff to establish that these reasons are pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
A plaintiff may establish a prima facie case of discriminatory discharge by demonstrating that: (1) he was a member of a protected class, (2) he was qualified to do the job from which she was terminated, (3) he was terminated despite his qualifications, and (4) he was replaced by an employee outside his protected class. McDonnell, 411 U.S. at 801-02. The Court will assume without deciding that Plaintiff has met the prima facie case.
Under the second part of the McDonnell Douglas test, the burden shifts to Defendant to produce legitimate, nondiscriminatory reasons for Plaintiffs discharge. Defendant has asserted that Plaintiff was laid off because the job was winding down and Defendant needed to reduce the number of carpenters: Defendant laid off another white carpenter at the time Plaintiff was discharged and laid off all carpenters a month after Plaintiff was laid off.
At the time of Plaintiffs discharge, Plaintiff was recovering from an injury he had sustained on the work site. On March 26, 1998, Plaintiff was struck by a falling object and injured his back. He remained off work for twenty days to recover. When Plaintiff returned. he was under significant work restrictions including restricted to lifting no more five pounds, no twisting or bending, and no climbing. Plaintiff admits that upon his return, he could not preform his job as an industrial carpenter. Defendant states that due to Plaintiffs inability to work, he was a logical selection for the reduction in force.
Defendant's reasons for terminating Plaintiffs employment are legitimate, nondiscriminatory reasons and the Court finds that Defendant has met its burden under the second part of the McDonnell Douglas test.
The third part of the McDonnell Douglas test requires Plaintiff to establish that Defendant's reasons for his discharge were pretextual. The Supreme Court has explained:
The plaintiff retains the burden of persuasion. [H]e now must have 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. [H]e 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.Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The Court has further noted, if "the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510 (1993). Instead, "the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven `that the defendant intentionally discriminated against [him]' because of his race." Id. at 511 (quoting Burdine, 450 U.S. at 253). "[B]ecause the plaintiff bears the burden of establishing pretext [for discrimination], he must present `significant probative' evidence on the issue to avoid summary judgment." Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). "[C]onclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [an employer] has offered . . . extensive evidence of legitimate, non-discriminatory reasons for its actions." Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987).
Plaintiff has come forward with a number of allegations which purportedly show the Defendant's reasons for terminating Plaintiff are mere pretext. Plaintiffs allegations, however, are either without support in the record or insufficient to show discrimination by Defendant.
Plaintiff contends that he received notice that he was being laid off by telephone call at home rather than in the trailer on the work site. Plaintiff also contends that Defendant generally utilized a "first hired, last fired" policy which was not followed in Plaintiffs case. Plaintiff has failed to show that either of these alleged practices were Defendant's actual policy or that Plaintiff was treated differently from other similarly situated persons.
Plaintiff argues that Defendant hired or re-hired three carpenters in May 1998 following Plaintiffs termination and that this action shows that Defendant intended to discriminate. Williams has come forward with evidence that Williams needed the services of five carpenters in the latter part of May 1998. Williams states that it replaced three carpenters after Plaintiff was laid off but did not increase the number of carpenters. It is also undisputed that Plaintiff could not perform the full functions of an industrial carpenter in May 1998.
Plaintiff finally alleges that following his termination, Arthur Weaver, one of Plaintiffs supervisors, stated the U.S. Army couldn't get rid of Saddam but "me and [supervisor] Tony [Legg] did." Plaintiff argues that he was referred to as Saddam Hussein by some co-workers — allegedly a reference to Plaintiffs Muslim religion. Arthur Weaver, Tony Legg and Plaintiffs other supervisors have provided affidavits stating that they were not aware of what religion, if any, Plaintiff practiced. Consequently, the Court cannot find that the mere allegation that a supervisor referred to Plaintiff as Saddam is sufficient to show that Plaintiffs discharge was discriminatory. Therefore, Plaintiffs discriminatory discharge claim fails.
IV. Hostile Work Environment
Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a)(1). Title VII's protections extend to prohibiting an employer from subjecting an individual to a "discriminatorily hostile or abusive environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
In order to establish the prima facie case of racial harassment, the Plaintiff must show (1) he is a member of a protected class, (2) he was subjected to unwelcome harassment, (3) the harassment was based on his race or religion, (4) the harassment was sufficiently severe or pervasive so as to alter a term, condition, or privilege of Plaintiffs employment, and (5) the employer either knew or, should have known of the harassment. See Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997); Ellis v. Wal-Mart, 952 F. Supp. 1522, 1526 (N.D. Ala. 1996).
Not all conduct which an employee finds irritating or annoying is actionable under Title VII. Title VII is not intended to serve as a "general civility code." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S.Ct. 998, 1002 (1998). The Supreme Court has explained that a hostile work environment is one that is "permeated with `discriminatory intimidation, ridicule and insult' and that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Id. (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)).
For instance, the "mere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris, 510 U.S. at 21 (internal quotation marks omitted).
Whether an environment is "hostile" or "abusive" is determined only by looking at all the circumstances. See Harris, 510 U.S. at 17. The factors considered in this evaluation may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; whether it unreasonably interferes with an employee's work performance; and the effect on the employee's psychological well-being. See id. In the instant case, Plaintiff has failed to show that he was subjected to an objectively abusive or discriminatory working environment.
Plaintiff alleges that a co-worker, Joe Daugherty, referred to Plaintiff as "jelly bean head" and "black bean". Plaintiff states that Daugherty was known as a joker on the work site. Plaintiff also states that Daugherty's use of "jelly bean head" referred to Plaintiffs dreadlock hair style. Plaintiff however contends that these names were racially discriminatory. Plaintiff also states that unidentified co-workers also referred to Plaintiff as Saddam Hussein. Plaintiff alleges that this name was a derogatory reference to Plaintffs Muslim religion.
Defendant had an effective anti-discrimination policy in effect during Plaintiffs employment. Plaintiff received a copy of the policy in his employment materials and states that he was aware of the policy. However, Plaintiff failed to file a complaint with Defendant regarding the above-mentioned names to which Plaintiff states he was subject. Where an employer has promulgated an effective anti-harassment policy of which a Plaintiff has not utilized, the employer will not be held liable for the alleged harassment. See Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1300 (11th Cir. 2000). Consequently, the Court will not impute knowledge of Plaintiffs alleged name-calling where Plaintiff failed to utilize a remedial scheme which was instituted to prevent such behavior.
Plaintiff also attempts to show hostile work environment by alleging the following events: Plaintiff and other un-named black co-workers believed that Williams discriminated against an un-named black female employee by terminating her employment; a white and black Williams employee allegedly had a fist-fight because the white employee called the black employee's mother a "monkey"; and a noose was found in the carpenter's trailer. Plaintiff fails to indicate his connection with the above-described events, if any, or how these alleged events affected his employment. Conclusory allegations are not sufficient to raise an inference of intentional discrimination, see Young, 840 F.2d at 830; Grigsby, 821 F.2d at 597. Consequenlty, Plaintiff allegations are insufficient to show either that the alleged discriminatory incidents affected a term or condition of Plaintiffs employment, or that knowledge of these incidents should be imputed to the Defendant.
V. Religious Accommodation
Title VII requires that an employer "make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship." Lake v. B. F. Goodrich Co., 837 F.2d 449, 450 (11th Cir. 1988) (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977)), In order to establish a prima facie case of religious discrimination under the "failure to accommodate `theory,' the plaintiff must prove: (1) that the Plaintiff had a bona fide religious belief that conflicted with an employment requirement; (2) that he informed his employer about the conflict; and (3) that he suffered adverse employment action for failing to comply with the conflicting employment requirement." See Beadle v. Hillsborough County Sheriff's Dept., 29 F.3d 589, 592 n. 5 (11th Cir. 1994) (citing Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 144 (5th Cir. 1982)).
In the instant case, Plaintiff alleges that Defendant failed to accommodate Plaintiffs desire to attend Friday religious services during the month of March while employed with Defendant. Plaintiff states that on a single instance he asked his supervisor Arthur Weaver for permission to attend a Friday religious service. Plaintiff states that did not tell Weaver that he was Muslim. Plaintiff stated in his deposition that it should have been obvious to Weaver that Plaintiff was Muslim. Plaintiff stated that the signs that he was Muslim were, "I don't curse, I don't drink, I don't smoke, I don't joke around, you know, and more of an easy-going, peaceful person. And it's different, see, a person that's more into — what I'm into is different than what everybody else is into." (Pltf's dep. at 118). Plaintiff also states that he wore a Crescent Star ring which symbolizes his religion.
Arthur Weaver and Plaintiffs other supervisors have provided affidavits stating that they were not aware of what religion, if any, which Plaintiff practiced. Consequently, the Court finds that Plaintiff has failed to come forward with evidence that Defendant had knowledge of Plaintiffs religion sufficient to make out the prima facie case of failure to accommodate.
Additionally, Plaintiff states that Weaver gave Plaintiff permission to leave on the requested Friday. Plaintiff stated, "It was just, well, you can go this time, you know, don't make it a habit." (Pltf's dep. at 136). Plaintiff states that he chose not to attend the service because he was informed that his supervisor Ernest Smith "would not tolerate leaving." Consequently, the Court finds that Plaintiffs ambiguous statements are insufficient to show that Defendant even denied Plaintiffs request. Therefore, Plaintiffs religion accommodation claim fails.
VI. Retaliation
Plaintiff alleges that Defendant retaliated against him for complaining of alleged sexual discrimination by terminating Plaintiffs employment and failing to re-hire Plaintiff for subsequent positions.
Title VII protects employees against employer retaliation for engaging in statutorily protected activities such as protesting what is believed to be unlawful discrimination. See 42 U.S.C. § 2000e-3(a). The burden of proof in a Title VII retaliation claim is governed by the McDonnell Douglas framework as discussed above. See Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993). A Plaintiff may establish a prima facie case of retaliation by showing (1) a statutorily protected activity, (2) an adverse employment action, and (3) a causal link between the protected expression and the adverse action. See id.
In the instant case, Plaintiff alleges that he complained to Defendant of alleged discrimination regarding Defendant's provision of worker's compensation benefits. For purpose of discussion, the Court will consider this statutorily protected activity. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 n. 11 (11th Cir. 1993) (informal complaints of discrimination to employer constitute protected activity); see also Mills v. Wex-Tex Industries, Inc., 991 F. Supp. 1370, 1381 (M.D. Ala. 1997) (same).
Plaintiff contends that his termination and Defendant's failure to re-hire Plaintiff were in retaliation for Plaintiffs complaints. As discussed above, Plaintiff has conceded at the time he was laid off he could not perform his job duties. All of the carpenter positions were also eliminated a month after Plaintiff was laid off. Consequently, the Court cannot find that the loss of Plaintiffs position was discriminatory.
Plaintiff has also alleged that Defendant failed to re-hire Plaintiff for subsequent positions in retaliation for Plaintiffs complaints. Pursuant to a collective bargaining agreement, Defendant obtains its union carpenters through the carpenters union. Under this agreement, Defendant merely requests a number of carpenters and the union refers available carpenters to the job site. Defendant does not select the individual carpenters.
Plaintiff admits that the union agent would not place Plaintiff on the work list until November 1999. Therefore, it was impossible for Defendant to have employed Plaintiff prior to November 1999. In December 1999, Plaintiff was referred to Defendant for work. However, upon reporting to Defendant for work, Plaintiff informed the supervisor that he was ill and left work. Plaintiff never returned to Defendant for work. Consequently, the Court finds that Plaintiff has failed to make a sufficient showing the Defendant retaliated against Plaintiff due to Plaintiff's complaints.
VII. Americans with Disabilities Act
Under the ADA, an employer may not discriminate against "`a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.'" Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. See LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998).
Under the ADA. An individual is "qualified" if he, with or without reasonable accommodation, can perform the essential functions and job requirements of the position the individual holds. See 42 U.S.C. S 12111(8); Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). An employer must provide reasonable accommodations for employees with known disabilities unless such accommodations would result in undue hardship to the employer. See Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir. 1996). An accommodation is reasonable, and thus required under the ADA, only if it allows the employee to perform the essential functions of the job. See LaChance, 146 F.3d at 835 (citing 29 C.F.R. § 1630.2(o)(2)(ii) (1995)). "Essential functions" are the fundamental job duties of a position that an individual with a disability is actually required to perform. See 29 C.F.R. S 1630.2(n)(2)(1).
In the instant case, Plaintiff has alleged that Defendant failed to accommodate his alleged disability after he returned to work following his injury. Plaintiff was employed with Defendant as an industrial carpenter, primarily constructing scaffolding in excess of 200 feet in height. When Plaintiff returned, Plaintiff was under significant restrictions: he could not lift more than five pounds; he could not twist or bend; and, he could not climb. Plaintiff admits he could not perform the functions of his job.
Rather, Plaintiff states that he should have been transferred to another position, or that another position should have been created for Plaintiff, as an accommodation. Plaintiff argues that he should have been assigned as a flagman, given a position in the tool room, or that Defendant should have created a light-duty carpenter position for Plaintiff. Defendant states that no flag or tool room positions were available. The ADA does not require an employer to reassign an employee to an occupied position, nor must the employer create a new position to accommodate the disabled worker. See Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998). Consequently, Plaintiff has failed to establish the prima facie case for discrimination under the Americans with Disabilities Act. Therefore Plaintiffs ADA claim fails.
VIII. Conclusion
Due to the foregoing, Defendant's motion for summary judgment is GRANTED. The motions to strike (Docs. 85, 88, 90, 97, 106) are rendered MOOT. Plaintiffs motion to file supporting argument (Doc. 89) and motion to file proposed findings of fact and conclusions of law (Doc. 99) are GRANTED and such was considered. Plaintiffs motion for summary judgment (Doc. 80) and motions to supplement (113, 114) are DENIED.