Opinion
CIVIL ACTION NO. 1:99-CV-0504-CC
July 13, 2000
ORDER FOR SERVICE OF FINAL REPORT AND RECOMMENDATION
Attached is the report and recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Rules LR 73 and LCrR 58.1. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the report and recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors 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 appellate review of the factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (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.
FINAL REPORT AND RECOMMENDATION
Plaintiff Don Fletcher filed this employment discrimination action against Defendant ADT Security Services, Inc. ("ADT") on February 23, 1999. [Doc. 1]. Plaintiff claims that ADT retaliated and discriminated against him on the basis of his race and age when the company failed to promote him and when it terminated his employment. [Id.]. He contends that these acts were in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. [Id.]. Plaintiff Fletcher also makes a claim of intentional infliction of emotional distress based on Georgia state law. [Id.].
Originally, Tyco International, Inc. ("Tyco") was also a defendant in this case. [Doc. 1]. On July 28, 1999, however, Plaintiff dismissed his claims against Tyco without prejudice [Doc. 15].
On January 20, 2000, Defendant ADT moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure on all claims advanced by Plaintiff based upon the pleadings, statements of material facts, exhibits, and discovery materials submitted by the parties. [Doc. 29].
I. Background Facts
When evaluating the merits of a motion for summary judgment, the court must view the evidence and factual inferences in a light most favorable to the nonmoving party. See Rollins v. TechSouth. Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714 (11th Cir. 1984). Therefore, the evidence presented by the parties having been evaluated in accordance with the foregoing principles, the following facts are deemed to be true for the limited purpose of evaluating Defendant's summary judgment motion. [Doc. 29].
Defendant ADT sells, installs, services, and monitors electronic alarms for residential and commercial use and is organized into business units based on these different functions. [Defendant Statement of Material Facts ("Def. SMF") ¶ 1]. In the Atlanta area, its offices are currently located in Norcross, Georgia, and approximately 250 people work at that location. [Id.]. When some of the events at issue in this lawsuit occurred, the offices were located in Clarkston. [Id.].
In 1974, ADT hired Plaintiff Don Fletcher, a black male born in 1948, as an installer. [Pla. Dep., p. 6; Def. SMF ¶ 3]. In 1989, Plaintiff applied for and was promoted to the position of "Installation Supervisor." [Def. SMF ¶ 4].
ADT selected Joe McConnell to be the Regional Residential Manager for the State of Georgia in February 1996 with responsibilities for both installations and sales. [Def. SMF ¶ 8]. Prior to this, McConnell had been the District Residential Manager based in Tennessee with responsibilities for areas that did not include Georgia. [Id.]. In the Atlanta Office, all of the sales team and two (2) Installation Supervisors; Plaintiff and Matt Autry, reported to McConnell. [Def. SMF ¶ 9].
Shortly after assuming his new position, McConnell determined that an additional level of management was necessary. [Def. SMF ¶ 10]. He subsequently created the positions of Installation Manager and Sales Manager. [Id.]. The Installation Manager was to be the liaison between McConnell and the Installation Supervisors. [Def. SMF ¶ 11]. McConnell looked to the existing Installation Supervisors, Plaintiff and Autry, as the primary candidates for the new position. [Id.].
McConnell began by gathering information about Plaintiff and Autry from their most recent supervisor, Mike Pealor, and from a co-worker, Amy Arrowood Clack, who coordinated activity between the installation and sales departments and, therefore, worked closely with the Installation Supervisors. [Def. SMF ¶ 12]. McConnell testified that he described to Pealor the skills necessary for the new position and asked him for a recommendation. [McConnell Dep., p. 20]. McConnell further testified that Pealor "strongly recommended Matt Autry." [Id.]. Clack also spoke highly of Autry, but, according to McConnell, she spoke negatively of Plaintiff. [Id., pp. 21-22]. Although McConnell testified that he interviewed both Plaintiff and Autry, Plaintiff stated in his affidavit that he was never interviewed by McConnell for a promotion. [McConnell Dep., pp. 24-25; Plaintiff Affidavit ("Pla. Aff.") ¶ 8].
McConnell stated that he called Autry the day after the interviews to offer him the position, and he accepted. [McConnell Dep., p. 26]. One day later, according to McConnell, he called Plaintiff and informed him that he had not been selected for the position. [Id.]. McConnell testified that upon hearing this, Plaintiff "became hostile, belligerent at the time, raised his voice a good bit." [Id.]. Plaintiff, on the other hand, stated in his affidavit that he had "no recollection of acting at all inappropriately on the telephone." [Pla. Aff. ¶ 13].
Plaintiff contacted the Human Resource Manager, Frank Hardee, to ask for a meeting regarding his failure to receive the promotion. [Def. SMF ¶ 26; Pla. Dep., pp. 131-32]. In May 1996, Hardee held a meeting to discuss Plaintiffs concerns and included both McConnell, the decision maker, and Pealor, the former manager, in the meeting. [Def. SMF ¶ 27]. The following week, Plaintiff wrote a letter to Hardee referencing the meeting and listed some "things that [he] would like to see done as a result of what has happened." [Pla. Dep., Ex. 3]. Plaintiff made no mention of race or age, but stated that he "would like for ADT to develop objective standards and criteria for all promotions . . . ." [Id.]. While Plaintiff acknowledges that he "did not raise the exact words," he contends that his suggestions with regard to standards for promotions "clearly encompassed the concept of racial discrimination." [Pla. Resp. to Def. SMF ¶ 28]. In a memo prepared by McConnell after the meeting, he wrote the following, in part:
[Hardee] reminded Don [Fletcher] that he had an opportunity interview with me for the position. Don agreed. Frank then explained that Mike [Pealor] recommended Matt [Autry] instead of Don based on past work performance. Examples were cited . . . . Don initially became defensive and hostile with Mike and categorically denied all Mike's examples. Frank finally settled Don down and as the discussion continued, Don and Mike dialoged examples of poor past performance. . . . Frank then offered Don to help him in his future growth with ADT. Frank felt one method of assistance would be to enroll Don in a self help course such as Dale Carnegie to help his supervisory and communication skills . . . .
[Doc. 29, Ex. 5]. Plaintiff subsequently enrolled in and attended the Dale Carnegie course. [Pla. Dep., pp. 172-74].
Once Autry became the Installation Manager, he interviewed candidates to fill his former position of Installation Supervisor and selected a current installer, Chuck Jackovitch. [Def. SMF ¶ 33]. After Jackovitch's promotion, he and Plaintiff worked together as the Installation Supervisors and shared an office. [Def. SMF ¶ 35]. The installers were divided into two (2) roughly equal teams, one reporting to Plaintiff and the other reporting to Jackovitch. [Def. SMF ¶ 36]. Typically, an installer would report to the assigned Supervisor, but when the assigned supervisor was out of the office, the other supervisor would fill in. [Def. SMF ¶ 37].
On Tuesday, July 8, 1997, Harold Browder, an installer, informed Plaintiff that he was quitting ADT. [Def. SMF ¶ 38; Pla. Aff. 20]. Plaintiff stated that Browder gave notice on a Tuesday to quit that Friday. [Pla. Aff. ¶ 20]. Browder was not an installer on Plaintiffs team; however, Jackovitch was on vacation, so Browder talked to Plaintiff while the two (2) men were standing in the parking lot. [Def. SMF ¶ 39; Pla. Resp. to Def. SMF ¶ 41]. Plaintiff stated that it was his understanding that installers were not allowed to work out their notice. [Pla. Aff. ¶ 211. Accordingly, he told Browder to come in to work the next day to do his separation paperwork and to turn in his ADT truck. [Def. SMF ¶ 40]. Plaintiff testified that Browder then "blew up" and began calling Plaintiff "all kinds of names," but none of the names were racial in nature. [Pla. Dep., pp. 180-81]. Plaintiff stated, "he [Browder] was still talking and running off at the mouth, so I just turned around and went back into the office." [Pla. Dep., p. 181]. Although Plaintiff acknowledges that Browder did not threaten him, he considered the conversation to be "hostile, disrespectful, demeaning and threatening." [Pla. Aff. ¶ 25].
In his deposition and in a letter sent to Autry on July 10, 1997, Plaintiff stated that Browder gave a week's notice. [Pla. Dep., Ex. 6]. However, in his affidavit, Plaintiff stated that Browder did not give a week's notice. [Pla. Aff. ¶ 20].
The next day, Wednesday, July 9, 1997, Browder called in sick. [Def. SMF ¶ 47]. At that time, Plaintiff spoke to Jackovitch and Autry about Browder calling in sick, and he also asked them "to talk to Mr. Browder about his attitude that he displayed out there in the parking lot." [Pla. Dep., p. 187]. They told Plaintiff that they would talk to Browder. [Pla. Dep., p. 188]. On Thursday, July 10, 1997, Browder came in to the office to complete his separation paperwork with his supervisor, Jackovitch, who shared an office with Plaintiff. [Def. SMF ¶ 48]. Jackovitch and Browder discussed his final paycheck, and Browder told Jackovitch, "Mr. Fletcher said I was going to get paid for that day," referring to the previous day when he had called in sick. [Pla. Dep., p. 193]. Plaintiff responded to Browder's comment by saying, "[T]hat's not true." [Id.]. In a memo dated July 10, 1997, the same day of the incident, and addressed to Autry, Plaintiff recounted the next series of events:
At this time Harold became very upset and started raising his voice, pointing his finger and walking towards me. I told Harold to leave the office. He did not leave. He called me an old man, a chicken, punk and faggot and repeatedly told to meet him outside because he was going to beat my ass. At this time I felt as though Harold was going to physically attack me. I responded by pulling out my ADT pocket Knife given to me on my Tenth Anniversary with ADT Security Services. I asked Harold to leave the office again. When Harold was exiting my office, I attempted to close the door behind him. He kicked the office door back open and told me not to close the door. I realize that a supervisor should not have displayed the above behavior. However, at the time I felt I had no other recourse but to protect myself.
[Pla. Dep., Ex. 6].
At his deposition, Plaintiff stated:
I took my hands out of the pocket and I realized when I took them out that the knife was in my pocket. . . . When my hand came out of my pockets they were right down here besides it, sir, side of my pocket. And I realized I had the knife and I took the knife and immediately put it back in my pocket. . . . When my hand came out of my pocket, I had the knife. It was in my hand. I did not realize the knife was in my hand. When it came out of my pocket, I immediately — I did not open the knife. I did not point the knife. I immediately put the knife right back in my pocket.
[Pla. Dep., p. 203]. Browder saw Plaintiff pull the knife out of his pocket and said, "Oh, you've got a knife." [Pla. Dep., p. 207]. According to Plaintiff, Browder also said, "Hey, I'm going to get your job for pulling a knife on me." [Pla. Dep., p. 208]. Plaintiff testified that he responded, "I didn't pull a knife on you, Harold." [Pla. Dep., p. 215]. After this, Jackovitch took Browder out of the building and began talking with him to try to calm him down. [Jackovitch Dep., p. 33]. Jackovitch testified that he "kept trying to influence Mr. Browder not to call the police." [Jackovitch Dep., pp. 36-37]. Browder, on the other hand, testified that someone at ADT suggested that he bring criminal charges against Plaintiff. [Browder Dep., p. 13].
After learning of the incident, Autry asked another manager, Mark Barry, for assistance, and they investigated the incident together. [Def. SMF ¶ 56]. Plaintiff testified that Barry and Autry interviewed him and asked him to write a statement explaining what had happened. [Pla. Dep., pp. 218-20]. The previously mentioned memo written by Plaintiff and dated July 10, 1997, was the result of this request. [Pla. Dep., Ex. 6]. Autry testified that Plaintiff admitted pulling the knife during his argument with Browder and that Plaintiff admitted that the knife blade was open. [Autry Dep., p. 25]. Plaintiff was then sent home for a "cooling off period" pending the investigation. [Id.]. Jackovitch and Browder were each asked to write a statement describing what had happened. [Jackovitch Dep., p. 38; Browder Dep., p. 13]. Joe McConnell, the Regional Residential Manager, testified that he was out of the office on the day the incident occurred, but he became involved in the investigation when he returned the next day, Friday, July 11, 1997. [McConnell Dep., p. 30].
Autry and McConnell, after speaking with ADT Human Resources personnel, made the decision to fire Plaintiff. [Autry Dep., pp. 26, 29; McConnell Dep., pp. 30-33, 42-43]. Both Autry and McConnell testified that they decided to fire Plaintiff because he had pulled a knife on another employee. [Autry Dep., p. 26; McConnell Dep., p. 431. On Sunday, July 13, 1997, Autry called Plaintiff at home and told him to come to the office the next day. [Autry Dep., p. 26]. When Plaintiff arrived at the office on Monday, July 14, 1997, Autry and McConnell met with him, and Autry informed Plaintiff that his employment with ADT was terminated. [Def. SMF ¶ 63].
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 8, 1997, alleging that his termination was based on his race and age. [Doc. 29, Ex. 14]. Plaintiff also alleged that he had been retaliated against for complaining about discriminatory promotion practices. [Id.]. The charge lists July 14, 1997, as both the earliest and latest date that discrimination took place. [Id.]. On June 30, 1998, the EEOC issued a determination letter favorable to Plaintiff; however, the parties apparently were not able to reach a settlement through the conciliation process. [Doc. 44, Ex. 8]. Plaintiff filed this action against Defendant ADT on February 23, 1999. [Doc. 1].
II. Summary Judgment Standard
The court should grant a motion for summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. The movant carries his burden by showing the court that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats Clark. Inc., 929 F.2d 604, 608 (11th Cir. 1991). The nonmovant is then required "to go beyond the pleadings" and present competent evidence in the form of affidavits, depositions, admissions and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Generally, "[t]he mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Resolving all doubts in favor of the nonmoving party, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id.
"In an employment discrimination case, the plaintiff must produce sufficient evidence to support an inference that the defendant-employer based its employment decision on an illegal criterion." Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997). Summary judgment in favor of the defendant-employer is proper unless the plaintiff puts forth sufficient evidence to allow a fact finder to disbelieve each of employer's proffered explanations for its actions. See id. (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1532 (11th Cir. 1997), cert. denied, 522 U.S. 1045, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998)). While the Eleventh Circuit has stated that "in general, summary judgment is an inappropriate tool for resolving claims of employment discrimination,"Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987), subsequent decisions "have weakened this broad proposition, concluding that `despite the general presumption against using summary judgment to resolve the largely factual questions concerning discriminatory intent, it is possible for the defendant to present such strong evidence of a nondiscriminatory rationale that summary judgment is warranted.'" Cross v. Southwest Recreational Industries, Inc., 17 F. Supp.2d 1362, 1367 (N.D. Ga. 1998) (quoting Brown v. American Honda Motor Co., Inc., 939 F.2d946, 950 (11th Cir. 1991)).
III. Discussion
A. Plaintiff's Failure to Promote Claim
In his complaint, Plaintiff asserted a claim of discriminatory failure to promote. [Doc. 1]. However, Plaintiff acknowledged in his reply to Defendant's summary judgment motion that this claim was barred because of untimeliness. [Doc. 44, pp. 1, 11, 12]. Accordingly, the undersigned RECOMMENDS that Defendant's summary judgment motion [Doc. 29] be GRANTED on Plaintiffs claims of discriminatory failure to promote.
In his reply to Defendant's summary judgment motion, Plaintiff "asserts that he worked in a hostile work environment . . . ." [Doc. 44, p. 1]. As far as the court can tell, this is the first time Plaintiff has contended that he was subjected to a hostile work environment. Because Plaintiff made no mention of a hostile work environment in either his EEOC charge or his complaint, he will not be permitted to raise such a claim this late in the proceedings.
B. Plaintiff's Claim of Discriminatory Termination
Plaintiff argues that Defendant ADT's termination of his employment was based on his race and age in violation of Title VII, 42 U.S.C. § 1981, and the ADEA. [Doc. 1]. Plaintiff seeks to use § 1981 as a parallel basis for relief with his Title VII race claim. The elements required to establish a § 1981 claim mirror those required for a Title VII claim. As the Eleventh Circuit recently noted, "Both of these statutes have the same requirements of proof and use the same analytical framework, therefore we shall explicitly address the Title VII claim with the understanding that the analysis applies to the § 1981 claim as well." Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). This court will do the same.
For individual disparate treatment claims, the plaintiff carries the burden of demonstrating that the defendant has unlawfully discriminated against him. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The familiar McDonnell Douglas framework governs the allocation of burdens and order of presentation and proof, which are as follows: (1) the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence; (2) if the plaintiff proves a prima facie case, the court will presume discriminatory intent and the burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the action taken against the employee; and (3) if the defendant carries this burden, the presumption of discrimination is eliminated, and plaintiff has an opportunity to prove by a preponderance of the evidence that the legitimate reason offered by the defendant was a pretext for discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642-643 (11th Cir. 1998).
To establish a prima facie case of racially discriminatory termination, Plaintiff must prove by a preponderance of the evidence that 1) he is a member of a protected class; 2) he was qualified for the job from which he was terminated; 3) that he was terminated; and 4) that Plaintiff was replaced by someone outside his protected class. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984). Similarly, for Plaintiffs claim of age-based discrimination, he must demonstrate (1) that he was in the age group protected by the ADEA (i.e., aged forty (40) or older); (2) that he was qualified for the position; (3) that he was terminated; and (4) that he was replaced by a significantly younger individual. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d433 (1996); Jameson v. Arrow Co., 75 F.3d 1528, 1532 (11th Cir. 1996); Earley v. Champion International Corp., 907 F.2d 1077, 1082 (11th Cir. 1990).
Because Plaintiff is a black man over the age of forty (40) who was terminated from his employment, he is able to establish two (2) of the prima facie elements in both his race and age-based claims. It is also undisputed that he was qualified for his job. The only element in question is the last one because Plaintiff does not make it clear who replaced him after he was fired. Defendant apparently concedes, however, that it was a significantly younger, non-black employee as the company acknowledges that Plaintiff can make out a prima facie case of both age and race discrimination in his termination. [Doc. 29, p. 14]. Thus, "the burden of producing legitimate, nondiscriminatory reasons for the challenged employment action" shifts to the employer, Defendant ADT. Combs, 106 F.3d at 1528 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).
To satisfy its burden of production, "the defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. (quotingBurdine, 450 U.S. at 454-55, 101 S.Ct. at 1094). At this point in the McDonnell Douglas framework, "the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus."Id. (quoting Burdine, 450 U.S. at 257, 101 S.Ct. at 1096).
Defendant ADT claims that it fired Plaintiff because he brandished a knife during his argument with Browder. [Pla. Dep., pp. 203-08; Autry Dep., p. 26; McConnell Dep., p. 431. McConnell testified that Plaintiff was terminated rather than sanctioned because "he was a supervisor, we simply held him to a higher standard than non-supervisors. And it was the threatening of another employee with the deadly weapon." [McConnell Dep., p. 43]. Matt Autry stated that Plaintiff was fired "[f]or pulling a knife on another individual." [Autry Dep., p. 26]. Although Plaintiff argues that "[i]t was not reasonable for the company to believe that this incident reflected a serious violation of work rules," the court finds it entirely reasonable to believe that pulling a knife during an argument with a co-worker is serious. Defendant ADT has, thus, satisfied its "exceedingly light" burden as Defendant's stated reason for firing Plaintiff is both legitimate and non-discriminatory. Walker v. NationsBank of Florida, 53 F.3d 1548, 1556 (11th Cir. 1995); Perrymen v. Johnson Products, Co., 698 F.2d 1138, 1142 (11th Cir. 1983).
Because ADT has met its burden of production, "the presumption of discrimination created by the McDonnell Douglas framework "drops from the case,' and `the factual inquiry proceeds to a new level of specificity.'" Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1094-95 n. 10). At this point in the burden shifting analysis, the plaintiff is given "the opportunity to demonstrate that the defendant's articulated reason for the adverse employment action is a mere pretext for discrimination." Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825 36 L.Ed.2d 668 (1973)); Combs, 106 F.3d at 1528. Plaintiffs proof of pretext merges with his "ultimate burden of showing that the defendant intentionally discriminated against the plaintiff." Holifield, 115 F.3d at 1565 (citingSt. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L. Ed. 2d 407 (1993)).
The plaintiff must show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence." Combs, 106 F.3d at 1538 (quotingSheridan v. E.I. DuPont De Nemours Co., 100 F.3d 1061, 1072 (11th Cir. 1996), cert. denied, 521 U.S. 1129, 117S.Ct.2532, 138 L.Ed.2d 1031 (1997)). The court "must, in view of all the evidence, determine whether the plaintiff has cast sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable fact finder to conclude that the employer's proffered `legitimate reasons were not what actually motivated its conduct.'" Combs, 106 F.3d at 1538 (quoting Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)). See also Miles v. M.N.C. Corp., 750 F.2d 867, 870-71 n. 4 (11th Cir. 1985).
Plaintiff argues that Defendant ADT's reasons are pretexts for discrimination because: 1) a disparity in discipline existed between Plaintiff and younger white employees; and 2) ADT management had a plan to terminate Plaintiff before the knife incident. [Doc. 44, pp. 12-14]. Before examining Plaintiffs arguments, the court first notes that Plaintiff does not dispute the basic facts upon which Defendant's legitimate, nondiscriminatory reason are based. Although Plaintiff disagrees with some of the details as recounted by witnesses, he acknowledges that he withdrew a knife from his pocket during an argument with Browder, that Browder saw him do this, and that the termination decision was made within a couple of days of this incident. In other words, Plaintiffs pretext arguments are not that Defendant's stated reason is unworthy of credence, but that it was "not what actually motivated [ADT's] conduct." Combs, 106 F.3d at 1538.
Plaintiff contends that the decision of the Administrative Law Judge ("ALJ") in Plaintiffs unemployment compensation hearing is entitled to great weight. [Doc. 44, p. 6]. Plaintiff has failed, however, to show what exactly the ALJ found or what evidence was presented to the A. [Doc. 44]. He has also not shown how the AU's finding is relevant to the issues presently before this court. For these reasons, the court will not consider Plaintiffs summary of the ALJ's findings. See Arroyo v. WestLB Administration, Inc., 54 F. Supp.2d 224, 230 (S.D.N.Y. 1999).
As the Eleventh Circuit has made clear, 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 Communications, 738 F.2d 1.181, 1187 (11th Cir. 1984). "Federal courts `do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, the [law] does not interfere.'" Elrod v. Sears. Roebuck Co, 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears. Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988)). As long as the decisioninakers at ADT believed that Plaintiff had brandished a knife during an argument, that this warranted his termination, and that this was the reason he was terminated, even if the decisionmakers were mistaken in their belief, pretext is not established. See Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987).
Plaintiff argues that "[s]erious discipline was not imposed on younger white males, whereas it was routinely imposed upon black males." [Doc. 44, p. 14]. Plaintiffs argument is that pretext can be established by showing a disparity in discipline between Plaintiff and younger or non-black employees. To show pretext based on disparate discipline, a plaintiff must point to a similarly situated employee who was involved in or accused of the same or similar conduct" but was disciplined less severely. Holifield, 115 F.3d at 1562.
In his response to Defendant's summary judgment motion, Plaintiff does not identify any other employee who was ever disciplined by ADT. Instead, he simply makes a number of conclusory allegations. Plaintiff speaks of "disproportionate discipline between whites and blacks," "wide spread disparity of treatment in promotions and discipline between black and white employees," and he claims that "[s]erious discipline was not imposed on younger white males, whereas it was routinely imposed upon black males." [Doc. 44, pp. 6, 13, 14]. However, he does not refer to any employees, their alleged misconduct, or the discipline they received. "Conclusory allegations or evidence setting forth legal conclusions are insufficient to meet the plaintiffs burden" at summary judgment. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993) (citations omitted).
Moreover, even after examining the record, the court is unable to find any evidence of a similarly situated employee who was disciplined less severely than Plaintiff for similar misconduct. [See e.g., Pla. Dep., pp. 244-68, Ex. 7]. In a memorandum dated October 8, 1997, Plaintiff cites a number of "incidents in which ADT has not reprimanded high ranking officials, who where [sic] in clear violation of the Code of Conduct Guidelines." [Pla. Dep., Ex. 7]. Plaintiff claims that four (4) employees were involved in sexual harassment/sexually explicit practical jokes, two (2) stole ADT property, one had illegally used drugs and had used a company vehicle for personal matters, one had arrived at work drunk, one had two (2) D.U.I.'s in eight (8) years, two (2) had been in a "heated verbal argument," and one had a pistol and a rifle in his truck and was dating a fellow employee. [Pla. Dep., Ex. 7]. While these incidents involve alleged misconduct by other ADT employees, none of them involve an employee who brandished a weapon during an argument. In addition, although Plaintiff states at the beginning of the memo that the above-mentioned employees were not reprimanded, he later states that four (4) of them were terminated and three (3) were suspended. [Id.]. Because Plaintiff fails to identify any similarly situated employee who was "involved in or accused of the same or similar conduct" but was disciplined less severely, this pretext argument fails. Holifield, 113 F.3d at 1562.
Plaintiff next argues that he is able to show pretext by proving that ADT decisionmakers had a plan to fire him before the knife incident with Browder. Plaintiff contends that Defendant ADT was "simply looking for a reason to terminate plaintiff based on a prior determination to promote a younger white male." [Doc. 44, p. 13]. In support of this contention, Plaintiff cites the deposition testimony of Phillip Hull. [Id.]. Hull, a former employee of ADT, testified to the following:
A. I heard several people say that as soon as he [Plaintiff Fletcher] is out, this young man will be promoted. I don't remember the young man's name. I do remember his face very well, but I don't remember his name. Q. Who was the young, white employee that took over his position? A. I don't remember his name. Q. But do you remember the individual that had been identified in these conversations actually getting Mr. Fletcher's job? A. Yes. I was told that, yes. Q. Now, when you say you overheard these comments, do you know who was in the office making them? A. The guy that got the job, I heard him say it outside one day talking to someone else. I didn't know their names. Q. The young white guy? A. I didn't know his name. Q. Were any of these people managers at the time they made the comments? A. I don't recall . . . . Q. Right. I'm saying other than that, are there any other individuals you can identify more specifically than that? A. No.
[Hull Dep., pp. 53-54]. Plaintiff contends that Hull's testimony reveals a plan on the part of ADT to terminate his employment.
The court finds this pretext argument unpersuasive for a number of reasons. First, by Hull's own account, the statements were made by someone beneath Plaintiff in the hierarchy of the company. Statements made by a nondecisionmaker, such as the person identified by Hull, are not relevant to the issue of whether a decisionmaker's reasons for firing an employee are pretextual. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 1804-05, 104 L. Ed. 2d 268 (1989).
Although Hull's testimony is inadmissible hearsay and the alleged declarant is not identified by name, the court will assume the hearsay could be reduced to admissible form at trial. See Pritchard v. Southern Co. Services, 92 F.3d 1130, 1135 (11th Cir. 1996), amended on reh'g, 102 F.3d 1118 (11th Cir. 1996).
Second, Hull simply testified that he heard an unidentified non-decisionmaker say that "once Don is out of the office," the declarant would replace him. [Hull Dep., p. 941. Because the context of the conversation is unknown, this statement could have meant any one of a number of things that had nothing to do with a discriminatory plan to fire Plaintiff. This conclusion is borne out by Hull's own testimony. Hull stated that when he first heard these comments, he believed that they were an indication that Plaintiff was "moving up in the company." [Hull Dep., p. 94]. Greg Autry's testimony at this point is also relevant. He stated that Plaintiff himself informed Autry that Autry was "next in line" to be promoted to Plaintiffs position as supervisor. [G. Autry Dep., p. 6].
While a court must make all reasonable inferences in favor of the nonmovant on a summary judgment motion, see Rollins, 833 F.2d at 1529, inferences based on speculation and conjecture need not be made. See Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir. 1982). In the present case, Plaintiff would have the court conclude that the statement heard by Hull ("once Don is out of the office") revealed a pre-existing, discriminatory plan to fire Plaintiff. Because the inference Plaintiff draws from this statement requires a great deal of speculation, the court finds that the inference is unreasonable and that Plaintiffs pretext argument fails.
Accordingly, the court RECOMMENDS that Defendant ADT's summary judgment motion [Doc. 29] be GRANTED on Plaintiffs claim of discriminatory termination based on Title VII, 42 U.S.C. § 1981, and the ADEA.
C. Plaintiff's Claim of Retaliation
Plaintiff also claims that his termination was in retaliation for complaints of discrimination in violation of Title VII, 42 U.S.C. § 1981, and the ADEA. [Doc. 1; Doc. 44, p. 15]. The framework set out in McDonnell Douglas applies to retaliation cases. See Holifield, 115 F.3d at 1562; Robinson v. AFA Service Corp., 870 F. Supp. 1077, 1083 (N.D. Ga. 1994). To establish a prima facie case of retaliation, a plaintiff must show: 1) a, statutorily protected expression, 2) an adverse employment action, and 3) a causal link between the adverse action and the protected expression. See Wideman v. Wal-Mart Stores. Inc., 141 F.3d 1453, 1454 (11th Cir. 1998); Hairston v. Gaineville Sun Publishing Co., 9 F.3d 913, 919 (If" Cir. 1994); Durrani v. Valdosta Technical Institute, 810 F. Supp. 301, 306 (M.D. Ga. 1992). 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 (quoting Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989)). Moreover, "[i]t is important to note that this circuit interprets the causation requirement broadly: `a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.'" Robinson, 870 F. Supp. at 1083 (quoting EEOC v. Reichold Chems., Inc., 988 F.2d 1564, 1571 (11th Cir. 1993)). See also Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998).
Because Plaintiff was terminated, he is able to establish that he was subjected to an adverse employment action, which is the second prima facie element. However, Plaintiff cannot establish that he engaged in any statutorily protected expression. To satisfy this element, the employee must show, at the very least, that he communicated to the employer his belief that discrimination has occurred or is occurring. See Webb v. R B Holding Company. Inc., 992 F. Supp. 1382, 1389 (S.D. Fla 1998). Plaintiff did not do this. The closest Plaintiff came to engaging in protected expression occurred in May 1996, when he complained to management about the company "s decision not to promote him. Although Plaintiff "had come to believe that both race and age were part of the decision to deny [his] promotion," he acknowledges that he "did not raise the exact words" race or age because he was allegedly concerned about retaliation. [Pla. Aff. ¶ 7; Doc. 44, p. 4; Pla. Resp. to Def. SMF ¶ 28]. Plaintiff contends, however, that his suggestions with regard to standards for promotions "clearly encompassed the concept of racial discrimination." [Pla. Resp. to Def. SMF ¶ 281.
Plaintiffs argument fails. "It is not enough for the employee merely to complain about a certain policy or certain behavior of co-workers and rely on the employer to infer that discrimination has occurred." Webb, 992 F. Supp. at 1389. Because Plaintiffs actions do not constitute protected expression, he has failed to make out a prima facie case of retaliation.
Assuming arguendo that Plaintiff had established some protected activity, his prima facie case would still fail as he has offered no evidence that a causal link existed between the protected activity, which occurred in May 1996, and his July 1997 termination. See Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999); Robinson, 870 F. Supp. at 1083.
The court, therefore, RECOMMENDS that Defendant ADT's summary judgment motion [Doc. 29] be GRANTED on Plaintiffs retaliation claim.
The court notes Plaintiffs assertion that he was "relatively well known for his opinions" and that he "had been urging black employees to claim their right to fair and equal treatment . . . for a long time." [Doc. 44, p. 15]. Plaintiff cites nothing in support of these assertions. Like other statements made by Plaintiff, these amount to nothing more than conclusory allegations. "[M]ere verification of a party's own conclusory allegations is not sufficient to oppose a motion for summary judgment . . . ." Pullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).
D. Plaintiff's Claim of Intentional Infliction of Emotional Distress
Because the court recommends granting summary judgment on all of Plaintiffs federal claims, the only remaining claim is a state law claim of intentional infliction of emotional distress. 28 U.S.C. § 1367(c)(3) provides, in pertinent part, "The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction . . . ." The court RECOMMENDS that supplemental jurisdiction not be exercised over Plaintiffs state law claim and that it be dismissed without prejudice. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.").
IV. Conclusion
For all the foregoing reasons and cited authority, the undersigned RECOMMENDS that Defendant's Motion (Doc. 291 for Summary Judgment be GRANTED with respect to all of Plaintiffs federal claims and that Plaintiffs state law claim be dismissed without prejudice.
The Clerk is DIRECTED to terminate this reference.