Mitchell v. Caterpillar, Inc.

Full title: DALE MITCHELL, Plaintiff, v. CATERPILLAR, INC., Defendant

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

Date published: Jan 17, 2006

Civil Action No. 1:03-cv-0868-GET (N.D. Ga. Jan. 17, 2006)

Opinion

Civil Action No. 1:03-cv-0868-GET.

January 17, 2006

ORDER

G. TIDWELL, Senior District Judge

The above-styled matter is presently before the court on:

1) defendant's objections [docket no. 62] to the Magistrate Judge's Report and Recommendation ("R R") [docket no. 61];

2) plaintiff's objections [docket no. 63] to the R R [docket no. 61];

3) plaintiff's motion for leave to file excess pages [docket no. 65] in his response to defendant's objections.

Plaintiff filed the instant action on March 31, 2003, alleging that defendant, his former employer, discriminated against him on the basis of his race, in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, et, seq., ("Title VII"), and age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et. seq. On November 4, 2004, defendant filed a motion for summary judgment. The same day, plaintiff filed a motion for partial summary judgment. On July 26, 2005, the Magistrate Judge issued a non-final R R recommending that defendant's motion for summary judgment be denied, and plaintiff's motion for partial summary judgment be granted in part and denied in part. On August 9, defendant filed objections to the portions of the R R recommending that its motion for summary judgment be denied. On August 12, plaintiff filed objections to the portions of the R R recommending that its partial motion for summary judgment be denied in part.

Background

Plaintiff, a fifty-one year old white man, was a part of a management team in defendant's Fuel Systems Division. Mr. Marshall, a young black man, was also on the management team. Mr. Green was the General Manager of the Fuel Systems Division. After Green received a letter from an employee in his division complaining about the management team, he sent Mr. Schappaugh and Ms. Carlin to investigate. Schappaugh provided a report on the investigation to Green, and recommended that plaintiff be terminated. During the investigation, Marshall was transferred to another division within the company. Plaintiff was terminated based on the investigation results; Marshall was not.

Standard

Pursuant to 28 U.S.C. § 535 (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) Both parties have filed objections. The court will address each party's objections as presented.

Defendant' s Objections

"In an employment discrimination case, the plaintiff must first make out a prima facie case. When the defendant produces legitimate nondiscriminatory reasons for the adverse employment action, the burden shifts back to the plaintiff to establish these reasons are pretextual." Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11^th Cir. 1990). The Magistrate Judge found that plaintiff raised an issue of fact as to whether it could establish a prima facie case through circumstantial evidence, and that defendant offered a legitimate, non-discriminatory reason for the decision to fire plaintiff but retain Marshall: Marshall had been transferred to a division outside of Green's authority before the investigation was complete. Defendant objects only to the finding that an issue of fact existed as to whether this non-discriminatory reason was pretext. Accordingly, the court's discussion is limited to that issue. Because defendant did not object to the Magistrate Judge's findings of fact, the Magistrate Judge's findings will be accepted by this court on this issue.

In order to establish pretext "[t]o survive summary judgment, plaintiff must present concrete evidence in the form of specific facts which show that the defendant's proffered reason is mere pretext. Mere conclusory allegations and assertions will not suffice." Earley, 907 F.2d 1077 at 1081. The evidence may include the previously produced evidence that established the prima facie case. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11^th Cir. 2000). The Magistrate Judge found that the following evidence raised an issue of fact as to whether defendant's reason was pretext: (1) Marshall was not terminated, and (2) Schappaugh, who made recommendations about appropriate action in light of the management team failure, believed Marshall should not be terminated in part due to the importance of having young minority managers. Defendant contends that the Magistrate Judge should not have considered the first piece of evidence because Marshall was not similarly situated to plaintiff; nor the second, because Schappaugh's testimony has no bearing on whether Green had a discriminatory reason for plaintiff's discharge. Finally, defendant contends that even if plaintiff has met its burden to show sufficient evidence that a jury could find that defendant's non-discriminatory reason was pretext for race discrimination, it cannot for age discrimination.

Objection No 1

Defendant objects to the Magistrate Judge's reliance on the treatment of Marshall in determining that plaintiff offered sufficient evidence to show pretext, contending that Marshall was not similarly situated to plaintiff at the time the decision was made to terminate plaintiff's employment.

"In order to meet the comparability requirement a plaintiff is required to show that he is similarly situated in all relevant aspects to the [comparator] employee." Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11^th Cir. 2001). If the alleged comparator is not similarly situated to plaintiff, his treatment by the employer has no bearing on plaintiff's showing of discrimination, and in fact plaintiff cannot establish even a prima facie case. See Maynard v. Bd. of Regents of Div. of Univ's of the Fla. Dept. of Educ., ex. rel. the Univ. of South Fla., 342 F.3d 1281 (11^th Cir. 2003). Therefore, if plaintiff and Marshall were not similarly situated, Marshall's treatment is not probative to the issue of whether plaintiff's treatment was discriminatory.

Defendant contends that plaintiff was not similarly situated to Marshall because Marshall had been transferred to another division by the time Green decided that the management team should be fired. Defendant argues that in the Eleventh Circuit, when a decisionmaker testifies that the alleged comparator would have been terminated except that the decisionmaker believed it did not have the authority, plaintiff and the alleged comparator are not similarly situated. See Silvera, 244 F.3d 1253, 1259-1260. Because Green testified that h e did not fire Marshall because he believed he did not have the authority, defendant argues thatSilvera compels the court to find that plaintiff and Marshall were not similarly situated.

However, Silvery discusses the authority of the decisionmaker in its evaluation of whether defendant's proffered reason for firing plaintiff but not the alleged comparator was non-discriminatory or pretext. See id., 244 F.3d at 1260. The court found that a quest ion of fact exists when there is "some reasonable basis in the evidence" for disbelieving the decisionmaker's content i on. Accordingly, Silvery does not require the court to find as a matter of law that plaintiff and Marshall were not similarly situated. Rather, it requires determination of whether there is a reasonable basis in the evidence for finding that defendant's reason was pretext. Id.

The Magistrate Judge found that plaintiff offered sufficient evidence to raise a question of fact as to whether Green would have fired Marshall if he had the authority, because neither Green nor Schappaugh promptly notified Marshall's new manager, who did have the authority to fire him, of Marshall's misconduct. Specifically, the Magistrate Judge cites Green and Schappaugh's failure to alert Marshall's new manager as to the pending investigation at the time Marshall was promoted to the new division; the positive evaluation by Schappaugh after Schappaugh became aware of the complaints against Marshall; the failure of Green and Schappaugh to meet with Marshall's new manager concerning the investigation results until July 2002, two months after Green fired plaintiff based on those results; the failure to recommend that action be taken against Marshall; and the failure to convey the more serious allegations against Marshall in the "white paper" issued about Marshall to his new manager.

Defendant contends that this evidence does not bear on whether Green failed to terminate Marshall due to a lack of authority because Schappaugh's evaluation and meeting with Marshall's new manager reflects Schappaugh's view, and Green is the decisionmaker; at the time Marshall was transferred and Schappaugh completed the evaluation, the investigation into the management team was in its early stages; and the "white paper" is sufficiently strongly worded.

Green's failure to meet with Marshall's new manager or convey to him that Green considered Marshall's actions grounds for termination and had fired the other members of the management team is probative to whether Green's reason for not terminating Marshall was pretext for racial and age discrimination. Similarly, Schappaugh's actions and failure to act tend to indicate whether his recommendation to Green that Green terminate plaintiff but that insufficient evidence existed to terminate Marshall was motivated by a discriminatory animus. Schappaugh's discriminatory animus could be at issue under the "cat's paw" theory, as discussed with respect to defendant's objection no. 2. Consequently, the Magistrate Judge appropriately considered this evidence.

Because the court cannot determine as a matter of law that plaintiff and Marshall were not similarly situated, and because plaintiff offers a reasonable basis in the evidence to find that defendant's proffered nondiscriminatory reason was pretext, defendant's objection [docket no. 62] on the ground that Marshall and plaintiff were not similarly situated is OVERRULED.

Objection No. 2

Defendant contends in its second objection that plaintiff could not raise an issue of fact as to pretext if the Magistrate Judge had not improperly relied upon Schappaugh's testimony.

Defendant first argues that Schappaugh's testimony regarding Marshall's termination should not be considered as a matter of law because Marshall is not similarly situated to plaintiff. For the reasons discussed in defendant's first objection, there is a question of fact as to whether Marshall and plaintiff are similarly situated.

Defendant secondly argues that Schappaugh's testimony should not be considered because Schappaugh is not the decisionmaker, but merely made recommendations to Green based on his investigation into the management team. "Comments by non-decisionmakers do not raise an inference of discrimination." Mitchell v. USBI Co., 186 F.3d 1352, 1355 (11^th Cir. 1999). However, "a discharge recommendation by a party with no power to actually discharge the employee may be actionable if the plaintiff proves that the recommendation directly resulted in the plaintiff's discharge."Stimpson v. City, of Tuscaloosa, 186 F.3d 1328, 1332 (11^th Cir. 1999). "One way of proving that the discriminatory animus behind the recommendation caused the discharge is under the `cat's paw' theory." Id. Under the "cat's paw theory," an employer may be found liable for discrimination against an employee when an unbiased decisionmaker follows the biased recommendation of a subordinate without independently investigating the complaint against the employee. Id. Defendant argues that the Magistrate Judge erred in finding a question of fact as to whether Green had acted as a "cat's paw" in following Schappaugh's recommendation to terminate plaintiff's employment.

Defendant argues that Green could not have acted as a "cat's paw" because he did not follow Schappaugh's recommendation. Schappaugh recommended that plaintiff be terminated, and that a "white paper" be issued to Marshall's new manager concerning the investigation, but believed the evidence against Marshall was inconclusive. Defendant points to Green's testimony that he would have fired Marshall if Marshall had not first been transferred to show that Green did not follow Schappaugh's recommendation. However, the issue is whether Green followed Schappaugh's recommendation to terminate plaintiff, and whether that recommendation was tainted by Schappaugh's preference to have younger minorities rather than older white men as managers. A showing that Green disagreed over the recommendation as to Marshall shows at most that Green evaluated the evidence with respect to Marshall; if he accepted Schappaugh's recommendation as to plaintiff without investigation, and that recommendation was tainted by Schappaugh's bias, Green would be a "cat's paw."

The issue, then, is whether Green accepted Schappaugh's recommendation to terminate plaintiff without conducting a separate evaluation of the evidence. Green testified that he did not review any of the underlying information collected during the investigation, and admitted that Schappaugh's recommendations had "substantial influence" in the outcome of the investigation. Consequently, the court cannot find as a matter of law that Green could not have acted as a "cat's paw" of Schappaugh. Therefore, whether Schappaugh had a discriminatory motive is pertinent to plaintiff's showing of discrimination under the cat's paw theory. Accordingly, defendant's objection [docket no. 62] on the ground that Schappaugh's testimony was improperly considered is OVERRULED.

Objection No. 3

Finally, defendant argues that even if plaintiff has sufficient evidence to create an issue of fact as to whether defendant's non-discriminatory reason was pretext for racial discrimination, it has not offered sufficient evidence to permit the same finding for age discrimination. Defendant points to several facts that, it argues, preclude the court from finding an issue of fact as to whether defendant's reason was pretext for age discrimination: several managers in the company are the same age or older than plaintiff, including Green, Schappaugh, and the Vice President over Green; defendant replaced plaintiff with a man who was only three years younger; defendant had hired plaintiff two years earlier when his age was not significantly different; and Schappaugh testified that he was concerned with having different races and religions in the workplace, regardless of age. However, Schappaugh also testified that he saw value in having people who weren't "older white men" in management, and that it helped that Marshall was a "young up and comer." While defendant argues that these statements by Schappaugh were phrased by plaintiff's counsel, Schappaugh agreed to each of the statements. Accordingly, the court finds that there is an issue of fact concerning whether Schappaugh recommended the disparate treatment of plaintiff and Marshall based on age, as well as race.

Accordingly, defendant's objections [docket no. 62] to the Magistrate Judge's R R [docket no. 61] are hereby OVERRULED. The court ADOPTS and INCORPORATES HEREIN the portions of the R R [docket no. 61] recommending that defendant's motion for summary judgment be DENIED.

Plaintiff's Objections

Plaintiff objects to the portions of the R R that deny plaintiff's motion for summary judgment. Specifically, plaintiff argues that the Magistrate Judge erred in failing to find, as a matter of law, that Schappaugh's testimony was direct evidence of discrimination, because the Magistrate Judge failed to find that Green was acting as Schappaugh's "cat's paw." Plaintiff contends that because it offered direct evidence of discrimination, and defendant did not meet its burden on defenses, it is entitled to summary judgment.

Schappaugh directly testified that he had a preference for managers who were not old and white, and that his recommendation that Green not terminate Marshall was based twenty percent (20%) on his belief that it was beneficial to defendant to have a young, black man working in management. As explained in the discussion of defendant's objection no. 2, Schappaugh's testimony is at issue if Schappaugh used Green as his "cat's paw." Plaintiff contends that the Magistrate Judge erred in failing to find, as a matter of law, that Green was Schappaugh's "cat's paw."

However, a case does not fit within the "cat's paw" theory if the decisionmaker met with the plaintiff before acting on the subordinate's adverse recommendation. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11^th Cir. 1998). Green testified that he met with plaintiff personally while his decision to terminate plaintiff was "not necessarily irrevocable," informed plaintiff of the allegations against him, and gave plaintiff an opportunity to respond. Plaintiff argues that Green had already made his decision before the meeting, based solely on Schappaugh's information, and offers in support of this contention a script, included in Green's deposition, which was used by Green in the meeting and definitively concludes by telling plaintiff his employment is terminated. However, Green's meeting with plaintiff, in addition to the evidence discussed under defendant's objection no. 2, creates an issue of fact as to whether the "cat's paw" theory can apply to the case.

Plaintiff argues that Schappaugh's testimony is direct evidence of discrimination requiring summary judgment. Direct evidence is evidence that establishes the existence of discriminatory intent behind the employment decision without any inference or presumption. Bass v. Bd. of County Comm'rs, Orange County, Fla., 256 F.3d 1095, 1105 (11^th Cir. 2001). Therefore, "[r]emarks by non-decisionmakers are not direct evidence of discrimination." Id. Plaintiff offers no theory besides the "cat's paw" theory, in its objections, to show that Schappaugh is a decisionmaker. Further, plaintiff does not argue that any testimony of Green's is direct evidence of discrimination. Consequently, plaintiff offers no basis by which the court could find direct evidence of discrimination, as a matter of law, once it determined that an issue of fact as to whether Green was Schappaugh's "cat's paw."

Finally, plaintiff argues that defendant cannot sustain its burden to show an affirmative defense in order to limit damages. However, the burden does not shift to defendant until plaintiff has made a showing of discrimination. Lewis v. Young Men's Christian Ass'n, 208 F.3d 1303, 1305 (11^th Cir. 2000) (plaintiff must show a violation under the section). Because plaintiff is not entitled to summary judgment on his discrimination claim, plaintiff's arguments concerning defendant's limitation of damages are premature.

Accordingly, and for all the aforementioned reasons, plaintiff's objections [docket no. 63] to the Magistrate Judge's R R [docket no. 61] are hereby OVERRULED. The court ADOPTS and INCORPORATES HEREIN the R R [docket no. 61].

Summary

1) defendant's objections [docket no. 621 to the Magistrate Judge's R R [docket no. 61] are OVERRULED;

2) plaintiff's objections [docket no. 63] to the Magistrate Judge's R R [docket no. 61] are OVERRULED; and

3) plaintiff's motion for leave to file excess pages [docket no. 65] in his response to defendant's objections is GRANTED.

The court ADOPTS and INCORPORATES HEREIN the Magistrate Judge's R R [docket no. 61], recommending that defendant's motion for summary judgment [docket no. 37] be DENIED and plaintiff's motion for summary judgment [docket no. 40] be GRANTED in part and DENIED in part.

SO ORDERED.