Opinion
No. 1:00CV00581
November 21, 2002
MEMORANDUM OPINION
This matter is before the court on Defendant Smurfit-Stone Corporation's Motion for Summary Judgment, Plaintiff George Elvis Moyer's motion contesting the affidavit of Jim Seel, and Plaintiff's motion for summary judgment. For the reasons set forth herein, Defendant's Motion for Summary Judgment will be granted. Plaintiff's Motion Contesting the Affidavit of Jim Seel and Plaintiff's Motion for Summary Judgment will be denied.
Plaintiff has filed two motions, styled "Plaintiff Motion and Memorandum Contesting the Affidavit of Jim Seal" [43] and "Plaintiff Motion Contesting Affidavit of Jim Seal" [44]. The affiant that Plaintiff refers to spells his name "Seel," not "Seal." As both motions represent the pro se Plaintiff's pleas to strike the affidavit of Jim Seel, this court will consider the two motions together as Plaintiff's Motion Contesting the Affidavit of Jim Seel [43], and a Memorandum in Support of Plaintiff's Motion Contesting the Affidavit of Jim Seel [44].
Early in this proceeding, Defendant urged that the court had no jurisdiction to hear this litigation for Plaintiff's failure to timely file the action. The court ruled on that contention in its order of August 1, 2000. Armed with what it contends is additional evidence, Defendant again raises the same objection. After review of the additional evidence, the court will not depart from the original order and this motion is denied.
I. INTRODUCTION
Plaintiff George Elvis Moyer, acting pro se, initiated this action against his employer, Defendant Smurfit-Stone Corporation ("Smurfit"), on June 14, 2000, asserting violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff, who is black, claims that Smurfit discriminated against him by failing to promote him to a position which was instead filled by a white man. Defendant asserts that Plaintiff's claim lacks merit and moves for summary judgment. Likewise, Plaintiff asserts that Defendant has raised no viable defense and moves for summary judgment.
On September 30, 1999, Plaintiff, acting pro se, filed a complaint against Smurfit-Stone Corp. (captioned George Elvis Moyer v. Smurfit-Stone Container Company, No. 1:99CV00856), generally alleging that Smurfit had racially discriminated against Plaintiff. Recognizing the extreme vagueness of the complaint, the court granted Defendant's motion to dismiss the complaint without prejudice and allowed Plaintiff to refile a complaint that more fully stated a claim.
II. FACTS
Plaintiff George Elvis Moyer began working for Smurfit-Stone Corporation at its East Market Street, Greensboro, North Carolina, facility in October 1987, in the finishing department. He transferred to the cutting department in January 1998.
During all relevant periods, the Smurfit plant was unionized, and Plaintiff was a union member. The union agreement between Smurfit and the Graphic Communications Union, Local 465, sets out procedures by which certain jobs are made available for bid. It defines lines of progression within various departments and job classifications. There is an internal grievance procedure for alleged violations of the union agreement.
In June 1997, Plaintiff bid on and was awarded the position of sheeter in the printing department. The printing department is Smurfit's highest-paid department, and sheeter is the bottom job classification in that department. The line of progression within the printing department is: sheeter, feeder operator, second pressman, and first pressman. In August 1997, Plaintiff was promoted to feeder operator. Within the feeder operator classification, there are levels of progression, beginning at feeder operator IP-1, where Plaintiff started.
On February 16, 1998, Smurfit hired Kevin Wells to the position of second pressman in the printing department. Wells, a white man, had previously been employed at another Smurfit plant and had experience on printing presses similar to those used at the East Market Street plant. Before being hired, Wells worked at the plant as an employee of a temporary agency and completed a 400-hour probationary period.
Plaintiff had applied for promotion to feeder operator IP-2 and was denied that promotion on February 13, 1998. Then he was promoted to feeder operator IP-2 in March 1998.
After the hiring of Wells, Plaintiff initiated an internal union grievance, asserting that Smurfit improperly hired Wells, rather than him, for the second pressman position. When that grievance was decided adversely, Plaintiff initiated an Equal Employment Opportunity Commission (EEOC) action, alleging racial discrimination under Title VII of the Civil Rights Act of 1964. The EEOC did not grant relief and issued Plaintiff a right-to-sue letter dated June 30, 1999.
III. DISCUSSION
A. Standard of Review
Summary judgment is appropriate where an examination of the verified pleadings, affidavits and other proper discovery materials before the court demonstrates that there is no genuine issue of material fact, thus entitling the moving party to judgment as a matter of law. See Fed.R.Civ.Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). Where such evidence could lead a reasonable juror to find for the nonmovant, a genuine issue of material fact exists and summary judgment may not be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986). The basic question in a summary judgment inquiry is whether the evidence "is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512 (1986). Where the nonmoving party fails to make a sufficient showing to establish an essential element of its case, summary judgment is proper because a "complete failure of proof" on an essential element renders all other facts immaterial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552.
B. Analysis
Plaintiff asserts that Defendant discriminated against him on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. by failing to promote Plaintiff to the position filled by Wells. Defendant responds that Plaintiff has failed to establish a prima facie case of discrimination because Plaintiff did not apply for the position, was not qualified for the position, and has failed to show that Defendant discriminated in hiring Wells.
To survive summary judgment, Plaintiff may satisfy either of two tests. First, Plaintiff may present direct evidence that race was a determining factor in Defendant's employment decisions. See Equal Employment Opportunity Comm'n v. Northwest Structural Components, Inc., 822 F. Supp. 1218, 1219 (M.D.N.C. 1993). Second, where Plaintiff is unable to present direct evidence of discrimination, Plaintiff may meet his burden using circumstantial evidence, following the McDonnell Douglas burden-shifting scheme. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Under this scheme, Plaintiff must make an initial evidentiary showing demonstrating a prima facie case of discriminatory failure to promote. See id. If established, the prima facie case then creates an inference of discriminatory action by Defendant, shifting the burden to Defendant to "articulate some legitimate, nondiscriminatory reason" for the action. See id. If Defendant meets this burden, Plaintiff must then be given an opportunity to show that Defendant's stated reasons are pretextual, serving only as a "coverup" for racial discrimination. See 411 U.S. at 804-05, 93 S.Ct. at 1825-26.
C. Admissibility of Seel Affidavit
Plaintiff contests the admission of the affidavit of Smurfit's plant manager, Jim Seel. To address the merits of the summary judgment claims, the court must first determine whether the proffered evidence may be considered. Federal Rule of Civil Procedure 56(e) requires that affidavits made in support of summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Although Plaintiff contests the fairness and accuracy of Seel's affidavit, he does not address the requirements of Rule 56(e), other than to offer unsupported and conclusory allegations that the affidavit contains hearsay. Finding no reason under Rule 56(e) to strike the Seel affidavit, Plaintiff's Motion Contesting the Affidavit of Jim Seel will be denied.
D. Defendant's Motion for Summary Judgment
The complaint asserts a single claim of failing to promote Plaintiff to a position filled by a white employee. To establish a prima facie case of discriminatory failure to promote, Plaintiff must demonstrate that: 1) Plaintiff is a member of a protected class; 2) Plaintiff applied for the position in question; 3) Plaintiff was qualified for the position in question; and 4) Plaintiff was rejected under circumstances giving rise to an inference of unlawful discrimination. See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994)
While Plaintiff, who is black, qualifies as a member of a protected class, satisfying the first element of the Carter test, he fails to satisfy the second element. It is undisputed that Plaintiff never applied or bid for the second pressman position eventually filled by Kevin Wells. Under the union agreement, Plaintiff had no entitlement to apply or bid for the position in question. Under the union agreement Smurfit was not required to and did not list the position for Plaintiff to bid on. (Moyer Dep. Ex. 10.) Only positions at the "bottom job classification of a line of progression or in a job classification not in a line of progression" were required to be made available for plant employees to bid on. (Id. at 20-21.) A second pressman position is not an entry-level position. In the printing department, sheeter is the bottom job classification, and second pressman is higher in the line of progression. (Id. at 53.) Thus, Smurfit had no duty to post the second pressman job internally.
Plaintiff alleges that there is no entry-level position or bottom job classification in the printing department. In support of that allegation, Plaintiff tendered the affidavit of Elder Lewis Banks, which makes the assertion that Smurfit was required by the union agreement to post the second pressman position for bid. Such conclusory assertions offered by Plaintiff are insufficient to raise genuine issues of material fact in the face of the plain language of the union agreement. Thus, Plaintiff has failed to offer competent evidence on the second essential element of the Carter test.
Having determined Plaintiff's lack of evidence on the second essentialCarter element, it is unnecessary for this court to determine whether Plaintiff has satisfied the third and fourth elements. The court does, however, note that at the time the second pressman position was filled, Plaintiff had only six months of experience as a feeder operator IP-1 compared to over one year of experience for Wells. The union agreement contemplates a 30-month progression from feeder operator to second pressman. (Moyer Dep. Ex. 10 at 49-50.) As to the fourth Carter element, Smurfit offered uncontradicted evidence that it offered the second pressman position to two black men (both of whom failed drug tests) before offering the position to Wells. Several other Smurfit printing department feeder operators had more seniority or relevant experience than Plaintiff at the time Wells was hired.
As discussed above, Plaintiff has failed to demonstrate at least one of the four essential Carter prima facie elements of his discriminatory failure to promote claim. The court will grant Defendant's Motion for Summary Judgment.
E. Plaintiff's Motion for Summary Judgment
The granting of summary judgment for Defendant necessarily moots Plaintiff's summary judgment motion.
IV. CONCLUSION
For the reasons stated herein, the court will grant Defendant's Motion for Summary Judgment. Plaintiff's Motion Contesting the Affidavit of Jim Seel and Plaintiff's Motion for Summary Judgment will be denied. Defendant's Motion to Strike Plaintiff's Pre-Trial Disclosures and Plaintiff's Motion Requesting Court to Accept Amended Trial Brief will be denied as moot.
A judgment in accordance with this memorandum opinion shall be filed contemporaneously herewith.