Rowan v. Stone Mountain Chrysler Jeep, Inc.

Full title: EUGENE M. ROWAN, Plaintiff, v. STONE MOUNTAIN CHRYSLER JEEP, INC., and…

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

Date published: Jun 29, 2006

Civil Action No. 1:04-CV-3568-JOF-CCH (N.D. Ga. Jun. 29, 2006)

Opinion

Civil Action No. 1:04-CV-3568-JOF-CCH.

June 29, 2006

ORDER

C. HAGY, Magistrate Judge

Attached is the report and recommendation of the United States Magistrate Judge in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Civil Local Rule 72.

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 service 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 factual findings will be limited to a plain error review.United States v. Slay, 714 F.2d 1093 (11th Cir. 1983).

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.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION IN AN EMPLOYMENT DISCRIMINATION ACTION

Plaintiff filed his Complaint in this action on December 6, 2004. He claims that Defendant Stone Mountain Chrysler Jeep, Inc. ("the Dealership") discriminated against him on the basis of race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981 ("Section 1981"), and unlawfully retaliated against him, in violation of Title VII. He also asserts a state law claim of negligent hiring and retention against the Dealership and a state law claim of intentional infliction of emotional distress against both Defendants.

This action is before the Court on Defendants' Motion for Protective Order and to Quash Notice of Deposition as Outside the Discovery Period [33] and Defendants' Motion for Summary Judgment [41]. For the reasons discussed below, Defendants' Motion for Protective Order and to Quash Notice of Deposition as Outside the Discovery Period [33] is GRANTED. In addition, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment [41] be GRANTED in part, and DENIED in part. I. BACKGROUND FACTS

Unless otherwise indicated, the Court draws the undisputed facts from Defendants' "Statement of Undisputed Material Facts" ("SMF").¹ If, however, Plaintiff has disputed a specific fact and pointed to evidence in the record supporting his version of events, the Court has viewed all evidence and factual inferences in the light most favorable to Plaintiff, as required on a defendant's motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir. 1993). Accordingly, the following facts are either not disputed or are viewed in the light most favorable to Plaintiff.

1 The Court notes that, although Plaintiff has filed a Response to Defendants' Statement of Undisputed Material Facts [45], Plaintiff has not included a separate statement of additional material facts that complies with LR 56.1B(2)(b). To the extent that Plaintiff includes any fact in the "Statement of Facts" portion of his brief that is not included in his Response to Defendants' Statement of Undisputed Material Facts, the Court advises Plaintiff that Local Rule 56.1B(1) states that the Court shall not consider any such fact.

Plaintiff Rowan is White and Defendant Carroll B. "Jim" Jackson is Black. SMF at ¶ 1. The Dealership is owned by Chrysler and operated as a Minority Investment Dealership Store. SMF at ¶ 3. In the spring of 2003, Plaintiff was interviewed for a finance manager position at the Dealership by Chrysler representative Mike Swago. SMF at ¶ 5. Thereafter, on approximately June 1, 2003, Jackson became General Manager of the Dealership. SMF at ¶ 2. After meeting with Jackson, Plaintiff was hired as Finance Manager for the Dealership effective July 1, 2003. SMF at ¶ 5; Pl. Aff. at ¶ 3.

The Dealership had written anti-discrimination and anti-harassment policies and Plaintiff was familiar with those policies. SMF at ¶ 9. The policies informed the employee that, if the employee had a concern regarding harassment or discrimination, the employee should report such a concern to the Dealership supervisors and/or Barbara Edwards who was the Comptroller. SMF at ¶¶ 9, 11. Plaintiff knew that Swago and David Lynn were Chrysler employees with authority over the Dealership and that they were Jackson's superiors. SMF at ¶ 10; Pl. Resp. SMF at ¶ 10. Plaintiff also knew that Edwards was the Secretary/Comptroller of the Dealership. SMF at ¶ 11. Plaintiff admits that he never reported any concerns regarding discrimination and/or retaliation by Jackson to Edwards, Swago or Lynn. SMF at ¶ 12.

On June 12, 2003, after he was confident that he would be employed by the Dealership, Plaintiff filed an age discrimination charge with the Equal Employment Opportunity Commission ("EEOC") against his prior employer Hayes Chrysler. SMF at ¶ 4; Pl. Aff. at ¶¶ 9, 12. Plaintiff contends that, at some time in late 2003, Jackson told another employee at the Dealership that Jackson wanted to "set up" Plaintiff for termination because of the EEOC charge Plaintiff had filed against Hayes Chrysler. Pl. Resp. SMF at ¶ 14; Greenwood Aff. at ¶ 3, Pl. Ex. 2. In support of that contention, Plaintiff has presented an Affidavit from Rick Greenwood, who became the General Sales Manager at the Dealership on August 1, 2003, that states as follows: "Shortly after my arrival at the dealership, Mr. Jackson advised me that Gene Rowan had an EEOC charge pending against Hayes Chrysler and that we needed to get rid of him, but that we would have to be careful how we did it because Mr. Rowan used to be a judge." Greenwood Aff. at ¶ 3, Pl. Ex.2.

Although Plaintiff admits that Jackson never made any racially derogatory statement to Plaintiff personally, Plaintiff contends that Jackson said to him that the discrimination laws were not intended for "intelligent white men." SMF at ¶ 15; Pl. Resp. SMF at ¶ 15; Pl. Dep. at 48, 87, Def. Ex. 1. Plaintiff also contends that a co-worker, Peggy Lawhorne, told Plaintiff that Jackson had said to Lawhorne that "he felt that [Plaintiff] didn't like niggers." Pl. Resp. SMF at ¶ 22; Pl. Dep. at 87. Furthermore, Plaintiff alleges that Lawhorne told him that Jackson had directed Lawhorne to fire Plaintiff because of Plaintiff's EEOC complaint and also because "[Plaintiff] didn't like . . . niggers." Pl. Dep. at 23; SMF at ¶ 14; Pl. Resp. SMF at ¶ 14.

Defendant disputes these contentions and objects to Plaintiff's testimony regarding what Lawhorne said about Jackson on the ground that it is inadmissible hearsay. SMF at ¶ 14. In addition to his own testimony, however, Plaintiff points to the deposition testimony of Margaret (Peggy) Lawhorne, in which she states as follows:

If he [Jackson] had asked me to terminate him [Plaintiff] because of his performance, I probably could remember, but he didn't. He asked me to fire him because he had an EEOC — he had heard he had an EEOC claim filed. . . .

Q. Tell me what was said.

A. Are you aware that Gene Rowan has a lawsuit against Hayes Chrysler Plymouth. I said really. Are you aware of that. And then I don't think I responded. He said well, I want you to go downstairs and fire him. I said Jim, I don't have a reason to go downstairs and fire him. His work is good. Well, let me tell you what the real problem is. He don't like working for a nigger, and anybody who don't like working for a nigger, I can get rid of him and you need to understand that, unquote.

Lawhorne Dep. at 35, 37.

In or about October of 2003, Plaintiff was transferred from the position as Finance Manager to the Dealership's Business Development Center. SMF at ¶ 16. After Plaintiff's transfer, the Finance Manager job responsibilities were transferred to other employees. SMF at ¶ 17; Pl. Resp. SMF at ¶ 17. Defendant contends that the Finance Manager responsibilities were transferred to new employees Diane Westbrook, a white female, and Al Westbrook, a black male. SMF at ¶ 17. Plaintiff disputes that contention, but apparently does not dispute that Al Westbrook assumed most of his prior responsibilities. See Pl. Resp. SMF at ¶ 17; Mason Aff. at ¶ 5, Pl. Ex. 4. In November of 2003, Plaintiff was asked to help out with finance matters when needed. SMF at ¶ 18.

In December of 2003, the Dealership employed two clerical assistants. SMF at ¶ 24. One of the clerical assistants was black and the other, Sherry Mitchell, was white. SMF at ¶ 24. Jackson determined that a position needed to be eliminated and told Plaintiff to ask Mitchell for her resignation. SMF at ¶¶ 25-26. Plaintiff contends that he agreed with Jackson's decision to eliminate one of the positions but did not agree with Jackson's decision to choose Mitchell because, according to Plaintiff, the black employee had attendance issues that Mitchell did not. Pl. Resp. SMF at ¶ 25; Pl. Dep. at 207.

On or about November 20, 2003, the Dealership hired Dan Newton, a white male. SMF at ¶ 29. Newton was first hired as a finance manager and then in early December moved to the Sales Manager job. SMF at ¶ 30. Plaintiff was asked to assist Newton with finance. SMF at ¶ 31. Plaintiff contends that he had concerns about some of Newton's decisions because he believed that Newton's actions could be detrimental to the Dealership and even potentially fraudulent. Pl. Resp. SMF at ¶ 32. On one occasion, Plaintiff took his concerns to the Gwinnett County District Attorney's office. SMF at ¶ 32. Plaintiff contends that he went to the District Attorney's office about "the incident regarding the acceptance of a bad check in exchange for a vehicle."² Pl. Resp. SMF at ¶ 32.

2 In his response to Defendant's Statement of Facts, Plaintiff does not elaborate on this "incident" nor does he explain Newton's role in that incident, if any. See Pl. Resp. SMF at ¶ 32.

On another occasion, Plaintiff had a dispute with Newton about forging information on a credit application. SMF at ¶ 33; Pl. Resp. SMF at ¶ 33. Plaintiff claims that he also had concerns that Newton may have advised a customer to report a vehicle as stolen, although the Dealership had actually sold it. Pl. Resp. SMF at ¶ 33. Plaintiff reported the issues about credit he had with Newton to Jackson at the next manager's meeting. SMF at ¶ 34. Plaintiff secretly taped that manager's meeting. SMF at ¶ 35. Plaintiff contends that he was concerned about the incidents with Newton because he had been told he was going to be "set up." Pl. Resp. SMF at ¶ 33; Pl. Dep. at 257-58 ("I had been told they were going to set me up and this was a very close proximity and it was something that shouldn't have been done.").

On or about December 27, 2003, a female customer attempted to pay for a vehicle with a check drawn on a Florida bank. SMF at ¶ 37; Pl. Resp. SMF at ¶ 37. According to Plaintiff, he called the bank and discovered that the account had been closed for insufficient funds five months earlier. SMF at ¶ 38; Pl. Resp. SMF at ¶ 38; Pl. Dep. at 261. The customer explained to Plaintiff that she believed she had settlement money in another account and had possibly made a mistake by drawing on the wrong account. See Pl. Dep. at 273. Plaintiff then informed Newton that they would not be able to deliver the car. SMF at ¶ 38. According to Plaintiff, Newton became "very angry" and things became "boisterous" between Plaintiff and Newton. SMF at ¶¶ 39-40. Although Plaintiff agrees with Defendant that he and Newton were speaking in a "high volume," he states that neither of them was yelling. Pl. Resp. SMF at ¶ 43; Pl. Dep. at 266. Plaintiff nevertheless contends that Newton was "adamant" that Plaintiff put the woman under contract. SMF at ¶ 41.

Jackson was nearby when this argument took place between Plaintiff and Newton. SMF at ¶ 42; Pl. Resp. SMF at ¶ 42. According to Plaintiff, Jackson asked Plaintiff and Newton to come to Jackson's office and the conversation continued in Jackson's office. SMF at ¶ 44; Pl. Resp. SMF at ¶ 44. At some point in that conversation, Jackson told Plaintiff to deliver the vehicle to the customer. SMF at ¶ 46. According to Plaintiff, he told Jackson that he would deliver the vehicle if Jackson would "sign the front of the folder that it's okay to deliver it." Pl. Dep. at 263-64. Plaintiff contends that Jackson replied, "no, I'm not going to sign it, you just need to deliver it." Pl. Dep. at 264. Plaintiff contends that he then asked Jackson if he could consult Barbara Edwards, the Comptroller of the Dealership, but Jackson said no. Pl. Dep. at 264.

During his deposition, Plaintiff testified about the conversation with Jackson as follows:

[I said to Jackson] [i]f you believe this woman really has the funds, I have no problem with it. It's your dealership. And he said no, I'm not going to sign it, you just need to deliver it. I said well then can I call Barbara and ask Barbara and he said no. I said Jim you said at the meeting that it if came to a point where I didn't know what to do that I could call Barbara since she was the corporate secretary, but also the comptroller of the company. Because this was a clear violation of what I saw as company policy, much less it's also a possibility of a fraud situation. He said I never said that. And I said Jim, I tape recorded that meeting because I have the issue with — About the problem with the credit application. I said I have it on tape that you said I could talk to you and if that didn't work, to call Barbara Edwards. I said, so, it's all there. At that point in time he said just give me your keys and have your resignation on my desk on Monday. So I gave Mr. Jackson my keys.

Pl. Dep. at 264.

In response to Jackson's request that Plaintiff submit his resignation on the following Monday, Plaintiff did not return to the Dealership on Monday because he contends that he was off that day. SMF at ¶ 59; Pl. Resp. SMF at ¶ 59. Plaintiff did return to the Dealership on Tuesday, but declined to tender his resignation. SMF at ¶ 59. It is undisputed, however, that Plaintiff left the Dealership on that day and never spoke with Jackson or Edwards afterwards. SMF at ¶ 60. Although Defendants do not include the official date of Plaintiff's termination in their Statement of Facts, Plaintiff alleges in the Complaint that his employment was terminated on or about December 27, 2003, and Defendants do not appear to dispute that contention. See Compl. at ¶ 12.

On January 2, 2004, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that the Dealership had discriminated against him on the basis of his race and had unlawfully retaliated against him for opposing unlawful employment practices when it terminated his employment on December 27, 2003. See EEOC Charge, attached to Compl. as Ex. A. In his Complaint, Plaintiff alleges that he subsequently received a right to sue notice from the EEOC and that he timely filed this action within ninety (90) days after receipt of that notice. Compl. [1] at ¶ 8.

Because many of the Court's findings of fact are intertwined with its analysis of whether the parties have met their respective evidentiary burdens, the remaining relevant facts are set forth in the Discussion below.

II. DISCUSSION

A. DEFENDANTS' MOTION FOR PROTECTIVE ORDER

Defendants have filed a Motion for Protective Order and to Quash Notice of Deposition as Outside the Discovery Period [33]. Defendants contend that Plaintiff did not serve any Notice of Deposition during the final sixty days of the extended discovery period, which expired on November 10, 2005. According to Defendants, on November 9, 2005, Plaintiff served a Notice of Deposition for Defendant Jackson in which Plaintiff sought to depose Jackson on November 15, 2005, after the close of the discovery period. Defendants contend that no agreement was reached to allow for Plaintiffs to take the deposition of Jackson outside the discovery period and seek to quash the Notice of Deposition on that ground.

In response, Plaintiff contends that a Notice to Take Deposition of Carroll B. Jackson was originally served on Defendants on July 29, 2005. See Cert. Serv. [26]. According to Plaintiff, counsel for Defendants notified counsel for Plaintiff that the original proposed date for the deposition was not convenient and thereafter, the parties attempted to agree on a mutually convenient date. Counsel for both Plaintiff and Defendants contend that they attempted to discuss proposed dates for the deposition of Defendant Jackson, but no agreement was reached.

Although the Court notes that Plaintiff originally did serve a Notice to Take Deposition of Carroll B. Jackson on Defendants on July 29, 2005, it is undisputed that an agreement was reached between the parties that the deposition would not proceed on that day. Furthermore, the Court notes that the discovery period was extended twice in this action, allowing the parties a full eight months for discovery, or twice the amount of time normally allowed. Plaintiff has not indicated that any further Notice of Deposition was ever served on Defendants that sought to take the deposition of Defendant Jackson within the extended discovery period, which expired on November 10, 2005.

The Court is sympathetic to Plaintiff's argument that his counsel attempted to work out a mutually agreeable date and time for the deposition of Defendant Jackson with counsel for Defendants. Nevertheless, Plaintiff had a full eight months in which to depose Jackson during the discovery period and, after the original Notice of Deposition was served on July 29, 2005, Plaintiff did not serve any additional Notice of Deposition until November 9, 2005, the day before the discovery period was set to expire. If Plaintiff or his counsel believed that Defendant Jackson or his counsel was deliberately attempting to thwart Plaintiff's efforts to depose him, Plaintiff could have served a Notice of Deposition seeking to depose Defendant Jackson within the discovery period and, upon objection by Jackson or his counsel, Plaintiff could have moved to compel Jackson to submit to a deposition within the discovery period.

Although the parties may reach voluntary agreements to conduct depositions outside the discovery period, the Court will not enforce such agreements and order a party to submit to a deposition outside the discovery period. In the instant action, although Plaintiff contends that the parties attempted to reach an agreement regarding a date and time for Defendant Jackson's deposition, it appears to be undisputed that the parties did not reach any agreement to allow counsel for Plaintiff to conduct Jackson's deposition outside the discovery period.

Accordingly, Defendants' Motion for Protective Order and to Quash Notice of Deposition as Outside the Discovery Period [33] is GRANTED.

B. SUMMARY JUDGMENT STANDARD

Summary judgment is authorized when all "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. See Adickes v. S.H. Kress Co., 398 U.S. 144, 175, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984). The movant carries this 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). In making its determination, the court must view the evidence and all factual inferences in the light most favorable to the nonmoving party.

Once the moving party has adequately supported its motion, the nonmoving party must come forward with specific facts that demonstrate the existence of a genuine issue for trial.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986). The nonmoving party is required "to go beyond the pleadings" and to present competent evidence designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324. Generally, "[t]he mere existence of a scintilla of evidence" supporting the nonmoving party's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).

When considering motions for summary judgment, the court does not make decisions as to the merits of disputed factual issues.See Anderson, 477 U.S. at 249; Ryder Int'l Corp. v. First American Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir. 1991). Rather, the court only determines whether there are genuine issues of material fact to be tried. Applicable substantive law identifies those facts that are material and those that are irrelevant. Anderson, 477 U.S. at 248. Disputed facts that do not resolve or affect the outcome of a suit will not properly preclude the entry of summary judgment. Id.

If a fact is found to be material, the court must also consider the genuineness of the alleged factual dispute. Id. An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Id. at 250. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 242. Moreover, for factual issues to be genuine, they must have a real basis in the record. Matsushita, 475 U.S. at 587. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. "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.'" Id. at 587 (quoting First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S. Ct. 1575, 20 L.Ed.2d 569 (1968)). Thus, the standard for summary judgment mirrors that for a directed verdict: "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."Anderson, 477 U.S. at 259.

C. STANDARDS OF PROOF IN TITLE VII AND SECTION 1981 CLAIMS

Plaintiff has asserted his claim of race discrimination under both Title VII (Count One) and Section 1981 (Count Two). In cases in which Section 1981 is used as a remedy for employment discrimination, the elements required to establish a claim under Section 1981 mirror those required for a Title VII claim. Howard v. B.P. Oil Co., 32 F.3d 520, 524 n. 2 (11th Cir. 1994) (citingPatterson v. McClean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, L.Ed. 2d 132 (1989)); Brown v. American Honda Motor Co., 939 F.2d 946, 949 (11th Cir. 1991). The following discussion of the analytical framework applicable to Title VII cases thus applies equally to Plaintiff's claim of race discrimination under Section 1981.

Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To prevail on a Title VII claim, a plaintiff must prove that the defendant acted with discriminatory intent.Hawkins v. Ceco Corp., 883 F.2d 977, 980-981 (11th Cir. 1989); Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529 (11th Cir. 1983). Such discriminatory intent may be established either by direct evidence or by circumstantial evidence meeting the four-pronged test set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973); see also Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997); Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir. 1984).

Direct evidence is defined as evidence "that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." Black's Law Dictionary 596 (8th ed. 2004); see also Clark v. Coats Clark, Inc., 990 F.2d 1217, 1226 (11th Cir. 1993); Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir. 1987). Only the most blatant remarks whose intent could only be to discriminate constitute direct evidence. Clark, 990 F.2d at 1226; Carter, 870 F.2d at 581. Evidence that only suggests discrimination,see Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990), or that is subject to more than one interpretation, see Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1083 n. 2 (11th Cir. 1996), does not constitute direct evidence. "[D]irect evidence relates to actions or statements of an employer reflecting a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee."Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990);see also Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641-42 (11th Cir. 1998).

Direct evidence of discriminatory intent may include, for example, "statements indicating racial bias on the part of a decision maker in an employment setting," Trotter v. Board of Trustees of Univ. of Alabama, 91 F.3d 1449, 1453 (11th Cir. 1996) (citing Haynes v. W.C. Caye and Co., 52 F.3d 928, 931 (11th Cir. 1995)), "`statement[s] that members of a [protected class] in general . . . are simply not competent enough to do a particular job,'" Trotter, 91 F.3d at 1453 (quoting Haynes, 52 F.3d at 931); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir. 1983)), or other "actions or remarks of the employer reflecting a discriminatory attitude." Williams v. Mead Coated Bd., Inc., 836 F. Supp. 1552, 1569-70 (M.D. Ala. 1993), aff'd, 41 F.3d 668 (11th Cir. 1994). For statements of discriminatory intent to constitute direct evidence of discrimination, "they must be made by a person involved in the challenged decision." Trotter, 91 F.3d at 1454-54.

When a plaintiff establishes a prima facie case of discrimination by direct evidence of an intent to discriminate, the burden then shifts to the defendant to prove by a preponderance of the evidence that it would have made the same employment decision in the absence of any discriminatory motivation. Wall v. Trust Co., 946 F.2d 805, 809 (11th Cir. 1991); Hill, 841 F.2d at 1539; Smith v. Horner, 839 F.2d 1530, 1536 (11th Cir. 1988).

Evidence that merely "suggests discrimination, leaving the trier of fact to infer discrimination based on the evidence" is, by definition, circumstantial. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990). Because direct evidence of discrimination is seldom available, a plaintiff must typically rely on circumstantial evidence to prove discriminatory intent, using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), andTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981). See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997); Combs v. Plantation Patterns, 106 F.3d 1519, 1527-1528 (11th Cir. 1997). Under this framework, a plaintiff is first required to create an inference of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; see also jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1310, reh'g denied and opinion superseded in part, 151 F.3d 1321 (11th Cir. 1998); Combs, 106 F.3d at 1527.

Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Jones, 137 F.3d at 1310-1311;Holifield, 115 F.3d at 1562 (citations omitted); see Burdine, 450 U.S. at 253-54, 101 S. Ct. at 1093-4. Once the plaintiff establishes a prima facie case, the defendant must "articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Jones, 137 F.3d at 1310. This burden is "exceedingly light" in comparison to the burden required if the plaintiff has presented direct evidence of discrimination. Smith v. Horner, 839 F.2d 1530, 1537 (11th Cir. 1988). If the defendant is able to carry this burden and explain its rationale, the plaintiff, in order to prevail, must then show that the proffered reason is merely a pretext for discrimination. See Burdine, 450 U.S. at 253-54, 101 S. Ct. at 1093-4; Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983).

A plaintiff is entitled to survive a defendant's motion for summary judgment if there is sufficient evidence to demonstrate the existence of a genuine issue of material fact regarding the truth of the employer's proffered reasons for its actions.Combs, 106 F.3d at 1529. A prima facie case along with sufficient evidence to reject the employer's explanation is all that is needed to permit a finding of intentional discrimination.Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109 (2000); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749 (1993); Combs, 106 F.3d at 1529.

This McDonnell Douglas-Burdine proof structure "was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S. Ct. 1478, 1482, 75 L. Ed.2d 403 (1983); see also Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987). The Eleventh Circuit has held that this framework of shifting burdens of proof is a valuable tool for analyzing evidence in cases involving alleged disparate treatment, but the framework is only a tool. Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir. 1984). The "ultimate question" is not whether a plaintiff has established a prima facie case or demonstrated pretext, but "whether the defendant intentionally discriminated against the plaintiff."Id., 738 F.2d at 1184 (quoting Aikens, 460 U.S. at 713-14, 103 S. Ct. at 1481-82); see also Jones, 137 F.3d at 1313. The plaintiff retains the ultimate burden of proving that the defendant is guilty of intentional discrimination. Burdine, 450 U.S. at 253.

D. PLAINTIFF'S RACE DISCRIMINATION CLAIMS

In his Complaint, Plaintiff alleges that the Dealership discriminated against him because of his race in violation of both Title VII and Section 1981. Plaintiff argues that he has presented both direct and circumstantial evidence that the Dealership, acting through its General Manager Jackson, discriminated against him because of his race when it reassigned him to a less desirable position and terminated his employment.

1. Direct Evidence

Plaintiff first argues that he has presented direct evidence that Jackson harbored a discriminatory animus against him because of his race. According to Plaintiff, Jackson's alleged statements to Lawhorne that Plaintiff "didn't like working for a nigger" and that Jackson would get rid of anyone who did not want to "work for a nigger" constitute direct evidence that Jackson intended to discriminate against Plaintiff because of his race.

The Court rejects Plaintiff's contention that the alleged statements by Jackson constitute direct evidence that Jackson harbored a discriminatory animus against Plaintiff because of Plaintiff's race. Viewing all evidence and factual inferences in the light most favorable to Plaintiff, as required on a defendant's motion for summary judgment, the Court finds that, at most, the alleged statements reflect that Jackson harbored a belief (which Plaintiff contends was a mistaken belief) that Plaintiff did not want to work for Jackson because of Jackson's race. In other words, assuming that Jackson indeed made the statements at issue, it can be inferred that Jackson wanted to fire Plaintiff because Jackson believed that Plaintiff did not like working for a black person. Such an inference is very different from a statement indicating that Jackson had a problem with Plaintiff because of Plaintiff's race. Instead, the alleged statements reflect that Jackson had a problem with anyone of any race who "didn't like working for a nigger."

As discussed above, direct evidence is defined as evidence "that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption." Black's Law Dictionary 596 (8th ed. 2004); see also Clark v. Coats Clark, Inc., 990 F.2d 1217, 1226 (11th Cir. 1993); Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir. 1987). The statements allegedly made by Jackson that Plaintiff "didn't like working for a nigger" and that Jackson would get rid of anyone who did not want to "work for a nigger" do not meet this standard.

Thus, Plaintiff has failed to point to direct evidence in the record that Jackson or anyone else at the Dealership harbored a discriminatory animus against Plaintiff solely on the basis of Plaintiff's race or otherwise intended to discriminate against Plaintiff solely on the basis of his race. Accordingly, Plaintiff's claim of discriminatory treatment rests purely on circumstantial evidence and must be analyzed under the McDonnell Douglas-Burdine framework.

2. Circumstantial Evidence

When a plaintiff has failed to present direct evidence of race discrimination under Title VII, the plaintiff may nevertheless rely on circumstantial evidence to prove discriminatory intent using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), andTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981).

a. Prima Facie Case

Under the McDonnell Douglas-Burdine framework, a plaintiff can generally establish a prima facie case of unlawful discrimination under Title VII by showing that: 1) he is a member of a protected class;³ 2) he was subjected to an adverse employment action by his employer; 3) he was qualified to do the job in question, and 4) his employer treated similarly situated employees outside his protected classification ( i.e., those of a different race) more favorably than it treated him. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; see also Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

3 Although courts continue to include the requirement that a plaintiff establish as part of a prima facie case that he or she is a member of a "protected class," it is clear that individuals of any sex, race, or religion may pursue claims of employment discrimination under Title VII. See Wright v. Southland Corp., 187 F.3d 1287, 1290 n. 3 (11th Cir. 1999) ( citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-80, 96 S. Ct. 2574, 2578-79, 49 L.Ed.2d 493 (1976)). Thus, the key element of the prima facie case is establishing that persons outside of the plaintiff's protected classification ( i.e., those of a different sex, race, or religion) were treated more favorably by the employer. See Wright, 187 F.3d at 1290 n. 3.

The Court will assume for the purpose of this discussion that Plaintiff has presented sufficient evidence to establish that he was qualified for the position he held at the time of his termination. Accordingly, in order to establish a prima facie case of race discrimination, Plaintiff must point to evidence in the record that the Dealership subjected him to an adverse employment action and that it treated similarly situated employees outside his protected classification more favorably than it treated him.

It is undisputed that Plaintiff was discharged from the Dealership on or about December 27, 2003, and that the termination of Plaintiff's employment was an adverse employment action. Plaintiff further contends that he was subjected to an adverse employment action when he was "summarily reassigned to a less desirable position with a change in pay plan." Pl. Br. [44] at 13.

The record reflects that, in or about October of 2003, Plaintiff was transferred from the position as Finance Manager to the Dealership's Business Development Center. SMF at ¶ 16. It is undisputed that, after Plaintiff's transfer, the Finance Manager job responsibilities were transferred to other employees. SMF at ¶ 17; Pl. Resp. SMF at ¶ 17. Defendant contends that the Finance Manager responsibilities were transferred to new employees Diane Westbrook, a white female, and Al Westbrook, a black male. SMF at ¶ 17. Plaintiff disputes that contention, but apparently does not dispute that Al Westbrook assumed most of his prior responsibilities. See Pl. Resp. SMF at ¶ 17; Mason Aff. at ¶ 5, Pl. Ex. 4. It is further undisputed that, on or about November 20, 2003, the Dealership hired Dan Newton, a white male, as a finance manager, before he was later moved to the Sales Manager position. SMF at ¶¶ 29, 30.

To rise to the level of an actionable Title VII claim, employment decisions must work a material alteration on the terms of employment, as opposed to being merely trivial annoyances. See Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) ("Whatever the benchmark, it is clear that to support a claim under Title VII's anti-discrimination clause the employer's action must impact the `terms, conditions, or privileges' of the plaintiff's job in a real and demonstrable way"); see also Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016-17 (8th Cir. 1999) ("Minor changes in duties or working conditions that cause no materially significant disadvantage do not meet the standard of an adverse employment action").

Courts have wisely recognized that managers require broad discretion to distribute duties as they see fit, and absent extreme circumstances should not be forced to justify each assignment in front of a jury. See, e.g., Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 714-15 (11th Cir. 2002) (reassignment to position in which it was more difficult to meet performance criteria was not adverse employment action); Gupta v. Florida Board of Regents, 212 F.3d 571, 588 (11th Cir. 2000) (allegation that professor was denied desired teaching assignments was not adverse employment action, absent evidence that she was somehow entitled to those courses or that other professors were allowed to pick their assigned classes);see also Freedman v. MCI Telecom. Corp., 255 F.3d 840, 847-88 (D.C. Cir. 2001) (assigning employee to perform "junk jobs" that were not required of fellow workers "does not create liability under Title VII unless it results in a diminution in pay or benefits or affects such things as future employment opportunities");Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 381 (8th Cir. 1994) (reassignment to position with more stressful duties but same rank, title and salary was not adverse action).

The law in the Eleventh Circuit is that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Davis, 245 F.3d at 1239 (emphasis in original). Although Plaintiff alleges that his reassignment in October of 2003, was to a "less desirable position with a change in pay plan," he has failed to point to any evidence in the record that his reassignment was to a less desirable position.

Moreover, although Plaintiff contends that his pay plan was changed when he was reassigned to the new position, he has failed to point to any evidence that his overall compensation was actually lower after his transfer. Instead, Plaintiff argues that the change in his pay plan after the transfer was an adverse employment action because it affected his "eligibility for compensation," even though he was fired before he felt the impact of such a change. Pl. Br. at 18. Plaintiff, however, has failed to point to any evidence in the record that the transfer would have resulted in lower overall compensation, had he not been fired in December of 2003.

Despite Plaintiff's failure to point out evidence in the record supporting his allegation that the reassignment was to a "less desirable position,"⁴ the Court has reviewed the record and finds that Plaintiff does allege in his affidavit that his reassignment involved a transfer to a new office that had no windows and was otherwise undesirable. See Pl. Aff. at ¶ 19. Furthermore, although Plaintiff has failed to present evidence that his actual compensation was lower after his transfer to the new position, he has pointed to some evidence of a change in pay plan that may have resulted in lower compensation, had the Plaintiff been in the position longer. Thus, there is sufficient evidence in the record to create a genuine issue of fact whether Plaintiff's new position may have been less desirable from the perspective of a reasonable person in Plaintiff's position.See, e.g., Burlington Northern Santa Fe Railway Co. v. White, No. 05-259, 2006 WL 1698953 (U.S. June 22, 2006). (in the context of a Title VII retaliation claim, "Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and `should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'").

4 The Court again notes that Plaintiff has failed to file a Statement of Facts that complies with Local Rule 56.1B(2)(b).See note 1, supra. Plaintiff's failure to do so has forced the Court to review the record for evidence supporting Plaintiff's allegations. It has done so in this instance only because the record is thin and the relevant facts are prominent in the affidavit filed by Plaintiff in response to Defendants' Motion for Summary Judgment as well as in his response brief. Nevertheless, the Court advises counsel for Plaintiff that it is the obligation of counsel to search the record for evidence supporting the Plaintiff's claims and to file a Statement of Material Facts that complies with the requirements of Local Rule 56.1B.

Accordingly, the Court will assume for the purpose of this discussion that Plaintiff's reassignment could be considered an adverse employment action, along with the termination of his employment. Thus, in order for Plaintiff to establish the final element of his prima facie case of race discrimination, he must present evidence that his employer treated similarly situated non-white employees more favorably than it treated him. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; see also Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

In race discrimination cases involving a plaintiff who has been demoted or terminated from his former position, the plaintiff may establish that the employer treated similarly situated employees outside his protected classification more favorably by pointing to evidence that he or she was replaced by a person of a different race. See Hawkins v. Ceco Corp., 883 F.2d 977, 982 (11th Cir. 1989) (a plaintiff may establish a prima facie case of race discrimination by showing, inter alia, that he was replaced by someone outside his protected class). In the instant action, it is undisputed that Plaintiff's former responsibilities as Finance Manager were transferred, at least in part, to Al Westbrook, a black male. Thus, the Court finds that Plaintiff has presented a prima facie case of race discrimination with respect to his allegedly undesirable reassignment.

Although Defendants contend that Plaintiff was not replaced in his new position after he was terminated, the Court notes that Plaintiff was terminated approximately two months after he had been reassigned to his new position. Because the reassignment and termination happened in a relatively short period of time, the Court finds that there is sufficient evidence to create a genuine issue of fact as to whether Westbrook could be considered Plaintiff's replacement. Thus, the Court finds that Plaintiff has presented a prima facie case of race discrimination with respect to both the transfer and termination.

b. Defendants' Legitimate Non-Discriminatory Reason

Defendants contend that the decision was made to reassign Plaintiff to another position and to terminate his employment because of a legitimate "business justification." Defs. Br. [41] at 15. In sum, Defendants contend that Al Westbrook was placed in the Finance Manager position because he had more secondary finance experience than Plaintiff, and that Jackson was justified in making the decision to terminate Plaintiff's employment based on Plaintiff's behavior on December 27, 2003, when Plaintiff argued with Dan Newton, refused to follow a direct order from Jackson, and admitted to Jackson that he had secretly tape-recorded a previous meeting. See Defs. Reply Br. at 3-4; Defs. Br. at 15-16.

In their reply brief, Defendants contend that the Dealership wanted someone in the Finance Manager position with secondary financing expertise and that was the reason that Al Westbrook was chosen to take over the Finance Manager position and that Plaintiff was transferred to another position. Defs. Reply Br. at 3-4. Indeed, Plaintiff admitted during his deposition testimony that he did not have a strong background in secondary finance and that Westbrook had a "great deal of experience" in that area. Pl. Dep. at 153-54. Thus, Defendants have articulated a legitimate reason for the decision to transfer Plaintiff out of the Finance Manager position.

With respect to Plaintiff's termination, the evidence in the record reflects that Plaintiff had several disputes with Dan Newton after Newton became Sales Manager in late 2003. See SMF at ¶¶ 29-33. On or about December 27, 2003, a female customer attempted to pay for a vehicle with a check drawn on a Florida bank. SMF at ¶ 37; Pl. Resp. SMF at ¶ 37. According to Plaintiff, he called the bank and discovered that the account had been closed for insufficient funds five months earlier. SMF at ¶ 38; Pl. Resp. SMF at ¶ 38; Pl. Dep. at 261. The customer explained to Plaintiff that she believed she had settlement money in another account and had possibly made a mistake by drawing on the wrong account. See Pl. Dep. at 273. Plaintiff then informed Newton that they would not be able to deliver the car. SMF at ¶ 38. According to Plaintiff, Newton became "very angry" and things became "boisterous" between Plaintiff and Newton. SMF at ¶¶ 39-40. Newton was "adamant" that Plaintiff put the woman under contract. SMF at ¶ 41.

Jackson was nearby when this argument took place between Plaintiff and Newton. SMF at ¶ 42; Pl. Resp. SMF at ¶ 42. Jackson asked Plaintiff and Newton to come to Jackson's office and the conversation continued in Jackson's office. SMF at ¶ 44; Pl. Resp. SMF at ¶ 44. At some point in that conversation, Jackson told Plaintiff to deliver the vehicle to the customer. SMF at ¶ 46. According to Plaintiff, he told Jackson that he would deliver the vehicle if Jackson would "sign the front of the folder that it's okay to deliver it." Pl. Dep. at 263-64. Plaintiff contends that Jackson replied, "no, I'm not going to sign it, you just need to deliver it." Pl. Dep. at 264.

Plaintiff contends that he then asked Jackson if he could consult Barbara Edwards, the Comptroller of the Dealership, but Jackson said no. Pl. Dep. at 264. According to Plaintiff, he then informed Jackson that he had secretly tape-recorded a prior meeting in which Jackson had told Plaintiff he could call Edwards regarding credit application issues. Id. "At that point in time he said just give me your keys and have your resignation on my desk on Monday. So I gave Mr. Jackson my keys." Pl. Dep. at 264.

Based on the evidence regarding the events that occurred on December 27, 2003, the Court finds that Defendants have presented a legitimate reason for the termination of Plaintiff's employment. The evidence reflects that Plaintiff had numerous prior disputes with Newton over credit application issues, and that, when confronted with a direct order from Jackson to deliver a car to a customer, Plaintiff refused to do so. Under theMcDonnell Douglas framework, the burden thus shifts to Plaintiff to present evidence that Defendants' proffered reason was a mere pretext for unlawful race discrimination.

c. Pretext

Plaintiff may carry his burden of showing that the employer's proffered reasons are pretextual by showing that they have no basis in fact, that they were not the true factors motivating the decision, or that the stated reasons were insufficient to motivate the decision. Plaintiff can either directly persuade the court that a discriminatory reason more likely motivated the employer or show indirectly that the employer's ultimate justification is not believable. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) (citation omitted); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1522 (11th Cir. 1991). In other words, the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision and that unlawful discrimination was the more likely reason. Burdine, 450 U.S. at 256, 101 S. Ct. at 1095;McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825.

Because a plaintiff bears the burden of establishing that a defendant's reasons are a pretext for discrimination, a plaintiff "must present `significantly probative' evidence on the issue to avoid summary judgment." Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S. Ct. 2548, 2552-2554, 91 L.Ed.2d 265 (1986)). "Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [a defendant] has offered extensive evidence of legitimate, non-discriminatory reasons for its actions." Young, 840 F.2d at 830.

As discussed above, Defendants contend that Al Westbrook was placed in the Finance Manager position because he had more secondary finance experience than Plaintiff, and the Court finds that Plaintiff has failed to point to any evidence in the record that this reason is untrue or unworthy of belief, or any other evidence that would point to race discrimination as the likely motive for the reassignment.

With respect to his termination, Plaintiff points to the evidence that Jackson had expressed a desire to fire him because of his EEOC charge against Hayes Chrysler and because Jackson believed that Plaintiff didn't like "working for a nigger." Plaintiff argues that this evidence reflects that Defendants' proffered reasons for his termination are a mere pretext for unlawful race discrimination. While the Court agrees that the evidence regarding Jackson's alleged statements casts doubt on the Defendants' proffered reason for Plaintiff's termination, the evidence does not suggest that the Defendants' proffered reason is a mere pretext for discrimination but instead is a pretext forretaliation.

As set forth in the facts above, Rick Greenwood contends that, at some time in late 2003, Jackson told him that Jackson wanted to "set up" Plaintiff for termination because of the EEOC charge Plaintiff had filed against Hayes Chrysler: "Shortly after my arrival at the dealership, Mr. Jackson advised me that Gene Rowan had an EEOC charge pending against Hayes Chrysler and that we needed to get rid of him, but that we would have to be careful how we did it because Mr. Rowan used to be a judge." Greenwood Aff. at ¶ 3, Pl. Ex. 2.

In addition, Plaintiff's supervisor Peggy Lawhorne also testified during her deposition that Jackson told her he wanted to fire Plaintiff because Plaintiff had filed an EEOC charge against Hayes Chrysler:

Q. Tell me what was said.

A. Are you aware that Gene Rowan has a lawsuit against Hayes Chrysler Plymouth. I said really. Are you aware of that. And then I don't think I responded. He said well, I want you to go downstairs and fire him. I said Jim, I don't have a reason to go downstairs and fire him. His work is good. Well, let me tell you what the real problem is. He don't like working for a nigger, and anybody who don't like working for a nigger, I can get rid of him and you need to understand that, unquote.

Lawhorne Dep. at 37.

The Court has already concluded that this evidence does not constitute direct evidence of race discrimination, and further finds that this evidence does not constitute circumstantial evidence of race discrimination. Instead, the statements reflect that Jackson wanted to fire Plaintiff for filing an EEOC charge, not because he is white.⁵ As discussed above, at most, the alleged statements reflect that Jackson harbored a belief that Plaintiff did not want to work for Jackson because of Jackson's race. Plaintiff has not pointed to any evidence in the record that Jackson had a problem with Plaintiff because of Plaintiff's race. Instead, the alleged statements reflect that Jackson had a problem with anyone of any race who "didn't like working for a nigger." Thus, Plaintiff has not pointed to any evidence suggesting that he was singled out for harsh treatment because he is white.

5 Indeed, the Court finds that this evidence constitutes direct evidence that Jackson intended to retaliate against Plaintiff. See discussion of Plaintiff's retaliation claim, infra.

Therefore, the Court finds that Plaintiff has failed to present sufficient evidence to establish that Defendant's proffered reasons for his reassignment and termination were merely a pretext to disguise unlawful race discrimination, and the Dealership is entitled to summary judgment on Plaintiff's claims of race discrimination under both Title VII and Section 1981. Accordingly, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment [41] be GRANTED with respect to Plaintiff's claims asserted in Counts One and Two of the Complaint.

3. Discriminatory Hostile Work Environment

The Court notes that Defendants argue in their Motion for Summary Judgment that Plaintiff may also have asserted a separate claim of race discrimination based on an allegedly hostile work environment. See Defs. Br. [41] at 4-5. The Court finds that Plaintiff did not assert a claim for race discrimination based on a hostile work environment in his Complaint and thus, regards Defendants' argument with respect to this purported claim as moot.

Furthermore, to the extent that Plaintiff intended to assert a claim of race discrimination based on a hostile work environment, the Court finds that Plaintiff has abandoned such a claim because he failed to mention it in his response brief. "In opposing a motion for summary judgment, `a party may not rely on his pleadings to avoid judgment against him.'" Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (quoting Ryan v. Int'l Union of Operating Eng'rs, Local 675, 794 F.2d 641, 643 (11th Cir. 1986)). This Court does not have the burden of distilling every potential argument that could be made by the parties. Id. When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned. Id.; see also Bute v. Schuller Internat'l Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998).

Finally, to the extent that Plaintiff intended to pursue a claim based on a racially hostile work environment, the Court further finds that Plaintiff has failed to point to any evidence in the record that he was subjected to a racially hostile work environment. To establish that he was subjected to a hostile working environment based on his race, a plaintiff must show that: (1) he belongs to a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on his race; (4) the harassment affected a term, condition, or privilege of employment, and (5) there is a basis for holding the employer liable for the conduct of the harassers. Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982); see also Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998); Burlington Industries v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998).

To establish that the harassment affected a condition of his employment, Plaintiff must show that the Defendants' actions were so severe or pervasive that they altered the conditions of the workplace, creating an objectively abusive and hostile atmosphere. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993); Gupta v. Florida Board of Regents, 212 F.3d 571, 582-83 (11th Cir. 2000). It is not enough that Plaintiff subjectively perceived the working climate as inhospitable; the harassment must be such that a reasonable person in Plaintiff's position would find that the harassing conduct produced a material alteration in the working environment. Edwards v. Wallace Comm. College, 49 F.3d 1517, 1521 (11th Cir. 1995).

In this action, Plaintiff has failed to point to any evidence in the record that he was subjected to any harassment based on his race during the time he was employed at the Dealership. Moreover, even if Plaintiff had been subjected to racial harassment, he has failed to demonstrate that such harassment was either severe or pervasive enough to create a hostile work environment. Accordingly, should Plaintiff argue that he intended to assert a race discrimination claim based on a hostile work environment in his Complaint, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment be GRANTED with respect to that claim.

E. PLAINTIFF'S RETALIATION CLAIM

In addition to his claim that the Dealership discriminated against him on the basis of his race, Plaintiff further alleges that the Dealership unlawfully retaliated against him in violation of Title VII when it reassigned him in October of 2003, and then when it terminated his employment on or about December 27, 2003.

Title VII acts to shield employees from retaliation for certain protected practices. Specifically, the statute provides, in relevant part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because [the employee or applicant] has opposed any practice made an unlawful practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a).

Proof of retaliation is governed by the same framework of shifting evidentiary burdens established in McDonnell Douglas and Burdine. Donnellon v. Fruehauf Corp., 794 F.2d 598, 600 (11th Cir. 1986); see also Goldsmith v. City of Atmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993). In order to prevail, a plaintiff must first establish a prima facie case of retaliation. Goldsmith, 996 F.2d at 1162-63; Donnellon, 794 F.2d at 600-601; see also Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1524 (11th Cir. 1991) (footnote omitted); Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985). Once a prima facie case has been established, the employer must come forward with a legitimate non-discriminatory (or non-retaliatory) reason for its action. Goldsmith, 996 F.2d at 1162-63; Donnellon, 794 F.2d at 600-601; see also Weaver, 922 F.2d at 1525-1526. If the employer carries its burden of production to show a legitimate reason for its action, the plaintiff then bears the burden of proving by a preponderance of the evidence that the reason offered by the defendant is merely a pretext for unlawful discrimination or retaliation.Goldsmith, 996 F.2d at 1162-63; Donnellon, 794 F.2d at 600-601.

1. Prima Facie Case

To establish a prima facie case of illegal retaliation under 42 U.S.C. § 2000e-3(a), Plaintiff must show that: (1) he engaged in a statutorily protected expression or activity; (2) he received an adverse employment action, and (3) there was a causal link between the protected activity and the adverse action.See, e.g., Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1524 (11th Cir. 1991); Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985).

a. Protected Activity

A plaintiff alleging unlawful retaliation can show that he engaged in a protected act under Title VII through evidence of either "participation" or "opposition." An act of participation requires the existence of a Title VII proceeding or investigation. Clover v. Total System Services, Inc., 176 F.3d 1346, 1353 (11th Cir. 1999). The record reflects that Plaintiff participated in a Title VII proceeding or investigation when he filed an age discrimination charge with the EEOC against his prior employer Hayes Chrysler. SMF at ¶ 4. Accordingly, Plaintiff engaged in a protected activity when he filed that EEOC charge against Hayes Chrysler.

Thus, Plaintiff has presented evidence sufficient to establish the first element of a prima facie case of unlawful retaliation. In order to establish the second and third elements of a prima facie case of retaliation, Plaintiff must produce evidence that the Dealership subjected him to an adverse employment action, and that there was a causal link between his protected activity and the adverse employment action.

b. Adverse Employment Action

As discussed above in connection with Plaintiff's claims of race discrimination, there is no dispute that Plaintiff's termination on or about December 27, 2003, rises to the level of an adverse employment action under Title VII. Furthermore, the Court also found that there is sufficient evidence in the record to create a genuine issue of fact whether Plaintiff's reassignment in October of 2003 was an adverse employment action for the purpose of his retaliation claim. See Burlington Northern Santa Fe Railway Co. v. White, No. 05-259, 2006 WL 1698953 (U.S. June 22, 2006) ("Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and `should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'").

Accordingly, in order to complete his prima facie case of retaliation, Plaintiff must only provide evidence of a causal link between his protected activities and the adverse employment actions taken against him.

c. Causal Link

For the third and final element of a prima facie case of retaliation, Plaintiff must establish that there is a causal link between his protected activities and the adverse employment actions taken against him. Plaintiff is not required to establish "the sort of logical connection that would justify a prescription that the protected participation in fact prompted the adverse action. Such a connection would rise to the level of direct evidence of discrimination, shifting the burden of persuasion to the defendant." Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985); see also Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 920 (11th Cir. 1993);Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525 (11th Cir. 1991). Rather, Plaintiff can satisfy the third element merely by presenting evidence that his protected activities and the subsequent adverse employment actions are not totally unrelated.Simmons, 757 F.2d at 1189; see also Hairston, 9 F.3d at 920; Weaver, 922 F.2d at 1525.

In order to establish a causal connection between protected conduct and an adverse employment action, however, "[a]t a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took the adverse employment action." Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993); see also Weaver, 922 F.2d at 1525. The defendant's awareness of the protected statement, however, may be established by circumstantial evidence. Goldsmith, 996 F.2d at 1163.

Absent direct evidence of a causal link, a plaintiff may establish an inference of causation by showing that he suffered the adverse action shortly after he engaged in the protected activity. Bass v. Board of County Comm., Orange County, Fla., 256 F.3d 1095, 1119 (11th Cir. 2001); Burngart v. BellSouth Telecom., Inc., 231 F.3d 791, 798 (11th Cir. 2000). For a plaintiff to establish such a link by mere temporal relationship, however, the challenged decision must follow almost immediately after the protected expression to support the logical inference that the two events were related. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close") (internal quotes omitted).

Courts have found that a gap of more than three or four months between the protected activity and the challenged personnel action is too long to support the inference that the two events were connected. See Conner v. Schnuck Markets, Inc., 123 F.3d 1390, 1395 (10th Cir. 1997) (lapse of four months between protected activity and termination did not support inference of casual connection); Feltmann v. Sieben, 108 F.3d 970, 977 (8th Cir. 1997) (passage of six months between plaintiff's complaint and firing insufficient, without more, to establish causation);Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four-month gap between filing discrimination complaint and receipt of disciplinary letter did not give rise to inference of causal relation); cf. Wascura v. City of South Miami, 257 F.3d 1238, 1245 (11th Cir. 2001) (three and a half months is too long a time period to suggest a causal connection between events in a retaliation case brought under Family and Medical Leave Act and Americans with Disabilities Act).

In the instant action, Defendants argue that Plaintiff can not establish any causal link between his protected activity (filing an EEOC charge against Hayes Chrysler) and his reassignment and eventual discharge because, Defendants argue, the events happened too far apart in time to be considered causally connected. In focusing on the temporal connection, however, Defendants ignore Plaintiff's strong evidence of a direct causal link that is unrelated to temporal proximity.

Plaintiff contends that, at some time in late 2003, Jackson told Rick Greenwood, another employee at the Dealership, that Jackson wanted to "set up" Plaintiff for termination because of the EEOC charge Plaintiff had filed against Hayes Chrysler. Pl. Resp. SMF at ¶ 14; Greenwood Aff. at ¶ 3, Pl. Ex. 2. In support of that contention, Plaintiff has presented an Affidavit from Greenwood stating as follows: "Shortly after my arrival at the dealership, Mr. Jackson advised me that Gene Rowan had an EEOC charge pending against Hayes Chrysler and that we needed to get rid of him, but that we would have to be careful how we did it because Mr. Rowan used to be a judge." Greenwood Aff. at ¶ 3, Pl. Ex. 2.

In addition, Plaintiff has also pointed to the deposition testimony of Peggy Lawhorne stating that Jackson had told Lawhorne that he wanted her to fire Plaintiff because Plaintiff "don't like working for a nigger." Lawhorne Dep. at 37. According to Lawhorne, Jackson had heard about the Plaintiff's prior EEOC charge and wanted Plaintiff fired as a result:

If he [Jackson] had asked me to terminate him [Plaintiff] because of his performance, I probably could remember, but he didn't. He asked me to fire him because he had an EEOC — he had heard he had an EEOC claim filed. . . .

Q. Tell me what was said.

A. Are you aware that Gene Rowan has a lawsuit against Hayes Chrysler Plymouth. I said really. Are you aware of that. And then I don't think I responded. He said well, I want you to go downstairs and fire him. I said Jim, I don't have a reason to go downstairs and fire him. His work is good. Well, let me tell you what the real problem is. He don't like working for a nigger, and anybody who don't like working for a nigger, I can get rid of him and you need to understand that, unquote.

Lawhorne Dep. at 35, 37.

Thus, Plaintiff has presented direct evidence in the form of testimony from two different co-workers who heard Jackson express a desire to fire Plaintiff because of his prior EEOC charge filed against Hayes Chrysler. The Court finds, therefore, that Plaintiff has presented direct evidence of a causal link between his protected activity and his eventual discharge.

Further, while this direct evidence does not go to Plaintiff's reassignment in October of 2003, it is circumstantial evidence that Plaintiff's reassignment was causally connected to his EEOC charge filed in June of 2003. Although that charge may be distant in time by itself to establish a causal connection with the reassignment, as it preceded the reassignment by just over four months, the evidence in the record indicates that Jackson did not learn of it until some time later, within four months of the reassignment. Thus, his expressed desire to "take some action" against Plaintiff because of Plaintiff's protected activity is sufficient to establish the causal connection between not only the protected activity and Plaintiff's termination but also the protected activity and Plaintiff's reassignment.

Under these circumstances, when Plaintiff has presented direct evidence of a causal link, the temporal proximity — or lack thereof — between Plaintiff's protected activity and the adverse employment action is irrelevant. Plaintiff need not point to temporal proximity as circumstantial evidence of a causal link when he has compelling direct evidence of such a link.

Accordingly, the Court finds that Plaintiff presented sufficient evidence to establish a prima facie case of retaliation under Title VII based on both his reassignment and termination. When a plaintiff has established a prima facie case of retaliation, the employer must come forward to articulate a legitimate reason for the adverse employment action; if the employer carries its burden of production to show a legitimate reason, the plaintiff then bears the burden of producing evidence that the reason offered by the defendant is merely a pretext for unlawful retaliation.

2. Defendants' Proffered Reason for Employment Decisions

As discussed above, Defendants have presented evidence of a legitimate reason for the decision to transfer Plaintiff out of the Finance Manager position and for the decision to fire him in December of 2003. Defendants contend that both decisions were made because of a legitimate "business justification." Nevertheless, while Defendants have presented a reason for Plaintiff's reassignment and discharge, Plaintiff has pointed to direct evidence of Jackson's intent to terminate Plaintiff's employment expressly because of Plaintiff's protected activity. That same evidence serves as circumstantial evidence that Jackson wanted to punish Plaintiff for his protected activity, and that his reassignment was a consequence of that intent. Thus, the Court finds that the evidence in the record creates a genuine question of fact as to whether the real reason for Plaintiff's reassignment and termination was "business justification" or unlawful retaliation.

Having found that Plaintiff has presented sufficient evidence to establish that Defendants' proffered reasons are a mere pretext for unlawful retaliation, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment [41] be DENIED with respect to Plaintiff's Title VII claim of retaliation against the Dealership, as asserted in Count Three of the Complaint.

F. PLAINTIFF'S STATE LAW CLAIMS

In addition to his federal claims under Title VII and Section 1981, Plaintiff has also asserted state law claims against the Dealership for negligent retention and against both Defendants for intentional infliction of emotional distress.

1. Negligent Retention

Plaintiff has asserted a state law claim of negligent retention against the Dealership. Georgia law provides that "[t]he employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency." O.C.G.A. § 34-7-20. An employer commits the tort of negligent retention when the employer knew or should have known that an employee had a propensity for engaging in improper conduct, but nevertheless retains the employee, and the employee thereafter causes injury to another person as a result of such improper conduct. See, e.g., Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 878, 429 S.E.2d 264 (1993). Past complaints of harassment against a particular employee, made to the employer, provide an employer with knowledge of that individual's propensity for such conduct for purposes of negligent retention. See Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670, 673, 347 S.E.2d 619, 622 (1986) (citing Cox v. Brazo, 165 Ga. App. 888, 303 S.E.2d 71, aff'd, 251 Ga. 491, 307 S.E.2d 474 (1983)); see also Coleman v. Housing Authority of Americus, 191 Ga. App. 166, 171, 381 S.E.2d 303, 307 (1989).

Thus, in order to state a claim for negligent retention, a plaintiff must present evidence that he suffered an injury, that such injury was the result of improper conduct by an employee of the defendant employer, and that an ordinarily careful employer would have reasonably foreseen that its employee would have injured the plaintiff. In order to show that the employer could have foreseen the injury, a plaintiff must show that the employer was aware of the employee's propensity for improper conduct before the behavior causing the injury occurred. To be liable for negligent retention, an employer must have retained the employee after learning of the employee's propensity for improper conduct.

In the instant action, Plaintiff contends that he was injured by the actions of Jackson and that the Dealership was on notice of Jackson's propensity for improper conduct because Plaintiff's supervisor "informed upper management about Defendant Jackson's remarks and directives with regard to terminating Mr. Rowan because he had filed an EEOC charge and because Defendant Jackson mistakenly believed that Plaintiff did not want to work for blacks." Pl. Br. [44] at 22. In his Response to Defendants' Statement of Facts and his Statement of Material Facts in Dispute, however, Plaintiff has not pointed to any evidence in the record that he ever informed anyone at the Dealership of Jackson's comments.

It is undisputed that the Dealership had written anti-discrimination and anti-harassment policies and Plaintiff was familiar with those policies. SMF at ¶ 9. The policies informed the employee that, if the employee had a concern regarding harassment or discrimination, the employee should report such a concern to the Dealership supervisors and/or Barbara Edwards who was the Comptroller. SMF at ¶¶ 9, 11. Plaintiff knew that Swago and David Lynn were Chrysler employees with authority over the Dealership and that they were Jackson's superiors. SMF at ¶ 10; Pl. Resp. SMF at ¶ 10. Plaintiff also knew that Edwards was the Secretary/Comptroller of the Dealership. SMF at ¶ 11. Plaintiff admits that he never reported any concerns regarding discrimination and/or retaliation by Jackson to Edwards, Swago or Lynn. SMF at ¶ 12.

Moreover, to the extent that Plaintiff is arguing that he did not need to report his concerns because it was his supervisor Lawhorne that advised him of Jackson's comments and later informed him that she had informed upper management of Jackson's alleged comments about Plaintiff, Plaintiff has not cited to any authority establishing that Jackson's alleged comments would have been sufficient to put the Dealership on notice that Jackson had a propensity for committing improper conduct that might cause injury to another employee. At most, Plaintiff has shown that Jackson mistakenly believed that Plaintiff harbored a discriminatory animus against Jackson because of Jackson's race and expressed a desire to fire Plaintiff because of that discriminatory animus.⁶ Plaintiff has not pointed to any evidence in the record, however, suggesting that anyone at the Dealership ever complained that Jackson had actually harassed them or discriminated against them because of their race. Thus, while management may have known of Jackson's concerns about Plaintiff's dislike of working for him because of his race, there is no evidence that Jackson improperly acted on those concerns in the past and therefore, no evidence of a propensity of improper conduct.⁷

6 Plaintiff has failed to point to any evidence in the record (and the Court has found none) that Lawhorne told anybody in upper management that Jackson wanted to fire Plaintiff because he had filed an EEOC charge. In her deposition, Lawhorne states only that she informed Edwards and Swago that Jackson had told her to fire Plaintiff and that in doing so Jackson said that Plaintiff "had a problem working for a nigger." Lawhorne Dep. at 39-40, 51.

7 Of course, there may be nothing improper about an employer's decision to terminate someone on the ground that he or she did not like to work with a supervisor because of the supervisor's race.

Accordingly, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment [41] be GRANTED with respect to Plaintiff's state law claim of negligent retention against the Dealership, as asserted in Count Four of the Complaint.

2. Intentional Infliction of Emotional Distress

Plaintiff's final claim is a claim under Georgia law for intentional infliction of emotional distress against both Defendants. Georgia courts have recognized the tort of intentional infliction of emotional distress by stating:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Yarbray v. Southern Bell Tel. Tel. Co., 261 Ga. 703, 706, 409 S.E.2d 835, 837 (1991) (quoting The Restatement (Second) of Torts § 46(1) (1965)); see also Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227, 229, 335 S.E.2d 445 (1985). In order to sustain a cause of action, the defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff. Cornelius v. Auto Analyst, Inc., 222 Ga. App. 759, 476 S.E.2d 9, 11 (1996) ("The conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.") (citation and internal quotation marks omitted);see also Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 224, 369 S.E.2d 541 (1988); Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 772, 324 S.E.2d 593 (1984); Comment d § 46(1) of the Restatement (Second) of Torts ("Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim `Outrageous!'") (quoted in Yarbray, 261 Ga. at 706, 409 S.E.2d at 837).

To make out a prima facie case of intentional infliction of emotional distress under Georgia law, a plaintiff must prove each of the following elements: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga. App. 227, 230, 335 S.E.2d 445, 447-48 (1985); see also Gaston v. Southern Bell Tel. Tel. Co., 674 F. Supp. 347, 352 (N.D. Ga. 1987). The burden that a plaintiff must meet in order to prevail on this claim is a stringent one. Bridges, 176 Ga. App. at 229, 335 S.E.2d at 447.

Whether conduct is sufficiently outrageous and whether the resulting emotional distress is sufficiently severe to support a claim of intentional infliction of emotional distress are initially questions for the court. Yarbray, 261 Ga. at 706, 409 S.E.2d at 838; accord Clark v. Coats Clark, Inc., 990 F.2d 1217, 1229 (11th Cir. 1993). "If the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress, the jury then must find the facts and make its own determination."Yarbray, 261 Ga. at 706, 409 S.E.2d at 838.

Georgia courts recognize that the existence of an employer-employee relationship, where one party may exercise control over the other, may produce a character of outrageousness that otherwise might not exist. Bridges, 176 Ga. App. 227, 335 S.E.2d at 448.

The workplace is not a free zone in which the duty not to engage in willfully and wantonly causing emotional distress through the use of abusive or obscene language does not exist. Actually, by its very nature, it provides an environment more prone to such occurrences because it provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships which cannot easily be avoided. The opportunity for commission of the tort is more frequently presented in the workplace. . . .

Coleman v. Housing Authority of Americus, 191 Ga. App. 166, 171, 381 S.E.2d 303, 306 (1989); see also Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1558 (11th Cir. 1995). Even when an employment relationship exists, however, "major outrage in the language or conduct complained of is essential to the tort." Bridges, 176 Ga. App. 227, 335 S.E.2d at 448. Comments made within the context of one's employment may be horrifying or traumatizing, but are generally considered "a common vicissitude of ordinary life." Peoples v. Guthrie, 199 Ga. App. 119, 121, 404 S.E.2d 442 (1991).

The Georgia Court of Appeals addressed this standard of outrageousness in an employment context in Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 324 S.E.2d 593 (1984), in which it affirmed the trial court's grant of summary judgment in an action brought by a plaintiff against his former employer. The plaintiff had alleged that the defendant and its representatives had made approximately ten threats against his future employment and retirement benefits, as well as his life. The court held that these threats, considered individually or collectively, did not rise to the requisite level of outrageousness and egregiousness.Sossenko, 172 Ga. App. at 773, 324 S.E.2d at 595. The court contrasted the defendant's conduct with those cases in which courts have found outrageous and egregious conduct, and found that the acts complained of did not rise to a sufficient level of outrageousness. See id. (citing American Finance Loan Corp. v. Coots, 105 Ga. App. 849, 125 S.E.2d 689 (1962) (defendant terrorized a frightened plaintiff at gunpoint in an attempt to collect a bill)); Stephens v. Waits, 53 Ga. App. 44, 184 S.E. 781 (1936) (defendant physically intimidated frightened mourners as they attempted to bury a family member at a cemetery)).

In the instant action, Plaintiff bases his claim of intentional infliction of emotional distress upon "the pattern of behavior on Jackson's part." Pl. Br. [44] at 24. Plaintiff does not elaborate further regarding what specific "behavior on Jackson's part" forms the basis of this claim. The Court can only assume that Plaintiff bases his claim on Jackson's alleged statements to Lawhorne and Greenwood regarding Jackson's intent to fire Plaintiff, and Jackson's ultimate decision to terminate Plaintiff's employment. With respect to the alleged statements Jackson made to Lawhorne and Greenwood, the undisputed evidence reflects that Jackson did not make those statements in the presence of Plaintiff; thus, Plaintiff has failed to show that Jackson could have intended to cause emotional distress to Plaintiff by making those statements to other people.

Moreover, Plaintiff has failed to point to any other evidence in the record that Jackson committed any outrageous, humiliating or threatening conduct toward Plaintiff at any time, including the day that he asked Plaintiff to submit his resignation. Thus, the Court concludes that the Jackson's actions do not rise to the level of outrageousness required to sustain a claim of intentional infliction of emotional distress. Isolated instances of harsh conduct in the workplace will not support a claim for intentional infliction of emotional distress. See Hendrix v. Phillips, 207 Ga. App. 394, 395, 428 S.E.2d 91 (1993). In addition, the mere termination of employment does not rise to a level of outrageousness that would authorize a recovery for intentional infliction of emotional distress.Borden v. Johnson, 196 Ga. App. 288, 290-291, 395 S.E.2d 628 (1990).

Accordingly, the undersigned RECOMMENDS that Defendants' Motion for Summary Judgment [41] be GRANTED with respect to Plaintiff's state law claim of intentional infliction of emotional distress as to both Defendants, as asserted in Count Five of the Complaint.

III. CONCLUSION AND RECOMMENDATION

For all the reasons discussed above, IT IS ORDERED that Defendants' Motion for Protective Order and to Quash Notice of Deposition as Outside the Discovery Period [33] be GRANTED.

Moreover, IT IS RECOMMENDED that Defendants' Motion for Summary Judgment [41] be GRANTED in part, and DENIED in part. IT IS RECOMMENDED that Defendants' Motion for Summary Judgment [41] be GRANTED with respect to Plaintiff's claim of race discrimination under Title VII (Count One), Plaintiff's claim of race discrimination under Section 1981 (Count Two), and Plaintiff's state law claims of negligent retention (Count Four) and intentional infliction of emotional distress (Count Five).

IT IS FURTHER RECOMMENDED that Defendants' Motion for Summary Judgment [41] be DENIED with respect to Plaintiff's Title VII claim of retaliation against Defendant Stone Mountain Chrysler Jeep, Inc., as asserted in Count Three of the Complaint.

IT IS SO ORDERED and RECOMMENDED.