Opinion
Civil Action No. 1:04-CV-3255-WSD.
June 15, 2006
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
This case is presently before the Court on Defendant's Motion for Summary Judgment and Motion to Strike, filed on September 12, 2005. Docket Entry [18]. Plaintiff filed a response in opposition on October 3, 2005. Docket Entries [23, 24]. Thereafter, Defendant submitted a reply brief in further support of their motion for summary judgment. Docket Entry [30].
On October 14, 2005, Defendant further filed a Motion to Strike paragraphs from affidavits and exhibits submitted with Plaintiff's Response in Opposition. Docket Entry [29]. Plaintiff filed a response in opposition to Defendant's motion to strike on October 26, 2005 and an amended response brief on October 27, 2005. Docket Entries [33, 34, 35]. On October 11, 2005, Defendant filed a reply brief. Docket Entry [36].
For the reasons outlined below, IT IS RECOMMENDED that Defendant's Motion for Summary Judgment be GRANTED. Docket Entry [18]. The Court further GRANTS Defendant's Motion to Strike Plaintiff's Exhibit 6. The Court DENIES AS MOOT the remainder of Defendant's Motion to Strike. Docket Entry [29].
DEFENDANT'S MOTION TO STRIKE
Initially, the Court must consider what documents are properly in the summary judgment record. In Defendant's Motion to Strike, Defendant argues that the Court should strike paragraphs seven through twelve and sixteen through twenty-one of Plaintiff's affidavit and paragraphs seven, eight, and ten through thirteen of Mr. Leachman's affidavit, because they were made without personal knowledge, set forth ultimate facts and conclusions of law, are not supported by a foundation, or constitute inadmissible hearsay. (Defendant's Motion to Strike [hereinafter Def. Mot. Strike] at 3-4, 5-7). Defendant further argues that Plaintiff's Exhibits 2 and 6, which Plaintiff submitted in support of her Response to Defendant's Motion for Summary Judgment, are not authenticated or otherwise inadmissible. (Def. Mot. Strike at 3-4, 9). In Plaintiff's Response in Opposition, Plaintiff argues that the Court may consider for summary judgment purposes the paragraphs in the affidavit to which Defendant objects, because they were made with personal knowledge and do not constitute conjecture, speculation, opinion, or ultimate conclusions of fact. (Plaintiff's Response to Def. Mot. Strike [hereinafter Pl. Resp. Strike] at 3-5, 9-10). Plaintiff also contends that Exhibits 2 and 6 are admissible because they are offered for purposes other than to prove the truth of the matter asserted and can be authenticated at trial. (Plaintiff's Response to Def. Mot. Strike [hereinafter Pl. Resp. Strike] at 5-9, 11-13).
When ruling on a motion for summary judgment, the Court may only consider admissible evidence. FED.R.CIV.P. 56(e). Federal Rule of Civil Procedure 56 requires:
[s]upporting and opposing affidavits . . . be made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
FED. R. CIV. P. 56(e). As long as it is otherwise admissible, the evidence presented to the Court at the summary judgment stage may be in an inadmissible form. McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996). However, documents which are not properly authenticated and verified do not meet the requirements of Rule 56(e) and should not be considered when evaluating a motion for summary judgment. Kramer v. Gwinnett County, Ga., 306 F. Supp. 2d 1219, 1224 (N.D. Ga. 2004); Lugue v. Hercules, Incorporated, 12 F. Supp. 2d 1351, 1355 (S.D. Ga. 1997) (citing First Nat'l Life Ins. Co. v. California Pacific Life Ins. Co., 876 F.2d 877, 881 (11th Cir. 1989); Davis v. Howard, 561 F.2d 565, 569 (5th Cir. 1977)). "To be admissible at the summary judgment stage, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e)." Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) (internal quotations omitted);Stuart v. General Motors Corp., 217 F.3d 621, 635 n. 20 (8th Cir. 2000); Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (internal quotations omitted) (quoting 10A Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure § 2722 at 382 (3d ed. 1998)); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1551 (9th Cir. 1989).
Applying the law to the facts of this case, the Court agrees that the failure of Plaintiff to attach an affidavit or deposition testimony to Exhibit 6 authenticating the document precludes the Court from considering it when addressing Defendant's motion for summary judgment. All Plaintiff needed to do to authenticate Exhibit 6 was to have either Catherine Streney or Ms. Leslie O'Bryant, the purported recipient and writer of the letter, respectively, identify and authenticate the letter in a deposition or affidavit and submit that deposition testimony or affidavit to the Court with Exhibit 6 attached. Absent such sworn testimony, a court deciding a summary judgment motion does not know that a particular piece of evidence is what it purports to be. Thus, while Plaintiff may be correct in noting that she will be able to authenticate the documents and remedy the various other evidentiary problems at trial, authentication at trial does not demonstrate to the court at the summary judgment stage that the documents are real and valid and does not satisfy Rule 56(e). Accordingly, this Court may not give credence to Exhibit 6 when ruling on Defendant's motion for summary judgment. See Kramer, 306 F. Supp. 2d at 1224; see also Orsi, 999 F.2d at 92; Hal Roach Studios, 896 F.2d at 1551. The Court, therefore, GRANTS Defendant's motion to strike Plaintiff's Exhibit 6. Docket Entry [29].
The Court deems MOOT the remainder of Defendant's Motion to Strike, because these affidavit statements and documentary evidence do not affect the outcome of Defendant's Motion for Summary Judgment. Docket Entry [29].
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff filed the instant lawsuit on November 11, 2005, alleging that Defendant Marriott refused to hire her because of her race, in violation of 42 U.S.C. § 1981 ("§ 1981"), and because of her age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Docket Entry [1]. Plaintiff filed an amended complaint on March 2, 2005. Docket Entry [2]. Defendant filed the instant motion for summary judgement arguing that Plaintiff cannot show that Defendant's legitimate nondiscriminatory reason for not hiring her is pretext for race or age discrimination. (Defendant's Motion for Summary Judgment [hereinafter "DMSJ"] at 1). Responding in opposition, Plaintiff contends that Defendant's proffered reason is pretext for discrimination, because Defendant's human resources specialist deviated from corporate policy by not placing Plaintiff's application in the consideration category, the specialist's assessment of Plaintiff's hospitality skills is subjective and unsupported by any evidence, Defendant did not hire any black person as a Room Service Server between April 2001 and December 2003, and Plaintiff is more qualified than the individual hired to fill the Room Service Server position. (Plaintiff's Response in Opposition to DMSJ [hereinafter "Pl. Resp. DMSJ"] at 13, 15-18). In Defendant's Reply, Defendant argues that Plaintiff has failed to rebut its proffered reason for not hiring Plaintiff by presenting evidence of her food service experience and inadmissible hearsay. (Defendant's Reply to Pl. Resp. DMSJ [hereinafter "Def. Reply DMSJ"] at 5-6). Defendant further asserts in its reply that Plaintiff has presented no evidence to support her allegation that a plot existed to exclude black applicants from positions such as the Room Service Server. (Def. Reply DMSJ at 6-8). Finally, Defendant contends that Plaintiff does not present any arguments in support of her age discrimination claim in her response brief and has no evidence of age discrimination. (Def. Reply DMSJ at 8-9).
In Plaintiff's amended complaint, she adds the name of the individual Defendant hired to fill the Room Server position to paragraph 15 and changes the word "sex" to "age" in paragraph 18. For purposes of this Report and Recommendation, the Court will refer to Plaintiff's amended complaint as her complaint.
I. STATEMENT OF FACTS
All facts taken directly from Defendants' Statement of Undisputed Facts have either been admitted or remain undisputed by Plaintiff. This Court must accept as admitted those facts in the moving party's statement that have not been "specifically controverted" with citation to the relevant portions of the record by the opposing party. Local Rule 56.1B(2), (3), N.D. Ga. Consequently, subjective perceptions, conclusory allegations, or allegations that are otherwise unsupported by record evidence do not create genuine issues of material fact in order to withstand summary judgment. See Chapman v. AI Transp., 229 F.3d 1012, 1051 n. 34 (11th Cir. 2000) (en banc); Wood v. City of Lakeland, 203 F.3d 1288, 1292 (11th Cir. 2000); Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir. 1997); Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989). However, the Court will not consider any fact (1) not supported by a citation to evidence (including a page or paragraph number), (2) supported by a citation to a pleading rather than to evidence, (3) stated as an issue or legal conclusion, or (4) set out only in the brief and not in the movant's statement of undisputed fact. Local Rule 56.1B(1), 56.1B(2)(b), N.D. Ga.
Defendant Marriott operates the Evergreen Conference Resort as a full service hotel. (Defendant's Statement of Undisputed Material Facts [hereinafter "DSMF"] ¶ 1). The hotel employs five Room Service Servers. (DMSJ, Declaration of Diane Buchanan, September 9, 2005 [hereinafter "Buchanan Decl."] ¶ 6). Three Room Service Servers work full-time, and two work part-time. (Buchanan Decl. ¶ 6). Plaintiff is aware of two other black employees who have worked as Room Service Servers at the Evergreen Conference Center. (DSMF ¶ 8). In June 2003, the Evergreen Conference Resort had an opening for one of the five Room Service Server positions in the hotel. (DSMF ¶ 22; Plaintiff's Statement of Undisputed Material Fact as to Which There are Genuine Issues to be Tried [hereinafter "PSMF"] ¶ 2; DMSJ, Buchanan Decl. ¶ 7). The overall responsibilities of the Room Service Server position include "prompt and courteous delivery of all Room Service orders, maintain positive Room Service image through all areas of guest contact and through cleanliness of guest areas." (DSMF ¶ 23Buchanan Decl. ¶ 6, Exh. A, Marriott Position Description: Room Service Server). Additionally, good hospitality skills is one of the primary requirements for the Room Service Server position, because of their interaction with hotel guests. (DSMF ¶ 24; DMSJ, Buchanan Decl. ¶¶ 1, 8).
On or about June 12, 2003, Plaintiff, a black 42 year-old woman, submitted an application for the position. (DSMF ¶ 25; PSMF ¶ 3; Buchanan Decl. ¶ 9; see also Def. Reply DMSJ, Deposition of Helen Brown, May 4, 2005 [hereinafter "Pl. Dep."] at 38, Def. Exh. 1, Marriott Employment Application of Helen Brown, June 12, 2003 [hereinafter "Pl. Employ. App."]). Beginning in June 2003, when an applicant for a position completed an application, the applicant had an initial screening with a member of the HR Department. (DSMF ¶ 9; Buchanan Decl. ¶ 2; Leachman Aff. ¶ 5). During the initial screening the HR staff member would review the application, ensure the applicant properly filled it out, and briefly discuss the position sought. (DSMF ¶ 10; PSMF ¶ 20; Leachman Aff. ¶ 5). Ms. Buchanan states that in addition to briefly discussing the position sought, the HR staff member would check that the applicant would be available at the required hours, ensure the applicant met the basic job requirements, and assess the applicant's hospitality skills by evaluating their demeanor and responsiveness during the initial screening to gage their hospitality skills. (DSMF ¶ 11; Buchanan Decl. ¶ 2). Specifically, Ms. Buchanan states that the interviewer would look for "a warm and upbeat demeanor and positive body language, such as smiling, good eye contact and pleasant tone of voice," and would ask the applicant to discuss instances from their work history of good customer service experiences. (DSMF ¶¶ 12, 13; Buchanan Decl. ¶ 3). If the applicant met the position's minimum qualifications, Defendant would schedule a validated interaction assessment inventory ("IVR") to evaluate the applicant's hospitality skills over the telephone. (DSMF ¶ 15; PSMF ¶ 21; Leachman Aff. ¶ 6). Upon completion of the IVR, the applicant would interview with the appropriate department manager. (DSMF ¶ 15; PSMF ¶ 22; Buchanan Decl. ¶ 4). The department manager would ultimately decide which applicant to hire. (DSMF ¶ 16; Buchanan Decl. ¶ 4; Leachman Aff. ¶ 6). Mr. Leachman was ultimately responsible for deciding whom to hire for the Room Service Server position. (Leachman Aff. ¶ 6; Buchanan Decl. ¶ 14).
Plaintiff denies paragraphs 11 through 15 of Defendant's Statement of Material Fact; however, in support of her denial, Plaintiff relies on Plaintiff's Exhibit 6. The Court has struck Plaintiff's Exhibit 6, because Plaintiff did not authenticate the document as required for summary judgment purposes in accordance with Rule 56(e). Local Rule 56.1B(2)a(2) provides that "[t]his Court will deem each of the movant's facts as admitted unless the respondent: (I) directly refutes the movant's fact with concise responses supported by specific citations to evidence (including page or paragraph number)." Plaintiff has not supported her denial of paragraph 11 with a specific citation to evidence comporting with Federal Rule 56(e). Accordingly, this paragraph is deemed admitted.
When Plaintiff submitted her application, Ms. Buchanan conducted an initial screening, during which she and Plaintiff discussed the job requirements, the work schedule, the salary, and Plaintiff's past experience. (DSMF ¶ 26; PSMF ¶ 4; Buchanan Decl. ¶¶ 2, 9; Deposition of Helen Brown [hereinafter "Pl. Dep."] at 41-43). Plaintiff states that during the interview, she was relaxed, maintained pleasant body language and good eye contact, used a good tone of voice, and described several events demonstrating her hospitality skills to Ms. Buchanan. (Pl. Aff. ¶¶ 8, 9; Pl. Dep. at 42). After concluding Plaintiff's initial screening, Ms. Buchanan "concluded that Plaintiff lacked the necessary hospitality skills" for the Room Service Server position. (DSMF ¶ 26; Buchanan Decl. ¶ 9). Consequently, Ms. Buchanan did not refer Plaintiff's application on for an IVR, and the HR Department sent Plaintiff a standard post card notifying her that she would no longer be considered for the position on or about June 23, 2003. (DSMF ¶¶ 26, 30; PSMF ¶ 17; Pl. Aff. ¶ 14; Pl. Dep. at 44, 46; Buchanan Decl. ¶ 10).
According to Mr. Leachman, he was advised that Plaintiff had submitted an application for the Room Service Server position. (Leachman Aff. ¶ 7). Mr. Leachman states that when he went to the HR Department to schedule an interview with Plaintiff, Ms. Buchanan told him that Plaintiff had interviewed and was awful. (Leachman Aff. ¶ 8; see also Pl. Dep. at 57). Mr. Leachman states that he found Ms. Buchanan's statement strange, because of the position's minimal requirements, Plaintiff's employment background, and the need to fill the position very quickly. (Leachman Aff. ¶ 8).
Sometime between June 10, 2003 and June 23, 2003, Mr. Leachman hired Ms. Aimee Anderson, a white female, to fill the vacant Room Service Server position. (DSMF ¶ 33; Pl. Aff. ¶ 13; Pl. Exhs. 3, 4). Ms. Anderson is younger than Plaintiff and has no food and beverage experience. (DSMF ¶ 33; PSMF ¶ 16). On October 7, 2003, Plaintiff filed a charge of discrimination on the basis of race with the Equal Employment Opportunity Commission ("EEOC"). (Compl. ¶ 17; PSMF ¶ 18; Pl. Aff. ¶ 15; Pl. Dep. at 72, Def. Exh. 5, EEOC Charge of Discrimination, No. 110-2004-00111, October 7, 2003 [hereinafter "Oct. 7, 2003 EEOC Charge"]). On October 22, 2003, the EEOC received a perfected charge. (Compl. ¶ 18; Pl. Dep. at 73-74, Def. Exh. 6, EEOC Charge of Discrimination, No. 110-2004-00111, October 21, 2003 [hereinafter "Oct. 21, 2003 EEOC Charge"]). The EEOC issued a Notice of Dismissal, stating that based on its investigation, the EEOC could not conclude that any statute had been violated. (Pl. Dep. at 6-77, Def. Exh. 7, Notice of Right to Sue, August 6, 2004 [hereinafter "Notice of Right to Sue"]). Thereafter, Plaintiff brought the instant civil action.
II. CONCLUSIONS OF LAW
A. Summary Judgment Standard
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56. "The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The movant discharges this burden by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case."Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the movant has demonstrated that no genuine issues of material fact exist, the plaintiff must produce some evidence in support of her claim. Id. at 324 (1986); Clark, 929 F.2d at 608. Mere conclusory allegations are insufficient to withstand a motion for summary judgment. Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989). The nonmoving party must set forth specific facts showing the existence of a genuine issue of material fact through affidavits, depositions, answers to interrogatories, or admissions. FED. R. CIV. P. 56(e). If neither party can prove the existence or nonexistence of an essential element of a claim, summary judgment will be granted if the movant shows that the plaintiff will be unable to meet her burden of proof at trial.Celotex, 477 U.S. at 322. The non-moving party's failure to offer proof of an essential element to her case renders all facts immaterial, thus entitling the movant to judgment as a matter of law. Id. at 323.
At the summary judgment stage, the court must examine all evidence in the light most favorable to the nonmoving party and the reasonable inferences therefrom and resolve all reasonable doubts in her favor. Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1199 (11th Cir. 2001); Earley v. Champion Int'l Corp., 907 F.2d 1077 (11th Cir. 1990). A fact is only material if it is an essential element of the plaintiff's case under controlling substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is not genuine if it is unsupported by evidence or created by evidence, which is "merely colorable" or "not significantly probative." Id. at 250.
B. Plaintiff's Race and Age Discrimination Claims
Plaintiff alleges that Defendant Marriott refused to hire her because of her race, in violation of § 1981, and because of her age, in violation of the ADEA. Defendant Marriott denies Plaintiff's allegations.
"Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts." Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999); see also Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 2026, 95 L.Ed.2d 582 (1987) (noting § 1981 has been construed to forbid all "racial" discrimination in the making of contracts). The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).
Section 1981 provides that "[a]ll persons . . . shall have the right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . . " 42 U.S.C. § 1981(a).
In order to show a violation of § 1981 in a § 1983 cause of action, a plaintiff must show discriminatory intent or purpose.Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); see also Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). When a plaintiff bringing a § 1981 claim does not present direct evidence of discrimination, the same McDonnell Douglas analytical framework utilized for Title VII claims applies. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 2105, 147 L.Ed.2d 105 (2000) (recognizing widespread application of the McDonnell Douglas framework to ADEA claims); Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330-31 (11th Cir. 1998); Richardson v. Leeds Police Dep't, 71 F.3d 801 (11th Cir. 1995) (explaining that claims under § 1981 and § 1983 utilize the same identical methods of proof as Title VII claims and are governed by the McDonnell Douglas framework).
Under the McDonnell Douglas framework, the plaintiff first has the burden of establishing a prima facie case of race discrimination. See McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the plaintiff meets this burden, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254; Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). This burden is one of production, not persuasion, and is "exceedingly light." Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994); Perryman v. Johnson Prod. Co., 698 F.2d 1138, 1141 (11th Cir. 1983). It "is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 248; Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). The burden then returns to the plaintiff to show that the defendant's proffered nondiscriminatory reason was merely a pretext for discriminatory intent. Burdine, 450 U.S. at 253; Chapman, 229 F.3d at 1024.
Defendant states that it did not consider Plaintiff further for the Room Service Server position after her initial screening, because Ms. Buchanan concluded that Plaintiff lacked the necessary hospitality skills. (DMSJ at 7; DSMF ¶ 26). Because Defendant has proffered a non-discriminatory reason for its employment decision, the burden returns to Plaintiff to show that Ms. Buchanan's statement that Plaintiff lacked hospitality skills is merely pretextual. Combs, 106 F.3d at 1538.
Plaintiff contends that Defendant's proffered reason is pretext for discrimination, because Plaintiff is more qualified than the individual hired to fill the Room Service Server position, Defendant did not hire any black person as a Room Service Server between April 2001 and December 2003, Ms. Buchanan's assessment of Plaintiff's hospitality skills is subjective and unsupported by any evidence, and Ms. Buchanan deviated from corporate policy by not placing Plaintiff's application in the consideration category. (Plaintiff's Response in Opposition to DMSJ [hereinafter "Pl. Resp. DMSJ"] at 13, 15-18). In Defendant's Reply brief, Defendant argues that Plaintiff has failed to show pretext, because Plaintiff admitted that Ms. Buchanan concluded Plaintiff lacked the requisite hospitality skills; Ms. Buchanan did not deviate from corporate policy because Plaintiff did not meet Marriott's initial qualifications for the position; Plaintiff's allegation that Defendant did not hire one black person to a Room Service Server position between April 2001 and December 2003 is irrelevant because Plaintiff does not show that any black person applied; and Defendant hired seventy-five black employees between April 2001 and December 2003 to fill positions that require at least as much customer interaction as the Room Service Server position. (Def. Reply DMSJ at 3-8). Defendant further contends that Plaintiff makes no arguments in support of her age discrimination claim in her response brief, neither of Plaintiff's EEOC charges references age discrimination, and the only evidence Plaintiff presents of age discrimination, namely that Ms. Anderson is younger than Plaintiff and Plaintiff's own deposition testimony that only young people were hired for the Room Service Server position, is insufficient to create a genuine issue of fact as to whether Defendant's proffered reason for not hiring Plaintiff was pretextual. (Def. Reply DMSJ at 8-9).
To demonstrate pretext, the plaintiff must show that the defendant lacks credence or that a discriminatory reason more likely influenced the defendant than its proffered reason. See Combs v. Plantation Patterns, 106 F.3d 1519, 1528-30 (11th Cir. 1997); Evans v. McClaine of GA, Inc., 131 F.3d 957, 965 (11th Cir. 1997); Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). See also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). This burden requires the plaintiff to demonstrate "such weaknesses, implausibilities, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Combs, 106 F.3d at 1538. Mere conclusory allegations of discrimination without more, are insufficient to raise an inference of pretext or intentional discrimination where an employer has offered extensive evidence of legitimate, non-discriminatory reasons for its actions.Mayfield, 101 F.3d at1376.
Additionally, the McDonell Douglas analysis restricts the inquiry into Defendants' proffered nondiscriminatory reason as to whether the decisionmaker believed its reason, and if so, whether this belief was the reason behind the defendant's employment decision. See Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991); Hawkins v. Ceco Corp., 883 F.2d 977, 980 n. 2 (11th Cir. 1989), (the fact that the employee did not actually engage in the misconduct reported to the employer is not relevant to whether the employer believed the employee had done wrong). Federal courts "do not sit as a super-personnel department that reexamines an entity's business decisions."Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). "No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [Title VII] does not interfere." Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (quoting Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991)) (other citations omitted).See also Alexander v. Fulton County, 207 F.3d 1303, 1341 (11th Cir. 2000) ("[I]t is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not racially motivated."). Rather, the court's "inquiry is limited to whether the employer gave an honest explanation of its behavior." Id. As long as the reason is not discriminatory, the "employer may [make an employment decision affecting] an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all. . . ." Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984); accord Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999) ("The reason offered by an employer for an action does not have to be a reason that the judge or jurors would act on or approve.") (citation and internal quotation marks omitted); see also Jones, 874 F.2d at 1540; Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987) ("[I]f the employer fired an employee because it honestly believed that the employee had violated a company policy, even if it was mistaken in such belief, the discharge is not `because of race' and the employer has not violated § 1981.").
Applying the law to the facts of this case, the Court finds that Plaintiff has not shown that Defendant's proffered reason, namely that Ms. Buchanan concluded that Plaintiff lacked the necessary hospitality skills, is pretext for discrimination. In Plaintiff's Response to Defendant's Statement of Undisputed Material Fact, Plaintiff admits that after Ms. Buchanan conducted Plaintiff's initial screening, "she concluded that Plaintiff lacked the hospitality skills necessary for the position." (DSMF ¶ 26). Admitting that Ms. Buchanan actually concluded the reason proffered for not hiring Plaintiff precludes Plaintiff from being able to show that this reason is not worthy of credence or not the actual motivation for the employment decision. Plaintiff nevertheless attempts to demonstrate "such weaknesses, implausibilities, incoherencies, or contradictions in the employer's proffered legitimate reason for its action that a reasonable factfinder could find them unworthy of credence" through evidence that Defendant did not hire a black employee to a Room Service Server position between April 2001 and December 2003, that Plaintiff had more experience in the food service industry than the woman hired, that Mr. Leachman and managers at other Marriott hotels believed Plaintiff had the requisite skills for a server position, or that Ms. Buchanan deviated from the corporate procedure. See Combs, 106 F.3d at 1538. This evidence, however, is insufficient to establish a genuine issue of material fact as to whether Defendant's proffered reason is worthy of credence or whether discriminatory animus more likely motivated Defendant when Plaintiff, herself, admits the reason is true. Accordingly, the Court finds that Plaintiff's arguments do not show Defendant's proffered reason to be pretextual.
Plaintiff fails to show pretext by demonstrating that Defendant did not hire a black person to work as a Room Service Server between April 2001 and December 2003. Absent evidence showing at least how many black applicants applied for Room Service Server positions during that time period, the fact that none were hired is not relevant. Howard v. BP Oil Co., Inc., 32 F.3d 520, 524 (11th Cir. 1994) (explaining that "the fact that BP had no black dealers in predominantly white areas of north Atlanta" is only relevant to discrimination analysis if plaintiff "present[s] evidence as to how many black [applicants] applied and were rejected and evidence of the success rate of equally qualified white applicants"); see also Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821, 827-28 (11th Cir. 2000) (finding that "[w]ithout knowing how many other women applied and what their qualifications were, or without knowing the track record of the unremoved males" statistical data that the plaintiff was the first woman hired as a principal in the county was not direct evidence of discrimination). "Statistics without an analytic foundation are `virtually meaningless.'" Evans v. McClain of Georgia, Inc., 131 F.3d 957, 962 (11th Cir. 1997) (citing Brown v. American Honda Motor Co., 939 F.2d 946, 952-53 (11th Cir.), cert. denied, 502 U.S. 1058, 112 S.Ct. 935, 117 L.Ed.2d 106 (1992)) (finding that the fact "that in the history of Appellees' operations (650 employees in eight plants), there have only been three black supervisory employees" is not significant, because the plaintiff offered no other information on whether black employees applied for supervisory positions). Here, Plaintiff does not include in her statistical analysis any information on the number of black applicants for the Room Service Server position during the highlighted time period. Accordingly, the Court finds that Plaintiff's statistics are not relevant to the discrimination analysis and do not show that Defendant's proffered reason for not hiring Plaintiff is pretext for discrimination.
In addition, Plaintiff's attempt to show pretext by highlighting her greater experience than Ms. Anderson in the food service industry fails to cast doubt on the legitimacy of Defendant's proffered reason. If the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason, but must meet it head on and rebut it. See Chapman, 229 F.3d at 1030. Quarreling with that reason is not sufficient. See id. Because the absence of hospitality skills might motivate a reasonable employer not to hire an applicant for a job that requires customer interaction, Plaintiff must face it "head on and rebut it." Arguing about how much food service experience Plaintiff and Ms. Anderson had fails to address whether Ms. Buchanan believed Plaintiff had sufficient hospitality skills, and, therefore, does not cast doubt on Defendant's proffered reason for its employment decision.
Furthermore, Plaintiff fails to show Defendant's proffered reason is pretextual through her argument that Ms. Buchanan's evaluation of her hospitality skills was subjective and unsupported. A subjective reason for an employment decision can be as legitimate as any other reason, "if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion." Steger v. Gen. Elec. Co., 318 F.3d 1066, 1076 (11th Cir. 2003) (citing Chapman v. AI Transport, 229 F.3d 1012, 1033 (11th Cir. 2000) (en banc)); see also Bass v. Bd. of County Comm'rs of Orange County, Fla., 256 F.3d 1095, 1105-1106 (11th Cir. 2003). For example, a statement that the defendant hired the "best qualified" applicant can be legitimate, if the defendant articulates specific reasons why that applicant is the best qualified, such as "seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work[,] or any combination" of such criteria. Steger, 318 F.3d at 1076 (citing Increase Minority Participation by Affirmative Change Today of Northwest Florida, Inc. (IMPACT) v. Firestone, 893 F.2d 1189, 1194 (11th Cir. 1990). Here, Ms. Buchanan states that the HR Department assessed an applicant's hospitality on the basis of their demeanor and responsiveness. (Buchanan Decl. ¶ 2). Ms. Buchanan explains that HR specifically "looked for a warm and upbeat demeanor and positive body language, such as smiling, good eye contact and pleasant tone of voice." (Buchanan Decl. ¶ 3). Additionally, Ms. Buchanan states that HR had applicants "discuss examples of good customer service experiences" from their past employment. (Buchanan Decl. ¶ 3). Because Defendant has articulated specific factors, its subjective reason for deciding not to hire Plaintiff is legitimate.
Nonetheless, Plaintiff cites her affidavit testimony, in which she states that she had previously been offered positions with Marriott, but not hired due to hiring freezes, and Mr. Leachman's affidavit testimony that he would have hired Plaintiff had her application been found in the Human Resources Department, to show that Ms. Buchanan's reason was pretextual. (Pl. Resp. DMSJ at 14-15; see Pl. Dep. at 33-37; Pl. Aff. ¶¶ 10, 11; Leachman Aff. ¶¶ 10, 11). This evidence, however, fails to show either that Ms. Buchanan did not actually believe that Plaintiff lacked hospitality skills or that discriminatory animus more likely motivated her. "The inquiry into pretext centers upon the employer's beliefs," and Plaintiff admits that Ms. Buchanan believed she lacked hospitality skills. Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997); (DSMF ¶ 26). In light of Plaintiff's admission, the fact that other individuals at Marriott hotels have offered Plaintiff positions and that Mr. Leachman believed Plaintiff had the necessary skills for the Room Service Server position does not show that Ms. Buchanan's conclusion about Plaintiff's hospitality skills was pretextual. The court's "inquiry is limited to whether the employer gave an honest explanation of its behavior," not whether the employer made the right decision or a good decision. Chapman, 229 F.3d at 1030. As long as Defendant Marriott did not base its employment decision on Plaintiff's race or age, the federal courts will "not sit as a super-personnel department that reexamines an entity's business decisions." Damon, 196 F.3d at 1361.
Finally, any deviation from the normal hiring procedure here is insufficient to show pretext. "Departures from normal procedures may be suggestive of discrimination," Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985). However, "the mere fact that [an employer] failed to follow its own internal procedures does not necessarily suggest that [it] was motivated by illegal discriminatory intent[,]"Boykin v. Bank of America Corp., 162 Fed. Appx. 837, 839 (11th Cir. 2005) (noting that the Bank's failure to follow internal procedures alone is not evidence of pretext). Absent other evidence, "deviation from a company policy [alone] does not demonstrate discriminatory animus." Turner v. Bieluch, No. 03-80159-CIV-HURLEY, 03-81059-CIV-HOPKINS, 2004 WL 2044291, *4 (S.D. Fla. Aug. 13, 2004) (citing Mitchell v. UBSI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1996); Boykin v. Bank of America Corp., 162 Fed. Appx. 837, 839 (11th Cir. 2005); see also Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995). In the instant case, the admissible evidence does not necessarily establish that a deviation from corporate policy occurred. (See Def. Reply DMSJ at 4; Pl. Reply DMSJ at 13-14; Leachman Aff. ¶¶ 5, 6). While Ms. Buchanan states that HR would assess hospitality skills during the initial screening, the only admissible evidence presented by Plaintiff to support her position is Mr. Leachman's affidavit testimony that the "initial interview was conducted by a member of the Human Resources (HR) staff to determine if the application was filled out correctly and to briefly discuss the position the applicant is applying for." (Buchanan Decl. ¶¶ 2-4; Leachman Aff. ¶ 5). Mr. Leachman's testimony neither necessarily contradicts Ms. Buchanan's testimony nor necessarily establishes that Ms. Buchanan deviated from Marriott policy by evaluating Plaintiff's hospitality skills during the initial screening. Nevertheless, even assuming that Ms. Buchanan did not follow Marriott's hiring procedures, this deviation alone does not establish discriminatory animus or pretext. See Ingels v. Thiokol Corp., 42 F.3d 616, 623 (10th Cir. 1994); accord Randle, 69 F.3d at 454 ("The mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent or that the substantive reasons given by the employer for its employment decision were pretextual."). "Such evidence `goes only to process and not to purpose or motivation'" Housley v. Boeing Co., 177 F.Supp.2d 1209, 1218-19 (D. Kan. 2001) (citing Ingels, 42 F.3d at 623). As discussed above, Plaintiff has failed to present other admissible evidence or viable arguments showing that Ms. Buchanan's stated reason is not worthy of credence or that a discriminatory animus more likely motivated her. Therefore, even if Ms. Buchanan deviated from corporate policy by evaluating Plaintiff's hospitality; this deviation alone is insufficient to show pretext.
Accordingly, the Court finds that Plaintiff has failed to show that Defendant's proffered reason for its decision not to hire Plaintiff is pretext for race or age discrimination. The Court, therefore, RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED. Docket Entry [18]. The Clerk is DIRECTED to terminate the reference to the undersigned.
SO REPORTED AND RECOMMENDED.
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION
Attached is the report and recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636 and this Court's Local Rule 72.1(C). Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the report and recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. 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), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).
The Clerk is directed to submit the report and recommendation with objections, if any, to the district court after expiration of the above time period.
SO ORDERED.