Opinion
Civil Action No. 99-1110-CB-S
February 7, 2001
FINAL JUDGMENT
Pursuant to separate order entered this date granting Defendant's motion for summary judgment, it is hereby ORDERED, ADJUDGED and DECREED that the claims of the Plaintiff, Cynthia Colley, as Personal Representative of the Estate of Sol Colley, Jr., against the Defendant, Waste Management of Alabama, Inc. be and hereby are DISMISSED with prejudice.
OPINION and ORDER
This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. 28). At issue in this case is whether the Plaintiff is entitled to a trial on the merits of the racial discrimination and retaliation claims on behalf of her decedent under 42 U.S.C. § 1981. After careful consideration of the issues raised, the evidence presented in support of and in opposition to the motion, and the applicable law, the Court finds that Plaintiff has failed to present sufficient evidence to sustain her claims. Accordingly, the motion for summary judgment is due to be granted.
Sol Colley, Jr. was the named plaintiff when this action was filed. On September 21, 2000, Plaintiffs counsel filed a Suggestion of Death, notifying the Court that Sol Colley, Jr. had died on June 1, 2000. On January 11, 2001, Plaintiffs counsel filed a belated Motion to Substitute seeking to substitute Mrs. Colley, who had been appointed the personal representative of her husband's estate, as plaintiff. (Doc. 33) Defendant has filed an objection on the ground that the motion was not filed within ninety days after the Suggestion of Death as required by Fed.R.Civ.P. 25. (Doc. 35.) Because Plaintiff has demonstrated, albeit minimally, that the late filing was the result of excusable neglect and, more importantly, because Defendant has not been prejudiced, the Court finds that the Motion to Substitute is due to be, and hereby is, GRANTED. See Continental Bank v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993) (applying excusable neglect analysis to motion to substitute filed more than ninety days after suggestion of death).
I. Findings of Fact
Plaintiffs decedent, Sol Colley, Jr. ("Colley") was employed as a truck driver by Waste Management, Inc. from August 28, 1995 until January 27, 1998, when he was discharged. Colley's immediate supervisor was Joseph Clark. Clark's supervisor was Jim Huffman, District Manager.
Joseph Clark resigned his employment with Waste Management approximately two weeks before Colley's termination. (Clark Decl. ¶ 2)
On January 13, 1998, Colley reported to Clark, Huffman and Safety Coordinator Susan McCallister that he had injured his knee on the job. (Huffman Aff.) As a result, Huffman directed McCallister to submit a worker's compensation claim for Colley, and McCallister submitted the claim to CNA. (Id.) McCallister also investigated Colley's claim and determined that his knee problem was an ongoing one that began prior to his employment with Waste Management. (Id.)
According to McCallister's memo dated January 22, 1998 regarding her investigation, Colley did not initially report that the injury was work related. (Huffman Aff. Ex. D.) Furthermore, when questioned Colley repeatedly told Clark, McCallister and Huffman that he had never been treated for knee problems in the past. (Id.) However, during these discussions regarding his injury, Colley said that he had injured his knee in October when he bumped it against a lift gate of his cart delivery truck. (Id.) Colley also talked with Rick Brady, CNA's claim administrator about his injury. (Id.) In a recorded telephone statement, Brady asked if Colley "could pinpoint a specific incident that caused his current knee problems. Colley stated that he could not, and that the only thing he could possibly relate them to was when he allegedly struck his knee against he lift gate of the cart delivery truck in October." (Id.)
McCallister subsequently requested medical records from Colley's personal physician which reflected that Colley had been treated for knee problems since September 1995. (Id.) The following day CNA denied Colley's worker's compensation claim on the ground that the "[i]njury did not arise out of or occur in the course of employment." (Huffman Aff. Ex. B.) On January 28, 1998, Huffman terminated Colley's employment. (Huffman Aff.) "Based on Ms. McCallister's report, and after consulting with the Human Resources Department and representatives of CNA, [Huffman] concluded that Mr. Colley had violated company rules regarding the reporting of medical problems [and] . . . Colley's failure to disclose his medical condition created a safety hazard. As a result, [Huffman] made the decision to terminate Colley's employment effective January 27, 1998." (Id.)
On December 27, 1999, Colley filed the instant action alleging that he was the victim of racial discrimination and that he was discharged in retaliation for his complaints of racial discrimination in violation of 42 U.S.C. § 1981. Colley died on June 1, 2000.
II. Conclusions of Law
A. Summary Judgment Analysis
Summary judgment should be granted only if "there is no issue as to any material fact and 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 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). Once the moving party has satisfied his responsibility, the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992), cert. denied, 113 S. Ct. 1259 (1993) (internal citations and quotations omitted).
Factual disputes raised by the nonmoving party must be both material and genuine. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "`Genuine disputes are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record.'" Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993)).
B. Plaintiffs Evidentiary Submissions
Before addressing the substantive issues raised on summary judgment, the Court must consider the sufficiency of one of the evidentiary submissions filed by Plaintiff in opposition to Defendant's motions. In its reply brief, Defendant contends that the declaration of Cynthia Colley is deficient because it is "replete with hearsay statements and conclusory allegations." (Def.'s Reply Brf. p. 6.) "The general rule is that inadmissible hearsay "cannot be considered on a motion for summary judgment."' Macuba v. DeBoer, 193 F.3d 1316, 1322 (11th Cir. 1999) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Consequently, hearsay statements contained within an affidavit, deposition or other evidence offered in opposition to summary judgment, may only be considered if the statements can be reduced to admissible evidence at trial. McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996). For instance, the hearsay could be considered if it falls within an exception to the hearsay rule, see, e.g. Macuba, at 1323, or if there is reason to believe the declarant will testify to the statement at trial, see, e.g., Church of Scientology v. City of Clearwater, 2 F.3d 1514 (11th Cir. 1993).
Defendant also challenges the sufficiency portions of on of Plaintiffs other evidentiary submission, the declaration of Joseph A. Clark. Those challenges are discussed, infra.
The inadmissibility of Mrs. Colley's declaration is apparent from the first paragraph. Mrs. Colley states that her affidavit is "based on personal knowledge of the facts set forth herein in my discussions with my deceased husband Sol Colley, Jr." Thus, Mrs. Colley's "personal knowledge" is not personal knowledge at all but is hearsay derived from conversations with her late husband. Since the Court is unaware of any hearsay exception that would allow such testimony to be admitted into evidence at trial, Mrs. Colley's declaration will not be considered in opposition to summary judgment.
Mrs. Colley has provided a declaration made under penalty of perjury pursuant to 28 U.S.C. § 1746.
C. Statute of Limitations
The limitations period for filing a § 1981 claim is two years.Peterson v. BMI Refractories, 132 F.3d 1405, 1414 n. 16 (11th Cir. 1998) (Alabama's two-year personal injury limitations period applies to § 1981 actions). This action was filed on December 22, 1999. Therefore, Plaintiff cannot recover for any discriminatory treatment that occurred before December 22, 1997. D. Discriminatory and Retaliatory Discharge
Plaintiffs response to the Motion for Summary Judgment did not address Defendant's statute of limitations defense. Plaintiffs rather scattershot complaint contains allegations regarding several work-related incidents outside the limitations period where Colley received less favorable treatment than other truck drivers. In Count One, Defendant asserts generally that "[b]ecause of its actions as outlined above, Defendant unlawfully discriminated against Plaintiff due to his race, in violation of 42 U.S.C. § 1981, as amended." To the extent Plaintiff is attempting to bring a claim or claims for discriminatory employment practices based on those incidents, such claims are barred by the statute of limitations.
Plaintiff contends that he was discharged because of his race and in retaliation for complaining to his supervisor regarding the company's discriminatory treatment of him. Plaintiff relies on circumstantial, rather than direct, evidence to support her discrimination. The legal framework used to analyze a Title VII claim for employment discrimination or retaliation when a plaintiff relies solely on circumstantial evidence is, by now, almost axiomatic. The guiding principles are succinctly set forth as follows:
Defendant has not placed in dispute Plaintiffs claim that Colley complained of discriminatory employment practices to his supervisor, Joseph A. Clark.
Because direct evidence of discrimination [or retaliation] can be difficult to produce, the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), created a framework on the burden of production and order of presentation of proof to analyze circumstantial evidence of discrimination. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184, reh'g denied, 747 F.2d 710 (11th Cir. 1984) (noting that McDonnell Douglas framework is valuable tool for analyzing disparate treatment cases). To prove discriminatory treatment [or retaliation] through circumstantial evidence: (1) a plaintiff must first make out a prima facie case, (2) then the burden shifts to the defendant to produce legitimate, nondiscriminatory reasons for the adverse employment action, and (3) then the burden shifts back to the plaintiff to establish that these reasons are pretextual. McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25.Mayfield v. Patterson Pump Co., 101 F.3d 1371 (11th Cir. 1996). Defendant claims that Plaintiff cannot make out a claim for discriminatory discharge, in part, because he cannot prove a prima facie case. For purposes of summary judgment, Defendant does not contest Plaintiffs ability to prove a prima facie case of retaliation. However, Defendant has presented evidence of a legitimate nondiscriminatory reason for its decision to terminate Colley and contends that the Plaintiff cannot prove that the decision was a pretext for discrimination. For reasons discussed below the Court finds that the evidence upon which Plaintiff relies is insufficient to support a prima facie case of discriminatory discharge or to demonstrate that the Defendant's proffered reasons for terminating Colley were pretextual.
To establish a prima facie case of discriminatory discharge, a plaintiff must present evidence that (1) he is a member of a protected group; (2) he was qualified for the job from which he was discharged; (3) he was discharged; and (4) his job was filled by someone outside the protected class. Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1525 (11th Cir. 1991). Alternatively, a plaintiff may satisfy the fourth prong by proving that he was treated less favorably that a similarly situated person outside the protected class. Id.
When a plaintiff relies on differential application of work place rules to prove his prima facie case, "`[t]he most important factors [to consider] are the nature of the offenses committed and the nature of the punishments imposed.' . . . [T]he quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.'" Manniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (quoting Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), opinion modified, 151 F.3d 1321 (1998) (internal citations and quotations omitted)).
Plaintiff argues that Colley was treated less favorably than a white driver, M. J. Vaughn. Plaintiff has presented two reports of disciplinary action against Vaughn. The first report indicates that Vaughn was suspended by a supervisor named Derby for violating safety rules by driving a truck with major brake problems for two days in a row. The second, issued more than a year later, reflects that Vaughn was suspended by Huffman, among others, for three days because of an accident that resulted from his failure to secure adequately the back door of a roll off box. Vaughn's second disciplinary report does not specifically state that he violated a work place safety rule.
Plaintiff has presented evidence to which he does not refer in his brief that might arguably be construed as attempt to present additional evidence of differential treatment. In his declaration, Clark refers to an employee named Altravino Ash, a/k/a Vino, who only filed official reports of illness and injuries after the injury or illness appeared worse than initially thought. According to Clark, Ash was not terminated when the company discovered what he had done, apparently on more than one occasion. As defendant points out that there is no indication in the record of Ash's race; therefore, it is impossible to use him as a comparator. The Court notes that the Plaintiffs evidentiary submissions are replete with evidence to which she does not refer in her brief. It is unclear to the Court why such evidence has been submitted. In the future, Plaintiffs counsel will be called on to show cause why evidence upon which he does not rely should not be stricken from the record.
Plaintiff argues that both Colley and Vaughn violated work place safety rules. Colley was terminated. Vaughn was merely suspended. According to Plaintiff, the offenses are the same because the same general rule, i.e., work place safety, was violated. Even assuming, arguendo, that the same rule was violated, it is the nature of the offense, not the category, that is important. Failing to report a medical problem is simply not the same as driving a truck with faulty brakes or failing to secure a door, and the Court cannot second guess the Defendant's decision to punish the former infraction more harshly than the latter.
Plaintiff bears the burden of proving that Defendant's proffered reasons i.e, that Colley violated company policy and created an unsafe working condition by failing to disclose his knee injury, are pretextual and that discrimination or retaliation was the real reason Colley's discharge. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). Plaintiff may meet her burden either "`by directly persuading [the factfinder] that a discriminatory reason more likely motivated the employer or by showing that the employer's proffered explanation is unworthy of credence.'" Id. at 1528 (quoting Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 920-21 (11th Cir. 1993). Plaintiff asserts several theories to support her claim that the proffered reason for discharging Colley was a pretext for discrimination and retaliation. Most of these theories are arguments based on either unexplained or illogical inferences that Plaintiff derives from the evidence presented by the Defendant.
First, Plaintiff contends that the Defendant's reasons are pretextual because Defendant could have presented more evidence on summary judgment to support its decision. A defendant's burden on summary judgment with regard to pretext is only one of production, not persuasion. Standard v. A.B.E.L. Serv., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998). The Court refuses to infer pretext simply because Defendant did not present more evidence than necessary to meet its burden.
Next, Plaintiff argues that pretext can be inferred from the dates that certain documents were created and certain events took place. Plaintiff contends that McCallister's investigation followed by the denial of Colley's claim by CNA the next day somehow prove that the decision to terminate Colley was pretextual. In the Court's judgment, such an inference is not a reasonable one. CNA's denial of the claim was a result of McCallister's report. The decision to terminate Colley's employment was a result of McCallister's report. Otherwise, there is no link between the denial of the claim and Colley's termination. Plaintiff further argues that pretext can be inferred because McCallister called Colley's physician the day before his termination to inquire about work restrictions resulting from his injury. To the contrary, in the Court's opinion McCallister's inquiry would lead to the logical inference that she, at least, did not expect Colley to be terminated.
Plaintiff also contends that the reasons for termination are pretextual because Defendant has failed to present evidence that the contents of McCallister's report are true. It is not, however, up to the Defendant to prove that the reasons it relied upon in making its termination decision were true. Rather, it is up to the Plaintiff to prove that those reasons were not worthy of belief and that discrimination was the true motivation for the decision. See, e.g., Standard, 161 F.3d at 1332-33. So long as Huffman, the supervisor who made the decision to fire Colley, honestly believed Colley had committed the violation reported by McCallister, the truth or accuracy of that report is irrelevant. See Damon v. Fleming Supermarkets of Florida, Inc.,
196 F.3d 1354, 1363 n. 3 (11th Cir. 1999) (no liability for employment discrimination if employer fires employee under honest but mistaken belief that employee violated work rule).
Plaintiff points to McCallister's failure to interview Clark, Colley's former supervisor, regarding Colley's injury as evidence of pretext. As discussed above, the accuracy of McCallister's report is not in issue. Moreover, even if McCallister's failure to conduct a more thorough investigation could be construed as evidence of pretext, Clark's own declaration reveals that he no longer worked at Waste Management at the time McCallister conducted her investigation.
Plaintiff argues that pretext could be inferred because at the time of Colley's termination Huffman knew he was the subject of an EEOC complaint filed by Clark. As with many of Plaintiffs arguments, the Court fails to understand how this fact could support an inference of pretext. The fact that another employee had filed an EEOC complaint against Huffman does not make it more likely that his decision to terminate Colley was motivated by race or by a desire to retaliate.
The existence of an EEOC charge does mean that Huffman actually committed the acts with which he was charged.
Plaintiffs final pretext argument is based on the same evidence used to support her prima facie case, that is, that a white driver, M. J. Vaughn, was disciplined less harshly for similar violations. This argument fails for the same reasons discussed above with respect to plaintiffs prima facie case.
C. Conclusion
For the foregoing reasons, it is hereby ORDERED, ADJUDGED and DECREED that Defendant's Motion for Summary Judgment be and hereby is GRANTED.