Opinion
Civil Action File No. 1:00-CV-2317-BBM
October 9, 2001
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION AND ORDER
This matter is currently before the Court on Defendant's motion for summary judgment. [Doc. 16]. In this employment discrimination action, Plaintiff Dwayne Grayer alleges that his former employer, Defendant Children's Healtheare of Atlanta, Inc., violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by retaliating against him for his assistance of a co-worker who complained about sexual harassment in the workplace. Plaintiff alleges that as a result of his opposition to an unlawful employment practice, he was subsequently placed on probation, demoted, and constructively discharged. For the reasons explained herein, the undersigned Magistrate Judge hereby RECOMMENDS that Defendant's motion for summary judgment be GRANTED.
I. Summary judgment standard
Federal Rule of Civil Procedure 56 provides that summary judgment shall be "rendered forthwith 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 a judgment as a matter of law." FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of "informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact." Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The non-moving party then "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e). If in response the non-moving party does not sufficiently support an essential element of his case as to which he bears the burden of proof, summary judgment is appropriate.Rice-Lamar, 232 F.3d at 840 (citing Celotex, 477 U.S. at 323). "In determining whether genuine issues of material fact exist, [the Court] resolve[s] all ambiguities and draw[s] all justifiable inferences in favor of the non-moving party." Rice-Lamar, 232 F.3d at 840 (citingAnderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986)).
II. Title VII framework
Title VII of the Civil Rights Act of 1964 makes it 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).
Title VII also makes it an unlawful employment practice for an employer to discriminate against an employee "because he has opposed any practice made an unlawful employment 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). These two prohibitions on retaliation are generally known as the opposition clause and the participation clause, respectively. EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). A plaintiff asserting a claim of retaliation in violation of Title VII must establish a prima facie case by showing "(1) that he engaged in statutorily protected expression; (2) that he suffered an adverse employment action; and (3) that there is some causal relationship between the two events." Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997). He is not required to prove the underlying claim of discrimination that led to his protected activity, but he "must have had a reasonable good faith belief that the discrimination existed." Id. See also Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (assuming without deciding that Title VII's opposition clause protects opposition to actions that complainant has good faith reasonable belief are unlawful even if those actions were not actually unlawful).
If the plaintiff establishes this prima facie case, an inference of discrimination is raised, and a burden of production then shifts to the defendant to rebut the inference of discrimination by articulating a legitimate, non-discriminatory reason for its action. This burden is "exceedingly light." Holifield at 1564. If the defendant meets this light burden, then the inference of discrimination is erased, and the burden then shifts back again to the plaintiff "to demonstrate that the defendant's articulated reason for the adverse employment action is a mere pretext for discrimination." Id. at 1565. Despite this burden-shifting framework, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253.
Workplace harassment based on a prohibited factor, such as an employee's gender, also violates Title VII. See Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (discussing Title VII's prohibition on severe or pervasive harassment based on prohibited factors, including sex, race, and national origin). A plaintiff asserting a sexual harassment claim would be required to show that (1) she is a member of a protected class; (2) she has been subject to unwelcome harassment; (3) the harassment was based on her gender; and (4) the harassment was sufficiently severe or pervasive such that it altered the terms and conditions of her employment and created a discriminatorily abusive working environment; and (5) there is a basis for holding her employer liable. Johnson v. Booker T. Washington Broadcasting Svc., Inc., 234 F.3d 501, 508 (11th Cir. 2000); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1312 (11th Cir. 2001).
III. Facts of the case
The following facts are undisputed unless otherwise noted. Plaintiff Dwayne Grayer was hired as a security officer by Scottish Rite Children's Medical Center in 1994. (D ¶ 1). Scottish Rite, which later merged with Egleston Children's Hospital to form Defendant Children's Healthcare of Atlanta, had three shifts for security officers. During 1999, the first shift operated from 6:00 a.m. through 2:20 p.m.; the second shift operated from 2:00 p.m. through 10:30 p.m.; and the third shift operated from 10:00 p.m. though 6:30 a.m. (D ¶ 2). Several security officers worked on each shift, and a charge officer for each shift was responsible for supervising the security officers. (D ¶ 3). In addition to supervising the security officers, it was the responsibility of a charge officer, inter alia, to ensure consistent patrols of the facilities and that security officers were posted in their designated areas. (D ¶ 4). Plaintiff was promoted from his security officer position to a charge officer position on the third shift in December 1998. (D ¶ 5).
Paragraph numbers preceded by a "D" refer to paragraphs in Defendant's statement of material facts as to which there is no genuine issue to be tried and Plaintiff's response thereto. Paragraph numbers preceded by a "P" refer to paragraphs in Plaintiff's own statement of material facts.
Beginning in 1998, Plaintiff began a personal and sometimes sexual relationship with a security officer named Lillie Kirkland. (D ¶ 6). During his employment with Defendant, Plaintiff would allow Ms. Kirkland to take him to work in his car and then use his car to get to work as well as use his car while he was at work. (D ¶ 7).
As a charge officer, Plaintiff reported to both Barry Slay, the security coordinator, and to Stan Davis, the manager of safety and security services. (D ¶ 8). From the time Slay arrived at Scottish Rite, Plaintiff believed that Slay was jealous of him because of Plaintiff's sexual relationship with Kirkland. (D ¶ 9). Plaintiff also believed that his friend William Valree, another security officer, was given a hard time by Slay as a result of Valree's relationship with Kirkland. (D ¶ 10).
Plaintiff alleges that, in April 1999, Kirkland reported to him that she was being sexually harassed by Slay, who was also her supervisor, and asked Plaintiff for advice. (P ¶ 2). He further alleges that he told Kirkland that she should obtain proof of the harassment and then report it to Davis, who was Slay's supervisor; that Kirkland followed this advice and obtained a tape recording; that immediately after he so advised Kirkland, Slay began to scrutinize his activities, resulting in his termination; and that he had never received any disciplinary action from his superiors before. (P ¶¶ 5-6).
Defendant contends that throughout Plaintiff's service as the third shift charge officer, Slay observed problems with Plaintiff's job performance, including problems with follow-up, leadership, and complying with orders. Plaintiff denies this, asserting that he "did not have any problems with Slay until after he assisted Lily Kirkland in April 1999." (D ¶ 11). Defendant also alleges and Plaintiff denies that he failed to review a security report; that he was found sleeping while on duty; and that Davis received numerous complaints from hospital staff that doors in the Radiology Department remained unsecured during Plaintiff's shift and exposed employees to unnecessary danger. (D ¶¶ 14, 15, 17).
It is undisputed, however, that Plaintiff failed to fulfill his charge officer responsibilities by refusing to regularly fuel and service company vehicles. (D ¶ 12). Plaintiff also failed to complete a performance evaluation for a security officer named Mike Mitchell and that he allowed security officers on his shift to clock-out early. (D ¶¶ 13, 16).
On July 13, 1999, Slay counseled Plaintiff on issues of absenteeism and tardiness, neglect of his responsibilities, and communications issues and recommended that Plaintiff be demoted back to a security officer position. (D ¶ 18). At a previously scheduled meeting to address a numbers of concerns regarding supervisory issues on July 14, 1999, Davis made the decision to put Plaintiff, Slay, Investigator Greg Robinson, and second shift Charge Officer Ben Jones on probation for thirty days. (D ¶¶ 19, 20).
Defendant asserts and Plaintiff denies that Slay performed a "spot check" of the third shift while Plaintiff was still on probation and found none of the security officers at their posts, with one watching television, one sleeping, and another simply standing around and found Plaintiff in the office with a newspaper in his hand. (D ¶ 21). Although it is undisputed that Davis demoted him to a security officer position on August 26, 1999, Plaintiff denies Defendant's assertion that this decision was based on first-hand observations of Plaintiff's performance as a charge officer, reports Davis received from Slay, conversations with other employees that revealed additional performance problems, and Davis's continuing concerns about Plaintiff's job performance. (D ¶ 22). It is undisputed that Davis also demoted Robinson to a security officer position on the same day. (D ¶ 23). Plaintiff complained of his demotion and claimed that he could not work on either the first or second shifts. (D ¶ 24). In response to his complaint, Davis, Slay, and the manager of human resources Tina Bendock scheduled a meeting with Plaintiff for September 3, 1999. (D ¶ 25).
Just hours before the scheduled meeting, Ms. Kirkland delivered a written complaint to Davis alleging that she had been sexually harassed by Slay. (D ¶ 26). Plaintiff's sole alleged involvement in Ms. Kirkland's complaints of sexual harassment consisted of advising her on one occasion that such claims were serious and that she should gather evidence of her allegations and take the matter to Davis. (D ¶ 27). Prior to his demotion on August 26, 1999, Plaintiff had never told Davis or Slay about his assistance to Ms. Kirkland. (D ¶¶ 28-29). Ms. Kirkland also never told Davis or Slay that Plaintiff assisted her with her complaints of sexual harassment. (D ¶ 30). For the first time, at the September 3 meeting, Plaintiff alleged that he had been retaliated against and that he was being harassed by Slay because he had offered advice to Kirkland when she first complained to him about allegations of sexual harassment. (D ¶¶ 31-32).
Citing schedule conflicts, Plaintiff refused to work on the first or second shifts, and he sent e-mails to Slay, Davis, and Bendock complaining about being moved from the third shift. (D ¶¶ 33-34). The parties dispute whether Plaintiff was able to work another shift and dispute in particular whether the first and second shifts interfered with his school schedule and his ability to pick up his daughter from school and whether those shifts therefore would have prevented Plaintiff's daughter from getting home from school. (D ¶¶ 36-42). Plaintiff has stated that the fact that the first and second shifts would interfere with his ability to pick his daughter up from school is "probably" the reason why he refused to work the second shift. (D ¶ 37).
On October 11, 1999, Davis and Bendock again met with Plaintiff to discuss his demotion and complaints. (D ¶ 43). At that meeting, Plaintiff was told that although some reports of tardiness would be removed from his file (not because they were not legitimate but because of a lack of consistent discipline for tardiness in the department), numerous grounds for his final warning and demotion remained and that the decision would stand. (D ¶ 44). At different times, Plaintiff was offered security officer positions on the first and second shifts, but he refused them and resigned his employment. (D ¶ 45).
IV. Plaintiff's Title VII claim
As explained above, in order to establish a prima facie case of retaliation under Title VII, Plaintiff must show that "(1) that he engaged in statutorily protected expression; (2) that he suffered an adverse employment action; and (3) that there is some causal relationship between the two events." Holifield, 115 F.3d at 1566; Pipkins v. City of Temple Terrace, Fla., ___ F.3d ___, 2001 WL 1149057 (11th Cir. Sept. 28, 2001), at *3 Because Plaintiff cannot, as a matter of law, establish any causal connection between his alleged statutorily protected expression and adverse employment actions, the undersigned Magistrate Judge RECOMMENDS that Defendant's motion for summary judgment be GRANTED. A. Although the parties dispute whether Plaintiff even engaged in statutorily protected expression under Title VII, the undersigned Magistrate Judge will assume for these purposes only that Plaintiff's actions in advising Ms. Kirkland to gather proof of Slay's alleged sexual harassment and then present it to Davis, constituted opposition on his part to an unlawful employment practice. The undersigned will also assume for these purposes that Plaintiff suffered adverse employment actions when he was put on probation and demoted and when he then resigned, an action that he characterizes as a constructive discharge.
Plaintiff contends that he opposed an unlawful employment practice in April 1999 when he advised his co-worker Lily Kirkland, that she should gather proof that she was being sexually harassed by her supervisor Barry Slay and then take it to Slay's supervisor, Stan Davis. Defendant argues that this activity does not qualify for protection for two independent reasons: (1) Plaintiff did not actually oppose any employment practice but merely answered a question from his co-worker; and (2) even so, he could not have had a good faith reasonable belief that Kirkland was being subjected to actionable sexual harassment.
It does not appear to be established within this Circuit whether an employee's advising a co-worker regarding how she should go about responding to alleged sexual harassment, constitutes opposition to sexual harassment by the advising employee, who is not being harassed and who never otherwise voices opposition to anyone else. Opposition to an unlawful employment practice usually involves an employee's complaining to a supervisor about alleged harassment or discrimination. See, e.g., Clark County Sch. Dist., supra (analyzing Title VII retaliation claim where plaintiff was allegedly harassed employee who complained to her alleged harasser, to her supervisor, and to another administrator). See also Pipkins, supra ("Statutory protected expression includes internal complaints of sexual harassment to superiors as well as complaints lodged with the EEOC . . . .") It is not unreasonable for Plaintiff to argue, however, that his actions in supporting and advising Ms. Kirkland while she outwardly opposed alleged sexual harassment, constitue opposition to an unlawful employment practice. See, e.g., Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980) (holding that plaintiff who advised another employee that employer's policies regarding medical benefits were illegal, had opposed an unlawful employment practice even though employer's policies were later held to be legal).
It also is not clear whether Plaintiff would ultimately prevail on his assertion that he had a good faith, reasonable belief that the employment practice he opposed was in fact unlawful. Plaintiff testified in his deposition that he never witnessed Slay's harassing of Kirkland; that Kirkland told Plaintiff that Slay was saying "little things" and making gestures but that Plaintiff could not remember any specifics; and that Plaintiff heard a tape recording of a conversation in which Slay told Kirkland that he would like to get to know her better. (Grayer depo. p. 71-91). It is not likely that this scant information could support a good faith, reasonable belief that Kirkland was being harassed, a determination that requires that the conduct in question be so severe and pervasive that it alters the terms and conditions of the alleged victim's employment. See, e.g., Gupta v. Florida Bd. of Regents, 212 F.3d 571 (11th Cir. 2000) (affirming summary judgment for employer because conduct was not sufficiently severe and pervasive where supervisor, inter alia, invited employee to lunch at Hooters restaurant; told her she was beautiful; called her at home and asked whether she was in bed; stared at her; repeatedly asked her to lunch; touched jewelry she was wearing; unzipped his pants and tucked in his shirt in her presence; touched the hem of her dress; and touched her on the knee).
It is, however, unlikely that Plaintiff would ultimately be able to establish that his "constructive discharge" was an adverse employment action for purposes of Title VII. He essentially contends that he was constructively discharged because of the unacceptable shift assignments he was offered when he was demoted. Federal courts are reluctant to review employers' business decisions regarding their employees' work assignments, because "work assignment claims strike at the very heart of an employer's business judgment and expertise . . . ." Davis v. Town of Lake Park, 245 F.3d 1232, 1244 (11th Cir. 2001).
In order to establish the necessary causal connection between the alleged statutorily protected expression and adverse actions, Plaintiff "need only show `that the protected activity and the adverse action were not wholly unrelated.'" Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999)). In order to accomplish this:
the plaintiff must generally show that the decision maker was aware of the protected conduct at the time of the adverse employment action. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993); Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th' Cir. 1997) ("[I]n a case involving a corporate defendant the plaintiff must show that the corporate agent who took the adverse action was aware of the plaintiff's protected expression . . . .") That requirement rests upon common sense. A decision maker cannot have been motivated to retaliate by something unknown to him. As with most facts, the defendant's awareness can be established by circumstantial evidence. See Goldsmith, 966 F.2d at 1163.Brungart, 231 F.3d at 799. Although temporal proximity will generally be sufficient circumstantial evidence to suggest a causal connection, "temporal proximity alone is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct." Id. (citing Clover, 176 F.3d at 1355-56).
That is exactly the situation in the instant case. There is unrebutted evidence that the decision makers did not have knowledge that Plaintiff allegedly engaged in protected conduct at the time the relevant decisions were made. It is undisputed that Davis decided to put Plaintiff on probation on July 14, 1999, and that Davis decided to demote Plaintiff on August 26, 1999. Although asserts that Plaintiff had assisted Kirkland in April of that year and Kirkland filed her written complaint with Davis on August 26, it is also undisputed that Plaintiff did not tell Davis or Slay that he had assisted Kirkland until a meeting on September 3; and that Kirkland never told Davis or Slay that Plaintiff had assisted her. Furthermore, Slay and Davis have both provided affidavits in which they state the they were not aware that Plaintiff assisted Kirkland until after he had been demoted. Plaintiff has presented no evidence that the decision maker Davis (or anyone other than Kirkland, for that matter) knew of his allegedly protected conduct prior to making these decisions.
Ms. Kirkland actually states in her affidavit that she did not make any written complaints about Mr. Slay until September 1999.
Pipkins v. City of Temple Terrace, Fla., supra, is thus illustrative of the requirement that the employer have knowledge of the protected behavior before it makes an adverse employment decision in order for that decision to be actionable. There, the plaintiff complained that her adverse employment evaluations stemmed from her sexual harassment complaints. However, the evaluations began in October 1994, and it was undisputed that she did not complain within the city's organization until November or December 1994. The court affirmed the grant of summary judgment to the city, holding that "[e]ven assuming, however, that [plaintiff] suffered an adverse employment action, any protected expression on her part occurred only after the commencement of the adverse employment actions of which she complains." Id.
The most that Plaintiff has offered is purported circumstantial evidence that "[i]mmediately after the Plaintiff gave his advice to Kirkland, Slay began to scrutinize his activities which culminated in Plaintiff's termination." (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, p. 5). This assertion does not create a genuine issue to be tried. As the Eleventh Circuit Court of Appeals held in Brungart. temporal proximity does not create a genuine issue of fact if there is unrebutted evidence that the decision makers did not know of the protected activity when the decisions were made.
B. In his brief in opposition to Defendant's summary judgment motion, Plaintiff does very little to develop his theory of constructive discharge. It appears from the record, however, that Plaintiff essentially contends that he was constructively discharged by the fact of his August 26, 1999, demotion from his position as third shift charge officer, which resulted in his being offered security officer positions on the first or second shifts, which he refused and then resigned. Plaintiff complained about his demotion and raised his allegation of retaliation at the September 3 meeting. Defendant, via Ms. Bendock, then investigated his allegations, but notified him on October 11, 1999, that it would not rescind the earlier decision.
Therefore, the decision that prompted what Plaintiff calls a constructive discharge was made in August 1999 when Davis decided to demote him. The decision in October 1999 merely ratified the decision that had already been made. An employer's refusal to rescind an allegedly discriminatory act is not a fresh act of discrimination. Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1410 (11th Cir. 1998) (quoting Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992)). Since the Defendant took the adverse employment action against Plaintiff prior to the decision-makers being made aware of his alleged protected expression, Plaintiff has failed to establish his prima facie case.
For the reasons explained above, the undersigned Magistrate Judge finds that there is no genuine issue of material fact to be tried in this Title VII retaliation action as the undisputed evidence in the record indicates that a jury could not find a causal relationship between Plaintiff's alleged statutorily protected conduct and adverse employment actions. It is, therefore, RECOMMENDED that Defendant's motion for summary judgment be GRANTED.
It is so RECOMMENDED, this the 9th day of October, 2001.