Opinion
Civil Action File No. 1:05-CV-486-WSD-ECS.
May 26, 2006
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff, Gary King, ("Plaintiff"), proceeding pro se, filed the instant action on February 22, 2005. [Doc. 1]. In his complaint, Plaintiff charges Defendant with race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Id. On September 6, 2005, Defendant Publix Supermarkets, Inc. ("Defendant" or "Publix") filed a motion for summary judgment. [Doc. 25]. Plaintiff did not respond. On December 28, 2005, Plaintiff filed a motion for extension of time to respond to Defendant's motion for summary judgment. [Doc. 29]. These motions are presently ripe for review.
Plaintiff also asserts in his complaint that Defendant failed to meet its affirmative action goals. [Doc. 1]. Plaintiff, however, testified that he is unaware of what the affirmative action goals were or whether or not they had been met. (Plaintiff's Deposition ("Pl. Dep.") at 40-41).
II. Preliminary Matters
As stated above, Plaintiff failed to respond to Defendant's motion for summary judgment, filed on September 6, 2005 [Doc. 25]. Instead, on December 28, 2006 — over three months after Defendant filed its motion for summary judgment — Plaintiff filed a motion seeking leave to file a late response. [Doc. 29]. In his motion, Plaintiff acknowledged that his response was due in September of 2005, but, nevertheless, asks the Court to grant him through January 30, 2005 [sic] to file his response brief, stating that he needs an extension of time to "gather additional legal data for Pro Se representation." [Id.]. On January 9, 2006, Defendant filed a brief in opposition to Plaintiff's request for an extension of time to respond. [Doc. 30]. Defendant argued, inter alia, that Plaintiff's motion should be denied because he has not demonstrated excusable neglect for his untimely attempt to seek an extension to respond. [Doc. 30 at 8]. This Court agrees.Rule 6(b) of the Federal Rules of Civil Procedure governs enlargement of time. "After the time has run for making response, a court may permit response 'where the failure to act was the result of excusable neglect.'" McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981) (quoting Fed.R.Civ.P. 6(b)(2)). While courts show leniency to pro se litigants not enjoyed by counseled litigants, this leniency does not permit a court to serve as de facto counsel for a party or to overlook deficiencies in their filings. GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). Although the Court will liberally construe pro se pleadings, pro se litigants are still required to conform to the procedural rules. Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th Cir. 1999); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) ("Once a pro se . . . litigant is in court, he is subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.").
In his motion, Plaintiff fails to offer any justification for not filing a timely response brief. [Doc. 29]. Rather, Plaintiff claims that he seeks an enlargement of time to respond so that he may "gather additional legal data". [Id.]. Plaintiff has, therefore, not presented the Court with sufficient justification to warrant the grant of his request, especially in light of the fact that discovery in this case closed in August 2005. Accordingly, Plaintiff's motion for extension of time to respond [Doc. 29] is DENIED and, as is discussed below, Defendant's motion shall be deemed unopposed, pursuant to Local Rule 7.1.
Furthermore, Plaintiff never filed any response to the motion, even as of the date of this report.
III. Plaintiff's Failure to File a Response to Defendant's Motion for Summary Judgment
Pursuant to Local Rule 7.1B, once a movant files a motion the non-moving party is required to file a response. "Failure to file a response shall indicate that there is no opposition to the motion." LR 7.1B; See also Welch v. Delta Airlines, Inc., 978 F. Supp. 1133, 1148 (N.D. Ga. 1997) ("Under Local Court Rule 7.1 of the United States District Court for the Northern District of Georgia, factual and legal claims to which there is no response should be treated as unopposed."). In addition, it is well-accepted in this district that the failure to respond to arguments relating to a claim constitute abandonment of the claim. Burnett v. Northside Hosp., 342 F.Supp.2d 1128, 1140 (N.D. Ga. 2004) (Non-movant's failure to address a challenged claim on summary judgment warranted dismissal of that claim);Bute v. Schuller Int'l, Inc., 998 F.Supp. 1473, 1477 (N.D. Ga. 1998) ("Because plaintiff has failed to respond to this argument or otherwise address this claim, the Court deems it abandoned.");Welch v. Delta Air Lines, 978 F.Supp. 1133, 1137 (N.D. Ga. 1997) ("Plaintiff's failure to respond to Defendant's argument alone entitles Defendant to summary judgment on these claims.").
Despite Plaintiff's default on his obligation to file a response to Defendant's motion for summary judgment, the Court cannot simply recommend entry of summary judgment. Instead, the merits of the motion must be considered. United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, 363 F.3d 1099, 1101 (11th Cir. 2004) ("[T]he district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion."). The Court must, at the least, review all of the evidentiary materials submitted in support of the motion for summary judgment before concluding that there is no genuine issue of material fact and that summary judgment is appropriate. Id. at 1101-02 (citations omitted); see also Trs. of Cent. Pension Fund of Int'l Union of Operating Eng'rs Participating Employers v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039 (11th Cir. 2004).
Summary judgment is appropriate 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(c)).
In addition, in this district, the process for separating disputed from undisputed material facts is governed by Local Rule 56.1(B). Local Rule 56.1(B)(2)(a) requires the opposing party to submit a response to a movant's statement of undisputed material facts, otherwise the Court will deem each of movant's facts as admitted. Local Rule 56(B)(2)(a)(2). Plaintiff, however, did not respond to Defendant's Statement of Undisputed Material Facts ("Defendant's SUMF")[Doc. 25]. Therefore, the Court must deem each of movant's statements of undisputed, material facts to be admitted. Digioia v. H. Koch Sons, Div. of Wickes Mfg. Co., 944 F.2d 809, 811 n. 6 (11th Cir. 1991) (stating that "the facts as set out in [defendant's] concise statement of facts not at issue are deemed admitted" by operation of the Local Rules because they were not controverted); Jones v. Gerwens, 874 F.2d 1534, 1537 n. 3 (11th Cir. 1989) (stating that "[f]acts set forth in the Defendants' Statement of Undisputed Facts which are not controverted, are deemed admitted" pursuant to the Local Rules);Barnett v. Leiserv, Inc., 968 F.Supp. 690, 692 n. 1 (N.D. Ga. 1997) (stating that "[t]he court . . . deemed as admitted all of the material facts that were contained in Defendant's Statement [of Undisputed, Material Facts] that Plaintiff has failed to address or traverse."); but see One Piece of Real Property, 363 F.3d at 1103 n6 ("to the extent that [the local rules] permit the district court to grant summary judgment without a review of the record, that rule is inconsistent with Federal Rule of Civil Procedure 56, and, therefore, void"). Accordingly, Defendant's SUMF are deemed admitted and the Court will consider the undisputed material facts in conjunction with the pertinent parts of the record to determine whether the entry of summary judgment is appropriate in this case.
Local Rule 56(B)(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); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1B.(1)."
IV. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998). A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The substantive law applicable to the case determines which facts are material. Anderson, 477 U.S. at 248.
The moving party bears the initial burden of showing the court "the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact."Four Parcels, 941 F.2d at 1437 (quoting Celotex Corp. v. Catrett, 477 U.S. at 323). If the moving party fails to discharge this initial burden, then the motion must be denied.Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (citing Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)). Once this burden is met, however, the non-moving party must then "go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (citing Fed.R.Civ.P. 56(e)).
V. Burdens of Proof and Persuasion for Title VII Claims
Title VII prohibits employers from discriminating "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). Where direct evidence of discrimination is unavailable-as was the case here-a plaintiff, nevertheless, may present circumstantial evidence of discrimination sufficient to create a jury question. Silvera v. Orange County School Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). For claims based on circumstantial evidence, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. If the plaintiff is successful, the defendant must "articulate some legitimate, nondiscriminatory reason for the [adverse employment action]." Id. The plaintiff then may attempt to demonstrate that the proffered reason was, in fact, merely pretext for the defendant's acts. Id.; see also Combs v. Plantation Patterns, Inc. 106 F.3d 1519, 1538 (11th Cir. 1997) (Plaintiff demonstrates pretext by presenting evidence of "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence."). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id.
VI. Discussion
A. Background and the Parties Contentions.Plaintiff, a black male, commenced employment with Defendant in October of 2003, when Plaintiff has hired as a part-time grocery clerk. (Def.'s SUMF ¶ 2; Pl. Dep. at 54). Beginning the following month, Plaintiff began applying for various posted positions within the company. (Pl. Dep., Ex. 9). Specifically, Plaintiff applied-for the following positions: Desktop Application Developer, Maintenance Assistant Department Manager, Electrical Engineer, ISP Support Analyst, Retail Implementation Technician, MS Web Development Systems Analyst/Programmer, and SQA Analyst (Pl. Dep. at 46; Ex. 8). Plaintiff asserts that Publix denied him certain promotions because of his race. [Doc 1.]; (see also Pl. Dep. at 40). Defendant contends that Plaintiff was not chosen for any of the applied-for positions because Plaintiff lacked the requisite qualifications, and/or he was not the most qualified candidate for the position, and, in the case of the Desktop Application Developer position, also because the posted position was withdrawn. [Doc. 25]. Defendant also asserts that Plaintiff was not discriminated against on the basis of race because the employees responsible for selecting candidates for the positions at issue in this lawsuit were unaware of Plaintiff's race because he submitted his application and/or resume by email. [Doc. 25]. As is discussed below, a review of the record indicates that Plaintiff's claims are without merit and there are no genuine issues of material fact remaining for trial.
B. Analysis.
To establish a prima facie case of race discrimination in a promotional decision, a plaintiff must prove: (1) that he was a member of a protected class; (2) that he was qualified and applied for the promotion; (3) that he was rejected despite those qualifications; and (4) other equally or less qualified employees who are not members of the protected minority were promoted. Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000); see also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005). If Plaintiff establishes a prima facie case of discrimination, the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for rejecting him. Id. If Defendant satisfies this burden of production, Plaintiff must then establish that Defendant's proffered reasons for rejecting him were pretextual. Id.
In the instant case, Plaintiff has not established a prima facie case of race discrimination, as to any of the positions Plaintiff applied for. As an initial matter, the record shows that the decision-makers in this case were unaware of Plaintiff's race during the selection process because Plaintiff submitted his application and other documents by email. (Def.'s SUMF ¶¶ 5, 7, 9, 10, 11, 13, 14). Thus, Plaintiff has not established the first prong of his prima facie case. Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th Cir. 2002) (citations omitted) ("a prima facie case is established if the plaintiff demonstrates the challenged employment decision was made by someone who was aware of the plaintiff's [protected characteristic]").
In addition, Plaintiff cannot establish the second prong of his prima facie case because he has not presented evidence that he possessed the objective basic qualifications for many of the positions at issue in the instant law suit. (Def.'s SUMF ¶¶ 2, 6, 7, 9, 10, 11); See Roper v. Foley, No. 05-15149, 2006 WL 1004377, slip op. at * 5 (11th Cir. April 18, 2006) (citingVessels, 408 F.3d at 769). Plaintiff's claim also cannot stand because the record reflects that the decision-makers responsible for filling the positions in question believed that the candidates awarded the jobs were more qualified than Plaintiff.Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268-69 (11th Cir. 2001) (affirming summary judgment in favor or employer who promoted candidate it believed was more qualified). For instance, with respect to the Desktop Application Developer position Plaintiff admitted that he lacked a requirement of a bachelor's degree in a business-related field, one of the requirements for the position. (Def.'s SUMF ¶ 4; Pl. Dep. at 48-49). Vice President and Controller Gino DiGrazia, the Publix employee responsible for posting the Desktop Application Developer position, decided not to fill the position and withdrew the posting. (Deft SUMF ¶ 5; Def. Br., Ex. R — Declaration of Gino DiGrazia ("DiGrazia Dec.") at ¶ 3). Plaintiff admits that he has no evidence that Defendant hired anyone else for this position. (Deft SUMF ¶ 5; Pl. Dep. at 53).
Similarly, the Electrical Engineering position required a Bachelor of Science in Electrical Engineering. (Deft SUMF ¶ 9; Pl. Dep., Ex. 14). Plaintiff, however, admitted that he does not have a Bachelor of Science in Engineering and, instead, has a Bachelor of Science in Electrical Engineering Technology, which is not comparable to the required degree in electrical engineering. (Deft SUMF ¶ 9; Pl. Dep. at 64; Declaration of Ray Sirianni ("Sirianni Dec.") ¶ 2). The individual who was hired for the position — a black male named Malcolm Watkins — did posses the requisite degree and other pertinent experience and, was thus, believed to be the best qualified applicant. (Deft SUMF ¶ 9; Sirianni Dec. ¶ 3).
In addition, Plaintiff cannot establish the fourth prong of his prima facie case of discrimination with respect to this position because the position was filled with a member of the same protected class as Plaintiff. Lee, 226 F.3d at 1253 (11th Cir. 2000).
Likewise, Plaintiff admitted that he did not have experience with several of the computer applications required for the ISP Support Analyst position. (Deft SUMF ¶ 10; Pl. Dep. at 72-74). The two applicants who were selected for the position, however, had the required experience and were considered the best candidates for the position. (Deft SUMF ¶ 10; Declaration of Jim Davie ("Davie Dec.") ¶ 3).
A review of the record, likewise, shows that Plaintiff cannot make out a prima facie case with regard to the remaining positions Plaintiff applied for: (1) Maintenance Assistant Department Manager — Plaintiff did not possess the requisite qualifications and the individual hired for the position had more experience than Plaintiff (Deft SUMF ¶ 6-7; Pl. Dep. at 55; Declaration of Ken Harrison ("Harrison Dec.") ¶¶ 2-3); (2) Retail Implementation Technician — Plaintiff admitted that he lacked certain qualifications for the position and admitted that he did not timely apply for the position and, thus, was not considered (Deft SUMF ¶ 11; Pl. Dep. at 85-86, 89; Declaration of Bob Parry ("Parry Dec.") ¶¶ 2-3); (3) MS Web Development Systems Analyst/Programmer — Plaintiff's resume failed to reflect requisite qualifications so Plaintiff was not considered for the position (Deft SUMF ¶ 13; Pl. Dep. at 92-93; Declaration of Steve Wellslager ("Wellslager Dec.") ¶¶ 3-5); and (4) SQA Analyst — Plaintiff did not complete the aptitude test required for this position and was, thus, not considered (Deft SUMF ¶ 14; Pl. Dep. at 131-33; Wellslager Dec. ¶ 4). Therefore, the Court RECOMMENDS that Defendant's motion for summary judgment be GRANTED.
VI. Conclusion
Accordingly, for the reasons expressed herein, Plaintiff's motion for an extension of time to file a response [Doc. 29] is DENIED. Further, the Court RECOMMENDS that Defendant's motion for summary judgment [Doc. 25] be GRANTED. The Clerk is DIRECTED to terminate the referral of this case to the undersigned magistrate judge.It is SO REPORTED, AND RECOMMENDED.