Opinion
5:10-cv-00445-HGD
04-24-2012
SHELIA RANEY, Plaintiff v. PAPER & CHEMICAL SUPPLY COMPANY, Defendant
REPORT AND RECOMMENDATION
HARWELL G. DAVIS, III UNITED STATES MAGISTRATE JUDGE
The above-entitled civil action is before the court on the Motion for Summary Judgment filed by defendant. (Doc. 13). Plaintiff, Shelia Raney, filed a complaint against defendant, Paper & Chemical Supply Company (P&C), alleging that she was (1) discriminated against on the basis of her age; (2) unlawfully retaliated against for complaining that other employees were being harassed and/or discriminated against because of their age; and (3) unlawfully retaliated against for complaining that an employee and an applicant for a position with P&C were discriminated against because of their race. (Doc. 1, Complaint).
A motion for summary judgment was filed by defendant on January 31, 2011, along with a brief and supporting evidentiary submissions. (Docs. 13, 14 & 15, respectively). No response has been received from plaintiff. The matter is now ready for disposition.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The recently amended Rule 56(c) provides:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.Fed.R.Civ.P. 56(c) (Dec. 2010). Defendant, as the party seeking summary judgment, bears the initial responsibility of informing the district court of 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. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). A genuine issue of material fact is shown when the nonmoving party produces evidence so that a reasonable factfinder could return a verdict in her favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). 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. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. 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. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). A “mere scintilla of evidence” in support of the nonmoving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).
FACTUAL BACKGROUND
Plaintiff began working for P&C in or about January 2007 as Human Resources Director. (Doc. 1, Complaint, at ¶ 10). She had worked in this field for approximately 12 years. (Doc. 15, Ex. A, Raney Depo., at 15). Her job as Human Resources Director involved representing and supporting the employer and investigating complaints and taking action to prevent discrimination and harassment. (Id. at 18-19). She testified that she was aware that when a human resources employee is investigating a claim of unlawful harassment or discrimination in the workplace, it should be documented. (Id. at 30).
David Muhlendorf is the President and CEO of P&C and was plaintiff's immediate supervisor as well. Brenda Weems is the Controller of P&C. According to Muhlendorf, plaintiff complained to him on numerous occasions about Weems. He believes they had a personality conflict, not related to age. (Doc. 15, Ex. B, Muhlendorf Aff., at ¶ 14). Muhlendorf hired Weems to tighten financial controls at P&C and states that she has a “strong” personality. (Id. at ¶ 7). He has never known her to mistreat an employee based on age or race. (Id. at ¶¶ 5, 6). Likewise, he has never ignored a complaint of unlawful harassment or discrimination. (Id. at ¶ 10).
Muhlendorf states that Raney was friendly with the accounting staff that worked under Weems. According to him, Raney would take their side in complaints about Weems without discussing it with Weems, undermining her authority. Raney never informed him that Weems had mistreated anyone based on their race or age. (Id. at ¶ 15).
In a meeting that occurred on or about January 28, 2008, Muhlendorf told Raney that he believed she was acting in a manner that was disloyal to the company. He gave her several examples of what he meant. (Id. at ¶ 17). On February 4, 2008, plaintiff gave Muhlendorf a thick file to show that she was loyal to the company. According to Muhlendorf, she never told him that she was reporting unlawful harassment or discrimination by giving him this file. (Id. at ¶ 19).
A review of the documents contained in the file reflects on the first page a statement that alleges that Weems told a black employee, Natasha Baldwin, that she reminded her of “a little black man” she used to work for at Comcast and that if she used any “racial statements,” she was sorry. (Doc. 15, Ex. A(2), at Bates No. 900001). However, this document does not allege that this statement was harassment by Weems. In addition, Muhlendorf states that Baldwin never reported any kind of discrimination, harassment or mistreatment by Weems or anyone else at P&C. (Muhlendorf Aff. at ¶ 11). A complete review of the file reflects that nowhere in the file does plaintiff directly contend that anyone at P&C was harassed because of their age or race. (See Doc. 15, Ex. A(2)). Plaintiff acknowledges this, stating, “There may not be any specific notes regarding someone's age [in the file], but, again, this was a kind of synopsis of some of the things that were going on.” (Raney Depo. at 153). Furthermore, she acknowledged that it is not possible for someone reading the file to know that she was communicating that Weems discriminated or harassed people based on their age. (Id. at 154-55). She also testified that she was not aware of any P&C employee over the age of 40 that was fired and replaced by a younger, less-qualified employee. (Id. at 96, 98-99, 157).
Plaintiff stated during her deposition that there were only two comments made by Weems that related to someone's age. According to Raney, Weems said that she and Muhlendorf “had a plan to get rid of all the old employees and bring in people that knew what they were doing.” (Id. at 88-89). Plaintiff alleges that Weems made this comment around March 1, 2007, over a year before she was terminated and about 11 months before she gave the file to Muhlendorf. (Id. at 88). However, she admits that she never understood what Weems meant by this statement (id. at 88-89), and she cannot name any employee that was terminated because of their age after Weems made this statement. (Id. at 96).
Plaintiff also alleges that Weems was talking about an employee that had plans to retire who had inquired about putting off her retirement date. According to Raney, Weems stated around June of 2007 that the employee “needed to go ahead and retire and go on,” and that she “was too old” and the company needed to let the process go on with new people. (Id. at 112-13, 114). Plaintiff also acknowledged that this employee was the only employee that she ever heard Weems describe as “old” and that she never heard Weems say anything derogatory about anyone's age to anyone other than her. (Id. at 175). She also testified that this employee was allowed to put off her retirement. (Id. at 167).
Plaintiff also alleges that Weems told her that, during an interview with a job applicant, she “made it very clear to her that if we hired her, the fact that she was black would have nothing to do with the way she would be treated. And if we didn't hire her, it would have nothing to do with the fact that she was black.” The applicant did not complaint to her, and Raney testified that she did not know whether this incident is actually racial harassment (id. at 68), although she considered it offensive. (Id. at 73). There is nothing in the February 4, 2008, file about this incident. (Id. at 73; Doc. 15, Ex. A(2)).
Muhlendorf made the decision to fire Raney on April 1, 2008, for several reasons. (Muhlendorf Aff. at ¶ 24). One reason was that her job responsibilities were not needed on a full-time basis because P&C was reducing in size at the time. (Id.). Thus, she was subjected to a reduction in force. However, she also had performance problems. (Id.).
One performance issue involved a former employee of P&C, Timothy Bassie. Bassie was a truck driver for P&C. In March 2008, Muhlendorf discovered that Bassie was using his company truck for personal business, which is a clear violation of P&C policy. (Id. at ¶ 26). For this reason, Muhlendorf instructed plaintiff to fire Bassie. Plaintiff, however, wrote on Mr. Bassie's termination letter that he was being terminated as part of a reduction in force. (Id.). Soon after his termination, Raney helped Mr. Bassie write a letter to Muhlendorf in an attempt to get his job back. (Id.). Thus, Muhlendorf believed that she had undercut his authority. (Id.).
Muhlendorf also testified that plaintiff made errors as company benefits administrator by failing to add or discontinue insurance for employees on a number of occasions. (Id. at ¶ 27). He also asserts that she often made payroll errors. For example, she routinely rounded up time for employees she liked so they would be paid more, contrary to P&C policy. (Id. at ¶ 28).
According to Muhlendorf, plaintiff's position was eliminated after her employment ended and her responsibilities were assumed by a number of people, including himself. (Id. at ¶ 31; Raney Depo. at 177).
Plaintiff acknowledges that no one told her that she was terminated because of her age and she did not complain to anyone at that time that she felt her termination was because of her age. (Raney Depo. at 158, 194). When asked why she believes that age played a factor in her termination, plaintiff states that she “can't say specifically. It's just how I feel.” (Id. at 194).
DISCUSSION
As noted above, plaintiff contends that she “was terminated from her employment due to her age, 49.” (Doc. 1, Complaint, at ¶ 24). Federal law makes it unlawful to discriminate against a person regarding the terms and conditions of employment based solely on age. See 29 U.S.C. § 623. In proving an age discrimination claim, a plaintiff can establish a prima facie case of discrimination through either direct evidence of discrimination or a variation of the four-part test outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for circumstantial evidence. See Carter v. City of Miami, 870 F.2d 578, 581(11th Cir. 1989). Damon v. Fleming Supermarkets of Florida, 196 F.3d 1354, 1358 (11th Cir. 1999). A review by the court of all the evidence in this case leads it to conclude that there is no direct evidence of discrimination and that, therefore, plaintiff must make out a prima facie case of discrimination based on circumstantial evidence.
This Circuit has adopted a variation of the test set out for Title VII claims in McDonnell Douglas for cases under the Age Discrimination in Employment Act (ADEA), in Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989). Under this variation of the McDonnell Douglas test for establishing a prima facie case of age discrimination, the plaintiff must show that she (1) was a member of the protected group of persons between the ages of 40 and 70, (2) was subject to adverse employment action, (3) was qualified to do the job, and (4) was replaced with a person outside the protected group. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990). See also Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566 (11th Cir. 1992). Alternatively, the fourth element may be proved by demonstrating that the plaintiff's employer treated similarly-situated employees outside the protected class more favorably. Knight v. Baptist Hosp. of Miami, 330 F.3d 1313, 1316 (11th Cir. 2003).
If the plaintiff satisfies this burden, the employer then must offer a legitimate, non-discriminatory reason for the employment action. See Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 851 (11th Cir. 1997). If the employer does so, the plaintiff bears the ultimate burden of demonstrating that the employer's proffered reasons are a pretext for discrimination. See id.; Watkins v. Sverdrup, 153 F.3d 1308, 1314 (11th Cir. 1998); Mitchell v. USBI Co., 186 F.3d 1352, 1354 (11th Cir. 1999).
Plaintiff has established the first three elements of her claim. However, her claim fails because she has not shown that she was replaced by someone younger than her. The evidence submitted reflects that no one was hired to replace plaintiff. Her position was eliminated after she was terminated. Her duties were assumed by other employees, including Muhlendorf, who is actually older than plaintiff.
Likewise, plaintiff has not demonstrated that she was treated less favorably than similarly-situated employees outside her protected class. Because plaintiff cannot demonstrate that she was replaced by someone younger or treated differently than similarly-situated employees outside her protected class, she cannot establish a prima facie case of age discrimination.
Furthermore, plaintiff cannot overcome at least one of defendant's legitimate, non-discriminatory reasons for terminating her employment. Muhlendorf testified that he decided to terminate plaintiff because she took actions which placed the interests of certain employees over those of P&C, which was inconsistent with her position as P&C's Director of Human Resources. For instance, Muhlendorf testified that she was instructed to terminate employee Tim Bassie for misuse of a company truck. Instead, she wrote up his dismissal as a reduction in force. She also helped Bassie write a letter to help him try to get his job back. Muhlendorf testified that he felt this undercut him. Muhlendorf also testified that plaintiff made payroll errors by rounding up the time worked by employees she liked so that they would be paid more.
These reasons are legitimate, non-discriminatory reasons for terminating plaintiff. She has offered nothing to demonstrate that these stated reasons are pretextual. Therefore, her age discrimination claim fails.
Plaintiff has also asserted claims of retaliation under both the ADEA and Title VII. The ADEA forbids age discrimination in the employment of persons at least 40 years of age but less than 70 years of age. 29 U.S.C. § 621, et seq. The Eleventh Circuit has adapted to issues of age discrimination the principles of law applicable to cases arising under the very similar provisions of Title VII. Carter, 870 F.2d at 581. Similar to substantive claims of discrimination, the burden of proof in Title VII retaliation cases is governed by the framework established in McDonnell Douglas, supra. See Carter, 870 F.2d at 581.
The substantive law of this Circuit dictates that a plaintiff alleging retaliation must establish a prima facie case by showing: (1) a statutorily protected expression, (2) an adverse employment action, and (3) a causal link between the protected expression and the adverse action. Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). Once plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by producing legitimate reasons for the adverse employment action. Id.
There is no question that plaintiff suffered an adverse employment action. However, she has not shown that she engaged in protected activity or that there is a causal link between any activity and her termination.
In her complaint, plaintiff alleges that the file she presented to Muhlendorf on February 4, 2008, constituted her “opposition to the discriminatory practices taking place at the Company.” (Doc. 1, Complaint, at ¶¶ 28, 33-34). She further alleges that, after providing the file to Muhlendorf, she “was subjected to different terms and conditions of employment” and terminated on April 1, 2008, “because of her opposition to discrimination in the workplace.” (Id.).
However, a review of the contents of the file that plaintiff provided Muhlendorf does not support her claim. Nothing anywhere in the file reflects information that would put anyone on notice that any employee was being subjected to discrimination or harassment based on age. Plaintiff testified that she was not aware of any employee over the age of 40 who was fired and replaced by a younger employee. (Raney Depo. at 157). Likewise, plaintiff admits that the alleged antagonist behind this discrimination, Brenda Weems, did not say anything derogatory about anyone's age other than two comments outlined above.
In the first comment, plaintiff alleges that she and Muhlendorf “had a plan to get rid of all the old employees and bring in people that knew what they were doing.” However, this comment occurred almost 11 months before plaintiff gave the file to Muhlendorf and a year before she was terminated. Further, she cannot name any employee that was terminated because of their age after this statement was made. (Id. at 96).
The second comment was made about an employee who was planning to retire and about whom plaintiff alleges Weems said, “she needed to go ahead and retire and go on,” and that the employee “was too old” and the company “needed to let the process go on with new people.” (Id. at 112-13, 115). Weems made these alleged statements after the employee indicated that she wanted to stay on a little longer, rather than retire as initially planned. Evidence reflects that, despite these comments, the employee was, in fact, allowed to continue working. This comment is alleged to have been made in June 2007, some eight months before plaintiff gave the file to Muhlendorf.
These two incidents are insufficient to make out any age discrimination by P&C. Even if an employment practice is not as a matter of fact unlawful, a plaintiff can establish a prima facie case of Title VII retaliation “if he shows that he had a good faith, reasonable belief that the employer was engaged in unlawful employment practices .... A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.” Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997).
Even if plaintiff believed that P&C was engaged in the practice of unlawful age discrimination, in light of the evidence presented, this belief was not objectively reasonable. Outside of two isolated comments by Weems, there is absolutely nothing that reflects a discriminatory animus based on age by P&C.
The same conclusion is true with regard to her Title VII claim of retaliation based on her objecting to discrimination based on race. Plaintiff alleges only two incidents which she asserts reflect an intent to discriminate based on race. One concerned an employee of P&C and one concerned an applicant.
The incident involving the employee allegedly occurred on May 14, 2007, when Weems is said to have told employee Natasha Baldwin, who is African-American, that Baldwin reminded her of a little black man she used to work for and that if she used any racial statements in her language, she was sorry. Plaintiff testified that Baldwin believed that this was racial harassment. (Raney Depo. at 63-64).
With regard to the applicant, plaintiff testified that Weems told her “that in her interview of the applicant, she told her and made it very clear that if we hired her, the fact that she was black would have nothing to do with the way she was treated. And if we didn't hire her, it would have nothing to do with the fact that she was black.” (Id.). Plaintiff testified that she believed these statements were “inappropriate.” (Id. at 68, 70-73). However, when asked if she believed it was racial harassment, she responded, “I don't know.” (Id. at 63-64).
Plaintiff has no other evidence of racial harassment or discrimination at P&C outside of these two incidents. Likewise, the file presented to Muhlendorf on February 4, 2008, does not state that she believed any of the incidents outlined therein amounted to racial harassment or discrimination. Likewise, there is no evidence that these two incidents came to the attention of Muhlendorf before February 4, 2008. As Human Resources Director for P&C, it was plaintiff's job to bring incidents of discrimination to the attention of Muhlendorf. She failed to do so until many months after they occurred, and even when she did present the file to Muhlendorf, she was merely performing her job as a human resources director, not an employee lodging a personal complaint about allegedly discriminatory practices of her employer.
In order to be considered an employee lodging a personal complaint about discriminatory practices, she must have stepped outside her role of representing the company. Cyrus v. Hyundai Motor Mfg. Alabama, LLC, 2008 WL 1848796 (M.D.Ala. Apr. 24, 2008) (citing McKenzie v. Renberg's Inc., 94 F.3d 1478, 1486 (10th Cir. 1996)). Activities which would bring the employee outside of her job role would include filing or threatening to file an action adverse to the employer or providing active assistance to other employees in asserting protected statutory rights. McKenzie,, 94 F.3d at 1486; see also EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (an employee steps out of his or her normal job role where he or she takes “some action against a discriminatory policy . . . and that the action was based on a reasonable belief that the employer engaged in discriminatory conduct.”). Accord, Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010); Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 627-28 (5th Cir. 2008); Brush v. Sears Holdings Corp., 2012 WL 987543 (11th Cir. Mar. 26, 2012) (unpublished opinion).
Based on this, the court concludes that plaintiff did not engage in protected activity under Title VII sufficient to sustain a claim of retaliation. In addition, as noted above, defendant has provided a legitimate, non-discriminatory reason for terminating plaintiff. Plaintiff has failed to rebut these stated reasons with any evidence that they are pretextual.
CONCLUSION
Based on the foregoing, it is RECOMMENDED that defendant's motion for summary judgment be GRANTED with respect to all claims asserted by plaintiff and this action DISMISSED WITH PREJUDICE.
NOTICE OF RIGHT TO OBJECT
The parties are DIRECTED to file any objections to this Report and Recommendation within a period of fourteen (14) days from the date of entry. Any objections filed must specifically identify the findings in the magistrate judge's recommendation objected to. Frivolous, conclusive, or general objections will not be considered by the district court.
Failure to file written objections to the proposed findings and recommendations of the magistrate judge's report shall bar the party from a de novo determination by the district court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the district court except on grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.