Peters v. ZWS/ABS Joint Venture, No. 2:2014cv00083 - Document 47 (S.D. Ga. 2016)
Court Description: ORDER granting Defendant's 26 Motion for Partial Summary Judgment; and, denying as moot Defendant's 34 Motion to Strike. Signed by Judge J. Randal Hall on 02/16/2016. (jah)
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Peters v. ZWS/ABS Joint Venture Doc. 47 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION * ARVY PETERS, * Plaintiff, * * v. CV 214-083 * ZWS/ABS JOINT VENTURE d/b/a * ZERO WASTE SOLUTIONS, * Defendant, ORDER Currently before the Court are two motions: Defendant's motion for partial summary judgment (doc. 26) and Defendant's motion to strike (doc. 34). For the reasons discussed below, Defendant's motion for partial summary judgment is GRANTED, and Defendant's motion to strike is DENIED. I. This case stems Background from Plaintiff Arvy Peters's with Defendant ZWS/ABS Joint Venture ("ZWS"). employment ZWS holds a government contract, under which it provides janitorial services to the Federal Law Enforcement Training Center in Brunswick, Georgia. (Doc. 29, Ex. E ("Singh Dep.") at 7-8.) ZWS hired Peters in 2011 as an environmental coordinator, a position that required him to perform janitorial inspections and, important to Dockets.Justia.com this case, work certain Saturdays to pressure wash buildings. (Doc. 29, Ex. A ("Peters Dep.") 2011, at 19, 34.) Peters approached his supervisor, At some point in James McClinton, concerns he had regarding his Saturday work. about (Id. at 54-55.) Although the exact details of the conversation are not clear from the record, Peters claims that he spoke with McClinton about receiving overtime pay for that work. Peters subsequently voiced similar concerns. At a meeting held in April 2013, McClinton informed Peters and others that they would need to report to work on Saturdays to perform pressure-washing duties, at which time Peters informed McClinton that working Saturdays would be difficult for him because his wife now worked many weekends. (Id^ at 55-56.) Then, in either May or June 2013, Peters claims that McClinton changed his schedule to require Peters to work every Saturday and gave him every Tuesday off. (Id^ at 63.) Although the record is not clear on this, it was apparently McClinton's normal procedure to give his employees a day off during the week when he required them to work on a Saturday. Dep.") at 108.) (See Doc. 29, Ex. D ("McClinton Peters complained about overtime pay again in August 2013. Also relevant to the issues now before the Court, at a meeting in July 2013, McClinton used a racial epithet in front of Peters and other employees. (Peters Dep. at 96-97.) Peters subsequently reported McClinton's racial comment to Jai Sharma, a ZWS corporate manager. (Doc. 28, Ex. M.) In either September or October 2013, ZWS terminated Peters. Shavila Singh, the president of ZWS, testified that ZWS had to reduce its services under the contract because of a government sequestration. (Singh Dep. at 11-12.) According to Singh, ZWS addressed the sequestration by, in part, terminating positions, including Peters's, supervisors. Peters's and (Id^ at termination, it 17-18, ZWS distributed 28.) hired his duties Additionally, Jon Hardwick as among prior to a "zone manager." (McClinton Dep. at 106.) Also subsequent to his termination, Peters claims that he applied for two positions with ZWS: a marketing position and a supervisor position. (Peters Dep. at 163.) According to Peters, ZWS never contacted him about either position. 2014, Peters, In June after exhausting his administrative remedies, initiated this action and alleges that ZWS violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., by failing to pay him overtime, retaliated against him in violation of the Fair Labor Standards Act, 29 U.S.C. § 215, and retaliated against him in violation of Title VII, 42 U.S.C. § 2000e-3. now moves for summary judgment on the retaliation claims. (Doc. 1.) ZWS FLSA and Title VII ZWS also moves to strike certain documents Peters attached to his response in opposition to ZWS's motion for partial summary judgment. II. Summary genuine judgment dispute as 56(a). the is to entitled to judgment Legal Standard appropriate any material only fact if "there as a matter of law." no the movant and is is Fed. R. Civ. P. Facts are "material" if they could affect the outcome of suit under Liberty Lobby, the Inc., governing 477 U.S. substantive 242, 248 law. (1986). Anderson v. The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all justifiable inferences in [its] favor." 941 F.2d 1428, United States v. Four Parcels of Real Prop., 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted). The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) . When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways-by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickes v. S.H. Kress & 477 U.S. Catrett, Co., 398 317 U.S. 144 (1986)). (1970) Before and Celotex the Court Corp. can v. evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden there are no genuine issues of material 120 F.3d 248, 254 (11th Cir. showing that fact and that it is entitled to judgment as a matter of law. Columbus, of Jones 1997) v. City of (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608. If-and only if-the movant carries its initial burden, the non-movant may avoid summary judgment only by "demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment." Id^ When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated." Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come forward with additional evidence verdict at motion trial sufficient to withstand a directed based on the alleged evidentiary deficiency." Id. at 1117. The non-movant cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. See Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981). In this action, the Clerk of the Court gave Peters notice of the motion for summary judgment and informed him of the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. 27.) Therefore, the notice requirements of (Doc. Griffith y_;_ Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. The time for filing materials in opposition has expired, and the motion is now ripe for consideration. III. The Court will Discussion first address the FLSA and Title VII retaliation claims, followed by ZWS's motion to strike. A. FSLA Retaliation The FLSA retaliating against employees who assert their rights under the statute. See 29 U.S.C. prohibits § 215(a)(3). circumstantial evidence, employers In a courts from retaliation claim based apply the McDonnell on Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. See Henderson v. City of Grantville, 37 F. Supp. 3d 1278, 1282 (N.D. Ga. 2014). Thus, an employee must first establish a prima facie case by showing that: "(1) [the employee] engaged in activity protected under [the] act; (2) [the employee] subsequently suffered adverse action by the employer; and (3) a causal the connection adverse 1343-44 existed action." (11th Wolf Cir. (citation omitted) between 2000) v. the employee's Coca-Cola (second Co., alteration activity 200 F.3d in and 1337, original) (internal quotation marks omitted). If the employee successfully establishes a prima facie case, the burden shifts to the employer to proffer legitimate, reasons for its actions. Id^ at 1343. the employee must then show pretext. non-retaliatory If the employer does so, Id. In this case, Peters points to his complaints to McClinton about overtime pay as his statutorily protected activity. ZWS argues that Peters did not engage in protected activity because his complaints were to McClinton, termination decisions. The Court, who did not make however, final is satisfied that Peters meets this element of the prima facie case. Informal complaints are often considered protected activity as long as the employer has sufficient notice of the complaint. E.E.O.C. v. White & Son Enters., 881 F.2d 1006, 1011-12 (11th Cir. 1989); Traweek v. Glob. Sols. & Logistics, LLC, No. 2:14-cv-00308-LSC, 2015 WL 4545634, at *6 (N.D. Ala. July 28, 2015). And an employee need only reasonably believe that he is engaging in protected activity. See Traweek, 2015 WL 4545634, at *6. Here, Peters's complaints were to his direct supervisor, and although McClinton did not have plenary power to terminate employees, the record reflects termination. that he could (McClinton Dep. at recommend 56.) employees Peters, for therefore, has satisfied the first prong of the prima facie case. Peters points to three different amount to adverse employment actions: actions (1) that required him to work every Saturday; hire him to fill the openings each of these actions in turn. from all retaliation, injury or harm." but from his schedule change (2) ZWS's failure to he applied termination of his employment with ZWS. that he claims for; and (3) the The Court will address Employees are protected retaliation that "not produces an Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (discussing adverse employment actions under the anti-retaliation provision of Title VII). The retaliation must be such that "it well might have dissuaded a reasonable worker from making or supporting a [complaint]." (citation omitted) (internal quotation marks Id. at 68 omitted). The employer's actions must be "materially adverse." Carroll, 529 F.3d 961, 974 (11th Cir. 2008) Crawford v. (finding a poor performance review that affected an employee's eligibility for a raise to be an adverse employment action) . An action that is a mere "inconvenience or alteration of responsibilities" will not satisfy this requirement. Bryant v. U.S. Steel Corp., 428 F. App'x 895, 898 (11th Cir. 2011) (per curiam). i. Schedule Change Peters asserts that, 2013 to adverse require him employment when McClinton changed his schedule in to work action. every To Saturday, support this he suffered argument, an Peters points only to the fact he told McClinton that Saturdays were no longer convenient for him. schedule change was The Court is not persuaded that the materially adverse. First, undisputed evidence shows that Peters was accustomed to working Saturdays- he had previously worked Saturdays as far back as 2011. Dep. at 36.) (Peters Although the record is not clear about whether he had previously been required to work every Saturday, the period of indefinite Saturday work in 2013 lasted, until October. at most, from May McClinton also announced in the meeting that Saturday work would be needed for pressure washing-the same reason employees Saturday. had previously been required to (See idj report on Peters has not put forth any evidence showing materiality or harm, and his briefs assert materiality only in conclusory language. The Court, therefore, finds that Peters has failed to establish that his schedule change was an adverse employment action. ii. Next, Failure to Rehire Peters claims that ZWS's amounts to an adverse employment action. failure to rehire him Peters claims to have applied for two positions with ZWS following his termination. One position was an "experienced supervisor" position, and Peters 28-1 refers to failure adverse to other Resp. ("Peters's the Br. recall or as the Opp'n") rehire position after termination." case, 4, 15.) employee is "An (Doc. employer's undoubtedly an the employee reapplied for the Jones v. App'x 780, 785 (11th Cir. 2008) quotation marks at an employment action where (internal "marketing" position. Ala. Power Co., (per curiam) omitted). In 282 F. (citation omitted) any failure-to-hire an employee must establish that he is qualified for the position and that the position either remains open or was filled by someone else. See E.E.O.C. v. Comcast of Ga., Inc., 560 F. Supp. 2d 1300, 1310 (N.D. Ga. 2008). Peters's failure-to-hire claim fails. First, he demonstrated that he was qualified for either position. has not Peters applied for the marketing position via the Georgia Department of Labor's website. In response, he received an e-mail from the Department of Labor explaining that he appeared qualified for the position application. and encouraging (Doc. 28, Ex. K. ) him to formally submit This, Peters argues, clearly shows that he was qualified for the position. And this is the only evidence Peters cites to establish his qualifications. Court is not persuaded. The This e-mail merely shows what it says: that Peters appeared qualified for the position. supervisor position, an in his briefs, Regarding the Peters does not cite any portion of the record to support his qualifications and merely asserts in conclusory language that he was qualified. 10 Peters has also failed to address the required qualifications for either position. Moreover, Peters has failed to allege that either position remains open or was filled by another applicant. In fact, asserts that it never filled the marketing position at 56.), which ZWS (Singh Dep. is a legitimate reason for not hiring Peters. See Duffy v. Lowe's Home Ctrs., Inc., 414 F. Supp. 2d 1133, 1144 (M.D. Ga 2006). to rehire Accordingly, the Court finds that ZWS's failure Peters does not amount to an adverse employment action. iii. Peters constitutes satisfied Termination also an that asserts adverse his employment Peters's employment action. that action. termination Accordingly, termination A causal temporal proximity. connection Henderson, The amounts to Court an is adverse is Wolf, 200 F.3d at established when 37 F. Supp. 3d there at Generally, "the temporal proximity must be very close." (citation omitted) ZWS to establish a prima facie case, the causation element must be met. 1343-44. from (internal quotation marks omitted). is 1283. Id. Here, ZWS argues that too much time elapsed between Peters's complaint and his termination. Specifically, ZWS asserts that a two-year period passed because Peters first complained in 2011. But it is undisputed that Peters complained as recently as August 2013, so only two to three months had passed since his last complaint. 11 Although it is a close call, the Court is satisfied that Peters has established the See Farley (11th v. Cir. causation element Nationwide 1999) Mut. (finding Ins. a of the Co., prima 197 seven-week F.3d lapse facie case. 1322, 1337 sufficiently proximate). Because Peters retaliation, has established the burden shifts a prima to ZWS to proffer non-retaliatory reasons for his termination. 1343. ZWS asserts that government sequestration. eliminated the it facie case of legitimate, Wolf, 200 F.3d at terminated Peters because of a Specifically, ZWS maintains that it environmental coordinator position and distributed its duties among other employees, including managers and supervisors. For his claim to survive, Peters must rebut this explanation and show that it was merely pretext for retaliation. Id. To amount to pretext, the evidence "must reveal such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence." Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (per curiam) (internal quotation marks omitted). "[A] (citation omitted) mere scintilla of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative is not enough." Woodruff v. Sch. Bd. of Seminole Cty. Fla., 304 F. App'x 795, 12 798 (11th Cir. 2008) quotation marks (per curiam) omitted) . (citation omitted) (internal And "a reason is not pretext for [retaliation] unless it is shown both that the reason was false, and that App'x [retaliation] at 898 was (citation the real omitted) reason." Bryant, (internal 428 quotation F. marks omitted). Peters asserts termination, that Hardwick, who was hired prior to his took over his duties after he was terminated and that this shows pretext. The Court, however, is not convinced. Peters's argument simply affirms ZWS's legitimate reason. does not dispute duties. Instead, that Hardwick performed many of ZWS Peters's ZWS maintains that Hardwick was hired as a zone manager and that all the environmental coordinator duties were distributed among the managers and supervisors. Pointing to the fact that Hardwick took on Peters's responsibilities does not rebut ZWS's legitimate, non-retaliatory reasons because Hardwick held the exact position to which Peters's duties were distributed. Peters also points to evidence that he claims shows that he was the only employee terminated after the sequestration. their depositions, environmental in coordinator In addition to testifying that the position was terminated, Singh and McClinton testified that other employees were let go not long after the sequestration. at 37.) (Singh Dep. at 31-32; McClinton Dep. Peters attached two affidavits to his response to ZWS's 13 motion for partial summary judgment. The affidavits were created by Idella Bradley and Shirley Peters, two ZWS employees, and Peters pretext urges because terminated. that they they show create that a he factual was the dispute only about employee Specifically, Idella Bradley's affidavit states, in part: "Arvy Peters was the only person who was terminated around the time of the government shutdown. About a year later ... I know two members of the janitorial staff for the night shift who did not return to work."1 (Doc. 28, Ex. G SI 18.) Shirley Peters's affidavit similarly maintains that she did not observe that any other ZWS employee was terminated until a later date. (Doc. 28, Ex. H 11 8-10.) fail to identify-an termination. Both affidavits also reference-but employee ZWS hired following Peters's The Court notes that both of these affidavits are almost entirely conclusory, and neither provides much factual basis for the declarations. Viewing these last-minute, conclusory statements in the light most favorable to Peters, he has established, at best, simply that Singh and McClinton incorrectly testified that other employees were let go at the time they claimed. But these affidavits are more notable for what they fail to do: rebut that the environmental coordinator position had been eliminated. 1 Bradley's affidavit also claims that she heard McClinton say that he planned to "get rid of" Peters. (Doc. 28, Ex. G 1 12.) Her affidavit, however, fails to provide any context and does not provide the time at which McClinton allegedly made this statement. The alleged statement, therefore, provides little support to Peters's claim. 14 That is, nothing in these affidavits indicates that ZWS retained an environmental coordinator environmental coordinators. office decided to or that it hired any additional Singh testified that the corporate eliminate the environmental coordinator position, which Peters held, and Peters has not pointed to any evidence that contradicts this reason. Peters has, therefore, failed to show pretext, and his retaliation claim based on his termination fails. Because Peters has failed to show that his schedule change and ZWS's failure to rehire him constitute adverse employment actions, and because he has failed to show that ZWS's reason for terminating his employment was pretextual, retaliation claim fails as a matter of law. Peters's FLSA Accordingly, ZWS's motion for partial summary judgment on this issue is GRANTED. B. Title VII Retaliation Peters also claims that his termination was in violation of Title VII. Under Title VII, it is unlawful to retaliate against an employee for opposing an unlawful employment practice. U.S.C. § 2000e-3. FLSA, a Title establish 42 Similar to a retaliation claim under the VII a prima retaliation facie case claim by requires showing: "(1) an employee that [the employee] engaged in statutorily protected expression; (2) that [the employee] suffered an adverse employment action; and (3) that there is some causal relation between the two events." Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 15 2007) (per omitted). applies the curiam) The McDonnell to Title VII opportunity reasons (citation for its F.3d 1160, 1181 to omitted) (internal quotation mark Douglas burden-shifting framework also retaliation claims, articulate actions. and the legitimate, Brown v. (11th Cir. 2010). Ala. employer has non-retaliatory Dep't. of Transp., If the employer does so, then the employee must rebut those reasons and show pretext. To establish a Title VII 597 retaliation claim, Id. an employee must have a reasonable belief that the employer is engaged in an unlawful employment practice. 536 F.3d 1209, 1213 Butler v. Ala. (11th Cir. 2008). An Dep't of Transp., employee "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." Id. Techs., 103 F.3d 956, Carrier Transicold Div., 1997)). (quoting Little v. United 960 (11th Cir. Peters's claim is based on his reporting McClinton's use of a racial epithet during a meeting, and ZWS argues that Peters has not shown that he engaged in protected activity. Court agrees. The Throughout his briefs on this motion, and in his complaint, Peters repeatedly references that he was offended by McClinton's comment. Not once does he attempt to show how the comment amounts to an unlawful employment practice. does not even reference evidence that believed that the comment was unlawful. 16 shows he In fact, he reasonably Peters's claim is based solely on the offensiveness of the comment, and "[m]ere offense does not rise to the level of reasonable belief that engaging in an unlawful employment practice." Ali [ZWS] v. was Educ. Corp. of Am., No. 4:11-CV-2743-KOB, 2012 WL 5379132, at *7 (N.D. Ala. Oct. 31, Even if the Court prima facie rebutted action. 2012). case, ZWS's his were to find that claim would fail legitimate, Peters established a because non-retaliatory he reason has not for its The only adverse employment action Peters presents to support his claim is his termination. ZWS proffered the same reason for his termination as it did for his FLSA retaliation claim-that it terminated government sequestration. Peters's position because of the And Peters attempts to rebut that reason by referencing evidence that indicates that he was the only employee terminated. But, as discussed above, Peter has not pointed to any evidence that shows that ZWS retained or subsequently hired other environmental coordinators. Accordingly, Peters has failed to show pretext. Because Peters cannot establish a prima facie case of retaliation under Title VII and cannot show pretext, his claim fails as a matter of law. ZWS's motion on this issue is GRANTED. C. ZWS's Motion to Strike In response to ZWS's motion for partial summary judgment, Peters attached the affidavits of Idella Bradley (doc. 28, ex. g) and Shirley Peters (doc. 28, ex. h) and his own declaration 17 (doc. 28, ex. portions i) . ZWS responded by filing a motion to strike of these documents because they are not based on personal knowledge and, therefore, fail to meet the requirements of Federal finds it because Rule of Civil unnecessary summary documents. to judgment Procedure separately is Venture's The address proper even Court, however, these in arguments light of the Accordingly, ZWS's motion is DENIED AS MOOT.2 IV. For 56. the reasons motion for Conclusion stated partial above, summary Defendant judgment ZWS/ABS (doc. Joint 26) is GRANTED, and ZWS's motion to strike (doc. 34) is DENIED AS MOOT. ORDER ENTERED at Augusta, Georgia this / br*- day of February, 2016. HALL STATES DISTRICT JUDGE CRN DISTRICT OF GEORGIA 2 In a one-line request in the conclusion portion of Peters's response brief on this issue, his attorney asks the Court to award attorneys' fees for having to respond to ZWS's motion to strike. denies that request. 18 Upon consideration, the Court
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