United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Justin S. Anand's Non-Final Report and Recommendation ("R&R")  on Defendant Crystal Mover Services Inc.'s ("Crystal Mover") Motion for Summary Judgment .
On June 1, 2009, Plaintiff Leroy White ("Plaintiff") was hired as a Technician by Defendant Crystal Mover to service the Automated People Mover ("APM") system at the Atlanta Hartsfield-Jackson International Airport ("Airport"). Alford McCarthy ("McCarthy"), an African-American site manager, was responsible for Operations and Maintenance of the APM system at the Airport. On July 22, 2009, McCarthy promoted Plaintiff to the position of a Lead Technician. Crystal Mover's employees were assigned to one of three shifts at the Airport. The first shift began at 6:00 a.m. and ended at 2:30 p.m. The second shift began at 2:00 p.m. and ended at 10:30 p.m. The third shift began at 10:00 p.m. and ended at 6:30 a.m. In October 2009, McCarthy assigned Plaintiff to work on the third shift. Plaintiff was responsible for retrieving, repairing, and performing maintenance on the trains at the Airport.
At the end of 2009 and in the beginning of 2010, Plaintiff complained to McCarthy that Caucasian employees at Crystal Mover conversed with African-Americans by raising their voices and speaking in "hostile tones." Plaintiff testified at his deposition that, in 2010, McCarthy told Plaintiff to "leave the white boys alone." Plaintiff claims that Caucasian employees had complained to McCarthy because Plaintiff sent two African-American employees to train in the central control room. Employees in the central control room use computer televisions and cameras to monitor the tracks and stations. Plaintiff further testified that, in February, 2011, McCarthy told a number of employees that "the difference between a white worker and a black worker [is that] a black worker wants to work four hours and sit down for four hours... [A] white worker is a good worker. A white worker will work with you all day. He will help you in any way he can. He is a good worker." Def.'s Statement of Material Facts at ¶ 83; Pl.'s Dep. at 53-55.
On March 31, 2011, Crystal Mover solicited applications for two Engineer positions that required potential candidates to perform "backup supervisory or managerial services" for the APM system at the Airport. Def.'s Statement of Material Facts at ¶ 50. Applicants for the Engineer positions were required to hold a "Bachelor's degree in Electrical or Mechanical engineering or equivalent experience." Id . Plaintiff applied for the Engineer position by submitting a cover letter, resume, and a list of the training he had received at Crystal Mover. John Champ ("Champ"), Vice-President of Operations and Maintenance, and Bob Mihalco ("Mihalco"), Vice President of Human Resources, reviewed the applications for the Engineer positions.
McCarthy, Michael Marshall, an African-American Engineer in Operations and Maintenance, and Akiko Yoshida, an Asian-American Administrative Assistant in Human Resources ("HR"), provided advice on the selection of candidates to interview for the Engineer positions. Champ and Mihalco decided to interview two Caucasian employees and two African-American employees for the Engineer positions. Champ, Mihalco and McCarthy interviewed the applicants, and selected Chad Perret ("Perret"), a Caucasian Lead Technician, and Gus Bush ("Bush"), an African-American Technician, for the Engineer positions. Bush was selected because he has a college degree and 23 years of experience working for the Metropolitan Atlanta Transit Authority ("MARTA"). At MARTA, Bush attained experience in supervisory roles. Perret was selected because he has a Bachelor's degree in Electrical Engineering, nine years of experience in the engineering field, and supervised other employees as an assistant project manager at another company before he started working at Crystal Mover.
Defendant asserts that Plaintiff was not selected for an interview because Plaintiff did not have supervisory experience, and Defendant was not aware when the interview decision was made that Plaintiff had previous experience in a supervisory role.
Plaintiff claims that, in 2009, McCarthy offered Plaintiff an Engineer position in Miami, but Plaintiff did not accept McCarthy's offer because he did not want to relocate to Miami. Defendant states that McCarthy was not authorized to offer Plaintiff a position in Miami, and that Plaintiff was not formally offered a position in Miami in 2009.
Plaintiff believes that he was not selected for an interview for the Engineer position because McCarthy was involved in the selection of candidates. On May 2, 2011, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), in which he alleged that Crystal Mover discriminated against him because of his race and national origin.
On March 5, 2012, Crystal Mover solicited applications for one Engineer position after Bush left the company. Plaintiff applied for this position by submitting the same application materials that he submitted for the Engineer position in 2011. Plaintiff also included certificates of relevant training that he had completed at various institutions and employers. Crystal Mover interviewed all the candidates that applied for the Engineer position. Mihalco, Champ, McCarthy, Marshall, Yosihda and Perret interviewed Plaintiff. Joseph Nelson, an African-American, was selected for the Engineer position because he has an associate's degree in electronics, twenty-eight years of electrical-mechanical experience, and supervisory experience from his previous jobs. Defendant asserts that Plaintiff was not selected for the Engineer position because he does not have a college degree or relevant supervisory experience, and Plaintiff did not impress the interview panel during the interview process. Plaintiff believes that he was not chosen for the Engineer position in 2012 because he filed a charge of racial discrimination against Crystal Mover with the EEOC.
Plaintiff also claims that, in 2011, he was denied opportunities to work overtime because of his race, even though Caucasian employees were given opportunities to work overtime. On October 28, 2010, McCarthy informed all employees that overtime opportunities would be reduced at Crystal Mover, and employees could not work overtime unless they were scheduled to do so by the company. In January 2011, Champ emailed McCarthy and stated that overtime at the Airport was "off the charts, " and there was no way that "excessive overtime" could continue. As a result, Crystal Mover implemented a seniority-based system (the "matrix system") for the distribution of overtime opportunities.
According to Defendant, when there was an overtime opportunity, the Engineer on the shift looked at the matrix, and asked the employee on the top of the list if the employee was available to work, and the Engineer would move down the list until an available employee was found. Plaintiff argues that overtime opportunities were not distributed pursuant to the matrix system, and that certain Caucasian employees continued to work overtime. Plaintiff had the highest number of overtime hours worked by a Technician in 2009, and the second highest number of overtime hours worked by a Technician in 2010. In 2011, four African-American employees had the second, third, fourth, and fifth highest number of overtime hours. Overall, the overtime hours worked by Crystal Mover's employees decreased from 10, 682.87 hours in 2010 to 4, 821 hours in 2011.
Defendant asserts that the majority of overtime hours are worked during the third shift because only half of the system is operational at that time, which allows for maintenance to be performed without interfering with the system's availability. Christopher Hite, a Caucasian Technician, had the highest number of overtime hours in 2011. Defendant explains that Hite was required to work overtime because there were problems with the Daily Recording and Reporting System ("DRR") and the Power Distribution System ("PDS"). Hite was an expert in DRR and PDS. Tim Fox, an Asian-American Technician, had the second highest number of overtime hours, in part, because he worked on the second shift. Employees on the first and second shift have more opportunities to work overtime because the majority of overtime opportunities occur during the third shift.
Plaintiff claims that, because of his race, towards the end of 2011 and the beginning of 2012, he was not allowed to clock in to work 15 minutes early, and was not paid for this additional time. Plaintiff alleges that Hite and Fox were able to clock in 15 minutes early and were paid for this additional time. From August 2010 to July 2012, Plaintiff clocked in 15 minutes early, and he was paid for this additional time on 62 days. During the same time period, Fox and Hite clocked in 15 minutes early, and they were paid for the additional time on 45 and 41 days, respectively. On October 1, 2011, Crystal Mover instructed its employees not to clock in 15 minutes earlier than their start time. On November 14, 2011, Crystal Mover sent a memorandum to all employees stating that all employees are required to work from their scheduled start time to their scheduled end time, and that employees will only be paid for the time they were scheduled to work. The memorandum also stated that the policy was being implemented because a recent audit showed that clocking in early was "causing a significant impact on the budget" of the site. Def.'s Statement of Material Facts at ¶ 218.
B. Procedural History
On April 30, 2013, Plaintiff filed this action against Crystal Mover, asserting numerous claims of race-based discrimination and unlawful retaliation under 42 U.S.C. § 1981(a). On January 15, 2014, Crystal Mover moved for summary judgment. On June 24, 2014, Magistrate Judge Justin Anand issued his R&R on the summary judgment motion. In the R&R, the Magistrate Judge recommended that (i) Defendant's Motion for Summary Judgment be denied on Plaintiff's claim that Defendant failed to promote Plaintiff to the Engineer position in 2011 because of his race, and ...