United States District Court, M.D. Georgia, Columbus Division
CLAY D. LAND, District Judge.
Plaintiff Lawrence King worked for Defendant Andrews & Company as a cleaner at Fort Benning's commissary and food court. King contends that Andrews & Company transferred him and then fired him because of his race and age, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Andrews & Company filed a summary judgment motion, asserting that it terminated King for poor performance. As discussed in more detail below, King did not point to any evidence to create a genuine fact dispute on his claims, and the Court finds that Andrews & Company's summary judgment motion (ECF No. 29) should be granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only "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). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.
Under the Court's local rules, a party moving for summary judgment must attach to its motion "a separate and concise statement of the material facts to which the movant contends there is no genuine dispute to be tried." M.D. Ga. R. 56. Those facts must be supported by the record. The respondent to a summary judgment motion must respond "to each of the movant's numbered material facts." Id. "All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate." Id.
Andrews & Company submitted a statement of undisputed material facts. King did not respond to that statement of undisputed material facts. Therefore, Andrews & Company's statement of material facts is deemed admitted pursuant to Local Rule 56. The Court must still review Andrews & Company's citations to the record to determine whether a genuine fact dispute exists. Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009).
King did submit a response brief and five "declarations" in opposition to the summary judgment motion. The response brief contains King's version of the facts, but the document is unsworn and contains no citations to the record. The declarations, which generally state that King was a good employee, are not sworn or notarized and do not state that they are based on personal knowledge or that they were made under penalty of perjury. For these reasons, the Court cannot consider the declarations or the factual allegations in King's response brief. See 28 U.S.C. § 1746 (requiring that an unsworn declaration be made under penalty of perjury to have the same force and effect as a sworn affidavit).
The materials submitted by Andrews & Company in support of its summary judgment motion, which are undisputed for purposes of this motion, establish the following. Andrews & Company has a janitorial services contract at Fort Benning, Georgia. Meo Decl. ¶ 4, ECF No. 33-1. King, a 43-year-old black man, worked for Andrews & Company as a cleaner at Fort Benning from September 1, 2011 until May 1, 2012. Id. Jerry Gibbons was his direct supervisor, and Angelia Baldwin was the assistant supervisor. Id. ¶ 5. Both Gibbons and Baldwin are black and are older than King. Id. ¶ 7.
When King began working for Andrews & Company, he worked in the food court area, and his responsibilities included emptying the trash and cleaning the restrooms. Id. ¶ 12. Shortly after he began working for Andrews & Company, Gibbons gave King a written warning for failing to empty the trash and refusing to clean a restroom. Meo Decl. Attach. 4 at 3, Performance Correction Notice (Sept. 27, 2011), ECF No. 33-4 at 3. According to Gibbons, King "would often stand around talking to people instead of working and getting his job done, " and Gibbons repeatedly spoke with King about his performance issues. Gibbons Decl. ¶ 6, ECF No. 31-1. Gibbons also repeatedly counseled King about his inappropriate work attire, which included "saggy pants, " "big necklaces that were distracting and did not look neat or appropriate for cleaning, " and "a belt buckle shaped like a handgun." Id. ¶ 8.
In March of 2012, Andrews & Company received a complaint from Kathleen Wagner, the customer contact for the Fort Benning janitorial services contract. Meo Decl. ¶ 13. Wagner complained that King dressed inappropriately on several occasions and that he did not correct concerns pointed out by the food court's managers. Meo Decl. Attach. 4 at 6, Email from Matthew Andrews to Kathleen Wagner (Mar. 16, 2012), ECF No. 33-4 at 6. Later that month, Gibbons gave King a written warning for using his cell phone at work in violation of company policies. Meo Decl. Attach. 4 at 4, Performance Correction Notice (Mar. 25, 2012), ECF No. 33-4 at 4.
In mid-April of 2012, Gibbons decided to move King to a different area. King was reassigned to the porter area, where his job duties included bringing shopping carts in from outside and cleaning restrooms. Gibbons Decl. ¶ 13. King's pay and title did not change. Meo Decl. ¶ 4. Gibbons reassigned an employee named Ryan to clean the food court area. Gibbons Decl. ¶ 15. Ryan, a white male, is younger than King. Id. King continued to have performance issues in his new area. Id. ¶ 14.
In late April of 2012, Wagner complained to Baldwin that King was disturbing her food court employees. Meo Decl. Attach. 4 at 5, Performance Correction Notice (May 1, 2012), ECF No. 33-4 at 5. And Baldwin observed that King did not clean his duty station and that the restrooms for which he was responsible were not properly cleaned or restocked. Id. Baldwin issued King a write-up. Id. At that point, Gibbons decided to terminate King. Id. Gibbons terminated King on May 1, 2012. Meo Decl. ¶ 4. After King ...