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Barnes v. Sensormatic Electronics LLC

United States District Court, N.D. Georgia, Atlanta Division

December 12, 2017

MICHAEL BARNES, Plaintiff,
v.
SENSORMATIC ELECTRONICS LLC, Defendant.

          FINAL REPORT AND RECOMMENDATION

          CATHERINE M. SALINAS United States Magistrate Judge

         This case is before the Court on Defendant's Motion for Summary Judgment. [Doc. 31]. For the reasons that follow, I RECOMMEND that the motion be GRANTED.

         I. PROCEDURAL BACKGROUND

         On August 29, 2016, the Court docketed pro se Plaintiff Michael Barnes's Complaint in which he alleges that he was discriminated against and retaliated against by Defendant Sensormatic Electronics, LLC, the company to which he was assigned during the relevant time period as a temporary worker through a staffing agency. [Doc. 2, Complaint, at 1-2]. In a letter attached to the Complaint, Plaintiff claims that he was treated unfairly on a number of occasions. [Id. at 10-11]. Plaintiff raises two claims: failure to hire in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. (“ADEA”), and retaliation in violation of either the ADEA or Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”).[1] [Id. at 1-2, 6].

         At the conclusion of discovery, Defendant filed the pending motion for summary judgment, arguing that it is entitled to summary judgment on both of Plaintiff's claims. Plaintiff filed two responses, and Defendant filed two replies. [Docs. 36-39]. The motion is now fully briefed and ready for resolution.

         II. FACTS[2]

         From May 2013 until September 29, 2014, Plaintiff was an employee of Manpower, a temporary staffing agency, and was assigned to work for Defendant in a warehouse. [Doc. 31-4, Plaintiff's Deposition (“Pl. Dep.”), at 76-77, 115].

         Plaintiff's first position with Defendant was as a box maker. [Id. at 80, 85]. After his first few months of making boxes, he started working in different departments doing a variety of tasks, including making boxes, working in shipping and receiving, and loading and unloading containers. [Id. at 81-84].

         Throughout Plaintiff's assignment with Defendant, Plaintiff's supervisors frequently advised Plaintiff that his production was low. [Pl. Dep. at 106-107, 116, 119]. Despite this, at some point between May and July 2013, one of Plaintiff's supervisors recommended that Defendant hire Plaintiff as a permanent employee. [Id. at 101-102]. Thereafter, Defendant hired several Manpower workers as permanent employees, but Plaintiff was not one of them. [Id. at 105]. This is the heart of Plaintiff's case.

         In May 2014, Defendant posted four permanent “Material Handler” positions for the Receiving Department, which involved duties similar to what Plaintiff was doing as a temp. [Doc. 31-3, Declaration of Maria Hernandez (“Hernandez Decl.”), ¶ 8; Pl. Dep. at 95-97]. Plaintiff testified that he applied for two of the positions with the help of his daughter who completed the online application for him.[3] [Pl. Dep. at 88-89, 114, 128]. Plaintiff testified that he did not receive any response from Defendant or anyone else regarding his application(s), but he knew two or three people who got interviews; he trained those people, and believes that he had significantly more experience than they did. [Id. at 90-91]. It is undisputed that Defendant filled those positions in June 2014 with four individuals who all had higher productivity percentages than Plaintiff in the months leading up to the hiring decision. [Hernandez Decl. ¶¶ 16-17].

         Plaintiff does not dispute that he regularly had low productivity. [Pl. Dep. at 121]. Indeed, during the six-month period before he was terminated, Plaintiff rarely met or exceeded Defendant's productivity goal. [Id. at 126-27; Pl. Dep. Ex. 6, Doc. 31-4 at 274-77]. Plaintiff repeatedly asked one of his supervisors, Maria Hernandez, to talk with him about his productivity, but she refused to speak to him about it and would not help him fix the problem. [Pl. Dep. at 121-22]. He testified further that there were reasons why his productivity was low, including problems with the scanners [id. at 118-19, 168-69], the fact that he was training other people [id. at 124], and the fact that sometimes he “had to work under other people's names” because he did not have a log-in [id. at 181].

         On May 22, 2014, Maria Hernandez asked Manpower to replace Plaintiff because of his low productivity. [Hernandez Decl. ¶ 23]. She discussed this request with HR, her supervisor, and a Manpower employee, and they decided to wait until later in the year, after the department's busy season was over. [Id. ¶ 24]. Thereafter, Ms. Hernandez continued to request that Manpower replace Plaintiff; she made further requests for his separation in August 2014 and then again in September 2014. [Id. ¶¶ 25, 28].

         Plaintiff testified that in September 2014, he attended two meetings with Ms. Hernandez at which all third-shift employees-both employees of Manpower and employees of Defendant-were present. [Pl. Dep. at 129-32, 148-49]. Plaintiff testified that during a meeting on September 19, 2014, he tried to speak with Ms. Hernandez, but she said, “I don't suppose to talk to you people, ” and then she just walked away. [Id. at 16-17, 97, 121, 130-31, 136, 148-50]. Plaintiff testified that a week later, during a meeting on September 26, 2014, he “brought it up that I felt as though I was being discriminated against.” [Id. at 131, 133].

         Manpower terminated Plaintiff's assignment on September 29, 2014-three days after the second of the two meetings-for the stated reason of poor performance. [Hernandez Decl. ¶¶ 28, 30-31]. According to Plaintiff, at the time he was separated from Defendant, there were other people who had lower productivity than he did. [Pl. Dep. at 124-25, 163].

         Plaintiff filed an EEOC charge on March 9, 2015, alleging (1) that Defendant discriminated against him based on his age when it did not hire him for a permanent position in June 2014; and (2) that Defendant unlawfully terminated him in September 2014 in retaliation for expressing the opinion that he was being discriminated against. [Doc. 31-4 at 278, EEOC Charge]. Plaintiff did not name Manpower in his EEOC Charge, nor did he sue Manpower in this case.

         In this lawsuit, Plaintiff raises these same two claims: ADEA discrimination (failure to hire) and retaliation. [Doc. 2 at 1-2]

         III. SUMMARY ...


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