United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
CATHERINE M. SALINAS United States Magistrate Judge
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
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”). [Id. at 1-2, 6].
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
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
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].
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.
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. [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].
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.
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].
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].
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,
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.
lawsuit, Plaintiff raises these same two claims: ADEA
discrimination (failure to hire) and retaliation. [Doc. 2 at