United States District Court, S.D. Georgia, Augusta Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is Defendant's motion for summary judgment.
(Doc. 33.) In this action, the Clerk of Court gave Plaintiff
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. (Doc. 34.) Thus, the notice requirements of
Griffith v. 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 ripe
Edwin Muniz ("Plaintiff") is Hispanic. (Def.'s
St. of Mat. Facts, Doc. 33-2, at ¶ 1 (undisputed).) He
is a journeyman pipefitter and member of the Plumbers and
Pipefitters Union, Local Union 803. (Id. ¶ 2
(undisputed).) In 2015, Defendant Dynamic Systems, Inc.
("Defendant") offered Plaintiff a job as an orbital
welder at the Eli Lilly plant in Augusta, Georgia, which
Plaintiff accepted. (Id. ¶ 3, (undisputed).) At
all relevant times, foreman Troy Weiser ("Foreman
Weiser") served as Plaintiff's supervisor on the
project. (Id. ¶ 4 (undisputed).)
Plaintiff's fellow crew members were Termonja Carlton and
Ebony Parker, both African-American. (Id. ¶ 5
(undisputed); Pl's St. of Mat. Facts, Doc. 37-1,
¶¶ 7, 8 (undisputed).) Plaintiff, Mr. Carlton, and
Mr. Parker were involved in two incidents on June 8, 2016, on
the second floor of the project. (Def.'s St. of Mat.
Facts, ¶¶ 5, 7 (undisputed).)
Purge Cap Incident
first incident primarily involved Plaintiff and Mr. Carlton.
(Muniz Dep., Doc. 33-3, at 70-73; Weiser Dep., Doc. 33-4, at
42-47.) It is undisputed that, unbeknownst to Plaintiff, Mr.
Carlton removed the purge cap from Plaintiff's weld to
use on his own weld. (Muniz Dep., at 71; Weiser Dep., at 42,
44-45.) Plaintiff proceeded with the weld; however, the
absence of the necessary cap damaged the weld. (Muniz Dep.,
at 71; Weiser Dep., at 42-43.) The Parties dispute the
fallout from the weld damage, but both Parties acknowledge
that Foreman Weiser witnessed the incident. (Def.'s St.
of Mat. Facts, ¶ 6 (undisputed).)
to Foreman Weiser, Mr. Carlton showed immediate contrition
for his mistake and offered to correct the harm. (Weiser
Dep., at 43, 46.) Based upon Foreman Weiser's
observation, he understood that the purge cap mishap was an
accident. (Id. at 43-45.) Plaintiff tells a
different story, and he testified that when he confronted Mr.
Carlton about the missing weld cap, Mr. Carlton accosted him
with racial slurs. (Muniz Dep., at 71.) Plaintiff states that
he expressed concerns to Foreman Weiser regarding Foreman
Weiser's failure to intervene in the incident.
(Id. at 72.)
the same day, the second altercation occurred involving
Plaintiff and Mr. Parker. (Muniz Dep., at 73-74; Weiser Dep.,
at 48.) Again, Foreman Weiser witnessed the event.
(Def.'s St. of Mat. Facts, ¶ 6 (undisputed).)
Pursuant to Plaintiff's testimony, Mr. Parker was upset
because Plaintiff chose to continue making his weld instead
of helping with the cleanup and began directing racial slurs
at Plaintiff. (Muniz Dep., at 73-74.) Mr. Parker then bumped
Plaintiff's ladder with a vacuum cleaner. (Id.;
Weiser Pep., at 48.) Foreman Weiser explained that,
from his perspective, Mr. Parker did not contact the ladder
intentionally. (Weiser Dep., at 56-57.) The Parties agree
that an argument between Plaintiff and Mr. Parker ensued
following the ladder incident. (Muniz Dep., at 74; Weiser
Dep., at 48, 49-50.) Plaintiff again challenged the level of
Foreman Weiser's intervention. (Muniz Dep., at 77; Weiser
Dep., at 51.)
the second incident within the same day, Foreman Weiser went
to the project superintendent, Ron Gravely. (Def.'s St.
of Mat. Facts, ¶ 7 (undisputed) .) Because the project
needed a welder on the first floor in a few days, the
decision was made to move Plaintiff early to diffuse the
mounting friction between Plaintiff, Mr. Carlton, and Mr.
Parker. (Def.'s St. of Mat. Facts, ¶¶ 7-9
(undisputed) .) The Parties agree that Defendant did not move
Plaintiff as punishment. (Def.'s St. of Mat. Facts,
¶ 8 (undisputed) .)
Foreman Weiser recalls, although he informed Plaintiff that
the move reflected the needs of the project, Plaintiff
expressed that he felt the move was punishment. (Def.'s
St. of Mat. Facts, ¶ 11 (undisputed); Weiser Dep., at
51.) The following morning, Foreman Weiser discovered that
Plaintiff had removed a section of piping
("Fabrication") on the second floor. (Def.'s
St. of Mat. Facts, ¶¶ 12, 13
(undisputed).) Foreman Weiser did not observe Plaintiff
remove the piping. (Pl's St. of Mat. Facts, ¶ 30
(undisputed).) Upon discovering the removed Fabrication,
Foreman Weiser confronted Plaintiff, questioned why he
removed the Fabrication, and ordered Plaintiff to restore it.
(Def.'s St. of Mat. Facts, ¶ 14 (undisputed).)
Weiser interpreted Plaintiff s reaction as a dismissal of his
instruction that Plaintiff repair the Fabrication. (Weiser
Dep., at 35.) At that point, Foreman Weiser went to
superintendent Robert Smith ("Superintendent
Smith") to request Plaintiff's removal from the
project site. (Def.'s St. of Mat. Facts, ¶ 17
(undisputed); Weiser Dep., at 39.) It is undisputed that
Foreman Weiser informed Superintendent Smith that Plaintiff
intentionally and maliciously removed the Fabrication:
Weiser told [Superintendent Smith] that Plaintiff needed to
be removed from the project because, "when it came down
to impacting my job from doing a childish thing like that
i.e., pulling down the [F]abrication, just for spite, no. I
won't have that type of individual on my work crew. No, I
won't do it."
St. of Mat. Facts, ¶ 17 (undisputed) (quoting Weiser
Dep., at 39).) Foreman Weiser testified that he believed
Plaintiff's actions amounted to deliberate sabotage of
the project, and therefore, Plaintiff's termination was
necessary. (Weiser Dep., at 44.) Defendant terminated
Plaintiff after Foreman Weiser informed Superintendent Smith
of Plaintiff's actions. (Def.'s St of Mat. Facts,
¶ 18 (undisputed); Pl's St. of Mat. Facts, ¶ 31
(undisputed).) The Parties agree that, throughout
Plaintiff's time working under Foreman Weiser, Foreman
Weiser "never made any racially derogatory remarks,
comments or statement[s] to or about Plaintiff, or in
Plaintiff's presence." (Def.'s St. of Mat.
Facts, ¶ 23 (undisputed).)
recalls the June 9, 2016 events differently. He maintains
that he informed Foreman Weiser that he removed the piping
because he did not want it to fall and he mistakenly brought
the piece to the first floor with the rest of his tools.
(Muniz Dep., at 82-83.) Plaintiff recounts that Foreman
Weiser looked at him "funny" and then left.
SUMMARY JUDGMENT STANDARD
judgment is appropriate only if "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). Facts
are "material" if they could "affect the
outcome of the suit under the governing [substantive]
law," Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986), and a dispute is genuine "if the non
[-]moving party has produced evidence such that a reasonable
factfinder could return a verdict in its favor."
Waddell v. Valley Forge Dental Assocs., Inc., 276
F.3d 1275, 1279 (11th Cir. 2001). The Court must view factual
disputes 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 [the non-moving party's] favor."
United States v. Four Parcels of Real Prop., 941
F.2d 1428, 1437 (11th Cir. 1991) (en banc) (citation,
internal quotation marks, and internal punctuation omitted).
The Court should not weigh the evidence or determine
credibility. Anderson, 477 U.S. at 255.
moving party has the initial burden of showing the Court, by
reference to materials in the record, the basis for the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Because the standard for summary judgment mirrors
that of a directed verdict, the initial burden of proof
required by either party depends on who carries the burden of
proof at trial. Id. at 322-23. When the movant does
not carry the burden of proof at trial, it 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) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970); Celotex Corp., 477 U.S. 317). The movant
cannot meet its initial burden by merely declaring that the
non-moving party cannot meet its burden at trial.
Id. at 608.
and only if - the movant carries its initial burden, the
non-movant must "demonstrate 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 carries its initial burden. For example,
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 v. City of Atlanta, 2 F.3d 1112, 1116
(11th Cir. 1993). On the other hand, 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 sufficient to withstand a
directed verdict motion at trial based on the alleged
evidentiary deficiency." Id. at 1116-17. 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). Rather, the non-movant must respond
with affidavits or as otherwise provided by Federal Rule of
Civil Procedure 56. In reaching its conclusions herein, the
Court has evaluated the Parties' briefs, other
submissions, and the evidentiary record in this case.
complaint alleges discrimination and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e, et seg. Defendant moves for summary judgment as to all
claims. The Court addresses each below.
Title VII Discrimination - National Origin
checked the box in the complaint alleging "Defendant
discriminated against me based on my . . . national
origin." (Compl., Doc. 1, at 4.) Defendant argues it is
entitled to summary judgment on Plaintiff's national
origin discrimination claim because Plaintiff failed to
exhaust administrative remedies as to that specific claim.
(Br. Supp. Mot. for Summ. J., Doc. 33-1, at 5-7.) Plaintiff
did not respond to Defendant's argument in his opposition
brief; therefore, he arguably abandoned this claim. See
Horton v. Delta Air Lines, Inc., No.
1:07-cv-1069-WSD-LTW, 2008 WL 11320065, at *2 n.3 (N.D.Ga.
Aug. 15, 2008) (citing Iraola & CIA, S.A. v.
Kimberly-Clark Corp., 325 F.3d 1274, 1284 (11th Cir.
2003); Wilkerson v. Grinnell Corp., 270 F.3d 1314,
1322 (11th Cir. 2001)); Blankenship v. City of