Lurene Leatherwood v. Anna's Linens Company , 384 F. App'x 853 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 17, 2010
No. 09-15427 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-02682-CV-BBM-1
LURENE LEATHERWOOD,
Plaintiff-Appellant,
versus
ANNA'S LINENS COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 17, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Lurene Leatherwood appeals the district court’s grant of summary judgment
in favor of Anna’s Linens Co. (“ALC”). Leatherwood argues that the district
court erred by (1) violating her due process rights by preventing her from “cross-
examining” a witness; (2) declining de novo review of her objections to the
magistrate’s report and recommendation (“R&R”); (3) granting summary judgment
on her negligence claim; (4) refusing to consider certain supplemental filings; (5)
granting summary judgment on her retaliation claim; and (6) granting summary
judgment on her Equal Pay Act (“EPA”) claim. For the reasons set forth below,
we affirm.
I.
Leatherwood, a 52-year-old female, filed a complaint in the district court
naming ALC, her former employer, as a defendant. In her complaint and amended
complaint, Leatherwood stated that she worked at ALC as a “keyholder,” which
she described as “part of [ALC’s] management team.” She asserted a number of
claims, including negligence, retaliation in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), and violation of the Equal Pay Act (“EPA”).
Leatherwood alleged that, in retaliation for complaining about discrimination, she
received numerous frivolous and meritless reprimands from her supervisor,
Bernard Daniels, her work hours were reduced, and she received a negative
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performance evaluation and 30-day probation. Leatherwood also contended that a
male keyholder, Devear Peters, was paid $9.00 per hour, while she was paid only
$8.00 per hour.
At her deposition, Leatherwood admitted that ALC was understaffed at one
point and, in a February 20, 2007, memorandum to ALC management,
Leatherwood complained that the store was understaffed. On August 6, 2007,
Leatherwood filed an EEOC charge alleging that ALC discriminated against her
because of her age.1 The next day, Leatherwood received two counseling notices.
On August 13, 2007, the EEOC sent ALC a “Notice of Charge of Discrimination.”
Leatherwood received an additional counseling notice on September 7, 2007, for
failing to count petty cash receipts. Leatherwood wrote on the counseling notice
that the situation did not warrant a written warning. Leatherwood also received a
counseling notice on October 12, 2007, for being rude to a customer. An October
10, 2007, e-mail from a customer stated that Leatherwood had been “rude and
loud” when the customer attempted to return merchandise. On November 20,
2007, Leatherwood received an annual evaluation that rated her performance as
“below acceptable.” On December 1, 2007, Leatherwood submitted a resignation
letter, stating that she was resigning “under constructive discharge.” Wendy
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A facsimile cover sheet, dated November 29, 2007, indicated that Leatherwood amended
her EEOC complaint to include a claim of retaliation.
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Newkirk, ALC’s Director of Field Human Resources, submitted a signed, but
unnotarized, declaration stating that, from October 2004 through December 2007,
12 female keyholders were paid the same hourly wage as Peters.
After discovery concluded, ALC filed a motion for summary judgment on
all of Leatherwood’s claims, accompanied by a statement of material facts.
Leatherwood filed a cross-motion for summary judgment, accompanied by a brief,
memorandum of law, and statement of material facts. She subsequently filed a
reply brief in support of her cross-motion for summary judgment, an additional
memorandum of law, a response to ALC’s statement of material facts, and a reply
to ALC’s statement of material facts.
In its R&R, the magistrate stated that it would not consider Leatherwood’s
second brief and memorandum in support of her cross-motion for summary
judgment, and her reply to ALC’s statement of material facts, because
Leatherwood did not seek permission to file these documents. The magistrate
found that Leatherwood did not establish a prima facie case of retaliation because
she failed to show that she suffered an adverse employment action. The magistrate
also determined that, even if Leatherwood established a prima facie case under the
EPA, ALC raised a valid affirmative defense by showing that the pay differential
between Leatherwood’s and Peters’s wages was based on a factor other than sex,
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and Leatherwood failed to show that this reason was pretextual.
Leatherwood objected to the R&R, asserting that the magistrate erred in
accepting as undisputed paragraphs 25, 48, and 51 of ALC’s statement of material
facts; failing to consider certain paragraphs of her response to ALC’s statement of
material facts; and failing to consider her second brief and memorandum in support
of her cross-motion for summary judgment. Leatherwood also reiterated previous
arguments she had made in support of her age-based discrimination and retaliation
claims.
The district court noted that it would review only for clear error
Leatherwood’s arguments that were “not set forth as specific written objections to
the proposed findings and recommendations.” It found that Leatherwood failed to
establish a prima facie case of retaliation, because she failed to show a causal
connection between her protected activity and any alleged adverse employment
action and, furthermore, ALC identified legitimate disciplinary reasons for its
actions. The district court found that Leatherwood failed to establish a prima facie
case under the EPA, because she failed to contradict ALC’s contention that 12
female keyholders were paid the same or a higher hourly rate than Peters and
“special exigent circumstances of understaffing, coupled with the need to exceed
Mr. Peters’s prior pay, justified the disparate wages.” Because the district court
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concluded that Leatherwood failed to present a cognizable claim, it granted ALC’s
motion for summary judgment with respect to all of Leatherwood’s claims.
II.
A. Due Process
Leatherwood’s due process argument is based on her claim that she was not
allowed to “cross-examine” Daniels. To the extent that Leatherwood’s claim is
based on the Sixth Amendment, her claim must fail, because the Sixth
Amendment’s right to confront adverse witnesses is inapplicable to civil cases.
See Birt v. Montgomery, 709 F.2d 690, 704 n. 2 (11th Cir. 1983) (the Sixth
Amendment right “to secure witnesses’ testimony” does not apply to habeas corpus
proceedings, because such proceedings are civil in nature); U.S. C ONST. amend. VI
(providing that, “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him [and] to have compulsory
process for obtaining witnesses in his favor”) (emphasis added). Leatherwood’s
Fourteenth Amendment due process claim also fails, because the Fourteenth
Amendment applies only to states and state actors. See U.S. C ONST. amend. XIV,
§ 1 (providing that, “[n]o State shall . . . deprive any person of life, liberty, or
property, without due process of law”) (emphasis added).
B. Review of Magistrate’s R&R
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The district court must conduct a de novo review of any part of the R&R that
has been “properly objected to.” Fed.R.Civ.P. 72(b)(3); see 28 U.S.C. § 636(b)(1)
(providing that the district court “shall make a de novo determination of those
portions of the [R&R] to which objection is made”). “Parties filing objections to a
magistrate’s report and recommendation must specifically identify those findings
objected to. Frivolous, conclusive, or general objections need not be considered by
the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988); see
United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009) (“a party that
wishes to preserve its objection must . . . pinpoint the specific findings that the
party disagrees with”).
The district court reviewed de novo Leatherwood’s objections that: (1) the
magistrate erroneously excluded her supplemental documents; and (2) the
magistrate erroneously adopted paragraphs 35, 48, and 51 of ALC’s statement of
material facts. These are the only objections that were entitled to de novo review,
because they were the only objections that identified specific findings set forth in
the R&R and articulated a legal ground for objection. See Fed.R.Civ.P. 72(b)(2);
Marsden, 847 F.2d at 1548. Accordingly, the district court did not err by failing to
conduct de novo review of Leatherwood’s objections to the R&R.
C. Negligence Claim
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Construing her brief liberally, Leatherwood appears to argue that she was
entitled to relief on the merits of her negligence claim. Leatherwood’s negligence
claim is based, in part, on her assertion that ALC violated its duty to abide by state
and federal anti-retaliation laws. This claim fails because, as explained below, the
district court correctly granted summary judgment to ALC after finding that ALC
did not retaliate against Leatherwood. Thus, even if a duty existed, ALC would
not have breached this duty. Leatherwood also asserts that ALC breached its duty
to make her aware of an assistant manager opening. However, she cites no
authority imposing such a duty on an employer and, later in her brief, admits that
Daniels asked her to consider applying for an assistant manager position.
Accordingly, Leatherwood was not entitled to relief on her negligence claim.
D. Failure to Consider Supplemental Filings
The Northern District of Georgia’s Local Rules of Civil Procedure provide
that a party may file a brief, exhibits, statement of material facts, and reply in
support of a motion for summary judgment. N.D. Ga. Rule 56.1(A)-(B). A
movant may not file supplemental documents in the absence of a court order. N.D.
Ga. Rule 56.1(A).
The district court did not err in refusing to consider Leatherwood’s second
brief and memorandum in support of her cross-motion for summary judgment,
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because Leatherwood had already filed a memorandum in support of her cross-
motion for summary judgment, and she subsequently filed an additional brief in
support of her cross-motion for summary judgment. The local rules permit only
one initial brief and one reply in support of a motion for summary judgment. See
N.D. Ga. Rule 56.1(A)-(B). Similarly, the district court did not err in refusing to
consider Leatherwood’s reply to ALC’s statement of material facts. Leatherwood
had already filed a “response to ALC’s statement of material facts and the local
rules specifically authorize only one response to an opposing party’s statement of
material facts. See N.D. Ga. Rule 56.1(B)(2)(a). Parties are not permitted to file
supplemental briefs or materials without the court’s permission and, despite her
pro se status, Leatherwood was required to comply with the rules. See N.D. Ga.
Rule 56.1(A); McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,
124 L.Ed.2d 21 (1993) (holding that pro se litigants must still comply with
procedural rules applicable to ordinary civil litigation). Accordingly, the district
court did not err in refusing to consider Leatherwood’s supplemental filings that
were not authorized by the local rules.
E. Retaliation Claim
We review the grant of summary judgment de novo, viewing all evidence
and drawing all reasonable factual inferences “in a light most favorable to the non-
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moving party. Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th Cir. 2002).
Summary judgment should be granted only when “ there is no genuine issue as to
any material fact and . . . the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c)(2).
An employer may not retaliate against an employee because the employee
has opposed an unlawful employment practice or “made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing.”
EEOC v. Total Sys. Serv., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (quoting 42
U.S.C. § 2000e-3(a)). To establish a prima facie case of retaliation under Title
VII, the plaintiff must show that: (1) she participated in an activity protected by
Title VII; (2) she suffered an adverse employment action; and (3) there was a
causal connection between the participation in the protected activity and the
adverse employment decision. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008). With respect to the second element, an employee must show that “a
reasonable employee would have found the challenged action materially adverse,”
such that the action would have “dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006). “To
establish a causal connection, a plaintiff must show that the decision-makers were
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aware of the protected conduct, and that the protected activity and the adverse
actions were not wholly unrelated.” Shannon v. Bellsouth Telecomm., Inc., 292
F.3d 712, 716 (11th Cir. 2002). Close proximity in time between the protected
activity and the adverse action may be sufficient to show that the two were not
wholly unrelated. McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008).
Once a prima facie case is established, the burden shifts to the employer to
rebut the presumption of retaliation by producing legitimate reasons for the adverse
action. Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.
1999). “The plaintiff must then show that the employer’s proffered reasons for
taking the adverse action were actually a pretext for prohibited retaliatory
conduct.” Id.The district court correctly found that Leatherwood engaged in protected
conduct by filing her EEOC charge. See Total Sys. Serv., Inc., 221 F.3d at 1174;
42 U.S.C. § 2000e-3(a). It appears that Leatherwood also suffered an adverse
employment actions, because, viewed cumulatively, the multiple counseling
notices, negative evaluation, and 30-day probation Leatherwood received likely
would have “dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N., 548 U.S. at 68, 126 S.Ct. at 2415.
However, Leatherwood has failed to establish the final element of a prima
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facie retaliation case, because she has failed to show a causal connection between
her EEOC charge and the reprimands and negative performance evaluation. First,
although Leatherwood received two counseling notices from Daniels on August 7,
2007, ALC did not receive notice of Leatherwood’s EEOC charge until August 13,
2007. Because there is no evidence that ALC knew about the EEOC charge at the
time the August 7th counseling notices were issued, Leatherwood cannot establish
a causal connection. See Shannon, 292 F.3d at 716. Leatherwood has also failed
to show a causal connection between her EEOC charge and her November 20,
2007, negative performance evaluation. Leatherwood’s only argument establishing
a causal connection is the fact that she received the negative evaluation after she
filed her EEOC charge. However, Leatherwood received the negative evaluation
three-and-a-half months after filing her EEOC charge and, therefore, cannot rely
on temporal proximity alone to establish causation. See Drago v. Jenne, 453 F.3d
1301, 1308 (11th Cir. 2006) (“in the absence of any other evidence of causation, a
three and one-half month proximity between a protected activity and an adverse
employment action is insufficient to create a jury issue on causation”).
Leatherwood received two additional counseling notices after filing her
EEOC charge – one on September 7th for failing to count petty cash receipts, and
one on October 12th for being rude to a customer. Even if Leatherwood could
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establish a causal connection between the EEOC charge and these counseling
notices, ALC articulated legitimate, non-discriminatory reasons for issuing the
reprimands, and Leatherwood has failed to show that these reasons are pretext.
With respect to the September 7th reprimand, Leatherwood admitted that she failed
to count the petty cash receipt. The October 12th reprimand was based on the e-
mail of a customer who had complained to ALC that Leatherwood was rude and
unprofessional. Accordingly, the district court did not err in granting summary
judgment in favor of ALC with respect to Leatherwood’s retaliation claim.
F. Equal Pay Act (“EPA”) Claim
The EPA provides as follows:
[n]o employer . . . shall discriminate . . . between employees on
the basis of sex by paying wages to employees . . . at a rate less
than the rate at which he pays wages to employees of the
opposite sex . . . for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions, except where
such payment is made pursuant to . . . a differential based on
any other factor other than sex.
29 U.S.C. § 206(d)(1). To establish a prima facie case under the EPA, a party
must show that “the employer paid employees of opposite genders different wages
for equal work for jobs which require equal skill, effort, and responsibility, and
which are performed under similar working conditions.” Steger v. General Elec.
Co. 318 F.3d 1066, 1077-78 (11th Cir. 2003) (quotations omitted).
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“Once the employee presents a prima facie case, the employer may avoid
liability by proving by a preponderance of the evidence that the pay differences are
based on . . . any other factor other than sex.” Id. at 1078 (quoting 29 U.S.C.
§ 206(d)(1)). Once the employer meets its burden of establishing an affirmative
defense enumerated in § 206(d)(1), “the plaintiff must rebut the explanation by
showing with affirmative evidence that it is pretextual or offered as a post-event
justification for a gender-based differential.” Irby v. Bittick, 44 F.3d 949, 954
(11th Cir. 1995).
The district court found that Leatherwood failed to establish a prima facie
case under the EPA, because she failed to refute ALC’s contention that 12 female
keyholders were paid at or above Peters’s wage. However, the only evidence ALC
cites in support of its contention is Newkirk’s declaration, which is not notarized
and does not contain a handwritten statement declaring “under penalty of perjury
that the foregoing is true and correct.” Thus, the declaration may not meet the
technical requirements of 28 U.S.C. § 1746. See 28 U.S.C. § 1746. Because it is
not clear whether ALC may rely on Newkirk’s in support of its motion for
summary judgment, and because ALC does not dispute that Leatherwood, a female
keyholder, was paid less than Peters, a male keyholder performing equal work,
Leatherwood appears to have established a prima facie case under the EPA.
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Even if Leatherwood established a prima facie case, ALC asserted an
affirmative defense – that exigent circumstances, specifically, a staffing shortage
and the need to lure Peters away from a competitor, justified paying him a higher
wage. The evidence supports ALC’s contention that its store was short-staffed. In
her deposition and in a February 20, 2007, memorandum, Leatherwood noted that
ALC was understaffed. Peters was hired on March 29, 2007, shortly after
Leatherwood wrote her February 20th memorandum. Because ALC produced
evidence showing that the pay disparity was based on a factor other than sex, the
burden shifted to Leatherwood to establish that the proffered reason was pretextual.
See Irby, 44 F.3d at 954. Leatherwood failed to produce any evidence that ALC
was not short-staffed when Peters was hired or that Peters would have worked at
ALC for less than $9.00 per hour. Thus, the district court did not err in granting
summary judgment in ALC’s favor with respect to Leatherwood’s EPA claim.
Accordingly, we affirm the district court’s grant of summary judgment in favor of
ALC with respect to all of Leatherwood’s claims.
AFFIRMED.
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