Collis Sumbak v. Eaton Corporation

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11106
Non-Argument Calendar
____________________
COLLIS SUMBAK,
Plaintiff-Appellant,
versus
EATON CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-01286-MLB
____________________
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Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Collis Sumbak, a black male of Sudanese origin, appeals the
district court’s order granting summary judgment to his employer,
Eaton Corporation, on his claims for race and national origin-based
discrimination based on a failure to promote, retaliation, and a
hostile work environment in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a) and 3; and 42 U.S.C.
§ 1981. After review, we affirm.
I. Background1
Eaton is a power management company that provides
services across varied industries. Plaintiff, a current Eaton
1 We rely on the factual findings in the magistrate judge’s report and
recommendation (R&R) adopted by the district court. In his counseled brief
on appeal, Sumbak challenges those factual findings and the district court’s
application of Local Rule 56.1(B) to deem undisputed or improperly
challenged facts asserted by the movant as admitted. Local Rule 56.1(B)
provides that:
A movant for summary judgment shall include with the
motion and brief a separate, concise, numbered statement of
the material facts to which the movant contends there is no
genuine issue to be tried. Each material fact must be numbered
separately and supported by a citation to evidence proving
such fact. The Court will not consider any fact: (a) not
supported by a citation to evidence (including page or
paragraph number); (b) supported by a citation to a pleading
rather than to evidence; (c) stated as an issue or legal
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employee, worked as a Production Technician at Eaton’s San
Francisco branch from 2000 to January 2012, when he transferred
to its facility in Smyrna, Georgia. Plaintiff currently reports to
Facilities Manager John Biggins and Production Manager Barrett
Hachey.
Sumbak testified that in 2015, he told Biggins that his fellow
employees would not help him lift heavy equipment. At the time,
Sumbak complained that “[i]t looks like they—they don’t want to
work with me because I’m not from this place or what.” He further
explained to his boss that he was part of a tribe and had been
tortured because of his tribal identity back in Sudan. Sumbak
explained that when his fellow employees would not help him, “it
make[s] me feel back—I’m back home again . . . It doesn’t sit well
conclusion; or (d) set out only in the brief and not in the
movant’s statement of undisputed facts.
N.D. Ga. Civ. R. 56.1(B). However, Sumbak waived these arguments by
failing to object to the magistrate judge’s R&R despite a prior warning of the
consequences of not objecting. 11th Cir. R. 3-1 (providing that a party who
fails to object to the R&R “waives the right to challenge on appeal the district
court’s order based on unobjected-to factual and legal conclusions if the party
was informed of the time period for objecting and the consequences on appeal
for failing to object”); Resol. Tr. Corp. v. Hallmark Builders, Inc., 996 F.2d
1144, 1149 (11th Cir. 1993). In the absence of proper objections, we may
review the factual and legal findings “on appeal for plain error if necessary in
the interest of justice.” 11th Cir. R. 3- 1. Although Sumbak argues generally
that the district court “failed to consider some of [his] evidence,” he fails to
identify any specific evidence or instance of plain error. Accordingly, we find
no plain error in any of the district court’s factual findings.
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with me when they don’t want to work with me.” After Biggins
declined to take any corrective measures, Sumbak spoke to Mr.
Hoover—Biggins’s boss—who sent Matt Stephens—a human
resources employee—to conduct an investigation. Stephens
identified that an employee named Casey was causing the issue and
relayed that to Sumbak. After Sumbak met with Casey, Biggins,
and Stephens, he started getting more help in his work. No Eaton
employees ever made racially derogatory or racially offensive
comments toward Sumbak.
Eaton’s employees are paid according to salary grades, and
each position has a range of salary grades associated with that
position. The salary grades associated with the Production
Technician position are SG34, SG36, and SG38. Plaintiff is
currently paid at the SG38 rate—the highest in the range for his
position. Once an employee at Eaton reaches the highest salary
grade associated with her or his current position, the employee
must move to a position with a higher salary grade to advance. To
obtain a new position, the employee must go through Eaton’s
application process, which includes the interview and selection
process.
Eaton only creates positions at the SG40 rate when there is
a specific business need. Since January 2016, the Smyrna facility
has one SG40 position—Lead Quality Technician (tester). Eaton
created the tester position, the first SG40 position at the Smyrna
facility in about ten years, in response to a spike in quality issues.
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In early 2016, Eaton notified employees at the Smyrna office
about the newly created tester position but did not mention its
higher salary grade. Sumbak, an electrician, did not apply for this
position because he did not feel like he could do testing. Even if
Sumbak had known that the position had the salary grade of SG40,
he would not have applied for it. At some time, Sumbak was
notified that the open position for tester was posted on Eaton’s
internal website where any interested employee could view the
position, along with the salary grade, and apply.
Eaton hired Vincent Kee, a black male and Sumbak’s
coworker, for the tester position. Sometime in 2016, Sumbak
informed Biggins that he desired to transfer out of the Smyrna
facility because he was “not growing” there and wanted an SG40
position. According to Sumbak, Biggins responded that he did not
need to transfer for an SG40 role because Biggins would “take care
of” it. Biggins also said that he would talk to Hachey about “the
next date” for a promotion and encouraged Sumbak to take a class
at Eaton University, an internal training program, in order to get
the promotion. Sumbak expected to receive a SG40 promotion at
the end of 2017. He did not.
On February 26, 2018, Sumbak received a “P” rating on his
annual review, signifying “satisfactory” performance. According
to Sumbak, Hachey told him that this rating, along with the fact
that the Smyrna facility did not need another SG40 position, were
the reasons that he could not be promoted.
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In March 2018, Sumbak was provided a cross-training
opportunity in another department. Sumbak remained an SG38
while doing this cross-training but was no longer allowed to work
overtime. Meanwhile, a white employee who had only been with
the company several months was temporarily transitioned into
Sumbak’s old position, which included leadership responsibilities.
Sumbak’s cross-training period lasted three to four months, ending
when Sumbak’s replacement quit.
According to Sumbak, at some point, Hachey told him that,
given his lack of a college degree, he should be happy with the
amount of money he makes. Sumbak later acknowledged that
Hachey did not mention race or national origin when he made this
comment.
Sometime in 2017, Sumbak wrote a letter to Eaton’s CEO
about the perceived deception related to his promotion and the
unfair treatment he received. Sumbak did not mention race in the
letter, but stated that he was from Africa, complained about the
lack of promotion, Hachey’s comment about his education, and his
belief that he was not being treated fairly. But the CEO never
received the letter.
Sumbak filed a charge with the Equal Employment
Opportunity Commission (EEOC) on March 28, 2018. The EEOC
charge asserted a claim for discrimination based on race and
national origin based on the following: (1) Sumbak received a “P-
rating on [his] annual review which resulted in [him] not being
promoted to a Grade 40,” (2) Sumbak was denied a transfer to
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another location, (3) Sumbak was removed from his job and
replaced by a less qualified white male, and (4) Sumbak was no
longer able to work overtime. The EEOC issued a dismissal and
notice of right to sue letter on December 28, 2018.
II. Procedural History
Sumbak filed his counseled complaint in March 2019,
alleging claims for discrimination based on race and national origin,
retaliation, and hostile work environment in violation of Title VII
and race-based discrimination in violation of § 1981. Eaton moved
for summary judgment, attaching a statement of undisputed
material facts to its filing. Sumbak opposed the motion and filed a
response to Eaton’s statement of undisputed material facts. The
magistrate judge issued a R&R, accepting the facts submitted by
Eaton that were supported by citations to record evidence and that
were not specifically disputed and refuted properly by Sumbak in
his response. The magistrate judge concluded that Sumbak failed
to provide sufficient direct, circumstantial, or statistical evidence to
plead a prima facie case of discrimination, retaliation, or a hostile
work environment. Turning to Sumbak’s failure to promote
claim, the magistrate judge concluded that he could not establish a
prima facie case because he never applied for the tester position.
And, assuming there were other SG40 positions, Sumbak failed to
show he applied, was rejected, and that an equally or less qualified
person outside of his protected class got the position. With regard
to retaliation, the magistrate judge found that the adverse actions
of which Sumbak complained of—failure to promote, refusal of
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overtime, and the P rating on his performance evaluation—all
occurred before the protected conduct upon which his claim
relied—the filing of the EEOC complaint—and therefore those
actions could not constitute retaliation for the protected conduct.
Further, even though the refusal of overtime continued after the
filing of the EEOC complaint, the magistrate judge held that
because it was an adverse action initially taken prior to the
protected conduct, temporal proximity alone could not establish
causation. As for Sumbak’s hostile work environment claim, the
magistrate judge concluded that it fell outside the scope of the
EEOC charge. But, even assuming such a claim was within the
scope, the facts nevertheless did not establish “an environment that
rose to a sufficiently severe level.”
The court notified the parties and their counsel that they had
14 days in which to object to the R&R, and that “[i]f no objections
[were] filed, the [R&R] may be adopted as the opinion and order of
the District Court, and on appeal, the Court of Appeals will deem
waived any challenge to factual and legal findings to which there
was no objection, subject to interest-of-justice plain error review.”
Yet, Sumbak did not object. After reviewing the record for plain
error and finding none, the district court adopted the R&R and
granted summary judgment for Eaton. Sumbak appealed.
III. Standard of Review
We typically review a district court’s order granting
summary judgment de novo, “viewing all evidence, and drawing
all reasonable inferences, in favor of the non-moving party.”
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Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.
2005). However, when, as here, a party fails to object to a
magistrate judge’s dispositive R&R, he “waives the right to
challenge on appeal the district court’s order based on unobjected-
to factual and legal conclusions,” provided that he was informed of
the window for objecting and the consequences for failing to do so.
11th Cir. R. 3- 1.
When a party fails to make a proper objection to the R&R,
we may review the factual and legal conclusions for plain error
when “necessary in the interests of justice.” Id. “Plain error review
is an extremely stringent form of review.” Farley v. Nationwide
Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999). To prevail on
plain error, an appellant must identify (1) an error, (2) that was
plain—meaning clear or obvious—and demonstrate that (3) the
error affected the party’s substantial rights; and (4) “not correcting
the error would seriously affect the fairness of the judicial
proceeding.” Id. Summary judgment is appropriate 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). When reviewing the summary judgment record, “we
must view the submitted evidence in the light most favorable to
the non-moving party.” Sun Life Assurance Co. of Can. v. Imperial
Premium Fin., LLC, 904 F.3d 1197, 1207 (11th Cir. 2018).
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IV. Discussion
A. Failure to Promote Claim
In his brief, Sumbak challenges the district court’s factual
finding that he did not apply for the SG40 position, insisting that he
never made such an admission, and that Eaton knew Sumbak
wanted the position. Additionally, he argues in passing that there
was unspecified evidence from which a jury could infer that
Eaton’s refusal to promote Sumbak was caused by racially-based
discriminatory intent.
Title VII makes it unlawful for a private employer
“to . . . discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race . . . or national origin.” 42 U.S.C.
§ 2000e-2(a). Similarly, § 1981 prohibits intentional race
discrimination in the making and enforcement of public and
private contracts, including private employment contracts. 42
U.S.C. § 1981(a); Ferrill v. Parker Grp., 168 F.3d 468, 472 (11th Cir.
1999). For employment contracts, claims of intentional
discrimination under § 1981 are analyzed under the same
framework as claims of discrimination under Title VII. Ferrill, 168
F.3d at 472.
Pursuant to Title VII, a plaintiff may prove a discrimination
claim through circumstantial evidence, generally analyzed using
the three-step, burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); E.E.O.C.
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v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002).
Under the McDonnell Douglas framework, a plaintiff “carries the
initial burden of establishing a prima facie case of discrimination.”
Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162
(11th Cir. 2006). 2
For failure to promote claims, a plaintiff may establish a
prima facie case of discrimination by showing that: (1) he was a
member of a protected class; (2) he was qualified for and applied
for the promotion; (3) he was rejected despite his qualifications;
and (4) the individual who received the promotion was not a
member of his protected class and had lesser or equal
qualifications. Carter v. Three Springs Residential Treatment, 132
F.3d 635, 642 (11th Cir. 1998).
Sumbak admitted in his deposition that he did not apply for
the tester position, stating, “so for me, I'm an electrician. So I'm
not going to apply as a tester,” and he has not pointed to any
portion of the record contradicting these comments. Thus, the
district court did not plainly err by holding that Sumbak could not
make a prima facie case for discrimination for failure to promote.
Id.2 We note that the district court concluded that Sumbak identified no direct
or statistical evidence to support his claims. Because he does not challenge
that finding on appeal, he abandoned any challenge on this ground. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014)
(explaining that a party can abandon an issue on appeal by failing to “plainly
and prominently” address it in his opening brief).
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The district court also analyzed whether some other
unspecified SG40 position was promised to Sumbak and then
denied to him because of his race. The district court did not plainly
err by holding that Sumbak did not establish a prima facie case
because he failed to produce evidence showing that he applied for
and was rejected from an open SG40 position, or that another
equally or less qualified employee who was not a member of the
protected class was promoted to such a position.
B. Retaliation Claim
Sumbak further maintains that the district court erred by
disregarding much of his unspecified evidence on his retaliation
claim and by failing to properly apply Drago v. Jenne, 453 F.3d
1301, 1308 (11th Cir. 2006). In Drago, we held that “in a retaliation
case, when an employer contemplates an adverse employment
action before an employee engages in protected activity, temporal
proximity between the protected activity and the subsequent
adverse employment action does not suffice to show causation.”
Drago, 453 F.3d at 1308. Sumbak argues that unlike the plaintiff in
Drago, he has “multiple issues” that were “days and weeks in
proximity [to the protected conduct] respectively, not ‘three and
one-half months.’” But he fails to specify to which issues he is
referring, what the protected conduct was, what adverse actions
are at issue, or how the district court’s determination was plainly
erroneous. Hence, we conclude that he has abandoned any
challenge to this issue. Sapuppo, 739 F.3d at 681; Singh v. U.S. Att’y
Gen., 561 F.3d 1275, 1278 (11th Cir.2009) (explaining that “simply
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stating that an issue exists, without further argument or discussion
[or specific citations to the record], constitutes abandonment of
that issue and precludes our considering the issue on appeal”
(quotation marks omitted)).
Even assuming, arguendo, that Sumbak did not abandon his
retaliation claim, he still failed to show that the district court’s
ruling was plainly erroneous. To establish a prima facie case of
retaliation, a plaintiff must show that: (1) he engaged in a
statutorily protected activity; (2) he suffered a materially adverse
employment action; and (3) that the adverse action was causally
related to the protected activity. See Gogel v. Kia Motors Mfg. of
Georgia, Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc). Here,
the only instance of protected conduct that Sumbak did not
abandon or concede—filing his EEOC charge—took place after he
received a “P” rating and after he was denied overtime. Under our
precedent, “the plaintiff must generally show that the decision
maker was aware of the protected conduct at the time of the
adverse employment action,” which Sumbak failed to do here.
Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th
Cir. 2000). Therefore, the district court did not plainly err by
holding that Sumbak failed to show sufficient evidence of causation
when the adverse employment actions occurred before Sumbak’s
protected activity and he provided no other evidence of causation
beyond temporal proximity. See id.; Drago, 453 F.3d at 1308(holding that “in a retaliation case, when an employer
contemplates an adverse employment action before an employee
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engages in protected activity, temporal proximity between the
protected activity and the subsequent adverse employment action
does not suffice to show causation.”).
C. Hostile Work Environment
Finally, Sumbak contends that the district court erred in
concluding that his hostile work environment claim was barred
because it did not relate to his EEOC charge. He maintains that
given his allegations about Eaton’s failure to promote him, his
performance review, and refusal of overtime, “[a]ny rational
person subjected to such systemic behavior at work would feel that
[the] environment was hostile.”
Before filing a Title VII action, a plaintiff must file a charge
with the EEOC. Gregory v. Ga. Dep’t of Hum. Res., 355 F.3d 1277,
1279 (11th Cir. 2004). We have noted that “judicial claims are
allowed if they amplify, clarify, or more clearly focus the
allegations in the EEOC complaint,” but “allegations of new acts of
discrimination are inappropriate.” Id. at 1279–80 (quotation
omitted). We are generally reluctant to allow technicalities to bar
Title VII claims and have cautioned that “the scope of an EEOC
complaint should not be strictly interpreted.” Id. at 1280(quotation omitted). Thus, the question is whether the allegations
in the complaint are “like or related to, or grew out of, the
allegations contained in [the] EEOC charge.” Id.In his EEOC charge, Sumbak alleged as follows:
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I began working for the employer on December 1,
2000, as an Assembly Tech. In 2012, I transferred to
the [Smyrna] location. My most recent position was
Bus Layered Lead. On February 26, 2018, I received
a P-rating on my annual review which resulted in me
not being promoted to a Grade 40. Also, in 2016, I
requested and was denied a transfer to another
location in Austin, Texas. On March 26, 2018, I was
removed from my job and replaced by a recently
hired less qualified White male. I am presently
performing odd jobs in the plant and I am no longer
able to work overtime.
I believe that I have been discriminated against
because of my race (African-American), and national
origin African (Sudanese), in violation of Title VII of
the Civil Rights Act of 1964, as amended.
Nothing in Sumbak’s EEOC charge mentioned anything about his
coworkers refusing to help him with tasks or treating him unfairly,
which was the basis of Sumbak’s hostile work environment claim.
Accordingly, there was no plain error in the district court’s
conclusion that the hostile work environment claim was not
presented to the EEOC, and that the claim could not reasonably be
expected to grow out of the EEOC charge. Gregory, 355 F.3d at
1280.
AFFIRMED.