Ajibola Laosebikan v. Coca-Cola Company

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13174 JANUARY 31, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 01-03040-CV-RWS-1
AJIBOLA LAOSEBIKAN,
Plaintiff-Appellant,
versus
COCA-COLA COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 31, 2006)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
This civil rights action has been brought under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of
1991, 42 U.S.C. § 1981, against the Coca-Cola Company (“Coca-Cola” or the
“Company”) by a former employee, Ajibola Laosebikan (“Appellant”). He claims
that Coca-Cola discriminated against him on account of his race, black, on several
occasions. The district court found no merit in his claims of discrimination and
gave the Company summary judgment. Representing himself,1 he now appeals.2
We affirm
I.
Appellant contends that the evidence before the district court established (for
summary judgment purposes) several incidents of disparate treatment – in
particular, the Company’s refusal to promote him to four different positions3 and
its conduct of a 1994 job-performance evaluation. Appellant also contends that he
was subjected to a racially hostile work environment and that the Company’s
1
Appellant and his lawyers parted ways before the district court granted the Company’s
motion for summary judgment.
2
In his brief, Appellant challenges (1) the entry of summary judgment, (2) the district
court’s order permitting the Company to conduct additional discovery concerning its Systems
Support Specialist IV position, and (3) the court’s denial of his motion to reconsider the granting
of summary judgment. We reject grounds (2) and (3) as meritless and therefore do not address
them in this opinion. In considering Appellant’s challenge to the summary judgment, we view
the evidence in the record in the light most favorable to Appellant, giving him the benefit of all
credibility choices and any inferences that may reasonably be drawn in his favor.
3
As we observe infra, the refusal to promote claim regarding two of the positions relates
to the timeliness of the promotion.
2
termination of his employment was motivated by an intent to discriminate. The
termination claim is presented here as a claim of retaliation for his engagement in
activity protected under Title VII.
Title VII of the Civil Rights Act of 1964 forbids workplace racial
discrimination. 42 U.S.C. § 2000e-2(a). Section 1981 prohibits intentional racial
discrimination in the making and enforcement of private contracts, including
employment contracts. 42 U.S.C. § 1981. Both Title VII and § 1981 have the
same requirements of proof and use the same analytical framework. Standard
v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998). Accordingly, we
apply cases from both bodies of law interchangeably. Shields v. Fort James Corp.,
305 F.3d 1280, 1282 (11th Cir. 2002). With these principles in mind, we turn to
Appellant’s refusal-to-promote claims.
A.
Appellant contends that, of the four positions at issue, he was denied a
promotion to two: Client Interface Tool Leadership Role and ISO Manager II. He
concedes that he obtained a promotion to the other two positions, Systems Support
Specialist III and IV, but alleges that the Company was unduly slow – because of
his race – in granting the promotion.
To establish a prima facie case of discrimination for failure to promote, a
3
plaintiff must prove: (1) that he was a member of a protected class; (2) that he was
qualified for and applied for the position; (3) that he was rejected; and (4) that
others who were not members of the protected class were hired. E.E.O.C. v. Joe's
Stone Crabs, 296 F.3d 1265, 1273 (11th Cir. 2002).
A plaintiff who establishes a prima facie case raises a presumption that the
employer illegally discriminated against him. The employer then has the burden of
articulating legitimate, nondiscriminatory reasons for the adverse employment
action. McDonnell Douglas v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824,
36 L.Ed.2d 668 (1973). If the employer fails to produce such evidence, the
plaintiff is entitled to judgment. St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
509, 113 S.Ct. 2742, 2748, 125 L.Ed.2d 407 (1993). On the other hand, if the
employer articulates a legitimate reason for its action, the presumption of
discrimination disappears. Combs v. Plantation Patterns, 106 F.3d 1519, 1528
(11th Cir. 1997). The plaintiff must produce sufficient evidence to permit the fact-
finder to conclude that the employer’s stated reasons were not the real reasons for
the employment decision. St. Mary’s, 509 U.S. at 511, 113 S.Ct. at 2749. A
plaintiff cannot prove pretext simply by showing that he was better qualified than
the individual who received the position he wanted. Denney v. City of Albany,
247 F.3d 1172, 1187 (11th Cir. 2001). Disparities in qualifications are not enough
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in and of themselves to demonstrate discriminatory intent unless those disparities
are so apparent as virtually to “jump off the page and slap you in the face.” Id.We now consider the four positions Appellant cites.
Client Interface Tool Leadership Role
Appellant complains that this position was given to a white woman who
thereafter received many promotions. His problem is that when faced with the
Company’s motion for summary judgment, he did not contend that the Company
had discriminated against him in awarding the position to the woman. Appellant
therefore abandoned this claim, Allstate Insurance Company v. Swann, 27 F.3d
1539, 1544 (11th Cir. 1994), and we do not consider it.
ISO Manager II
Appellant asserts that Coca-Cola discriminated against him when it declined
to interview him for this position and, instead, awarded it without an interview to
Richard Hoefs, who, according to Appellant, was incompetent, unskilled as a
manager, and had a history of unlawful discrimination.
The requirements for this promotion included one to three-years’
management experience and effective project management skills. At the time the
Company made the challenged decision, Appellant had no recent management
experience and had managed only one project. Hoefs, on the other hand, had been
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a manager for four years and had almost fourteen years of project management
experience. Assuming that Appellant was qualified for the position and otherwise
made out a prima facie case of discrimination, it is clear that Hoefs was well
qualified and, in fact, was demonstrably more qualified than Appellant. In short,
the Company presented a legitimate non-discriminatory reason for its decision, and
Appellant presented nothing (but argument) to show that awarding the position to
Hoefs was a pretext for discrimination.
Systems Support Specialist III
Appellant contends that Coca-Cola discriminated against him because of his
race when it promoted Margot Beebe, Duncan Gibbs, and Randy Meyer to the
Systems Support Specialist III position before it promoted him. In other words, the
delay in promoting Appellant was motivated by an intent to discriminate.
Beebe. Beebe received this promotion in 1993. Appellant admitted that he
was not qualified for the position in 1995 or 1996 because he lacked the requisite
project management experience. If this was not a sufficient reason for denying this
claim, the fact that the claim was time-barred is.4
4
The district court held that Appellant’s Title VII claims were timely filed to the extent
they accrued on or after June 26, 1998 – 180 days before the commencement of the Ingram class
action, which Appellant joined – and that his § 1981 claims were timely filed to the extent they
accrued on or after December 20, 1995 – four years before he joined the class action. Neither
party challenges these holdings.
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Gibbs. Appellant contends Gibbs’s promotion was the result of a
conspiracy involving Hoefs to discriminate against him. The record shows,
however, that Hoefs had no involvement in Gibbs’s promotion; hence, no
conspiracy and the only theory Appellant advanced for this claim collapses.
Appellant complains of Gibbs’s salary, but does so only by means of salary
documents Appellant filed after the magistrate judge issued his report and
recommendation to the district court. The district court properly refused to
consider the documents, as they were not before the court. In sum, Appellant
failed to establish a prima facie case concerning Gibbs’s promotion.
Meyer. Appellant became a Systems Support Specialist III in July 1997.
Meyer became a Systems Support Specialist III approximately one and one-half
years later, when Coca-Cola hired him at that position. Appellant never contended
that Meyer was not qualified for the position. He complains only that Meyer
allegedly received higher salary. He supports this allegation by referring to
documents concerning Meyer’s purported salary that he filed only after the
magistrate judge’s report and recommendation had issued. As in the Gibbs
situation, the documents were not before the court; thus, the court did not err in
refusing to consider them.
Systems Support Specialist IV
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Appellant contends that Coca-Cola discriminated against him when it
promoted James Davis, Roy Gray, Randy Klein, Margot Beebe, and William
Hangar to the Systems Support Specialist IV position. In responding to the
Company’s motion for summary judgment, however, Appellant said nothing in
support of the Beebe and Hangar claims. The court therefore considered them
abandoned. In his brief to us, he does not explicitly challenge the district court’s
ruling.
Gray. The Systems Support Specialist IV position that Gray received was
specifically posted. Appellant admitted that he did not apply for the job. It is true
that a nonapplicant may nonetheless establish a prima facie case by showing that
he refrained from applying due to a justifiable belief that the employer's
discriminatory practices made application a futile gesture. E.E.O.C. v. Joe’s Stone
Crab, 296 F.3d 1265, 1274 (11th Cir. 2002). Appellant, however, has not
attempted such a showing. Consequently, he failed to establish a prima facie case.
Even if we were to assume that he had, Coca-Cola proffered a nondiscriminatory
explanation for hiring Gray: Gray’s extensive database systems management
experience and Appellant’s lack of meaningful recent experience in that area. And
Appellant has not shown that this explanation was a pretext for discrimination.
Davis. Coca-Cola reclassified Davis from Systems Support Specialist II to
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Systems Support Specialist IV in July 1997. Davis was an acknowledged CICS
expert. CICS was an important functional area in the Company’s IS department,
resulting in generally higher job grades and a greater likelihood of promotion than
most other functional areas. The upgrade Davis received was based, at least in part
on his CICS skills. Even if we assume that Appellant made out a prima facie case
in this instance, he claim cannot succeed because he failed to present any
meaningful evidence to establish pretext.
Klein. Klein began working for Coca-Cola two years before Appellant was
hired. The Company “promoted” Klein to Systems Support Specialist III at the
same time as it promoted Appellant to that position using the same reclassification
process. Klein was promoted to Systems Support Specialist IV three months later.
Appellant failed to present a prima facie case that Klein was treated more favorably
that he was.
Summarizing, we hold that the district court properly granted Coca-Cola
summary judgment on Appellant’s “promotion” claims. We turn then to
Appellant’s claim that the Company, in evaluating his job performance for 1994,
discriminated against him due to his race by downgrading him purportedly for
communication problems.
Unfortunately for Appellant, in responding to Coca-Cola’s motion for
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summary judgment, he did not contend that the Company’s adverse
evaluation was the product of racial discrimination. In other words, he
abandoned the claim’ thus, it is not before us. Moreover, it is time-barred.
See supra note 4.
B.
In the district court, Appellant claimed that Coca-Cola terminated his
employment because he is black. In his brief, he contends that his “former Counsel
misrepresented the evidence and he should not have stated or raise (sic) an
argument that [Appellant] was terminated because of his race.” We consider this
statement to mean that Appellant abandons any claim that his termination was
discriminatory. In lieu of that claim, Appellant argues in his brief that the
Company terminated his employment in retaliation for his participation in the
Ingram class action.
To establish a prima facie case of retaliation, the plaintiff must show that (1)
he engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there was some causal relationship between the two
events. Holifield, 115 F.3d at 1566. Protected expression involves opposing an
employment practice made unlawful under Title VII or charging, testifying,
assisting, or participating in a Title VII investigation, proceeding, or hearing. 42
10
U.S.C. § 2000e-3(a). Statutorily protected expression includes complaining to
superiors about harassment in the work place, lodging complaints with the EEOC
and participating in discrimination-based lawsuit. Pipkins v. City of Temple Trace,
Fla., 267 F.3d 1197, 1201 (11th Cir. 2001). To establish the causal link
requirement, the plaintiff merely has to prove that the protected activity and the
negative employment action are not completely unrelated. Holifield, 115 F.3d at
1566. The plaintiff must at least establish that the employer was actually aware of
the protected expression at the time it took adverse employment action against the
plaintiff. Id.
Once the plaintiff has established a prima facie case, the burden shifts to the
employer to articulate a legitimate, nonretaliatory reason for the challenged
employment action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir. 2001). The ultimate burden of proving by a preponderance of the evidence
that the reason provided by the employer is a pretext for prohibited, retaliatory
conduct, however, remains with the plaintiff. Id.It is not the job of the federal courts to second-guess employer decisions as a
kind of super-personnel department. E.E.O.C. v. Total System Services, 221 F.3d
1171, 1176 (11th Cir. 2000). Courts are not concerned with whether an
employment decision is prudent or fair, but only with whether it was motivated by
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unlawful animus. Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1361
(11th Cir. 1999). An employer is entitled to rely on its good-faith belief that the
employee has misbehaved in the workplace. Total System Services, 221 F.3d at
1176.
The district court concluded that Appellant presented a prima facie case of
retaliation and that Coca-Cola offered a legitimate, nonretaliatory explanation for
its termination of his employment, to-wit: its good-faith belief, following an
investigation, that Appellant had threatened his supervisor, Hoefs. The
investigators heard from multiple witnesses who claimed to have heard him
Appellant yelling at Hoefs, and they listened to Appellant’s tape recording of the
event, a recording they said did not support Appellant’s benign version of the
event. The Company said that it terminated Appellant based on the findings of
this investigation. Appellant has not shown that this explanation was a pretext for
retaliation; thus, Coca-Cola was entitled to summary judgment on his retaliation
claim.
C.
Appellant contends that he presented a triable claim for a race-based hostile
work environment, pointing to the following incidents: (1) Hoefs and Howard
conspired secretly to create documentation to terminate Appellant’s employment,
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documentation “of which [Appellant] has no knowledge about;” (2) Hoefs tracked
Appellant’s time although he was not an hourly employee; (3) Hoefs conspired
with other employees, telling them to lie about not wanting to work with
Appellant; (4) he was denied yearly training in 1996, the only employee in the
department who did not receive such training; (5) Hoefs reprimanded him for
making long-distance calls to Nigeria, but did not similarly reprimand other
employees who made long-distance calls; (6) Hoefs assigned him to a lower grade
job after he complained of discrimination; (7) Hoefs verbally assaulted him in the
presence of others; (8) Hoefs made a baseless threat charge; and (9) Hoefs harassed
him while he was at home on suspension.
The employee has the burden of proving a hostile work environment.
Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995). To
establish a hostile work environment, he must demonstrate five things, that (1) he
belongs to a protected group; (2) he has been subjected to unwelcome harassment;
(3) the harassment was based on the protected characteristic, here race; (4) the
harassment was sufficiently severe or pervasive to alter the terms and conditions of
employment and thus create a discriminatorily abusive work environment; and (5)
the employer is responsible for that environment under a theory of either direct or
vicarious liability. Miller v. Kenworth of Dothan, 277 F.3d 1269, 1275 (11th Cir.
13
2002). In prosecuting such claim, the employee should present concrete evidence
in the form of specific facts, not just conclusory allegations and assertions. Earley
v. Champion Internat’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (disparate
treatment case).
These hostile work environment claims contain both subjective and
objective components. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999) (en banc). The employee must personally perceive the harassment as severe
or pervasive. Id. Additionally, the environment must be one that a reasonable
person in the employee’s position would find hostile or abusive. Id. Four factors
are important in analyzing whether harassment objectively altered the terms and
conditions of the employment: (1) the frequency of the conduct; (2) the severity of
the conduct; (3) whether the conduct was physically threatening or humiliating, or
a mere offensive utterance; and (4) whether the conduct unreasonably interfered
with the employee’s job performance. Id. Courts must consider the alleged
conduct in context and cumulatively, looking at the totality of the circumstances.
Id. at 1242.
Title VII, however, is not a federal civility code. Mendoza, 195 F.3d at
1245. In a race-based case, harassing statements and conduct must be of a racial
nature before they can be considered in determining whether the severe or
14
pervasive requirement is met. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583
(11th Cir. 2000) (sexual harassment decision). Accordingly, innocuous or boorish
statements or other behavior that does not relate to the race of the actor or the
employee do not count. Id. Additionally, teasing, offhand comments, and isolated
incidents (unless extreme) will not amount to discriminatory changes in the terms
and conditions of employment. Mendoza, 195 F.3d at 1245.
Appellant failed to present sufficient evidence to make out a prima facie case
of hostile work environment. The only incident of an objectively racial nature was
Hoefs’s “black, Nigerian boy” remark.5 Hoefs may have expressed an intent to
prepare a development plan with which Appellant could not live, but Appellant
admitted that the plan Hoefs actually prepared had reasonable objectives. Virtually
all of the complained-of incidents are entirely devoid of racial content. Appellant
has not demonstrated how the incidents interfered with his job performance. Even
if a jury believed that all of the incidents occurred, it could not reasonably find that
they had been so severe and pervasive as to alter the terms and conditions of
Appellant’s employment. Given this state of the record, the district court was
obliged to grant Coca-Cola summary judgment.
5
Hoefs denied making this remark. Coca-Cola has never conceded that this
remark, if made, was about Appellant. The Company, however, has not identified any other
black, Nigerian male who worked under Hoefs’s supervision. Accordingly, if a jury believed
that Hoefs made the remark, it reasonably could believe that it referred to Appellant.
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II.
Appellant contends that the district court erred in granting Coca-Cola
summary judgment on his state law negligence claims. His problem here is that he
did not defend these claims in responding to the Company’s motion for summary
judgment. Because Appellant did not pursue the claim in the district court, the
court did not consider it. We deem the claim abandoned.
AFFIRMED.
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