James R. Dockery v. Jim Nicholson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 7, 2006
No. 05-13569
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01141-CV-CAP-1
JAMES R. DOCKERY,
Plaintiff-Appellant,
versus
JIM NICHOLSON,
Secretary, Department of Veterans Affairs,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 7, 2006)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
James R. Dockery, a white male with a leg impairment, appeals the grant of
summary judgment in favor of the Department of Veterans Affairs (‘VA”) in his
pro se action alleging employment discrimination and hostile work environment,
brought under Title VII, 42 U.S.C. § 2000e-16; and the Rehabilitation Act, 29
U.S.C. § 791. On appeal, Dockery, pro se, argues that the district court ignored
evidence presented by him in discovery and that the VA was not entitled to
summary judgment. We affirm the judgment of the district court.
In September 1998, Dockery was hired by the VA as a loan specialist in the
home loan office for a one-year probationary period.1 In January 1999, Dockery
resigned after the VA presented him with a letter proposing his termination. While
Dockery was employed at the VA, the office was moving to a new location and as
a result employees were involved with moving and assembling furniture. Dockery
suffered from severe pain in his upper leg and groin and his doctor provided the
VA human resources office with a letter listing certain physical activities that
Dockery should not perform.
He contends that Carolyn Anderson, his supervisor, ignored the severity of
his injury by requiring him to move and assemble furniture. He further claims
that, contrary to Anderson’s EEOC testimony, furniture assembly continued for
more than two weeks and that he had to spend more time than the other employees
1
The VA and Dockery dispute whether he was hired on September 27 or 28 of 1998.
This factual dispute is immaterial for the purposes of this holding.
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assembling furniture. In addition, Dockery alleges instances of malicious behavior
on Anderson’s part such as: pulling Dockery to the floor by his wrist when he
complained about the furniture moving and assembly; and making demeaning
statements about his pain. He contends that Anderson, who is of Black and
Hispanic descent, subjected him to such treatment in part because of his race.
Thus, he argues, the district court erred when it found that he did not
establish a prima facie case for either his hostile work environment claim or his
employment discrimination claim.
I.
We review a district court’s grant of summary judgment de novo. Patrick v.
Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000). We construe the
facts and draw all reasonable inferences in the light most favorable to the
non-moving party. HCA Health Services of Georgia, Inc. v. Employers Health Ins.
Co., 240 F.3d 982, 991 (11th Cir. 2001). Fed.R.Civ.P. 56(c) states that summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
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enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). When faced with a “properly
supported motion for summary judgment, [the nonmoving party] must come
forward with specific factual evidence, presenting more than mere allegations.”
Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997).2
A. Discrimination
Title VII makes it an unlawful employment practice for an employer to
discharge any individual because of his race. See Bass v. Board of County Com'rs,
Orange County, Fla., 256 F.3d 1095, 1103 (11th Cir. 2001); see also 42 U.S.C.
§ 2000e-2(a). “In reverse discrimination suits, plaintiffs must establish . . . :
[(]1) that he belongs to a class; (2) that he applied for and was qualified for a job;
(3) that he was rejected for the job; and (4) that the job was filled by a minority
group member.” Shealy v. City of Albany, 89 F.3d 804, 805 (11th Cir. 1996).
The United States is not an employer within the meaning of the ADA. 42
U.S.C. § 12111(5)(B)(i). The United States, therefore, is not a covered entity
under the ADA. 42 U.S.C. § 12111(2). Accordingly, the Secretary of the VA may
2
We note that the district court found that Dockery failed to properly cite to
evidence in the record to support his position and granted summary judgment, in part,
for this reason. Although the VA urges us to affirm for this reason, we decline to do
so because it is not necessary in light of Dockery’s failure, in any event, to present
evidence sufficient to create a genuine issue of material fact under Rule 56.
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not be held liable for a violation of the ADA. The Secretary could, however, be
held liable under the Rehabilitation Act. Mullins v. Crowell, 228 F.3d 1305, 1313
(11th Cir. Cir. 200). We have observed that the Rehabilitation Act expressly
adopts the same liability standards as the ADA, and, therefore, whether the
Secretary would be liable under the ADA is relevant to Dockery’s Rehabilitation
Act claim. See 29 U.S.C. § 791(g); Mullins, 228 F.3d at 1313.
The Supreme Court uses the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973), to evaluate claims of indirect evidence of discrimination in employment
actions. See also Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,
1193 (11th Cir. 2004) (applying the McDonnell Douglas burden-shifting test to a
disability claim). First, the plaintiff carries the burden of establishing a prima facie
case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at
1824. “Once a plaintiff has established a prima facie case, the employer then has
an opportunity to articulate a legitimate, non-retaliatory reason for the challenged
employment action.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th
Cir. 2001). Once the employer proffers a legitimate, non-discriminatory reason, in
order to survive summary judgment, the employee must “proffer sufficient
evidence to create a genuine issue of material fact regarding whether each of the
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defendant employer’s articulated reasons [are] pretextual.” Chapman v. AI
Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000). “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 remains on the plaintiff.”
Pennington, 261 F.3d at 1266.
To establish the defendant’s proffered reason is pretextual, the “plaintiff
must show “both that the reason was false, and that discrimination was the real
reason.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 512 n.4, 113 S.Ct. 2742,
2750 n.4, 125 L.Ed.2d 407 (1993). “[T]he factfinder’s rejection of the employer’s
legitimate, nondiscriminatory reason for its action does not compel judgment for
the plaintiff.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 146, 120
S.Ct. 2097, 2108, 147 L.Ed.2d 105 (2000) (emphasis in original). The Reeves
court noted that “the factfinder must believe the plaintiff’s explanation of
intentional discrimination,” but “it is permissible for the trier of fact to infer the
ultimate fact of discrimination from the falsity of the employer’s explanation. . . .
together with the elements of the prima facie case, suffice to show intentional
discrimination.” Reeves, 530 U.S. at 147, 120 S.Ct. at 2108.
Upon review of the record, and consideration of the parties’ briefs, we find
no reversible error. Even assuming arguendo that Dockery established a prima
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facie case for either race or disability discrimination, we find that he did not show
that the non-discriminatory reason proffered by the VA – his questionable
workplace temperament – was false.
We note that while Dockery alleges that Anderson mistreated him to force
him to leave the VA, the evidence reveals that she did not ultimately decide to
terminate him, and, in fact, merely recommended a reprimand. Instead,
Anderson’s superiors decided to terminate his employment because his
unprofessional conduct at the workplace. As the record shows, colleagues,
veterans and financial institutions all complained to Anderson that he would often
behave in an excessively emotional and occasionally aggressive manner toward
them. Such behavior persisted even though Anderson had previously admonished
Dockery for his conduct. Dockery offers no evidence that this behavior did not
occur.
Therefore, Dockery failed to present or cite to sufficient evidence to show
that the VA’s legitimate, non-discriminatory reason for his termination was
pretextual, and, accordingly, we affirm.
B. Hostile Work Environment
The employee has the burden of proving a hostile work environment.
Edwards v. Wallace Cmty. College, 49 F.3d 1517, 1521 (11th Cir. 1995). To
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establish a prima facie case for a hostile work environment claim, a plaintiff must
demonstrate 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; (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. 2002). The employee should present concrete evidence
in the form of specific facts, not just conclusory allegations and assertions. See
Earley v. Champion Internat’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
Establishing that the harassing conduct was sufficiently severe or pervasive
to alter the terms and conditions of employment has 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 an employee’s
terms or conditions of employment: (1) the frequency of the conduct; (2) the
severity of the conduct; (3) whether the conduct was physically threatening or
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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. Teasing, offhand comments, and isolated
incidents (unless extreme) will not amount to discriminatory changes in the terms
and conditions of employment. Id. at 1245.
Upon review of the record, and consideration of Dockery’s brief, we find no
reversible error. As an initial matter, although the district court: (1) assumed,
implicitly, that Dockery belonged to a protected group, had been subjected to
unwelcome harassment based on a protected characteristic, and that the VA was
responsible for his environment; and (2) did not specifically address the Mendoza
factors with respect to the severity of Anderson’s conduct, an examination of the
record indicates that summary judgment was proper.
Evidence supported an inference that: (1) furniture assembly was required,
and Dockery spent more time at it than some other employees; (2) Anderson
grabbed his arm at one point; (3) Anderson wanted to get rid of him; and (4)
Anderson made demeaning comments to him regarding his disability. There is no
indication how these occurrences interfered with Dockery’s job performance, if at
all. The evidence also makes clear that, on several occasions, Anderson
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immediately made adjustments to Dockery’s work space to accommodate his leg
impairment. Looking at the totality of the circumstances, we find that Dockery’s
allegations, even if true, do not meet this Circuit’s standards for establishing the
existence of a hostile work environment that was sufficiently severe or persuasive
to alter the terms and conditions of plaintiff's employment.
Because Dockery has offered no evidence to suggest that the VA’s proffered
reason for his termination is pretextual and because he has not raised a genuine
issue of material fact concerning his hostile work environment claim, we affirm the
decision of the district court.
AFFIRMED.3
3
Dockery’s motion to file a reply brief out of time is DENIED.
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