Mr. Charles White, Jr. v. John E. Potter

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 7, 2006
No. 06-12573 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00130-CV-JEC-1
CHARLES WHITE, JR.,
Plaintiff-Appellant,
versus
JOHN E. POTTER, Postmaster General,
United States Postal Service,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 7, 2006)
Before BLACK, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
Charles White, Jr. appeals the judgment of the district court after a bench-
trial finding that he failed to establish that he was discriminated against based upon
his age. White also appeals the district court’s decision not to refer the case to a
special master’s hearing prior to trial, the district court’s decision to conduct a non-
jury trial, and the district court’s dismissal of his retaliation claim at summary
judgment.
White, born in 1944, has been employed by the United States Postal Service
since September 1969. In 1990, he began working at the North Metro mail
processing facility in Duluth, Georgia, and, by 1993, had been promoted to
Manager of Maintenance Operations (“MMO”), a position that included a pay
grade of EAS-20. In November 1998, another MMO position became available at
the Crown Road mail processing facility with a higher pay grade of EAS-22.
White applied for the position and was rated qualified for the vacancy.
Jimmy Davenport was the Selecting Official for the Crown Road MMO
vacancy, and his duties included reviewing the applications referred to him by a
screening panel, conducting interviews of candidates, and recommending one
candidate for selection. Davenport had known White since 1990 when he had been
White’s immediate supervisor. George Martin, Davenport’s immediate supervisor
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and the lead plant manager for the Atlanta metropolitan area, was the Concurring
Official for the Crown Road MMO vacancy, and it was his responsibility to review
the selection by Davenport and, if he agreed, concur with the decision so as to
make it final.
The screening panel referred five applications to Davenport for review,
including White’s. Among the other applications was that of Sean Andrews, born
in 1964. Andrews had been a postal employee for 18 years and, at the time of his
application for the MMO vacancy, was an MMO in Albuquerque, New Mexico,
with a pay grade of EAS-18. Through his participation in the National
Maintenance Leadership Program (“NMLP”), however, a program to identify
potential candidates for succession into maintenance department leadership
positions, Andrews was detailed to an MMO position in New Jersey with a pay
grade of EAS-23 at the time of his consideration for the Crown Road position.
Davenport conducted interviews of both White and Andrews and
considered them close candidates with equal credentials. Subsequently, Davenport
selected White for the Crown Road vacancy because the position had been open
for six months and White was a local candidate who could fill the position quickly.
Davenport then delivered his selection, along with the applications of all five
candidates, to Martin for review. Martin did not know White or Andrews and also
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did not know their respective ages. During the time period in which Martin was
reviewing Davenport’s decision, he spoke with the plant manager of the North
Metro facility, David Williams, as part of a normal daily discussion. During this
discussion, Martin asked about White, and the plant manager told Martin he was
impressed with White’s analytical abilities, but not his ability to supervise his
subordinates. Several weeks after having made his recommendation and
subsequent to Martin’s discussion with the North Metro plant manager, Davenport
discussed the selection with Martin. Davenport sensed that Martin wanted him to
reconsider Andrews for the position. After further consideration, Davenport
selected Andrews and Martin concurred.
When White learned he had not received the position in May 1999, he
requested informal counseling for, among other things, age discrimination. In
2000, White was upgraded to the EAS-22 pay grade. He went on disability in
2001 and retired in 2002.
On January 16, 2003, White filed a complaint alleging employment
discrimination for race and color and retaliation in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”),
and age discrimination in violation of the Age Discrimination in Employment Act,
29 U.S.C. §§ 621 et seq. (“ADEA”). On September 24, 2004, the district court
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adopted a report and recommendation from the magistrate judge granting the
Postal Service’s motion for summary judgment as to White’s claim of retaliation.
White’s retaliation claim stemmed from his actions on behalf of another employee
at the North Metro facility, Earl Blevins. According to White, Blevins was at some
point removed from his position as Manager of Maintenance, but returned in 1997
after an EEO action. Upon his return, White alleges that Blevins was harassed by
Williams. White argues that he undertook efforts to help Blevins keep his job and
opposed efforts by Williams to fire older employees who were near retirement.
White also alleges that he assisted Blevins with an EEO charge by providing him
material support, such as supplying reports that showed the facility was performing
well and speaking up for him at meetings. White claims that these actions resulted
in his being retaliated against by not being selected for the MMO position at the
Crown Road facility.
On October 13, 2005, the district court issued a notice of trial. White then
objected to the district court’s proceeding without first ordering that a special
master’s hearing be held. This objection was overruled. White later voluntarily
withdrew his claims based on race and color. Prior to the commencement of the
trial on the remaining issue of age discrimination, the Postal Service noted that
White’s dismissal of his race and color claims rendered moot his demand for a jury
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trial. The district court agreed and proceeded with a bench trial. On March 30,
2006, the district court entered its Order and opinion granting judgment in favor of
the Postmaster General. White now appeals.
II.
On appeal from a district court order after a bench trial, we review the
district court’s conclusions of law de novo and its findings of fact for clear error.
HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005).
This court reviews the district court’s exercise of discretion in declining to refer the
case for a special master’s hearing under the abuse of discretion standard. Brown
v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556 n.1 (11th Cir.
1990) (“[T]he standard of review in discretionary situations [is] abuse of
discretion.”). A district court’s order on a motion for summary judgment is
reviewed de novo. See Carter v. Galloway, 352 F.3d 1346, 1348 (11th Cir. 2003)
(“[A]pplying the same legal standards that bound the district court.”); see also
Nunnally v. Equifax Information Services, LLC, 451 F.3d 768 (11th Cir. 2006).
III.
First, White argues that the district court erred in finding that he failed to
prove age discrimination. The district court concluded that the decision to promote
Andrews, instead of White, was not motivated in any respect by considerations of
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Andrew’s or White’s age. After careful review of the record as a whole, we agree
with the district court’s conclusion that there was insufficient factual evidence to
prove a claim of age discrimination.
Second, White argues that the district court erred in declining to refer the
case for a special master’s hearing before trial. White argues that he was
prejudiced by the district court’s decision and contends that such referral was
required because of the district court’s reference to Internal Operating Procedure’s
for the Northern District of Georgia (“IOP”) section 905-5 in its order dated
November 4, 2004 and because of IOP section 920-2(a).1 IOP section 905-5,
however, is inapplicable to this case because that provision allows for trial before a
magistrate judge only if the parties consent. As stated in White’s own brief, the
parties in this action did not consent to trial before a magistrate judge. With regard
to IOP section 920-2(a), this provision applies only to cases that are brought
pursuant to 42 U.S.C. § 2000e-2 (Title VII of the Civil Rights Act of 1964). As
White’s claim for discrimination is brought against an agency of the United States,
however, it is brought pursuant to 48 U.S.C. § 2000e-16. Furthermore, even if IOP
section 920-2(a) were applicable here, part (b) of the provision states that “[a]n
individual judge may withdraw any reference made under this rule at any time
1
It appears that though White did not specifically cite to IOP 920-2(a) in his brief, he
quotes from this provision and incorrectly attributes it to IOP 905-5.
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when in the judge’s discretion the issues are unique, novel, or such withdrawal
would otherwise be in the public interest.” Finally, White withdrew his Title VII
claims prior to trial. As such, we conclude that the district court did not abuse its
discretion in refusing to refer the case to a special master.
Third, White argues that the district court improperly conducted a bench trial
on the issue of age discrimination because the Postal Service had not, prior to the
morning of trial, contested White’s right to place this issue before a jury. As an
initial matter, it appears that the Postmaster General had objected to White’s
request to place the age discrimination issue before a jury prior to trial in written
objections on November 28, 2005. Nevertheless, White voluntarily withdrew his
Title VII race and color claims shortly before the commencement of the trial,
leaving only the age discrimination claim. As there is no right to trial by jury for
federal employees bringing suit under the ADEA, the district court correctly
conducted a bench trial. See Lehman v. Nakshian, 453 U.S. 156 (1981).
Finally, White argues that the district court erred in dismissing his retaliation
claim at summary judgment. To establish a prima facie case of retaliation under
Title VII, a plaintiff must prove (1) that he participated in an activity protected by
Title VII, (2) that he suffered an adverse action,2 and (3) that there is a causal
2
The Supreme Court recently addressed the retaliatory act element of a Title VII
retaliation claim in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. —, 126 S.Ct. 2405, 165
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connection between the participation in the protected activity and the adverse
decision. Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir.
2001). White alleges that he reasonably believed that he was engaged in protected
activity and that there was a causal connection between the protected activity and
his not receiving the promotion at issue here. After careful review of the record as
a whole, we conclude that there was insufficient factual evidence to support
White’s claim of retaliation.
Accordingly, we AFFIRM.
L.Ed.2d 345 (2006). The Court held that “the scope of [Title VII’s] anti-retaliation provision
extends beyond workplace-related or employment-related retaliatory acts and harm” and
therefore, “is not limited to discriminatory actions that affect the terms and conditions of
employment.” Id. at 2412-14.
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