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Burch v. Coca-Cola Bottling Co. United, Inc.

United States District Court, N.D. Alabama, Southern Division

September 30, 2014

RYAN D. BURCH, Plaintiff,

Page 1177

For Ryan D Burch, Plaintiff: Thomas F Talty, THOMAS TALTY & ASSOCIATES, Birmingham, AL.

For Coca-Cola Bottling Company United Inc, Defendant: Jay D St Clair, LEAD ATTORNEY, Brian O Noble, LITTLER MENDELSON PC, Birmingham, AL.

Page 1178


VIRGINIA EMERSON HOPKINS, United States District Judge.


This employment discrimination case was filed on May 3, 2012, by the plaintiff, Ryan D. Burch, against the defendant, Coca-Cola Bottling Company United, Inc. The complaint alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. (Count One). It also alleges retaliation in violation of those same laws. (Count Two). Finally, the complaint alleges that the defendant is liable for the Alabama state law claim of negligent supervision, hiring, and training. (Count Three). All counts arise out of the plaintiff's employment with and eventual termination by the defendant.

On August 1, 2013, the defendant moved for summary judgment on all counts. (Doc. 31). On January 16, 2014, the magistrate issued a report and recommendation and recommended

that Coke United's motion for summary judgment against Burch with respect to his claims of race discrimination be GRANTED and Burch's race discrimination claims be DISMISSED WITH PREJUDICE. Because plaintiff has abandoned his state-law claim by failing to address it, and because there is no evidence to support the negligence claim set forth in the complaint, the magistrate judge further recommends that the motion be GRANTED as to the state-law negligence claim, and that that claim be DISMISSED WITH PREJUDICE. Because the plaintiff has failed to establish a causal link between any Title VII or § 1981 protected activities and his termination of employment, the magistrate judge RECOMMENDS that the defendant's motion for summary judgment as to plaintiff's retaliation claims be GRANTED, only with respect to plaintiff's termination claims, which should be DISMISSED WITH PREJUDICE. As to the motion for summary

Page 1179

judgment on the remaining claims that plaintiff was suspended for two days in retaliation for having complained of race discrimination, the court RECOMMENDS that the motion for summary judgment be GRANTED as to plaintiff's Title VII retaliation claim, as time-barred, but DENIED as to plaintiff's § 1981 claim.

(Doc. 50 at 29-30). Both the plaintiff and the defendant have filed objections to the recommendation. (Docs. 58 and 59). Those objections are now before this court.

For the reasons stated herein, the magistrate's recommendation is ADOPTED to the extent that it is consistent with this memorandum opinion, and to the extent to which no objections were made. To the extent that the objections are inconsistent with this opinion, they are OVERRULED. The magistrate's conclusion that questions of fact remain as to whether the plaintiff's suspension was in retaliation for his complaints of racial discrimination is not adopted. The defendant's objection to that conclusion is SUSTAINED. Summary Judgment will be GRANTED to the defendant by separate order.


A. Summary Judgment

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (" [S]ummary judgment is proper 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 a judgment as a matter of law." ) (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits -- or by the depositions, answers to interrogatories, and admissions on file -- it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at

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trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact -- that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce " significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

B. District Court Review of Report and Recommendation

After conducting a " careful and complete" review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) (" A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." ); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other grounds by Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)).[1] The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

A district judge " shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge " give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R& R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F.App'x 781, 784 (11th Cir. 2006).[2]

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" Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (" While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or abandoned by his failure to raise it on appeal to the district court." ). However, the district judge has discretion to consider or to decline to consider arguments that were not raised before the magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see also Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (" Thus, we answer the question left open in Stephens and hold that a district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge." ).

" Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. " This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410. Indeed, a contrary rule " would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Williams, 557 F.3d at 1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).


A. Unobjected-to Facts

The court finds that the following facts, which are set out in the recommendation, and to which no objection has been made, are not clearly erroneous:

The plaintiff, Ryan Burch, is African American. He was employed by defendant Coca-Cola Bottling Company United, Inc., (" Coke United" ) in 2007 as a route salesman. He was responsible for servicing vending machines by stocking them with food and drink products, collecting money from the machines, filling the machines with coins for making change, and keeping the machines clean. He would report to the Coke United plant at about 6:00 a.m. to clock in, and would then leave in a company truck to service the vending machines along an assigned route. He would return to the

Page 1182

Coke United plant after servicing the machines, turn in the money collected from the machines, and restock the truck for the next day's service. He would clock out after restocking his truck in the afternoon. He was paid for the time during which he was clocked in, minus 30 minutes per day, which was deducted for a lunch break. His pay was supplemented by a commission made on the sales from the machines he serviced.
Burch was first assigned to Route 35. He was trained by Justin DeMarco, a senior salesman, who is Caucasian, and was supervised by Mark Clinkscales, an area manager, who also is Caucasian. Clinkscales was supervised by David Lane, the operations manager. Lane reported to the general manager, Frank Park. Both Park and Lane also are Caucasian.
While working at Coke United, Burch filed an employment discrimination action against his former employer, PJ Cheese, in August 2009. Burch did not discuss it with anyone at Coke United except his aunt, who worked as benefits manager at the plant. Other employees, including Lane and Park, however, knew about the lawsuit.
While working on Route 35, prior to 2010, Burch did not receive any disciplinary actions at Coke United. Route 35 was discontinued in 2009, and Burch was reassigned to Route 29, which included vending machines at Mountain Brook High School. On January 5, 2010, Burch was given a verbal warning for failure to properly service the high school vending machines. Burch said he let the stock in the machines " dwindle down" because the school was going to be closed for Christmas holidays. Burch said Clinkscales told him to let the supply dwindle so the products would not be stale, and that, because the school was closed, he could not replenish the supply before he was disciplined on January 5, 2010. When Burch protested the verbal warning, Clinkscales told him that Lane, the operations manager, had instructed him to issue the verbal warning, even though Clinkscales acknowledged to plaintiff that he had instructed plaintiff to allow the supply to dwindle during the holidays.
At some time after 2009 (a more specific time frame is not clear), Burch complained to Taraysa Smith, an employee in Coke United's human resources office, who is African American, about a meeting he attended that was led by David Lane. Burch testified that the meeting was " pretty much all blacks," and that he " didn't remember" any Caucasian salesmen at the meeting. . . Burch told Smith that Lane said he knew that people in the room were " lining their pockets." Plaintiff said the meeting was insulting and that he told Smith " I haven't stole from them and I don't plan on doing it." He did not tell Smith that he believed the meeting or remarks were racially motivated, only that it was insulting.
In February 2010, Burch and another African American route salesman, Rod Richardson, were disciplined with written warnings for arriving late to work in the morning. Burch complained to Smith that he thought he was being disciplined because of his race, and that white employees who arrived later than he had were not disciplined. Smith and Coke United's human resources manager, Stacye Collier, who is Caucasian, investigated Burch's complaint of race discrimination. Smith determined that Clinkscales was excusing the tardies from workers who called in prior to being late, but was not excusing the tardies of workers who did not call in.

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Smith and Collier apparently did not determine whether the excuses were given only to one race; but neither is there any evidence that the tardy policy was applied on any basis other than whether the employee called in advance of the late arrival. As a result of the investigation, the disciplinary warnings were ultimately removed from Burch's file, and from the other employee's file, and Clinkscales and other area managers were instructed to let all employees know that they would be considered tardy if they were late, regardless of whether they called in advance.
In early 2010, Route 29 was eliminated and Burch was reassigned to Route 28, which consisted primarily of vending machines at the ACIPCO plant. The machines on Route 29 were divided among five other established routes. Route 28 was considered a difficult and dirty route, with over 100 machines to be serviced. Some previous salesmen assigned to Route 28 resigned. Burch was trained on the new route by senior salesman Bobby King, an African American. King trained him for about a week, but never showed him where every machine at ACIPCO was located. On the new route, Burch was supervised by area manager Corey Pounders, a Caucasian. Burch sought help finding the machines from another senior salesman, Eugene Martin, but Martin refused to go to ACIPCO to help. Burch frequently complained to Pounders that he could not find all of the machines at ACIPCO, and on one occasion, Pounders told him to call another senior salesman, Ricky Bynum, who provided some assistance in locating the machines. Other times, Pounders refused to help, and once laughed at Burch for asking for help.
On March 18, 2010, Burch was given a written warning for unacceptable performance, related to his previous route, Route 29. The warning alleged that the route salesmen who took over the machines that had been on Route 29 after plaintiff was reassigned had discovered that the money in the machines was short by $345.42. Burch protested to the human resources department that, once the route was reassigned, he no longer had keys and was not able to verify the amount of money in the machines. Clinkscales testified that it would be possible for another Coke United employee with the keys to have taken the money. After the shortage was discovered, a meeting was held on April 12, 2010 with Collier and Smith from human resources; Park, general manager; and Lane, operations manager, to discuss Burch's performance. It was determined that, although the February warnings for tardiness would be removed from plaintiff's file, the March disciplinary warning for money shortages on the Route 29 machines would stand.
Later that same day, April 12, 2010, Burch met with Pounders, Lane, and Park. No one from human resources was present. Pounders proposed suspending Burch for two days because he failed to service all machines assigned for serving on Route 28. After Burch complained that he did not know where all of the machines were, Pounders pointed to service records indicating that plaintiff previously had serviced machines he now claimed he did not know where they were located. Burch told Park that he had discussed with HR the lack of help finding the machines, at which Park " really got mad" and told him that he was going to suspend him for two days, effective April 13 and 14, 2010. (Doc. 33-1, Plaintiff's Depo., p. 108).

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Burch continued to work after the suspension without incident until October 2010. On October 15, 2010, Burch completed his route and returned to the Coke United plant. He left with his girlfriend in her car, drove her to her workplace, and then returned to the Coke United plant to complete his duties. He was gone less than 10 minutes. He did not clock out before leaving, and did not tell any supervisor that he was going to leave. While he was gone, Pounders tried to find Burch. An hour or two after Burch returned, Pounders asked Burch where he had been. Burch told him that he did not know what he was talking about. Pounders and Lane looked at plant video cameras, determined that Burch had driven off the parking lot, and then asked Burch directly if he had left the premises. Burch admitted that he had driven his girlfriend to work. Park, after meeting with Smith and Collier, and after again discussing with Burch why he left the premises, decided to terminate Burch's employment. He told Burch that he was being terminated for leaving the premises without permission from his supervisor. A provision of the employee handbook states that leaving the workplace " premises during work hours without the permission of the supervisor" is grounds for discipline up to and including termination. Plaintiff had a copy of the handbook, but had never read it. . . . Lane recommended that Burch be terminated, and Park made the final decision to end Burch's employment.

(Doc. 50 at 4-8).

In setting out the facts of this case, the magistrate also found: " No other Coke United route salesman has been terminated for leaving the premises without permission." (Doc. 50 at 8) (emphasis in original). In a footnote to that sentence, the magistrate wrote:

Although plaintiff has offered evidence that other route salesmen left the Coke United premises for lunch, see doc. 33-4, Smith Depo., at pp. 34-44; doc. 33-1, Plainitff's Depo., pp. 1530154, 165-166; doc. 43-4, Mitchell Decl., p.3; doc. 432, Richardson Decl., p. 2, none of the evidence establishes that they did not either without permission or with the knowledge of their supervisors. Rod Richardson's declaration is the closest, saying that route salesmen were " allowed" to leave for lunch without permission, but he does not say that any supervisor or person with appropriate authority told him he was " allowed" to do so, contrary to the explicit statement in the employee handbook.

B. Objections to Magistrate's Statement of Facts

The plaintiff objects to several parts of the magistrate's statement of facts.[3] They are addressed here using the numbering from his Amended and Substituted Objections to the Report and Recommendation of the Magistrate. (Doc. 58).

8. The plaintiff objects to the magistrate's finding that " there is no evidence of any other route salesman leaving the premises without permission." Burch argues that there is evidence that other salesmen left the premises without permission on the basis of testimony by Mark Clinkscales, Burch's first supervisor, who said that route salesmen never called him, " under any circumstance," to ask for " approval to come and go from the plant." (Doc. 43-5 at 60). Plaintiff alleges that a " reasonable inference" from this testimony is that route salesmen were either unaware

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of the need to get permission, or that the rule against leaving the premises without permission was ...

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