SAULSBERRY v. WEYERHAEUSER COMPANY, (S.D.Ala. 2002)

CALLIE V.S. GRANADE, United States District Judge

This matter is before the court on the motion of defendant, Weyerhaeuser Company, for summary judgment (Doc. 22) and the motion of plaintiff, Robert Saulsberry, to strike the affidavit of George Hicks, Jr. (Doc 38). The court finds that plaintiff's motion to strike is due to be granted in part, to the extent that any information in the affidavit of which Hicks did not have personal knowledge is only admissible for the purpose of demonstrating Hicks' beliefs and understandings, not to assert the truth of the matter. As to the motion for summary judgment, the court finds that plaintiff has failed to establish a prima facie case of racial discrimination and has failed to establish that defendant's reasons for not promoting him are mere pretext. In addition, the court finds that plaintiff has abandoned his claim that other African-Americans were discriminated against. Thus, defendant's motion for summary judgment is due to be granted.

Plaintiff filed this action on June 8, 2001, against his employer, Weyerhaeuser Company, seeking compensatory and punitive damages for the employer's failure to promote plaintiff and other African-Americans to higher paying positions. In count one, plaintiff alleges that:

15. The Defendant committed intentional race discrimination against the Plaintiff, thereby violating the provisions of Section 1981 of Title 42 of the United States Code, and Title VII of the Civil Rights Act when they failed to promote him to the position of Caustic Operator.

In count two, plaintiff alleges that:

18. The Defendant violated Title VII of the Civil Rights Act and Section 1981 of Title 42 of the United States Code by failing to promote plaintiff and other African Americans to higher paying positions within the plant.

Weyerhaeuser Company manufactures paper and wood products at its Pine Hill, Alabama, mill. As part of the manufacturing process, certain paper products are treated with highly caustic and volatile chemicals, including a number of dangerous acids. Employees in the caustic operator position are responsible for making sure that the proper chemicals are applied to the process in the correct order and in the proper amounts. If the chemicals are mishandled or improperly combined, serious injury to the employees in the area could result. Weyerhaeuser has implemented various procedures to ensure that the chemicals are handled safely, including procedures that require the caustic processes to be shut down in the event of a safety hazard. A caustic operator is responsible for overseeing the processes involved in chemical treatment in the pulping process and also has responsibility for "lockout/tagout" procedures in the area. "Lockout/tagout" procedures require systems to be shut down in the event of a safety problem or malfunction of equipment and are necessary whenever maintenance type work is to be done on the equipment. The equipment is shutdown and then "locked out" so that it cannot be restarted until the repair work is done. The caustic operator fills out and reviews a checklist to facilitate lockout. A caustic operator must be able to operate a variety of machinery, implement the required chemical processes, and run tests as necessary. Some of the machinery operated by the caustic operator is computerized. A caustic operator is responsible for monitoring, via computer, the various system components. System warnings, alarms and reports are displayed in writing on a computer screen. To perform the necessary functions, a caustic operator must be able to read and analyze the information displayed on the computer screen. A caustic operator is also responsible for filling out various reports.

Plaintiff has worked for Weyerhaeuser for about 27 years. He is represented by the Paper, Allied-Industrial, Chemical and Energy Workers International Union (the "Union"), which has a labor agreement with Weyerhaeuser. Under the labor agreement, employees advance within the company through what is known as a "line of progression." The line of progression for a caustic operator is (1) utility worker, (2) pulp mill utility worker, (3) assistant caustic operator, and finally (4) caustic operator. Under the labor agreement, each employee must be qualified to perform duties for the next-higher position in the line of progression. This requirement ensures that the mill always has a qualified employee to fill in temporarily, or "set up," in a higher position should there be a temporary vacancy.

Plaintiff first began working at the Weyerhaeuser pulp mill in 1995 as a utility worker. In December 1996, plaintiff moved up to a pulp mill utility worker. Plaintiff was reportedly an excellent employee and performed well as pulp mill utility worker. As a pulp mill utility worker, plaintiff had to train for the next highest position, assistant caustic operator. The company has permitted plaintiff to set up as an assistant caustic operator. Plaintiff set up as assistant caustic operator for a number of months without incident. An assistant caustic operator does not have the ultimate responsibility for the caustic process and always works under the supervision of a qualified caustic operator.

Plaintiff does not read well. He attended a company sponsored reading and math course, but still does not read well. In 1996, while training to be an assistant operator, plaintiff was written up for misidentifying certain chemicals that were being unloaded at the mill. According to defendant, if plaintiff had not been under the direct supervision of someone else, plaintiff's inability to distinguish between the chemicals could have caused a serious accident. In 1999, while plaintiff was setting up as an assistant caustic operator, the company reprimanded plaintiff for failing to log a calibration failure in an equipment log book, reportedly because he was unable to recognize the reading on the machine. Such a mistake could have resulted in serious legal and monetary fines.

In April 2000, plaintiff began trying to qualify as a caustic operator. Defendant disqualified plaintiff as a caustic operator. According to defendant, it became apparent that plaintiff could not adequately perform as a caustic operator, primarily due to his inability to read at a functional level. In September 2000, plaintiff filed a grievance regarding the disqualification.

In November 2000, plaintiff and other employees were given a written test to measure their knowledge of the company's railcar moving procedures. Plaintiff could not read the test and copied the answers from another employee. Also in November 2000, one of plaintiff's co-workers filed a written safety recommendation questioning the safety of working in an area where a lockout had been performed by someone who could not read or write.

A meeting which plaintiff and three union representatives attended was held to discuss plaintiff's failure to qualify. Plaintiff was unable to demonstrate that he could read well enough to qualify for the caustic operator position. After the meeting, plaintiff's disqualification became final. The decision to disqualify plaintiff was made by George Hicks, the human resource manager at Weyerhaeuser's Pine Hill facility. Mr. Hicks is African-American.

A. Plaintiff's Motion to Strike

Plaintiff has objected to the affidavit of George Hicks, Jr. which was submitted by defendant in support of its motion for summary judgment. The court finds Mr. Hicks' affidavit contains information of which Hicks did not have personal knowledge. However, as discussed below, that information is still admissible to the extent it demonstrates Hicks' beliefs and understandings upon which Hicks based his decision to disqualify plaintiff, regardless of whether the information was true or accurate.

Plaintiff also objects to certain statements in the affidavit which describe processes that employees in particular positions would follow at the mill. Plaintiff asserts that Hicks has admitted to not being qualified himself for the positions, and, therefore, does not have the required knowledge to provide that information or to assess plaintiff's qualifications for those jobs. However, Hicks, as human resource manager, does not have to be qualified to perform each and every job at the mill in order to have knowledge of the duties and responsibilities demanded of each position. In addition, the court finds that if the court were inclined to grant plaintiff's motion to strike, it would be of no consequence to the motion for summary judgment. Defendant has submitted additional affidavits that state the same or similar information. In analyzing the summary judgment motion, the court does not rely on the statements to which plaintiff objects.

B. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted: "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." The trial court's function is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be `sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, at 249-50. (internal citations omitted).

The basic issue before the Court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. BB Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citingMercantile Bank Trust v. Fidelity Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).

Once the movant satisfies his initial burden under Rule 56(c). the non-moving party "must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, the non-movant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party "may not rest on the mere allegations or denials of the [non-moving] party's pleading, but. . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. Civ. P. 56(e) "A mere `scintilla' of evidence supporting the [non-moving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and citation omitted).

C. Plaintiff's Claims of Racial Discrimination 1. Count One

As noted above, plaintiff claims in count one that he was discriminated against by defendant on the basis of race, in that he was not promoted to the position of caustic operator. Plaintiff's complaint is not based on any other allegedly discriminatory action. Plaintiff may prove discrimination by relying on either direct, circumstantial, or statistical evidence. Walker v. Nationsbank of Florida N.A., 53 F.3d 1548, 1555 (11th Cir. 1995). Direct evidence is evidence which, "if believed, proves the existence of discriminatory motive `without inference or presumption'" Hamilton v. Montgomery County Bd. of Educ., 122 F. Supp.2d 1273, 1279 (M.D. Ala. 2000) (quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998). Plaintiff has not provided any direct evidence of racial discrimination.

Plaintiff may attempt to show discrimination based on circumstantial evidence through the application of the McDonnell Douglas burden-shilling analysis established by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997)). To establish a prima facie case a plaintiff must show:

(1) that he is a member of a protected class;

(2) that he was qualified for and applied for the promotion;

(3) that he was rejected; and

(4) that other equally or less qualified employees who were not members of the protected class were promoted.

If plaintiff establishes a prima facie case, the burden shifts to the defendant, who must then "proffer a legitimate, non-discriminatory reason for the adverse employment action. The employer's burden is exceedingly light." Hamilton, 122 F. Supp.2d at 1280 (quoting Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994) (internal quotations omitted)). If the defendant proffers a legitimate reason for plaintiff's termination, the burden then shifts back to plaintiff, who must show that the employer's proffered reasons are pretextual, or merely a cover for discrimination. Id. "At the pretext stage, in order to survive summary judgment, plaintiff must provide sufficient evidence to allow a reasonable fact finder to conclude, at a minimum, that the proffered reasons were not actually the motivation for the employer's decision."Miller v. Bed, Bath Beyond, Inc., 185 F. Supp.2d 1253, 1270 (N.D. Ala. 2002) (citing Combs, 106 F.3d at 1538). Plaintiff may do this by (1) "showing that the employer's legitimate nondiscriminatory reasons should not be believed; or" (2) "showing that, in light of all of the evidence, a discriminatory reason more likely motivated the decision." Id. (citations omitted). "This is done by pointing to `such weaknesses, implausibilities. inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons . . . that a reasonable factfinder could find them unworthy of credence.'" Id. at 1281 (quotingCombs, 106 F.3d at 1539). The ultimate burden of persuasion remains with the plaintiff at all times in cases involving merely circumstantial evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

In satisfying the ultimate burden of proving that the adverse employment action was on account of race, a plaintiff need not establish that race was the sole reason for the action, but that it was a determinative factor in the employer's decision. See Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1224 (11th Cir. 1982) (citing Haring v. CPC International, Inc., 664 F.2d 1234, 1239-40 (5th Cir. 1981)). However, it should be noted that federal courts "do not sit as a super-personnel department that reexamines an entity's business decisions." Id. (quoting Elrod v. sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). It is not appropriate for either the plaintiff or this court to "recast an employer's proffered non-discriminatory reasons or substitute his business judgment for that of the employer." Id. (quoting Chapman, 229 F.3d at 1030). "An `employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.'" Nix v. WLCY Radio/Rahall Communication, 738 F.2d 1181, 1187 (11th Cir. 1984).

Looking at the facts in the light most favorable to plaintiff, plaintiff has not demonstrated even a prima facie case of discrimination. As an African-American, plaintiff is a member of a protected class, and he was clearly rejected from the position. However, the court finds that plaintiff was not qualified for the position and there is no evidence that other equally or less qualified employees who were not members of the protected class were promoted. Although plaintiff asserts that the ability to read well was never identified as a requirement for the caustic operator position until after he was disqualified, it clearly was a prerequisite. Whether or not plaintiff was specifically informed of that requirement, it is clear that a caustic operator must be able to read to accomplish all the required tasks and maintain the safety of the mill. Plaintiff maintains that he can read, although admittedly he is a slow reader, and that he can perform the functions of the position. While it is true that plaintiff performed the functions of an assistant caustic operator on a temporary basis with few problems, that does not mean that he was sufficiently qualified to hold the position permanently, much less that he was qualified to hold another job further up in the line of progression. The caustic operator position involves much more responsibility than the assistant position. Unless plaintiff could read competently, he was not qualified for the position.

Even if plaintiff had established a prima facie case, defendant has offered a legitimate nondiscriminatory reason for not promoting plaintiff. Thus, the burden would then shift back to plaintiff to demonstrate that the employer's proffered reasons are pretextual. As stated above, a defendant's reason is legitimate whether it was a good or a bad reason, or for no reason at all, as long as the determinative reason was not plaintiff's race or some other discriminatory reason. Even if defendant was mistaken that plaintiff's reading ability was insufficient to qualify him for the position, the employment decision was not discriminatory because it was based on a mistaken belief. Silvera v. Orange County School Bd., 244 F.3d 1253, 1261 (11th Cir. 2001). Plaintiff has failed to make even a minimal showing that defendant's articulated reasons for his termination were untrue. The court will not substitute its business judgment for that of the employer. Plaintiff has not produced sufficient evidence to show that defendant's reason for not promoting plaintiff should not be believed or that race was a likely motivator in the decision. Defendant's proffered reasons are not weak, implausible, inconsistent, incoherent, or contradictory such that a reasonable factfinder could find them unworthy of credence. Therefore, summary judgment is due to be granted as to count one.

2. Count Two

In count two of his complaint, plaintiff claims that he and other African-Americans are denied higher paying positions within the plant. However, plaintiff has not produced even a scintilla of evidence or argument to support this contention and appears to have abandoned the claim. "In opposing a motion for summary judgment, a `party may not rely on his pleadings to avoid judgment against him.'" Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v. Resolution Trust Corp., 516 U.S. 817 (1995) (citing Ryan v. Int'l Union of Operating Eng'rs., Local 675, 794 F.2d 641, 643 (11 Cir. 1986)). Moreover, "[t]here is no burden upon the district court to distill every potential argument that could be made upon the materials before it on summary judgment. Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." Id. (citations omitted). The court deems plaintiff's claims in count two abandoned, see id., and defendant's motion for summary judgment as to that count is due to be granted.

For the foregoing reasons, the court finds that plaintiff's motion to strike is due to be, and is hereby, GRANTED IN PART, to the extent that any information in the affidavit of George Hicks, Jr. of which Hicks did not have personal knowledge is admissible only for the purpose of demonstrating Hicks' beliefs and understandings, not to assert the truth of the matter. In all other respects the motion to strike is DENIED. The court FURTHER ORDERS that defendant's motion for summary judgement is due to be, and is hereby GRANTED. The Clerk is directed to close this case.