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Case 3:11-cv-00910-RBD-JBT Document 37 Filed 06/04/13 Page 1 of 9 PageID 355



UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

Plaintiff,


LEONARD C. ANDERSON, SR.,



v.

BRUNSWICK CORPORATION,




Defendant.

Case No. 3:11-cv-910-J-37JBT



ORDER

This cause is before the Court on the following:

1.

Defendant Brunswick Corporation’s Motion for Summary Judgment and

Memorandum in Support (Doc. 32), filed March 15, 2013;

2.

Plaintiff’s Opposition to Summary Judgment (Doc. 33), filed March 28,

2013; and

3.

Defendant Brunswick Corporation’s Reply Memorandum in Support of its

Motion for Summary Judgment (Doc. 34), filed April 10, 2013.

Upon consideration, the Court hereby grants Defendant’s motion.

BACKGROUND

Plaintiff, proceeding pro se, is an African American who worked for Defendant1

as a temporary employee beginning in 2004 and as a glass finisher from 2005 to 2010.

(Anderson Dep., Doc. 32-1, 26:2–6, 26:16–20.) Plaintiff alleges that during his



1 Plaintiff lists “Sea Ray Boats, Brunswick Corporation, etc.” as “Defendants” in
the Second Amended Complaint. (Doc. 12.) The Court treats the entity Sea Ray Boats
as indistinguishable from Defendant Brunswick Corporation, as service was waived as
to Defendant Brunswick Corporation only (Doc. 14, p. 2) and Sea Ray Boats is a
division of Defendant Brunswick Corporation (Anderson Dep., Doc. 32-1, 31:19–25;
Doc. 32, p. 2 n.2).

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employment, coworkers spread a rumor that he had been convicted of rape, threw an



acetate can at him, carried a heavy seat over his head, broke into his locker, trashed his

work area, and damaged parts that he had been working on when he was away from

his workspace. (Doc. 12, pp. 4–6.) He alleges that supervisors called him crazy,

commented that workers did not need training, stated that Plaintiff could be fired “for

wearing a brown shirt,” and gave him low evaluations until he disputed them and they

were revised. (Id. at 13–14; Anderson Dep., Doc. 32-1, 79:1–7, 105:1–19.) He also

alleges

that Defendant’s Human Resources department (“HR”)

failed

to keep

information about his tuition reimbursement private and that on one occasion his

reimbursement was delayed. (Doc. 12, pp. 8–9.)

Defendant’s Employee Handbook provides that “[f]ighting or violence on

Company premises,” “the threat of bodily violence,” and “[h]arrassment, intimidation,

coercion, or molesting of other employees” are violations that may lead to involuntary

discharge. (Doc. 32-10, p. 9.) The Handbook also provides for progressive discipline,

whereby Defendant may choose to warn an employee for misconduct before discharge.

(Id. at 7.) Plaintiff signed a document acknowledging that he read and understood these

policies. (Id. at 10.)

In 2008, Plaintiff was involved in an altercation with a white coworker, Dave

Nawrocki. (Doc. 32-12; Anderson Dep., Doc. 32-1, 65:14–15.) Plaintiff testified that

Nawrocki cornered Plaintiff, “threw himself” on Plaintiff, and yelled and cursed at

Plaintiff. (Anderson Dep., Doc. 32-1, 68:3–7; 71:6–72:2.) Plaintiff further testified that he

only made physical contact with Nawrocki when he crossed his arms in self-defense to

deescalate the situation. (Id. at 68:8–25.) Defendant found that Plaintiff and Nawrocki

were equally at fault. (Docs. 32-13, 32-16.) Both were disciplined with a suspension, a



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referral to an Employment Assistance Program (“EAP”), and a last chance agreement.



(Docs. 32-13, 32-14, 32-15, 32-16.) The last chance agreement, which Plaintiff signed,

warned Plaintiff that if he engaged in future misconduct, he would be terminated.

(Doc. 32-13.)

In 2010, Plaintiff got into another altercation with another white coworker, Jeff

Thomasson. (Docs. 32-17, 32-18, 32-19.) Plaintiff maintains that Thomasson instigated

the situation and that Plaintiff responded merely by “defending [him]self verbally.”

(Doc. 32-17; Anderson Dep., Doc. 32-1, 115:19–25.) Thomasson stated that Plaintiff

initially blocked Thomasson from clocking out at the end of the day and pushed

Thomasson; only then did Thomasson push Plaintiff back. (Doc. 32-19, p. 2.) Defendant

terminated Plaintiff’s employment for his involvement. (Docs. 32-20, 32-23, 32-24.)

Thomasson received a suspension, an EAP referral, and a last chance agreement (Doc.

32-25), the same discipline that Plaintiff received after his first infraction.

In 2010, Nawrocki was terminated for violating his last chance agreement after a

second, unrelated infraction. (Doc. 32-26.)

Plaintiff brings a race discrimination claim under Title VII, alleging that he was

disparately treated based on his race and subjected to a hostile work environment.2

(Doc. 12.) Defendant moved for summary judgment. (Doc. 32.) Plaintiff responded.

(Doc. 33.) Defendant replied. (Doc. 34.) This cause is now ripe for the Court’s


2 While Plaintiff lists “Retaliation through Failure to Investigate” and “Retaliation
through Petition to Reverse Employee Unemployment Benefits and Classification of
Employees” as acts of which he complains (Doc. 12, ¶ 4), the Court finds that Plaintiff
has not actually stated a Title VII retaliation claim. Plaintiff failed to plead any facts
supporting a claim of retaliation. Plaintiff alleges that he complained about the allegedly
hostile work environment (id. at p. 17), but he did not allege that Defendant took
adverse action against him because of his complaints. See Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998). Thus, the Court finds that Plaintiff
has not pled a retaliation claim.



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adjudication.



STANDARDS

Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To defeat a motion for

summary judgment, the nonmoving party must “go beyond the pleadings, and present

affirmative evidence to show that a genuine issue of material fact exists.” Porter v. Ray,

461 F.3d 1315, 1320 (11th Cir. 2006) (citation omitted). The Court must “draw all

justifiable inferences in favor of the nonmoving party, including questions of credibility

and of the weight to be accorded to particular evidence.” Masson v. New Yorker

Magazine, Inc., 501 U.S. 496, 520 (1991) (citation omitted).

DISCUSSION

Title VII provides that it is unlawful for an employer “to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2(a)(1). Plaintiff claims that he was disparately treated because of

his race in violation of Title VII. (Doc. 12, ¶¶ 4–5.) Disparate treatment can take two

forms: (1) a discriminatory, tangible employment action such as a discharge or

suspension; or (2) a hostile work environment that materially changes an employee’s

terms and conditions of employment. See Reeves v. C.H. Robinson Worldwide, Inc.,

594 F.3d 798, 807 (11th Cir. 2010). Plaintiff brings his discrimination claim under both

theories.



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1. Tangible Employment Action



To prove discrimination under a tangible employment action theory, the plaintiff

initially bears the burden of showing that: (1) he belongs to a protected class; (2) he

suffered an adverse employment action; (3) his employer treated him less favorably

than other similarly situated individuals outside of his protected class; and (4) he was

qualified for his job. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

Marshall v. Mayor Alderman, 366 F. App’x 91, 98 (11th Cir. 2010). If the plaintiff

establishes a prima facie case, the burden shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the employment action. McDonnell Douglas,

411 U.S. at 802–03; Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997). If the

defendant meets this burden, the plaintiff has the opportunity to demonstrate that the

defendant’s articulated reason is “a mere pretext for discrimination.” Holifield, 115 F.3d

at 1565.

Here, Defendant concedes that Plaintiff is African American, that he suffered an

adverse employment action in the form of suspension and termination, and that he was

qualified for his job. (See Doc. 32, p. 9.) However, the parties disagree as to whether

Plaintiff was treated less favorably than similarly situated non-African American

employees. (Id.)

A comparator must be “similarly situated in all relevant respects.” Holifield, 115

F.3d at 1562. “In determining whether employees are similarly situated[,] . . . it is

necessary to consider whether the employees are involved in or accused of the same or

similar conduct and are disciplined in different ways.” Id. Because Plaintiff alleges that

he was not at fault in either altercation for which he was disciplined, the similarly

situated comparator must be a non-African American employee who was involved in an



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altercation on Defendant’s premises but was a non-aggressor. See Frederick v.



Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001) (stating that on a motion

for summary judgment, the court construes the facts in the light most favorable to the

non-moving party). Though it is Plaintiff’s burden to identify such a comparator, Abel v.

Dubberly, 210 F.3d 1334, 1339 (11th Cir. 2000), he has not done so.

While Plaintiff points to Nawrocki and Thomasson, both non-African Americans

involved in altercations, they are not similarly situated comparators because they are

alleged to have been the aggressors in the altercations with Plaintiff, unlike Plaintiff who

is alleged to have been the non-aggressor. Thus, even though there is a factual dispute

as to whether Plaintiff was an innocent non-aggressor in either altercation, this dispute

is not material and does not preclude summary judgment. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of summary

judgment. Factual disputes that are irrelevant and unnecessary will not be counted.”).

Even if Nawrocki and Thomasson were similarly situated comparators, neither of

them were treated more favorably than Plaintiff. After the 2008 incident, both Nawrocki

and Plaintiff received the same discipline—suspension, EAP referral, and last chance

agreement. (Docs. 32-13, 32-14, 32-15, 32-16.) After the 2010 incident, Plaintiff did

receive more severe discipline than Thomasson—termination (Docs. 32-20, 32-23, 32-

24) versus suspension, EAP referral, and last chance agreement (Doc. 32-25)—but this

occurred because it was Plaintiff’s second violation. Thomasson’s discipline was

identical to the discipline that Plaintiff received after his first violation. In fact, after

Nawrocki committed a second violation, he was terminated just like Plaintiff. (Doc. 32-

26.) Defendant thus applied its progressive discipline policy in the same way to Plaintiff,



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Nawrocki, and Thomasson. Thus, Plaintiff was not treated less favorably than Nawrocki



or Thomasson, even if they were considered similarly situated comparators.

Because Plaintiff has not presented a similarly situated comparator who was

treated more favorably than himself, he has not met his burden of proving a prima facie

case of discrimination. As such, Defendant’s motion for summary judgment is due to be

granted as to the tangible employment action theory.

2. Hostile Environment

To prove a hostile work environment, a plaintiff must show that: (1) he is a

member of a protected class; (2) he was subject to unwelcome conduct; (3) the conduct

was based on his race; (4) the conduct was sufficiently severe or pervasive to alter the

terms and conditions of his employment and create an abusive working environment;

and (5) there is a basis for holding his employer liable. Reeves, 594 F.3d at 808. Here,

Plaintiff belongs to a protected class and he was subject to conduct that he did not find

welcome, but he has failed to establish that the conduct was based on his race or that it

was sufficiently severe or pervasive to alter his employment conditions.

Some of the conduct that Plaintiff endured was disrespectful, unprofessional, and

harassing, but

this does not mean

that his workplace was “permeated with

discriminatory intimidation, ridicule, and insult” sufficient to constitute a Title VII

violation, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), as no coworker ever spoke

a racial epithet or made a racially charged comment. Plaintiff evinces a belief that “[a]n

overall climate of hostility exists for African Americans” and that “[Defendant’s]

discrimination against African Americans is well-known within the Black community.”

(Doc. 12, pp. 13, 17.) However, there was nothing racially motivated about any of the

incidents of which Plaintiff complains. Additionally, Plaintiff admits that the hostility that



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he experienced was due in part to coworkers resenting his tuition reimbursements and



in part to his past complaints about the alleged hostility. (Id. at 13, 16.)

Because the conduct to which Plaintiff was subjected was not based on race,

Plaintiff has failed to meet his burden of proving the third element of a prima facie case

of race discrimination. See Satchel v. Sch. Bd. of Hillsborough Cnty., 251 F. App’x 626,

630 (11th Cir. 2007) (concluding that the plaintiff failed to prove a prima facie race

discrimination case when “the behavior she observed and experienced did not consist

of any racially derogatory statements or acts” and the plaintiff merely evinced a belief

that one of her coworkers was racist and that the school system she worked for was

affected by institutional racism).

Plaintiff also has not shown that the conduct was sufficiently severe or pervasive.

While the alleged acetate can and seat incidents were physically threatening (though

not race-related), many of the alleged incidents were benign, such as the alleged

comment about training and HR’s alleged actions. While Plaintiff subjectively perceived

all of the incidents that he experienced to be hostile, such a perception was not

objectively reasonable. See Satchel, 251 F. App’x at 630 (explaining that to satisfy the

severe and pervasive element of a prima facie case, “the employee must show that [he]

subjectively perceived the harassment as severe and pervasive enough to change the

terms or conditions of employment” and present evidence “that this perception was

objectively reasonable”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1299 (11th Cir.

2012) (“The burden is on the plaintiff to demonstrate that he perceived, and that a

reasonable person would perceive, the working environment to be hostile or abusive.”).

Because Plaintiff failed to establish that the unwelcome conduct was based on

his race or was sufficiently severe or pervasive to constitute a hostile work environment,



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he has not made out a prima facie case. As such, Brunswick’s motion for summary



judgment is due to be granted as to the hostile work environment theory.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED:

1.

Defendant Brunswick Corporation’s Motion for Summary Judgment and

Memorandum in Support (Doc. 32) is GRANTED.

2.

The Clerk is DIRECTED to enter judgment in favor of Defendant and

against Plaintiff. Plaintiff shall take nothing on his claims. Defendant is

awarded costs.

3.

The Clerk is DIRECTED to close this case.

DONE AND ORDERED in Chambers in Jacksonville, Florida, on June 4, 2013.








Copies:

Pro Se Party

Counsel of Record





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