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Case 4:11-cv-00183-CDL Document 30 Filed 07/31/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

Plaintiff,


ALPHONSO GOMEZ,



vs.

VALLEY HOSPITALITY SERVICES,
LLC,



Defendant.











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CASE NO. 4:11-CV-183 (CDL)





O R D E R

Defendant Valley Hospitality Services, LLC (“Valley”)

manages several restaurants in the Columbus, Georgia area. Each

restaurant employs a general manager and an assistant manager.

Plaintiff Alphonso Gomez (“Gomez”), a former employee of Valley,

was passed over on five separate occasions for promotion from

assistant manager to general manager at various restaurants

managed by Valley. He alleges that he was denied the promotions

because of his race. After Gomez filed a charge of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”), he was reprimanded and eventually terminated from his

employment. Gomez has filed this action against Valley pursuant

to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq. Valley seeks summary judgment as to all

of Gomez’s claims (ECF No. 21). For the following reasons,

Valley’s motion is granted.

Case 4:11-cv-00183-CDL Document 30 Filed 07/31/13 Page 2 of 12

SUMMARY JUDGMENT STANDARD

Summary judgment may be granted only “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In determining whether a genuine dispute of

material fact exists to defeat a motion for summary judgment,

the evidence is viewed in the light most favorable to the party

opposing summary judgment, drawing all justifiable inferences in

the opposing party’s favor. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). A fact is material if it is relevant

or necessary to the outcome of the suit. Id. at 248. A factual

dispute is genuine if the evidence would allow a reasonable jury

to return a verdict for the nonmoving party. Id.

I.

Failure to Promote Claims

DISCUSSION

Gomez is proceeding pro se, and his response to Valley’s

motion is deficient in many respects. But, it appears that he

contends that when Valley promoted the following five employees

to general manager instead of him, it did so because of Gomez’s

race: Robert Stewart, Durham Thacker, Jim McKenna, Lindsey

Dozeman, and Aldo DeSanto.

Under the framework established by McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981), Gomez bears the initial

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burden of establishing a prima facie case of discrimination. If

a prima facie case is established, the burden shifts to Valley

to articulate a legitimate non-discriminatory reason for its

decisions. Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.

2002); Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28

(11th Cir. 1997). The burden then shifts back to Gomez to

create a genuine factual dispute as to whether each given reason

is actually pretext for discrimination or retaliation. Combs,

106 F.3d at 1528.

The Court assumes for purposes of summary judgment that

Gomez can make out a prima facie case of race discrimination;

however, Valley has articulated legitimate non-discriminatory

reasons for the promotions, and Gomez has failed to produce

evidence from which a reasonable jury could conclude that those

reasons were a pretext for racial discrimination. Accordingly,

Valley is entitled to summary judgment on Gomez’s failure to

promote claims.

The present record establishes that Valley promoted Stewart

due to seniority, and Gomez does not seriously dispute this

fact. Valley asserts that it did not consider Gomez for other

general manager promotions, such as those given to Thacker,

McKenna, Dozeman, and DeSanto, due to Gomez’s “lack of

experience

in

full-service

restaurant

management”

and

“inadequate job performance.” Def.’s Reply in Supp. of Mot. for

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Summ. J. 8, ECF No. 28; see also Gomez Dep. 27:18-28:6, 36:19-

37:5, 43:20-44:4, ECF No. 22 (summarizing Gomez’s management

experience); Gomez Dep. 95:8-25, 96:11-97:22, 98:7-99:23, 100:6-

101:16, 104:2-22, 109:3-110:21 (discussing several instances of

job performance issues prior to Valley’s promotion decisions);

Gomez Dep. Ex. 11, Mem. from D. Hay to A. Gomez (Dec. 26, 2008),

ECF No. 22-1 at 14-15 (advising that Gomez needed to make

improvements to his attitude to advance in the company). More

specifically, Valley explains that Dozeman was promoted instead

of Gomez because of her experience, Hay Decl. ¶¶ 23, 30, ECF No.

21-2, and because of Gomez’s own statements that he did not wish

to compete with Dozeman for the position, Gomez Dep. 127:18-

132:5. Also, Anthony Brown, a general manager for Valley,

recommended against promoting Gomez based on his determination

that Gomez “was not ready to handle the responsibility”

considering his experience, performance, and negative attitude.

Hay Decl. Ex. 5, Email from A. Brown to D. Troutman (June 30,

2009), ECF No. 21-2 at 68. Finally, Valley explains that Gomez

was not considered for the general manager position given to

DeSanto a month later for the same reasons. Hay Decl. ¶ 33.

Because Valley offered legitimate non-discriminatory reasons for

its promotion decisions, the burden shifts back to Gomez to show

these reasons are pretext for racial discrimination.

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To create a genuine factual dispute on pretext, a

“plaintiff must show not merely that the defendant’s promotion

decisions were mistaken but that they were in fact motivated by

race.” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d

1344, 1349 (11th Cir. 2007) (per curiam) (internal quotation

marks omitted); see also Smith v. Lockheed-Martin Corp., 644

F.3d 1321, 1328 (11th Cir. 2011) (holding that in order to

survive summary judgment, a plaintiff must present “a convincing

mosaic of circumstantial evidence that would allow a jury to

infer intentional discrimination” in the employer’s decision)

(internal quotation marks omitted). Gomez must do more than

point to evidence that he was more qualified than the candidate

who received the position he coveted. He must present evidence

that shows that the disparities between their qualifications

“were of such weight and significance that no reasonable person,

in the exercise of impartial judgment, could have chosen the

candidate selected over the plaintiff.” Springer, 509 F.3d at

1349 (internal quotation marks omitted); see also Chapman v. AI

Trasp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc)

(“Provided that the proffered reason is one that might motivate

a reasonable employer, an employee must meet that reason head on

and rebut it, and the employee cannot succeed by simply

quarreling with the wisdom of that reason.”).

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Case 4:11-cv-00183-CDL Document 30 Filed 07/31/13 Page 6 of 12

Gomez has not carried this burden. He generally argues

that (1) he must have been more qualified because Valley did not

send him to extensive training as was done for Thacker and

McKenna; (2) he was more experienced, comparing his resume to

resumes for Thacker and Dozeman; (3) he worked very hard as the

only manager on duty when a general manager position had yet to

be filled; and (4) those selected for general manager positions

were less qualified because most of them “did not last more than

six months.” Pl.’s Resp. to Def.’s Mot. for Summ. J. 1-2, ECF

No. 27. Gomez made these arguments in his responsive brief, but

he did not point the Court to evidence in support of his

contentions. Even if Gomez had pointed to evidentiary support

for his assertions, he has not pointed to disparities “of such

weight and significance” between himself and the candidates

promoted to support the conclusion that race must have been the

motivating factor in the decisions. Springer, 509 F.3d at 1349.

Furthermore, the current record includes evidence that Gomez had

several job performance issues. Gomez does not deny many of

these performance incidents, but instead quarrels with whether

he should have been reprimanded for them and whether Valley was

justified in considering them in its evaluation of his work

performance. Gomez directed the Court to no evidence that the

candidates promoted had similar job performance issues. For

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these reasons, Gomez has not met his burden of establishing that

Valley’s proffered reasons were pretext for discrimination.

Gomez does contend that two isolated racial remarks support

his claims. Sometime in 2008, one of Gomez’s superiors, who was

a decisionmaker in the particular promotion decisions, asked

Gomez if he was voting for Barack Obama because he is African

American or because he was the best candidate. Gomez Dep.

199:2-200:24. Gomez also testified that a superior, who did not

have a role in making the promotion decisions, later remarked to

him that white guys work daytime and black guys work nighttime,

then he laughed and said he was “kidding.” Id. at 196:16-

197:14. Even considering these two isolated racial remarks, the

Court finds that Gomez’s evidence falls far short of creating a

triable question of intentional discrimination based on Gomez’s

race. See Rowell v. BellSouth Corp., 433 F.3d 794, 802 (11th

Cir. 2005) (“[S]tatements made by nondecisionmakers or

statements made by decisionmakers unrelated to the decisional

process do not demonstrate discriminatory intent.”) (quoting

Steger v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003))

(internal quotation marks omitted). Therefore, Valley is

entitled to summary judgment on Gomez’s failure to promote

claims.1


1 Gomez does not allege a racial discrimination claim based on his
termination. Am. Compl. ¶¶ 1-4, ECF No. 9.

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II. Retaliation Claims

After Gomez was denied promotions to general manager, he

filed a charge of discrimination with the EEOC. Gomez claims

that Valley retaliated against him for filing the charge by

reprimanding him and eventually terminating his employment.

Valley contends that Gomez’s retaliation claims fail as a matter

of law because Gomez cannot establish a prima facie case of

retaliation and because Gomez has presented no evidence that

Valley’s reasons for reprimanding and terminating Gomez were

pretextual.

To establish a prima facie case of retaliation, Gomez must

demonstrate that “(1) he engaged in statutorily protected

activity; (2) he suffered an adverse employment action; and (3)

there is some casual relation between the two events.”

Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.

2001). Gomez clearly engaged in protected activity by filing a

charge of discrimination with the EEOC on November 17, 2009.

Gomez alleges that Valley began writing him up for performance

issues on February 1, 2010 to fabricate a defense for an EEOC

mediation and to justify his termination on March 2, 2010.

Gomez’s termination certainly constitutes an adverse employment

action. But for Gomez to escape summary judgment, he must

produce sufficient evidence from which a reasonable jury could

conclude that there is a causal connection between his filing of

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the EEOC charge and Valley’s termination of his employment.

Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1182 (11th Cir.

2010). This causal connection can sometimes be established by

showing a close temporal proximity between the protected

activity and the adverse employment actions. But if temporal

proximity alone is relied upon to establish a causal connection,

the proximity must be “very close.” Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001) (internal quotation marks

omitted); see also Brown, 597 F.3d. at 1182 (“[I]n the absence

of other evidence tending to show causation, if there is a

substantial delay between the protected expression and the

adverse action, the complaint of retaliation fails as a matter

of law.”) (internal quotation marks omitted).

Gomez points to no evidence other than temporal proximity

to establish causation. Although he argues that a February 1,

2010 email supports his claim of Valley’s retaliatory intent,

that email shows no such thing. It simply demonstrates that

Valley was aware of Gomez’s EEOC filing. Gomez Dep. Ex. 37,

Email from D. Hay to A. DeSanto (Feb. 1, 2010), ECF No. 22-1 at

98. In fact, it suggests that if Gomez had not filed the EEOC

charge, he would have been terminated for insubordination on

February 1, 2010. Id. More importantly, Gomez points to no

evidence that the reprimand was unfounded or that he did not

engage in the conduct for which he was reprimanded. See, e.g.,

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Gomez

Dep.

165:11-167:3

(describing

Gomez’s

“heated”

confrontation with his general manager Also DeSanto about his

refusal to help servers set up the dining room after arriving an

hour late).

With nothing other than temporal proximity to rely on,

Gomez must demonstrate that the timing between the protected

activity and the adverse employment action is very close. Here,

the time between Gomez’s EEOC filing and his termination is more

than three months. The Eleventh Circuit has routinely held that

a three-month interval is too great to infer a causal link.

Brown, 597 F.3d at 1182; Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1364 (11th Cir. 2007). Even the ten-week gap between

the EEOC charge and the beginning of the reprimands is too long

to establish causation based solely on temporal proximity.

E.g., Williams v. Waste Mgmt., Inc., 411 F. App’x 226, 229-30

(11th Cir. 2011). Thus even under the most generous causation

standard, the Court cannot conclude based on the present record

that a reasonable juror could find that the temporal proximity

here is so close that it supports a causal link between the

filing of the charge and the reprimands and eventual

termination. Moreover, recent developments in this area of the

law make it clear that the causation standard for Title VII

retaliation claims is more stringent than some courts have

previously believed. Instead of showing that retaliatory animus

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was a “motivating factor” in the employment decision, a

plaintiff must now show that the unlawful retaliatory motive was

the “but-for” cause of the employment decision. Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). And no

evidence has been presented from which a reasonable jury could

conclude that Gomez’s filing of the EEOC charge was the but-for

cause of the reprimands or termination. Gomez acknowledged that

part of the reason he was reprimanded was completely unrelated

to his EEOC charge. See Gomez Dep. 159:7-160:5, 177:7-22

(testifying that he believed that DeSanto reprimanded him

because of Gomez’s role in the termination of DeSanto’s favorite

server).

Because Gomez has pointed to no evidence from which a

reasonable jury could find a causal connection between the

filing of his EEOC charge and the subsequent reprimands and

termination, Gomez has failed to establish a prima facie case of

unlawful retaliation. Therefore, his retaliation claims fail as

a matter of law, and Valley is entitled to summary judgment.2


2 Valley is entitled to summary judgment even if Gomez could make out
his prima facie case on his retaliation claims. Valley explains that
Gomez was terminated for the combination of his job performance issues
and his calling out of work. These are legitimate reasons that could
motivate a reasonable employer. Chapman, 229 F.3d at 1030. Gomez did
not point to evidence to raise a genuine factual dispute that Valley’s
stated reasons for its actions were a pretext for unlawful
retaliation. See id. (noting that a federal court does “not sit as a
super-personnel department that reexamines an entity’s business
decisions” even if the managers end up being mistaken) (internal
quotation marks omitted); see also Damon v. Fleming Supermarkets of

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CONCLUSION

For the reasons stated above, the Court grants Valley’s

motion for summary judgment (ECF No. 21). The Court declines to

exercise supplemental jurisdiction over Gomez’s state law

claims, which are dismissed without prejudice. All other

pending motions shall be terminated as moot.




IT IS SO ORDERED, this 31st day of July, 2013.

S/Clay D. Land

CLAY D. LAND

UNITED STATES DISTRICT JUDGE


Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We have repeatedly
and emphatically held that a defendant may terminate an employee for a
good or bad reason without violating federal law. We are not in the
business of adjudging whether employment decisions are prudent or
fair.”) (citations omitted) (internal quotation marks omitted). Thus,
Valley would be entitled to summary judgment even if Gomez could
establish the causation element of his prima facie case.

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