Barthelus v. G4S Gov't Solutions, Inc.

• Decision Date: 27 May 2014
• Docket Number: Non–Argument Calendar.,No. 13–14121,13–14121,n–Argument Calendar.
• Citation: 752 F.3d 1309
• Parties: Cegeste BARTHELUS, Plaintiff–Appellant, v. G4S GOVERNMENT SOLUTIONS, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

752 F.3d 1309

Cegeste BARTHELUS, Plaintiff–Appellant,

v.G4S GOVERNMENT SOLUTIONS, INC., Defendant–Appellee.

No. 13–14121

Non–Argument Calendar.

United States Court of Appeals,Eleventh Circuit.

May 27, 2014.

Cegeste Barthelus, Wellington, FL, pro se.

Robyn S. Hankins, Hankins & Ator, Jupiter, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12–cv–22945–CMA.

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Cegeste Barthelus, who is Haitian and black, appeals pro se the summary judgment the District Court granted his former employer, G4S Government Solutions, Inc. (“G4S” or “WSI”),¹ on his claims that, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e–2(a)(1) and § 2000e–3(a), and 42 U.S.C. § 1981, G4S discriminated against him in the workplace, denied him promotions and then terminated his employment on account of his age, race and national origin and that G4S retaliated against him for complaining about such discrimination. We affirm, in part, and vacate and remand, in part.

I.

The operative pleadings before the District Court when it ruled on G4S's motion for summary judgment were the plaintiff's First Amended Complaint (the “complaint”)[ECF No. 9], and the defendant's Answer and Affirmative Defenses to Amended Complaint (the “answer”) [ECF No. 10].

A.

Barthelus's complaint, which was filed on September 21, 2012, contains 69 paragraphs and four counts.² Counts I and III allege claims of unlawful discrimination in the workplace and in the termination of his employment. Count I alleges that G4S discriminated against Barthelus based on his national origin, in violation of Title VII; Count III alleges that G4S discriminated against Barthelus because of his race, in violation of § 1981. Counts II and IV, brought under Title VII ³ and § 1981, respectively, allege that G4S terminated Barthelus's employment because he filed a complaint of discrimination with its Human Resources Department. We do not consider Barthelus's appeal of the judgment on those counts because his brief presents no argument that the District Court erred in granting summary judgment on the claims asserted in those counts.⁴ We focus, instead, on Counts I and III.

The first 18 paragraphs of Barthelus's complaint trace his employment from December 29, 1997, when he came to work for G4S's predecessor, The Wackenhut Corporation, as an electrical engineer in its I.T. Department, to February 10, 2011, when G4S terminated his employment. Paragraphs 11 through 18 describe incidents of discriminatory treatment he allegedly received based on his race or national origin that took place during that time frame. Those paragraphs describe the treatment thusly:

“[A]bout October 5, 2005, Defendant began discriminating against Plaintiff because Plaintiff is Haitain and/or because of his race.” ¶ 11. “In ... October, 2005, Plaintiff was denied a promotion because he had a Haitian accent.” ¶ 16.

“After ten (10) years of service, Mr. Galusha, the chief technology officer, who was also Plaintiff's supervisor, provided Plaintiff with a very bad performance review.” ¶ 12. “After discussion between Plaintiff and Mr. Galusha, Mr. Galusha decided that the performance review was inaccurate and sought to amend the evaluation, but his ... supervisor, Mrs. Laura Thomas, a non-Black, non-Haitian, objected to the amendment.” ¶ 13.

“Plaintiff, the only Black, Haitian employee in [the I.T.] department, did not receive a pay increase whereas all other non-Black, non-Haitian employees did.” ¶ 14.

“On ... December 16, 2009, Mrs. [Deborah] Bria [the I.T. Manager, who is non-Haitian and non-Black] denied Plaintiff extra days off ... because Plaintiff was on vacation during a holiday period, but ... granted [extra] days off to a non-Black, non-Haitian employee who was also on vacation during a holiday period.” ¶ 17.

“On ... April 1, 2010, Mrs.... Bria ... began discriminating against Plaintiff. For example, Mrs. Bria, on many occasions, required Plaintiff to cut his lunch break short and return to work (where there was no emergency that required such), but Mrs. Bria did not treat other similarly situated employees not in the same protected class in such a manner.” ¶ 15.

“On ... December 10, 2010, Mrs. Bria repeated her discriminatory actions by granting Plaintiff's white, non-Haitian counterparts leave while denying Plaintiff the same privileges.” ¶ 17.

“All senior title employees, such as Plaintiff, had an office, but Plaintiff, being the only Black, Haitian employee in his department, did not.” ¶ 18.

Count I, “Violation of Title VII of the Civil Right[s] Act of 1964: Discrimination Based on National Origin” incorporates the first 18 paragraphs of the complaint and adds an additional 13 paragraphs, quotes from Title VII the text of 42 U.S.C. § 2000e–2(a)⁵ and alleges that “Plaintiff was discriminated against by his supervisors because he was Haitian,” ¶ 25; “Defendant, through its practices and policies as an employer, ... discriminated against Plaintiff on account of his national origin ... with respect to its decision to treat Plaintiff different from other similarly situated employees who are not in the same protected class as Plaintiff,” ¶ 28; and “Plaintiff was fired by Defendant and Plaintiff's termination from employment was directly and proximately caused by the Defendant's unjustified discrimination against Plaintiff because ... he was Haitian,” ¶ 29.

Count III, “Discrimination Based on Race in Violation of § 1981,” incorporates paragraphs 1 through 18 of the complaint and alleges that “Defendant has engaged in a pattern of continuous discrimination against Plaintiff based on his race.” ¶ 46. “During the course of his employment ... Plaintiff was continually and repeatedly subjected to severe and pervasive racial discrimination by Defendant's agents because of racial animus towards Plaintiff.” ¶ 47. “Defendant crafted and implemented a plan to eventually terminate Plaintiff based upon his race.” ¶ 48. “Plaintiff was singled out for treatment in a discriminatory manner by Defendant because of his race.” ¶ 49. “Defendant, and its supervisory personnel, was aware that discrimination on the basis of race was unlawful but acted in reckless disregard of the law. Plaintiff complained to Defendant's Human Resources Department on ... December 28, 2010.” ¶ 50. “The actions and language of the Defendant were so severe and pervasive as to alter the terms, conditions, and/or privileges of his employment with the Defendant.” ¶ 51. “Defendant's actions were based upon Plaintiff being a Black individual. The Defendant subjected Plaintiff to race-based animosity.” ¶ 52. “At all times material hereto, the employees exhibiting discriminatory conduct towards Plaintiff were all in a position that possesses the authority to affect the terms, conditions, and privileges of the Plaintiff's employment with Defendant.” ¶ 57.

B.

G4S apparently concluded that the “well-pleaded facts” of Barthelus's complaint were sufficient, under Ashcroft v. Iqbal,“to permit the [district] court to infer more than the mere possibility of misconduct,” 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009), and therefore bypassed filing a motion to dismiss or a motion for a more definite statement under Federal Rules of Civil Procedure 12(b)(6) or 12(e),⁶ respectively, and answered the complaint, on October 3, 2012.

G4S's answer responds to the complaint paragraph-by-paragraph, denies the allegations of discrimination and retaliation, and asserts that “Plaintiff received a number of poor performance reviews, including by Mr. Galusha,” ¶ 12; that “Plaintiff [was informed] that his employment would be terminated if he did not improve,” ¶ 36; and that, “after receiving a variety of poor performance evaluations and warnings, Plaintiff complained to human resources,” ¶ 50.

After responding to the complaint's paragraphs, the answer asserts six affirmative defenses, including that “Plaintiff cannot establish a prima facie case of discrimination”; “Defendant terminated Plaintiff for legitimate nondiscriminatory reasons”; and that “Plaintiff's claims are barred by the applicable statute of limitations.” Answer at 6.

C.

Three days after G4S filed its answer, the District Court set the case down for trial on July 29, 2013, and ordered the parties' discovery monitored by the Magistrate Judge. After discovery concluded, the parties filed a pretrial stipulation [ECF No. 64]. Among other things, they described their respective contentions.

According to Barthelus, he

filed a Complaint against Defendants alleging: 1) Discrimination Based On Race and National Origin in Violation of Title VII of the Civil Rights Act of 1964; 2) Retaliation in Violation of Title VII of the Civil Rights Act of 1964; 3) Discrimination Based On Race in Violation of 42 U.S.C. § 1981; 4) Retaliation in Violation of 42 U.S.C. § 1981.

Defendant hired Plaintiff to work as a Senior Network Administrator. Plaintiff worked for Defendant from December 29, 1997 through February 10, 2011. Plaintiff claims that several of Defendant's agents discriminated against Plaintiff based on the fact that he is a Black Haitian. These instances of discrimination include, but are not limited to, the following: Plaintiff was subject to a very negative, though highly inaccurate, performance review and when Plaintiff's immediate supervisor sought to amend the review, the amendment was rejected by a non-Black, non-Haitian supervisor; Plaintiff was unjustifiably asked to cut his lunch break short by a non-Black, non-Haitian supervisor on numerous occasions; Plaintiff was denied a promotion because he had a Haitian accent; Plaintiff was denied vacation days at times when other similarly-situated, though non-Black, non-Haitian employees were not; and Plaintiff was not given an office whereas other similarly-situated, though non-Black,...