Brandon v. Lockheed Martin Aeronautical Systems

• Decision Date: 29 September 2005
• Docket Number: Civil Action No. 1:04-CV-2162-RLV.
• Citation: 393 F.Supp.2d 1341
• Parties: William S. BRANDON, Plaintiff, v. LOCKHEED MARTIN AERONAUTICAL SYSTEMS and International Association of Machinists and Aerospace Workers, Local Lodge 709, AFL-CIO, Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1341

393 F.Supp.2d 1341

William S. BRANDON, Plaintiff, v. LOCKHEED MARTIN AERONAUTICAL SYSTEMS and International Association of Machinists and Aerospace Workers, Local Lodge 709, AFL-CIO, Defendants.

Civil Action No. 1:04-CV-2162-RLV.

United States District Court, N.D. Georgia, Atlanta Division.

September 29, 2005.

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William S. Brandon, Taylorsville, GA, pro se.

Joshua H. Viau, Richard M. Escoffery, Stanford Glenn Wilson, Elarbee Thompson Sapp & Wilson, James D. Fagan, Jr., Megan Elizabeth Gideon, Stanford & Fagan, Atlanta, GA, for Defendants.

ORDER

VINING, Senior District Judge.

After carefully considering the report and recommendation of the magistrate judge, together with the objections thereto, the court receives it with approval and adopts it as the opinion and order of this court with the following addition. In discussing the plaintiff's claim under the Americans with Disabilities Act. 42 U.S.C. § 12101, et seq., the magistrate judge said, "Thus to establish a prima facie case under the ADA, the plaintiff must show that he (1) is disabled; (2) is a qualified individual; and (3) was subjected to unlawful discrimination because of his disability. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th Cir.1999); see also Collado v. United Parcel Serv. Co., 419 F.3d 1143, 1149-50 (11th Cir.2005)." Id. at 1155-56. The court adds the following footnote to that citation:

The Eleventh Circuit, starting with Morisky v. Broward County, 80 F.3d 445 (11th Cir.1996), has consistently formulated the third prong in this manner. See, e.g., Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220 (11th Cir.1999) ("was subjected to unlawful discrimination because of her disability"); Maynard v. Pneumatic Products Corp., 233 F.3d 1344 (11th Cir.2000) ("he was discriminated against because of his disability"); Collado v. United Parcel Service Co., 419 F.3d 1143 (11th Cir.2005) ("was discriminated against based on his disability"). This, of course, is incorrect because if a plaintiff has proved that he was discriminated against because of his disability, he has actually proved his entire case (and he is entitled to have judgment entered in his favor), not simply made a prima facie showing. The third prong should be a showing of adverse employment action — the same as in other discrimination suits. This error began when Morisky formulated the three-prong test and then cited Tyndall v. National Education Centers, 31 F.3d 209, 211 (4th Cir.1994) in support. However, Tyndall formulated this three-prong test as a method by which a plaintiff could establish that 42 U.S.C. § 12112(a) had been violated (and, thereby, win his case), not as a way of presenting a prima facie case. Because of Morisky's improper citation to Tyndall and because the Eleventh Circuit has failed to correct this error, a plaintiff, seemingly, has the burden of proving his entire case as part of his prima facie case. (If a plaintiff has actually "proved he was discriminated against because of his disability," ipso facto, there can be no legitimate, nondiscriminatory reasons for the employer's actions.) However, the purpose of a prima facie case is merely to present facts from which an inference of discrimination can be made. Despite the way that the Eleventh Circuit has articulated this prong of the test, that court has never applied the prong as stated. Instead, the Eleventh Circuit has simply required a plaintiff to present facts from which an inference of discrimination can be made (as is true in all other discrimination cases). This court, following the practice of the Eleventh Circuit, if not the language of the Eleventh Circuit, will not require a plaintiff to prove discrimination as part of his prima facie case; instead, the court will require only that he show that adverse employment action was taken. (The undersigned notes that he had the opportunity to correct this misstatement of the third prong but, regrettably, neglected to do so. See Gordon v. E.L. Hamm & Associates, Inc. 100 F.3d 907 (11th Cir.1996).)

SO ORDERED, this 29th day of September 2005.

FINAL REPORT & RECOMMENDATION

JOHNSON, United States Magistrate Judge.

Plaintiff pro se, William S. Brandon, worked for defendant Lockheed Martin Corporation (hereafter "Lockheed"). He is a member of a bargaining unit represented by defendant International Association of Machinists and Aerospace Workers, Local Lodge 709, AFL-CIO (hereafter "Local 709"). Following a force reduction at Lockheed that led to his layoff, plaintiff pro se filed this suit [1], asserting that Lockheed discriminated against him on the basis of an alleged disability (monocular vision) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, and 42 U.S.C. § 1983; retaliated against him; created a hostile working environment for him; and conspired with Local 709 to violate his civil rights. Plaintiff's claims against Local 709 are conspiracy and the union's breach of its duty of fair representation with regard to the conduct on which his employment discrimination claims against Lockheed are predicated. See Compl. [1], Count I, ¶¶ 9-11, 13-15.

This matter is now before the Court upon Motions for Summary Judgment filed by Local 709[37] and Lockheed [39]. For the reasons explained below, the undersigned RECOMMENDS that said Motions be GRANTED.

I. Statement of Facts

As required by Local Rule 56.1(B)(1), both movants submitted briefs supporting their respective motions for summary judgment. See Brief in Support of Local Lodge 709's Motion for Summary Judgment [37]; Defendant Lockheed Martin Aeronautical Systems' Memorandum in Support of its Motion for Summary Judgment [40]. Local Rule 56.1(B)(2) requires plaintiff pro se to submit a responsive brief. He failed to do so. That failure leaves defendants' legal arguments unaddressed. "When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned." Hudson v. Norfolk S. Ry. Co., 209 F.Supp.2d 1301, 1324 (N.D.Ga.2001) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (en banc)); see also Bute v. Schuller Int'l Inc., 998 F.Supp. 1473, 1477 (N.D.Ga.1998) ("Because plaintiff has failed to respond to this argument or otherwise address this claim, the Court deems it abandoned.").

Despite plaintiff pro se's default on his obligation to file a brief responding to the instant motions for summary judgment, the Court cannot simply recommend entry of summary judgment. Instead, the merits of the motions must be considered. See United States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir.2004) ("[T]he district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion."). This is because Fed.R.Civ.P. 56(e) provides that, where "`the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party.'" Id. (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court defined "appropriate" as a situation where 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. Id. (quoting Fed.R.Civ.P. 56(c)); see also Trs. of Cent. Pension Fund of Int'l Union of Operating Eng'rs & Participating Employers v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039 (11th Cir.2004) (per curiam).

Thus, the Court must review the record to determine whether, despite that default, entry of summary judgment is appropriate because no disputed issues of material fact remain for trial. In this District, the process for separating disputed from undisputed material facts is governed by Local Rule 56.1(B). In compliance with Local Rule 56.1(B)(1), defendants as movants filed separate statements of undisputed, material facts. See Local 709's Statement of Undisputed Material Facts in Support of Motion for Summary Judgment [37] (hereafter "Local 709's SUMF"); Defendant Lockheed Martin Aeronautical Systems' Statement of Material Facts as to Which There is no Genuine Issue to be Tried [41] (hereafter "Lockheed's SUMF").

Local Rule 56.1(B)(2)(a) requires the opposing party to submit a response to a movant's statement of undisputed material facts. Plaintiff pro se complied with that requirement. See "Plaintiff William S. Brandon Statement of Objections for Motion of Summary of Judgement" [sic][45] (containing twenty-four paragraphs and likely responding to Local 709's SUMF, which has twenty-six paragraphs) (hereafter "Pl.'s Resp. to Local 709's SUMF"); "Plaintiff William S. Brandon Statement of Material Facts that There Is a Genuine Issue to Be Tried" [45] (containing thirty-two paragraphs and likely responding to Lockheed's SUMF, which also has thirty-two paragraphs) (hereafter "Pl.'s Resp. to Lockheed's SUMF").

However, plaintiff pro se failed to provide relevant citations to any record evidence supporting the factual statements found in those responses. Under the Local Rules, that failure has consequences. See LR 56.1(B)(2)(a)(2) ("This Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's fact with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1B.(1).").

Therefore, the Court must deem each movant's statement of undisputed, material facts to be admitted. See Digioia v. H Koch &...