In re King

• Decision Date: 17 September 2013
• Docket Number: Civil Action No. 1:11–cv–1901–TCB.
• Parties: Nicole V. KING and Jennifer S. Tahan, Plaintiffs, v. FERGUSON ENTERPRISES, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

971 F.Supp.2d 1200

Nicole V. KING and Jennifer S. Tahan, Plaintiffs,

v.FERGUSON ENTERPRISES, INC., Defendant.

Civil Action No. 1:11–cv–1901–TCB.

United States District Court,

N.D. Georgia,

Atlanta Division.

Sept. 17, 2013.

Cheryl Barnes Legare, Edward D. Buckley, Jaime Lyn Duguay, Steven Eric Wolfe, Buckley & Klein, LLP, Atlanta, GA, for Plaintiffs.

Ronald G. Polly, Jr., Willie C. Ellis, Jr., Hawkins Parnell Thackston & Young, LLP, Atlanta, GA, for Defendant.

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

This Title VII case is before the Court on Defendant Ferguson Enterprises, Inc.'s objections ¹ [80] to the Magistrate Judge's Report and Recommendation [77], which recommends denying Ferguson's motion for summary judgment [48]. Also before the Court is Plaintiffs Nicole King and Jennifer Tahan's response to Ferguson's objections [81]. For the reasons below, the R & R is adopted in part, rejected in part, and Ferguson's motion of summary judgment is granted.

I. Standard of Review

After conducting a “careful and complete” review of a magistrate judge's findings and recommendations, a district judge may accept, reject or modify a magistrate judge's R & R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982) (per curiam) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir.1982) (en banc)) (internal quotation mark omitted). ²A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The district judge must “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990). Those portions of an R & R to which an objection is not asserted may be reviewed for clear error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983).

Here, the R & R primarily rests on the following findings and conclusions:

First, that despite their argument to the contrary, King and Tahan brought a gender-plus discrimination claim, [R & R at 17–18];

Second, that to succeed on their gender-plus claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973), King and Tahan must establish that they were replaced by a similarly situated comparator: namely, a male with similar responsibilities for young children—something they have not done,³ [R & R at 21, 28];

Third, that in Smith v. Lockheed—Martin Corp., 644 F.3d 1321 (11th Cir.2011), the Eleventh Circuit recognized an “Alternative Framework” that “effectively moots” the need for Title VII plaintiffs to establish a similarly situated comparator where they present circumstantial evidence sufficient to establish a triable issue regarding their employer's discriminatory intent, [R & R at 19, 23–24];

Fourth, that King and Tahan have presented sufficient evidence to allow a jury to reasonably infer that Ferguson terminated their employment based on sex under Smith 's Alternative Framework, [R & R at 30];

Fifth, that King and Tahan have raised a genuine issue of material fact regarding whether each of the eight nondiscriminatory reasons that Ferguson proffers for their termination is pretextual, [R & R at 40]; and

Sixth, that only King has a claim for pregnancy discrimination, which survives for the same reasons as her gender-plus claim, [R & R at 41–42].

Ferguson objects to the magistrate judge's consideration of the Alternative Framework. It argues that the magistrate judge should have ended his analysis when he concluded that King and Tahan failed to set forth a prima facie case under the McDonnell Douglas framework. Alternatively, Ferguson objects to the magistrate judge's application of the Alternative Framework. Ferguson also objects to the magistrate judge's conclusion that King and Tahan successfully rebutted all eight of the nondiscriminatory reasons it proffered for terminating them. Lastly, and for the same reasons, Ferguson objects to the magistrate judge's conclusion that King's pregnancy-discrimination claim survives.

King and Tahan did not object to the R & R. But in their response to Ferguson's objections, they implicitly renew the argument that their claim is not for gender-plus discrimination. They also argue that their claim survives summary judgment whether or not they identified a similarly situated male comparator. As support, they rely on the so-called Alternative Framework of Smith, which, in their view, precludes summary judgment because sufficient circumstantial evidence exists to allow a reasonable jury to infer that Ferguson terminated them for unlawful reasons.

In short, the parties collectively dispute (whether explicitly or implicitly) each of the magistrate judge's principal findings and conclusions. While some objections were filed after the fourteen-day-objection deadline set by Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(B), this Court concludes that de novo review is appropriate for each principal finding and conclusion given their interrelated nature, the complexity of the issues, and the interests of justice. Cf. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir.2006) (per curiam) (finding that most circuits agree that de novo review of a R & R is not required absent a timely filed objection).

II. Background⁴A. The Hiring of King and Tahan

Ferguson Enterprises provides wholesale distribution and marketing of plumbing, heating and air conditioning, fitting, and valve products. In 2005–2006, Ferguson formed Atlanta HVAC. Although it had had a presence in Georgia for many years, this was its first stand-alone HVAC location in the state. At all times relevant here, Atlanta HVAC had two offices: a main office in Norcross and a satellite branch in Marietta.

Atlanta HVAC needed an operations manager.⁵ In September 2006, the general manager, Joseph Rogers, contacted Jennifer Tahan about rejoining the company in this capacity.⁶ She accepted and became the full-time operations manager for the main and satellite offices of Atlanta HVAC. In return, her compensation package included a $60,000 base salary, gas card, benefits, and an opportunity to earn a bonus.

When Tahan started in September 2006, however, Atlanta HVAC's business was slow. So she asked Rogers if on Mondays and Fridays she could work from home. He granted her request. But by mid–2007, Rogers suspected that she no longer wanted to work full time. In August, he inquired whether she would be interested in sharing the operations manager position and working part time. She was.

Rogers then contacted Nicole King about rejoining Ferguson ⁷ and working part time as Atlanta HVAC's operations manager. King accepted and began splitting the operations manager position with Tahan in August 2007. With two part-time employees fulfilling the full-time responsibilities of operations manager, Ferguson increased the position's base salary from $60,000 to $75,000, splitting it equally between Tahan and King. Their work schedule was likewise split: Tahan worked Monday and Tuesday; King worked Wednesday and Thursday; and they alternated working Friday.⁸

B. Changes in Management at Atlanta HVAC

In 2008, the economic downturn led to a steep decline in Atlanta HVAC's business. For example, Atlanta HVAC lost nearly $400,000 in fiscal year 2009. Like many businesses, Ferguson had to make tough decisions, including closing branch locations and reducing its workforce. At Atlanta HVAC, its changes included management. In October 2008, Rogers, who hired King and Tahan and implemented the job-share arrangement, was demoted from general manager to sales manager. In December of that year, the new general manager, Jonathan Wallace, arrived. A few months later, in May 2009, Ferguson replaced another rung of Atlanta HVAC's management ladder, terminating the district manager and consolidating his district. As a result, Ronald Bullington became the location's district manager.

More changes followed. Bullington did not believe that Atlanta HVAC's sales justified having both a sales and a general manager. Nor did he believe that having the former and current general manager, Rogers and Wallace, in the same location was a good idea. Thus, in July 2009 Bullington told Rogers that he had to leave Atlanta HVAC but that he would find him another job—which Bullington did. To remain with Ferguson, Rogers, a seventeen-year employee, accepted a statewide management position with Ferguson's plumbing division. ⁹

C. The End of King and Tahan's Employment at Atlanta HVAC

On August 4 and 5, 2009, Bullington made his first visit to Atlanta HVAC. During this visit, he and Wallace reviewed the branch's performance, including its staffing needs, financial performance, and plans for improvement. While there, Bullington met King, and they had a short conversation about her pregnancy. Bullington stated, “I see that you're pregnant,” and asked, “when are you due?” He also spoke with Tahan during this visit; this conversation focused on her plans for King's upcoming maternity leave, and he told her that Wallace, the general manager, would not be helping with operations.

After this visit, Wallace emailed himself and Bullington a summary of notes from their meetings, specifically areas for improvement in each Atlanta HVAC location and a list of proposed staffing changes and reductions. The next day Wallace forwarded that email to Charlotte Murch, adding a note that he was doing so “to provide the context of several proposed employee terminations.” Four days later, on August 10, Wallace emailed Bullington again; the subject line of this email states: “proposed staffing, Atlanta HVAC.” In both emails to Bullington (August 5 and August 10),¹⁰ Wallace suggests that King and Tahan's “New Position” will be “RIF” (reduction in force).

Almost three months passed, however, before Wallace meet with King and Tahan in early-October...