Mack v. WR Grace & Co.

Decision Date13 October 1983
Docket NumberCiv. No. C82-561.
Citation578 F. Supp. 626
PartiesJames W. MACK, Jr. v. W.R. GRACE COMPANY; Vic Annapole, Individually and in His Official Capacity as Plant Manager; and Edward Kinsel, Individually and in His Official Capacity as Supervisor of Quality Control.
CourtU.S. District Court — Northern District of Georgia



James W. Mack, Jr., pro se.

David M. Brown, Michael W. Higgins, William W. Gardner, Gambrell & Russell, Atlanta, Ga., for defendants.


ORINDA D. EVANS, District Judge.

This employment discrimination case, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and pursuant to the Civil Rights Act of 1870, 42 U.S.C. §§ 1981, 1983, 1985, and 1986, is before the Court on Plaintiff's and Defendants' cross-motions for summary judgment. Fed.R.Civ.P. 56. The Defendants move in the alternative for an order to compel the Plaintiff to answer interrogatories and to produce documents and for an award of costs and attorneys' fees incurred in obtaining the order. Fed. R.Civ.P. 37(a). Having determined to grant summary judgment for the Defendants and to deny summary judgment for the Plaintiff on most of Mr. Mack's claims, the Court dismisses his claims except for his § 1981 claims of discrimination with respect to salary, promotion, and training opportunities and his § 1985(3) claim of unlawful conspiracy to effect that discrimination. Because the Court's ruling does not dispose of all the issues in this case, the Court grants the Defendants' alternative motion to compel discovery and orders the parties to submit briefs on the Defendants' motion for an award of expenses and attorneys' fees.1


The Plaintiff, James W. Mack, Jr., was employed in the Dewey and Almy Chemical Division of the W.R. Grace Company as a second-shift laboratory technician, with work hours from 4:00 p.m. to 12:00 a.m., from June 30, 1976 to April 14, 1978. The division manufactures can sealing components, latex-based sealants, and carbon dioxide absorbents. Mr. Mack was responsible for performing quality tests on incoming raw materials and on finished materials, issuing "batch cards" directing the production crew how to blend batches of product, performing adjustment tests on finished materials to bring them within specifications, approving finished products for shipment to customers, directing the production crew how to work usable out-of-specification materials back into production, and performing special projects as assigned by his supervisors. Mr. Mack was directly supervised by the Technical Supervisor. Until July 1977, this was Steve LaPierre. In July 1977, Edward A. Kinsel, one of the individual Defendants, succeeded Mr. LaPierre as Technical Supervisor. Mr. Mack was under the observation of the Second Shift Production Supervisor, Mark J. Hancock, and of the Plant Manager, Victor I. Anapolle,2 who is also named as a Defendant. On April 14, 1978, Mr. Mack was discharged for fabricated test results, unexcused absences, tardiness, poor attitude, poor work performance, and lagging work schedules.

Mr. Mack filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 20, 1978, alleging that the company discharged him because of his race. Three years later, while the EEOC investigation of his charge was still pending, he requested a Right to Sue letter. The EEOC sent him a Notice of Right to Sue on November 5, 1981, and simultaneously terminated its processing of his charge. The record does not show, however, when Mr. Mack received his Notice of Right to Sue.

Mr. Mack filed his complaint in this Court on February 9, 1982, after having filed on February 5, 1982 a copy of his Notice of Right to Sue. He alleges that he was discharged from W.R. Grace Company because of his race and his opposition to the Defendants' unlawful employment practices; that Plant Manager Anapolle and Technical Supervisor Kinsel acted in concert with Jim Hurst, a company employee, Second Shift Production Supervisor Mark J. Hancock, and "others presently unknown" to remove him; that he was discriminated against with respect to salary, promotional, and training opportunities; that the reasons given for his discharge were pretexts for discrimination; that the Defendants made his work appear unsatisfactory by reporting that his test results were inaccurate and that he performed tests incorrectly; that he was discharged in retaliation for reporting this to his supervisors, Victor Anapolle and Edward Kinsel, and to another supervisor, Elmer Gould; and that his workload was as great or greater than that of the first shift, although he worked alone on the second shift and three lab technicians worked on the first shift. He seeks actual and punitive damages in the amount of $300,000, as well as unspecified declaratory and injunctive relief.

The corporate and individual Defendants maintain a joint defense. They raise issues of timeliness, the sufficiency of Mr. Mack's pleadings, and exhaustion of administrative remedies, in addition to disputing the merits of Mr. Mack's claims. The Court considers each of Mr. Mack's statutory causes of action in turn. Before turning to the individual statutory causes of action, however, the Court reviews the principles of summary judgment law that guide its decisionmaking.


Summary judgment is proper "if 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 a judgment as a matter of law." Fed.R. Civ.P. 56(c). The Court should grant summary judgment only if the party seeking judgment demonstrates that there is no genuine issue as to any material fact, when all evidence is viewed in the light most favorable to the party opposing the motion. Morrison v. Washington County, 700 F.2d 678, 682 (11th Cir.1983). In ruling on the motion for summary judgment, the Court may not decide issues of fact. Clemons v. Dougherty County, 684 F.2d 1365, 1369 (11th Cir.1982). The Plaintiff's and the Defendants' motions for summary judgment must be reviewed independently, see, e.g., Hosemann v. Technical Materials, Inc., 554 F.Supp. 659, 663 n. 12 (D.R.I.1982), and in the case of each, all reasonable doubts about the facts are to be resolved and all inferences from the facts are to be drawn in favor of the party opposing the motion. Impossible Electronics Techniques, Inc. v. Wackenhut Protective Services, Inc., 669 F.2d 1026, 1031 (5th Cir.1982) (Former Fifth Circuit case). The party opposing the motion for summary judgment need not respond to it with affidavits or other evidence until the moving party carries its burden of showing that no material fact is in dispute. Id. Once the moving party makes a convincing showing, however, the opposing party must demonstrate by receivable facts that a real controversy exists. Mandalay Shores Cooperative Housing Association, Inc. v. Pierce, 667 F.2d 1195, 1197 (5th Cir.1982) (Former Fifth Circuit case), quoting Bruce Construction Corporation v. United States, 242 F.2d 873, 875 (5th Cir.1957). At that point, mere allegations unsupported by evidence cannot defeat summary judgment. E.g., Pines v. Warnaco, Inc., 706 F.2d 1173, 1178 (11th Cir.1983).

Courts are properly cautious about granting summary judgment in employment discrimination cases when issues of discriminatory intent are raised because intent is often difficult to discern in advance of trial. Bullard v. Omi Georgia, Inc., 640 F.2d 632, 634 (5th Cir.1981); Hayden v. First National Bank of Mount Pleasant, 595 F.2d 994, 997 (5th Cir.1979). Nonetheless, when an employer makes a convincing showing that it discharged an employee for non-discriminatory reasons and the discharged employee introduces no evidence that the non-discriminatory reasons proffered by the employer are pretextual and no evidence from which an inference of pretext can rationally be drawn, summary judgment for the employer is appropriate. Bleakley v. Jekyll Island— State Park Authority, 536 F.Supp. 236, 246 (S.D.Ga.1982); Oaks v. City of Fairhope, 515 F.Supp. 1004, 1009 & n. 1 (S.D. Ala.1981); Womack v. Shell Chemical Co., 514 F.Supp. 1062, 1066 (S.D.Ala.1981). A genuine issue of fact precluding summary judgment is one that can be maintained by substantial evidence. Lipschutz v. Gordon Jewelry Corp., 373 F.Supp. 375, 383 (S.D. Tex.1974). The discharged employee can not then rely on allegations in his complaint, Fed.R.Civ.P. 56(e); International Woodworkers of America, AFL-CIO, CLC v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1271 (4th Cir.1981), or on promises or speculations that he may be able to prove discriminatory intent at trial,3 to withstand the employer's convincing showing that no unlawful discrimination occurred. He must be prepared to counter the employer's showing with an adequate offer of proof that the employer's reasons for discharge are in fact a pretext for discrimination. Cartagena v. Secretary of Navy, 618 F.2d 130, 135, 137 (1st Cir.1980) (per curiam); Hosemann v. Technical Materials, Inc., 554 F.Supp. 659, 664 (D.R.I. 1982).

With these principles in mind, the Court turns to an examination of Mr. Mack's statutory causes of action.


Before addressing the Defendants' arguments, the Court finds it necessary to discuss whether Mr. Mack's Title VII claims were timely filed. The record does not reveal when Mr. Mack received from the EEOC notice of his right to sue. This date determines whether his Title VII claims were timely filed. Although the Court thus can not ascertain whether Mr. Mack filed his complaint within ninety-three days after he received notice of his right to sue,5 the record shows that he filed a copy of his notice letter in the...

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