Plaisance v. Travelers Ins. Co., Civ. A. No. 1:93-cv-1021-RLV.

• Citation: 880 F. Supp. 798
• Decision Date: 20 May 1994
• Docket Number: Civ. A. No. 1:93-cv-1021-RLV.
• Parties: Kenneth M. PLAISANCE, Plaintiff, v. TRAVELERS INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

880 F. Supp. 798

Kenneth M. PLAISANCE, Plaintiff, v. TRAVELERS INSURANCE COMPANY, Defendant.

Civ. A. No. 1:93-cv-1021-RLV.

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

May 20, 1994.

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Plaintiff appeared pro se.

John F. Wymer, Powell, Goldstein, Frazer & Murphy, Atlanta, GA, for defendant.

ORDER

VINING, Chief Judge.

After carefully considering the report and recommendation of the magistrate judge, the court hereby adopts it as the opinion and order of this court. This court notes that the magistrate judge's conclusion that the 1991 amendments to the Civil Rights Act are not retroactive has been confirmed by the United States Supreme Court. See Landgraf v. USI Film Products, ___ U.S. ___, 114 S.Ct. 1522, 128 L.Ed.2d 229 (1994); Rivers v. Davison, ___ U.S. ___, 114 S.Ct. 1483, 128 L.Ed.2d 229 (April 26, 1994).

SO ORDERED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HARPER, United States Magistrate Judge.

Presently before the undersigned Magistrate Judge is defendant's motion for summary judgment filed January 20, 1994. (Docket No. 31). In a letter dated January 24, 1994, the Clerk of Court notified plaintiff of the filing of this motion, of his duty to respond, and of the possible consequences of a failure to respond. Plaintiff has in fact filed a written response to defendant's motion. (Docket No. 36). Based upon these facts, the undersigned Magistrate Judge finds that defendant's motion for summary judgment is now ripe for review.

Under the Federal Rules of Civil Procedure, 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). On summary judgment, the parties must satisfy the following burdens of proof:

The party moving for summary judgment bears the initial burden of "identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). An issue of fact is "material" if it is a legal element of the claim, as identified by the substantive law governing the case, such that its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Once the moving party meets this initial burden, summary judgment is then appropriate as a matter of law against the nonmoving party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. In making a sufficient showing, the nonmoving party must "go beyond the pleadings and by ... affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e). In opposing summary judgment, the nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Instead, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970)). If, so viewed, a rational trier of fact could find a verdict for the nonmoving party under the substantive evidential standard, the nonmoving party can defeat summary judgment. Id. 477 U.S. at 252, 106 S.Ct. at 2512.

Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-9 (11th Cir.1992).

It should be noted that conclusory allegations based on mere subjective beliefs do not create a genuine issue of material fact. Carter v. Miami, 870 F.2d 578, 585 (11th Cir.1989); Ramsey v. Leath, 706 F.2d 1166, 1170 (11th Cir.1983). See also, Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir.1990) (collecting cases). Specifically, in regards to plaintiff's claim under Title VII of the Civil Rights Act of 1964, it is well established that a Title VII plaintiff opposing a motion for summary judgment must present significantly probative evidence on the issue of discrimination to avoid summary judgment. Young v. General Foods Corp., 840 F.2d 825 (11th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989); Grigsby v. Reynolds Metals Co., 821 F.2d 590 (11th Cir.1987). Reliance solely upon speculation and unsubstantiated hearsay constitutes a failure to meet this burden. See, e.g., Palucki v. Sears, Roebuck and Co., 879 F.2d 1568 (7th Cir. 1989) ("a party to a lawsuit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture"); Benson v. Vermont American Corp., 723 F.Supp. 1439 (M.D.Ala.1988) ("inadmissible evidence offered in the form of a deposition, cannot be considered by the court"), aff'd without opinion, 874 F.2d 820 (11th Cir.1989); Williams v. Housing Authority, 709 F.Supp. 1554 (M.D.Fla.1988) ("the court cannot base direct-evidence analysis on hearsay testimony by plaintiff"), aff'd without opinion, 872 F.2d 434 (11th Cir.1989).

In light of the above standard and resolving all evidentiary conflicts in favor of plaintiff as non-movant for purposes of considering defendant's motion for summary judgment, the undersigned finds that the following is an accurate summary of the relevant facts underlying plaintiff's claims. To the extent that further facts are relevant to each of plaintiff's claims, these facts are discussed further below.

Plaintiff was initially hired by defendant into the position of claims representative trainee on May 22, 1989. After completing his training period, plaintiff became an outside claims representative in defendant's Danvers, Massachusetts, office. Plaintiff's starting salary was $27,000.00 per year.

In December 1989, plaintiff was promoted to the position of serious bodily injury claims representative. This promotion involved an increase in salary. In April 1990, plaintiff was promoted once again, this time to the position of Technical Specialist. Once again, this promotion involved an increase in salary.

In January 1990, plaintiff informed Donald Johnson, defendant's Danvers office manager, of his desire to transfer to another office. In particular, plaintiff expressed his interest in the Atlanta office or another office in the south. Additionally, plaintiff notified defendant's Atlanta office manager, Douglas R. Granberry, of his desire to transfer to that office and requested that Granberry keep him informed regarding any openings in the Atlanta office. At the time plaintiff informed Johnson of his desire to transfer, Johnson expressed reticence to grant such a transfer based upon his desire to keep plaintiff in the Danvers office.

In July 1990, plaintiff visited defendant's Atlanta office while on vacation. Plaintiff discovered that the Atlanta office had an opening for an individual in the position of Litigation Technical Specialist. One of the requirements for the position was a minimum of five years experience in the management of claims and claims litigation.

Plaintiff asked the office receptionist about the position. The individual informed plaintiff that defendant desired to fill the position with an internal candidate. Plaintiff then informed the receptionist that he was in fact an employee with defendant. The receptionist then informed plaintiff that the period for applications by internal candidates had expired; but, pursuant to company policy, he could still submit his application and be considered along with the external candidates.

Plaintiff applied for the position. Despite concerns about plaintiff's apparent lack of experience, Granberry interviewed plaintiff for the position on July 3, 1990. During the course of this interview, information provided by plaintiff confirmed the fact that he lacked the five year experience requirement. The Atlanta position was eventually awarded to an external candidate, Phillip Krajec, a white male.

Plaintiff subsequently applied for a supervisor position in the Danvers office. Maureen Mullins, a white female, was eventually selected for this position.

In April 1990, plaintiff received a formal annual performance review in which he rated as at least an average performer. After Susan Lyle became plaintiff's direct supervisor in July 1990, plaintiff received two additional performance reviews. In September 1990, plaintiff was noted as still performing in at least a satisfactory manner. In November 1990, some deficiencies were noted in plaintiff's performance. These two informal reviews of plaintiff's performance, however, had absolutely no effect on plaintiff's pay, benefits, or employment status.

On October 30, 1990, plaintiff filed a charge of discrimination with the Equal Employment Opportunity...