Ritchey v. Southern Nuclear Operating Co. Inc, 10-11962

• Decision Date: 20 April 2011
• Docket Number: D.C. Docket No. 2:07-cv-01844-RDP,No. 10-11962,10-11962
• Parties: RENEE RITCHEY, Plaintiff-Appellant, v. SOUTHERN NUCLEAR OPERATING COMPANY, INC., DUANE BROCK, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

RENEE RITCHEY, Plaintiff-Appellant,

v. SOUTHERN NUCLEAR OPERATING COMPANY, INC., DUANE BROCK, Defendants-Appellees.

No. 10-11962

D.C. Docket No. 2:07-cv-01844-RDP

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Filed: April 20, 2011

DO NOT PUBLISH

Appeal from the United States District Court

for the Northern District of Alabama

Before BARKETT, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

Renee Ritchey appeals the district court's grant of summary judgment in favor of Southern Nuclear Operating Company ("SNOC") and Duane Brock (collectively "the defendants") as to her claims alleging (1) discrimination and harassment based on gender, and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a), 2000e-3(a); (2) violations under the Equal Pay Act, 29 U.S.C. § 206(d)(1); (3) violations under the Age Discrimination in Employment Act of 1975 ("ADEA"), 29 U.S.C. § 623; and (4) violations of various Alabama state provisions prohibiting the negligent hiring, training, supervision, and retention of employees, and the intentional infliction of emotional distress. On appeal, Ritchey does not challenge the substantive legal conclusions of the district court as to her various claims, but instead argues that the district court made procedural errors in applying the summary judgment standard. After careful review of the record and the parties' briefs, we affirm.

I.

Ritchey first argues that the district court erred by failing to determine whether the defendants discharged their initial summary judgment burden under Federal Rule of Civil Procedure 56, and that the defendants actually failed to discharge that burden. We review a district court's order granting summary judgment de novo, viewing all the facts in the record in the light most favorable tothe non-moving party, and drawing all inferences in its favor. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). "The movant bears the initial responsibility of informing the district court of the basis for its motion by identifying those portions of the record that demonstrate the absence of genuine issues of material fact." Baldwin Cnty. v. Purcell Corp., 971 F.2d 1558, 1563 (11th Cir. 1992) (quotation marks omitted). A party must support its assertion that there is no genuine issue of material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1).

Ritchey argues that district court failed to determine whether the defendants discharged their initial summary judgment burden, and further that the defendants did not discharge that burden because the argument section of the defendants' memorandum of law in support of their motion for summary judgment did not include explicit cross-references to the numbered paragraphs in the defendants' statement of undisputed facts. First, we observe that Ritchey did not argue that the defendants failed to meet their initial summary judgment burden before the district court in her response to the defendants' motion for summary judgment. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)(holding that any arguments not raised in the district court are deemed waived and are not considered on appeal). However, we consider this argument on appeal to the extent that Ritchey appears to argue that the district court erred in failing to determine sua sponte whether the defendants had discharged their initial summary judgment burden. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 609 n.9 (11th Cir. 1991) (directing district courts to "begin their inquiries on a motion for summary judgment by asking whether the moving party has met its burden").

We conclude that the district court did not err. The district court properly explained that "[t]he party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact." But the district court then proceeded to consider whether Ritchey could establish a genuine issue of material fact on each of her numerous claims, without first explicitly stating whether the defendants had satisfied their initial burden. Nevertheless, we conclude from the district court's proper recognition of the defendant's initial summary judgment burden that the district court implicitly found that the defendants discharged their burden in this case. Furthermore, we agree with that finding. The defendants properly informed the district court of the basis of the summary judgment motionby submitting a statement of undisputed facts that was individually supported by citations to the record, and then asserting a lack of legal basis underlying each of Ritchey's employment claims. See Baldwin Cnty., 971 F.2d at 1563. We reject Ritchey's suggestion that the district court was required to find sua sponte that the defendants failed to discharge their initial burden simply because the argument section of their memorandum of law did not explicitly cross-reference the numbered paragraphs contained in their statement of undisputed facts. Instead, we conclude that the district court did not err by implicitly finding that the defendants discharged their initial summary judgment burden in this case.

II.

Ritchey next argues that the district court erred in failing to view all the evidence in the light most favorable to her. Once the moving party satisfies its initial responsibility, as described above, the burden shifts to the nonmoving party to rebut the movant's showing with sufficient evidence. Baldwin Cnty., 971 F.2d at 1563. "When the evidence presented by the nonmoving party is merely colorable, or is not significantly probative, summary judgment may be granted." Id. (quotation marks omitted). The nonmoving party must provide more than a "mere scintilla of evidence" to survive a motion for summary judgment, and there must be "sufficient disagreement" in evidence to support a jury question.Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc) (quotation marks omitted). Likewise, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Baldwin Cnty., 971 F.2d at 1563 (quotation marks omitted). "A fact is material only when the dispute over it has the potential to change the outcome of the lawsuit under the governing law if found favorably to the nonmovant." Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1455 (11th Cir. 1997).

Ritchey takes issue with several factual findings of the district court, but makes no legal arguments tying those findings to her underlying claims. Instead, she challenges those factual findings in isolation, without any explanation for why those factual disputes are material, or even relevant, to her claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986) ("[T]he substantive law will identify which facts are material."). For example, Ritchey first takes issue with the district court's finding that she was a "poor performer," but she does not explain how a contrary finding that she was, instead, not a poor performer could change the outcome at summary judgment as to of any of her claims. See Zaben, 129 F.3d at 1455. Similarly, Ritchey argues that the districtcourt erred in finding that the Performance Improvement Plan ("PIP") she was placed on was not punitive in nature, and that SNOC appropriately responded to Ritchey's internal complaints. But, again, Ritchey fails to explain how a rejection of these factual findings would preclude summary judgment on any of her claims.¹ Ritchey cannot prevail at summary judgment without establishing the existence of some genuine issue of material fact. See Baldwin Cnty., 971 F.2d at 1563. Because the "the substantive law will identify which facts are material," Anderson, 477 U.S. at 248, 106 S. Ct. at 2510, Ritchey's failure to make any arguments based on substantive law is fatal to her arguments on appeal.²

We also reject Ritchey's argument that the...