Smith v. Beverly Health and Rehabilitation Services

• Decision Date: 24 June 1997
• Docket Number: Civil Action No. 1:96-CV-200-FMH.
• Citation: 978 F.Supp. 1116
• Parties: Marchell D. SMITH, Plaintiff, v. BEVERLY HEALTH AND REHABILITATION SERVICES, INC., a California Corporation; and Medical Arts Health Facility of Lawrenceville, Inc., a Georgia Corporation, Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1116

978 F.Supp. 1116

Marchell D. SMITH, Plaintiff, v. BEVERLY HEALTH AND REHABILITATION SERVICES, INC., a California Corporation; and Medical Arts Health Facility of Lawrenceville, Inc., a Georgia Corporation, Defendants.

Civil Action No. 1:96-CV-200-FMH.

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

June 24, 1997.

Frank J. Beltran — Beltran & Bills, Atlanta, GA; Mark Earle Layng — Office of Mark Earle Layng, Lilburn, GA, for Plaintiff.

Ann Bachman Hale-Smith & Gary Richard Kessler — Irvin, Stanford & Kessler, Atlanta, GA, for Defendants.

ORDER

HULL, District Judge.

Plaintiff Marchell D. Smith brings this employment discrimination action against Defendants under Title VII and § 1981. This matter is before the Court on Magistrate Judge John R. Strother's Report and Recommendation [19-1] recommending that this Court deny Plaintiff's Motion for Summary Judgment [11-1] and grant Defendants' Motion for Summary Judgment [10-1] on all of Plaintiff's claims. Plaintiff filed Objections [20-1] to Magistrate Judge Strother's Report and Recommendation.

I. FACTS

The facts of this case are outlined in detail in Magistrate Judge Strother's Report and Recommendation and the Court only summarizes them here.

Plaintiff is a certified nursing assistant at Defendants' nursing home facility in Lawrenceville, Georgia. For four to four and one half months, Plaintiff's supervisor was a licensed practical nurse named Sue Conners. According to Plaintiff, Conners uttered racial slurs and epithets on numerous occasions, made numerous derogatory comments, and engaged in several actions Plaintiff viewed as racially demeaning or derogatory. Plaintiff alleges that Conners' behavior created a hostile work environment that Defendants did not attempt to remedy.

Plaintiff also alleges that an individual episode involving one of Defendants' patients evidences a hostile work environment. The patient requested that she not receive any care from any black males. In response to the patient's request, Defendants directed that a "post-it" note be placed on a monthly flow sheet directing that "no black males" care for this particular patient. Plaintiff acknowledges that this episode did not reflect any personal racial animus towards him or any other black male employee, but Plaintiff was offended by the note nonetheless.

II. DISCUSSION

Plaintiff objects to Magistrate Judge Strother's Report and Recommendation on four grounds. Plaintiff contends that: (1) the Magistrate Judge did not have jurisdiction to rule on the parties' Motions for Summary Judgment, that his Report and Recommendation should be vacated and stricken from the record, and that this Court should review the parties' Motions for Summary Judgment "without deference to the Magistrate's improper and void recommendation," Pla. Brief, at 11; (2) assuming he had jurisdiction to consider the Motions, the Magistrate Judge improperly made factual determinations where questions of fact exist; (3) the Magistrate Judge failed to apply the proper legal principles; and (4) the Magistrate Judge did not view the facts in the light most favorable to Plaintiff in reviewing Defendants' Motion for Summary Judgment.

A. The Magistrate Judge's Authority To Review Motions For Summary Judgment

Plaintiff contends that Magistrate Judge Strother did not have jurisdiction to review the parties' Motions for Summary Judgment because the parties expressly did not consent to proceed before the Magistrate Judge. In support of his position, Plaintiff cites 28 U.S.C. § 636(b)(1)(A), which states:

[A] judge may designate a magistrate to hear and determine any pretrial matter before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.

28 U.S.C. § 636(b)(1)(A) (emphasis supplied).¹

However, the very next subparagraph of § 636 states as follows:

[A] judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, on any motion excepted in subparagraph (A)....

28 U.S.C. § 636(b)(1)(B) (emphasis supplied). Read as a whole, § 636 permits a district judge to designate a magistrate judge to rule on any pre-trial motion save for those excepted in § 636(b)(1)(A). Regarding those motions excepted in § 636(b)(1)(A), a magistrate judge cannot issue a dispositive ruling on any of these motions without express consent from the parties, but a magistrate judge can issue proposed findings of fact and recommendations for the disposition of any of these motions. See 28 U.S.C. § 636(b)(1)(B).

When this case was filed, it was referred or designated to Magistrate Judge Strother pursuant to Rule 920-2(a) of the Internal Operating Procedures of this Court. Pursuant to this reference or designation, Magistrate Judge Strother heard and determined all of the non-dispositive pre-trial matters in this case. Further, Magistrate Judge Strother considered the dispositive motions in this case, i.e., the parties' Motions for Summary Judgment, and entered proposed findings of fact and recommendations for the disposition of these motions. Thus, Magistrate Judge Strother's issuing his Report and Recommendation on the parties' Motions for Summary Judgment complied with both the spirit and the letter of § 636(b)(1)(B) and Rule 920-2(a) of the Internal Operating Procedures of this Court.

For these reasons, the Court DENIES Plaintiff's request to vacate Magistrate Judge Strother's Report and Recommendation and to strike it from the record. Magistrate Judge Strother's Report and Recommendation was entered properly and is not, as Plaintiff characterizes it, "void." The Court reviews de novo those portions of Magistrate Judge Strother's Report and Recommendation to which Plaintiff specifically objects. See 28 U.S.C. § 636(b)(1)(C). Further, contrary to Plaintiff's arguments, those portions of Magistrate Judge Strother's Report and Recommendation to which Plaintiff does not specifically object are entitled to deference. Id.; Fed.R.Civ.P. 72(b) & advisory committee's note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").

B. Plaintiff's Hostile Work Environment Claim

To state a claim for hostile work environment harassment, Plaintiff must show that he was subject to a workplace "permeated with `discriminatory intimidation, ridicule, and insult.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986)); Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir.1995). Plaintiff must show that the discriminatory atmosphere was "sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." Harris, 510 U.S. at 23, 114 S.Ct. at 371 (quoting Meritor, 477 U.S. at 67, 106 S.Ct. at 2405); Edwards, 49 F.3d at 1521.

It is not sufficient that Plaintiff merely highlight a couple of utterances of racial epithets as evidence of a hostile work environment. See Harris, 510 U.S. at 21, 114 S.Ct. at 370 ("As we pointed out in Meritor, mere utterance of an ... epithet which engenders offensive feelings in a employee does not sufficiently affect the conditions of employment to implicate Title VII." (internal quotation marks omitted)). Racial slurs must be "so common place, overt and denigrating that they created an atmosphere charged with racial hostility." Edwards, 49 F.3d at 1521 (quoting EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir.1990)).²

In Harris, the Supreme Court enunciated four factors to be considered in determining whether a plaintiff establishes a prima facie case of a hostile work environment: (1) the frequency of the discriminatory conduct; (2) the severity of the discriminatory conduct; (3) whether the discriminatory conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the discriminatory conduct unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23, 114 S.Ct. at 371.

If the plaintiff establishes a prima facie case, the plaintiff then must show that the employer is liable for the hostile working environment. The plaintiff must show that the employer "knew or should have known of the harassment and failed to take prompt reasonable action against the [harassing employee]." Steele v. Offshore Shipbuilding. Inc., 867 F.2d 1311, 1316, reh'g, denied, 874 F.2d 821 (11th Cir.1989); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982); Lewis v. Zilog, Inc., 908 F.Supp. 931, 957 (N.D.Ga. 1995), aff'd, 87 F.3d 1331 (11th Cir.1996).

To determine whether Defendant is entitled to summary judgment on Plaintiff's claims, the Court must apply these principles to the facts discerned from the evidence in this record. In viewing the evidence, the Court avoids making credibility determinations and views the evidence in the light most favorable to Plaintiff. Plaintiff objects that Magistrate Judge Strother made improper credibility determinations and failed to view the evidence in the light most favorable to Plaintiff. The Court first addresses these objections and then turns to the question whether Plaintiff presents sufficient evidence to create jury issues on his hostile work environment claim.

1. The "Mooly" Comment

Plaintiff's first objection to Magistrate Judge Strother's recommendation regarding Plaintiff's hostile work environment claim centers on the...