Standard v. A.B.E.L. Services, Inc.

Decision Date03 December 1998
Docket NumberNo. 97-9226,97-9226
Citation161 F.3d 1318
Parties78 Fair Empl.Prac.Cas. (BNA) 750, 74 Empl. Prac. Dec. P 45,667, 14 NDLR P 19, 12 Fla. L. Weekly Fed. C 302 Alan K. STANDARD, Jr., Plaintiff-Appellant, v. A.B.E.L. SERVICES, INC., Plaster Concepts, Inc., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Rose E. Goff, Atlanta, GA, for Plaintiff-Appellant.

Kurtis A. Powell, Jerry C. Newsome, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK and CARNES, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:

Appellant, Allen K. Standard, Jr., a Caucasian former employee of Plaster Concepts, Inc. ("Plaster Concepts") through A.B.E.L. Services Inc., brought an action against twelve defendants, five of whom were dismissed by the district court. The complaint alleges employment discrimination under 42 U.S.C. § 1981, Title VII, the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and unlawful retaliation for the exercise and protection of his civil rights under the above statutes, based on his race, national origin, age and disability. Appellees moved for summary judgement, contending that Standard was not considered for a promotion and was later terminated for legitimate, nondiscriminatory reasons. The district court granted summary judgement on all counts, finding that Standard failed to establish a prima facie case under the ADA or show that Appellees' legitimate, nondiscriminatory reasons were pretextual. Because we conclude that Standard failed to establish a prima facie case under the ADA and the ADEA, or produce evidence sufficient for a reasonable jury to find pretext under Title VII and § 1981, we AFFIRM the district court's order of summary judgement for defendants on all counts.

I. BACKGROUND
A. Facts
1. Plaster Concepts

Plaster Concepts, Inc. is a business engaged in the production and sale of decorative architectural pieces, such as cornices, columns and ceiling panels. These pieces are produced by casting them from molds. The manufacturing process is performed by two different departments: the tooling department and the production department. The tooling department is responsible for crafting the molds that the production department uses to make the finished product. The molds can be made from various materials, such as wood, plaster, bondo, rubber and steel. The production of these molds requires a far greater level of skill than is required to cast the finished pieces. Some of the molds are made from scratch, but others are made by altering or combining pre-existing molds in a process known as mold setup.

Plaster Concepts leases most of its employees from A.B.E.L. Services, Inc. ("A.B.E.L."), an employee leasing company owned by Barbara Norsworthy, the wife of Plaster Concepts president, Paul Norsworthy. Standard was such a leased employee. Leased employees are interviewed and selected by Plaster Concepts, while A.B.E.L. is responsible for handling payroll, tax filings and insurance for the employees. Plaster Concepts pays A.B.E.L. for the employees' compensation package, as well as a fee for providing this service.

In the Spring of 1994, Plaster Concepts moved its production facility from Griffin, Georgia to East Point, bringing the plant closer to Atlanta. This move was motivated by several considerations, including the deterioration of the Griffin plant and the benefits of proximity to Atlanta area customers and suppliers. In moving to East Point, management also hoped to draw from the larger labor pool in the Atlanta area. More specifically, Plaster Concepts wanted to target the Hispanic community and increase the number of Hispanic workers at the plant.

2. Standard is Hired by Plaster Concepts

Prior to the move to East Point, Plaster Concepts purchased most of its molds from outside sources. During this period, only one employee, James Carroll, was engaged in mold-making inside the company. At around the time of the move, in the spring of 1994, Plaster Concepts management decided that it would be more profitable to increase their in-house mold-making capabilities. Appellant Standard was hired as part of this plan. Standard was first interviewed by Harv Mier, and was brought back for a second interview with Don Grubbs and Mark Hicks. During the course of these interviews, Standard alleges that various members of management told him that they intended to staff the production facility with Hispanic workers. Management allegedly believed that Hispanic workers were more likely to work longer hours without complaint than other workers. Furthermore, Standard alleges that the fact that he spoke Spanish was a factor in the decision to hire him, because it would enable him to communicate with future Hispanic hires.

At the time that he was hired, Standard was 49 years old, and had no architectural mold-making experience. He did, however, have sufficient basic skills and wood-working experience that Plaster Concepts management felt he could be trained to become a proficient mold-maker. Standard began working in the tooling department with James Carroll in July of 1994.

3. Work Force Turnover at Plaster Concepts

It is undisputed that, even prior to the move to East Point, Plaster Concepts had a chronic problem retaining employees. Several months before the move, management changed its pay scheme from an hourly rate to a set payment per finished piece produced. After the plant moved to East Point and several days after Standard began working there, most of the workers ended their employment with Plaster Concepts in a dispute over the price set for production of a specific piece. The parties disagree about whether the terminations were called firings or resignations. All of the evidence shows, however, that after negotiations in which the price was raised the workers refused to work at the final price offered. One of the workers who left at this time was James Caroll, Standard's fellow Caucasian tooling department worker. Caroll was rehired shortly after he left.

This mass exodus of employees brought production to a near standstill, requiring a massive hiring effort. During this effort, Plaster Concepts specifically targeted the Hispanic community. Ads were placed, both in English and in Spanish, in bilingual newspapers. Furthermore, the answering-machine message was changed to include both Spanish and English messages, with only the Spanish message discussing the application process.

4. Plaster Concepts Hires a Production Supervisor

A few months after Standard was hired, Plaster Concepts decided to hire a manager to assist in supervising the production department. Standard alleges that he indicated interest in the position, but was never actively considered for the job. He also admits that he had recently been hired into the tooling department without having architectural mold-making experience, that he was in the process of being trained in mold setup and mold-making, and that it was difficult to find skilled workers suitable for the tooling department. It is also undisputed that management wanted to hire a manager out of the military, with experience supervising and motivating unskilled workers, such as those in the production department. Consequently, the position was advertised in military publications.

Ultimately, Enrique Torres was hired as production supervisor. Torres is a bilingual Hispanic-American citizen, who had recently retired from the Army with twenty years experience as a sergeant. Standard alleges that he was passed up for the supervisor position because of racial and national origin discrimination. His only evidence of this discrimination is his own allegation that Mark Hicks made the statement that Standard was not considered for the position because he "A, was not Hispanic; B, not ex-military; and C, they needed a tool maker, couldn't spare me." Standard concedes that when he initially inquired about the position, Don Grubbs told him that Steve Norsworthy had decided to only consider candidates with a military background. It is also undisputed that Mark Hicks was not involved at any stage of the hiring process for the production supervisor position.

5. Plaster Concepts Further Expands the Tooling Department

During the same period of time that Torres was hired, the fall of 1994, Plaster Concepts decided to further expand the tooling department. Management hired Freddie Kinney, a Caucasian who was only two years younger than Standard. Similar to Standard, Kinney had no architectural mold-making experience, but he had over twenty years experience in metal fabrication. Standard admits that Plaster Concepts hired Kinney, in part, because they planned on using more metal fabrication in the tooling department. Kinney's hire brought the tooling department's staff up to three workers, all of them Caucasian Americans.

In January, 1995, Elias Thiers, a Chilean citizen, applied for a job at Plaster Concepts. In contrast to all of the other tooling department workers, Thiers had nine years of mold-making experience and also had an impressive portfolio of past work. Thiers was in the United States on a tourist visa, and therefore was ineligible to become an employee. He was so potentially valuable to the tooling department, however, that Plaster Concepts gave him work as an independent contractor while sponsoring him for a work visa. After Thiers was granted a work visa, Plaster Concepts hired him as an employee.

6. Standard's Back Injury

In February, 1995, Standard injured his back while moving a heavy mold. The injury included several herniated discs. Standard had to make several appointments with a doctor and a physical therapist for treatment of this injury. He alleges that the doctor recommended that he schedule his doctor appointments directly after his therapy appointments. Plaster Concepts...

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