Welch v. Delta Air Lines, Inc.

• Decision Date: 19 August 1997
• Docket Number: No. CIV.A.1:95CV2436FMH.,CIV.A.1:95CV2436FMH.
• Parties: Anthony WELCH, Plaintiff, v. DELTA AIR LINES, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

978 F.Supp. 1133

Anthony WELCH, Plaintiff, v. DELTA AIR LINES, INC., Defendant.

No. CIV.A.1:95CV2436FMH.

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

August 19, 1997.

COPYRIGHT MATERIAL OMITTED

Charles Rogers Floyd, Jr., The Floyd Law Offices, Peachtree City, GA, for Plaintiff.

Hunter R. Hughes, III & Benjamin Alexander Stone, Rogers & Hardin, Atlanta, GA, Jay Darwin Milone, Delta Air Lines Inc., Law Dept., Atlanta, GA, for Defendant.

ORDER

HULL, District Judge.

Plaintiff Anthony Welch brings this employment discrimination action under Title VII and § 1981. This matter is before the Court on Magistrate Judge Dougherty's Report and Recommendation [34-1] recommending that Defendant Delta Air Lines, Inc's Motion for Summary Judgment [27-1] be granted on all of Plaintiff's claims. Plaintiff has filed timely Objections [35-1] to Magistrate Judge Dougherty's Report and Recommendation and the Court reviews those portions of Magistrate Judge Dougherty's Report and Recommendation to which Plaintiff specifically has objected de novo.

I. FACTS

In 1990, Plaintiff applied for and received a position as an instructor in Defendant's Program Development area in the Ground Training Department.¹ Plaintiff claims that in his first six months in the Ground Training Department, he did not receive any computer programming (or Tel) assignments. Plaintiff complains that the disparity in assignments he received was based on his race.

Plaintiff also complains that he was subject to racial remarks and innuendo in the Ground Training Department. One day in December 1990, Plaintiff called into work to say that he would be late that day because his automobile had been vandalized during the night. When Plaintiff arrived at work, he was shown a parody (in the form of a poem) written by his co-workers (including his supervisor) of the "Twelve Nights of Christmas," that made reference to the vandalism of Plaintiff's car. Plaintiff perceived the poem's reference to "malt liquor" as a stereotype based on Plaintiff's race.

Plaintiff also highlights two statements by a secretary in the Ground Training Department, Donna Shelley. On one occasion, Shelley referred to Plaintiff as "black boy" and on another occasion remarked that if she wrote on Plaintiff with a black marker, it would not show up. Plaintiff reported these statements to Paul Nordan, Defendant's Manager of Program Development. After Plaintiff reported the incident, Shelly apologized to Plaintiff and never said anything to Plaintiff again. Plaintiff also states that he was told at some point in 1993, another co-worker, Lamar Smith, said that if Plaintiff walked into a darkened room, no one would see him.

Finally, Plaintiff claims that he also was subject to differential treatment regarding the performance of his duties and in his ultimate "discharge."² Regarding the treatment relating to his performance, Plaintiff claims that his work received more intense scrutiny than his white co-workers. Regarding his "discharge," Plaintiff claims that he was removed from the Ground Training Department while less qualified white employees were retained. Defendant "discharged" Plaintiff as part of a downsizing effort in 1994 wherein Defendant determined that it had to remove three employees from its Ground Training Department. Defendant created a ranking system whereby the lowest three ranked employees would be removed. Plaintiff was one of the three lower ranked employees designated for removal.

II. DISCUSSION

A. Plaintiff's Hostile Work Environment Claim Is Barred By The Applicable Statutes Of Limitations

As a prerequisite to filing a suit under Title VII, an employee must file a charge of discrimination with the EEOC. Moore v. Alabama State Univ., 864 F.2d 103, 104 (11th Cir.1989). The employee has 180 days from the date of the alleged discriminatory act (or the last discriminatory act in the case of a continuing violation) to file a charge of discrimination. 42 U.S.C. § 2000e-5(e); Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992). Plaintiff filed his charge of discrimination on January 30, 1995. Thus, if the last act which comprises Plaintiff's hostile work environment claim occurred more than 180 days before Plaintiff filed his charge of discrimination, or before August 3, 1994, Plaintiff's hostile work environment claim under Title VII is barred by Title VII's statute of limitations.

Unlike Title VII, § 1981 does not contain an express statute of limitations. Thus, in Goodman v. Lukens Steel, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the United States Supreme Court held that lower courts should apply the statute of limitations for the most analogous state law cause of action from the state in which the act occurred. Id. at 661, 107 S.Ct. at 2621; see also Wilson v. Garcia, 471 U.S. 261, 266-68, 105 S.Ct. 1938 1941-43, 85 L.Ed.2d 254 (1985). The Eleventh Circuit has held that Georgia's two-year statute of limitations for personal injury actions applies to § 1981 causes of action based on conduct occurring in the State of Georgia. Brown v. East Central Health Dist., 752 F.2d 615, 618-19 (11th Cir.1985). The period begins to run when the plaintiff-employee knew or reasonably should have known that the discriminatory act occurred. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Pearson v. Macon-Bibb County Hosp. Auth., 952 F.2d 1274, 1279 (11th Cir.1992); Stafford v. Muscogee County Bd. of Educ., 688 F.2d 1383, 1390 (11th Cir.1982). Plaintiff filed this law suit on September 26, 1995. Thus, if the last act which comprises Plaintiff's hostile work environment claim occurred more than two years before Plaintiff filed this law suit, or before September 26, 1993, Plaintiff's hostile work environment claim under § 1981 is barred by § 1981's statute of limitations.

Defendant contends that Plaintiff's hostile work environment claims under Title VII and § 1981 are time-barred because it is clear that most of the events that comprise Plaintiff's hostile work environment claims occurred no later than 1991, approximately four years before Plaintiff filed this action and well over 180 days before Plaintiff filed his charge of discrimination. According to Defendant, the only episode on which Plaintiff relies after 1991 was a comment made at some point in 1993 that if Plaintiff walked into a dark room, no one would see him. This statement still is well outside Title VII's statute of limitations; but if it occurred later than September 26, 1993, it is within § 1981's statute of limitations. Defendant contends that since Plaintiff fails to present any evidence that this statement was within the applicable statute of limitations, Defendant is entitled to summary judgment on this claim.

As an initial matter, the Court notes that in its Brief in Opposition to Defendant's Motion for Summary Judgment, Plaintiff failed even to respond to Defendant's statute of limitations argument. Thus, under Local Rule 7.1 of the Northern District of Georgia, Defendant's Motion of Summary Judgment on this ground is unopposed. See LR 7.1 NDGa. In not opposing Defendant's argument on this ground, Plaintiff's necessarily does not oppose Defendant's characterization of the acts which comprise Plaintiff's hostile work environment claims and Defendant's argument that all of these acts occurred outside the applicable statutes of limitations. Plaintiff's failure to respond to Defendant's argument alone entitles Defendant to summary judgment on these claims.

Nonetheless, in his Report and Recommendation, Magistrate Judge Dougherty determined additionally that Plaintiff fails to present any evidence that the one episode occurring in 1993 occurred after September 26, 1993, within § 1981's statute of limitations. This conclusion assumes that the burden is on Plaintiff to show that his claims are not barred by the applicable statute of limitations. Generally, the burden is on the defendant to prove the existence of an affirmative defense. See e.g., Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.1995); Smith v. Duff and Phelps, Inc., 5 F.3d 488, 492 n. 9 (11th Cir. 1993); Blue Cross and Blue Shield of Alabama v. Weitz, 913 F.2d 1544, 1552 (11th Cir.1990). However, the Court is not required to address the issue whether the burden is on Plaintiff or Defendant to show whether Plaintiff's Title VII and § 1981 harassment claims are time-barred because there is no admissible evidence of any act occurring in 1993.

Plaintiff's sole evidence of the alleged statement in 1993 is Plaintiff's testimony that someone told him about the statement. Plaintiff has no personal knowledge that the statement was made and does not present the testimony of any witness who has personal knowledge that the statement was made. In sum, Plaintiff's sole evidence of this statement is based on inadmissible hearsay. See FED. R. EVID. 801, 802. Thus, Plaintiff has no admissible evidence of any act occurring at any point 1993. The admissible evidence in this case does not reveal the occurrence of any act beyond 1991 and does not permit any inference that any of the acts that comprise Plaintiff's hostile work environment claim occurred later than 1991 (which places all of the acts well outside both applicable statutes of limitations).

Therefore, even assuming arguendo the burden is on Defendant to show that Plaintiff's claims are time-barred, Defendant has sustained its burden to show Plaintiff's hostile work environment claims are barred by the statutes of limitations of both Title VII and § 1981. Further, the Court notes that even if there was admissible evidence of the statement allegedly made in 1993, Plaintiff's Title VII harassment claim still would be time-barred because the statement still would have been made more than 180 days prior to Plaintiff's filing his charge of discrimination with the EEOC in January 1995.

Thus, Defendant is entitled to summary...