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Jurisdiction: Alabama Northern District Court
Decision Date: 9/30/2014

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Burch v. Coca-Cola Bottling Co. Burch v. Coca-Cola Bottling Co. (N.D. Ala., 2014)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RYAN D. BURCH, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        COCA-COLA BOTTLING COMPANY UNITED, INC Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. : 2: 12-CV-1778-VEH

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 30, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RYAN D. BURCH, Plaintiff, v. COCA-COLA BOTTLING COMPANY UNITED, INC Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. : 2: 12-CV-1778-VEH

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 30, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM OPINION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        I. INTRODUCTION AND PROCEDURAL HISTORY

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This employment discrimination case was filed on May 3, 2012, by the plaintiff, Ryan D. Burch, against the defendant, Coca-Cola Bottling Company United, Inc. The complaint alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq and 42 U.S.C. § 1981. (Count One). It also alleges retaliation in violation of those same laws. (Count Two). Finally, the complaint alleges that the defendant is liable for the Alabama state law claim of negligent supervision, hiring, and training. (Count Three). All counts arise out of the plaintiff's employment with and eventual termination by the defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On August 1, 2013, the defendant moved for summary judgment on all counts.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 31). On January 16, 2014, the magistrate issued a report and recommendation and recommended

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 50 at 29-30). Both the plaintiff and the defendant have filed objections to the recommendation. (Docs. 58 and 59). Those objections are now before this court.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For the reasons stated herein, the magistrate's recommendation is ADOPTED to the extent that it is consistent with this memorandum opinion, and to the extent to which no objections were made. To the extent that the objections are inconsistent with this opinion, they are OVERRULED. The magistrate's conclusion that questions of fact remain as to whether the plaintiff's suspension was in retaliation for his

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        complaints of racial discrimination is not adopted. The defendant's objection to that conclusion is SUSTAINED. Summary Judgment will be GRANTED to the defendant by separate order.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. STANDARD

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Summary Judgment

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett 477 U.S. 317, 322 (1986) ("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. ") (internal quotation marks and citation omitted). The party requesting 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 that it believes demonstrate the absence of a genuine issue of material fact. Celotex 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        showing that there is a genuine issue for trial. Id.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman 229 F. 3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. " Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta 2 F. 3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        "significant, probative evidence demonstrating the existence of a triable issue of fact. " Id. (citation omitted) (emphasis added).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey 518 U.S. 343 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick 2 F. 3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. District Court Review of Report and Recommendation

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                After conducting a "careful and complete" review of the findings and

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. "); Williams v. Wainwright 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright 677 F.2d 404, 408 (5th Cir. 1982), overruled on other grounds by Douglass v. United Services Auto. Ass'n 79 F. 3d 1415 (5th Cir. 1996)). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. " 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party. " Jeffrey S. v. State Bd. of Educ 896 F.2d 507 512 (11th Cir. 1990) (citing H. R. Rep. No. 94-1609, 94th Cong 2nd Sess reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R& R to which no objection is

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 7

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        made need only be reviewed for clear error. Macort v. Prem, Inc 208 Fed. App'x. 781, 784 (11th Cir. 2006).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Neither the Constitution nor the statute requires a district judge to review, de novo findings and recommendations that the parties themselves accept as correct. " United States v. Woodard 387 F. 3d 1329, 1334 (11th Cir. 2004) (internal quotation marks omitted) (quoting United States v. Reyna-Tapia 328 F. 3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See e. g United States v. Pilati 627 F. 3d 1360 at 1365 (11th Cir. 2010) ("While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 8

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        abandoned by his failure to raise it on appeal to the district court. "). However, the district judge has discretion to consider or to decline to consider arguments that were not raised before the magistrate judge. Stephens v. Tolbert 471 F. 3d 1173, 1176 (11th Cir. 2006); see also Williams v. McNeil 557 F. 3d 1287, 1292 (11th Cir. 2009) ("Thus, we answer the question left open in Stephens and hold that a district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court. " Nettles 677 F.2d at 410 n. 8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act. " Id. at 410. Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court. " Williams 557 F. 3d at 1292 (internal quotation marks omitted) (quoting United States v. Howell 231 F. 3d 615, 622 (9th Cir. 2000)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II. FACTS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Unobjected-to Facts

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The court finds that the following facts, which are set out in the

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        recommendation, and to which no objection has been made, are not clearly erroneous:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 11

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 50 at 4-8).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In setting out the facts of this case, the magistrate also found: "No other Coke United route salesman has been terminated for leaving the premises without permission. " (Doc. 50 at 8) (emphasis in original). In a footnote to that sentence, the

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        magistrate wrote:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. Objections to Magistrate's Statement of Facts

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The plaintiff objects to several parts of the magistrate's statement of facts. They are addressed here using the numbering from his Amended and Substituted Objections to the Report and Recommendation of the Magistrate. (Doc. 58).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff objects to the magistrate's finding that "there is no evidence of any other route salesman leaving the premises without permission. " Burch argues that there is evidence that other salesmen left the premises without permission on the basis of testimony by Mark Clinkscales, Burch's first supervisor, who said that route salesmen never called him, "under any circumstance, " to ask for "approval to come and go from the plant. " (Doc. 43-5 at 60). Plaintiff alleges that a "reasonable inference" from this testimony is that route salesmen were either unaware of the needPage 14

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        to get permission, or that the rule against leaving the premises without permission was unenforced. (Doc. 58 at 25).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To support his suggested "reasonable inferences, " the plaintiff seems to be relying on an evidentiarily unsupported assumption that some employees must have left the premises during the work day. However, Clinkscales testified in the same deposition that he never saw his salesmen leave the plant for lunch, and that he had no knowledge of whether salesmen supervised by other managers were leaving without permission. The plaintiff has not offered any evidence directly stating or indirectly suggesting that other salesmen were leaving without permission, and the Court will not simply speculate that this was the case.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This objection alleges that the magistrate failed to include in his statement of facts that when the plaintiff met with Taraysa Smith at some time between March 18 and April 12, 2010, he complained that Coke United employees were retaliating against him for his January 2010 and February 11, 2010 complaints about race discrimination. The only support cited by plaintiff is his own brief in opposition toPage 15

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        summary judgment. However, "statements by counsel in briefs are not evidence. " Skyline Corp. v. N. L. R. B 613 F.2d 1328 1337 (5th Cir. 1980).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff does, however, cite portions of his deposition where he testified that he complained to Smith after he had trouble getting his supervisors to tell him where all the machines were on Route 28. This testimony does not specifically state that he alleged retaliation then, but it does state that he complained that his supervisors were "just trying to set him up for termination" (doc. 33-1 at 79), and that he alleged race discrimination. Id. at 158.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The cited testimony is only relevant as evidence that Plaintiff's April 12, 2010 suspension was retaliatory. However, as the Court will discuss in III. A of this memorandum, the plaintiff's retaliation claim fails on other grounds, and so this objection is immaterial.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff objects to the magistrate's finding that at least two white salesmen were present at the meeting in which David Lane accused a group of route salesmen of theft. Instead, plaintiff argues that "Lane had only called black route salesmen to his meeting about theft or perhaps he had brought in a token white route salesmen. " The evidence given by plaintiff is as follows.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff testified that in the meeting, "It was pretty much just all blacks in there, I don't remember any whites in there. " (Doc. 33-1 at 77). Richardson's affidavit stated

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        that the meeting had "almost exclusively African American route salesmen. " (Doc. 43-2 at 5). Mitchell's affidavit said that "almost everyone there, except maybe two whites, were African American route salesmen. " (Doc. 43-3 at 4). Plaintiff's qualifier "pretty much all" introduces vagueness, and Richardson's "almost exclusively" clearly indicates that at least some white salesmen were present at the meeting. The most precise description comes from Mitchell: "maybe two whites. " The Court agrees that the magistrate was incorrect to say "at least two, " and instead should have said, "one other witness proffered by the plaintiff testified that there may have been two white salesmen present. " However, as this difference is not material, the plaintiff's objection is not relevant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. ANALYSIS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. Defendant's Objection to the Recommendation

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Coke United objects to the Magistrate Judge's recommendation that summary judgment be denied on the plaintiff's claim that his two-day suspension in April 2010 was in retaliation for complaining about racial discrimination. (Doc. 54 at 1). Coke United objects to the magistrate's statement that,

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Coke United contends that this analysis is mistaken because"there is no evidence that a Human Resources representative told Park that the plaintiff's earlier discipline for tardiness amounted to race discrimination. " (Doc. 54 at 3).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court has found no evidence to support the magistrate's above statement that on April 12, 2010, Park and Lane were told by Human Resources representatives that "the plaintiff's earlier disciplinary for tardiness amounted to racial discrimination. " The Court must therefore determine whether there is any evidence that Park or Lane had learned of plaintiff's charges of racial discrimination before they made the decision to suspend him.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In his deposition, the plaintiff answered "yes" to the questions "Did you allege race discrimination in your complaints? " and, "Did those complaints involve David Lane? " (Doc. 33-1 at 158). The context of those questions leaves some uncertainty as to which complaints the plaintiff was describing, but the preceding testimony (id. at 156-57) indicates that the plaintiff was complaining about the lack of training that he received when he was reassigned to Route 28. Additionally, the record shows that the plaintiff did allege racial discrimination to human resources in February 2010 after receiving a disciplinary write-up for tardiness. (Doc. 33-4 at 23). Therefore, there is evidence that the plaintiff had made allegations of racial discrimination to Human Resources before the decision was made to suspend him.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                However, the Court has found no evidence that Park or Lane, the two Coke United employees involved in the decision to suspend the plaintiff, were aware at the time the suspension decision was made that he had ever complained of racial discrimination to Human Resources. The plaintiff testified that he told Park, during the April 12, 2010, meeting that he had contacted HR "and told them that he couldn't get help. " (Doc. 33-1 at 103). However, the plaintiff has not said that he mentioned his racial discriminations claims to Park or Lane. Lane testified that he never heard of the plaintiff's complaints to Human Resources of racial discrimination (doc. 33-3 at 100-01), and that HR "never let him know" of discrimination allegations filed against him by any employees (id. at 101-02). Park testified that he was aware that the plaintiff had complained to HR about the tardy write-ups on the basis of unfairness, but did not recall ever hearing that the plaintiff had alleged racial discrimination. (Doc. 33-8 at 93-94). The investigation by Taraysa Smith into the write-ups did not find racial discrimination, but merely inconsistency on the basis of whether a salesmen called in to advise a supervisor that he would be tardy (doc. 33-4 at 18-19), and there is no evidence that Smith told Lane or Park that the plaintiff had complained of racial discrimination.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Since there is no evidence that the employees who made the decision to suspend the plaintiff were aware that he had made allegations of racial discrimination, it is not

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        possible for a reasonable jury to find that the decision to suspend him was in retaliation for these allegations.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Therefore, the Court finds that the magistrate erred in denying defendant's motion for summary judgment on plaintiff's retaliation claim relating to his suspension. The defendant's objection is SUSTAINED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. Plaintiff's Objections to the Recommendation

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff makes a large number of objections to the magistrate's recommendation. They will be discussed below using the numbering from his Amended and Substituted Objections to the Report and Recommendation of the Magistrate.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff objected to the magistrate's failure to consider a retaliatory hostile work environment. However, the plaintiff's retaliation claims alleged only that he was terminated and given disciplinary warnings. (Doc. 1 at 15). The plaintiff never filed an amended complaint adding a claim of a retaliatory work environment. The magistrate could not be in error for failing to consider a nonexistent claim, and so this objection is rejected. This objection incorrectly states that the magistrate found the plaintiff's suspension to be retaliatory. The objection goes on to say that, on that basis, the judge should also have found that relying on the previous write-up (on April 12, 2010) asPage 20

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        a ground for termination was pretextual.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                However, in his recommendation, the magistrate found that "plaintiff has shown circumstances from which a reasonable jury could determine that the suspension was for retaliation, not legitimate disciplinary reasons. " (Doc. 50 at 28). This did not amount to deciding the retaliation claim in favor of the plaintiff, but merely finding that there were triable issues of material fact remaining for the claim. Since the objection's premise is incorrect, the conclusion argued by the plaintiff does not have support. Further, for the reasons set out supra this Court finds that the magistrate erred in denying defendant's motion for summary judgment on plaintiff's retaliation claims relating to his suspension.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff alleges that the magistrate failed to "consider the low probability, absent illegal discrimination and retaliation, of all the following incidents occurring, " and lists ten pages of factual allegations concerning the case. The plaintiff has not provided a "specific written objection, " as required by FED. R. CIV. PR. 72(b)(2). Rather, this is merely a "'conclusive or general objection, " which the Court will not consider. Nettles 677 F.2d at 410 n. 8. The plaintiff is required to explain why he believes each piece of evidence is material to a claim, not merely make factual allegations and leave the court to guess why each is relevant. This objection argues that the magistrate failed to consider an Eleventh CircuitPage 21

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        case stating that three months is the limit of temporal proximity between protected activity and retaliation. Henderson v. FedEx Express 442 F. App'x 502, 506 (11th Cir. 2011). Therefore, the plaintiff argues, the magistrate should have allowed several other events to be considered as proof of retaliation: his March 11, 2010 reassignment to Route 28, his write-up on March 18, 2010, his suspension on April 12, 2010, and his termination on October 18, 2010. All of these, plaintiff alleges, took place within three months of a protected activity.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The plaintiff is correct in his summary of Henderson. However, his objection is not relevant to the magistrate's articulated reasons for denying his retaliation claims on the basis of these incidents. The magistrate did not base his decisions on the length of time between the plaintiff's protected activities and the defendant's adverse employment actions. Accordingly, this objection is without merit.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                First, plaintiff contends that his reassignment to Route 28 on March 11, 2010, and his disciplinary warning on March 18, 2010 were retaliations for a race discrimination complaint in early January. However, there is no evidence establishing that he ever complained of race discrimination at that time. When discussing the incident in his deposition, the plaintiff does not say that he alleged racial discrimination, only that he found Lane's accusation "insulting. " (Doc. 33-1 at 77-78).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Second, plaintiff contends that his suspension on April 12, 2010, can be linked

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 22

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        to his complaint of race discrimination on February 11, 2010. However, the magistrate actually determined that the plaintiff "provided sufficient evidence to establish a prima facie showing of retaliation with respect to the two-day suspension he received in April 2010. " (Doc. 50 at 27). Thus, this objection is erroneous.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Third, the plaintiff contends that, because his termination came three months after Coke United received a subpoena from his prior employer and two months after Coke United received another letter concerning that subpoena, his termination could be considered retaliation for Coke United's having learned of the matter. The undisputed facts show that Lane recommended that the plaintiff be fired and Park made the final decision to terminate him. Park has testified that he had no knowledge of the plaintiff's lawsuit or EEOC charge against his former employer, nor awareness of the subpoena sent to Coke United until after the plaintiff was terminated by Coke United. Lane testified that he had heard in 2007 about the plaintiff's lawsuit against the plaintiff's former employer, but had no knowledge of the subpoena sent to Coke United in 2010 before the plaintiff was fired. (Doc 33-8 at 30). Plaintiff has provided evidence only that the subpoena was sent to Coke United, but no evidence to

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        contradict Lane's and Park's respective testimonies that they did not know of the subpoena when the plaintiff was terminated.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This objection restates the previous objection's contention that, on the basis of temporal proximity, the plaintiff's termination could be considered retaliation for Coke United's having learned of the subpoena in his lawsuit against his prior employer. It is rejected on the basis of the same reasoning in the last paragraph of the court's response to Objection 4; there is no evidence that Lane and Park were aware of the subpoena at the time when the decision to terminate the plaintiff was made, so their decision cannot be construed as retaliation. Further, the time elapsed between Lane's knowledge of the plaintiff's lawsuit (2007) and the plaintiff's termination (2010) is too long to establish retaliation. Henderson 442. F. App'x at 506. Plaintiff argues that, (Doc. 58 at 21). Plaintiff then argues that the rule in Coke United's Handbook against employees leaving the work premises during working hours without approval from a supervisor was never enforced, was not mentioned to the route salesmen, and was inconsistent with other practices at the company. On these facts, plaintiff argues, the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 24

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        policy that forbade salesmen to leave the plant during the day — the reason given for his termination—was "not really a policy in effect at Coke United. " (Id. at 24).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The plaintiff does not explain the way in which this argument is relevant to a claim in the case. The court assumes he is saying that the defendant's stated reason for his termination was pretextual. However, as the magistrate correctly noted, the plaintiff failed to establish a prima facie showing of discrimination (doc. 50 at p. 19) and "he is unable to show that Coke United's articulated reasons for termination . . . were mere pretext. " (Id. at 22).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This objection cites many pieces of evidence and asserts that the magistrate did not consider these as "other indicia of race discrimination and of a retaliatory work environment. " (Doc. 58 at 26). This objection has the same flaw as plaintiff's Objection 3; it does not challenge a specific finding, but merely makes a conclusive allegation that the magistrate failed to take into account a whole host of evidence.         Additionally, as to retaliatory hostile work environment, as the Court states in its discussion of plaintiff's Objection 1, the plaintiff never made a claim of retaliatory hostile work environment. The magistrate was not in error for failing to consider a claim that was never asserted.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff objects to the recommendation's determination that all claimsPage 25

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        before May 3, 2010, are time-barred. The plaintiff argues that "he can use the previous incidences of retaliation prior to May 3, 2010 in support, because one instance of discrimination, his October 18, 2010 termination, occurred within one hundred and eighty days of the filing of his EEOC charge on November 1, 2010. " The plaintiff cites Faircloth v. Herkel Investments, Inc 2012 WL 2119083 (M. D. Ga. 2012), aff'd 514 F. App'x 848 (11th Cir. 2013), but does not give any proposition from this case or even a pinpoint cite. As written, this objection does not provide any argument in opposition to the magistrate's recommendation, but merely states a conclusion. The objection is overruled.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff objects to the magistrate's statement (doc. 50 at 32) that the plaintiff did not allege racial discrimination when he complained to Coke United's human resources office about a meeting prior to 2009 in which Lane accused route salesmen of stealing from the company. The plaintiff refers to two portions of his deposition (doc. 33-1) to establish that he did allege racial discrimination with regard to that meeting, but the cited evidence does not support this allegation.         In the first portion of this evidence, the plaintiff does not say anything about racial discrimination, only that he found Lane's accusation "insulting. " (Id. at 77-78).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 26

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        In the second portion, the plaintiff answered "yes" to the questions "Did you allege race discrimination in your complaints? " and, "Did those complaints involve David Lane? " (Id. at 158). However, neither these questions nor the surrounding testimony indicate that those complaints were made in response to the meeting where Lane made accusations of theft. The preceding testimony (id. at 156-57) seems to indicate that these complaints were the ones the plaintiff made about the lack of training that he received when he was reassigned to Route 28. Therefore, the cited evidence does not establish that the plaintiff complained about race discrimination regarding the meeting led by David Lane.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This objection alleges that the magistrate did not "properly consider several other instances of protected activity. " The magistrate did, in fact, consider those other instances, and he explained why he did not judge them to be protected activities. (Doc. 50 at 24, fn. 1). The plaintiff refers to three different instances that he contends are protected activities. He argues that he had made a complaint of race discrimination to Coke United's human resources department in January 2010 regarding Lane's accusing route salesmen of theft. As the Court discussed in response to Objection 10, the plaintiff's cited evidence does not establish that he complained of race discrimination in that meeting.         The plaintiff asserts that the second and third events, his complaints of

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 27

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        retaliation to human resources between March 18 and April 12, 2010, and Coke United's receipt of letters regarding the subpoena from the plaintiff's former employer, should also be considered protected activity. However, he does not provide any argument for this, merely citing to paragraphs from Objection 3, which themselves merely make factual allegations. This portion of the objection fails to be anything more than a "general or conclusive" objection. It is overruled.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff next argues thatThe plaintiff then simply refers to portions of his 11-pages-long third objection to "show" six instances of temporal proximity between an action by the plaintiff and an action by Coke United. This objection is not material: the magistrate did not limit any of the plaintiff's grounds for a retaliation claim on the basis of too much time between the events. Since a lack of temporal proximity was not a ground for his recommendations, this objection fails to give a relevant argument.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff objects to the magistrate's statement that Park was Coke United's decisionmaker. The plaintiff argues that Lane was the true decisionmaker, and Park was a "catspaw. " The testimony by Park cited by the plaintiff supports the conclusionPage 28

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        that Park terminated the plaintiff after Lane recommended his termination, but it does not give any basis for the plaintiff's contention that Park always followed Lane's recommendations. The plaintiff also offers testimony by Stacye Collier, Coke United's employee relations manager, that she did not know if Park ever rejected "a decision" by Lane. (Doc. 33-7 at 52). However, it is clear from the preceding questions in Collier's deposition that, in this answer, she was speaking specifically of the decision to fill an area manager vacancy. (Id. at 51). Further, her lack of knowledge does not establish the unknown fact.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The only evidence on point that plaintiff submits is Coke United's response to the plaintiff's EEOC charge, where Coke United said that "the decision to terminate him was made by Corey Pounders and David Lane. " (Doc. 45-15 at 4). This is in tension with the magistrate's finding that Park made the final decision on termination, but even assuming that Lane played the main role in deciding to terminate the plaintiff, this issue is not material. Plaintiff has not given sufficient evidence to support a finding that his departure from the premises without permission was only a pretext, rather than the real reason for firing him.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff attacks the magistrate's conclusion that the plaintiff could not produce a comparator "with respect to the disciplinary treatment he received. " (Doc. 50 at 16). The plaintiff points to testimony regarding two white men who did notPage 29

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        receive warnings for being tardy. However, this is insufficient to establish that these men were comparators for the plaintiff's race discrimination claim. The plaintiff's disciplinary warnings for tardiness were rescinded by Coke United after he complained to the human resources department. Coke United determined that Clinkscales was inconsistently applying the company's policy that all late arrivals receive a written warning by declining to give warnings to salesmen who called in to report that they would be tardy. The plaintiff has not produced evidence indicating that Clinkscales actually discriminated on the basis of race in his tardy warnings. Therefore, simply showing that two white employees did not receive warnings for being tardy is insufficient to make them comparators for the plaintiff's racial discrimination claim.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff objects that the magistrate "erred in finding that there was insufficient evidence of racial animus by Coke United. " The rest of the objection recites a list of factual allegations, with the only supporting cites made to plaintiff's previous briefs, which are not evidence, and to other portions of his objections, which for the most part also cite only his previous brief.         However, the Court will still consider each incident plaintiff alleges demonstrates racial discrimination. First, the plaintiff mentions the meeting in which Lane accused a group of salesmen of theft. The magistrate correctly concluded that

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 30

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        because at least two white salesmen were present at the meeting, and because the plaintiff did not allege racial discrimination in his complaints to Coke United's human resources office about the meeting, this incident does not serve as circumstantial evidence of racial discrimination.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Second, the plaintiff refers to the differing use of disciplinary write-ups of route salesmen showing up late to work. As the discussion of the previous objection stated, these warnings were rescinded, and do not show discriminatory animus, and so are not relevant. Third, plaintiff also argues that Coke United's decision to rescind those write-ups indicates race discrimination. However, there is no evidence to suggest that Clinkscales had been inconsistently applying the company's tardy policy in a racially discriminatory manner, rather than, as Coke United's investigation determined, that Clinkscales had been excusing tardies when a worker called in to notify him that they would be late, but not excusing tardies if a worker failed to call — a distinction that is not race-based.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This objection argues that the magistrate erred in finding sua sponte that several statements attributed to senior salesman Bobby King should be excluded as hearsay. Anthony Mitchell has testified that King told him that Pounders and Martin wanted King to report the plaintiff as incompetent. Hearsay is a statement that: (1) the declarant makes outside of the current proceeding or hearing; and (2) a party offersPage 31

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        in evidence to prove the truth of the matter asserted in the statement. FED. R. EVID. 801(c). Since King has not testified as to this statement, his statement meets the first requirement for hearsay. The second requirement is also met, as the plaintiff is clearly using it to show the truth of the matter asserted: that Pounders and Martin asked King to report the plaintiff as incompetent. However, the plaintiff makes six arguments for why the statements are admissible.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 32

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The magistrate's finding of hearsay is correct, and this objection is rejected.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff argues that the magistrate erred in ruling that the February warning to the plaintiff for being tardy "cannot be attributed to the employer as an act of retaliation" because it was later removed by Coke United after the plaintiff's complaint led the human resources department to investigate Clinkscales's inconsistent application of the company's tardy policy. Plaintiff argues that the write-up should be considered as retaliation for his complaint of race discrimination in earlyPage 33

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        January 2010 in regards to the meeting where Lane accused route salesmen of theft. However, as the Court determined in its response to Objection 10, there is no evidence that the plaintiff alleged racial discrimination when he complained about that meeting. Therefore, the warning cannot be considered to be retaliation.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff objects to the magistrate's recommendation of summary judgment on plaintiff's retaliation claim in association with his termination. The plaintiff again contends that, on the basis of temporal proximity, his termination could be considered retaliation for Coke United's having learned of the subpoena in his lawsuit against his prior employer. It is rejected on the basis of the same reasoning in 4 of the court's response to Objection 4; there is no evidence that Lane and Park were aware of the subpoenas at the time when the decision to terminate Burch was made. This objection argues that the magistrate wrongly made inferences against the plaintiff when he stated in the report, "on his March 2010 written warning . . . plaintiff does not deny that shortages existed, but only that they could have been caused by any number of other employees, including new route salesmen or supervisors, not him. " (Doc. 50 at 17). Plaintiff suggests that the magistrate should have concluded more strongly in plaintiff's favor, arguingPage 34

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 58 at 41). Although the plaintiff does point to testimony that money shortages were common at Coke, and that stealing from vending machines by persons other than the assigned route salesmen had ben observed in the past, the plaintiff has not provided evidence to justify the conclusion that, in this case, the money shortages "were not plaintiff's fault. " The court agrees with the magistrate's determination here.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff objects to two factual statements by the magistrate. First, plaintiff says that the meeting called by Lane was not prior to 2009, but, rather, shortly before January 5, 2010. The plaintiff cites two affidavits and a deposition. The affidavits cited by the plaintiff do not address the date on which the meeting took place. The deposition cited says that the plaintiff complained in early January 2010 about that meeting, but says nothing about when the meeting took place. The court has not discovered any other evidence that establishes that the meeting called by Lane took place in early January 2010.         Second, plaintiff objects to the magistrate's statement that the meeting was attended "mostly" by black route salesmen, and contends that the meeting was "almost

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 35

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        exclusively" attended by black route salesmen. This disagreement is trivial; whatever difference in meaning exists between "mostly" and "almost exclusively" is not material in this case.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This objection alleges that "the magistrate incorrectly accepted that the January 2010 and March 2010 disciplinary warnings against the plaintiff were actually for failure to properly service machines. " The magistrate did not decide the factual disputes as to whether the plaintiff's supervisor told him to let the supply dwindle in the machines at the high school and as to whether he or another party was responsible for money shortages in machines on his former route. Rather, the magistrate accurately summarized the plaintiff's contentions and decided that, even if true, they did not show racial discrimination. The court agrees with the magistrate's recommendation; even taking the plaintiff's factual allegations to be true, these incidents do not indicate that Coke United was treating him a certain way because of his race. The plaintiff objects to the magistrate's conclusion that the plaintiff failed to show circumstantial evidence linking his disciplinary actions to race. He alleges that there was sufficient circumstantial evidence in the form of the meeting where Lane accused the salesmen of theft, plaintiff's claimed complaint the existence of which is not supported by the record to Human Resources alleging that this was racePage 36

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        discrimination, and his write-up on January 5 for failing to fill drink machines at the high school.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The circumstantial evidence must present "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker. " Smith v. Lockheed-Martin Corp 644 F. 3d 1321, 1328 (11th Cir. 2011). "Unless something links the actions to the employee's race, that a decisionmaker singles an employee out does not permit a jury to infer intentional discrimination based on race. " Turner v. Florida Prepaid Coll. Bd 522 F. App'x 829, 833 (11th Cir. 2013). The meeting where Lane made accusations of theft apparently included some white salesmen, as discussed in the response to Objection 21, and so does not give evidence of discriminatory intent. The court has already determined that there is no basis in the record to conclude that the plaintiff made accusations of racial discrimination in response to that meeting; therefore the write-up on January 5 is irrelevant to a finding of discriminatory intent. Therefore, none of these provide even circumstantial evidence of intentional discrimination.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The plaintiff also contends that there is sufficient "circumstantial evidence linking Lane's disciplinary actions to Burch's race" to justify a finding that those events comprise retaliation. The plaintiff refers only to his write-up for being tardy,

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 37

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        and says that this was retaliation for making complaints against Lane for race discrimination. As the Court discusses above in response to Objection 10, there is no evidence from the record that the plaintiff accused Lane of race discrimination when he complained about the meeting. Therefore, there can be no reason for finding retaliation on that basis.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff next argues that "the Magistrate erred in requiring Burch to be able to point to a caucasian route salesman with a similar disciplinary history because given all the various discriminatory acts against him no comparator was available. " (Doc. 58 at 51). The court first notes that the magistrate did not require anything. He merely noted, correctly, that there was no comparator cited, writing: (Doc. 50 at 17). Part of the plaintiff's prima facie case requires him to show that he was "treated less favorably than a similarly situated employee outside of his protected

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 38

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        class. " Burke-Fowler v. Orange Cnty Fla 447 F. 3d 1319, 1323 (11th Cir. 2006). The magistrate correctly pointed out that the plaintiff had not made such a showing. 26. The plaintiff argues that the "magistrate erred in concluding that the plaintiff did not argue that he did not violate company policy by leaving the premises without

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 39

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        permission. " Plaintiff insists that "the facts in the light most favorable to him were that the company really had no such policy. " This objection is essentially duplicative of Objection 6, and is rejected for the same reasons.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff next argues that, (Doc. 58 at 52). This statement, which incorrectly quotes the magistrate, makes no sense. However, elsewhere in this section of the plaintiff's argument he writes: "That African American and Caucasian route salesmen left the premises without the permission of their supervisors and were not terminated strengthens Burch's argument that he was retaliated against for his prior protected activity. " (Doc. 58 at 52). Apparently the plaintiff is complaining that the magistrate erred when he failed to find retaliation.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The court notes that the section of the recommendation to which the plaintiff objects was not addressing the retaliation claims. It only addressed the discrimination claims. The magistrate wrote:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 40

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 50 at 18-19). The magistrate's recommendation on this issue was sound and correct under de novo consideration.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff next argues thatPage 41

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 58 at 53). The plaintiff argues that there is evidence "that Burch did not understand" what he was b'eing asked when he was questioned about leaving the plant and that was why, on at least two occasions, he stated that "he did not know what Pounders was talking about. " (Doc. 58 at 55). In other words, the plaintiff is arguing that the magistrate, instead of "insinuating" that the plaintiff lied to Pounders, should have found that the plaintiff merely was confused.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff's argument misses the point. It is true that "on summary judgment, we have written that the 'work rule' defense is arguably pretextual when a plaintiff submits evidence . . . that she did not violate the cited work rule. " Damon v. Fleming Supermarkets Of Florida, Inc 196 F. 3d 1354, 1363 (11th Cir. 1999). However,

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Damon 196 F. 3d at 1366, n. 3 (11th Cir. 1999); see also, Moore v. ITT Technical Inst 226 F. App'x 869, 871 (11th Cir. 2007) ("'An employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 42

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        liable for discriminatory conduct. '") (quoting Damon). Even if the decisionmaker in this case was mistaken, the plaintiff has presented no evidence that the decisionmaker did not honestly believe that the plaintiff had lied.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Finally, the plaintiff argues conclusorily that

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 58 at 57). This underdeveloped argument fails to discuss at all how the "mosaic" was created. For that reason, and for all the reasons previously stated in this opinion, the objection is without merit.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        IV. CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Based on the foregoing, the defendant's objection will be SUSTAINED to the extent that it argues that there is no genuine issue of material fact disputing that the plaintiff's suspension was not in retaliation for his protected activities. Otherwise, the objections will be OVERRULED. By separate order, summary judgment will be GRANTED to the defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 43

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DONE and ORDERED this the 30th day of September, 2014.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        /s/_________ VIRGINIA EMERSON HOPKINS United States District Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the former Fifth Circuit. Stein v. Reynolds Sec Inc 667 F.2d 33 34 (11th Cir. 1982); see also United States v. Schultz 565 F. 3d 1353, 1361 n. 4 (11th Cir. 2009) (discussing the continuing validity of Nettles).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Macort dealt only with the standard of review to be applied to a magistrate's factual findings, but the Supreme Court has held that there is no reason for the district court to apply a different standard to a magistrate's legal conclusions. Thomas v. Arn 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a clear-error standard to both. See Tauber v. Barnhart 438 F. Supp. 2d 1366 1373-74 (N.D. Ga. 2006) (collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes between the two. See Monroe v. Thigpen 932 F.2d 1437 1440 (11th Cir. 1991) (when a magistrate's findings of fact are adopted by the district court without objection, they are reviewed on appeal under a plain-error standard, but questions of law remain subject to de novo review).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Defendant did not object to any facts as found by the magistrate.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Clinkscales did say that his salesmen never asked him for permission to leave the plant to go on their routes. (Doc. 59) However, the argument, which plaintiff has suggested at some points throughout this litigation, that this shows the policy against leaving without permission was unenforced is untenable. The primary tasks of the route salesmen, delivering drinks and maintaining the dispensing machines, required them to leave the plant every morning. It would be reasonable to think that they would not need daily permission to do their jobs.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Further, for the reasons set out supra this Court finds that the magistrate erred in denying defendant's motion for summary judgment on plaintiff's retaliation claims relating to his suspension.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Court notes that the caption for this objection does not exactly correspond with the body of the objection. The Court has attempted to construe the whole objection as coherent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff's objection says "January 5, 2005, " but, since the plaintiff was not working for Coke United in 2005, and this alleged complaint of race discrimination has been mentioned before as having been in 2010, the Court assumes the plaintiff meant to write "2010. "

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        See Court's analysis of plaintiff's Objection 10 supra pp. 22-23.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff argues:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        viewing the facts in the light most favorable to Burch it is not surprising that there would not be a comparator because of the numerous retaliations against him and because he was treated so differently than others, including being sent to ACIPCO Route 28 with the intent that he would fail there, and steps, such as inadequate training, were intentionally taken to cause him to fail, he was caused to initially fail there, he was unfairly written up, and then a "guideline" rule of Coke United's, which historically was not applied to route salesmen at all, was applied for the very first time to Burch. In this way, Coke United precluded the existence of anyone with a similar disciplinary history.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 58 at 51-52) (footnotes omitted). The court notes that the magistrate's opinion was limited only to the warnings cited, and correctly noted that no comparators were cited. The court also notes that the Eleventh Circuit has acknowledged that:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        even if a plaintiff cannot point to a similarly situated comparator employee who was treated more favorably, however, she may in some cases create a "triable issue concerning the employer's discriminatory intent" by showing a "convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker. "

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Turner v. Florida Prepaid Coll. Bd 522 F. App'x 829, 832 (11th Cir. 2013) (quoting Smith v. Lockheed-Martin Corp 644 F. 3d 1321, 1328 (11th Cir. 2011) (internal quotation marks omitted)). After finding that there was no comparator, the magistrate also considered whether a "convincing mosaic of circumstantial evidence" had been shown.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the former Fifth Circuit. Stein v. Reynolds Sec Inc 667 F.2d 33 34 (11th Cir. 1982); see also United States v. Schultz 565 F. 3d 1353, 1361 n. 4 (11th Cir. 2009) (discussing the continuing validity of Nettles).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Macort dealt only with the standard of review to be applied to a magistrate's factual findings, but the Supreme Court has held that there is no reason for the district court to apply a different standard to a magistrate's legal conclusions. Thomas v. Arn 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a clear-error standard to both. See Tauber v. Barnhart 438 F. Supp. 2d 1366 1373-74 (N.D. Ga. 2006) (collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes between the two. See Monroe v. Thigpen 932 F.2d 1437 1440 (11th Cir. 1991) (when a magistrate's findings of fact are adopted by the district court without objection, they are reviewed on appeal under a plain-error standard, but questions of law remain subject to de novo review).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Defendant did not object to any facts as found by the magistrate.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Clinkscales did say that his salesmen never asked him for permission to leave the plant to go on their routes. (Doc. 59) However, the argument, which plaintiff has suggested at some points throughout this litigation, that this shows the policy against leaving without permission was unenforced is untenable. The primary tasks of the route salesmen, delivering drinks and maintaining the dispensing machines, required them to leave the plant every morning. It would be reasonable to think that they would not need daily permission to do their jobs.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Further, for the reasons set out supra this Court finds that the magistrate erred in denying defendant's motion for summary judgment on plaintiff's retaliation claims relating to his suspension.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Court notes that the caption for this objection does not exactly correspond with the body of the objection. The Court has attempted to construe the whole objection as coherent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff's objection says "January 5, 2005, " but, since the plaintiff was not working for Coke United in 2005, and this alleged complaint of race discrimination has been mentioned before as having been in 2010, the Court assumes the plaintiff meant to write "2010. "

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        See Court's analysis of plaintiff's Objection 10 supra pp. 22-23.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The plaintiff argues:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 58 at 51-52) (footnotes omitted). The court notes that the magistrate's opinion was limited only to the warnings cited, and correctly noted that no comparators were cited. The court also notes that the Eleventh Circuit has acknowledged that:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Turner v. Florida Prepaid Coll. Bd 522 F. App'x 829, 832 (11th Cir. 2013) (quoting Smith v. Lockheed-Martin Corp 644 F. 3d 1321, 1328 (11th Cir. 2011) (internal quotation marks omitted)). After finding that there was no comparator, the magistrate also considered whether a "convincing mosaic of circumstantial evidence" had been shown.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ', ''
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Skyline Corp. v. N.L.R.B., 613 F.2d 1328 (5th Cir., 1980)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1980-03-19 Citations: 25
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Tauber v. Barnhart, 438 F. Supp. 2d 1366 (N.D. Ga., 2006)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 2006-03-31 Citations: 28
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Monroe v. Thigpen, 932 F.2d 1437 (11th Cir., 1991)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1991-06-10 Citations: 13
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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