Hollis B. Barron v. Federal Reserve Bank of Atlant ( 2005 )


Menu:
  •                                                             [DO NOT PUBLISH]
    
    
                  IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                           FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                                   APRIL 19, 2005
                                   No. 04-14644                  THOMAS K. KAHN
                               Non-Argument Calendar                  CLERK
                             ________________________
    
                          D. C. Docket No. 03-00156-CV-P-S
    
    HOLLIS B. BARRON,
    
    
                                                                Plaintiff-Appellant,
    
                                         versus
    
    FEDERAL RESERVE BANK OF ATLANTA,
    
                                                                 Defendant-Appellee.
    
    
                             ________________________
    
                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
    
                                    (April 19, 2005)
    
    Before BIRCH, BARKETT and WILSON, Circuit Judges.
    
    PER CURIAM:
    
         Hollis Barron, an African-American male, appeals the district court’s grant
    of the Federal Reserve Bank of Atlanta’s motion for summary judgment on his
    
    42 U.S.C. §§ 1981, 2000e et seq. employment discrimination claims. He also
    
    appeals the district court’s decisions (1) to grant the motion to sever the claims of
    
    six other plaintiffs from the civil action against the Federal Reserve Bank of
    
    Atlanta (“FRBA”), and (2) to deny his motions to strike declarations for failure to
    
    disclose information under Fed. R. Civ. P. 26(a). Upon review of the record and
    
    consideration of the parties’ briefs, we discern no reversible error.
    
          A. Employment Discrimination Claims
    
          Barron first argues that the district court erred in concluding that his
    
    42 U.S.C. § 1981 claims were subject to a two-year statute of limitations because
    
    in Jones v. R.R. Donnelley & Sons Co., 
    541 U.S. 369
    , 
    124 S. Ct. 1836
     (2004), the
    
    Supreme Court held that the four-year statute of limitations under 28 U.S.C.
    
    § 1658 applied to claims covered by the 1991 amendment to § 1981, which
    
    included failure to promote claims. Second, Barron contends that the court
    
    erroneously made a finding on a dispositive and contested fact by determining that
    
    FRBA employee Ashley Patrick’s promotion to a Grade 27 Financial Services
    
    Operations Analyst position from a Grade 26 Quality Control Analyst position was
    
    a career progression instead of a vacancy. Third, Barron argues that the district
    
    court erred in determining that FRBA articulated a legitimate, nondiscriminatory
    
    
    
                                               2
    reason for hiring Michael Jadwin as a Supervisor in Check Collections because
    
    FRBA did not specify how the internal candidates were examined for the Check
    
    Collection Supervisor position. Fourth, Barron states, in an issue heading to a
    
    section of his appellate brief, that the district court erred in determining that his
    
    failure to amend his EEOC charge allowed for summary judgment on the Tommy
    
    Baswell, Jeremy Whitley, and Blake Andrus claims. However, Barron then argues
    
    a completely different issue by asserting that his complaint was sufficient under
    
    Fed. R. Civ. P. 8, and if the district court required heightened pleading, it should
    
    have allowed Barron to amend his complaint under Fed. R. Civ. P. 15(a).
    
          We review de novo a district court’s decision to grant summary judgment.
    
    Maynard v. Board of Regents, 
    342 F.3d 1281
    , 1288 (11th Cir. 2003). “A party
    
    seeking summary judgment must demonstrate 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.’ The moving party bears the initial burden of informing the court of the basis
    
    for its motion and of identifying those materials that demonstrate the absence of a
    
    genuine issue of material fact.” Rice-Lamar v. City of Ft. Lauderdale, Fla.,
    
    
    232 F.3d 836
    , 840 (11th Cir. 2000) (citations omitted). In determining whether
    
    genuine issues of material fact exist, we resolve all ambiguities and draw all
    
    reasonable inferences in favor of the non-moving party. Id. “The court may not
    
    
    
                                                3
    weigh evidence to resolve a factual dispute; if a genuine issue of material fact is
    
    present, the court must deny summary judgment.” Holifield v. Reno, 
    115 F.3d 1555
    , 1561 (11th Cir. 1997).
    
                 1. 42 U.S.C. § 1981 Claims
    
          Barron has waived his claim that the four-year statute limitations period
    
    under 28 U.S.C. § 1658 applied to his § 1981 failure to promote allegations
    
    because he did not raise the argument with the district court. See Cooper, 390 F.3d
    
    at 727 n.19, 734. While the Supreme Court issued its Jones decision after Barron
    
    filed his brief in response to FRBA’s motion for summary judgment, Jones should
    
    not change this Court’s waiver analysis because the argument that the four-year
    
    limitations period applied to § 1981 claims was not a novel argument when Barron
    
    filed his opposition brief. See e.g., Taylor v. Ala. Intertribal Council Title IV
    
    J.T.P.A., 
    261 F.3d 1032
    , 1034 (11th Cir. 2001) (refusing to consider the argument
    
    that the statute of limitations on appellant’s § 1981 employment discrimination
    
    claim was the four year statute of limitations under 28 U.S.C. § 1658 because
    
    immunity applied). Therefore, Barron could have argued the statute of limitations
    
    issue before the district court, but he did not. Accordingly, he has waived this
    
    issue on appeal.
    
                 2. Title VII Claims
    
    
    
                                               4
          Under Title VII, it is unlawful “to fail or refuse to hire or to discharge any
    
    individual, or otherwise to discriminate against any individual with respect to his
    
    compensation, terms, conditions, or privileges of employment, because of such
    
    individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). A claim of race discrimination
    
    can be made with direct or circumstantial evidence. See Maynard, 342 F.3d at
    
    1288. In a circumstantial evidence case, “[t]o establish a prima facie case of
    
    discriminatory failure to promote, a plaintiff [generally] must prove: (1) that he is a
    
    member of a protected class; (2) that he was qualified for and applied for the
    
    promotion; (3) that he was rejected; and (4) that other equally or less qualified
    
    employees who were not members of the protected class were promoted.” Denney
    
    v. City of Albany, 
    247 F.3d 1172
    , 1183 (11th Cir. 2001) (citation and internal
    
    quotation omitted).
    
          An employee who has not applied for a job opening can still establish a
    
    prima facie case of discrimination in two circumstances. First, “nonapplicants may
    
    be entitled to relief where the employer’s clear policy of exclusion would make an
    
    application a useless exercise,” which requires a two-part showing: (1) “[the
    
    nonapplicant] would have applied but for discrimination”; and (2) “[the
    
    nonapplicant] would have been discriminatorily rejected had he applied.” Cox v.
    
    American Cast Iron Pipe Co., 
    784 F.2d 1546
    , 1560 (11th Cir. 1986). Second,
    
    
    
                                               5
    when no policy of exclusion or formal notice of a job exist, an employer “has a
    
    duty to consider all those who might reasonably be interested,” so a prima facie
    
    case will be established when the employee shows that “the company had some
    
    reason or duty to consider him for the post.” Id.
    
          Once the plaintiff establishes a prima facie case of discriminatory failure to
    
    promote, the defendant has the burden to produce a legitimate, non-discriminatory
    
    reason for its decision. Id. “[T]he defendant’s burden of rebuttal is exceedingly
    
    light. . . . At this stage of the inquiry, the defendant need not persuade the court
    
    that its proffered reasons are legitimate; the defendant’s burden is merely one of
    
    production, not proof.” Cooper v. Southern Co., 
    390 F.3d 695
    , 725 (11th Cir.
    
    2004) (citation and internal quotation omitted). “If such a reason is produced, a
    
    plaintiff then has the ultimate burden of proving the reason to be a pretext for
    
    unlawful discrimination.” Denney, 247 F.3d at 1183.
    
                        a. Promotion of Ashley Patrick
    
          Because Barron did not apply for the position that Patrick received, he
    
    could only establish a prima facie case by showing (1) a clear policy of exclusion
    
    made it futile for him to apply, or (2) the company had a duty to consider him for
    
    the position. See Cox, 784 F.2d at 1560. Barron argues that the district court
    
    improperly made a factual finding that Patrick’s promotion was a result of a career
    
    
    
                                               6
    progression despite contrary evidence that Patrick’s promotion was not in fact a
    
    progression. A district court is not to weigh evidence to resolve a factual dispute.
    
    See Holifield, 115 F.3d at 1561. Accordingly, we agree that the district court
    
    should not have found that Patrick’s promotion constituted a career progression in
    
    light of the conflicting evidence.
    
          However, this error was harmless because, regardless of the type of
    
    promotion, Barron can not establish a prima facie case of discrimination on the
    
    basis of race. Specifically, Barron provides no evidence that FRBA had a reason
    
    or duty to consider him for the Grade 27 Financial Services Analyst Operations
    
    position that Patrick received or that a clear policy of exclusion existed. See Cox,
    
    784 F.2d at 1560. Instead, the evidence suggests that Barron was not qualified for
    
    the position and FRBA had no duty to consider him for the Grade 27 position.
    
          First, Barron had no experience as a Quality Control Analyst. Barron was in
    
    the Protection Department, which protected FRBA’s Birmingham branch and
    
    employees, and therefore his duties would have been different from those of a
    
    Quality Control Analyst. Without this experience, Barron was not qualified for a
    
    Grade 27 Financial Services Operations Analyst position because Patrick’s and
    
    Smith’s experiences indicate that the Grade 26 Quality Control Analyst position
    
    was a prerequisite for the Grade 27 position. Also, Barron fails to point to any
    
    
    
                                              7
    evidence indicating that his experience as a supervisor in the Check Collection and
    
    Payment Services Departments prepared him for the Grade 27 position. Finally,
    
    Barron was viewed as being difficult to work with at FRBA. Barron was
    
    repeatedly told to improve his interpersonal skills and communication. Prior to
    
    moving to the Protection Department, Barron received two consecutive “Below
    
    Requirements” performance ratings. According to Andre Anderson, the former
    
    Branch Manager of the Birmingham Branch and current Vice President of FRBA
    
    in Atlanta, “Below” Requirements” ratings often resulted in demotion or
    
    disciplinary action up to and including termination.
    
           Therefore, the district court’s factual finding regarding the “availability” of
    
    the Grade 27 position was harmless error because we agree with the district court
    
    that Barron was not qualified for the promotion regardless of whether it was
    
    available.1 Moreover, even if Barron was arguably qualified for the position,
    
    Barron has not shown that FRBA had a reason or duty to consider him for the
    
    position. Further, even if FRBA had considered Barron for the position, Barron
    
           1
             In Myricks v. Federal Reserve Bank of Atlanta, No. 04-12246 (11th Cir. March 7,
    2005), we vacated and remanded the district court’s grant of summary judgment in favor of
    FRBA where another African American employee alleged discrimination relating to the
    promotion of Patrick. Notably, in Myricks, the district court stopped its analysis after
    conclusively determining that the promotion was a career progression and hence unavailable to
    Barron. In the instant case, the district court also erroneously decided that the position was a
    career progression promotion and thus unavailable to Barron, but continued the analysis and
    reached the conclusion that regardless of the availability of the Grade 27 position Barron did not
    produce evidence that he was qualified for the position or that FRBA had a duty to consider him.
    
                                                    8
    has not offered any evidence to show that, compared to him, Patrick was equally or
    
    less qualified.
    
           We conclude that Patrick’s promotion to a Grade 27 Financial Services
    
    Analyst Operations position is not evidence of discrimination because Barron
    
    failed to show that he was qualified for the position or that FRBA had a duty to
    
    consider him for the position as he had no prior experience in the position and was
    
    in the Protection Department when FRBA promoted Patrick.
    
                       b.     Hiring of Michael Jadwin
    
           Assuming arguendo that Barron established a prima facie case of
    
    employment discrimination based on FRBA’s decision to hire Jadwin, Barron still
    
    cannot show discrimination. FRBA met its burden of producing a legitimate,
    
    non-discriminatory reason for not hiring any internal candidates. Namely, FRBA
    
    did not believe that any internal candidates were qualified. While Barron appears
    
    to argue that FRBA’s burden of production included specifying how internal
    
    candidates were hired, he overstates FRBA’s “exceedingly light” burden, which is
    
    one of production. See Cooper, 390 F.3d at 725. The burden of persuasion
    
    remains with Barron. See e.g., Denney, 247 F.3d at 1183. Therefore, he must
    
    prove that the reason provided was pretextual. On appeal, Barron relies on this
    
    Court agreeing with his argument that FRBA did not meet its burden of
    
    
    
                                             9
    production, and as result, points to no evidence of pretext. Therefore, FRBA’s
    
    decision to hire outside candidates does not support a claim of disparate treatment
    
    because (1) FRBA met its burden of production, namely that there were no
    
    qualified internal candidates, eliminating the presumption of discrimination, and
    
    (2) Barron failed to present any arguments regarding pretext on appeal.
    
          We conclude that FRBA’s decision to hire Jadwin as a Check Collections
    
    Supervisor is not evidence of discrimination because FRBA’s explanation that
    
    there were no qualified internal candidates was a legitimate, non-discriminatory
    
    reason and Barron failed to argue that the reason was pretext on appeal.
    
                 3. Amendment of the EEOC Charge
    
          Barron has abandoned the argument raised in an issue heading that the
    
    district court improperly determined that his failure to amend his EEOC complaint
    
    precluded him from using the promotion of Baswell and the hiring of Whitley and
    
    Andrus as evidence of discrimination. Instead of arguing whether he should have
    
    amended his EEOC complaint, Barron contends that his civil complaint was
    
    sufficient under Fed. R. Civ. P. 8, or, alternatively, the district court should have
    
    allowed him to amend his complaint. These arguments do not address the merits
    
    of the issue raised in the issue heading. Therefore, Barron has waived this issue on
    
    appeal. See Access Now, Inc. v. Southwest Airlines Co., 
    385 F.3d 1324
    , 1330 (11th
    
    
    
                                               10
    Cir. 2004); Kelliher v. Veneman, 
    313 F.3d 1270
    , 1274 n.3 (11th Cir. 2002)
    
    (holding that appellant’s reference to an EEOC retaliation claim in the summary of
    
    the argument constituted a waiver of the issue because it was not argued on the
    
    merits).
    
          Also, we will not consider the arguments regarding the sufficiency of
    
    Barron’s civil complaint or Barron not being allowed to amend the complaint
    
    because: (1) the district court did not grant summary judgment on either of these
    
    grounds; (2) Barron never moved to amend his complaint; and (3) even if these
    
    were valid arguments, Barron waived them because he never raised these
    
    arguments in the district court. See Four Seasons Hotels and Resorts, B.V. v.
    
    Consorcio Barr, S.A., 
    377 F.3d 1164
    , 1168-69 (11th Cir. 2004).
    
          B. Motion to Strike
    
          Barron argues that the district court should have struck the declarations of
    
    Dennis Blass and Andre Anderson because he was not provided with the subject of
    
    the discoverable information that Blass and Anderson had in support of FRBA’s
    
    claims as required by Fed. R. Civ. P. 26(a)(1)(A). Without this information,
    
    Barron alleges that the declarations should have been struck under Fed. R. Civ. P.
    
    37(a) because he was deprived of an opportunity to conduct discovery regarding
    
    the substance of Anderson and Blass’s declarations.
    
    
    
                                             11
          We review a district court’s decision regarding a discovery motion such as a
    
    motion to strike evidence for an abuse of discretion. See Benson v. Tocco, Inc.,
    
    
    113 F.3d 1203
    , 1208 (11th Cir. 1997). Also, we review a district court’s decision
    
    whether to impose sanctions for an abuse of discretion. See SCADIF, S.A. v. First
    
    Union Nat., 
    344 F.3d 1123
    , 1130 (11th Cir. 2003).
    
          Under Fed. R. Civ. P. 26(a), a party must provide the other parties with,
    
    inter alia, “the name and, if known, the address and telephone number of each
    
    individual likely to have discoverable information that the disclosing party may use
    
    to support its claims or defenses, unless solely for impeachment, identifying the
    
    subjects of the information.” Fed. R. Civ. P. 26(a)(1)(A). Northern District of
    
    Alabama Local Rule 26.1(a)(1)(A) requires that parties “provide to other parties
    
    the name and, if known, the address and telephone number of each individual
    
    believed by it to have discoverable non-privileged personal knowledge concerning
    
    any significant factual issue specifically raised in the pleadings or identified by the
    
    parties in their report to the court under Fed. R. Civ. P. 26(f), appropriately
    
    indicating the subjects about which the person has such knowledge.” N.D. Ala.
    
    Local R. 26.1(a)(1)(A). However, if a party fails to make a disclosure under Rule
    
    26(a), “any other party may move to compel disclosure and for appropriate
    
    sanctions.” Fed. R. Civ. P. 37(a)(2). “A party that without substantial justification
    
    
    
                                               12
    fails to disclose information required by Rule 26(a) . . . is not, unless such failure is
    
    harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any
    
    witness or information not so disclosed.” Fed. R. Civ. P. 37(c)(1). Rule 37(c),
    
    which is a “self-executing sanction for failure to make a disclosure,” is “the more
    
    effective enforcement” mechanism of the disclosure requirement when “the party
    
    required to make the disclosure would need the material to support its own
    
    contentions.” Fed. R. Civ. P. 37, advisory committee’s note (1993).
    
           As an initial matter, Barron waived his claim that Blass’s and Anderson’s
    
    declarations were not based on personal knowledge because he raised it for the first
    
    time in the reply brief. See Lind v. United Parcel Service, Inc., 
    254 F.3d 1281
    ,
    
    1283 n.2 (11th Cir. 2001). Also, the district court did not abuse its discretion in
    
    denying the motion to strike Anderson’s and Blass’s declarations. Because
    
    Anderson and Blass were identified in FRBA’s Rule 26 disclosures,2 Barron knew
    
    that they were individuals with discoverable information and could have contacted
    
    the attorneys for FRBA for clarification or further information about the subject of
    
    the discoverable information that they had. Also, because Barron knew the roles of
    
    Blass and Anderson in FRBA, he could have inquired into the extent of their
    
    
           2
             While FRBA’s Rule 26 disclosures are not part of the record, the parties apparently
    agree that Anderson and Blass were identified as individuals with discoverable information
    because Barron did not challenge FRBA’s assertion that it had provided Blass’s and Anderson’s
    names in its Rule 26 disclosures.
    
                                                 13
    knowledge regarding his claims. There is no indication that Barron sought such
    
    information before the motion to strike.
    
          Also, FRBA was substantially justified in not providing the subject of the
    
    discoverable information that Blass and Anderson had because they were never
    
    mentioned in the civil complaint as perpetrators of discrimination and the nature of
    
    the complaint did not reveal what relevant information Blass and Anderson might
    
    possess. See Fed. R. Civ. P. 37, advisory committee notes (1993) (“Limiting the
    
    automatic sanction to violations ‘without substantial justification’ . . . is needed to
    
    avoid unduly harsh penalties . . . .”). As the district court explained, Barron’s shot
    
    gun complaint did not clearly indicate what role any individuals within FRBA
    
    would have had in the alleged discrimination. Further, the district court’s
    
    scheduling order specifically directed the parties to exchange information required
    
    by Local Rule 26.1(a)(1), which only requires the name of individuals who have
    
    “personal knowledge concerning any significant factual issue specifically raised in
    
    the pleadings or identified by the parties in their report to the court.” Because the
    
    complaint was vague and failed to name Blass or Anderson as perpetrators of
    
    discrimination, it did not reveal a significant factual issue regarding Barron’s
    
    claims over which Blass and Anderson necessarily would have had information.
    
    Nor is there any indication that Blass or Anderson were identified in the parties’
    
    
    
                                               14
    report to the court. Therefore, FRBA complied with the Local Rule.
    
           Accordingly, we conclude that the district court did not abuse its discretion
    
    in denying the motion to strike.
    
           C. Motion to Sever
    
           Barron argues that the district court should not have granted the motion to
    
    sever the seven plaintiffs’ claims into separate actions because: (1) he did not have
    
    any opportunity to respond before entry of the court’s order to sever; and (2) the
    
    seven co-plaintiffs’ promotion claims were “strikingly similar and connected”
    
    because they alleged a pattern and practice of keeping black employees in lower
    
    level jobs.
    
           Ordinarily, we review a district court’s grant of a motion to sever for an
    
    abuse of discretion. See Bailey v. Board of County Comm’rs of Alachua County,
    
    Fla., 
    956 F.2d 1112
    , 1128 (11th Cir. 1992). When a party fails to raise an
    
    argument or issue below, we generally deem the issue to be waived. See e.g., Four
    
    Seasons Hotels and Resorts, 377 F.3d at 1168-69. Nevertheless, we may review an
    
    issue or argument not raised below when: (1) it involves “a pure question of law if
    
    the refusal to consider it would result in a miscarriage of justice”; (2) the objection
    
    is not raised in the court below because “the appellant had no opportunity to raise
    
    the objection”; (3) “there is at stake a substantial interest of justice”; (4) “the
    
    
    
                                                15
    proper resolution is beyond any doubt”; and (5) “if the issue presents significant
    
    questions of general impact or great public concern.” In re Worldwide Web
    
    Systems, Inc., 
    328 F.3d 1291
    , 1301 (11th Cir. 2003).
    
          Barron has waived this issue on appeal because he never objected to the
    
    district court’s decision to sever below and none of the waiver exceptions are
    
    applicable. See id.; Four Seasons Hotels and Resorts, 377 F.3d at 1168-69.
    
    Barron’s contention that he had no opportunity to oppose the motion to sever due
    
    to the district court’s quick decision to sever the claims following FRBA’s motion
    
    is unpersuasive and does not fall within an exception to the waiver rule because
    
    Barron could have sought reconsideration of the court’s severance order.
    
    Therefore, we conclude that Barron has waived this claim on appeal for failure
    
    failed to contest the decision during the district court proceedings.
    
          For the foregoing reasons, we AFFIRM the district court’s orders
    
    (1) granting summary judgment in favor of FRBA, (2) denying the motions to
    
    strike declarations, and (3) granting the motion to sever.
    
          AFFIRMED.
    
    
    
    
                                              16