Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 1 of 21
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF ALABAMA
`EASTERN DIVISION
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`CIVIL ACTION NO. 3:09cv673-MEF
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`ROBERT DAVIS,
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`Plaintiff,
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`v.
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`ERIC K. SHINSEKI, Secretary,
`Department of Veterans Affairs,
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`Defendant.
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`RECOMMENDATION OF THE MAGISTRATE JUDGE
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`I. INTRODUCTION
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`Plaintiff Robert Davis (“Davis”), proceeding pro se, brings this Title VII action
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`against defendant Eric Shinseki, in his capacity as the Secretary of the Department of
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`Veterans Affairs, alleging that he was discriminated against and subjected to a hostile work
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`environment because of his race, African-American. He also contends that he was retaliated
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`against for filing discrimination charges with the Equal Employment Opportunity
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`Commissioner (“EEOC”). He brings these claims pursuant to Title VII of the Civil Rights
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`Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). The court has jurisdiction
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`of the plaintiff’s claims pursuant to its federal question jurisdiction, 28 U.S.C. § 1331, and
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`the jurisdictional grant in 28 U.S.C. § 2000e-5.
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`Now pending before the court is the defendant’s motion for summary judgment (doc.
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`Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 2 of 21
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`# 20). Davis has filed a response in opposition to the motion (doc. # 24). After careful
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`review of the motion, the briefs filed in support of and in opposition to the motion, and the
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`supporting and opposing evidentiary materials, the court concludes that the defendant’s
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`motion for summary judgment should be granted.
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`II. THE SUMMARY JUDGMENT STANDARD
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`“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with the affidavits, if any, show there is no
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`genuine [dispute] as to any material fact and that the moving party is entitled to judgment
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`as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11 th
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`Cir. 2007) (per curiam) (citation omitted); FED.R.CIV.P. 56(c) (Summary judgment “should
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`be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits
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`show that there is no genuine [dispute] as to any material fact and that the movant is entitled
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`to judgment as a matter of law.”). The party moving for summary judgment “always bears
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`the initial responsibility of informing the district court of the basis for its motion, and
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`identifying those portions of the [record, including pleadings, discovery materials and
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`affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact.”
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`Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by
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` Although the defendant styled his motion as a “motion to dismiss, or in the alternative, motion for
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`summary judgment,” (doc. # 20), because the motion relies on material outside the pleadings, the court
`converted the motion to dismiss into a motion for summary judgment.
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` Effective December 1, 2010, the language of Rule 56(a) was amended. The word “dispute”
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`replaced the word “issue” to “better reflect[] the focus of a summary-judgment determination.” FED.R.CIV.P.
`56(a), Advisory Committee Notes, 2010 Amendments.
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`presenting evidence which would be admissible at trial indicating there is no dispute of
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`material fact or by showing that the nonmoving party has failed to present evidence in
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`support of some element of its case on which it bears the ultimate burden of proof. Id. at
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`322-324.
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`Once the defendant meets his evidentiary burden and demonstrates the absence of a
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`genuine dispute of material fact, the burden shifts to the plaintiff to establish, with
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`appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists.
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`Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11 Cir. 1991); Celotex, 477 U.S. at 324;
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`FED.R.CIV.P. 56(e)(2) (“When a motion for summary judgment is properly made and
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`supported, an opposing party may not rely merely on allegations or denials in its own
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`pleading; rather, its response must ... set out specific facts showing a genuine [dispute] for
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`trial.”). A genuine dispute of material fact exists when the nonmoving party produces
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`evidence that would allow a reasonable fact-finder to return a verdict in its favor.
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`Greenberg, 498 F.3d at 1263.
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`To survive the defendant’s properly supported motion for summary judgment, Davis
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`is required to produce “sufficient [favorable] evidence” establishing a violation of Title VII.
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence [on which the
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`nonmoving party relies] is merely colorable . . . or is not significantly probative . . . summary
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`judgment may be granted.” Id. at 249-250. “A mere ‘scintilla’ of evidence supporting the
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`opposing party’s position will not suffice; there must be enough of a showing that the [trier
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`of fact] could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1576-1577
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`(11 Cir. 1990) quoting Anderson, supra. Conclusory allegations based on subjective beliefs
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`are likewise insufficient to create a genuine dispute of material fact and, therefore, do not
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`suffice to oppose a motion for summary judgment. Waddell v. Valley Forge Dental Assocs.,
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`Inc., 276 F.3d 1275, 1279 (11 Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11
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`Cir. 1997) (plaintiff’s “conclusory assertions ..., in the absence of [admissible] supporting
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`evidence, are insufficient to withstand summary judgment.”); Harris v. Ostrout, 65 F.3d 912,
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`916 (11 Cir. 1995) (grant of summary judgment appropriate where inmate produces nothing
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`beyond “his own conclusory allegations. . . .”); Fullman v. Graddick, 739 F.2d 553, 557 (11th
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`Cir. 1984) (“mere verification of party's own conclusory allegations is not sufficient to
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`oppose summary judgment. . . .”). Hence, when a plaintiff fails to set forth specific facts
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`supported by appropriate evidence sufficient to establish the existence of an element essential
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`to his case and on which the plaintiff will bear the burden of proof at trial, summary
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`judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322
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`(“[F]ailure of proof concerning an essential element of the nonmoving party’s case
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`necessarily renders all other facts immaterial.”); Barnes v. Southwest Forest Indus., Inc., 814
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`F.2d 607, 609 (11 Cir. 1987) (if on any part of the prima facie case the plaintiff presents
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`insufficient evidence to require submission of the case to the trier of fact, granting of
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`summary judgment is appropriate).
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`For summary judgment purposes, only disputes involving material facts are relevant.
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`United States v. One Piece of Real Prop. Located at 5800 SW 74 Ave., Miami, Fla., 363
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`F.3d 1099, 1101 (11 Cir. 2004). What is material is determined by the substantive law
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`applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec’y of Dep’t of Children &
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`Family Servs., 358 F.3d 804, 809 (11 Cir. 2004) (“Only factual disputes that are material
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`under the substantive law governing the case will preclude entry of summary judgment.”).
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`“The mere existence of some factual dispute will not defeat summary judgment unless that
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`factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City
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`of Fort Lauderdale, 333 F.3d 1234, 1243 (11 Cir. 2003) (citation omitted). To demonstrate
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`a genuine dispute of material fact, the party opposing summary judgment “must do more than
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`simply show that there is some metaphysical doubt as to the material facts. . . . Where the
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`record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
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`there is no ‘genuine [dispute] for trial.’” Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio
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`Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is
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`admissible on its face or which can be reduced to admissible form indicates that there is no
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`genuine dispute of material fact and that the party moving for summary judgment is entitled
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`to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324
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`(summary judgment appropriate where pleadings, evidentiary materials and affidavits before
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`the court show there is no genuine dispute as to a requisite material fact); Waddell, 276 F.3d
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`at 1279 (to establish a genuine dispute of material fact, the nonmoving party must produce
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`evidence such that a reasonable trier of fact could return a verdict in his favor).
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`Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 6 of 21
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`Although factual inferences must be viewed in a light most favorable to the
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`nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a
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`pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
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`dispute of material fact. Beard v. Banks, 548 U.S. 521, 525 (2006); Brown v. Crawford, 906
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`F.2d 667, 670 (11 Cir. 1990). Thus, the plaintiff’s pro se status alone does not mandate this
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`court’s disregard of elementary principles of production and proof in a civil case. In this
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`case, Davis fails to demonstrate a requisite genuine dispute of material fact in order to
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`preclude summary judgment. Matsushita, supra.
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`IV. DISCUSSION
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`As stated in his complaint, Davis alleges the following acts constitute racial
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`discrimination, harassment and retaliation.
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`A white individual was hired by the Agency at a higher salary with less
`qualifications.
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`I was subjected to a urine specimen test by the Agency for selling and using
`illegal drugs on government property. This action was taken without probable
`cause and not in accordance with the rules and regulations of the V.A.
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`I was terminated by the Agency wrongfully and had to be brought back to duty
`of charges that were unfounded.
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`The Agency had me investigated by one board which did not rule in agreement
`with the Agency, so the Agency convened a second board which ruled in the
`Agency’s favor.
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`(Compl., doc. # 1, at 2). Beyond these general allegations, Davis does not elaborate further
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`Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 7 of 21
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`on the facts that form the basis of his claims.3
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`A. RACE DISCRIMINATION - SALARY
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`First, Davis claims that the Department of Veterans Affairs discriminated against him
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`when he was paid a lower starting salary than a white employee. The defendant argues that
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`this claim is barred by the doctrine of res judicata because this claim against this defendant
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`is identical to claims raised in a case which was previously dismissed by this court. The
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`court agrees that this matter is barred by the doctrine of res judicata.
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`“Our res judicata analysis has always required a consideration of the facts and legal
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`theories of two causes of action as well as the rights and duties involved in each case.”
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`Draper v. Atlanta Indep. Sch. Sys., 377 Fed. Appx. 937, 940 (11 Cir. 2010) certiorari
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`denied, — S.Ct. —, 2010 WL 3074311 (Oct. 4, 2010) citing Manning v. City of Auburn, 953
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`F.2d 1355, 1359 (11 Cir. 1992). “We have consistently concluded that when the substance
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`and facts of each action are the same, res judicata bars the second suit.” Id. In I.A. Durbin,
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`Inc. v. Jefferson National Bank, 793 F.2d 1541 (11 Cir. 1986), the Court summarized the
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` In his complaint, Davis wrote “Reprisal” under Other discriminatory conduct. (Compl. at 2, ¶ 6,
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`doc. # 1). Beyond this, Davis makes no argument and points to no facts in support of this claim. It is not
`the burden of the district court to distill every potential argument that could be made based upon the materials
`before it on summary judgment. Blue Cross & Blue Shield v. Weitz, 913 F.2d 1544, 1550 (11 Cir. 1990).
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`Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied
`upon in summary judgment are deemed abandoned. Road Sprinkler Fitters Local Union No. 669 v. Indep.
`Sprinkler Corp., 10 F.3d 1563, 1568 (11 Cir. 1994).
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` Davis does not identify the white employee in his complaint or in opposition to the defendant’s
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`motion for summary judgment. The court has culled the comparator from the evidentiary materials filed by
`Davis in opposition to the defendant’s motion for summary judgment. If Davis is referring to another
`employee, he has failed to identify that employee or point to any other different factual circumstances. Thus,
`the court properly concludes that this claim is the same as the previously adjudicated claim.
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`doctrine of res judicata as follows:
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`Res judicata or claim preclusion refers to the preclusive effect of a judgment
`in foreclosing relitigation of matters that were litigated or could have been
`litigated in an earlier suit. . . . In order for the doctrine of res judicata to bar a
`subsequent suit, four elements must be present: (1) there must be a final
`judgment on the merits; (2) the decision must be rendered by a court of
`competent jurisdiction; (3) the parties, or those in privity with them, must be
`identical in both suits; and (4) the same cause of action must be involved in
`both cases.
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`I.A. Durbin, 793 F.2d at 1549 (citations omitted). It is to these elements the court now turns.
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`(1)
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`A Final Judgment by a Court of Competent Jurisdiction. In July 2001,
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`Davis filed suit against Anthony J. Principi, the Secretary of the Department of Veterans
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`Affairs at that time. See Davis v. Principi, Civ. Act. No. 3:01cv924-ID (M.D. Ala. 2002).
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`In that case, Davis sued the Department of Veterans Affairs for race discrimination and
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`retaliation alleging that he was paid less than similarly situated white employees and that he
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`was paid less in retaliation for exercising his rights under Title VII. See Id., Compl., doc. 1.
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`On July 22, 2002, the Court ordered that final judgment be entered in accordance with the
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`Recommendation of the Magistrate Judge, and dismissed the case with prejudice. See Doc.
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`29. On April 22, 2004, the Eleventh Circuit Court of Appeals affirmed the decision on the
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`merits. See Docs. # 36-37. Clearly this court and the Eleventh Circuit Court of Appeals are
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`courts of competent jurisdiction. Thus, it is clear that the court’s dismissal of the case was
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`a final judgment on the merits and that the decision was rendered by a court of competent
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`jurisdiction.
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`(2)
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`Identical Parties. Parties are “identical” for purposes of res judicata when
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`they are the same or in privity with one another. NAACP v. Hunt, 891 F.2d 1555, 1561 (11th
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`Cir. 1990). In Davis v. Principi, Civ. Act. No. 3:01cv924-ID (M.D. Ala. 2002), the plaintiff
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`named Anthony J. Principi, the then-Secretary of the Department of Veterans Affairs. In the
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`present lawsuit, the plaintiff names Eric Shinseki, the present Secretary of the Department
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`of Veterans Affairs. Thus, the defendant in the present lawsuit is the same as, or in privity
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`with, the defendant in the previous case.
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`(3)
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`The Same Cause of Action. In Manning v. City of Auburn, the Court
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`summarized the law regarding when a cause of action is the same for purposes of res judicata
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`as follows:
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`In this circuit, the determination of whether the causes of action in two
`proceedings are the same is governed by whether the primary right and duty
`are the same. Hunt, 891 F.2d at 1561 (quoting Kemp v. Birmingham News
`Co., 608 F.2d 1049, 1052 (5 Cir. 1979)); I.A. Durbin, Inc. v. Jefferson Nat'l
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`Bank, 793 F.2d 1541, 1549 (11 Cir. 1986). The test is one of substance, not
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`form. I.A. Durbin, 793 F.2d at 1549. Res judicata applies “not only to the
`precise legal theory presented in the previous litigation, but to all legal theories
`and claims arising out of the same ‘operative nucleus of fact.’” Hunt, 891 F.2d
`at 1561 (despite variations in legal theories used and remedies sought, second
`suit barred because wrongful act in both cases was flying Confederate flag
`atop state capitol) (quoting Olmstead v. Amoco Oil Co., 725 F.2d 627, 632
`(11 Cir. 1984)); Jaffree v. Wallace, 837 F.2d 1461, 1468 (11 Cir. 1988)
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`(second suit barred because “[b]oth cases raised first amendment (free exercise
`and establishment clause) challenges to use of textbooks and teachings on
`various subjects”); Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5 Cir.
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`1983) (section 1983 action against city that refused to hire plaintiff as
`firefighter due to her sex precluded by earlier Title VII action on same facts).
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`953 F.2d 1355, 1358-59 (11 Cir. 1992).
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`In the earlier case, the plaintiff asserted that he was discriminated against by the
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`Department of Veterans Affairs when he was paid less as a respiratory therapist than other
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`similarly situated white employees, specifically Susan Sharp. In the present case, the
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`plaintiff more generally asserts that “[a] white individual was hired by the Agency at a higher
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`salary with less qualifications.” (Compl. at 2). Although Davis does not identify Sharp as
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`his comparator in his present complaint, in opposition to the motion for summary judgment,
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`he submitted exhibits and other evidence referencing his starting salary as compared to
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`Sharp’s salary. “Res judicata acts as a bar ‘not only to the precise legal theory presented in
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`the previous litigation, but to all legal theories and claims arising out of the same operative
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`nucleus of fact.’” Pleming v. Universal-Rundle Corp., 142 F.2d 1354, 1356 (11 Cir. 1998).
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`See also Driessen v. Fla., 2010 WL 4204634, 1 (11 Cir. 2010) quoting Ragsdale v.
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`Rubbermaid, Inc., 193 F.3d 1235, 1238 (11 Cir. 1999) (“Res judicata bars the filing of
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`claims which were raised or could have been raised in an earlier proceeding.”).
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`Finally, Davis relies on the same legal theory, disparate treatment racial
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`discrimination. Thus, the issue in the prior litigation is identical to the issue raised in this
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`lawsuit. The court therefore concludes that the plaintiff’s race discrimination claims
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`concerning his salary in the present action are barred by the doctrine of res judicata and
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`should be dismissed.
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`B. RACE DISCRIMINATION - URINALYSIS TESTING
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`Davis next contends that the Department of Veterans Affairs discriminated against
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`him based on his race by subjecting him to urinalysis testing in violation of the V.A.’s rules
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`and regulations. Title VII prohibits discrimination on the basis of race, color, religion, sex,
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`or national origin in a variety of employment practices. See Walker v. NationsBank of Fla.,
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`N.A., 53 F.3d 1548, 1555 (11 Cir. 1995). Davis’s claim is governed by the familiar tripartite
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`framework established by the United States Supreme Court in McDonnell Douglas Corp. v.
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`Green, 411 U.S. 792 (1973) and Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248
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`(1981). In an employment discrimination case, Davis bears the ultimate burden of proving
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`that the defendant intentionally discriminated against him. Burdine, 450 U.S. at 253. This
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`Circuit has consistently held that federal courts, in resolving discrimination claims, do not
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`review the accuracy of an employer’s decision. See e.g., Jones v. Bessemer Carraway Med.
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`Ctr., 151 F.3d 1321, 1321 n.16 (11 Cir. 1998) (explaining that “Title VII is not a shield
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`against harsh treatment at the workplace. . . .The employer may fire an employee for a good
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`reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its
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`action is not for a discriminatory reason.” and citing Nix, 738 F.2d at 1187.) Thus, “[t]o
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`recover for disparate treatment, the employee must prove that the employer intentionally
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`discriminated against him.” Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539, 546
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`(11 Cir. 1991).
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`To defeat the defendant’s motion for summary judgment, Davis must establish a prima
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`facie case of discrimination by one of three generally accepted methods: (1) presenting direct
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` 42 U.S.C.A. § 2000e-2(a)(1) provides: “It shall be an unlawful employment practice for an
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`employer 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, color, religion, sex or national origin.”
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`evidence of discriminatory intent; (2) presenting evidence to satisfy the four-part
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`circumstantial evidence test set out in McDonnell-Douglas, supra; or (3) presenting statistical
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`proof. Carter v. City of Miami, 870 F.2d 578, 581 (11 Cir. 1989). Because Davis has not
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`presented direct or statistical evidence of discrimination, the court proceeds to evaluate his
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`circumstantial evidence of racial discrimination under the four-part McDonnell-Douglas. See
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`Nix, 738 F.2d at 1184 (noting that the McDonnell Douglas framework is a valuable tool for
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`analyzing disparate treatment cases). To be successful, Davis must first prove, by a
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`preponderance of the evidence, a prima facie case of discrimination. Burdine, 450 U.S. at
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`252-53. If he establishes a prima facie case, the defendant then has the burden of producing
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`“some legitimate, non-discriminatory reason” for the challenged employment action. See
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`McDonnell Douglas, 411 U.S. at 802. If the defendant satisfies this burden, the plaintiff
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`must then prove, by a preponderance of the evidence, that the articulated reasons were mere
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`pretext for intentional discrimination. Burdine, 450 U.S. at 256. In the summary judgment
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`context, Davis needs only present evidence from which a trier of fact could conclude the
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` Direct evidence of employment discrimination consists of statements by a person with control over
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`the employment decision “sufficient to prove discrimination without inference or presumption.” See Clark
`v. Coats & Clark, Inc., 990 F.2d 1217, 1223 (11 Cir. 1993) (citing Carter v. City of Miami, 870 F.2d 578,
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`581-82 (11 Cir. 1989). The Eleventh Circuit has severely limited the type of language constituting direct
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`evidence of discrimination. See, e.g., Evans v. McClain of Ga., Inc., 131 F.3d 957, 962 (11 Cir. 1997);
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`Burrell v. Bd. of Trustees of Ga. Military Coll., 125 F.3d 1390, 1393-94 n.7 (11 Cir. 1997); Earley v.
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`Champion Int’l Corp., 907 F.2d 1077, 1082 (11 Cir. 1990). This Circuit holds that a plaintiff presents direct
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`evidence of discrimination where “actions or statements of an employer reflect a discriminatory or retaliatory
`attitude correlating to the discrimination or retaliation complained of by the employee.” Carter v. Three
`Springs Residential Treatment, 132 F.3d 635, 641-42 (11 Cir. 1998); Merritt v. Dillard Paper Co., 120 F.3d
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`1181, 1189 (11 Cir. 1997). Davis does not argue that there exists direct evidence of intentional
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`discrimination in this case, nor has he presented any statistical evidence supporting his claim of intentional
`discrimination.
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`defendant intentionally discriminated against him.
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`The plaintiff pursues this action pro se and his pleadings are not a model of clarity.
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`Nonetheless, because the plaintiff asserts that he was discriminatorily subjected to drug
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`testing because he is African-American, the court construes this claim as a disparate
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`treatment claim. To establish a prima facie case of disparate treatment, Davis, as a member
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`of a protected class, must show that there were other employees who were similarly situated
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`to him but were treated more favorably than him, specifically that they were not required to
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`submit to a drug urinalysis test. See Walker v. Mortham, 158 F.3d 1177, 1193 (11 Cir.
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`1998); Holifield v. Reno, 115 F.3d 1555, 1561 (11 Cir. 1997). The parties do not dispute
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`that Davis is a member of a protected class, and that he was subjected to drug testing.
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`However, the defendant argues that because all the employees in the respiratory therapy
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`department at the Tuskegee campus were required to undergo the drug urinalysis test, Davis
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`cannot show that there were similarly situated non-African American employees who were
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`treated more favorably than him. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11 Cir.
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`1999) (citing Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11 Cir. 1998)
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`modified by, 151 F.3d 1321 (11 Cir. 1998)).
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`The question of whether Davis is similarly situated with other employees is critical.
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`See Marshall v. Western Grain Co., Inc., 838 F.2d 1165, 1168 (11 Cir. 1988) (citing
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` The part of this opinion dealing with the establishment of a prima facie case by circumstantial
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`evidence was not superceded by Jones v. Bessemer Carraway Med. Ctr., 151 F.3d 1321 (11 Cir. 1998).
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`Only the part of the Court’s opinion regarding direct evidence was superceded.
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`Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 14 of 21
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`Kendall v. Block, 821 F.2d 1142 (5 Cir. 1987)). It is Davis’s burden to prove that a
`th
`8
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`similarly situated person received better or more favorable treatment. See e.g., Holifield, 115
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`F.3d at 1565. In applying this standard, an allegation of a similarly-situated comparator,
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`without an adequate showing that the plaintiff is similarly situated, fails to establish a prima
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`facie case of employment discrimination. Malladi v. Brown, 987 F. Supp. 893, 909-910
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`(M.D. Ala. 1997) aff’d by United States v Ponder, 150 F.3d 1197 (11 Cir. 1998). Davis
`th
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`presents no evidence that other employees were exempt from the drug testing at issue. In
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`fact, the undisputed evidence demonstrates that all the employees in the respiratory therapy
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`department on the Tuskegee campus were interviewed and required to submit to drug testing.
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`(Def’s Ex. 27, Evid. Hr’g Tr. at 25-26, 151-52, 188, 206-07; Def’s Ex. 26, Aff. Ken
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`Langford, at 10-11).
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`Davis argues that, because Stephanie Estes was told the urinalysis test was a random
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`drug test instead of a reasonable suspicion drug test, the test was invalid because it was done
`9
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`in violation of the Veteran Affairs’ policies. Whether the drug test was random or based on
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`reasonable suspicion is immaterial to Davis’s claim of intentional racial discrimination. The
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`undisputed evidence demonstrates that all the employees in the respiratory therapy
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`department on the Tuskegee campus were subjected to the drug test. Davis also contends
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` See Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981) (en banc), adopting as binding
`8
`th
`precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
`September 30, 1981.
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` It is undisputed that, based on the allegations, the Department had sufficient reasonable suspicion
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`to require the employees to submit to drug urinalysis tests.
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`Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 15 of 21
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`that his supervisor, Ken Langford, made false statements about drug activity on the Tuskegee
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`campus so that he could order the employees to undergo drug testing.
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`10
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` Absent some
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`evidence that Langford’s actions were racially motivated, his statements or reasons for
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`instigating the investigation and subsequent drug testing are immaterial. Davis has presented
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`no evidence that the decision to require him to undergo a drug test was racially motivated.
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`Furthermore, the plaintiff has failed to present sufficient evidence to permit an
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`inference of discrimination. Proving a prima facie case is not onerous; it requires only that
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`the plaintiff present sufficient evidence to permit an inference of discrimination. Burdine,
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`450 U.S. at 253-54. Davis offers nothing to suggest that race played a role in the decision
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`to require him to undergo a drug test. To survive the motion for summary judgment, Davis
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`must present evidence creating a genuine dispute of material fact. Davis presented no
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`evidence that the drug testing was based on improper motives. Regardless of whether Davis
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`believes that the defendant should have provided him with the specific written policy that
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`warranted the drug testing, he has presented no evidence that the decision to require him to
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`undergo a drug test was racially motivated. Accordingly, the court concludes that Davis has
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`failed to establish a prima facie case of race discrimination and the defendant is entitled to
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` In his opposition to the defendant’s motion for summary judgment, Davis refers to 18 U.S.C. §
`10
`1621 and 18 U.S.C. § 1512. To the extent that Davis attempts to allege causes of action based on Langford’s
`alleged perjury or witness tampering, see Pl’s Rep. in Opp. to Def’s Mot. for Summ. J., doc. # 24, there are
`no private rights of action under these criminal statutes. “[A]s criminal statutes, [these code sections] do not
`convey a private right of action” nor do they authorize an individual to initiate criminal proceedings. See
`generally Mueller v. United States, 2010 WL 5060544, *4 (C.D. Cal., 2010); Small v. Mortgage Electronic
`Registration Sys., Inc., 2010 WL 3719314 *8-9 (E.D. Cal. 2010); Banks v. Kramer, 2009 WL 5526780 (D.C.
`Cir. 2009).
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`Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 16 of 21
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`summary judgment on this count.
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`C. TERMINATION and BOARD CLAIMS
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`Davis next challenges actions related to his termination in 2007 in which he argues
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`that the initial termination was improper as evidenced by his return to duty. As evidence that
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`he was improperly terminated, Davis alleges that the defendant did not like the first review
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`board so it caused a second review board to be convened which ruled in favor of the
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`defendant.
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` As part of the internal appeals process, Davis was reinstated to his position and
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`he has since voluntarily retired. He does not seek reinstatement. See Compl. at 2, doc. # 1.
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`Davis does not claim that his initial termination or subsequent actions arising from
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`that action were based on his race. He makes no allegation that he was treated differently
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`based on his race or that race was a motivating factor for any adverse treatment of him.
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`Consequently, he has failed demonstrate, by a preponderance of the evidence, a prima facie
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`case of race discrimination. Burdine, 450 U.S. at 252-53. Davis has presented no evidence
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`from which a trier of fact could conclude the defendant intentionally discriminated against
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`him based on his race with regard to these claims. Accordingly, the defendant is entitled to
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`summary judgment on these claims.
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`D. HOSTILE WORK ENVIRONMENT CLAIM
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`To establish a racially hostile work environment, harassment must be “sufficiently
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` The defendant argues that this court does not have jurisdiction over this claim, and that Davis has
`11
`failed to exhaust this claim. Because these claims fail as a matter of law, the court pretermits discussion of
`these specific defenses.
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`Case 3:09-cv-00673-MEF-CSC Document 25 Filed 01/11/11 Page 17 of 21
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`severe or pervasive to alter the conditions of the victim’s employment and create an abusive
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`working environment[.]” Corbitt v. Home Depot, U.S.A., Inc., ___ F.3d ___, ___, 2009 WL
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`1981383, *10 (11 Cir. 2009) (No. 08-12199). Davis does not point the court to any specific
`th
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`incidents which he contends demonstrate racial animus sufficient to sustain a racially hostile
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`work environment claim. However, the court has culled the following incidents from the
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`materials before the court: (1) he was subjected to an urinalysis test, (2) he was investigated,
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`and (3) he did not receive emails that other employees received. As best the court can
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`discern, Davis argues that these incidents are sufficient to constitute a racially hostile work
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`environment.
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`Under the law of this circuit, a plaintiff establishes a prima facie case of racially
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`hostile work environment harassment claim by showing: (1) that he belongs to a protected
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`group; (2) that he has been subjected to unwelcome harassment;