Alvarez v. Aplm Servs.

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LUIS OMAR ALVAREZ, Plaintiff, v. APLM SERVICES, AM INDUSTRIAL SERVICES, and CARLA LITCHFIELD, Defendants.

No. CV421-119

United States District Court, S.D. Georgia, Savannah Division

November 30, 2022

ORDER and REPORT AND RECOMMENDATION

CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE

Plaintiff appearing pro se, filed this lawsuit alleging that Defendants committed various unlawful employment actions. Currently pending is Defendants' Motion to Dismiss or in the Alternative for Summary Judgment. Doc. 26. Plaintiff responded in opposition, doc. 32, Defendants replied, doc 34, and Plaintiff responded to the Reply, doc. 35.

I. Background and Procedural History

Plaintiff is a member of Local 709 of the Ironworker's Union (“Local 709”). See generally, Doc. 1. Atlantic Parking Lot Maintenance (“APLM”) is a union contractor and has entered into collective bargaining agreements with Local 709. Doc. 26-1 at 2; doc. 31 at 1.^[1] On or about August 17, 2020, APLM sought Union members for work to be performed under a contract APLM had with the Savannah Sugar Refinery. Doc. 261 at 2. According to Jason Townsend, APLM's owner and manager, the Savannah Sugar Refinery is owned by the Louis Dreyfus Company, which requires all persons who work on its premises to complete online safety training. Doc. 26-1 at 3. Plaintiff was referred to APLM by Derrick Sample, the Apprenticeship Coordinator and President of Local 709. Doc. 26-4 at 2; doc. 31 at 2. Sample provided Plaintiff's contact information to Carla Litchfield, the Operations Manager for APLM, and she immediately registered him for required training so that he could be hired and immediately start work. Doc. 26-1 at 3; doc. 26-2 at 2.

On April 19, Sample sent a message to Litchfield, inquiring about Plaintiff's start with APLM. Doc. 26-4 at 2, 5. Litchfield confirmed that even though he was scheduled to start that day, Plaintiff had not completed mandatory training and did not start work. Doc. 26-4 at 5; doc. 31 at 3. Although the context of this is not clear, Sample also noted that he did not send the referral for Plaintiff until he completed the training. Doc. 26-2 at 8. Sample sent an email to Plaintiff the next day, inquiring as to whether Plaintiff still desired the job and asked about the training required. Doc. 26-4 at 6. Plaintiff did not respond to the email until August 28, 2020, when he asked, “Is this the same job we were talking about a little while ago?” Doc. 26-4 at 6. Sample responded, clarifying that the job was for APLM.

On February 24, 2021, APLM made another request for Union members to assist with work to be performed at the Savannah Sugar Refinery. Doc. 26-3 at 2; doc. 31 at 3. Again, Plaintiff was referred by the Union. Id. However, APLM did not accept Plaintiff as a referral. Id. When William “Billy” McMillan, the Business Manager for the Local 709, inquired as to why, he was told by Townsend that Plaintiff had failed to complete training in August 2020 and failed to communicate his declination of the August 2020 job offer, resulting in them considering Plaintiff to be a no-show. Id. Townsend told McMillan that he did not want to risk Plaintiff being a no-show once again or cause delay. Doc. 263 at 2; doc. 31 at 3-4.

Plaintiff does not refute his failure to train or that he did not show up to the August 2020 referral. Rather, Plaintiff explains that he complained about the fact that the training in question was unpaid, and then he declined the August 2020 opportunity for that reason. Doc. 32 at 3. Thus, in his opinion, he was not required to inform anyone that he would not begin work on August 19, 2020, and, therefore, the punitive action of not allowing him to take the February 2021 job was unfair. Doc. 32 at 2. Indeed, Plaintiff complained to his union multiple times. See Doc. 32 at 4. Plaintiff provided meeting minutes from Local 709's August 2020 meeting, where he complained of not being paid for online training “for CR Meyers.” Doc. 32-1 at 9. The September 2020 minutes reflect that Plaintiff also asked why his prior complaint regarding APLM, specifically, had not been in the August meeting minutes. Doc. 32-1 at 12. Purportedly, it was determined that the discussion about APLM was conducted outside of the regular meeting and was thus omitted from the meeting minutes, but Plaintiff believes the failure to record the discussion was nefarious. Doc. 32-1 at 12; doc. 32 at 4. Additionally, Plaintiff complained to Sample about the failure to pay for training. Doc. 1 at 4. Sample explained that the union could not force the contractors to pay for training. Id. In response, Plaintiff says he “opted” for a different company later that week. Id. However, Plaintiff does not assert that he ever communicated his declination of the offer or his complaint about the unpaid training to APLM. In fact, Plaintiff asserts that when he attempted to contact APLM, he was directed through the message box, so he hung up without leaving a message. Doc. 1 at 4.

On February 25, 2021, the Local 709 office manager forwarded an email to Plaintiff from Litchfield who requested that Plaintiff's name be added to the “not for rehire list.” Doc. 32-1 at 2. Plaintiff filed a complaint with the EEOC soon after and received his right-to-sue letter on April 15, 2021. Doc. 1 at 13. He filed this case five days later asserting the following counts: (1) race-based discrimination (disparate impact), in violation of Title VII of the Civil Rights Act of 1964 as amended (“CRA”); (2) national-origin-based discrimination (hostile work environment) in violation of Title VII of the CRA; (3) color-based discrimination (retaliation) in violation of the CRA; and (4) new hire improper, unlawful, and wrongful denial of employment against the Fair Labor Standard Act, as amended. See Doc. 1. The Court construes his Title VII counts as claims for unlawful discrimination, retaliation, and hostile work environment on the basis of race and or color. Although his FLSA claim repeats his discrimination allegations, a prevalent theme exists within his filings: the issue of not being paid for time spent training.^[2] Thus the Court infers from Plaintiff's allegations that he believes he was unlawfully forced to make a decision: undergo unpaid employer mandated training which, he alleges is not exempt from the FLSA's minimum wage and overtime requirements, or not have a job.

Defendants filed their Motion to Dismiss or in the Alternative for Summary Judgment on May 17, 2022. Doc. 26. On that same day, the Court issued a Notice to Plaintiff alerting him to the implications of the Court's review of a Motion for Summary Judgment. Doc. 29. Plaintiff responded to the Defendants' Motion on June 3, 2022, primarily attacking the factual allegations contained in Defendants' affidavits which were attached to their Motion. See Doc. 32 (examining “Mr. Townsend's Affidavit,” among others and pointing out perceived inconsistencies in their recitation of events). He also attached an exhibit to his own response, which contained communications and other relevant evidence in support of his claim. See doc. 32-1 at 1-13. These exhibits were not attached to his original Complaint. See doc. 1. On June 14, 2022, Defendants filed a Reply to Plaintiff's Response, doc. 34, to which Plaintiff responded three days later. Doc. 35. Again, Plaintiff attached exhibits which specifically purport to contradict issues of fact presented by the Defendants. Doc. 35 at 7-13. The Court thus finds it impossible to examine Plaintiff's arguments without considering matters outside the pleadings.

Pursuant to this conclusion, the undersigned issued an Order on November 1, 2022, doc. 36, notifying the parties that the Court would not exclude their affidavits and supporting evidence in making a recommendation to the District Judge regarding the case, as required in this Circuit. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985); see also United States v. One Colt Python .357 Cal. Revolver, S/N T03461 W/Holster, 845 F.2d 287, 289 (11th Cir. 1988) (requiring the District Court give the parties ten days' notice that it is converting the moving party's motion to dismiss into a motion for summary judgment).

Even after being given notice, the Plaintiff has not objected the Motion being construed as a Motion for Summary Judgment. Rather, Plaintiff continues to rely on evidence outside of his original pleadings. He filed a Response to the Court's Notice reiterating his contentions that the Defendants engaged in unlawful practices. He also submitted another affidavit stating that he has been truthful in his filings. Doc. 38. He did not file a responsive statement of material facts.

As the notice required by Rules 12(b) and 56 has been given, the court now considers the motion for summary judgment and any materials in support of or in opposition to the motion. Id.; Universal Life Church Monastery Storehouse Inc. v. Cauley, 619 Fed.Appx. 836, 838 (11th Cir. 2015) (holding that notice requirements were met where district court “clearly and plainly warned Cauley that he would have to submit affidavits or responsive evidentiary material to prevent the district court from accepting the Appellees' evidence as true and granting summary judgment in their favor without a trial.”).

II. Legal Standard

Summary judgment “shall” be granted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the ...