E.E.O.C. v. Comcast of Georgia, Inc.

Page 1300

560 F.Supp.2d 1300

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. COMCAST OF GEORGIA, INC., Defendant.

Civil Action No. 1:06-CV-2595-TWT.

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

May 14, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert K. Dawkins, Suzanne Julia Carelli, Equal Employment Opportunity Commission,

Atlanta District Office-Legal Unit, Atlanta, GA, for Plaintiff.

Robert P. Foster, James Melvin Hux, Jr., Fisher & Phillips, LLP, Atlanta, GA, for Defendant.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is a puzzling case. The EEOC sues on behalf of a current employee of the Defendant alleging that he was the victim of age and sex discrimination for one of the forty or so positions that he applied for after he was laid off due to a reduction in force. The position was filled in May 2005 by a younger female employee. The alleged victim was hired by another cable company in October 2005, a year before the EEOC filed this lawsuit. Within a few months, that cable company was taken over by Comcast and the alleged victim has been employed by Comcast—with no complaints of discrimination—ever since. So this action is now about five months of unemployment. When the alleged victim was laid off, he received severance benefits of about $35,000.00. The case is before the Court on the Report and Recommendation [Doc. 61] of the Magistrate Judge recommending that the Defendant's Motion for Summary Judgment [Doc. 40] be granted. The forty-one pages of Objections by the EEOC to the Report and Recommendation are without merit. The Defendant's hiring manager understandably thought that the alleged victim would not be happy with a fifty mile commute between Acworth and Rome for a salary that was half of what he had previously made. This was a legitimate nondiscriminatory reason not to offer him the Rome position. The EEOC has abandoned its administrative claim that the alleged victim was discriminated against when he applied for the forty or so other positions during the brief period when he was laid off. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendant's Motion for Summary Judgment [Doc. 40] is GRANTED.

SO ORDERED.

FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

E. CLAYTON SCOFIELD, III, United States Magistrate Judge.

I. Introduction

Plaintiff, the Equal Employment Opportunity Commission, filed the instant employment discrimination action against Defendant, Comcast of Georgia, Inc., on behalf of a Defendant employee, Ray Roper ("Roper"). [Doc. 1]. Plaintiffs complaint asserts sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., and age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"), for Defendant's failure to hire Roper as a cable dispatcher during a period from November 2004 to October 2005. This matter is presently before the Court on Defendant's motion for summary judgment on all claims of Plaintiffs complaint. [Doc. 40]. For the reasons expressed herein, the undersigned RECOMMENDS that Defendant's motion for summary judgment be GRANTED.

II. Factual Background

When evaluating the merits of a motion for summary judgment, the Court must view the evidence and factual inferences in a light most favorable to the non-moving party. Frederick v. Sprint/United Mgmt Co., 246 F.3d 1305, 1309 (11th Cir.2001); Hairston v. Gainesville Sun Publ'g. Co., 9 F.3d 913, 920 (11th Cir.1993). Applying this legal standard, the Court derives the following facts from the parties' statements of facts and the record as a whole:

Ray Roper, a 57-year-old male, worked for Comcast and its predecessor companies for 19 years, from 1985 until 2004. (Def's SMF ¶ 1). In 1996, Roper became a cable dispatcher. (Exh. 17) [Doc. 46]. In 2001, Roper was promoted to the position of CLI Coordinator. (Pl's SMF ¶ 3). After approximately one year, he was promoted to Safety and Compliance Inspector. (Pl's SMF ¶ 3). In October 2004, he was notified that his position was being eliminated in November 2004 as part of a reduction in force. (Def's SMF ¶¶ 1, 6). Roper never made any claims of discrimination of any kind related to those 19 years of employment. (Def's SMF ¶ 2).

On October 24, 2005, almost a year after his Comcast position was eliminated, Roper was hired by Adelphia Communications as a dispatcher. (Def's SMF ¶¶ 8-9). In 2006, Roper's Adelphia facility was acquired by Comcast, and Plaintiff became a Comcast employee again. (Def's SMF ¶ 10). Plaintiff is presently a Comcast employee. Plaintiffs claims therefore pertain to Defendant's failure to rehire Roper during the one-year period between his November 2004 discharge and his October 2005 hiring by Adelphia. (Def's SMF ¶ 5).

Between Roper's official separation from Comcast and his hiring by Adelphia, Roper applied for approximately 40 job openings at Comcast. (Def's SMF ¶ 11). Of these 40 applications, the four at issue in Plaintiffs complaint are for dispatcher positions in Rome, Georgia; Tucker, Georgia; Panama City, Florida; and Jonesboro, Georgia. (Def's SMF ¶ 13). In his response to Defendant's motion for summary judgment, Plaintiff only addressed the Rome, Georgia, and Jonesboro, Georgia, positions. See (Pl. Response Br. 11-30)[Doc. 46]. Furthermore, there is no evidence of discrimination in the hiring process at Tucker, Georgia, or Panama City, Florida, on the record herein. Accordingly, the undersigned RECOMMENDS that summary judgment be GRANTED as to Plaintiffs claims regarding the Tucker, Georgia, and Panama City, Florida, cable dispatcher positions.

A. Application Process

When an opening occurs at Comcast, the position is posted, and both existing Comcast employees and external candidates may apply. (Def's SMF ¶ 15). Internal candidates who apply for a transfer to the position through Comcast's employee portal, Team Comcast, are electronically routed to one electronic folder, while external candidates, who apply through comcast.com, are routed to a separate electronic folder. (Def's SMF ¶ 16). Applications from internal transfer candidates who meet the minimum qualifications for the position are generally forwarded to the hiring manager first by the recruiter. (Def's SMF ¶ 17). Such transfer candidates are typically given an opportunity to interview for the position. (Def's SMF ¶ 17). If no suitable candidate is found from among the internal candidates, or if more resumes are desired, then resumes of external candidates can be requested from the recruiter. (Def's SMF ¶ 18). During the time period relevant to this case, Stan Thomas, a Comcast human resources director, was required to approve all hiring decisions. (Fincher Dep. 42-43).

B. Rome Position

Before Roper's position with Comcast was eliminated in November of 2004, he applied for the Rome dispatch position as an internal candidate and submitted a transfer request. (Def's SMF ¶¶ 19, 20). The resume Roper submitted stated that he had worked for Comcast as a customer service representative, a cable installer, a cable technician, a cable dispatcher, a CLI coordinator, and a safety and compliance officer. (Exh. 22) [Doc. 6]. The resume did not, however, indicate when or for how long Roper had held these jobs, beyond showing that they had all fallen between 1985 and 2004. Id. Roper also provided letters of recommendation from other Comcast employees. (Smith Dep. at 55). Because Roper was an internal transfer candidate, his application was routed automatically to the requisition folder and then sent to the hiring manager. (Def's SMF ¶ 21).

1. The Interview

The hiring manager for the Rome position was Wanda Smith, a dispatch manager, who interviewed Roper for the dispatch position. (Smith Dep. at 69-70). Glenda Fincher, Comcast's human resources manager, was also present during about ten minutes of Roper's 30 or 40 minute interview. (Fincher. Dep. at 25); (Smith Dep. at 70). Fincher came into the interview in order to answer questions about benefits. (Fincher Dep. at 95-96).

Roper testified that, during the interview, Smith asked him about his dispatch experience. (Roper Dep. at 89). Roper told her he was familiar with CSG and Cable Data, two different software programs that dispatchers use to store customer files, input orders, arrange routing, and assign work to technicians. (Roper Dep. at 86); (Smith Dep. at 43, 48, 76-77). Roper testified that Smith asked him about his 50-mile commute to Rome, and he responded that he had no problem commuting. (Roper Dep. at 88). Roper also testified that Smith told him that the starting salary in Rome was lower than in the Atlanta market, and he told her he could work for less. (Roper Dep. at 87). Smith testified that she did not know how old Roper was, but she guessed from the interview that he was "probably around my age ... in his early fifties." (Smith Dep. at 74).

Roper also testified that, during his interview with Smith, Smith asked him, "Do you have any problem working with women? All I have is women." (Pl's SMF ¶ 8). Roper further testified that, when Smith showed him the Rome dispatch department, she said, "This is where my girls sit." (Pl's SMF ¶ 8).

2. The Other Candidate, Rachel Myers

Rachel Myers, a 26-year-old female, was also interviewed for the Rome dispatch position. (Myers Dep. at 6). Rachel Myers's resume reflected dispatch experience with Sears from 1997 to 2003. (Smith Dep. 102); (Exh. 11) [Doc. 40]. Her application stated, "Eight years dispatching experience, customer service, promoted to Route Specialist Jan. 2000." (Exh. 13 at 3) [Doc. 46]. Myers, however, testified that she only worked in Sears's dispatch department for four years, until 2001, and that she worked in customer service from 2002 until she left Sears in 2003.¹ (Myers Dep. at 18). Myers had not used Cable Data or CSG software as a dispatcher for Sears. (Myers Dep. ...