Harvey Anderson appeals the district court's grant of summary judgment in favor of Venture Express (Venture) and the accompanying dismissal of Anderson's discrimination and retaliation claims. We affirm.
It is well established that "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
We note that Anderson has repeatedly failed to point the court to any evidence that would support his claims of discrimination.
Venture employed Anderson, an African-American male who was fifty-nine years old when terminated, as a truck driver. During the course of his employment, Venture counseled Anderson multiple times and suspended him for log violations, insubordination, and related issues. He also received a citation from the Alabama Department of Transportation for a violation of driver hours-of-service regulations.
Anderson brought suit in federal court against Venture and various individuals, alleging discrimination under Title VII.
We first address Anderson's race discrimination claim. Title VII protects individuals from discrimination by an employer based on the "individual's race, color, religion, sex, or national origin."
If a plaintiff makes a prima facie case, then the defendant must provide a legitimate, nondiscriminatory reason for the complained-of action.
Our review of the record reveals no competent summary judgment evidence suggesting that Anderson was treated less favorably than other employees who were not members of a protected class, nor does it reveal that he was replaced by someone outside his protected class. Venture provided an uncontested affidavit showing that Anderson was replaced by a forty-six-year-old African-American male. Anderson fails to offer any evidence that similarly situated non-African-Americans received more favorable treatment. His EEOC charge identifies two "younger Whites who have committed violations . . . [and] have not been disciplined or discharged." However, the record shows that Venture terminated one of these individuals for log violations prior to Anderson, undermining Anderson's claim that this individual received more favorable treatment, and that the other individual, described by Anderson only as "Mack (LNU)," has yet to be identified in the course of this litigation. Further, Venture provided a list of at least six other Caucasian individuals who were terminated for log violations between 2011 and 2013. Anderson has failed to identify any similarly situated members outside his protected class who were treated more favorably than he. Because Anderson has failed to make out a prima facie case of discrimination, summary judgment in favor of Venture was proper.
The district court did not err in dismissing Anderson's retaliation claims. Anderson failed to exhaust his administrative remedies by failing to include the retaliation claim in his EEOC charge, either by checking the box or describing retaliation. While a cause of action may be based on "any kind of discrimination like or related to the charge's allegations" it is "limited . . . by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges."
Finally, we address Anderson's age discrimination claim. Though Anderson's complaint does not reference age discrimination, his EEOC charge and some subsequent filings reference age as a potential basis for termination. Given Anderson's pro se status, we address his claim, and we affirm the district court's dismissal.
Under the Age Discrimination in Employment Act (ADEA), an employer may not "discharge any individual . . . because of such individual's age."
"[T]he burden of persuasion to establish that age was the `but-for' cause of the employer's adverse action" remains always on the plaintiff.
Anderson's briefing before this court focuses on the fact that he was not unqualified because he should not have received any log violations. But this court's inquiry concerns whether the termination was the result of discrimination — not the correctness of the employer's decision. Anderson wholly fails to present any legal arguments or record evidence that would support his ADEA claim. Assuming the claim is not waived for inadequate briefing,
We do not doubt the sincerity of Anderson's belief that the violations for which he was terminated were not violations of the law. However, our inquiry is limited to whether Anderson's employer illegally discriminated or retaliated against him, and he has not pointed to any specific facts showing there is any genuine issue for trial. Summary judgment in favor of Venture was appropriate.
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For the foregoing reasons, the district court's judgment is AFFIRMED.