ORDER
CARNES, District Judge.
The above entitled action is presently before the Court on plaintiff's Notice of Appeal [48] from the Magistrate's Order [45] granting defendants' Renewed Motion for Summary Judgment [40]. This Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that the Magistrate's Order should be
BACKGROUND
Plaintiff was hired by defendant United Testing Group, Inc. (hereinafter "UTG") shortly after UTG was acquired by defendant Top Source, Inc. (hereinafter "Top Source"). (Mag. Order [45] at 4.) During the course of
Plaintiff brought this action alleging that she was dismissed in retaliation for expressing concerns about race discrimination at UTG. (Pl. Stmt. of Disputed Material Facts [43] at 5.) Defendants filed a Renewed Motion for Summary Judgment asserting that plaintiff had failed to establish Mr. Starling as the decision maker who occasioned her dismissal and also that plaintiff could not demonstrate that the actual decision makers, three Top Source officials, had knowledge of her complaints of racial discrimination. (Brief for Appellee [57] at 6.) The Magistrate Court granted defendants' Motion for Summary Judgment. (Mag. Order [45].)
DISCUSSION
I. Summary Judgment Standard
A review of the Magistrate Court's grant of summary judgment is de novo. Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 795 (11th Cir.1992). Therefore, the Court must examine this appeal under the same summary judgment standard to be utilized in any case originating before this Court.
Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. at 2551-52.
The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323, 106 S.Ct. at 2552; Apcoa, Inc. v. Fidelity Nat'l Bank, 906 F.2d 610, 611 (11th Cir. 1990). However, the movant is not required to negate his opponent's claim. The movant may discharge his burden by merely "`showing' — that is, pointing out to the district court—that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. at 2553. After the movant has carried his burden, the non-moving party is then required to "go beyond the pleadings" and present competent evidence
A fact is material when it is identified as such by the controlling substantive law. Id. at 248, 106 S.Ct. at 2510. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 249-50, 106 S.Ct. at 2510-11. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita
II. Analytical Approach to Identifying Employment Discrimination
Analysis of discrimination or retaliation in the work place must begin with the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). McDonnell Douglas provides procedural guidance for the allocation of intermediate burdens and the order of presentation of proof in employment discrimination and retaliation cases.
The complainant in a retaliation action must "carry the initial burden ... of establishing a prima facie case." Id. Once plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the employer's adverse treatment of plaintiff. Id. Finally, plaintiff must be afforded a fair opportunity to show that defendants' stated reason was, in fact, mere pretext. Id. at 804, 93 S.Ct. at 1825.
III. Plaintiff's Prima Facie Case
As stated, plaintiff bears the initial burden of production under the McDonnell Douglas approach. In the context of retaliation in the workplace, establishing a prima facie case requires plaintiff to demonstrate: first, that plaintiff engaged in protected opposition to Title VII discrimination; second, that plaintiff was subject to adverse action by her employer; and third, that there was a causal connection between the protected opposition and the adverse employment action. Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993); Whatley v. M.A.R.T.A., 632 F.2d 1325, 1328 (5th Cir.1980).
Here, as is often the case, the first two factors have been satisfactorily demonstrated. During her course of employment, plaintiff claims to have observed acts of racial and national origin discrimination in defendants' hiring and employment practices which she reported to Vice President and General Manager Robert Starling. (Mag. Order [45] at 6.) Plaintiff's complaints to Starling qualify as a protected expression.
Whether plaintiff can establish the causal component of her prima facie case, however, has been the focus of substantial debate in this case. Causation requires a showing that the employer's action was "discriminatorily" motivated. Morgan v. City of Jasper, 959 F.2d 1542, 1547 (11th Cir.1992). To establish discriminatory intent, plaintiff must demonstrate, at a minimum, that the employer was actually aware of the protected activity at the time of the adverse employment action. Goldsmith, 996 F.2d at 1163. See also Lewis v. Zilog, 908 F.Supp. 931, 948 (N.D.Ga.1995) (Hull, J.) (before employer can discriminate, employer must be aware of protected activity or condition); E.E.O.C. v. Carolina Freight, 723 F.Supp. 734, 748 (S.D.Fla. 1989) (actual knowledge of protected activity necessary to establish causation in discrimination case). An employee's allegations, opinions and conclusory statements are insufficient to show intent to discriminate, and when discriminatory intent is clearly lacking, due to the employer's lack of knowledge of the protected activity, a grant of summary judgment is appropriate. Maddow v. Procter & Gamble, 107 F.3d 846, 851 (11th Cir. 1997); Perryman v. West, 949 F.Supp. 815, 820 (M.D.Ala.1996).
Plaintiff, instead, relies on two distinct arguments in her attempt to avoid summary judgment. First, plaintiff seeks to draw a distinction between the "time of the decision to eliminate and transfer her job duties," and the "time of her discharge." (Brief for Appellant [56] at 12.) Plaintiff suggests that, while Top Source officials decided to terminate her employment, Robert Starling decided when the decision would be implemented. (Id.) Plaintiff predicates defendants' liability on Starling's decision. (Id.) The Court is unpersuaded by this semantical argument, finding it only logical that the time of the "adverse employment action" is the time of the decision to take such action, not the moment at which the decision is mechanically executed. Under factually analogous situations, courts have recognized that in order to meet the requirement that the employer have actual knowledge of the protected activity, an employee must show that the "individual responsible for making the adverse employment decision" knew of the protected activity or condition. Lewis, 908 F.Supp. at 949 (employer did not violate ADA where employee failed to show that person who made decision knew of employee's medical condition)(emphasis added); Wilson v. Willowbrook, Inc., 433 F.Supp. 321, 323 (N.D.Tx.1977), aff'd, 569 F.2d 1154 (5th Cir.1978), cert. denied, 439 U.S. 845, 99 S.Ct. 141, 58 L.Ed.2d 145 (no retaliatory discharge where employee was fired two hours after distributing petition at work but presented no proof that manager who made decision to terminate had read or even knew of employee's protected activity).
Plaintiff also argues that the "suspicious timing" of her dismissal, a month after her complaints to Starling, is sufficient evidence of defendants' discriminatory intent to survive summary judgment. Suspicious timing of an adverse employment action may constitute circumstantial evidence of discriminatory intent, Hunt-Golliday v. Metro. Water Reclamation District of Greater Chicago, 104 F.3d 1004, 1011 (7th Cir.1997), but the mere fact that an employee's protected speech preceded an adverse employment decision does not establish causation so as to render an employer liable for discrimination. Cromley v. Board of Education of Lockport Township High School Dist. 205, 17 F.3d 1059, 1068 (7th Cir.1994), cert. denied, 513 U.S. 816, 115 S.Ct. 74, 130 L.Ed.2d 28. Moreover, "suspicious" timing cannot logically lead to an inference of discrimination where it is undisputed that the decision makers had no knowledge of plaintiff's protected activity, and so could not possibly have been motivated by the protected activity in terminating plaintiff's employment.
In light of the decision makers' lack of knowledge of plaintiff's complaints, the timing of plaintiff's termination is not "sufficient evidence to support the inference that [her] employer based its employment decision" on these complaints. Maddow, 107 F.3d at 851. The Court finds little merit to plaintiff's argument that Starling was the discriminating decision maker, as plaintiff has failed to rebut defendants' evidence that Starling merely played a ministerial role in the termination decision made by three Top Source officials. Because the undisputed evidence demonstrates plaintiff's failure to establish a prima facie case of retaliation against defendants,
IV. Reduction of Force Analysis
Although the Court's analysis could end here, having found that plaintiff has failed to establish a prima facie case of retaliation against defendants, the Court briefly notes that plaintiff could not survive summary judgment even if she could demonstrate that Starling was the decision maker. The objective evidence in the record is consistent with the conclusion that defendants' action against plaintiff was taken in furtherance of a legitimate reduction in force. Defendants have indicated that plaintiff's termination was a necessary incident of the reduction in force initiated by Mr. Samuels, Ms. King, and Ms. Ward. (Mag. Order [45] at 4.) The essence of a reduction in force is that "competent employees who, in more prosperous times would continue and flourish at a company, may nevertheless have to be fired." Thurman v. Robertshaw Control Co., 869 F.Supp. 934, 939 (N.D.Ga. 1994) (O'Kelley, C.J.). The fact that an employee was dismissed from a job for which she was qualified is an unfortunate result of a reduction in force but it is not, without more, indicia of discrimination. Id. at 940; Stacey v. Allied Stores Corp., 768 F.2d 402, 407 (C.A.D.C.1985) (where employer's decision to close down corporate headquarters of an acquired company was for neutral business reasons, employee could not recover from employer on discrimination grounds).
When an employer proffers that its termination of an employee resulted from a legitimate reduction in force, a plaintiff seeking to recover on a claim of retaliatory discharge must instead establish that her former position remained open to, or was filled by, a person who was not similarly situated or that the employer intended to discriminate in failing to consider plaintiff for another position. Wilson v. AAA Plumbing Pottery Corp., 34 F.3d 1024, 1027-28 (11th Cir.1994); Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566-67 (11th Cir.1992). If the employee's position is clearly delineated and responsibilities are well defined, the court in a retaliatory dismissal case can focus on the person who replaced the discharged employee or whether the job title was actually filled to determine whether plaintiff has satisfied this burden. Hawkins v. Ceco Corp., 883 F.2d 977, 982 (11th Cir.1989), rehearing denied, 890 F.2d 1167, cert. denied, 495 U.S. 935, 110 S.Ct. 2180, 109 L.Ed.2d 508.
Defendants admit that another UTG employee, Ms. Esposito, temporarily assumed a small part of plaintiff's duties. (Supp. Brief for Appellees [60] at 2.) However, within three months of plaintiff's dismissal, Ms. Esposito, as well as plaintiff's direct supervisor, Lucretia Stancil, were also dismissed and all related job responsibilities were ultimately transitioned to Top Force. (Id.) No UTG employee is currently performing those responsibilities which were previously charged to plaintiff. (Mag. Order [45] at 4.) Furthermore, related tasks were relocated to defendants' out-of-state facility so there has been no suggestion of any available alternate position in which defendants failed to place plaintiff. (Pl. Statement of Disputed Material Facts [1] at 5.) Clearly a reduction in force occurred and led to the elimination of plaintiff's position.
A non-discriminatory business decision to effect a reduction in force in the manner which management judges most appropriate cannot support a discrimination action. Stacey, 768 F.2d at 408. Whether it was sound business judgment for the employer to make the employee part of a reduction in force is not a matter for the court to adjudicate, Thurman, 869 F.Supp. at 940. Therefore, the objective evidence in the record conclusively establishes that plaintiff was terminated in furtherance of a legitimate reduction in force.
CONCLUSION
For the foregoing reasons, the Magistrate's Order is
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