Walker V Turner Final Report and Recommendation

Case 1:15-cv-04436-RWS Document 122 Filed 12/29/17 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DEWAYNE WALKER,
Plaintiff,
CIVIL ACTION NO.
v.
1:15-CV-04436-RWS-CMS
TURNER BROADCASTING
SYSTEM; TIME WARNER, INC.;
CABLE NEWS NETWORK; and
TURNER SERVICES INC.,
Defendants.
FINAL REPORT AND RECOMMENDATION
This matter is before the Court on the Motion for Summary Judgment filed
by Defendants Turner Broadcasting System, Inc. (“TBS”), Cable News Network,
Inc. (“CNN”), Time Warner, Inc. (“Time Warner”), and Turner Services, Inc.
(“Turner”) (collectively, “Defendants”). [Doc. 82]. For the reasons discussed
below, I RECOMMEND that Defendants’ Motion be GRANTED.
I. FACTS
This fact statement is for the purpose of summary judgment only, and the
facts contained herein have been drawn from the competent evidence presented in
connection with the summary judgment filings. In conformity with the instructions
from the United States Supreme Court, I have construed the facts in the light most
favorable to Plaintiff, the nonmoving party, and I have drawn all inferences in
Plaintiff’s favor. See Board of Education v. Pico, 457 U.S. 853, 863 (1982); Ave.
CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013).
A. Background
Plaintiff, a current and long-time employee of Defendant CNN, alleges that
he was denied nine different promotions in 2014 and 2015 because of his race and
in retaliation for having previously filed complaints about race discrimination in
the workplace. Eight of the positions at issue were created as part of a 2014
restructuring of one group within CNN’s Marketing Department (a group of which
Plaintiff was not a part), and the ninth position came open later, in 2015.
During the relevant time period, the On-Air Promotions side of CNN’s
Marketing Department was comprised of four distinct groups: the Design Group
(responsible for the artistic content of advertisements); the Production Group
(responsible for producing advertisements); the Creative Group (responsible for
developing the concepts and content of the marketing and promotion materials);
and the Operations Group (responsible for the administrative and logistic functions
of the department). [Declaration of Rick Lewchuk (“Lewchuk Decl.”) ¶ 5;
Deposition of Rick Lewchuk (“Lewchuk Dep.”) 71]. Rick Lewchuk, CNN’s
Senior Vice President of Creative Services, was responsible for managing all four
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of these On-Air Promotions groups. [Lewchuk Decl. ¶¶ 1, 6; Lewchuk Dep. 40,
43, 47, 67, 109-10, 148]. Whit Friese, CNN’s Vice President of On-Air
Promotions, reported to Mr. Lewchuk and was responsible for directly overseeing
the Creative Group—the group that was restructured. [Declaration of Jay Whitney
Friese (“Friese Decl.”) ¶ 5; Deposition of Jay Whitney Friese (“Friese Dep.”) 19,
96-97; Lewchuk Decl. ¶ 11; Lewchuk Dep. 136].
During the relevant time, Plaintiff was part of the Operations Group and
reported to Kevin Trigg, the Director of Operations; Plaintiff was not part of the
Creative Group. [Deposition of Dewayne Walker (“Pl. Dep.”) 134, 163-64, 184-
85, 187-88, 235, 280; Friese Dep. 106; Lewchuk Dep. 176]. Plaintiff is currently
still employed by CNN in the Operations Group. [Declaration of Shahbaz Ul-
Haque (“Ul-Haque Decl.”) ¶ 20; Lewchuk Decl. ¶ 15; Lewchuk Dep. 74, 174].
B. Plaintiff’s 2013 and 2014 Complaints About Race Discrimination
On December 23, 2013, Plaintiff filed a complaint of race and age
discrimination with TBS’s Human Resources Department (“HR”). [Ul-Haque
Decl. ¶ 11; Pl. Dep. 220-21, 274-77, Ex. 20]. In his complaint, Plaintiff alleged
that he had not been promoted or compensated fairly, but he did not specify any
particular promotions that he did not receive. [Ul-Haque Decl. ¶ 12; Pl. Dep. 274-
3
77, Ex. 20]. HR investigated the complaint and asked Plaintiff to provide
information relevant to his claims, which he did not do. [Ul-Haque Decl. ¶ 12].
A month later, on January 16, 2014, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”)
against Defendants CNN, TBS, and Time Warner, alleging race, sex, and age
discrimination in promotions and compensation (the “2014 EEOC Charge”). [Doc.
1-1 at 1; Ul-Haque Decl. ¶ 13]. On September 24, 2015, the EEOC issued a
Dismissal and Notice of Rights, indicating that it was unable to conclude that there
had been violations of the relevant statutes. [Doc. 1-1 at 2]. Plaintiff did not
pursue his claims further.
C. The Creative Group Restructuring
In the late spring and early summer of 2014, Mr. Friese, with the oversight
of HR, began designing a restructuring plan for his Creative Group (the “Creative
Group Restructuring”). [Ul-Haque Decl. ¶¶ 10, 14; Friese Decl. ¶¶ 3, 6-7; Friese
Dep. 7, 19, 52-53, Ex. 9; Lewchuk Decl. ¶ 11; Lewchuk Dep. 153]. It is
undisputed that the reason for the Creative Group Restructuring was to redesign
the Creative Group so it would function like an independent advertising agency
with brand teams. [Pl. Dep. 184-85, 379; Friese Decl. ¶ 6; Lewchuk Dep. 107-08].
The brand teams were to be assigned specific CNN programs and would be
4
responsible for all marketing and promotions for those programs. [Friese Dep. 20-
22; Lewchuk Dep. 193-95]. Each brand team was to be co-led by a Creative
Director and an Account Director, and work horizontally with the three other On-
Air Promotions groups—the Design Group, the Production Group, and the
Operations Group. [Friese Decl. ¶ 6; Friese Dep. 26; Lewchuk Dep. 107-08, 135,
193-95, 213]. Unlike the employees within the Creative Group, Plaintiff’s job
duties within the Operations Group did not include creating content for marketing
materials. [Lewchuk Decl. ¶ 11]. Neither Plaintiff’s employment nor his group
(the Operations Group) was impacted by the Creative Group Restructuring. [Pl.
Dep. 235; Friese Dep. 87-88].
In connection with the Creative Group Restructuring, several new positions
were created, and the plan was to fill those positions with employees from the
existing Creative Group whose former positions were being eliminated or absorbed
into the new group. [Lewchuk Decl. ¶ 11; Lewchuk Dep. 213; Friese Dep. 44-45,
56, 97-98, 100, 104-06, 109-10, 114-15]. In addition, Mr. Lewchuk directed Mr.
Friese to absorb two of Mr. Lewchuk’s direct reports—the Vice President of
Digital Marketing and the Director of Strategic Marketing—whose positions also
were being eliminated. [Lewchuk Decl. ¶ 11; Friese Dep. 29-30, 44-45, 89-90, 98,
100, 104-05, 114-15].
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On October 21, 2014, Mr. Lewchuk and Mr. Friese held a meeting with all
On-Air Promotions employees, including Plaintiff, to explain the functions of the
soon-to-be restructured Creative Group and how the new group would interact with
the other groups. [Friese Decl. ¶ 12; Friese Dep. 71-73, 88, 94; Lewchuk Dep.
107-08, 134-35; Pl. Dep. 183-88, 192]. According to Plaintiff, at the meeting, Mr.
Friese stated, “Anyone in this room can come and talk to me about these jobs and
we’ll see where it goes from there.” [Pl. Dep. 186-87, 190; Doc. 95 at 4]. The
next week, on October 28, 2014, Plaintiff sent an e-mail to Mr. Lewchuk stating, in
relevant part: “Just wanted to follow up on your meeting last week regarding the
new structure. You mentioned if interested in a position to let you know – I’d like
to know how do we apply for the Creative Director or Account Director positions.”
[Pl. Dep. 181-83, 188-90, Ex. 15; Friese Decl. ¶ 12]. Mr. Lewchuk promptly
responded: “The only open position is for an Account Director in NY. If you are
interested in that you should talk to Whit. All of the other positions are shifting of
current staff to altered roles. They aren’t new positions that we are posting for.”
[Pl. Dep. 190-92, Ex. 15; Friese Decl. ¶ 12].
The undisputed evidence from Mr. Friese and Mr. Lewchuk was that Mr.
Lewchuk directed Mr. Friese to consider for the new positions only the qualified
people within the Creative Group, along with the two individuals that Mr.
6
Lewchuk had directed be absorbed into the restructured Creative Group. [Friese
Decl. ¶¶ 9-11; Friese Dep. 44-45, 56, 97-98, 100, 104-06, 109-10, 114-15;
Lewchuk Decl. ¶ 11; Lewchuk Dep. 213]. The only new position that could not be
filled by existing employees was the Account Director position that was to be
based in New York, and, as noted above, Mr. Lewchuk told Plaintiff how to apply
for that position. [Friese Decl. ¶ 10; Ul-Haque Decl. ¶ 16; Lewchuk Dep. 139,
213-14]. CNN posted the New York Account Director position on TBS’s job
posting site, TurnerJobs.com (“Turner Jobs”). [Id.]. According to Mr. Friese and
Mr. Lewchuk, they did not post the remaining positions because those positions
were not open for applications outside of the existing Creative Group employees
and the two other employees whose positions were being eliminated. [Friese Decl.
¶¶ 9-11; Friese Dep. 44-45, 56, 97-98, 100, 104-06, 109-10, 114-15; Lewchuk
Decl. ¶ 11; Lewchuk Dep. 213]. Because Plaintiff worked in the Operations Group
rather than the Creative Group, Mr. Friese did not consider Plaintiff for any of the
positions created during the Creative Group Restructuring, other than for the New
York Account Director position. [Friese Dep. 106].
D. The Nine Positions That Are the Subject of This Lawsuit
Plaintiff claims that certain of CNN’s decisions associated with filling the
newly-created Creative Group positions were racially motivated. Of the numerous
7
positions created, Plaintiff has selected eight to challenge in this lawsuit, all of
which were filled with Caucasian people. Seven of the eight positions created
during the Creative Group Restructuring that Plaintiff challenges in this lawsuit
were not posted on Turner Jobs; only one was posted. The ninth position came
open after the conclusion of the Creative Group Restructuring. These positions are
discussed below.
1. The Seven New Positions That Were Not Open for Applications
Plaintiff complains about CNN’s decision to move existing employees into
seven of the new positions: one senior manager of production planning, four
creative directors, and two Atlanta-based account directors. [Friese Decl. ¶¶ 8-11;
Friese Dep. 23, 26-27, 29, 31-33, 44-49; Lewchuk Dep. 78-80, 85, 212; Ul-Haque
Decl. ¶ 15]. Defendants have provided uncontroverted evidence that each of the
seven people chosen for the positions was qualified for the position and that a key
part of the restructuring plan was that there be no layoffs. [Friese Decl. ¶¶ 9-11;
Friese Dep. 27-31, 45-49, 58-59, 98, 118; Lewchuk Decl. ¶ 11]. Each of the seven
people who were moved to one of these new positions was an existing employee
within CNN’s Marketing Department whose job was absorbed or eliminated
during the Creative Group Restructuring. [Friese Decl. ¶¶ 9-11; Friese Dep. 23,
26-27, 29-31, 44-45, 49, 58-59; Lewchuk Decl. ¶ 11; Lewchuk Dep. 78-80, 85,
8
212]. Nevertheless, Plaintiff contends that he was more qualified or more
deserving than some of the people who were placed in these positions (all of whom
are Caucasian), and he takes offense at the fact that he was not allowed to even
apply for these seven positions. [Doc. 95 at 13-16].
2. The One New Position That Was Open for Applications
According to Defendants, only one of the positions created during the
Creative Group Restructuring could not be filled with the existing personnel.
[Friese Decl. ¶ 10; Ul-Haque Decl. ¶ 16; Lewchuk Dep. 139-40, 213-14]. That
position, a New York-based account director position, was posted on Turner Jobs
in early October 2014, and Plaintiff applied for it on October 31, 2014. [Friese
Decl. ¶ 12; Ul-Haque Decl. ¶¶ 16-17; Friese Dep. 56-57, 120-22; Pl. Dep. 164-65,
199]. Stephen Krill, a Caucasian male, also applied for the position. [Ul-Haque
¶ 17; Friese Decl. ¶ 13; Friese Dep. 85-86]. After considering the applicants for
the position, including Plaintiff, Mr. Friese determined that Mr. Krill was the most
qualified and was best suited for the role. [Friese Decl. ¶ 13; Lewchuk Decl. ¶ 13].
In his declaration in support of Defendants’ motion for summary judgment, Mr.
Friese states that he selected Mr. Krill for several reasons, including his familiarity
with Mr. Krill’s work product, Mr. Krill’s proven experience working with outside
advertising agencies, and the relationships Mr. Krill had built with CNN’s New
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York-based partners over the past four years. [Friese Decl. ¶ 13]. As an Associate
Creative Director in News Sales Marketing for TBS, Mr. Krill had a strong
background as a creative producer working on advertising campaigns for both a
new original series on a TBS network and a large outside advertising client of
TBS. [Friese Decl. ¶ 13; Ul-Haque Decl. ¶ 17; Lewchuk Dep. 145, 147-48]. In
November 2014, CNN offered Mr. Krill the New York Account Director position,
which Mr. Krill accepted. [Ul-Haque Decl. ¶ 18; Friese Dep. 25, 27; Lewchuk
Dep. 211, 213-14].
3. The Position That Came Open After the Creative Group

Restructuring Was Completed
After the Creative Group Restructuring was completed, in February 2015,
one of the Account Directors within the restructured Creative Group resigned. [Ul-
Haque Decl. ¶ 19; Friese Decl. ¶ 14; Friese Dep. 102-03; Pl. Dep. 237-38, 248]. In
March 2015, CNN posted that position on Turner Jobs and received more than 130
applications for the position. [Ul-Haque Decl. ¶ 19; Friese Decl. ¶ 14; Friese Dep.
102-03]. Plaintiff did not apply for the open Account Director position. [Pl. Dep.
227-29, 238-41; Friese Dep. 119; Lewchuk Dep. 151]. With Mr. Lewchuk’s
approval, Mr. Friese selected Lisa Ghormley for the position in May 2015. [Ul-
Haque Decl. ¶ 19; Friese Decl. ¶ 14; Friese Dep. 102; Lewchuk Decl. ¶ 14;
Lewchuk Dep. 150-51; Pl. Dep. 237, 241]. According to Mr. Friese, Ms.
10
Ghormley was the most qualified and best candidate for the Account Director
position, because she had extensive experience with off-air marketing and working
with outside production companies and advertising agencies in both news and
entertainment. [Friese Decl. ¶ 14; Friese Dep. 116-18].
E. Plaintiff Takes Legal Action Regarding the Nine Positions
On November 20, 2015, Plaintiff filed a second Charge of Discrimination
with the EEOC, alleging unlawful retaliation in the workplace starting in January
2014 (the “2015 EEOC Charge”). [Doc. 1-1 at 3]. In the 2015 EEOC Charge,
Plaintiff alleged that while eight director-level positions became available as a
result of the Creative Group Restructuring, he was permitted to apply and
interview for only one of these positions, despite “being more than qualified for all
8 positions.” [Id.]. Plaintiff alleged that CNN and Turner failed to properly post
these positions on Turner Jobs. [Id.]. Plaintiff also claimed that CNN and Turner
should have told him when the Account Director position came open in March
2015. [Id.]. In his 2015 EEOC Charge, Plaintiff claimed that CNN and Turner
were retaliating against him for filing the 2014 EEOC Charge. [Id.]. On
December 7, 2015, the EEOC issued a Notice of Right to Sue upon Plaintiff’s
request, terminating its processing of the 2015 EEOC Charge and permitting
Plaintiff to immediately file a lawsuit. [Doc. 1-1 at 4].
11
On December 22, 2015, Plaintiff initiated this lawsuit against Defendants,
alleging claims under both Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq. (“Title VII”) and 42 U.S.C. § 1981 (“Section 1981”), as
follows: race discrimination under Title VII (Count One); retaliation under Title
VII (Count Two); race discrimination and retaliation under Section 1981 (Count
Three); punitive damages (Count Four); and attorney’s fees (Count Five). [Doc. 1
(“Compl.”) at 16-19].
Plaintiff contends that Defendants failed to promote him to nine positions:
the seven positions created during the Creative Group Restructuring that
Defendants did not open for applications; the New York Account Director position
created during the Creative Group Restructuring for which Plaintiff applied and
was not selected; and the Account Director position that came open in March 2015
for which Plaintiff did not apply. [Compl. ¶¶ 10-12, 25-28]. After the close of the
discovery period, Defendants filed the instant motion for summary judgment. I
held oral argument on October 31, 2017. [Doc. 118]. I requested supplemental
briefing on the issue of whether Plaintiff had exhausted his administrative remedies
with respect to his Title VII race discrimination claim asserted in Count One.
[Docs. 119, 120, 121]. The motion is now fully briefed and ripe for consideration.
[Docs. 82, 95, 101, 109, 114, 115, 116].
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II. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Ezell v. Wynn, 802 F.3d 1217, 1222 (11th Cir. 2015). The moving
party bears the initial burden of showing the court “the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact[ ]” and “an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 325 (1986); U.S. v. Four Parcels of Real Prop., 941 F.2d 1428,
1437-38 (11th Cir. 1991) (en banc). “[T]he substantive law will identify which
facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If
the moving party fails to discharge this initial burden, the motion must be denied.
See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).
If the burden is met, however, the non-moving party must then “go beyond
the pleadings and . . . designate ‘specific facts showing that there is a genuine issue
for trial.’” Celotex Corp., 477 U.S. at 324 (citation omitted). “A ‘mere scintilla’
of evidence is insufficient; the non-moving party must produce substantial
13
evidence to defeat a motion for summary judgment.” See Garczynski v. Bradshaw,
573 F.3d 1158, 1165 (11th Cir. 2009) (citation omitted). Mere conclusions and
factual allegations unsupported by evidence are insufficient to survive a motion for
summary judgment. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
“If reasonable minds could differ on the inferences arising from undisputed facts,
then a court should deny summary judgment.” Miranda v. B & B Cash Grocery
Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citation omitted).
B. Legal Framework for Discrimination and Retaliation Claims
1. Discrimination
Title VII prohibits employers from discriminating “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.” 42
U.S.C. § 2000e-2(a)(1). Section 1981 prohibits racial discrimination in the making
and enforcement of contracts. See 42 U.S.C. § 1981.
To establish a prima facie case of racially discriminatory failure-to-promote
under Title VII or Section 1981, a plaintiff must establish that: “(1) he belongs to a
racial minority; (2) he was qualified for and applied for a position that the
employer was trying to fill; (3) he was denied the position; and (4) a non-member
of the protected class was hired.” Williams v. Waste Mgmt., Inc., 411 F. App’x
14
226, 228 (11th Cir. 2011); Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174
(11th Cir. 2010) (applying same standard in Title VII failure-to-promote context).
If a plaintiff makes the requisite prima facie showing, the burden of
production shifts to the employer to articulate a legitimate, non-discriminatory
reason for its actions. See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002)
(citation omitted). The employer “need not persuade the court that it was actually
motivated by the proffered reasons.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254 (1981); see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087
(11th Cir. 2004). Rather, if the employer “articulat[es] one or more reasons, then
the presumption of discrimination is rebutted, and the burden of production shifts
to the plaintiff to offer evidence that the alleged reason of the employer is a pretext
for illegal discrimination.” Wilson, 376 F.3d at 1087 (citation omitted).
2. Retaliation
Title VII and Section 1981 also “prohibit employers from taking adverse
actions against employees in retaliation for their opposition to statutorily
prohibited racial discrimination.” Marable v. Marion Military Inst., 595 F. App’x
921, 924 (11th Cir. 2014); 42 U.S.C. § 2000e-3(a); CBOCS W., Inc. v. Humphries,
553 U.S. 442, 446 (2008) (holding that Section 1981 encompasses retaliation
15
claims). “In the employment context, the same substantive analysis applies to
§ 1981 and Title VII claims.” Marable, 595 F. App’x at 924 (citation omitted).
A plaintiff may establish a claim of retaliation by direct or circumstantial
evidence, and when he produces only circumstantial evidence, a court may use the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Wilson, 376 F.3d at 1087. To establish a prima facie case of
retaliation under Title VII or Section 1981, a plaintiff must prove that: (1) he
engaged in statutorily protected conduct; (2) he suffered an adverse employment
action; and (3) the adverse employment action was causally related to the protected
activity. See Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212-13 (11th Cir.
2008); Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
If the plaintiff makes out a prima facie retaliation case, and the employer
articulates a legitimate, non-retaliatory reason for the challenged employment
action, the plaintiff must show, by a preponderance of the evidence, that the
legitimate reasons offered by the employer for taking the adverse action were not
its true reasons. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143
(2000); see also Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.
2001) (describing the burden-shifting framework for retaliation cases). “An
employee cannot establish pretext by simply demonstrating facts that suggest
16
retaliatory animus, but must specifically respond to each of the employer’s
explanations and rebut them.” Marable, 595 F. App’x at 924 (citation omitted).
III. DISCUSSION
A. Plaintiff’s Race Discrimination Claims (Counts One1 and Three)
1. The Seven Positions That Were Not Open for Applications
Plaintiff asserts race discrimination claims with respect to seven of the
positions created as part of the Creative Group Restructuring that were not posted
on Turner Jobs, were not open for applications, and were filled by Caucasian
people. To satisfy the second prong of his prima facie case, Plaintiff must show
that Defendants were trying to fill the seven positions and that Plaintiff was
qualified for each of the positions. See Williams, 411 F. App’x at 228.
Defendants argue that Plaintiff cannot make out a prima facie case because the
Creative Group Restructuring was designed so that the positions would be filled
1
In reviewing the summary judgment filings in this case, I noted that
Plaintiff had marked only the “retaliation” box—not the “race” box—on his 2015
EEOC Charge, and I asked the parties to weigh in on whether Plaintiff’s Title VII
race discrimination claim in Count One of his Complaint had been properly
exhausted. [Doc. 1-1 at 3; Doc. 119]. Having reviewed the briefs [Docs. 120,
121], I find Plaintiff’s arguments to be more persuasive. See Kelly v. Dun &
Bradstreet, Inc., 557 F. App’x 896, 899 (11th Cir. 2014); Gregory v. Ga. Dep’t of
Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004). However, because I am
recommending that summary judgment be granted on all the claims, including
Count One, I need not reach the issue.
17
with existing employees within the Creative Group and the two other employees
whose positions were being eliminated; Defendants were not seeking applications
to fill those positions. [Doc. 82-5 at 22-24]. Plaintiff has not disputed these facts.
He merely argues, without evidentiary support, that Mr. Friese could have chosen
candidates from other groups within the Marketing Department, but that Mr. Friese
“lied about his ability to do so” because he sought to exclude African-Americans
from applying for the seven positions. [Doc. 95 at 4-5, 13-16].
Plaintiff points to the following evidence in support of his contention that
Mr. Friese lied about not being able to choose from the entire Marketing
Department: (1) CNN violated its own hiring policy; (2) Mr. Friese testified that
two of the seven positions were “open”; and (3) Mr. Lewchuk told Plaintiff and
other employees at a meeting that they could apply for the new positions but later
changed course and told Plaintiff that the positions were not open for applications.
The evidence, however, does little to support Plaintiff’s arguments.
a. Alleged Violation of TBS’s Hiring Policy
TBS has a hiring policy titled “The Hiring Process” (the “Hiring Policy”)
that governs CNN’s hiring process and generally requires managers to post on
Turner Jobs any open position that is below the level of vice president. [Friese
Dep. 50-51, Ex. 9; Ul-Haque ¶ 5]. The Hiring Policy instructs managers to work
18
with HR to ensure that they are following the correct protocol. [Ul-Haque Decl.
¶ 5; Friese Dep. Ex. 9]. The Hiring Policy, however, does not address
reorganizations or restructurings within departments or groups, and it certainly
does not mandate that positions be posted when they are merely part of a
reorganization of existing employees. [Ul-Haque Decl. ¶¶ 5-6; Friese Dep. Ex. 9;
Lewchuk Dep. 132]. Rather, the Hiring Policy simply states that managers should
work closely with HR to ensure compliance with hiring practices and policies.
[Ul-Haque Decl. ¶ 5; Friese Dep. Ex. 9]. The undisputed evidence reflects that Mr.
Friese and Mr. Lewchuk did, in fact, work closely with HR in implementing the
Creative Group Restructuring and that HR provided significant guidance,
oversight, and ultimate approval of all of the changes made. [Ul-Haque Decl. ¶ 14;
Friese Decl. ¶¶ 6-7; Friese Dep. 19, 52-53, Ex. 9]. Plaintiff has not disputed this.
Plaintiff simply argues that because the subject positions were below the level of
vice president, they were required to be posted on Turner Jobs pursuant to the
Hiring Policy. [Doc. 95 at 4-5, 13]. Simply put, the Hiring Policy does not say
what Plaintiff wishes it to say. The Hiring Policy does not address the particular
situation presented by the Creative Group Restructuring, other than to require
cooperation between managers and HR, which clearly occurred. Thus, this
evidence does not support Plaintiff’s argument that Defendants “intentionally
19
excluded all blacks from consideration” for the seven positions or rebut
Defendants’ evidence that CNN was reorganizing its existing structure and was not
looking to hire anyone new for those positions. [Doc. 95 at 15].
b. Evidence That Two of the Positions Were “Open”
Next, Plaintiff claims that during Mr. Friese’s deposition, Mr. Friese
described two of the subject seven positions as “open,” and therefore Mr. Friese
and Mr. Lewchuk “lied to [Plaintiff] and other African-Americans about the
subject positions being opened.” [Doc. 95 at 13-14]. Plaintiff argues that Mr.
Friese “admitted that the subject positions were both new, and open.” [Doc. 95 at
4]. In support of this argument, Plaintiff relies on the following portions of Mr.
Friese’s deposition transcript:
Q Is it fair to say that the position of creative director that

Margaret Anthony filled pursuant to the 2014 reorg [sic] was
open until you filled that position with her?
A I’m sorry. I still don’t quite understand the question.
Q Was the position that Margaret Anthony ultimately filled as

creative director –
A Right.
Q – open until you made the decision to fill that position with her?
A Yes.
...
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Q So was the position of account director that was ultimately

filled by Derek Van Nostran open until you filled the position
with him?
A Yes.
[Friese Dep. 40-41]. Viewed in context, however, the deposition transcript reflects
that Mr. Friese’s agreement that the positions were “open” does not mean that they
could have been filled by people outside of those identified in the reorganization
plan. For instance, Mr. Friese asked Mr. Williams—Plaintiff’s counsel—to repeat
his question regarding whether Ms. Anthony’s position was open two different
times, stating that he did not understand the question. [Friese Dep. 40]. With
respect to Mr. Williams’s question regarding whether Mr. Van Nostran’s position
was “open,” Mr. Friese specifically asks, “Now, what do you mean by ‘open’”?
[Friese Dep. 41]. Thus, it appears that there was at least a minimal level of
confusion with respect to how Plaintiff’s lawyer was using the word “open.”
Moreover, there is overwhelming, uncontroverted evidence that the Creative Group
Restructuring created only one vacancy for which Plaintiff or any other employee
could apply—the New York Account Director position, which is discussed in
greater detail below. [Friese Decl. ¶ 10]. With respect to the seven other positions,
Mr. Friese unequivocally testified that the Creative Group Restructuring simply
reassigned existing employees. [Friese Dep. 21-23]. Indeed, there is no evidence
21
of any employee other than those whose positions were eliminated or absorbed
being considered for, or offered, one of the seven new positions. Mr. Friese
repeatedly testified that Mr. Lewchuk had instructed him to fill these seven
positions with existing employees within the Creative Group and the two other
people whose positions were also being eliminated, and Plaintiff has come forward
with nothing to contradict this. [Lewchuk Decl. ¶ 11; Lewchuk Dep. 213; Friese
Decl. ¶¶ 9-11; Friese Dep. 29-30, 44-45, 56, 89-90, 97-98, 100, 104-06, 109-10,
114-15]. It is undisputed that Mr. Friese did not consider anyone else from another
group for any of the seven positions. [Friese Dep. 106].
Plaintiff has not disputed that the new positions were all filled by existing
employees within the Creative Group and the two other marketing employees
whose positions were eliminated. It is also undisputed that this rearrangement of
existing resources did not result in any employee terminations and was reviewed
and approved by HR in accordance with the Hiring Policy. [Friese Dep. 45-46, 56,
97; Lewchuk Dep. 213]. The fact that Mr. Friese used the term “open” to describe
two of the seven positions at one point in his deposition is simply insufficient to
create a material fact dispute as to whether CNN was seeking applicants to fill
these seven positions or otherwise treated the positions as being “open.”
22
When an employer does not formally announce a position, a plaintiff must
show that the employer had some reason to consider him for the post. See Greer v.
Birmingham Beverage Co., 291 F. App’x 943, 945 (11th Cir. 2008) (citation
omitted). Here, Plaintiff has not shown that Defendants had any reason to consider
him for any of the seven positions, because it is undisputed that: (1) Plaintiff’s
position was not eliminated; (2) Plaintiff was not in the Creative Group; and (3) no
one similarly situated to Plaintiff was placed in any of the seven positions. [Friese
Decl. ¶¶ 9-11; Friese Dep. 44-45, 56, 97-98, 100, 104-06, 109-10, 114-15;
Lewchuk Decl. ¶ 11; Lewchuk Dep. 213]. Moreover, because Plaintiff was an
employee within the Operations Group (not the Creative Group) and his position
was not affected by the Creative Group Restructuring, he did not satisfy CNN’s
“objective qualifications” and thus was not qualified for the positions. See Kidd v.
Mando Am. Corp., 731 F.3d 1196, 1204 (11th Cir. 2013) (“Our circuit precedent
considers an employee qualified for a promotion if the employee offers evidence
that “‘she satisfied an employer’s objective qualifications.’”).
c. Statements at the October 21, 2014 Meeting
Finally, Plaintiff argues that Mr. Lewchuk initially informed him and other
employees at the October 21, 2014 meeting that there would be open positions they
could apply for, and that Mr. Lewchuk later backtracked. [Doc. 95 at 4].
23
Plaintiff’s evidence, however, does not support this scenario, nor does it support
Plaintiff’s argument that Mr. Friese and Mr. Lewchuk “simply did not want any
black person to fill any of the subject positions[.]” [Id. at 15]. In fact, Plaintiff’s
own testimony belies this argument. Plaintiff testified that Mr. Lewchuk informed
everyone at the meeting: “Anyone in this room can come and talk to me about
these jobs and we’ll see where it goes from there.” [Pl. Dep. 186-87, 190]. There
is no evidence that Mr. Lewchuk ever stated that there would be multiple open
positions created by the Creative Group Restructuring. Moreover, when Plaintiff
followed up, Mr. Lewchuk made clear that: “The only open position is for an
Account Director in NY. If you are interested in that you should talk to Whit. All
of the other positions are shifting of current staff to altered roles. They aren’t new
positions that we are posting for.” [Pl. Dep. 190-92, Ex. 15; Friese Decl. ¶ 12].
Neither Plaintiff’s testimony nor Mr. Lewchuk’s e-mail supports Plaintiff’s
position.
Accordingly, because Plaintiff has not demonstrated that Defendants were
seeking applicants to fill positions for which Plaintiff was qualified, Defendants’
motion for summary judgment should be granted with respect to Plaintiff’s failure-
to-promote claims relating to the seven positions that were not open for
applications. As the Eleventh Circuit has explained, to state a prima facie case of
24
race discrimination, a plaintiff must show that “after his rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant’s qualifications.” Brown v. Metro. Atlanta Rapid Transit Auth., 261
F. App’x 167, 173 (11th Cir. 2008) (internal quotation marks and citations
omitted). In this case, Defendants did not continue to seek applicants from people
of Plaintiff’s qualifications (i.e., employees outside of the Creative Group) for any
of the seven positions. Rather, consistent with Mr. Lewchuk’s e-mail, Defendants
did not open any of the seven positions for applications, but they did allow Plaintiff
and other employees to apply for the New York Account Director position. [Friese
Decl. ¶¶ 9-11; Friese Dep. 23, 26-27, 29-31, 44-45, 49, 58-59; Ul-Haque Decl.
¶ 16; Lewchuk Decl. ¶ 11; Lewchuk Dep. 78-80, 85, 139-40, 212-14].
2. The New York Account Director Position
Plaintiff also contends that he was the victim of race discrimination based on
Defendants’ decision to hire Mr. Krill, rather than Plaintiff, for the New York
Account Director position that was created during the Creative Group
Restructuring. For the purposes of summary judgment only, Defendants concede
that Plaintiff could establish a prima facie case of racial discrimination with respect
to this position. [Doc. 82-5 at 21, n.8]. Thus, the burden shifts to Defendants to
25
articulate a legitimate, non-discriminatory reason for selecting Mr. Krill over
Plaintiff for the New York Account Director position.
Defendants state that their reason for selecting Mr. Krill for the position was
that Mr. Krill was the more qualified candidate. [Doc. 82-5 at 34]. Defendants
have provided undisputed evidence that Mr. Krill possessed substantial experience
and a strong background as a creative producer. [Friese Decl. ¶ 13; Ul-Haque
Decl. ¶ 17; Lewchuk Dep. 145, 147-48]. Defendants also point to Mr. Krill’s
significant experience relevant to the new position, including his experience with
outside advertising agencies and his existing relationships with CNN’s New York-
based partners. [Friese Decl. ¶ 13]. As such, Defendants have met their
“exceedingly light burden” of articulating a legitimate, non-discriminatory reason
for selecting Mr. Krill over Plaintiff for the New York Account Director position.
See Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1563 (11th Cir. 1995).
Under the McDonnell Douglas framework, the burden now shifts back to
Plaintiff to demonstrate that Defendants’ articulated reasons are pretextual for
race-based discrimination. To do so, Plaintiff may demonstrate that Defendants’
reasons were pretextual by revealing “such weaknesses, implausibilities,
inconsistencies, incoherencies or contradictions in [Defendants’] proffered
legitimate reasons for [their] action[s] that a reasonable factfinder could find them
26
unworthy of credence.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.
2004) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.
1997)). However, a reason is not pretext for discrimination “unless it is shown
both that the reason was false, and that discrimination was the real reason.”
Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006)
(citation omitted) (emphases in original).
Plaintiff attempts to establish pretext by arguing that he was “substantially
better than Stephen Krill” for the New York Account Director position. [Doc. 95
at 5, 13-14; Pl. Dep. 209-11]. In the context of a promotion, however, “a plaintiff
cannot prove pretext by simply arguing or even by showing that he was better
qualified than the [person] who received the position he coveted. A plaintiff must
show not merely that the defendant’s employment decisions were mistaken but that
they were in fact motivated by race.” Brooks, 446 F.3d at 1163 (citation omitted).
Furthermore, a plaintiff must show that the disparities between the successful
applicant’s and his own qualifications were “of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff for the job in question.” Higgins v. Tyson
Foods, Inc., 196 F. App’x 781, 783 (11th Cir. 2006).
27
Given the undisputed evidence of Mr. Krill’s qualifications for the position,
Plaintiff’s evidence regarding his own qualifications is insufficient to defeat
Defendants’ motion for summary judgment on this claim. Plaintiff has provided
no evidence that Defendants’ stated reliance on the allegedly superior
qualifications of Mr. Krill as the reason for his selection is in reality a mask for
racial discrimination. “Absent evidence that subjective hiring criteria were used as
a mask for discrimination, the fact that an employer based a hiring or promotion
decision on purely subjective criteria will rarely, if ever, prove pretext . . . .”
Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir. 2001). The fact that
Defendants’ decision to select Mr. Krill was based on Mr. Friese’s and Mr.
Lewchuk’s subjective views of the relative qualifications does not invalidate those
views or raise the specter of discrimination. “A subjective reason is a legally
sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear
and reasonably specific factual basis upon which it based its subjective opinion.”
Id. at 1186. Mr. Friese and Mr. Lewchuk provided a sufficiently specific factual
basis for their opinions that Mr. Krill was the more qualified candidate, and
Plaintiff has not come forward with evidence to show that the decision to select
Mr. Krill was unreasonable or illegitimate.
28
Plaintiff argues that pretext can be inferred in this instance because Mr.
Friese and Mr. Lewchuk had pre-selected Mr. Krill for the New York Account
Director position. [Doc. 95 at 3, 14, 26]. Specifically, Plaintiff argues that Mr.
Krill had already been selected to fill the position as early as July 2014, well before
the position was even posted on Turner Jobs and long before Plaintiff applied for
the position in October of that year. [Id. at 3-4]. In support of this argument,
Plaintiff points to two documents: (1) an undated, handwritten document that
states, “Steven Krill  Into NY  Promo in NY” [Friese Dep. 65-68, Ex. 10 at 3];
and (2) an e-mail dated October 30, 2014 between Mr. Friese and Mr. Ul-Haque
stating, in relevant part, “Someone else in our group approached me about the
[Account Director] job in NY[.] . . . I don’t want to shut any one down in case
Stephen for some reason falls through on this opportunity” [Friese Dep. 91-93, Ex.
12 at 2]. Contrary to Plaintiff’s arguments, neither document demonstrates that
Mr. Krill was pre-selected for the New York Account Director position or that
Plaintiff was not selected for the position because of his race.
First, there is no competent evidence explaining what the first document is,
who wrote it, when it was written, or what the context is. Plaintiff asked Mr.
Friese about it, but Mr. Friese testified that he did not write the document and did
not know what it was. [Friese Dep. 65-68]. In the absence of evidence to
29
authenticate the document or put it in context, Plaintiff cannot create a fact issue
using the document. Moreover, Mr. Friese unequivocally testified that he did not
make the decision to select Mr. Krill for the position in July 2014, but rather that
he was simply considering Mr. Krill for the position at that time. [Friese Dep. 66-
68, 92]. Mr. Friese also testified that the first time he decided that he wanted Mr.
Krill to fill the New York Account Director position was around October or
November of 2014. [Friese Dep. 64-65].
Next, Plaintiff argues that Mr. Friese’s statement in his e-mail to HR on
October 30, 2014, stating “in case Stephen fell through” shows that the decision to
hire Mr. Krill had been made before Plaintiff had even applied for the job. Even
viewed in the light most favorable to Plaintiff, this evidence shows, at best, that
Mr. Krill was the leading candidate on October 30, 2014—several weeks after the
position was posted. There is nothing unusual or suspect about an employer
knowing who the leading candidate is after several weeks of accepting
applications. If anything, the e-mail cuts against Plaintiff’s position because it
shows that Defendants were willing to continue to accept applications even after
the initial deadline had passed. [Friese Dep. 91-93]. It is also undisputed that Mr.
Krill had not been offered the position at the time Plaintiff applied for the position.
[Id. at 92-93]. Moreover, pre-selection alone, even in violation of internal
30
procedures, does not necessarily indicate racial discrimination. See Springer v.
Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)
(citation omitted); see also Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir.
1995). Plaintiff has the ultimate burden of proving that Defendants’ reasons for
selecting Mr. Krill were pretextual, but Plaintiff has failed to produce actual
evidence of pretext. All he has are his arguments, which are not sufficient to meet
his summary judgment burden. See Rodriguez v. Sec’y, U.S. Dep’t of Homeland
Sec., 518 F. App’x 653, 655 (11th Cir. 2013).
Finally, Plaintiff argues that he can show pretext because Mr. Lewchuk
referred to Plaintiff as “attitude” in an interoffice e-mail2 and that such a reference
“is no different than if they were to refer to him as ‘nigger.’”3 [Doc. 95 at 16-18].
2
Neither Plaintiff nor Defendants have provided the e-mail as an exhibit
with their respective briefings; the Court therefore lacks the context of the e-mail,
including information regarding when and to whom it was sent.
3
Plaintiff also argues that a “company culture” of race discrimination can
be inferred from (1) an e-mail referring to a former African-American employee as
“ding dong the wicked witch is dead” and (2) certain unauthenticated statistical
data collected by HR that Plaintiff claims demonstrates a “disparity between the
African American workforce as it relates to promotion, retention and wages[.]”
[Doc. 95 at 19-20]. Plaintiff, however, has not provided a copy of the e-mail, and
the statistical data was not authenticated. Accordingly, such “evidence” is not
competent to create a fact issue as to pretext. See Denney, 247 F.3d at 1189, n.10;
U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F. Supp. 2d
1322, 1327 (S.D. Ala. 2003) (citation omitted).
31
Again, this argument is without any evidentiary support, and it fails to qualify as
direct evidence because of its lack of relation to Defendants’ decision not to
promote Plaintiff. “When racial remarks are submitted as evidence of pretext, but
are not direct evidence of discrimination because they are either too remote in time
or too attenuated, they may provide circumstantial evidence that, when read in
conjunction with the entire record, show a decisionmakers’ discriminatory
attitude.” Dorrego v. Pub. Health Tr. of Miami Dade Cty., 293 F. Supp. 2d 1274,
1284 (S.D. Fla. 2003) (citing Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291-
92 (11th Cir. 1998)). “However, under the circumstantial evidence standard,
without additional persuasive evidence of pretext, a derogatory remark, standing
alone, is insufficient to create an issue of fact on pretext.” Dorrego, 293 F. Supp.
2d at 1284 (citing Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1230
(11th Cir. 2002); Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002)). Here,
even viewing the facts in the light most favorable to Plaintiff and assuming that
“attitude” is considered a derogatory remark, there is still no additional persuasive
evidence of pretext other than Mr. Lewchuk’s use of the term “attitude” to describe
Plaintiff on one occasion. As such, Plaintiff has not met his burden of providing
evidence of derogatory remarks and additional persuasive evidence in order to
create an issue of fact on pretext.
32
Plaintiff has failed to come forward with any competent evidence to show
that Defendants’ decision to select Mr. Krill rather than Plaintiff was based on
racial animus or an intent to deny African-Americans the opportunity to apply for
the promotion. See Springer, 509 F.3d at 1350 (affirming district court’s grant of
summary judgment where employee failed to show that employer’s proffered
reason for promoting coworker instead of employee was pretextual). Accordingly,
Plaintiff’s claims based on Defendants’ failure to promote him to the New York
Account Director position fail as a matter of law.
3. The 2015 Account Director Position
Finally, Plaintiff complains that he was discriminated against based on
Defendants’ decision to hire Ms. Ghormley, rather than Plaintiff, for the Account
Director position that came open in March 2015. [Doc. 95 at 25; Doc. 109 at 1-2,
5]. It is undisputed that the position was posted on Turner Jobs, was open for
applications, and garnered more than 130 applications. [Ul-Haque Decl. ¶ 19;
Friese Decl. ¶ 14; Friese Dep. 102-03]. It is also undisputed that Plaintiff did not
apply for the position. [Pl. Dep. 227-29, 238-41].
To make out a prima facie case for a failure-to-promote claim, a plaintiff
must show either that he applied for the position or that the employer’s
discriminatory hiring practices made application a futile gesture. See Williams,
33
411 F. App’x at 228 (“If an employer uses formal procedures to announce
positions and identify candidates, the plaintiff must show that he applied for the
position.”); see also EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1274 (11th
Cir. 2002).
Here, Plaintiff concedes that he did not apply for the Account Director
position that came open in 2015, and he has not even argued (much less created a
fact issue) that he thought it would be futile to apply. Accordingly, this claim fails
as a matter of law. See Williams, 411 F. App’x at 229 (employee’s failure to apply
for position precluded recovery on her failure-to-promote claim).
B. Plaintiff’s Retaliation Claims (Counts Two and Three)
In Counts Two and Three of his Complaint, Plaintiff contends that
Defendants subjected him to unlawful retaliation after he filed an internal
complaint of discrimination with HR in December 2013 and filed the 2014 EEOC
Charge the following month. [Doc. 95 at 21-26; Doc. 109 at 7]. In their motion
for summary judgment, Defendants argue that Plaintiff cannot establish a prima
facie case of retaliation because, among other things, he cannot show the requisite
causal link between the protected activities and the alleged failure to promote.
[Doc. 82 at 36-40; Doc. 101 at 21-25].
34
“The causal link element is construed broadly so that a plaintiff merely has
to prove that the protected activity and the negative employment action are not
completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001) (internal quotation marks and citations omitted). Causation may
be inferred by close temporal proximity between the protected activity and the
adverse employment action. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007). “But mere temporal proximity, without more, must be
‘very close.’” Id. (citations omitted). Accordingly, when, as here, a plaintiff relies
on temporal proximity alone to show causation, and “there is a substantial delay
between the protected expression and the adverse action, the complaint of
retaliation fails as a matter of law.” Id. The Eleventh Circuit has concluded that a
three-to-four month gap is insufficiently proximate to establish causation. Id.
Here, the adverse employment actions about which Plaintiff complains
(failure to promote him to the subject nine positions) occurred long after his
protected conduct. [Doc. 95 at 25-26; Doc. 109 at 7]. The implementation of the
Creative Group Restructuring occurred in October 2014, nine months after Plaintiff
filed the 2014 EEOC Charge and ten months after Plaintiff filed his internal
complaint with HR. Mr. Krill was selected for the New York Account Director
position in November 2014, ten months after the filing of the 2014 EEOC Charge
35
and eleven months after the filing of Plaintiff’s internal complaint. And more than
fifteen months elapsed between Plaintiff’s protected activities and Ms. Ghormley’s
selection for the Account Director position in May 2015. Plaintiff argues that
despite the lack of temporal proximity between his protected activities and the
failure to promote him to any of the subject nine positions, “there exist[s] a
continual unbroken chain of lies” [Doc. 95 at 26] and “a continuing action of
mistreatment” [Doc. 109 at 7] from the time of his protected activities forward.
These are merely unsubstantiated arguments, however, without evidentiary
support. “If the non-movant’s response consists of nothing more than conclusory
allegations, the court must enter summary judgment for the movant.” Moore v.
Ala. State Univ., 980 F. Supp. 426, 430 (M.D. Ala. 1997) (citation omitted).
Plaintiff also argues that the filing of his 2015 EEOC Charge constitutes a
protected activity. [Doc. 95 at 26]. However, because the hiring decisions with
respect to the subject nine positions had already been made before Plaintiff filed
the 2015 EEOC Charge, Plaintiff cannot establish a retaliation claim based on the
2015 EEOC Charge. See Gooden v. Internal Revenue Serv., 679 F. App’x 958,
968 (11th Cir. 2017) (finding that the employer’s alleged adverse employment
actions were not retaliatory because they occurred before plaintiff engaged in
protected activity); Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (“We
36
hold that, in a retaliation case, when an employer contemplates an adverse
employment action before an employee engages in protected activity, temporal
proximity between the protected activity and the subsequent adverse employment
action does not suffice to show causation.”).
Because Plaintiff has not shown a causal link through either the timeline or
through direct evidence, he has failed to establish a causal link sufficient to make
out a prima facie case of retaliation under Title VII and/or Section 1981. See
Williams, 411 F. App’x at 229-30 (holding that a two-month gap between an
employee’s complaints about racially derogatory comments and his employer’s
failure to promote him was not close enough to establish a prima facie case of
retaliation under Title VII and Section 1981). Accordingly, I recommend that
Defendants’ motion for summary judgment be granted as to Plaintiff’s retaliation
claims.
IV. CONCLUSION
For the foregoing reasons, I RECOMMEND that Defendants’ Motion for
Summary Judgment [Doc. 82] be GRANTED. Additionally, because Plaintiff’s
discrimination and retaliation claims (Counts One through Three) are due to be
dismissed as a matter of law, his dependent claims for punitive damages and
attorney’s fees (Counts Four and Five) should also be dismissed.
37
SO REPORTED AND RECOMMENDED, this 29th day of December,
2017.
Catherine M. Salinas
United States Magistrate Judge
38

Walker V Turner Final Report and Recommendation

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Walker V Turner Final Report and Recommendation

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Case 1:15-cv-04436-RWS Document 122 Filed 12/29/17 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT

FINAL REPORT AND RECOMMENDATION

by Defendants Turner Broadcasting System, Inc. (“TBS”), Cable News Network,

(“Turner”) (collectively, “Defendants”). [Doc. 82]. For the reasons discussed

below, I RECOMMEND that Defendants’ Motion be GRANTED.

Plaintiff, a current and long-time employee of Defendant CNN, alleges that

in retaliation for having previously filed complaints about race discrimination in

restructuring of one group within CNN’s Marketing Department (a group of which

(responsible for the artistic content of advertisements); the Production Group

(responsible for producing advertisements); the Creative Group (responsible for

of the department). [Declaration of Rick Lewchuk (“Lewchuk Decl.”) ¶ 5;

Deposition of Rick Lewchuk (“Lewchuk Dep.”) 71]. Rick Lewchuk, CNN’s

of these On-Air Promotions groups. [Lewchuk Decl. ¶¶ 1, 6; Lewchuk Dep. 40,

96-97; Lewchuk Decl. ¶ 11; Lewchuk Dep. 136].

still employed by CNN in the Operations Group. [Declaration of Shahbaz Ul-

B. Plaintiff’s 2013 and 2014 Complaints About Race Discrimination

On December 23, 2013, Plaintiff filed a complaint of race and age

discrimination with TBS’s Human Resources Department (“HR”). [Ul-Haque

A month later, on January 16, 2014, Plaintiff filed a Charge of

Discrimination with the Equal Employment Opportunity Commission (“EEOC”)

discrimination in promotions and compensation (the “2014 EEOC Charge”). [Doc.

pursue his claims further.

C. The Creative Group Restructuring

the Creative Group so it would function like an independent advertising agency

Dep. 235; Friese Dep. 87-88].

In connection with the Creative Group Restructuring, several new positions

Friese to absorb two of Mr. Lewchuk’s direct reports—the Vice President of

Digital Marketing and the Director of Strategic Marketing—whose positions also

100, 104-05, 114-15].

On-Air Promotions employees, including Plaintiff, to explain the functions of the

[Pl. Dep. 190-92, Ex. 15; Friese Decl. ¶ 12].

York Account Director position. [Friese Dep. 106].

D. The Nine Positions That Are the Subject of This Lawsuit

newly-created Creative Group positions were racially motivated. Of the numerous

Plaintiff complains about CNN’s decision to move existing employees into

within CNN’s Marketing Department whose job was absorbed or eliminated

212]. Nevertheless, Plaintiff contends that he was more qualified or more

apply for these seven positions. [Doc. 95 at 13-16].

2. The One New Position That Was Open for Applications

According to Defendants, only one of the positions created during the

In his declaration in support of Defendants’ motion for summary judgment, Mr.

background as a creative producer working on advertising campaigns for both a

Dep. 211, 213-14].

3. The Position That Came Open After the Creative Group

entertainment. [Friese Decl. ¶ 14; Friese Dep. 116-18].

E. Plaintiff Takes Legal Action Regarding the Nine Positions

On November 20, 2015, Plaintiff filed a second Charge of Discrimination

Plaintiff alleged that while eight director-level positions became available as a

result of the Creative Group Restructuring, he was permitted to apply and

Plaintiff to immediately file a lawsuit. [Doc. 1-1 at 4].

On December 22, 2015, Plaintiff initiated this lawsuit against Defendants,

Plaintiff contends that Defendants failed to promote him to nine positions:

[Docs. 82, 95, 101, 109, 114, 115, 116].

II. LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue of material

identifying those portions of ‘the pleadings, depositions, answers to interrogatories,

of evidence is insufficient; the non-moving party must produce substantial

evidence to defeat a motion for summary judgment.” See Garczynski v. Bradshaw,

factual allegations unsupported by evidence are insufficient to survive a motion for

B. Legal Framework for Discrimination and Retaliation Claims

Title VII prohibits employers from discriminating “against any individual