Richard Harvey v. Walmart, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11213
Non-Argument Calendar
____________________
RICHARD K. HARVEY,
Plaintiff-Appellant,
versus
WALMART, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-03265-VMC
____________________
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2 Opinion of the Court 23-11213
Before R OSENBAUM , GRANT, and B LACK , Circuit Judges.
PER CURIAM:
Richard Harvey, proceeding pro se, appeals the district
court’s order granting summary judgment in favor of his former
employer, defendant Walmart, Inc. Harvey’s complaint alleged
hostile work environment and retaliation in violation of the Age
Discrimination in Employment Act (ADEA), and assault and
breach of contract under Georgia law. Harvey asserts the district
court abused its discretion in admitting certain evidence and allow-
ing Walmart to withdraw admissions, and contends his claims are
meritorious and would succeed at trial. We review each of his is-
sues in turn, and after review, affirm the district court.
I. EVIDENTIARY ISSUES
A. Withdrawal of Admissions
“A party may serve on any other party a written request to
admit, for purposes of the pending action only, the truth of any
matters within the scope of Rule 26(b)(1) relating to: (A) facts, the
application of law to fact, or opinions about either; and (B) the gen-
uineness of any described documents.” Fed. R. Civ. P. 36(a)(1). “A
matter is admitted unless, within 30 days after being served, the
party to whom the request is directed serves on the requesting
party a written answer or objection addressed to the matter and
signed by the party or its attorney.” Fed. R. Civ. P. 36(a)(3). In
deciding whether to allow a party to withdraw admissions, district
courts should consider, first, “whether the withdrawal will
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23-11213 Opinion of the Court 3
subserve the presentation of the merits,” and second, whether “the
withdrawal will prejudice the party who obtained the admissions
in its presentation of the case.” Perez v. Miami-Dade Cnty., 297 F.3d
1255, 1264 (11th Cir. 2002). This test “emphasizes the importance
of having the action resolved on the merits, while at the same time
assuring each party that justified reliance on an admission in prep-
aration for trial will not operate to his prejudice.” Id. at 1265 (quo-
tation marks and emphasis omitted).
The district court did not abuse its discretion in allowing
Walmart to withdraw its admissions. See id. at 1263 (reviewing a
district court’s ruling on a motion to withdraw admissions for
abuse of discretion). Walmart sent answers to Harvey’s requests
for admission, and although they were untimely received due to a
clerical error, the error resulted in a limited delay and was cor-
rected before the close of discovery. Additionally, Harvey could
have obtained an extension of discovery with Walmart’s consent,
but he declined to do so. Withdrawing the admissions served the
presentation of the case on the merits because Harvey sought ad-
missions on entire claims and disputed factual matters, and
Walmart’s response denying most material facts was only untimely
due to a clerical error. See id. at 1264. Moreover, withdrawal did
not prejudice Harvey because the delay was limited, Walmart cor-
rected the error before the close of discovery, and Walmart offered
to extend the discovery period.
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4 Opinion of the Court 23-11213
B. Declarations
Rule 56(c) states that “[a]n affidavit or declaration used to
support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4). Evidence of personal knowledge
may consist of the witness’s own testimony. Fed. R. Evid. 602. A
party may object to any material presented in support of a motion
for summary judgment, including a declaration, if it “cannot be
presented in a form that would be admissible in evidence.” Fed. R.
Civ. P. 56(c)(2). The Federal Rules of Evidence permit a witness to
use a writing to refresh their memory for the purpose of testifying.
Fed. R. Evid. 612. An adverse party is entitled to have the writing
produced, and to introduce in evidence any portion that relates to
the witness’s testimony. Fed. R. Evid. 612(b). Under Federal Rule
of Evidence 803(6), documents made and kept in the ordinary
course of business are admitted as an exception to the hearsay rule.
Fed. R. Evid. 803(6). A person who testifies concerning documents
admitted pursuant to the business records exception to the hearsay
rule need not have prepared the documents “so long as other cir-
cumstantial evidence and testimony suggest their trustworthi-
ness.” Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1259 (11th
Cir. 1983).
Statements in a declaration may be stricken as a matter of
law only when it is obvious that they constitute a “sham.” Tippens
v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). This occurs
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23-11213 Opinion of the Court 5
when there is a “flat contradiction” between the declaration and
prior, sworn testimony. Id.
The district court did not abuse its discretion in admitting
the sworn declarations of Walmart employees Marchaz McAfee
and Cateshia Grant. See Goulah v. Ford Motor Co., 118 F.3d 1478,
1483 (11th Cir. 1997) (reviewing a district court’s rulings on the ad-
missibility of evidence for abuse of discretion). Harvey did not de-
pose either declarant, so no prior sworn testimony flatly contra-
dicted any of the assertions contained within their declarations. See
Tippens, 805 F.2d at 953. Harvey’s contention that the declarations
lacked personal knowledge is without merit because the state-
ments in the declarations—that they were based on personal
knowledge—are themselves sufficient evidence of personal
knowledge. Fed. R. Evid. 602. While Harvey asserts the declara-
tions were inadmissible because they were based on a review of
business records that Walmart failed to produce, his argument sim-
ilarly fails because the documents relied on were admissible under
the business records exception to the hearsay rule. Fed. R. Evid.
803(6). Accordingly, the material contained within the declarations
is presentable in an admissible form, and not objectionable at the
summary judgment stage. Fed. R. Civ. P. 56(c)(2). Additionally,
Walmart attached the business records with the declarations, and
the Federal Rules of Civil Procedure do not require the evidence
used in a motion for summary judgment have been produced in
discovery. See Fed. R. Civ. P. 56(c).
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6 Opinion of the Court 23-11213
II. SUMMARY JUDGMENT
A. Hostile Work Environment
Under the ADEA, it is unlawful for an employer “to . . . dis-
charge any individual or otherwise discriminate against any indi-
vidual with respect to his compensation, terms, conditions, or priv-
ileges of employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). To prevail on an ADEA age discrimination claim, an
employee must show that his age was the “but-for” cause of the
adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 177 (2009).
To establish a claim for hostile work environment, a plaintiff
must show that: (1) he was at least 40 years old at the relevant time;
(2) he was subject to unwelcome harassment based on his age;
(3) the harassment was sufficiently severe or pervasive to alter the
terms of his employment; and (4) the employer knew or should
have known of the harassing conduct but failed to take prompt,
remedial action. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1275 (11th Cir. 2002) (articulating elements of a hostile work envi-
ronment claim); 29 U.S.C. §§ 623(a)(1), 631(a) (relevant ADEA pro-
visions). We have clarified that, in order to show that alleged har-
assment was “based on” a protected characteristic, a plaintiff must
show it was “motivated by” a discriminatory animus regarding
their protected characteristic. Tonkyro v. Sec’y, VA, 995 F.3d 828,
836 (11th Cir. 2021). The standards for judging hostility are in-
tended to “filter out complaints attacking the ordinary tribulations
of the workplace, such as the sporadic use of abusive language,
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23-11213 Opinion of the Court 7
[age]-related jokes, and occasional teasing.” Id. at 837 (quotation
marks omitted). “Innocuous statements or conduct, or boorish
ones that do not relate to the [age] of the actor or of the offended
party (the plaintiff), are not counted.” Jones v. UPS Ground Freight,
683 F.3d 1283, 1297 (11th Cir. 2012) (quotation marks omitted).
The “severe or pervasive” element requires the plaintiff to
prove the work environment is both subjectively and objectively
hostile. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1249 (11th
Cir. 2014). “The employee must subjectively perceive the harass-
ment as sufficiently severe and pervasive to alter the terms or con-
ditions of employment, . . . [and] the objective severity of harass-
ment should be judged from the perspective of a reasonable person
in the plaintiff’s position, considering all the circumstances.” Id.
(quotation marks omitted). In determining the existence of an ob-
jectively hostile work environment, a district court may consider,
as part of the totality of the circumstances, experiences of other
employees of which the plaintiff was aware. Id. at 1250; see Edwards
v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir. 1995) (“A
plaintiff may have a viable hostile environment claim even if the
[harassing] remarks were not directed at her.”). However, harass-
ment directed toward other employees is less likely to be sufficient
to establish a hostile work environment. See Adams, 754 F.3d at
1254–55 (holding certain plaintiffs stated a trial issue as to hostile
work environment where, among other things, racial slurs were
directed at them and they experienced more harassment, and hold-
ing that other plaintiffs did not survive summary judgment where
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8 Opinion of the Court 23-11213
they experienced less harassment and heard racial slurs directed at
other employees).
The district court did not err in granting summary judgment
on this issue. See Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263
(11th Cir. 2010) (reviewing de novo a district court’s grant of sum-
mary judgment, using the same legal standards applied by the dis-
trict court). Harvey did not establish a prima facie case of a hostile
work environment. Harvey alleged the main basis of the hostile
work environment claim was the rest break policy. However, he
also testified he did not feel the rest break policy was put in place
to target him because of his age, or was otherwise related to his
age. Accordingly, Harvey conceded the rest break policy was not
“motivated by” a discriminatory animus regarding his age, and
thus cannot show he was subject to his alleged harassment “based
on” his age. See Tonkyro, 995 F.3d at 836. Although he alleged Su-
pervisors Raven and Justin verbally abused older co-workers, Har-
vey did not testify to any age-related remarks directed to him, and
noted that both managers were unprofessional towards most em-
ployees. While incidents of harassment against other employees
may be sufficient evidence of discriminatory animus in some cir-
cumstances, Supervisor Raven’s comments against other older em-
ployees were not sufficiently severe or pervasive to establish that
Harvey’s work environment was objectively hostile based on his
age, especially given his admission that he did not personally expe-
rience the comments. See Adams, 754 F.3d at 1254-55. Accordingly,
Harvey failed to establish he was subject to unwelcome harass-
ment based on his age, and the district court did not err in
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23-11213 Opinion of the Court 9
determining he produced very little, isolated, and conclusory evi-
dence insufficient to establish a hostile work environment. See Mil-
ler, 277 F.3d at 1275; 29 U.S.C. § 623(a)(1), 631(a).
B. Retaliation
The ADEA prohibits retaliation against employees who
complain of age discrimination. See 29 U.S.C. § 623(d). We use the
framework established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), to evaluate ADEA claims of retaliation based upon cir-
cumstantial evidence. Chapman v. AI Transp., 229 F.3d 1012, 1024
(11th Cir. 2000) (en banc). Under that framework, a plaintiff alleg-
ing retaliation establishes a prima facie case by showing, among
other things, that he engaged in a statutorily protected expression.
Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993).
(citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.
1993)). If a plaintiff establishes a prima facie case of discrimination,
and the defendant employer articulates a legitimate, nondiscrimi-
natory reason for the challenged employment action, the em-
ployee must then show that the employer’s reason is a pretext for
retaliation. Goldsmith, 996 F.2d at 1163.
To establish pretext, the plaintiff must show that: (1) the rea-
son offered was false; and (2) retaliation was the real reason for the
employer’s actions. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993). With respect to falsity, a plaintiff must rebut the employer’s
proffered reason and cannot succeed by merely disputing the wis-
dom of this reason. Chapman, 229 F.3d at 1030. We have “repeat-
edly and emphatically held” that an employer may make
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10 Opinion of the Court 23-11213
employment decisions for “a good reason, a bad reason, a reason
based on erroneous facts, or for no reason at all, as long as its action
is not for a discriminatory reason.” Flowers v. Troup Cnty., Ga., Sch.
Dist., 803 F.3d 1327, 1338 (11th Cir. 2015) (quotation marks omit-
ted). The inquiry into pretext centers on the employer’s beliefs,
“not on reality as it exists outside of the decision maker’s head.”
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir.
2010).
Harvey did not demonstrate pretext. Walmart offered dec-
larations establishing the decisionmakers’ belief in a nondiscrimi-
natory reason for Harvey’s termination. Harvey was terminated
because he had been involved in an altercation with his coworker,
Jamie. During this confrontation, Harvey made derogatory com-
ments, including comments about Jamie’s sexuality. Walmart
stated this constituted workplace violence, coded as gross miscon-
duct. See Alvarez, 610 F.3d at 1266. Harvey produced no evidence
successfully challenging the given reason as false or establishing re-
taliation for engaging in protected conduct as the real reason for
his termination. See St. Mary’s Honor Ctr., 509 U.S. at 515. Harvey
alleged his termination was retaliatory because Jamie and Supervi-
sor Raven intentionally caused the incident that led to his termina-
tion, but he offered no evidence to support this beyond mere spec-
ulation. In any event, the notion the circumstances that gave rise
to the underlying incident were planned and orchestrated was not
a denial of the incident, but rather an admission he was terminated
for Walmart’s offered non-discriminatory reason.
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23-11213 Opinion of the Court 11
C. Assault
Georgia law provides “[e]very person shall be liable for torts
committed by his . . . servant by his command or in the prosecution
and within the scope of his business, whether the same are com-
mitted by negligence or voluntarily.” O.C.G.A. § 51-2-2. Under
the doctrine of respondeat superior, Georgia courts will hold an em-
ployer responsible for the conduct of its employee, but only if the
employee acted “within the scope of the actual transaction of the
master’s business for accomplishing the ends of his employment.”
Wittig v. Spa Lady, Inc. of Marietta, 356 S.E.2d 665, 666 (Ga. Ct. App.
1987). By contrast, when an employee undertakes an act purely
personal in nature, no respondeat superior liability may be imposed.
Id. The fact that a tort occurred during a time of employment is
not dispositive on the question of scope of employment. Id.
The district court did not err in concluding Walmart was not
responsible for the alleged assault under Georgia law. Although
Harvey and Jamie were tasked to unload a truck, Jamie was sitting
down, actively refusing to perform this duty when he threatened
Harvey, and thus, his conduct was not within the scope of his em-
ployment. See id. The fact the incident occurred at work, between
coworkers, does not establish vicarious liability given that Jamie’s
conduct was not within the scope of his employment.
D. Breach of Contract
The elements of a breach of contract claim in Georgia in-
clude (1) a valid contract, (2) a material breach of its terms, and
(3) resulting damages. Norton v. Budget Rent A Car Sys., Inc., 705
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S.E.2d 305, 306 (Ga. Ct. App. 2010). The party asserting a breach
of contract has the burden of proving the existence of a valid con-
tract. Massih v. Mulling, 610 S.E.2d 657, 659 (Ga. Ct. App. 2005).
Georgia courts generally hold “the policies and information in per-
sonnel or employee manuals neither create a contract . . . nor sup-
port a claim for breach of contract.” O’Connor v. Fulton Cnty., 805
S.E.2d 56, 58 (Ga. 2017).
Company policies such as the one implemented by Walmart
concerning rest breaks do not create a contract under Georgia law.
Thus, Harvey failed to prove the existence of an actionable con-
tract. See id.
AFFIRMED.
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