[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 24, 2012
No. 10-15616
JOHN LEY
________________________
CLERK
D. C. Docket No. 4:07-cv-00049-HLM
NORMAN CARPENTER,
Plaintiff-Appellant,
versus
MOHAWK INDUSTRIES, INC.,
JEFFREY BIGGS, et al.,
Defendants-Appellees.
________________________
No. 10-15820
________________________
D. C. Docket No. 4:07-cv-00049-HLM
NORMAN CARPENTER,
Plaintiff-Appellee,
versus
MOHAWK INDUSTRIES, INC.,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(May 24, 2012)
Before EDMONDSON, ANDERSON and FARRIS,* Circuit Judges.
PER CURIAM:
This case involves the termination of an employee’s employment. A deter-
from-testifying claim under 42 U.S.C. § 1985(2) is in controversy.
Plaintiff was fired from his position with Defendant for acts taken, at one of
Defendant’s facilities, in connection with the potential employment of illegal
aliens ineligible for employment. Plaintiff brought this civil action, alleging his
termination was part of a conspiracy to intimidate Plaintiff into not testifying in
another civil suit filed against Defendant; this other civil action involved claims
about Defendant’s employment of illegal aliens. With a detailed order, the district
court granted summary judgment to Defendant. We affirm the judgment.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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BACKGROUND
The issues in this case arise against the background of a different civil
action: a civil Racketeer Influenced and Corrupt Organizations Act (“RICO”) suit
(“Williams”) filed in 2004 against Defendant Mohawk Industries, Inc.
(“Mohawk”) by other current and former Mohawk employees. The Williams suit
alleged a conspiracy between Mohawk and several temporary employment
agencies (“temp agencies”) to keep wages low at Mohawk facilities through the
use, as temporary workers, of illegal aliens ineligible for employment. The
Williams case featured extensive litigation in both the Northern District of
Georgia and before this court. See, e.g., Williams v. Mohawk Indus., Inc., 568
F.3d 1350 (11th Cir. 2009); Williams v. Mohawk Indus., Inc., 465 F.3d 1277 (11th
Cir. 2006). Williams was settled in 2010.
In 2006, Plaintiff Norman Carpenter (“Plaintiff”) was a Shift Supervisor at
Mohawk’s Union Grove facility. The Union Grove facility was a manufacturing
facility that employed large numbers of hourly “blue-collar” workers. During
2006, Plaintiff sent several emails to a Mohawk Senior Employment Coordinator
seeking to have certain temporary employees hired as permanent employees at
Mohawk or to have certain persons brought on through a temp agency. In several
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of these emails, the prospective employee’s having “good” or “not good” papers
was mentioned by Plaintiff. In the email to the Mohawk Senior Employment
Coordinator that eventually led to Plaintiff’s termination, Plaintiff wrote these
words:
“90% of the people that come through the temp do not have good
papers thats [sic] why they come to us that way I can tell you that
most of the people working today here through a temp do not have
one of two things either a GA I.d. [sic] or good papers through the
I.N.S. Thanks Norman.” (“90% email”).
This email triggered a Mohawk internal investigation. Mohawk’s General
Counsel contacted outside counsel Juan Morillo -- then lead counsel in the
pending Williams case -- to provide legal advice about the 90% email. Morillo
interviewed Plaintiff and several other people over two days. Morillo’s interview
of Plaintiff was brief and was conducted on the first day of interviewing. During
the interview, Plaintiff was asked if he had heard of the Williams case; Plaintiff
said he had not. No other mention was made of the Williams case in the interview.
The focus of the interview was on the 90% email and repeated questions were
asked on how Plaintiff came to reach his 90% estimate for Plaintiff’s email.
Soon after the interviews were completed on the second day, Plaintiff was
terminated as a Mohawk employee at a meeting attended by a senior member of
the Mohawk Human Resources (“H.R.”) team, Plaintiff’s supervisor, and a
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Mohawk executive. The H.R. team member was the sole Mohawk speaker at the
termination meeting and explained to Plaintiff that he was being terminated for
knowingly employing illegal immigrants and for illegally screening employees.
Before long, Plaintiff filed this civil action against Mohawk. Then, the
Williams-suit plaintiffs quickly became aware of Plaintiff’s case, made some
efforts to contact Plaintiff, and used the 90% email in their efforts at class
certification in Williams. The Williams matter settled. And, in fact, no one ever
asked Plaintiff to testify in Williams; and he never received a subpoena in
connection with Williams. Shortly after the Williams settlement, the district court
granted summary judgment to Mohawk on all of Plaintiff’s claims in this case.
STANDARD OF REVIEW
We review a grant of summary judgment de novo. Fanin v. U.S. Dept. of
Veterans Affairs, 572 F.3d 868, 871 (11th Cir. 2009). Summary judgment is
proper when no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law: as when a party fails to show sufficiently
the existence of an essential element of their claim, when they bear the burden of
proof on that element. See Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986).
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DISCUSSION
Section 1985(2) prohibits -- in pertinent part -- any conspiracy “to deter, by
force, intimidation, or threat, any party or witness in any court of the United States
from attending such court, or from testifying to any matter pending therein, freely,
fully, and truthfully[.]” 42 U.S.C. § 1985(2).
The thesis of Plaintiff’s claim is that Mohawk’s lawyers and H.R. personnel
conspired to deter Plaintiff from testifying in the Williams case. Plaintiff contends
that the atmosphere in his meeting with Mohawk’s lawyer Morillo and Morillo’s
repeated questioning of the 90% estimate in the meeting were an attempt to get
Plaintiff to recant the statements made in his email. Plaintiff also contends that his
termination carried the implied threat that Mohawk would publicly disclose
Plaintiff’s “illegal” employment acts if Plaintiff attempted to testify in the
Williams case.
To prevail on a deterrence-based claim under section 1985(2), a plaintiff
must show three elements: (1) a conspiracy between two or more persons; (2) that
the conspiracy was to deter a party or witness by force, intimidation, or threat from
attending federal court proceedings or testifying freely in a pending federal matter;
(3) that the conspiracy to deter resulted in injury to the plaintiff. See 42 U.S.C. §
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1985(2); Wagner v. Daewoo Heavy Indus. America Corp., 289 F.3d 1268, 1271
(11th Cir. 2002) (vacated on other grounds). The evidence in the record supports
no deterrence claim. For one thing, the evidence is insufficient to establish the
second required element: that any force, intimidation, or threat was made by
Mohawk in an effort to deter Plaintiff’s involvement in the Williams case.
This case is based on statements made in two meetings -- Plaintiff’s
interview with Morillo and the meeting at Plaintiff’s termination -- and the fact of
his employment having been terminated; no deterring conduct before or after these
meetings is alleged. This record is too thin. The evidence in the record about
these meetings and the termination is insufficient to show that Mohawk used
force, intimidation, or threat to deter Plaintiff’s involvement in the Williams case.
We have written about this firing-to-deter idea before:
“One cannot reasonably infer that, simply by making false
allegations against Plaintiff and by firing Plaintiff from his job --
before he was to testify -- Defendants had entered into a conspiracy to
deter (that is, to discourage or to frighten) him from testifying. It is
not to be expected that a group of conspirators would act to deter
someone from testifying by just cutting off, in advance of his planned
testimony, the most significant source of influence that the
conspirators have over that person: his job. Firing someone from
their job, amid false allegations of wrongdoing, seems as though it, by
itself, would likely create animosity towards a former employer,
thereby encouraging -- not deterring -- that fired employee’s
testimony against the company.”
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Wagner, 289 F.3d at 1271-72 (emphasis in original).
Plaintiff first became aware of the Williams case in his interview with the
lawyer Morillo the day before the termination meeting; and -- excluding the one
mention of the Williams case by Morillo that first informed Plaintiff that the
Williams case existed -- the Williams matter was never again mentioned during
the Morillo interview or the termination meeting. While threats and intimidation
can be implied or conveyed without being explicitly stated, the record evidence
must include some indication -- beyond some straining “maybe, just maybe”
speculation -- that Defendant’s activities were aimed at Plaintiff’s not testifying in
the Williams case. This record will not allow inferences of intimidation where
Plaintiff’s present or potential involvement in the Williams case were never
referred to by Defendant’s agents. Absent some more evidence, for example, that
Mohawk had made earlier efforts to prevent Plaintiff from testifying in the
Williams case and that the termination and related statements were an escalation
of these earlier attempts at dissuasion, the evidence is insufficient to allow a
finding that an effort at deterrence through “force, intimidation, or threat” was
actually made here.
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CONCLUSION
The district court wrote several detailed orders in this case. We see no
reversible error in them.
Plaintiff’s deterrence-based section 1985(2) claim fails because the
evidence in the record is insufficient to establish an essential element of the claim.
We therefore conclude no genuine issue of material fact exists.
The pertinent decisions and judgment of the district court are affirmed
entirely.
AFFIRMED.
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