Margie G. McKibben v. Home Depot USA, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 14, 2019
• Docket: 18-13061
• Status: Unpublished

Opinion

Case: 18-13061 Date Filed: 05/14/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13061 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-01282-CC

MARGIE G. MCKIBBEN,

Plaintiff – Appellant,

versus

HOME DEPOT U.S.A., INC., a Georgia corporation,

Defendant – Appellee,

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(May 14, 2019)

Before WILSON, JORDAN, and HULL, Circuit Judges.

PER CURIAM: Case: 18-13061 Date Filed: 05/14/2019 Page: 2 of 5

Margie McKibben appeals the district court’s order adopting the magistrate

judge’s report and recommendation (“R&R”) and granting summary judgment in

favor of Home Depot on her race and age discrimination claims under state and

federal law. Because she did not object to the R&R, and has failed to show that the

district court committed plain error, we affirm.

I

Ms. McKibben, an African-American woman, began working at Home Depot

in 1997 as a part-time cashier. In October of 2015, she applied to be a “Pro Desk

Cashier”—a full-time position that involved the same duties as a cashier, but

involved working with contractors. Ms. McKibben applied because she thought the

position involved “more hours, more money, more weekends with benefits.”

Ms. McKibben was interviewed by the Operations Manager, Kermice

Jackson, who was also an African-American woman. Ms. Jackson ultimately

selected Pearl Coronel for the position. Ms. Coronel was a 23-year old woman who

had prior experience at the Pro Desk. Ms. Jackson later testified that she hired Ms.

Coronel because she performed better in the interview—in part because she was able

to answer questions using her prior experience on the Pro Desk—was available to

work the required hours, and had a “bubbly” personality.

Ms. McKibben believed that she was passed over for the position because of

her race and age. She sued, alleging that Home Depot discriminated against her on

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the basis of her race in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, and her age in violation of the Age Discrimination in Employment

Act of 1967, 29 U.S.C. § 621. She also claimed that Home Depot intentionally and

negligently inflicted emotional distress in violation of state tort law.

After discovery, the magistrate judge issued an R&R recommending that the

district court grant Home Depot’s motion for summary judgment on all of Ms.

McKibben’s claims. The magistrate judge first noted that Ms. McKibben failed to

submit a response to Home Depot’s “Statement of Undisputed Material Facts,” and

thus deemed undisputed and admitted each of Home Depot’s proposed statements

of fact. Next, the magistrate judge concluded that Ms. McKibben had failed to

establish a prima facie case of discrimination because she had not shown that Ms.

Coronel was equally or less qualified for the Pro Desk cashier position. And even if

she had, Ms. McKibben failed to show that Home Depot’s proffered reasons were

pretextual. Finally, the magistrate judge concluded that Ms. McKibben had failed

to present sufficient evidence to support her emotional distress claims.

The magistrate judge issued a separate order informing the parties of their

right to object to the report. The order warned both parties that “[i]f no objections

are filed, the Report and Recommendation may be adopted as the opinion and order

of the District Court, and on appeal, the Court of Appeals will deem waived any

challenge to factual and legal findings to which there was no objection, subject to

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interests-of-justice plain error review.” D.E. 28 at 1–2. Ms. McKibben did not

object and the district court adopted the R&R, granting summary judgment to Home

Depot on all of Ms. McKibben’s claims. Ms. McKibben then appealed.

II

Ms. McKibben asserts that we should review the district court’s order de novo,

as we generally do with orders granting summary judgment. See Schwarz v. City of

Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008). But, as the magistrate judge

informed the parties, any objections to the R&R must be filed with the magistrate

judge within the specified time frame would waive appellate review. See 11th Cir.

R. 3-1 (“A party failing to object to a magistrate judge’s findings or

recommendations contained in a report and recommendation . . . waives the right to

challenge on appeal the district court’s order based on unobjected-to factual and

legal conclusions.”). See also Fed. R. Crim. P. 59(b)(2) (“Failure to object [to the

magistrate judge’s R&R] . . . waives a party’s right to review.”). Ms. McKibben did

not timely object to the R&R, so we may only review her challenge for plain error,

“if necessary in the interest of justice.” 11th Cir. R. 3-1. An error is plain if it was

“so obvious and substantial” that the district court should not have permitted it.

United States v. Prieto, 232 F.3d 816, 823 (11th Cir. 2000).

Ms. McKibben has not argued that the interests of justice require appellate

review of the district court’s order for plain error. But even if she did, there is no

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such error here. The district court applied the proper legal standard to what was

essentially an uncontested R&R. Ms. McKibben objected to neither the standard

applied, nor the facts as summarized by Home Depot in its statement of undisputed

facts, nor the analysis of the magistrate judge. On appeal, Ms. McKibben argues

afresh that Home Depot discriminated against her based on her age and gender. But

she points to no error by the district court that amounts to plain error. Accordingly,

we affirm.

III

For the forgoing reasons, we affirm the district court’s order granting

summary judgment in favor of Home Depot on all of Ms. McKibben’s claims.

AFFIRMED.