Full opinion text
ORDER HULL, District Judge. Plaintiff Anthony Welch brings this employment discrimination action under Title VII and § 1981. This matter is before the Court on Magistrate Judge Dougherty’s Report and Recommendation [34-1] recommending that Defendant Delta Air Lines, Inc’s Motion for Summary Judgment [27-1] be granted on all of Plaintiffs claims. Plaintiff has filed timely Objections [35-1] to Magistrate Judge Dougherty’s Report and Recommendation and the Court reviews those portions of Magistrate Judge Dougherty’s Report and Recommendation to which Plaintiff specifically has objected de novo. I. FACTS In 1990, Plaintiff applied for and received a position as an instructor in Defendant’s Program Development area in the Ground Training Department. Plaintiff claims that in.his first six months in the Ground Training Department, he did not receive any computer programming (or Tel) assignments. Plaintiff complains that the disparity in assignments he received was based on his race. Plaintiff also complains that he was subject to racial remarks and innuendo in the Ground Training Department. One. day in December 1990, Plaintiff called into work to say that he would be late that day because his automobile had been vandalized during the night. When Plaintiff arrived at'work, he was shown a parody (in the form of a poem) written by his co-workers (including his supervisor) of the “Twelve Nights of Christmas,” that made reference to the vandalism of Plaintiffs car. Plaintiff perceived the poem’s reference to “malt liquor” as a stereotype based on Plaintiffs race. Plaintiff also highlights two statements by a secretary in the Ground. Training Department, Donna Shelley. On one occasion, Shelley referred to Plaintiff as “black boy” and on another occasion remarked that if she wrote on Plaintiff with a black marker, it would not show up. Plaintiff reported these statements to Paul Nordan, Defendant’s Manager of Program Development. After Plaintiff reported the incident, Shelly apologized to Plaintiff and never said anything to Plaintiff again. Plaintiff also states that he was told at some point in 1993, another coworker, Lamar Smith, said that if Plaintiff walked into a darkened room, no one would see him. Finally, Plaintiff claims that he also was subject to differential treatment regarding the performance of his duties and in his ultimate “discharge.” Regarding the treatment relating to his performance, Plaintiff claims that his work received more intense scrutiny than his white co-workers. Regarding his “discharge,” Plaintiff claims that he was removed from the Ground Training Department while less qualified white employees were retained. Defendant “discharged” Plaintiff as part of a downsizing effort in 1994 wherein Defendant determined that it had to remove three employees from its Ground Training Department. Defendant created a ranking system whereby the lowest three ranked employees would be removed. Plaintiff was one of the three lower ranked employees designated for removal. II. DISCUSSION A. Plaintiffs Hostile Work Environment Claim Is Barred By The Applicable Statutes Of Limitations As a prerequisite to filing a suit under Title VII, an employee must file a charge of discrimination with the EEOC Moore v. Alabama State Univ., 864 F.2d 103, 104 (11th Cir.1989). The employee has 180 days from the date of the alleged discriminatory act (or the last discriminatory act in the case of a continuing violation) to file a charge of discrimination. 42 U.S.C. § 2000e-5(e); Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992). Plaintiff filed his charge of discrimination on January 30, 1995. Thus, if the last act which comprises Plaintiffs hostile work environment claim occurred more than 180 days before Plaintiff filed his charge of discrimination, or before August 3, 1994, Plaintiffs hostile work environment claim under Title VII is barred by Title VII’s statute of limitations. Unlike Title VII, § 1981 does not contain an express statute of limitations. Thus, in Goodman v. Lukens Steel, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the United States Supreme Court held that lower courts should apply the statute of limitations for the most analogous state law cause of action from the state in which the act occurred. Id. at 661, 107 S.Ct. at 2621; see also Wilson v. Garcia, 471 U.S. 261, 266-68, 105 S.Ct. 1938, 1941-43, 85 L.Ed.2d 254 (1985). The Eleventh Circnit has held that Georgia’s two-year statute of limitations for personal injury actions applies to § 1981 causes of action based on conduct occurring in the State of Georgia. Brown v. East Central Health Dist., 752 F.2d 615, 618-19 (11th Cir.1985). The period begins to run when the plaintiff-employee knew or reasonably should have known that the discriminatory act occurred. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Pearson v. Macon-Bibb County Hosp. Auth., 952 F.2d 1274, 1279 (11th Cir.1992); Stafford v. Muscogee County Bd. of Educ., 688 F.2d 1383, 1390 (11th Cir.1982). Plaintiff filed this law suit on September 26, 1995. Thus, if the last act which comprises Plaintiff’s hostile work environment claim occurred more than two years before Plaintiff filed this law suit, or before September 26, 1993, Plaintiffs hostile work environment claim under § 1981 is barred by § 1981’s statute of limitations. Defendant contends that Plaintiffs hostile work environment claims under Title VII and § 1981 are time-barred because it is clear that most of the events that comprise Plaintiffs hostile work environment claims occurred no later than 1991, approximately four years before Plaintiff filed this action and well over 180 days before Plaintiff filed his charge of discrimination. According to Defendant, the only episode on which Plaintiff relies after 1991 was a comment made at some point in 1993 that if Plaintiff walked into a dark room, no one would see him. This statement still is well outside Title VIPs statute of limitations; but if it occurred later than September 26,1993, it is within § 1981’s statute of limitations. Defendant contends that since Plaintiff fails to present any evidence that this statement was within the applicable statute of limitations, Defendant is entitled to summary judgment on this claim. As an initial matter, the Court notes that in its Brief in Opposition to Defendant’s Motion for Summary Judgment, Plaintiff failed even to respond to Defendant’s statute of limitations argument. Thus, under Local Rule 7.1 of the Northern District of Georgia, Defendant’s Motion of Summary Judgment on this ground is unopposed. See LR 7.1 NDGa. In not opposing Defendant’s argument on this ground, Plaintiffs necessarily does not oppose Defendant’s characterization of the acts which, comprise Plaintiffs hostile work environment claims and Defendant’s argument that all of these acts occurred outside the applicable statutes of limitations. Plaintiffs failure to respond to Defendant’s argument alone entitles Defendant to summary judgment on these claims. Nonetheless, in his Report and Recommendation, Magistrate Judge Dougherty determined additionally that Plaintiff fails to present any evidence that the one episode occurring in 1993 occurred after September 26, 1993, within § 1981’s statute of limitations. This conclusion assumes that the burden is on Plaintiff to show that his claims are not barred by the applicable statute of limitations. Generally, the burden is on the defendant to' prove the existence of an affirmative defense. See e.g., Irby v. Bittick, 44 F.3d 949, 954 (11th Cir.1995); Smith v. Duff and Phelps, Inc., 5 F.3d 488, 492 n. 9 (11th Cir.1993); Blue Cross and Blue Shield of Ala bama v. Weitz, 913 F.2d 1544, 1552 (11th Cir.1990). However, the Court is not required to address the issue whether the burden is on Plaintiff or Defendant to show whether Plaintiffs Title VII and § 1981 harassment claims are time-barred because there is no admissible evidence of any act occurring in 1993. Plaintiffs sole evidence of the alleged statement in 1993 is Plaintiffs testimony that someone told him about the statement. Plaintiff has no personal knowledge that the statement was made and does not present the testimony of any witness who has personal knowledge that the statement was made. In sum, Plaintiffs sole evidence of this statement is based on inadmissible hearsay. See Fed. R. Evid. 801, 802. Thus, Plaintiff has no admissible evidence of any act occurring at any point 1993. The admissible evidence in this case does not reveal the occurrence of any act beyond 1991 and does not permit any inference that any of the acts that comprise Plaintiffs hostile work environment claim occurred later than 1991 (which places all of the acts well outside both applicable statutes of limitations). Therefore, even assuming arguendo the burden is on Defendant to show that Plaintiffs claims are time-barred, Defendant has sustained its burden to show Plaintiffs hostile work environment claims are barred by the statutes of limitations of both Title VII and § 1981. Further, the Court notes that even if there was admissible evidence of the statement allegedly made in 1993, Plaintiffs Title VII harassment claim still would be time-barred because the statement still would have been made more than 180 days prior to Plaintiffs filing his charge of discrimination with the EEOC in January 1995. Thus, Defendant is entitled to summary judgment on Plaintiffs hostile work environment claims under Title VII- and § 1981. B. Alternatively, Plaintiff Fails To Present Sufficient Evidence To Create Jury Issues On His Hostile Work Environment Claims Oddly, while Plaintiff failed to respond to Defendant’s statute of limitations argument, Plaintiff objects to the Magistrate Judge’s ruling in Defendant’s favor on this issue. Plaintiff contends that the Magistrate Judge and Defendant erroneously assumed that Plaintiffs hostile work environment claims were based solely on the four episodes involving racial remarks or innuendo when, in fact, Plaintiffs hostile work environment claims also were based on alleged disparate treatment which allegedly went on until the day Plaintiff left the Ground Training Department in October 1994. Therefore, Plaintiff argues that both of his hostile work environment claims are within the applicable statutes of limitations. As the Court discussed earlier, Plaintiffs failing to respond to Defendant’s argument on this issue- alone entitles Defendant to summary judgment. However, even assuming arguendo Plaintiffs claims were not barred by the applicable statutes of limitations and additionally assuming arguendo that Plaintiffs claims of disparate treatment also comprise a component of Plaintiffs hostile work environment claims, Defendant still is entitled to summary judgment because Plaintiff fails to present sufficient evidence to create jury issues on the questions (1) whether the conditions Plaintiff experienced were sufficiently hostile, and (2) whether Defendant should be held directly or indirectly liable for these conditions. The Court does not recount the Magistrate Judge’s analysis on these issues because after a careful de novo review, the Court finds that the Magistrate Judge’s analysis is correct in all material respects and ADOPTS it as the ORDER of the Court regarding this issue. The Court adds only the following remarks in response to Plaintiffs Objections. First, after a review of Plaintiffs Complaint and Mandatory Interrogatories, the parties’ consolidated Scheduling Order, Plaintiffs deposition, and other relevant discovery, the Court finds that when Plaintiff brought this action, Plaintiff’s claims of hostile work environment were distinct from Plaintiffs claims of disparate treatment. Plaintiff merged these claims together for the first time in response to Defendant’s Motion for Summary Judgment, perhaps to bolster an otherwise weak hostile environment claim or perhaps to avoid the effects of the applicable statutes of limitations. Whatever the reason, Plaintiff cannot change its theory of the case (in an effort to avoid summary judgment) after Defendant moves for summary judgment. The Magistrate Judge was correct in not allowing Plaintiff suddenly to change directions in a way that ultimately would have resulted in prejudice to Defendant. In an abundance of caution, however, this Court finds that even if Plaintiff is allowed to change his theory of the case at this late date, the result is the same. Assuming arguendo Plaintiffs allegations of disparate treatment are considered appropriately a part of Plaintiffs hostile work environment claim, these allegations (assuming they are true), even coupled with the episodes that the Magistrate Judge and Defendant cited, do not demonstrate an atmosphere so permeated with discriminatory insult, ridicule, and intimidation such that an objective person would find the conditions in Plaintiffs work place hostile or abusive. Harris v. Forklift Sys. Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986)); Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir.1995). Further, Plaintiff fails to present sufficient evidence to create a jury issue whether Defendant knew or should have known about any hostile working conditions or that Defendant should be held indirectly or vicariously liable for any such working conditions. See Faragher v. City of Boca Raton, 111 F.3d 1530, 1535 (11th Cir.1997) (en banc). Plaintiff fails to present sufficient evidence that the conditions were so severe that Defendant should have known of their existence, see Faragher, 111 F.3d at 1538, and fails to present sufficient evidence that Defendant had any actual knowledge of any such conditions. Kilgore v. Thompson & Brock Management, Inc., 93 F.3d 752, 753-54 (11th Cir.1996); see also Reynolds v. CSX Transp., Inc., 115 F.3d 860, 867 (11th Cir.1997) (citing Kilgore for the proposition that a hostile work environment complaint to a manager not considered ‘higher management’ does not suffice as notice to company); Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir.1988); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982). The only incidents Plaintiff reported were the statements by Shelly referring to Plaintiff as “black boy” and stating that if she wrote on Plaintiff with a black magic marker, she would not be able to see it. Defendant responded- to Plaintiffs- complaints' about these statements and they did not occur again.. Compare Reynolds, 115 F.3d at 868 (“Reynolds herself testified that after CSXT took action against Widney, he never again said anything to her or touched her inappropriately. A reasonable juror could not find ... that the acts taken by CSXT ... did not constitute prompt action ‘reasonably likely to prevent the conduct from recurring.’ ”); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989) (“Of special importance, [the defendant’s] harassment stopped after the remedial action.”); see also McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 481 (7th Cir.1996) (“Moreover, [the defendant’s prompt remedial action] was completely effective.”). Plaintiff admits that he did not complain to anyone (much less higher management) about any other conditions. Finally, Plaintiff fails to present sufficient evidence to create a jury issue whether Defendant should be liable indirectly for any hostile work environment. While Plaintiff alleges that he suffered “harassment” at the hands of his supervisors, Plaintiff fails to present any evidence that his supervisors were acting within the scope of their authority or that they were aided in their harassment by their supervisory positions. See Faragher, 111 F.3d at 1535. For all of the foregoing reasons and the reasons in Magistrate Judge Dougherty’s Report and Recommendation, the Court GRANTS Defendant’s Motion for Summary Judgment on Plaintiffs hostile work environment claims. ■ C. Plaintiff’s Disparate Treatment Claims As the Court discussed earlier, Plaintiff now claims that his allegations of disparate treatment should have been considered as part of his hostile work environment claims. Plaintiff does not address any disparate treatment claims in his Brief in Opposition to Defendant’s Motion for Summary Judgment or in his Objections to Magistrate Judge Dougherty’s Report and Recommendation. Thus, any separate claims for disparate treatment have been abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995); Love v. Deal, 5 F.3d 1406, 1407 n. 1 (11th Cir.1993). Accordingly, the Court GRANTS Defendant’s Motion for Summary Judgment on Plaintiffs claims for disparate treatment. D. Plaintiff Fails To Present Sufficient Evidence To Create Jury Issues On His Discriminatory Discharge Claim 1. Prima Facie Case of Discrimination As the Magistrate Judge correctly noted, this case is appropriately considered a reduction in force case. Therefore, to make a prima facie ease of discriminatory discharge based on circumstantial evidence, Plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for the position he held; (3) that he was removed from his position; and (4) other evidence from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Mauter v. Hardy Corp., 825 F.2d 1554, 1557 (11th Cir.1987). In 1994, Defendant initiated a massive downsizing effort which resulted in a determination that three instructors would be transferred from Defendant’s Ground Training Department. All the instructors in the Department were ranked and the three lowest ranked instructors were transferred. Plaintiff was one of the three lowest ranked instructors and was transferred to Trans-Quest, a new joint venture between Defendant and AT & T Corporation. Plaintiff does not dispute that the decision to transfer Plaintiff was based on this ranking system and does not dispute that he was one of the lowest ranked instructors. Plaintiff also does not dispute that all three of the lower ranked instructors (who, in fact, received identical rankings), were all transferred. Rather, Plaintiff claims that he was ranked low because of his race. For the reasons stated in Magistrate Judge Dougherty’s Report and Recommendation, the Court finds that Plaintiff fails to present evidence sufficient establish a prima facie case of discrimination because Plaintiff fails to present sufficient evidence to meet his showing under the fourth prong of his prima facie ease of discrimination. Plaintiffs evidence regarding the fourth prong is not evidence from which a reasonable jury could conclude that Plaintiffs race was a factor in Defendant’s decision to transfer him. Plaintiff fails to present any evidence that he was treated any differently than the two white instructors who received the same ranking as him and, critically, fails to present any evidence that he was better qualified than any of the instructors who Defendant retained. See Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir.1996). Rather, Plaintiff merely attacks the objective factors on which Defendant relied in evaluating all of the instructors in the Ground Training Department and supplements these attacks with conelusory allegations of racial discrimination. This is not sufficient. See Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989); Young v. General Foods Corp., 840 F.2d 825, 830 (11th Cir.1988) (“Conclusory allegations of discrimination, without more, are not sufficient to raise an inference ... of discrimination----”); Lewis v. Zilog, Inc., 908 F.Supp. 931, 951 (N.D.Ga.1995), aff'd, 87 F.3d 1331 (11th Cir.1996) (stating that a plaintiff must show that he was removed from her position while less qualified employees were retained). Moreover, Plaintiffs contentions either are not supported by any evidence or, more importantly, do not show discrimination. Plaintiff argues that one of the evaluators responsible for ranking all of the instructors, Tony Hite, had neither supervisory responsibility over Plaintiff nor access to information which would enable him to assess Plaintiffs performance. It is true that Hite never had supervisory authority over Plaintiff, but Defendant never contends that he did. Hite was selected as an evaluator because in his position as a Project Leader, he had access to and was required to install and maintain programs developed by all the instructors— including Plaintiff. In this sense, Plaintiffs contention that Hite did not have access to the instructors’ work product is refuted by the evidence. (Hite dep. at 13-17; Lofton dep. at 95.) Hite admitted that he was more familiar with the work of some instructors than others, and that he was not in a position to view the day to day activities of all the programmers or view their performance in every conceivable aspect. The evidence shows without dispute, however, that Hite did have an opportunity to review the work of all the programmers and a basis for comparing the performances of all the instructors. In any event, Plaintiffs challenge to Hite constitutes nothing more than a disagreement with Defendant’s decision to select Hite as an evaluator. Plaintiff does not contend, however, and fails to present any evidence that Defendant’s selection of Hite as an evaluator was based on any discriminatory animus. Cf. Brown v. American Honda Motor Co. Inc., 939 F.2d 946, 951 (11th Cir.1991) (“A contract may be granted for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as it is not for a discriminatory reason”); Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1501 (11th Cir.1985); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984) (“The employer may fire an employee 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”); see also McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir.1990) (That the purpose of statutes like Title VII and § 1981 is “[n]ot to review bad business decisions, or question the soundness of an employer’s judgment.”). Plaintiff also does not contend and fails to present any evidence that Hite was influenced by discriminatory animus in his ranking of Plaintiff. Plaintiff next argues that Defendant’s evaluations were purely subjective and should be viewed with suspicion. This contention is not supported by any evidence. The evidence shows that Defendant’s ranking system, while including some subjective evaluations, was based mostly on objective criteria. (Hite dep. at 16, 23-28; Lofton dep. at 138-60). In contending that Defendant relied on purely subjective criteria, Plaintiff seems to define “subjective criteria” as Hite’s and Lofton’s personal observations. Plaintiff stresses that both Hite and Lofton state that many of their evaluations were based on personal observations. ' However, subjective criteria and personal observations are not one in the same. Even objective evaluations inherently are based in large part on personal observations. For example, Lofton testifies that he personally observed when (and how often) individual instructors were (or were not) working at their work stations. Defendant emphasizes that whether an instructor is at his work station is not a subjective criterion. Moreover, even assuming arguendo Defendants’ evaluations were based partially on subjective criteria, this would not compel a finding of discrimination. Subjective criteria “is not in and of itself violative of [Title VII].” See Allison v. Western Union Tel. Co., 680 F.2d 1318, 1322 (11th Cir.1982) (“It is only when such criteria result in discriminatory impact that a violation occurs.”). Thirdly, Plaintiff asserts that some of the evaluative comments accompanying his ranking were inconsistent with his evaluations for the previous three years. Plaintiff does not in any way describe how or in what respects his ranking is inconsistent with his evaluations for the previous three years and presents no documentary evidence of any inconsistencies. In fact, Plaintiffs only evidence of the existence of any inconsistencies is his affidavit testimony that an employee in Defendant’s EEO office, Ron Davies, told Plaintiff that there were inconsistencies. Further, Plaintiff does not address whether (or how) other instructors’ rankings were (or may have been) consistent or inconsistent with their previous evaluations. In sum, Plaintiff fails to present any evidence that any alleged inconsistencies were based on his race. Cf. Darnell v. Target Stores, 16 F.3d 174, 177 (7th Cir.1994) (“Self-serving affidavits without factual support in the record will not defeat a motion for summary judgment.”). Finally, Plaintiff attempts to show that Defendant’s ranking criteria shifted and were inconsistent. For example, Plaintiff noted that for one instructor, Jenny Ballard, “work habits,” “supervisory work,” and “willingness to take on additional duties” were emphasized; with other employees, “promotion of policies” was emphasized; and with another instructor, Nancy Bankston, Defendant’s emphasis was- on her “comprehensive computer knowledge.” Plaintiff’s argument in this regard is unpersuasive. It goes without saying that different persons’ strengths and weakness may differ. That Defendant emphasized different individual strong or weak points among different individual instructors is not so much evidence of discrimination as it is a recognition that each of the instructors were not identical replicas of one another. Essentially, Plaintiffs evidence boils down to no more than a disagreement with Defendant regarding his qualifications in relation to other instructors. However, as Magistrate Judge Dougherty correctly noted, this is insufficient to create a jury issue on the question of discrimination. See Brown, 939 F.2d at 951 (“[T]he court’s responsibility was not to second guess the wisdom of Honda’s reasoning, but to determine if the reasons given were a cover for discrimination.”). It is not for this Court second guess the soundness of Defendant’s employment decisions, but rather only to determine whether they were discriminatory. Id.; Conner, 761 F.2d at 1501; Nix, 738 F.2d at 1187 (“That the employer may fire an employee 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”); see also McDonald, 898 F.2d at 1160 (That the purpose of statutes like Title VII and § 1981 is “[n]ot to review bad business decisions, or question the soundness of an employer’s judgment.”). For the foregoing reasons the Court finds that Plaintiff fails to establish a prima facie case of discrimination. 2. Preteod Even assuming arguendo Plaintiff can make a prima facie showing of discrimination, Defendant still is entitled to summary judgment. Defendant produces evidence of a legitimate non-discriminatory reason for transferring Plaintiff — that is, that Plaintiff was one of the three lower ranked instructors in the Ground Training Department— and Plaintiff fails to present sufficient evidence to create a jury issue whether Defendant’s legitimate non-discriminatory reason is a pretext for discrimination.- To show pretext, Plaintiff focuses on many of the same contentions on which he relied to show a prima facie case of discrimination. But in his Objections to Magistrate Judge Dougherty’s Report and Recommendation, Plaintiff focuses on his contention that two of the instructors ranked higher than him had performance difficulties. Plaintiff states: Finally, a comparison of the treatment of Plaintiff with that of at least two other Programmers supports an inference of discrimination. Dennis Hadden, a white Programmer, was “ranked higher” than Plaintiff and retained although: He completed fewer new courseware projects than Plaintiff; completed fewer storyboards than Plaintiff; and, had to make more revisions than Plaintiff. In addition, Hadden was retained despite his tendency to leave work to go to waffle house and despite a prior supervisor’s having “heard” that he did so. Similarly, Floyd Phillips, a white Programmer, was ‘ranked higher’ than Plaintiff and retained although: he was one of the slower programmers; he had little experience in “TEL” — a language for which proficiency was emphasized with other programmers; and his supervisor was aware that he had a rental business. (Pla. Obj. at 10.) Plaintiffs effort is unconvincing. As Magistrate Judge Dougherty correctly noted, the evidence shows that Hadden’s responsibilities were different than Plaintiffs. Hadden worked primarily with revisions to programs and not with original storyboards. Necessarily, Hadden completed fewer storyboards and courseware projects and had more revisions than Plaintiff. Plaintiffs contention that Hadden had any performance deficiencies is not supported by the record. Regarding Phillips, Plaintiff contends that Phillips “was one of the slower programmers”: and “had little experience in ‘TEL’.” However, these were only two of the fáetors relevant to the ranking process. As important were work quality, leadership ability, interpersonal skills, and other factors. When all these factors are considered-, as opposed to just a couple, Phillips received a higher ranking than Plaintiff. (Hite dep. at 21-28.) In sum, while Plaintiff presents scattered pieces of circumstantial evidence, none of it, taken as a whole, undermines Defendants’ non-discriminatory rationale. It is undisputed that Plaintiff was transferred because he was one of the lowest ranked instructors. However, Plaintiff fails to present any evidence (a) that those selected to evaluate the instructors were selected for discriminatory reasons; (b) that the evaluators who ranked all the instructors were motivated by any discriminatory animus;. or (c) that the factors relied on by the evaluators were discriminatory. See Isenbergh, 97 F.3d at 444 (“[T]he plaintiff [must] point to facts which, if true, would present a basis for the disbelief of the defendant’s overall justification.... [Plaintiffs evidence does] not ... provide a basis for contradicting [Defendant’s] ultimate justification [that another] was more qualified.”); Brown, 939 F.2d at 954 (“Although the plaintiff has produced scattered pieces of evidence of circumstantial evidence, none of it, even taken as a whole, raises sufficient questions to undermine [the defendant’s] non-diseriminatory rationale.”). At most, Plaintiff’s evidence shows that he disagrees with Defendant’s evaluation of his relative qualifications and that Plaintiff would have weighed the factors in the evaluation process differently. But again,' Plaintiff’s challenge to the wisdom of Defendant’s business decisions is insufficient to show they were discriminatory and is insufficient to show pretext. See Isenbergh, 97 F.3d at 444 (“That the plaintiff calls into question some assertions made by the defendant is support of defendant’s justification is not enough. The plaintiff must call into question the veracity of the defendant’s ultimate justification itself.”). This is especially true here where Plaintiffs evidence consists of solely isolated occurrences of difficulties that Defendant may have had with other instructors from time to time as opposed to evidence reflective of the other instructors’ overall performances. Plaintiff fails to present any evidence that he is even in a position to evaluate the overall performances of any of the other instructors, much less evidence that he was more qualified than any instructor who was retained. Because Plaintiff fails to present any evidence that he was better qualified than any instructor who- was retain — that is, that he should have been ranked higher — Plaintiff fails to show Defendant’s reasons for transferring him were a pretext for discrimination. For the foregoing reasons and the reasons stated in Magistrate Judge Dougherty’s Report and Recommendation, the Court GRANTS Defendant’s Motion for Summary Judgment on Plaintiffs claim of discriminatory discharge. III. CONCLUSION The Court GRANTS Defendant’s Motion for Summary Judgment [27-1]. The Court directs the Clerk to enter final judgment in' favor of Defendant on all of Plaintiffs claims. ATTACHMENT ORDER FOR SERVICE OF REPORT AND RECOMMENDATION July 2, 1997 Attached is the report and recommendation of the United States Magistrate Judge made in this action in accordance with' 28 U.S.C. § 636 and this Court’s Local Rule 72.1C. Let the same' be filed and a' copy, together with a copy of this Order, be served upon counsel for the parties. Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the report and recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the report and recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). The Clerk is directed to submit the report and recommendation with objections, if any, to the district court after expiration of the above time period. SO ORDERED, this 2nd of July, 1997. MAGISTRATE JUDGE’S ORDER AND REPORT AND RECOMMENDATION DOUGHERTY, United States Magistrate Judge. The above-styled case is presently before the court on defendant’s Motion for Summary Judgment, filed December 10, 1996. Docket Entry [27]. Plaintiff filed his Response on January 14, 1997. Docket Entry [28]. Plaintiff filed a Motion to Strike Defendant’s Motion for Summary Judgment on January 14, 1997. Docket Entry [29]. Plaintiff filed an Amended Brief in opposition of Defendant’s Motion for Summary Judgment on January 22, 1997. Docket Entry [30]. Defendant subsequently filed both a Response in opposition of Plaintiffs Motion to Strike and a Reply in support of its original Motion for Summary Judgment on February 4, 1997. Docket Entries [32, 33], respectively. Plaintiff’s Motion to Strike Plaintiff has moved to strike defendant’s Motion for Summary Judgment on the grounds of untimeliness stating that such motion did not comply with the Discovery Order of August 2, 1996. The Court ordered that the discovery period was to be extended until thirty days after the Court ruled on plaintiffs motion to compel. The Court further ordered that Defendant’s Motion for Summary Judgment would be due thirty days after the close of the extended discovery period. Docket Entry [18]. A final ruling on Plaintiffs Motion to Compel was rendered by the Court in an Order filed on October 15, 1996. Accordingly, pursuant to the Order of August 2, discovery in the case closed on November 14,. 1996. Thus, the Defendant’s Motion for Summary Judgment was due on or before December 16, 1996. Therefore, the Defendant’s Motion was timely as it was filed on December 10, 1996. Plaintiffs Motion to Strike is Denied. Defendant’s Motion for Summary Judgment Plaintiff brought suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging that defendants subjected him to racial discrimination. Plaintiff also brings a claim under 42 U.S.C. § 1981. Plaintiff contends that he was subjected to employment discrimination on the basis of his race in that he was subjected to derogatory language and innuendo; was treated differently than his all white coworkers in the Ground Training Section of the Programming Department; and was selected for job elimination because of his race. I. Statement of Facts A. Background In March of 1988, Defendant Delta Airlines hired plaintiff, an African-American male, as an Associate Programmer in Department 810, Delta’s Information Technology Department. In March of 1989, plaintiff was promoted to Program Analyst, (undisputed). At the beginning of 1990, plaintiff applied for and received a position in defendant’s Program Development area in the Ground Training Department. This area was responsible for producing computer programs that were used to train employees such as pilots, flight attendants, and mechanics. As an instructor, plaintiffs primary job responsibility was to write computer programs. (Deposition of Plaintiff, hereinafter Plaintiffs Dep., pp. 53-58). During the first six months of his employ, plaintiff received no computer programming (or Tel) assignments, although he received a variety of other training related assignments during that time period. After plaintiffs first six months of employment, he received numerous Tel assignments. (Plaintiff’s Dep., pp. 53-63). B. Plaintiffs Racial Discrimination Claims In December 1990, approximately six months after transferring to the' Program Development Department, plaintiff called into work to advise that he would be late because his automobile had been vandalized during the night. (Plaintiffs Dep., p. 194), When plaintiff arrived at work that day, he was shown a parody of the “Twelve Days of Christmas” written by one of his co-workers which made reference to the vandalism of plaintiff’s car. (Undisputed). The plaintiff stated that he was offended by the poem because of a reference to “malt liquor” which he perceived to be based on racial stereotyping. (Plaintiffs Dep., p. 201). The plaintiff did' not report this incident to his employer. (Plaintiff’s Dep., pps. 201-202). Additionally, at some point in 1990 or 1991, a secretary in the. department, Ms. Donna Shelley, called the plaintiff a “black boy” and once Remarked that if she wrote on plaintiff with a black marker that it would not show up. The plaintiff reported these comments to' Mr. Paul Nordan, Manager of Program Development. After the plaintiff reported the incident to Mr. Nordan, Ms. Shelley approached the plaintiff and apologized. (Plaintiffs Dep., p. 205). After this incident, Ms. Shelley never again used a racial remark toward the plaintiff. (Plaintiffs Dep., p. 207) , Plaintiff also alleges an incident' that occurred at some point in 1993 in which he received an indirect report of a statement made by Lamar Smith, a coworker, to the effect that “if plaintiff entered a darkened room they could not see him.” (Plaintiffs Response Brief, p. 4). Plaintiffs Removal In the early 1990’s, the entire airline industry was mired in a severe financial slump. Between 1991 and 1994, defendant lost two billion dollars. As a result, defendant instituted an aggressive cost-cutting program, titled “Delta’s Leadership 7.5 Initiative”, in which it sought to reduce costs in all areas of the company. (Undisputed). In 1994, as a result of this cost-cutting" program, defendant reduced the number of employees in its Program Development area. Two individuals, Michael Lofton (Manager of Program Development) and Tony Hite (Project Leader of Program Development) were chosen to identify three instructors in the Program Development area who would be reassigned, transferred or laid off. (Deposition of Tony A. Hite, hereinafter Hite’s Dep., pp. 7, 13-16; Deposition of Henry Michael Lofton, hereinafter Lofton’s Dep., pp. 42-43, 57-59). In order to identify the three instructors who would be relieved of their current positions, Mr. Lofton and Mr. Hite together completed assessment forms on all of the instructors in the Program Development area. The assessment forms consisted of numerical rankings in three separate categories including qualifications, abilities, and productivity, as well as an overall ranking. (Lofton’s Dep., pp. 42-43, 57-59 and Exhibits 1-18). As a result of the rankings composed by Mr. Lofton and Mr. Hite, three individuals received a final overall ranking of six. These individuals were Mr. Robert Meló (a Caucasian), Mr. Joseph Campesi (a Caucasian), and plaintiff. Consequently, these three individuals were the lowest ranked instructors in the Program Development area, and each was ultimately chosen for a transfer. (Lofton’s Dep., pp. 59, 102-04, 175-77 and Exhibits 1, 2,14,15). Substantial parts of the Leadership 7.5 cost-cutting process, including the procedures used to rank employees and the rankings of individual employees themselves, were reviewed by Mr. Richard Ealey (Defendant’s Director of Equal Opportunity) in order to ensure that the selection process was completed in a non-discriminatory manner. Mr. Ealey is an African-American male. (Undisputed). The plaintiff was notified of his selection for transfer out of the Program Development area in a meeting -with Mr. Larry Patrick (Defendant’s System Manager of Program Development) and Mr. Lofton. At that meeting, plaintiff was offered the opportunity to return to his former department with the defendant or to bid on another job within the company. At that time, plaintiff was informed that if he returned to his former department, he would receive a job offer from TransQuest, a newly formed venture between defendant and AT & T which was to provide defendant with computer services. (Undisputed). Within a few days of the meeting with Mr. Lofton and Mr. Patrick, the plaintiff received a telephone call from TransQuest informing him that he would be receiving a job offer from TransQuest in the very near future. Shortly thereafter, plaintiff received an offer letter from TransQuest which included an increase in salary. However, plaintiff does claim that he received a loss of tangible benefits including a reduced allotment of flight passes administered by Delta Airlines. Despite this, plaintiff accepted the offer and began working for TransQuest immediately. (Undisputed). Plaintiff filed a discrimination charge with the EEOC on January 30, 1995. Additionally, plaintiff filed the present lawsuit on September 21, 1995. Accordingly, this is an action under Title VII of the Civil Rights Act of-1964, as amended, and 42 U.S.C. § 1981. Plaintiff contends that he was subjected tp employment discrimination on the basis of his race, black, in that he was subjected to derogatory language and innuendo; was treated differently than his all white coworkers in the Ground Training Section of the Programming Department; and was selected for job elimination because of his race. Defendant Delta Air Lines maintains that the plaintiffs actions are time barred pursuant to the section 1981 two year statute of limitations as well as the 180 day procedural reporting requirement of a claim under Title VII. Alternatively, defendant maintains that the plaintiff has not met his burden of establishing an issue of material fact as to all of his claims. II. Conclusions of Law A. Summary Judgment Standard At the summary judgment stage, the court must examine all evidence in the light most favorable. to the non-moving party and resolve all reasonable doubts in his favor. Earley v. Champion Int’l Corp., 907 F.2d 1077 (11th Cir.1990). A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. On a motion for summary judgment, “[t]he moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Once the movant has pointed out the nonexistence of any genuine issue of material fact, it is up to the plaintiff to produce some evidence in support of her claim. Velten v. Lippert, 985 F.2d 1515 (11th Cir.1993). Mere eonclusory allegations of harassment are not enough to withstand a motion for summary judgment. Carter v. Miami, 870 F.2d 578, 585 (11th Cir.1989). In other words, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue is not genuine if unsupported by evidence or if created by evidence that is “merely color-able” or “not significantly probative.” Id. at 250, 106 S.Ct. at 2511. Likewise, a fact is only material if designated by controlling substantive law as an essential element of plaintiffs case. Id. at 248, 106 S.Ct. at 2510. If neither party can prove the existence or nonexistence of an essential element of a claim, summary judgment will be granted if the movant shows that the plaintiff will be unable to meet her burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54,. 91 L.Ed.2d 265 (1986). The movant’s burden therefore requires a “ ‘showing’. — that is, pointing ou.t to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Id. B. Plaintiffs Claims are Time Barred Defendant argues that plaintiffs claims of racial harassment under both Title VII and section 1981 are time barred and that summary judgment .should be granted. 1. Plaintiffs Title VII Claim A Title VII plaintiff has 180 days from the date of the alleged discriminatory action in which to file a charge with the Equal Employment Opportunity Commission (EEOC). 42 U.S.C. § 2000e-5(e). A timely filed EEOC charge is a prerequisite to bringing suit under Title VII. Moore v. Alabama State Univ., 864 F.2d 103, 104 (11th Cir.1989). It is not necessary for.the plaintiff to present a prima facie case of discrimination based solely on events occurring within 180 days prior to the filing of the EEOC charge, however, if the plaintiff alleges a continuing violation of Title Vfl by his employer. In that instance, he must file his EEOC charge within 180' days from the last occurrence which forms the basis of the complaint. Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992); Nelson v. United States Steel Corp., 709 F.2d 675, 677 (11th Cir.1983). In the present ease, all incidents of racial discrimination alleged.by plaintiff occurred between 1990 and 1993. Plaintiff stated that the parody of the “Twelve Days of Christmas” containing a racial reference was circulated around the office in December of 1990. (Plaintiffs Dep., p. 194). Additionally, plaintiff has alleged that racial remarks made by a secretary in his office occurred in the same time frame. (Plaintiffs Dep., pp. 203-04). Finally, plaintiff asserted that the incident involving a report of a statement made by another coworker “[ojcurred in 1993.” (Plaintiffs Response to Defendant’s Motion for Summary Judgment, p. 4). However, plaintiff did not file a discrimination charge with the EEOC until January 30, 1995. Thus, in order to bring a timely claim under Title VII, the relevant events must have occurred within 180 days of the date the plaintiff filed his Charge of Discrimination with the EEOC. Here, plaintiff made such a filing on January 30, 1995, well after the 180 day requirement imposed by Title VII. Accordingly, the court finds that plaintiffs Title VII claim is time barred and Defendant’s Motion for Summary Judgment should be granted as to this issue. 2. Plaintiffs § 1981 Claim The United States Supreme Court, in Goodman v. Lukens Steel, 482 U.S. 656, 660-61, 107 S.Ct. 2617, 2620-21, 96 L.Ed.2d 572 (1987), recognized that there is no provision in 42 U.S.C. § 1981 for a statute of limitations. Analogizing to actions under § 1983, the Court determined that a federal court should apply the local statute unless it would be inconsistent with federal policy. Id. Civil rights actions are deemed the equivalent of actions for injuries to the person. Therefore, courts apply a two year limitation period. O.C.G.A. § 9-3-33 (1982); Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973). The period begins to run when the plaintiff knew or reasonably should have known that the discriminatory act had occurred. Stafford v. Muscogee County Bd. of Educ., 688 F.2d 1383, 1390 (11th Cir.1982). The focus is on “the time of the discriminatory act, not the point at which the consequences of the act become painful.” Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981) (citing Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980)) (emphasis in original). Therefore, in order to state a valid claim under section 1981, the discriminatory events must have occurred within two years of the date plaintiff filed the complaint. In this case, plaintiff filed his complaint on September 26, 1995. Therefore, in order to make a proper claim under Section 1981 in this case, plaintiff must demonstrate that some discriminatory act occurred on or after September 26, 1993. Here, plaintiff has clearly not met this slight burden. Plaintiff has filed two separate reply briefs to defendant’s Briefs in Support of the Motion for Summary Judgment. Neither pleading raises any timeliness issue or any facts which tend to show that a discriminatory event happened within either the Title VII or section 1981 Actionable periods. Accordingly, under Local Court Rule 7.1 of the United States District Court for the Northern District of Georgia, factual and legal claims to which there is no response should be treated as unopposed. Here, where there is neither a response to defendant’s argument nor evidence suggesting that such events did fall within the relevant periods of limitation, the plaintiff is time barred for both the Title VII and section 1981 claims. The undersigned therefore recommends that both actions be barred and Defendant’s Motion for Summary Judgment be granted as to all claims. C. Title VII and § 1981 Claims 1. Racial Harassment Even if the court finds that plaintiffs claims are not barred by the procedural time -limits, Defendant’s Motion for Summary Judgment should be granted because plaintiff has failed to make out his prima facie case of employment discrimination based on his race. A defendant is liable under Title VII if the employee has been discriminated against on the basis of race or sex, and that discrimination has created a hostile or abusive working environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In Harris v. Forklift Sys., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Supreme Court explained that the relevant inquiry looks at whether the actions of the defendants altered the working condition to such an extent that a reasonable person would find the atmosphere hostile and abusive and to such an extent that the plaintiff subjectively perceived the atmosphere as such. Harris, 510 U.S. at 21-23, 114 S.Ct. at 370-71, 126 L.Ed.2d at 302. The Court set forth factors which are to be examined in determining whether abuse in the workplace rose to this standard. The Court held that: These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Id. at 23, 114 S.Ct. at 371, 126 L.Ed.2d at 302-03 (emphasis added). The Court held that although the psychological effect on an employee may be considered, it is only one factor in the analysis, and that if the environment would reasonably be perceived as hostile and abusive, a showing of serious psychological harm is not'necessary. Id. In other words, the court must examine the totality of the circumstances, looking at the combined effect of all of the incidents. Id.; Edwards v. Wallace Community College, 49 F.3d 1517, 1521-22 (11th Cir.1995); Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1510-11 (11th Cir.1989). When the- employee seeks to hold the employer liable for harassment by his supervisor, the employee must prove an additional element, specifically that the employer knew or should have known that the harassment was occurring, and that the employer failed to take prompt remedial action. Henson v. Dundee, 682 F.2d 897, 905 (11th Cir.1982). The employee can prove that the employer knew by showing that he complained to higher management, or by a showing that the harassment was so pervasive that it “gives rise to the inference of knowledge or constructive knowledge.” Id. Because the employer’s liability in this instance is based on respondeat superior theories, an employer will not be liable if it took prompt remedial action. Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316-17 (11th Cir.), reh’g denied, 874 F.2d 821 (11th Cir.1989). Defendants argue that plaintiff cannot satisfy his prima facie burden because he does not establish any element of the Harris Test. Initially, defendant maintains that the conduct about which plaintiff complains does not rise to the sufficient level of pervasiveness to be actionable. In Baskerville v. Culligan Int’l Co., 50 F.3d 428 (7th Cir.1995), the Court stated that a few isolated instances of racial animus do not rise to the level of frequency to create a workplace permeated with racial hostility. In that case, the court held that seven racial incidents or remarks in seven months is not pervasive enough to rise to the level of harassment. Here, plaintiff complains of four incidents in a four year period. (Plaintiff’s Dep., pp. 201-02). Plaintiff maintains that these instances, taken in the totality of the circumstances, are sufficient to create a pervasive, hostile working environment. (Plaintiffs Response Brief, p. 5). However, the court finds that these incidents were isolated occurrences consisting of merely offensive conduct. The incidents in this case occurred with the same infrequency as in Baskerville. Additionally, there was nothing about the character or severity of any particular instance, or all four taken as a whole, which would compensate for their infrequency. Accordingly, the court finds that the plaintiff has not established that defendant’s conduct was sufficiently pervasive to meet the first element of the Harris test for a hostile working environment. Defendant also maintains that the conduct complained of was not sufficiently severe in nature. Instead, defendant asserts that the specific instances of alleged harassment are at most merely offensive. Specifically, in reference to the parody of the “Twelve Days of Christmas,” plaintiff complained of only one line in the document which he cited as including a general racial stereotype. Such general references, occurring infrequently and in isolated circumstances, do not rise to the level of hostility or severity as anticipated by the Supreme Court. Harris, 510 U.S. 17, 114 S.Ct. 367. However, plaintiff contends that, taken as a whole, the comments made by his coworkers, in addition to the stereotypical parody, meet the test of severity. Plaintiff points specifically to the comment made by a secretary in the office in which she called him “black boy”. But, as stated in Harris, “the ‘mere utterance of an epithet which engenders offensive feelings in an employee’ does not sufficiently affect the conditions of employment to implicate Title VII.” Id. at 21, 114 S.Ct. at 370. Here, plaintiff has portrayed an environment in which he was subjected to several unrelated, racially motivated comments. While it is offensive for someone to refer to the plaintiff as “black boy” or make derogatory reference to the darkness of his skin in relation to the color of-an.ink pen, these comments do not rise to the level of severe conduct which is protected by Title VII or section 1981. Accordingly, the court finds that plaintiff has not met his burden to establish the severity of defendant’s conduct. As to the third element of the Harris Test, defendant asserts that it is also absent from plaintiffs argument. Defendant has stated that none of the incidents alleged by plaintiff were physically threatening or humiliating. In fact, plaintiffs testimony reflects that the conduct was at most only offensive. Accordingly, when the plaintiff reported the secretary’s comments to his manager he stated only that “he did not enjoy it.” (Plaintiffs Dep., p. 206). Moreover, plaintiff presents no evidence which tends to suggest that he was physically threatened or humiliated by any other comments from his coworkers or from the parody of the Christmas poem which was circulated in the office. Defendant cites to a decision from the Seventh Circuit in which the court found that a Naval Instructor’s isolated and off-color jokes made •to a subordinate were insufficient as a matter of law to support a hostile work environment claim. Rennie v. Dalton, 3 F.3d 1100 (7th Cir.1993). The Rennie Court asserted that even though a statement or conversation may be considered to be offensive and in very poor taste, such may not be “[p]ersistent [enough to] poison the work environment.” Id. at 1108. Similarly, in this case, the court finds that the work environment was not poisoned as to the plaintiff. The plaintiff refers the court to his affidavit as evidence of a hostile working environment. Nothing in the affidavit or cited in the brief suggests that the plaintiff was physically threatened or humiliated. Instead, plaintiff states only that “[t]here were several events in which certain types of treatment were directed at me because of my race, and these incidents had the effect of altering my work environment by making it uncomfortable in certain respects.” (Plaintiffs Affidavit, ¶ 6). Such discomfort is not sufficient to meet the test of a physically threatening or humiliating act or environment. Accordingly, without asserting more, plaintiff does not establish that the defendant’s conduct was humiliating or physically threatening in accordance with the requirements of the Harris Test for a hostile environment. Therefore, the undersigned finds that the plaintiff has failed to establish this element of his prima facie case for hostile environment racial discrimination. As to the final element, defendant contends that none of the incidents about which pláintiff complains affected his ability to do his job in any way. Plaintiff maintains in his affidavit, however, that there were events in which certain actions were directed at him because of his race, and those incidents altered his work environment by making it uncomfortable in certain respects. (Affidavit of Plaintiff, 6). Part of plaintiffs argument however, asserts that he was wrongfully terminated evidenced by the fact that he believed he was an effective worker up until the point he was removed from the Program Development Department. That is, plaintiff maintains throughout his deposition that his quality of work was equal to that of his contemporaries. Defendant cites to a series of Title VII case law supporting the notion that even patently offensive jokes, slurs, and activities made on a sporadic basis do not create a hostile environment in the workplace. Specifically, defendant cites a case from the Seventh Circuit in which summary judgment was awarded to the defendant employer even though plaintiff