Blackmon v. Army Fleet Support et al
MEMORANDUM OPINION AND ORDER GRANTING def L-3 Army Sustainment LLC's 41 MOTION for Summary Judgment, as further set out in order; further ORDERING that the pretrial hearing currently scheduled for 9/13/2017 is CANCELLED. Signed by Honorable Judge Gray M. Borden on 9/7/17. Furnished to calendar group & WR.(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
L-3 ARMY SUSTAINMENT LLC,
CASE NO. 1:16-cv-572-GMB
MEMORANDUM OPINION AND ORDER
Before the court is a motion for summary judgment filed by Defendant L-3 Army
Sustainment LLC (“L-3”) on June 29, 2017. Doc. 41. Having reviewed the motion, the
parties’ briefs, the evidentiary record, and the applicable law, the court finds that L-3’s
motion is due to be GRANTED, as set forth below.
I. STATEMENT OF FACTS
The facts are derived from L-3’s statement of undisputed facts, Plaintiff Janet
Blackmon’s additional statement of facts, and uncontroverted record evidence. The
majority of the facts are taken from the deposition of Blackmon and from the corporate
documents of L-3. The court must construe the facts and all reasonable inferences arising
therefrom in the light most favorable to Blackmon as the nonmovant. See Frederick v.
Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001).
The court has reviewed the record, including the parties’ filings and evidentiary
submissions, to determine whether genuine issues of material fact exist to be tried.
However, the court need not “scour the record” to make that determination. Tomasini v.
Mt. Sinai Med. Ctr. of Fla., 315 F. Supp. 1252, 1260 n.11 (S.D. Fla. 2004) (internal
quotation marks omitted). Indeed, the court’s June 30, 2017 briefing order requires that
“any discussion of evidence in a brief must include the specific reference, by name or
document number and by page and paragraph or line, to where the evidence may be found
in the supporting evidentiary submission or in any document filed with the court.” Doc.
42 at 2. To the extent the parties’ filings do not comply with these directives, the court
may refuse to consider the referenced evidence or may strike it from the record entirely.
See Doc. 42.
Against this backdrop, and for summary-judgment purposes only, see Cox v. Admin.
U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir. 1994), the court sets forth the
The Parties and the Relationship Between L-3 and the Ft. Rucker Workforce
Blackmon is a former aircraft mechanic who was 54 years old at the time of her
termination.1 Docs. 41-2 at 79 & 46-22 at 24. The basis of this lawsuit is Blackmon’s
alleged discriminatory termination based on her age. Doc. 1.
L-3 is a military contractor. Doc. 41-1 at ¶ 4. L-3 has a contract with the United
States Army to provide aircraft maintenance, support, and logistics services in connection
with the Army’s operations at Ft. Rucker, Alabama. Doc. 41-1 at ¶ 4. L-3 was awarded
There is no dispute that Blackmon’s employment with L-3 ended by virtue of her resigning in lieu of being
terminated. Docs. 46-17 & 46-18. However, the distinction between whether Blackmon resigned or was
terminated is not material to resolving the instant summary-judgment motion, as L-3 concedes it would
have terminated her employment had she not resigned and, more importantly, neither party disputes that
Blackmon was subject to an adverse employment action—a necessary element of her prima facie case. For
these reasons, the undersigned will refer to the cessation of Blackmon’s employment with L-3 as a
the contract to provide these services at Ft. Rucker in 2003 and has been the prime
contractor for these services since that time. Doc. 41-1 at ¶ 4.
L-3’s workforce at Ft. Rucker is unionized. The bargaining unit is represented by
codefendant United Lodge No. 2003, International Association of Machinists and
Aerospace Workers (“IAMAW”).2 Doc. 41-1 at ¶ 6.
The relationship between L-3 and IAMAW is governed by a collective bargaining
agreement. Docs. 41-1 at ¶ 7 & 41-3. L-3 and IAMAW have also agreed upon a set of
work rules that govern employee conduct. Docs. 41-4, 41-5 & 46-16.
encompassed Blackmon’s responsibility to keep and to record her time accurately, a
responsibility this is “self-policed.” Docs. 41-2 at 29-30, 41-8 & 46-16. Other work rules
relevant to Blackmon’s claim are:
Work Rule 13
Employees will not leave assigned work area without
authorization for reasons not connected with
performance of their job.
Work Rule 21
Employees will not leave the facility during working
hours without authorization.
Work Rule 38
Employees will not commit any form of dishonesty or
fraud; including falsifying facts to management, or
falsifying employment application, personal, personnel,
company or government records.
Doc. 46-16. The stated consequence for violating Work Rules 13 and 21 is progressive
discipline up to discharge. Doc. 46-16. The stated consequence for violating Work Rule
38 is discharge. Doc. 46-16.
IAMAW was dismissed from this lawsuit on July 17, 2017. See Doc. 48.
Blackmon testified that she understood L-3’s work rules, that it was her
responsibility to follow them, and that she understood the consequences if she did not
follow them. Docs. 41-2 at 6-9 & 41-6. Blackmon also understood that it was her duty to
follow L-3’s Code of Ethics and Business Conduct, which provides, among other things,
that employees shall accurately record their time and labor charges. Docs. 41-2 at 8-19,
41-7 & 41-9.
Blackmon’s Employment with L-3
Blackmon began working in connection with the contract at Ft. Rucker in 1989.
Doc. 46-22 at 3.
From then until 2003, she worked for two of L-3’s predecessor
contractors—Sikorsky and DynCorp. Doc. 46-22 at 3. Blackmon worked on the contract
for L-33 as an aircraft mechanic from 2003 until July 13, 2015, when she was terminated.
Doc. 46-22 at 4. From June 2014 through her termination, Blackmon served as an aircraft
mechanic at Lucas Stagefield, which was only 1.1 miles from her residence in Elba,
Alabama. Doc. 46-22 at 4-6. Blackmon worked the second shift from 3:00 p.m. until 11:30
p.m. and had a 30-minute meal break. Docs. 41-2 at 22-24 & 46-22 at 14. As a stagefield
mechanic, Blackmon had a large amount of downtime each shift.4 Doc. 41-1 at 38-39.
Blackmon testified that she was hired by Army Fleet Support (“AFS”), a “subsidiary” of L-3, and the
parties refer to AFS and L-3 interchangeably when discussing Blackmon’s employer. Doc. 46-22 at 4.
However, for purposes of this opinion, the court will refer to Blackmon’s employer as L-3.
While many of L-3’s employees work directly at the airfields located on Ft. Rucker (called “home base”),
many employees are assigned to “stagefields,” which are remote air fields located away from Ft. Rucker.
Typically, the helicopters stay at the home base on Ft. Rucker where the majority of maintenance is
performed. Doc. 46-22 at 6. When the Army is ready to use the helicopters, the Army’s instructors and
pilots-in-training fly them from the home base to one of the remote stagefields where they practice
maneuvers and undergo training. Doc. 46-22 at 6. Mechanics assigned to home base perform the majority
of maintenance; stagefield mechanics, on the other hand, have a significant amount of downtime. Doc.
46-22 at 6. Indeed, a stagefield mechanic’s primary task is to be ready to work in the event of unexpected
During this downtime, she would usually sit in the stagefield’s fire house and watch
television for several hours. Doc. 46-22 at 7.
Blackmon contends that it was understood that stagefield mechanics could leave
when incoming flights were not scheduled. More specifically, Blackmon testified that she
was told by her immediate supervisor, Danny Foxworth, that she could leave early on days
when inbound flights to her stagefield were cancelled without asking a supervisor first.
Doc. 46-22 at 8-9 & 13. Even when stagefield mechanics left the field for an extended
period of time or went home early, they still claimed a full eight hours of work, according
to Blackmon. Docs. 41-2 at 28-29 & 46-22 at 8-10. She contends this was compensation
for hours the stagefield mechanics worked over their shifts without claiming overtime pay.
Doc. 46-22 at 8 & 11. While there is no dispute that this procedure was a violation of L-3’s
labor reporting policy, Blackmon understood it to be the normal operating procedure for
stagefield mechanics. Docs. 41-2 at 28-29 & 46-22 at 11-13.
However, Blackmon had two other supervisors during the relevant time period—
Steve Greenwood and Dave Mildenstein. Doc. 46-22 at 9. Blackmon testified that neither
Greenwood nor Mildenstein told her that she could leave her stagefield after inbound
flights were cancelled without asking permission from her supervisor first. Doc. 41-2 at
32-33. There is also no evidence that Foxworth or any other supervisor instructed
Blackmon to claim a full eight hours of work on days she left for an extended period of
maintenance or repairs. Doc. 46-22 at 6. Stagefield mechanics are not directly supervised in person because
their supervisors are located at home base. Doc. 41-2 at 15. As a result, L-3 expects those employees to
use the “honor system” when reporting their hours and whereabouts during shift. Doc. 41-2 at 15-16.
time or ended her shift early after inbound flights were cancelled.
The Events of July 2, 2015
On Thursday, July 2, 2015, Blackmon reported to her assigned stagefield at 3:00
p.m. to start her shift. Doc. 41-2 at 34-35. She remained at the stagefield until 5:45 p.m.,
when her husband picked her up and they drove to a restaurant about 20 miles away in
Enterprise, Alabama for a wedding anniversary dinner. Doc. 46-22 at 16. They arrived at
the restaurant at approximately 6:05 p.m., and Blackmon ordered one or two non-alcoholic
margaritas and an entrée. Docs. 41-2 at 37-41, 46-10 & 46-22 at 16-17. The Blackmons
stayed at the restaurant for about 30 minutes, and then Blackmon’s husband drove her back
to her stagefield. Doc. 41-2 at 36-42. Blackmon does not dispute that she did not ask
permission from a supervisor to leave the stagefield for an hour and ten minutes to eat with
her husband because it was her “common practice to leave.” Docs. 41-2 at 43-44 & 46-22
When Blackmon arrived back at the stage field at approximately 6:55 p.m.,
Lieutenant Joey Snell, a fireman and non-L-3 employee, told her that flights had been
cancelled for the evening and that he was gathering up his equipment. Docs. 41-2 at 44-46
& 46-22 at 18. Blackmon assumed that Lieutenant Snell was leaving for another stagefield.
Doc. 41-2 at 45. Blackmon got in her truck and went home at approximately 7:00 p.m.,
where she stayed for the remaining four and a half hours of her scheduled shift. Doc. 41-2
at 44-47. Blackmon admits that she only worked two hours and 45 minutes on July 2.
Unbeknownst to Blackmon, another L-3 employee, Sabra Distasio, and her father
were at the same restaurant as the Blackmons on July 2, and they saw them eating dinner
together. Docs. 41-25 & 46-17. Around 6:15 p.m. that evening, Distasio (who was on
scheduled vacation time) called her supervisor, Mildenstein, to ask if Blackmon was
scheduled to be off that day. Docs. 41-14 & 41-15 at 3. Mildenstein responded “no” and
asked why Distasio was making the inquiry. Docs. 41-14 & 41-15 at 3. Distasio said that
she and Blackmon were at the same restaurant and that Blackmon appeared to be drinking
alcohol. Docs. 41-14, 41-15 at 3, 46-7 & 46-17. Blackmon disputes that she was drinking
alcohol during dinner on July 2, and there is no evidence that Distasio’s report that
Blackmon was drinking alcohol was based on anything other than Distasio’s own
speculation. Docs. 46-10, 46-17 & 46-22 at 17. Therefore, the court will construe this fact
in the light most favorable to Blackmon and conclude that she was not drinking alcohol
during the dinner in question.5
Following Distasio’s report, Mildenstein asked Foxworth to text Blackmon and ask
her to report to Lowe Field (a homefield located on Ft. Rucker). Docs. 41-14 & 41-15 at
4-5. Foxworth texted Blackmon at 6:55 p.m. and asked her to report for training at Lowe
Field at 8:00 p.m. Docs. 41-2 at 53-54, 41-13, 46-7 & 46-22 at 20. When Blackmon did
not promptly respond, Foxworth went to Blackmon’s stagefield to look for her but she was
not there. Docs. 41-2 at 48, 41-26 & 46-7.
At 7:49 p.m., Blackmon responded to Foxworth’s text, stating that she will try to
report for training but she locked her keys in her vehicle when she got to work and was
In any event, the evidence shows that whether Blackmon was drinking alcohol on the night in question
did not play a role in L-3’s decision to terminate her.
trying to get a locksmith out to the stagefield. Docs. 41-2 at 55-56, 41-13 & 46-22 at 21.
Blackmon concedes that her statements to Foxworth in this text about locking her keys in
her vehicle at work and trying to get a locksmith were not true.6 Docs. 41-2 at 37, 56 &
46-22 at 16. Blackmon further admits that she lied to Foxworth because she did not want
to drive back to the stagefield after she had already returned home for the night. Doc. 41-2
Around this same time (Blackmon believes around 7:10 p.m.), she received a call
from Lieutenant Snell advising her that Foxworth had been to the stagefield looking for
her. Doc. 41-2 at 48. One of Blackmon’s co-workers (whose identity is unclear from the
record) told Foxworth that Blackmon was at the store. Doc. 21-21. Sometime later that
night, Blackmon called Lowe Field (home base) and spoke to another one of her
supervisors, Greenwood. She asked Greenwood if she still needed to report for training
that night and he told her “no.” In that conversation, Blackmon told Greenwood that she
had been at the store when Foxworth had come to look for her earlier that evening, which
was not true. Doc. 41-2 at 57-59.
Mildenstein then told Foxworth to text Blackmon again and ask if she needed to
report anything to give her a chance to use any leave time. Doc. 41-14. Blackmon did not
respond. Doc. 41-14. As a result, Mildenstein instructed Foxworth to give Blackmon an
Blackmon now claims that she had indeed locked her keys in her vehicle but had done so at home rather
than at work, and that her statement to Foxworth that she had locked her keys in her vehicle at work was
made in “error.” Docs. 41-2 at 56, 46-1 at 4 & 46-22 at 21. In fact, Blackmon attempts to explain all of her
untruths regarding her whereabouts and activities on July 2 as mistakes or confusion on her part. Docs. 41-2
unexcused absence for July 2. Doc. 41-14.
L-3 was closed on Friday, July 3, for the 4th of July holiday. Doc. 41-2 at 49. On
Monday, July 6, Blackmon was assigned to work at Lowe Field. Doc. 46-7 at 2. When
Blackmon reported for work that day, Mildenstein asked her how many hours she wanted
to report for July 2, and she responded “eight.” Doc. 46-7 at 3. Blackmon testified that she
claimed a full eight hours of work on July 2 even though she only worked two hours and
45 minutes because she had been previously told by Foxworth that, if her flights to her
stagefield cancelled, she could go home. Doc. 41-2 at 61.
On Friday, July 10, Blackmon received a text from Anthony Holton, a union
representative, telling her that she was scheduled for a meeting at the union hall on
Monday, July 13, but giving no advanced notice of the meeting’s purpose. Docs. 46-12 &
46-22 at 33. On July 13, Blackmon attended the meeting along with Holton and two other
union representatives, Steve Crumb and Jimmy Cotter; Penny Poole, Manager of Labor
Relations and Benefits for L-3; Mike Lawson, Director of Human Resources for L-3; and
Brad Kitch, Director of Lowe Field. Docs. 41-2 at 63, 41-27 & 41-28. The meeting lasted
about 45 minutes to an hour. Docs. 41-2 at 63 & 46-22 at 27-28.
During the meeting, Blackmon was questioned about the events of July 2 and her
whereabouts. She began by repeating her untrue statement about having locked her keys
in her vehicle at work. Docs. 41-2 at 63-68 & 41-27. When pressed further, Blackmon
lied again, this time claiming that she had gone to the store to get some dinner, then went
by her house to let her dogs outside, and finally returned to the stagefield; when she
returned to the stagefield, she was told by a coworker that someone had been by looking
for her. Docs. 41-2 at 67-68 & 41-27. Blackmon was then directly asked by Lawson
whether she had been in Enterprise on July 2, and she responded “no.” Docs. 41-2 at 67-69
& 46-22 at 22. Lawson explained that a manager saw her in Enterprise that night, and
Blackmon again denied that she was there. Doc. 41-27. Blackmon testified that she made
these untrue statements during the meeting because she was under pressure and because
she “couldn’t remember exactly” what had happened 11 days earlier. Doc. 46-22 at 22, 29.
At this point in the meeting, Cotter requested a break, and he met with Blackmon
privately. Docs. 41-2 at 87-89 & 21-27. During this break, Cotter told Blackmon that if
she had indeed been in Enterprise that day, she should admit it to the group. Doc. 41-2 at
88. Blackmon then returned to the meeting and admitted that she had been in Enterprise
on July 2 eating dinner with her husband. Doc. 41-2 at 88 & 109; Doc. 41-27. Blackmon
concedes that her statements during the meeting about her whereabouts on July 2 (i.e., that
(1) she had gone to the store to get some dinner; (2) that she had gone by her house to let
her dogs out; (3) that she had locked her keys in her vehicle at work; and (4) that she was
never in Enterprise eating dinner) were not true. Doc. 41-2 at 68-70. Blackmon clarified
that she had locked her keys in her truck, but this happened at home after she had already
returned for the night. Doc. 21-27.
Blackmon was then presented with a letter of termination, informing her that she
was being terminated for violating Work Rules 13, 21 and 38. Docs. 41-17 & 46-18.
Blackmon concedes that the factual statements in the letter of termination are accurate.
Docs. 41-2 at 107 & 46-22 at 31. She also concedes that she violated Work Rule 38 when
she falsely reported to Foxworth that she had locked her keys in her vehicle at work on
July 2. Doc. 46-22 at 23. According to Blackmon, Poole told her that it would be better
for her future employment opportunities if she resigned in lieu of termination. Docs. 41-2
at 81 & 46-22 at 26. Blackmon also alleges that Jimmy Cotter (her union steward and not
a member of L-3 management) told her, after the decision had been made to end her
employment, that it would be easier to find another job “at her age” if she resigned rather
than be terminated. Docs. 41-2 at 81 & 46-22 at 26. Blackmon prepared a handwritten
letter of resignation, which was submitted to and accepted by L-3 on July 13, 2015.7 Doc.
26-19. Blackmon testified that she resigned because she “was just wanting to get the hell
out of there.” Doc. 41-2 at 110.
Blackmon’s position was filled by an individual six years older than Blackmon.
Docs. 41-1 at ¶ 8 & 41-2 at 90–91. In turn, the immediate replacement of that individual
was 11 years older than Blackmon. Docs. 41-1 at ¶ 9 & 41-2 at 90–91. In fact, Blackmon’s
own husband testified that most of the people who work at the stagefields are “on up in
age” because you need close to 25 years of seniority to qualify for a position at the
stagefields. Doc. 41-12 at 10-11.
Blackmon filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on October 30, 2015, alleging that her termination was the result
In addition to termination, Blackmon was also suspended for the dates July 13 and 14, 2015. Doc. 46-18.
of age discrimination. Doc. 41-21. Blackmon claims there are two comparators who
engaged in similar conduct but were disciplined less severely—Distasio and Daniel Smith.
However, Blackmon admits that she has no knowledge or evidence that these two
individuals violated Work Rule 38 by lying to management the same way she did. Doc.
41-2 at 104-05.
On May 10, 2016, Blackmon received a notice of rights to sue from the EEOC.
Doc. 1. On July 14, 2016, she filed a complaint in this court against L-3 and IAMAW.
Doc. 1. IAMAW has already been dismissed from the lawsuit; thus, the only claim
remaining is Blackmon’s claim against L-3 for age discrimination. Docs. 1 & 48. L-3 has
moved for summary judgment on that claim, and Blackmon has responded. Docs. 41, 46
& 49. The parties have consented to the exercise of full jurisdiction by the undersigned
United States Magistrate Judge, and the matter is now ripe for resolution by the court.
II. STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). Rule 56 mandates the entry of summary judgment when, after adequate time for
discovery and upon motion, a party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the initial burden of proving the absence of a
genuine dispute of material fact. Id. at 323. The burden then shifts to the nonmoving party
to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324
(internal quotation marks omitted). A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Any factual disputes will be resolved in the nonmoving party’s favor when
sufficient competent evidence supports the non-moving party’s version of the disputed
facts.” Jackson v. City of Homewood, Ala., 2015 WL 5011230, at *2 (N.D. Ala. Aug. 21,
2015) (citing Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002)). However,
“mere conclusions and unsupported factual allegations are legally insufficient to defeat” a
properly supported summary-judgment motion. Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Nor will “[a] mere ‘scintilla’ of evidence supporting the opposing
party’s position . . . suffice; there must be a showing that the jury could reasonably find for
that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477
U.S. at 242).
Blackmon’s sole claim against L-3 is for discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”). Under the ADEA, it is unlawful for an
employer to discharge or otherwise to discriminate against an employee who is at least 40
years old on the basis of her age. See 29 U.S.C. §§ 623(a)(1) & 631(a). A plaintiff may
support her ADEA claim through either direct or circumstantial evidence. King v. Adtran,
626 F. App’x 789, 791 (11th Cir. 2015) (citing Mazzeo v. Color Resolutions Int’l, LLC,
746 F.3d 1264, 1270 (11th Cir. 2014)).
In cases like this, where the plaintiff supports her claim with circumstantial
evidence,8 the court applies the burden-shifting framework established in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff
must first establish a prima facie case of age discrimination. See, e.g., Mazzeo, 746 F.3d at
1270. If she does this, the burden of production shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the challenged employment action. Id. If the
employer satisfies this burden, the burden then shifts back to the plaintiff to demonstrate
that the proffered reason is merely a pretext for unlawful discrimination. Id.
Ultimately, however, to “prevail on an age discrimination claim, the plaintiff must
prove by a preponderance of the evidence that [her] age was the ‘but for’ cause of [her]
termination.” King, 626 F. App’x at 790-91 (citing Mazzeo, 746 F.3d at 1270) (alterations
in original); Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176 (2009) (holding that the
language “because of” in the ADEA statute means that a plaintiff must prove that
discrimination was the “but-for” cause of the adverse employment action); Sims v. MVM,
Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (holding that, in the Eleventh Circuit, the
McDonnell Douglas framework continues to apply to ADEA claims post-Gross). In other
words, “the plaintiff must prove that her age ‘actually motivated the employer’s decision.
That is, the plaintiff’s age must have actually played a role [in the employer’s
Although Blackmon contends that Cotter told her it would be easier for her to find another job “at her
age” if she resigned in lieu of termination, neither party contends that this lone statement by a non-L-3
employee, made after L-3 had already decided to end Blackmon’s employment, is sufficient to constitute
direct evidence of age discrimination. Instead, both parties rely on circumstantial evidence, which is
analyzed under the burden-shifting McDonnell Douglas framework. Docs. 41 & 46-21.
decisionmaking] process and had a determinative influence on the outcome.’” Brown v.
Northside Hosp., 311 F. App’x 217, 222 (2009) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 141 (2000) (internal quotation marks omitted) (alteration in
There is no dispute that Blackmon has established the first three elements of her
prima facie age claim—(1) she was a member of the protected class of persons between
the ages of 40 and 70 (she was 54 at the time of termination); (2) she was subject to an
adverse employment action (she was terminated); and (3) she was qualified to do the job
from which she was terminated (she was an aircraft mechanic for L-3 for more than ten
years). E.g., Horn v. United Parcel Serv., Inc., 433 F. App’x 788, 792 (11th Cir. 2011).
What the parties dispute is whether Blackmon has met her burden with respect to the fourth
and final element of her prima facie case. L-3 contends that Blackmon must prove that she
was replaced by someone substantially younger and that such a showing is the only way
Blackmon can establish the final element of her prima facie case. See Doc. 41. Blackmon,
on the other hand, contends that she is not required to show at the prima facie stage that
someone substantially younger filled the position from which she was discharged; rather,
she can meet this burden by identifying a similarly situated comparator outside of her
protected class who was treated more favorably than her. See Doc. 46-1.
The court agrees with Blackmon that she does not have to show that she was
replaced by a substantially younger person to meet the final element of her prima facie
case. See Washington v. United Parcel Serv., Inc., 567 F. App’x 749, 751 (11th Cir. 2014);
see also Pettigrew v. Atlanta Indep. Sch. Sys., 2017 WL 3446299, at *6 (N.D. Ga. June 19,
2017). The Eleventh Circuit has explained that, “even if a plaintiff is not replaced by a
member outside [her] protected class, [she] may still satisfy the last prong of the prima
facie case requirement by identifying similarly situated comparators outside of [her]
protected class who were treated more favorably.” Horn, 433 F. App’x at 792 (citing Nix
v. WLCY Radio/Rahall Comm’ns, 738 F.2d 1181, 1185-86 (11th Cir. 1984)). There is no
dispute that Blackmon’s position was filled by someone older than Blackmon. Doc. 41-1
at ¶ 8-9. Thus, for Blackmon to meet her burden with respect to the final element of her
prima facie case, she must identify a similarly situated comparator outside of her protected
class who was treated more favorably than her. Blackmon has failed to make such a
“A relevant comparator is an employee who is similarly situated to the plaintiff ‘in
all relevant respects.’” Horn, 433 F. App’x at 792 (quoting Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1091 (11th Cir. 2004)). “In determining whether a comparator is similarly
situated, we inquire ‘whether the employees are involved in or accused of the same or
similar conduct and are disciplined in different ways.’” Id. (quoting Burke-Fowler v.
Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006)).
“And ‘[w]hen making that
determination, we require that the quantity and quality of the comparator’s misconduct be
nearly identical to prevent courts from second-guessing employers’ reasonable decisions.’”
Id. (quoting Burke-Fowler, 447 F.3d at 1323).
Blackmon identifies two comparators in an attempt to meet the fourth element of
her prima facie case—Sabra Distasio and Daniel Smith. Both Distasio and Smith are
stagefield mechanics who are substantially younger than Blackmon. They are not similarly
situated comparators, however, because they did not engage in nearly identical conduct.
Blackmon was terminated for violating Work Rules 13, 21, and 38, but it is apparent from
the evidence that the primary basis for her termination was her violation of Work Rule 38
by repeatedly lying to her supervisors and L-3 management. Indeed, Blackmon was
untruthful to her employer on several occasions between July 2 and July 13, the date of her
termination, including (1) admittedly lying to Foxworth on July 2 when she texted him that
she may not be able to make it to Lowe Field for training later that night because she had
locked her keys in her vehicle at work and was trying to get a locksmith there;9 (2) telling
Greenwood on July 2 that she was at the store when Foxworth was looking for her at the
stagefield; (3) telling Mildenstein on July 6 that she was claiming eight hours of work for
July 2 when she had been at the stagefield for less than three hours; (4) telling L-3
management during the group meeting on July 13 that she had locked her keys in her
vehicle at work; (5) telling L-3 management during the group meeting on July 13 that she
had gone to the store on July 2 to get dinner, had gone by her house, and then returned to
the stagefield only to learn that Foxworth had been at the stagefield looking for her; and
(6) repeatedly telling L-3 management during the group meeting on July 13 that she was
not in Enterprise on July 2 (only to later admit that she was).
There is no evidence that Distasio or Smith violated Work Rule 38 in such an
Blackmon claims that this untruth was not intentional but was the result of her “mistexting” Foxworth on
July 2 that she had locked her keys in her truck at work (rather than at home). However, when presented
with the opportunity to correct this misstatement at the July 13 meeting, Blackmon did not; she instead
repeated that she had locked her keys in her truck while at work on July 2. She also admitted in her
deposition that she told Foxworth this because she did not want to drive back to the stagefield from her
egregious manner as Blackmon and received less severe discipline. Blackmon claims that
Smith perpetuated a similar lie when he left his work area to get a snack at the store during
scheduled or volunteered overtime because he allegedly “didn’t know any better.” Doc.
46-21. Blackmon argues that Smith should not be able to claim that he “didn’t know any
better” when he would have read and acknowledged the work rules that prohibit leaving
the work area without prior authorization. This argument fails for several reasons.
First, Blackmon presumes that Smith read and acknowledged the relevant work
rules without pointing to any evidence that he, in fact, did. Doc. 46-21 at 15–16 (“Mr.
Smith would have certainly read and acknowledged the rules.”). More significantly, Smith
and Blackmon did not engage in “nearly identical” misconduct. There is evidence that
Smith left his work area (after Blackmon had already been terminated) for a few minutes
on one occasion and was suspended, while Blackmon was gone for over five hours of her
eight-hour shift on July 2, lied about her whereabouts to her supervisors and L-3
management when questioned, and then claimed a full eight hours of pay when she worked
less than three hours that day. Even if the court generously construed Smith’s claim that
he left his work station because he “didn’t know any better” as an untruth, this pales in
comparison to the series of lies that Blackmon repeatedly told her supervisors and L-3
management. More importantly, the undisputed evidence shows that Smith admitted to
having left his work station when asked; there is no evidence that he lied about it,
repeatedly, to multiple different supervisors and members of management. There is also
no evidence that Smith falsified his time card on the day he went to the store in violation
of Work Rule 38 or that the decisionmakers were aware of Smith’s activities at the time
they terminated Blackmon. Doc. 41-2 at 104. Indeed, it would have been impossible for
the decisionmakers to have been aware of Smith’s misconduct at the time Blackmon was
terminated because his misconduct occurred after her termination. Doc. 41-2 at 89–90; see
Smith v. Int’l Paper Co., 160 F. Supp. 2d 1335, 1345 (M.D. Ala. 2001) (explaining that
disparate treatment cannot be shown without first showing that the employer was aware of
the comparator’s misconduct). In short, even when drawing all reasonable inferences in
Blackmon’s favor, the quantity and quality of Smith’s misconduct in no way matches
Blackmon’s. Thus, he cannot be considered a similarly situated comparator.
Distasio also is not a sufficient comparator. Blackmon claims that Distasio has
repeatedly falsified time cards and lied to L-3 management about the hours she worked.
To support this claim, Blackmon submitted hours of surveillance footage she and her
husband captured while they were “hunting” Distasio after Blackmon was terminated.
However, even if the court assumes that the video footage submitted by Blackmon is
accurate and credible, Blackmon concedes that this evidence was captured after her
termination. See Young v. CareAlliance Health Servs., 2014 WL 4955225, at *8 (D.S.C.
Sept. 29, 2014) (rejecting plaintiff’s claim that she had put forth evidence from which a
reasonable jury could conclude that she was terminated because of her disability when
comparator misconduct occurred after she had already been terminated).
Moreover, even considering Blackmon’s evidence that Distasio was away from her
work station for an impermissible amount of time on September 9 and 24, 2015 and June
22, 2016, there is no evidence that she did not have permission to be away from her work
station for these amounts of time. Doc. 41-2 at 92. There is no substantiated evidence that
Distasio falsified time-cards, as Blackmon claims, and no evidence that Distasio violated
Work Rule 38 in a similar manner as Blackmon. Indeed, there is no evidence that she was
asked by her supervisors and other L-3 management whether she was away from her work
station for an impermissible amount of time on the days in question without prior approval
and she repeatedly lied about it. Doc. 41-2 at 105. There is also no evidence that any of
the decisionmakers in Blackmon’s case were aware of Distasio’s purported misconduct at
the time the decision was made to terminate Blackmon’s employment. Doc. 41-2 at 89; see
Howell v. Morrison Mgmt. Specialists, Inc., 2013 WL 6568935, at *25 (N.D. Ala. Dec. 13,
2013) (“At a minimum, the plaintiff must show not only that the other employee was
involved in or accused of the same or similar conduct and disciplined differently, but also
that the employer was aware of the would-be comparator’s misconduct.”) (internal
quotation marks and citation omitted).
In short, because Blackmon’s misconduct is materially different in quantity and
quality from that of Smith and Distasio—the only two purported comparators—Blackmon
has failed to establish the fourth element of her prima facie case—that similarly situated
comparators who were younger engaged in similar misconduct but were not terminated.
See Jackson, 2015 WL 5011230, at *7 (granting summary judgment in employer’s favor
when comparators did not engage in nearly identical conduct); see also Horn, 433 F. App’x
at 794-96 (holding that district court correctly concluded that the plaintiff had failed to
make out prima facie case of age discrimination when comparators were not similarly
situated because they had not been involved in or accused of nearly identical misconduct
and disciplined less severely); Miller-Goodwin v. City of Panama City Beach, 385 F. App’x
966, 973 (11th Cir. 2010) (holding that comparators did not establish causation because
“there has been no showing that any [comparator] violated all of the Rules and Regulations
that resulted in [plaintiff’s] termination or that their alleged misconduct was nearly
identical to [plaintiff’s]”). Moreover, because Blackmon has not proffered any other
evidence indicating that L-3 discharged her because of her age, she has wholly failed to
demonstrate that her age actually motivated L-3’s decision to terminate her. Accordingly,
summary judgment is due to be granted in L-3’s favor on Blackmon’s age discrimination
For the reasons set forth above, it is ORDERED that Defendant L-3 Army
Sustainment LLC’s motion for summary judgment (Doc. 41) is GRANTED. It is further
ORDERED that the pretrial hearing currently scheduled for September 13, 2017 is
A final judgment consistent with this opinion will be entered separately.
DONE this 7th day of September, 2017.
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