Smith v. Alltel Communications, Inc. (MAG+)

Filing 41

REPORT AND RECOMMENDATIONS that 31 MOTION for Summary Judgment be GRANTED and this case be DISMISSED; Objections to R&R due by 11/16/2009. Signed by Honorable Wallace Capel, Jr on 11/3/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION J A M E S A. SMITH, ) ) P l a in tif f , ) ) v. ) ) ALLTEL COMMUNICATIONS, INC., ) ) D e f e n d a n t. )

C A S E NO. 2:08-cv-393-MHT

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE C u rre n tly pending before the undersigned Magistrate Judge is Defendant Alltel C o m m u n ic a tio n , Inc.,'s ("Defendant" or "Alltel") Motion for Summary Judgment (Doc. # 3 1 ), supporting Brief (Doc. #32), and evidentiary materials. Plaintiff James A. Smith ( " P la in t if f " or "Smith") has filed a Response (Doc. #34) and additional evidentiary materials. F o r the reasons that follow, the Magistrate Judge RECOMMENDS that the Motion for S u m m a ry Judgment (Doc. #31) be GRANTED. I. BACKGROUND O n May 27, 2008, Plaintiff, proceeding pro se, filed a form "EEOC Complaint" (Doc. # 1 ) in which he alleged that Defendant, in violation of Title VII of the Civil Rights Act of 1 9 6 4 , unlawfully terminated his employment on January 6, 2006.1 The Complaint alleged

Specifically, Plaintiff indicated in the Complaint that his employment with D e f e n d a n t ended on January 6, 2006, and that the alleged discrimination against him o c c u rre d on that same date. However, elsewhere in the Complaint Plaintiff alleged that h e was "discharged of [his] employment at Alltel Communication on March 12, 2006."

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th a t Sherman M. Fisher, his former supervisor, was the individual responsible for such d isc rim in a tio n . Plaintiff stated that he was discriminated against based on his race and, in su p p o rt, alleged that Mr. Fisher, "a white male, prohibited [Plaintiff] and another black male fro m riding or working together while the other white employees were p[er]mitted to work to g e th e r and often rode together." Plaintiff also appeared to allege that the reasons given for h is termination, including "actual or threatened deliberate misconduct committed after p r e v io u s warning," were false because he had not "received any written notification or w a rn in g s or no prior disciplinary actions." Plaintiff further claimed that he filed charges with th e Equal Employment Opportunity Commission ("EEOC") on April 20, 2006, and that the E E O C issued him a Notice-of-Right-to-Sue letter which he received on February 29, 2008. P lain tiff also filed a Motion To Proceed In Forma Pauperis (Doc. #2) with his Complaint. On September 22, 2008, this matter was referred to the undersigned for "consideration a n d disposition or recommendation on all pretrial matters as may be appropriate." Order (D o c. #3). On September 29, 2008, the Court granted Plaintiff's Motion To Proceed In F o r m a Pauperis. Order (Doc. #4). On November 18, 2008, Defendant filed an Answer (Doc. # 8 ) to the Complaint, in which Defendant essentially denied any allegation of wrongdoing an d asserted forty-one affirmative defenses to Plaintiff's suit. In advance of the Court's J a n u a ry 13, 2009, scheduling conference, counsel noticed her appearance (Doc. #15) on b e h a lf of Plaintiff. Subsequently, the Court granted counsel's Motion to Amend (Doc. #20) th e Complaint, and the Amended Complaint (Doc. #22) was docketed on February 2, 2009.

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D e f e n d a n t did not file an Amended Answer in response to the Amended Complaint.2 P la in tif f 's Amended Complaint restates that his suit is brought under Title VII of the C iv il Rights Act of 1964, and adds as additional bases for the suit "the 1991 Civil Rights Act, 4 2 U.S.C. 1981." Amended Complaint (Doc. #22) at ¶¶2-3. In the Amended Complaint, P la in t if f alleged that he filed his EEOC charge on May 10, 2006, and amended it on August 2 0 , 2007. Plaintiff further alleged that "his termination was based upon his race and that any re a so n s given for his termination are merely pretext and the true reasons are because of his ra c e, African-American." Amended Complaint (Doc. #22) at ¶13. The Amended Complaint d o e s not present any specific factual allegation of discriminatory conduct by Defendant other th a n Plaintiff's conclusion that his termination was due to his race. O n July 15, 2009, Defendant filed the instant Motion for Summary Judgment (Doc. # 3 1 ), Brief in Support (Doc. #32), and evidentiary materials. Defendant asserts it is entitled

While Defendant did not file an Amended Answer, Defendant did file a M o tio n to Strike [the] Jury Demand (Doc. #23) from Plaintiff's Amended Complaint due to Plaintiff's failure to demand a jury in his original complaint. In response to D e f e n d a n t's Motion, Plaintiff withdrew his jury demand. Response (Doc. #25). Accordingly, the Court granted Defendant's Motion and ordered that the jury demand be stricke n from the Amended Complaint. Order (Doc. #26). T h e Court further notes that it appears Defendant was not necessarily required to s u b m it an Amended Answer, see, e.g., Stanley Works v. Snydergeneral Corp., 781 F. S u p p . 659, 664-65 (E.D. Cal. 1990), as Defendant maintained that Plaintiff's Amended C o m p l a in t is "based on the same facts and circumstances, and asserted the same claims, a s the Plaintiff's initial Complaint." Motion (Doc. #23) at 1. In acquiescing to D e f en d a n t's Motion to Strike, and the underlying assertion that the Amended Complaint p re se n ts no new issues, Plaintiff essentially confirmed that Defendant's Answer is s u f f ic ie n t to serve as a response to Plaintiff's Amended Complaint. 3

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to summary judgment for the following reasons: 1) all of Plaintiff's Title VII claims are tim e -b a rre d ; 2) all of Plaintiff's § 1981 claims predating January 29, 2005, are time-barred; 3 ) Plaintiff cannot establish a prima facie case of race discrimination; 4) that Defendant's re a so n s for terminating Plaintiff's employment are legitimate and non-discriminatory; and 5 ) after-acquired evidence of Plaintiff's consumption of alcohol while operating his company v e h icle forecloses Plaintiff from recovering damages. On August 4, 2009, Plaintiff filed his R e sp o n s e (Doc. #34) to the Motion and on August 12, 2009, Defendant filed a Reply (Doc. # 3 5 ). II. S T A T E M E N T OF UNDISPUTED FACTS The Court has carefully considered all deposition excerpts and documents submitted in support of the motions. The submissions of the parties, viewed in the light most favorable to the non-moving party, establish the following relevant facts: P l a i n tif f is an African-American male over nineteen years of age. Defendant is a c o rp o ra tio n that provides telecommunication services. Plaintiff was hired by Defendant in 1 9 9 4 , as an Installation Technician. Either at the time of his hiring, or during the course of h is employment, Plaintiff received copies of the Alltel Employee Handbook, the Ethics in th e Workplace Policy, 3 Alltel's Code of Conduct, and Alltel's Working With Integrity

In relevant part, Alltel's Ethics in the Workplace Policy specifically forbids e m p lo ye e s from using Alltel "resources to conduct private business" and expressly f o rb id s the falsification or alteration of "any" Alltel records or other documentation. See E th ic s In The Workplace, ex. C to Def.'s Mot. For Summ. Judg. (Doc. #31) at 5, 7. 4

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P o lic y.4 Plaintiff also received Defendant's "Procedures To Follow When Driving Any A llte l Owned Vehicle." This policy specifically forbids, "[a]t all times, on and off duty, d riv in g an Alltel vehicle after consuming alcohol" and warns that a violation "will result in a u to m a tic suspension and possible termination." Ex. G to Def.'s Mot. For Summ. Judg. (D o c . #21). In 1996, Plaintiff was promoted from Installation Technician to Network Technician. A llte l utilized six to seven Network Technicians in servicing the region which includes M o n tg o m e ry, Alabama. Network Technicians are responsible for maintaining cell sites in th e ir specified area to ensure their functionality in providing Alltel's communications s e rv ic e s. Plaintiff was assigned the Montgomery Metropolitan Service Area (MSA), which inclu d ed twenty-one separate cell sites. The Montgomery MSA "core" functioned as a sort o f nerve center for all of Alltel's cell sites in the region. As such, the proper maintenance o f the Montgomery "core" was integral to Alltel's ability to provide its services throughout

In relevant part, the Working With Integrity Policy, in a section titled In teg rity Of Company Books and Records, stresses the importance of proper and accurate re c o rd in g of employees' hours worked in each pay period. Importantly, it is considered a " F a ls if ic a tio n or Alteration of Records" to "inflate payroll hours or transfer hours from o n e period to another," as in, for example, recording anticipated overtime hours from a f u tu re pay period as hours worked during a current pay period. See ex. F to Def.'s Mot. F o r Summ. Judg. (Doc. #21) at 5-6. The Working With Integrity Policy also states D ef en d an t's anti-discrimination policy and instructs employees on how to report p e rc e iv e d discrimination so that it may be addressed by the company. Id. at 8 ("If you b e lie v e that you have been discriminated against or harassed, you should report that d is c rim in a tio n or harassment to your supervisor, his or her supervisor, your human re so u rc e s department representative, the Director of Employee Relations, or the Working W ith Integrity helpline."). 5

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th e region. Plaintiff was the only African-American Network Technician until some time in 2 0 0 2 , when Michael Jackson was hired as a Network Technician. Plaintiff's immediate s u p e rv is o r until September, 2001, was the Network Manager, Robert Walley. Also during th is time, David Green served as Alltel's Regional Vice President of Engineering. In this p o s itio n , Mr. Green was responsible for all personnel issues in Plaintiff's "South Area N e tw o rk ," including hiring and firing decisions involving Network Technicians. Also during th is time, Mark Rowe served as Alltel's Director of Engineering. Mr. Rowe "oversaw the m a in te n a n ce and repair of wireless networks" and "assisted in the oversight of personnel is s u e s " involving Alltel employees, including Plaintiff. Mr. Rowe conducted a performance evaluation on Plaintiff in August of 2001. Mr. R o w e deemed Plaintiff "developing," which was the lowest of the three classifications 5 determ in ed during an evaluation. See Engineering/Technical Non-Exempt Performance Plan, e x . 11 to Pl.'s Resp. (Doc. #34) at 1. Alltel's evaluation scores the employee's performance in "Core Competencies" and "Behavioral Statement" along a numeric one through seven s c a le where one is "Trainee" and seven is "Expert." Plaintiff scored two or less, meaning le s s than "Proficient," in every category. Id. Mr. Rowe also noted several "issues" regarding P la in t if f ' s performance in 2001, including unexplained overtime, tardiness, and lack of e x p e c te d knowledge. Id. at 2. Mr. Rowe noted Plaintiff's complaint that he believed his

The three classifications utilized by Alltel were, in descending order, " e x c e p tio n a l," "performing," and "developing." 6

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p re v io u s supervisor, supposedly Mr. Walley, had "held him back and did not value him." Id. M r. Rowe resolved not to place Plaintiff on a Performance Improvement Plan ("PIP")6 at that tim e , leaving that action to be considered by the then-incoming Network Manager, Sherman M ic h a el Fisher. Mr. Fisher evidently decided not to place Plaintiff on a PIP. In the f o llo w in g years, Plaintiff continued working as a Network Technician under Mr. Fisher, and, a t least according to Mr. Fisher, flourished as his performance improved from the 2001 e v a lu a tio n . Mr. Fisher generally considered Plaintiff a "good team member," and, in annual p e r f o r m a n c e reviews, always deemed Plaintiff "performing" or, in one instance in 2005, " e x c e p tio n a l." Fisher Dep., ex. L to Def.'s Mot. For Summ. Judg. (Doc. #31) at 20-21. According to Mr. Fisher, Plaintiff "always got merit raises." During the week including December 29, 2005, Mr. Fisher was on vacation. In his a b se n c e , Mr. Fisher had delegated the task of assigning Network Technicians to handle s e rv ic e outages to Felix Thaggard, a Switch Technician.7 On the morning of December 29, 2 0 0 5 , Mr. Thaggard assigned Plaintiff to an outage at a cell site in Tallassee, Alabama. This s ite was outside of Plaintiff's assigned area, but it was not unusual for Network Technicians to be assigned to problems at sites outside of their area if they were near the problem site or

According to the deposition testimony of Mr. Fisher, a PIP "is the last step b e f o re termination." Fisher Dep., ex. L to Def.'s Mot. For Summ. Judg. (Doc. #31) at 40 l. 11-19. After being placed on a PIP, an employee typically has about six months in w h ic h to improve their performance or suffer termination. Id. A s a Switch Technician, Mr. Thaggard would generally be one of the first p e rs o n s alerted to a problem at a distant cell site which was linked into the switch. 7
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if the technician over that site was unavailable. Plaintiff visited the Tallassee site but was n o t able to remedy the problem at that time because he lacked necessary tools or equipment. P la in tif f told Mr. Thaggard that he could not fix the site without certain parts and that he had s o m e things he needed to tend to, including picking-up his wife. Plaintiff left the Tallassee site and traveled to the Birmingham, Alabama, area in his company vehicle so that he could a tte n d his daughter's high school basketball game and bring his wife back to Montgomery. S m ith Dep., ex. B to Def.'s Mot. For Summ. Judg. (Doc. #31) at 92-93. Plaintiff did not tell M r. Thaggard that he would be traveling to the Birmingham area for such purposes. Id. at 9 4 l. 2-8.8 Hours later, Mr. Thaggard phoned Plaintiff and assigned another outage, in L o w n d e s b o r o , Alabama, to Plaintiff. Mr. Thaggard assigned this outage to Plaintiff because L o w n d e sb o ro is close to Montgomery and he believed Plaintiff was in the Montgomery area. P lain tiff states that he "told Thaggard that he was an hour and a half away, but would get [to L o w n d e sb o ro ] as soon as possible." Pl.'s Resp. (Doc. #34) at 14. Mr. Thaggard eventually d i sp a t c h e d another technician to fix the outages at both the Tallassee and Lowndesboro sites.

It is Plaintiff's contention that he had previously discussed with Mr. T h a g g a rd the prospect of his using "comp time" for a few hours on December 29, 2005. Smith Dep., ex. B to Def.'s Mot. For Summ. Judg. (Doc. #31) at 78 l. 2-21. Mr. T h a g g a rd has no recollection of such discussion and has testified that he was not e m p o w e re d to grant "comp time" to Network Technicians. Thaggard Dep., ex. M to D e f .'s Mot. For Summ. Judg. (Doc. #31) at 42 l. 3-8. Plaintiff also contends that he left f o r Birmingham with the impression that Mr. Thaggard would be dispatching another tech n ician to the Tallassee site with the required parts. Smith Dep. at 88 l. 13-22. Mr. T h a g g a rd states that he believed Plaintiff was going to pick-up the parts, quickly handle h is personal matters, and return to the Tallassee site. Mr. Thaggard believed Plaintiff w o u ld remain in the Montgomery area. Thaggard Dep. at 36 l. 5-17; 43 l. 7-9. 8

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W h en Plaintiff returned to Montgomery he dropped-off his wife and visited the Lowndesboro s ite after it had been fixed. On his time sheet for December 29, 2005, Plaintiff recorded eight h o u r s of regular work, one hour of overtime, and one hour of "on-call" time. Smith T im esh ee t, ex. 2 to Fisher Declaration, ex. J to Def.'s Mot. For Summ. Judg. (Doc. #31).9 U p o n Mr. Fisher's return from vacation the following week, Mr. Thaggard apprised him of th e events of December 29, 2005. As discussed above, supra n.4, Alltel policy forbids the re c o rd in g of past or anticipated overtime as regular hours worked and considers such conduct f a ls if ic a tio n of records. D u rin g the next week, on January 3, 2006, Plaintiff advised Mr. Fisher that a cell site t o w e r on Troy Highway had a problem with a light. Because of the height of the tower, A llte l is required to maintain functioning lights as a beacon for aircraft. When a light is not f u n c tio n in g properly, Alltel is required to notify the Federal Aviation Administration (" F A A " ) and open a "NOTAM" (Notice To Airmen). When opening a NOTAM, a

tech n ician typically advises the FAA of the location of the tower, its height, and the nature

Even assuming that Plaintiff had previously obtained permission to use "c o m p time" for any period of hours on December 29, 2005, his recording of eight hours o f regular work on that day still constitutes "falsification" of his time sheet because " c o m p time" is not recorded as hours worked. Rather, "comp time" is simply hours of le a v e given the employee to compensate for overtime already worked during that week. Fisher Dep., ex. L to Def.'s Mot. For Summ. Judg. (Doc. #31) at 31-32. Thus, there is no re p o rtin g of "comp time" on an employee's time sheet. Plaintiff does not contest this c h a r a c te r iz a tio n of the correct method for implementing "comp time." Plaintiff also a c k n o w le d g e s completing his time sheet for the week of December 29, 2005, stating that th e one hour of overtime he entered accounts for his visit to the Lowndesboro cell site th a t day. Smith Dep. at 148 l. 15-23. 9

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o f the light problem. The technician is also required to provide the FAA with his or her c o n ta c t information, including name initials and telephone number, in case the FAA needs to follow-up with the technician. Mr. Fisher instructed Plaintiff to contact the FAA to open th e NOTAM. Plaintiff contacted another technician, Bo Walker, and asked him to open the N O T A M . Mr. Walker refused but, on January 3, the NOTAM was opened using his contact in f o rm a tio n . Mr. Fisher subsequently investigated the opening of the NOTAM and found th a t the NOTAM had been opened with Mr. Walker's contact information. Mr. Walker c o n f irm e d with Mr. Fisher that he had not opened the NOTAM. Mr. Fisher then examined P la in tif f 's call records and discovered that Plaintiff had contacted the FAA on January 3, and t h a t the call lasted one minute and fourteen seconds.1 0 Mr. Fisher also had another

tech n ician , Mr. Jackson, confirm with the FAA that the NOTAM was opened with Mr. W a lk e r ' s contact information. Based on this information, Mr. Fisher determined that P la in tif f had provided false information to the FAA. O n January 6, 2006, Plaintiff was scheduled to work. Mr. Fisher had not seen P lain tiff that afternoon and, knowing that Plaintiff was building a new house, decided to

Plaintiff contends that he would not have given the FAA another te c h n ic ia n 's contact information and that, in any event, one minute and fourteen seconds is not enough time to open a NOTAM with the FAA. Pl.'s Resp. (Doc. #34) at 16. However, another technician, Mr. Jackson, stated in his deposition that opening a N O T A M takes "[r]oughly about two minutes." Jackson Dep., ex. O to Def.'s Mot. For S u m m . Judg. (Doc. #31) at 28 l. 3-5. Furthermore, Mr. Fisher testified that the time s ta m p on the NOTAM corresponds with the time Plaintiff called the FAA as reflected on h is phone records. Fisher Dep., ex. L to Def.'s Mot. For Summ. Judg. (Doc. #31) at 58 l. 9 -2 3 . 10

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d riv e -b y the house to see if Plaintiff was there. Plaintiff's Alltel vehicle was parked outside th e house around 3pm and remained there at 3:45 pm. Mr. Fisher called Plaintiff and learned th a t Plaintiff had been at the house since around 1pm. Despite spending these hours tending to personal matters, Plaintiff recorded the time as regular work. Smith Timesheet, ex. 4 to F is h e r Declaration, ex. J to Def.'s Mot. For Summ. Judg. (Doc. #31). Mr. Fisher informed P la in ti f f that he was going to recommend his termination to Mr. Rowe. Plaintiff left his h o u s e and confronted Mr. Fisher at the office.1 1 Mr. Fisher instructed Plaintiff to leave the k eys to his vehicle and have someone pick him up. A subsequent search of Plaintiff's c o m p a n y vehicle revealed, in relevant part, a beer bottle cap and receipts for alcohol p u r c h a s e s .12 M r. Fisher apprized Mr. Rowe of the problems he was having with Plaintiff on J a n u a ry 6 and further investigated the incidents described above over the following weekend.
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Mr. Fisher states that this meeting was very contentious and that Plaintiff a c te d confrontational. Fisher Declaration, ex. J to Def.'s Mot. For Summ. Judg. (Doc. # 3 1 ) at ¶ 17. Plaintiff claims that Mr. Fisher was acting aggressively. Smith Dep. at 85 l. 10-23. Another witness to the incident, Sheila Rikerd, has stated that, while it was a p p a re n t that both men were aggravated, no one raised their voices any more than usual a n d it "never progressed to anything more than that." See Rikerd Statement, ex. 9 to Pl.'s R e s p . (Doc. #34). Plaintiff testified at his deposition that he has previously consumed alcohol w h ile driving his company vehicle and that the presence of the beer bottle cap may be a ttrib u ta b le to such conduct. Smith Dep. at 161 l.7-13 ("Q: Did you ever consume a lc o h o l when you were driving your vehicle? A: Where I was drinking? I mean, I have. Q: Would that be the explanation for a Bud Light cap being found in your vehicle? A: I g u e ss ." ). Plaintiff subsequently submitted an affidavit in which he denies ever having c o n su m e d alcohol while driving his company vehicle. Smith Aff., ex. 12 to Pl.'s Resp. (D o c . #34) at ¶11. 11
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M r. Fisher provided Mr. Rowe with a narrative of the issues described above, excepting the m a tte r of Plaintiff's consumption of alcohol in a company vehicle, on January 8 (Sunday) and M e s s rs . Rowe and Green then resolved to terminate Plaintiff . According to Messrs. Rowe a n d Green, each of the offenses attributed to Plaintiff were sufficient, standing alone, to w a rr a n t his termination. Plaintiff contacted the EEOC through its Call Center sometime in 2006. The EEOC s u b s e q u e n tly sent Plaintiff a letter, dated May 11, 2006, that requested further information f ro m Plaintiff. The letter advised Plaintiff that his "contact with the Commission's National C all Center does not constitute the filing of a charge within the meaning of our statutes and that this agency will take no action until receipt of a writing bearing your signature." Later, o n August 20, 2007, a formal EEOC Charge of Discrimination was generated. The charge s ta te s Plaintiff's belief that he was terminated because of his race and denies the allegations p ro f f e r e d as justification for his termination. The charge also includes a notation that it is a n "Amended charge - original document received May 10, 2006." Upon concluding its in v e stig a tio n , the EEOC determined that it was "unable to conclude that the information o b ta in e d establishes violations of the statutes." Accordingly, on February 26, 2008, the E E O C mailed Plaintiff a Notice-of-Right-to-Sue Letter and closed its file on Plaintiff's c h a rg e . Plaintiff then filed the instant suit on May 27, 2008. III. P L A I N T I F F 'S ALLEGATIONS OF DISCRIMINATORY CONDUCT A lth o u g h not expressly stated in his Amended Complaint, it appears from the

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p le a d in g s and evidence submitted in support of the pleadings that Plaintiff infers unlawful d is c rim in a to ry termination from a series of purported actions and/or policies that, for P la in tif f , exemplify Defendant's discriminatory animus. In particular, Plaintiff has

e m p h a siz e d his belief that Defendant failed to timely train him and provide necessary tools a n d equipment to permit him to do his job, and that Defendant provided such training and e q u ip m e n t to white employees prior to offering him access to such training and equipment. P la in tif f asserts that, rather than providing him with such training and equipment, his cow o r k e r s and supervisors simply treated him as if he was unable to do his job. Plaintiff also c ite s a meeting in which Mr. Fisher, addressing all of the Network Technicians, forbade te c h n ic ia n s from the practice of "riding together" unless the task at hand truly required two te c h n ic ia n s. Plaintiff, who had been frequently "riding" with Michael Jackson as they went a b o u t their job duties, believed that Mr. Fisher was singling out he and Mr. Jackson while a n n o u n c in g this policy, despite the fact that two white technicians frequently rode together a n d may have continued to do so after the meeting.1 3 For Plaintiff, these instances of p e rc e iv e d discriminatory conduct demonstrate that his termination, years later, was racially m o tiv a te d . Plaintiff also believes that some of the proffered reasons for his termination, in c lu d in g falsification of his time sheets and the NOTAM, using his company vehicle to c o n d u c t personal business well outside of his coverage area, and spending work hours at

In his deposition, Mr. Jackson stated that he did not feel singled-out by Mr. F is h e r at this meeting. See Jackson Dep., ex. O to Def.'s Mot. For Summ. Judg. at 20-21. 13

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h o m e , are pretextual, as other white employees engaged in similar conduct but were not te rm in a te d . Finally, in his response to Defendant's Motion for Summary Judgment, Plaintiff s ta te s his belief that Defendant is prejudiced against African-American employees who, as P lain tiff was doing at the time of his termination, build homes in largely white n e ig h b o rh o o d s . Pl.'s Resp. (Doc. #34) at 23, 24. IV. S T A N D A R D OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a c t." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence

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s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson, 477 U.S. at 255. After the non-moving party has responded to the m o tio n for summary judgment, the court must grant summary judgment if there is no genuine is s u e of material fact and the moving party is entitled to judgment as a matter of law. See F ed . R. Civ. P. 56(c). V. D IS C U S S IO N D e f en d a n t has moved for summary judgment on Plaintiff's Title VII and § 1981 c la im s. Discrimination claims predicated upon Title VII and § 1981 "have the same re q u ir e m e n ts of proof and use the same analytical framework, therefore [the Court] shall e x p lic itly address the Title VII claim with the understanding that the analysis applies to the

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§ 1981 claim as well." Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1 9 9 8 ). Although Defendant proffers a number of reasons, both procedural and substantive, in support of its Motion, the Court will first analyze whether Plaintiff's claim of racial d iscrim inatio n related to his termination is sufficient to withstand the analytical framework g o v e rn in g such claims. Plaintiff alleges he was terminated on the basis of his race in violation of Title VII a n d 42 U.S.C. § 1981. Amended Complaint (Doc. #22) at ¶¶ 13, 15. Defendant contends th a t Plaintiff has failed to state a prima facie claim of racial discrimination related to his te rm in a tio n and that, even if he could state a prima facie case of discrimination, Defendant t e rm in a te d Plaintiff's employment for legitimate, non-discriminatory reasons. Plaintiff asse rts, in turn, that the reasons offered by Defendant in support of Plaintiff's termination are p re te x tu a l. Title VII prohibits an employer from "discharg[ing] any individual . . . because of s u c h individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). "A p rim a facie claim of discrimination can be established three ways: 1) direct evidence; 2) c irc u m s ta n tia l evidence; or 3) statistical proof." Davis v. City of Panama City, Fla., 510 F. S u p p . 2d 671, 681 (N.D. Fla. 2007) (citing Earley v. Champion Int'l Corp., 907 F. 2d 1077, 1 0 8 1 (11th Cir.1990)). Plaintiff has offered no direct evidence of racial discrimination by D e f e n d a n t. Rather, Plaintiff relies upon the circumstantial evidence discussed above in a tte m p tin g to prove his claim of discrimination. Accordingly, the Court must utilize the

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b u rd e n -s h if tin g framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1 9 7 3 ), and its progeny.14 U n d e r the McDonnell Douglas framework, to establish a prima facie case of race d is c rim in a tio n under Title VII the plaintiff must show: "(1) []he is a member of a protected c la ss ; (2) []he was subjected to an adverse employment action; (3) [his] employer treated s im ila rly situated employees outside of [his] protected class more favorably than [he] was tre a te d ; and (4) []he was qualified to do the job." Burke-Fowler v. Orange County, Fla., 447 F .3 d 1319, 1323 (11th Cir. 2006).15 E v e n if this Court assumes, arguendo, that Plaintiff has established a a prima facie

See Standard, 161 F.3d at 1332 ("When a plaintiff offers circumstantial e v id e n c e to prove a Title VII claim, we use the analytical framework established by the S u p r e m e Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [] (1973). Under this f ra m e w o rk , the plaintiff must establish a prima facie case of discrimination. The e sta b lis h m e n t of a prima facie case creates a presumption of discrimination. The e m p lo ye r must then offer legitimate, nondiscriminatory reasons for the employment a c tio n to rebut the presumption. If the employer successfully rebuts the presumption, the b u rd e n shifts back to the plaintiff to discredit the proffered nondiscriminatory reasons by sh o w ing that they are pretextual."). T h e parties dispute the precise variant of the McDonnell Douglas standard th a t must be followed in assessing whether Plaintiff can establish a prima facie case of ra c e discrimination. Relying upon the fact that Plaintiff's position was filled by a white e m p lo ye e , Plaintiff contends that he need only show that he was replaced by someone o u tsid e of his protected class, rather than showing that similarly situated non-minority e m p lo ye e s were treated more favorably than he. Pl.'s Resp. (Doc. #34) at 21. Indeed, th e re is abiding support for this position. See Maynard v. Bd. of Regents, 342 F.3d 1281, 1 2 8 9 (11th Cir. 2003). However, the Court need not determine which formulation of the s ta n d a rd must be applied if Plaintiff's claim can be disposed of even assuming he has e s ta b lis h e d a prima facie case. See Hanford v. The GEO Group, 2009 WL 2562715 at *4 n .7 (11th Cir. Aug. 20, 2009). 17
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c a se of racial discrimination, Defendant has provided the Court with legitimate, nond is c rim in a to ry reasons for terminating Plaintiff's employment. Specifically, Defendant sta tes that Plaintiff was terminated for 1) his unauthorized use of his company vehicle in tra v e lin g to Birmingham during work hours and returning with his wife; and 2) falsification o f records, including time sheets for December 29 and January 6 and the NOTAM. Def.'s M o t. For Summ. Judg. (Doc. #31) at 29; Def.'s Reply (Doc. #35) at 10. While it is perhaps u n clea r exactly what Alltel vehicle use policy was in effect at the time of Plaintiff's te rm in a tio n , it is clear from the record that Plaintiff's recording of regular work hours during h is trip to Birmingham, under the guise of "comp time," constituted a falsification of his time s h e e ts pursuant to company policy. Plaintiff has not provided any evidence that it was a p p ro p ria te for him, even if he had been granted "comp time," to record those hours as re g u la r work time. It is also clear that Defendant's reason respecting the NOTAM is le g itim a t e . Defendant has a substantial interest in ensuring that its agents and employees ca ref u lly and fully comply with any reporting requirements mandated by federal regulatory a g e n cie s. As the evidence in the record reflects, any employee's disregard for such reporting re q u ire m e n ts is a very serious disciplinary matter.1 6 Thus, the uncontroverted evidence in

Plaintiff maintains that he did not report false information to the FAA. A lth o u g h he never expressly denies opening the NOTAM, he insists that the duration of h is call with the FAA was too brief for opening a NOTAM. However, as discussed a b o v e , Mr. Jackson stated that opening a NOTAM takes "[r]oughly about two minutes" a n d Mr. Thaggard states that the FAA's timestamp on the NOTAM corresponds with the tim e that Plaintiff contacted the FAA. Moreover, Plaintiff does not challenge any of the e v id e n c e in the record which establishes that, pursuant to Mr. Fisher's investigation, no 18

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t h e record establishes that Defendant's proffered reasons for terminating Plaintiff are leg itim a te and non-discriminatory, and that each would have been sufficient, alone, to w a rra n t Plaintiff's termination. Thus, the burden shifts back to Plaintiff to discredit

D e f e n d a n t's proffered reasons as pretextual. In order to survive summary judgment where the plaintiff asserts that an employer's p ro f f e re d legitimate reasons for termination are pretext, the plaintiff must cast sufficient doubt on the defendant's proffered . . . reasons to permit a rea so n ab le fact finder to conclude that the employer's proffered reasons were n o t what actually motivated its conduct but were pretext for [the d is c rim in a to ry action]. A plaintiff may show pretext either directly by p e rs u a d in g the court that a discriminatory reason more likely motivated the e m p l o ye r or indirectly by showing that the employer's proffered explanation is unworthy of credence. A plaintiff withstands summary adjudication by p ro d u c in g sufficient evidence to allow a reasonable finder of fact to conclude that the defendant's articulated reasons for its decision are not believable. In re v iew in g a summary judgment motion, the district court must evaluate w h e t h e r the plaintiff has demonstrated such weaknesses, implausibilities, in c o n sis te n c ie s, incoherencies, or contradictions in the employer's proffered l e g itim a te reasons for its action that a reasonable factfinder could find them u n w o rth y of credence. Corbitt v. Home Depot U.S.A., Inc., 573 F.3d 1223, 1248 (11th Cir. 2009) (internal q u o ta tio n s and citations omitted).

one other than Plaintiff opened the NOTAM. In any event, the key consideration for a re v ie w in g court is not necessarily the accuracy of the employer's stated reason for te rm in a tio n but, rather, the good faith belief of the employer in its given reason. See R o b in s o n v. LaFarge North America, Inc., 240 F. App'x 824, 828 (11th Cir. 2007) (citing E lr o d v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). Plaintiff has g iv e n no reason why, based on Mr. Fisher's investigation of the NOTAM, Defendant c o u ld not have harbored a reasonable and good faith belief that Plaintiff provided the F A A with false information. 19

P lain tiff appears to assert that Defendant's proffered reasons for his termination are p re te x tu a l because they "are not worthy of credence." Pl.'s Resp. (Doc. #34) at 22-23. P la in tif f points to purported "contradictions and inconsistencies" in the reasons given by D e f en d a n t for Plaintiff's termination during the meeting between Plaintiff and Mr. Fisher on Ja n u a ry 6, on the "Employee Termination Form" in Defendant's personnel records, and in D ef en d an t's representations to the Department of Industrial Relations during Plaintiff's u n e m p lo ym e n t compensation proceedings. Specifically, Plaintiff maintains that Mr. Fisher f a ile d to give him a reason for his imminent recommendation that Plaintiff be terminated at th e ir meeting on January 6, 2006, but that Defendant proffered "misconduct" as the reason b e f o re the Department of Industrial Relations, and cited "Falsification of Documentation" o n the company "Employee Termination Form." 1 7 For Plaintiff, such purported

" in c o n sis te n c ie s could lead a jury to determine that these reasons are merely pretext and the re a l reason is a bias against African-American employees who build big houses in p re d o m in a te ly white neighborhoods." Pl.'s Resp. (Doc. #34) at 23. Thus, it appears Plaintiff

Citing Mock v. Bell Helicopter Textron, Inc., 196 F. App'x 773, 774 (11th C ir. 2006), Plaintiff appears to rely on his assertion that Mr. Fisher allegedly failed to p ro v id e him with the reason for his recommendation that he be terminated as evidence th a t the reasons subsequently articulated by Defendant are pretextual. However, Mock is in a p p o site . First, it is apparent from the evidence in the record that Plaintiff was not te rm in a te d at the time of his meeting with Mr. Fisher. That decision was made three days late r by Messrs. Rowe and Green. Second, there is no evidence that Defendant refused to p ro v id e the reason for the termination to Plaintiff at any time. 20

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p rim a rily seeks to persuade the Court through "indirect" evidence of pretext.18 P la in tif f has failed to prove pretext. Plaintiff's "indirect" evidence of pretext - that D e f en d a n t has purportedly offered "inconsistent" reasons for his termination at varying times - is unavailing. It is clear from the evidence in the record that the reasons behind Plaintiff's ter m in a tio n were clear on January 9 and are consistent with those given by Defendant in th e s e proceedings. See Email from Fisher to Gorham and Rowe, ex. 5 to Fisher Decl., ex. J to Def.'s Mot. For Summ. Judg. (Doc. #31) (includes narrative statement describing events o n Dec. 29, Jan. 3, and Jan. 6). See also Rowe Decl., ex. K at ¶¶4-7; Green Decl., ex. A at ¶ ¶ 7 -8 . Thus, Plaintiff's reliance on the coded entry of "Falsification of Documentation" on th e Termination Form (see Employee Termination Form, ex. 8 to Pl.'s Resp. (Doc. #34)) or

It might also be argued that Plaintiff's evidence - consisting largely of an a f f id a v it from Burt Myrick, a former Alltel employee - respecting the purported "bias" of A llte l toward "African-American employees who build big houses in predominately white n e ig h b o rh o o d s " constitutes, within the framework of the Corbitt language cited above, " d i re c t" evidence of pretext. However, to the extent Plaintiff intends it to be so c o n stru e d , the Court does not find it persuasive evidence "that a discriminatory reason m o re likely motivated the employer." Corbitt, 573 F.3d at 1248. Mr. Myrick is an African-American former employee of Alltel who believes that h e was terminated for building a home in "a predominately white neighborhood." However, his statements in this regard are mere speculation about the motives of those that determined to terminate his employment. Moreover, the persons described in Mr. M yric k 's affidavit as harboring racial animus toward him are completely distinct from th o s e at issue in the instant matter. Thus, the Court fails to see the relevance of the M yric k evidence to this case. To the extent Plaintiff provides this evidence for c o rro b o ra tio n of his apparent belief that there is an overarching discriminatory animus to w a rd African Americans who build homes in "predominately white neighborhoods," the C o u rt finds it unpersuasive because it is self-serving, is grounded on naked speculation a b o u t the motives of Alltel decision makers, and is unsupported by any other relevant e v id e n c e . 21

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th e notation of "misconduct" on the Department of Industrial Relations' "Notice of D e te rm in a tio n " (see Notice of Determination, ex. 6 to Pl.'s Resp. (Doc. #34)) as evidence o f purported "contradictions or inconsistencies" is misplaced. Defendant's articulated re a so n in g for terminating Plaintiff's employment has been substantially consistent at all r e le v a n t times. M o re o v e r, if the Court were to infer that Plaintiff believes the proffered reasons for h is termination constitute pretext because similarly situated, non African-American e m p lo ye e s have not been terminated for similar conduct, such claim is still without merit. W h ile Plaintiff has testified that other employees have spent work hours at home, including o n January 6, 2006, or otherwise handled personal business during work hours, he has p r o d u c e d no evidence concerning such employees' falsification of their time sheets. F u r th e r m o r e , Plaintiff has not produced any evidence that any other employee reported false in f o rm a tio n to the FAA when opening a NOTAM or that Defendant's belief that Plaintiff did s o was unreasonable or lacking good faith. Thus, Plaintiff has failed to show that any of the p ro f f e re d legitimate reasons for his termination were pretextual. F u r th e rm o re , an additional, and fundamental, reason why Plaintiff has failed to show p re te x t is his failure to produce any evidence that the persons who actually decided to te rm in a te his employment, Messrs. Rowe and Green, "harbored racial animus toward him."

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H a n fo r d , 2009 WL 2562715 at *4.1 9 In his original complaint, Plaintiff listed only Mr. F is h e r as one who allegedly discriminated against him. Complaint (Doc. #1) at 2. Indeed, it was Mr. Fisher who conducted the investigation of events which led to Plaintiff's te rm in a tio n and recommended to Messrs. Rowe and Green that Plaintiff be terminated. The E le v e n th Circuit has previously recognized that "a biased discharge recommendation by an in d iv id u a l with no actual power to discharge may be actionable if the plaintiff can prove the b ia se d recommendation directly resulted in the plaintiff's discharge." Hanford, 2009 WL 2 5 6 2 7 1 5 at *4 (citing Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999)). H o w e v e r, the plaintiff must prove direct causation - that the discriminatory animus u n d e rlyin g the recommendation, and not any asserted employee misconduct, caused the d e c is io n to terminate. Id. One method recognized by courts to achieve this is by

d e m o n s tra tin g that there was no "independent" investigation by the decision makers after re c e iv in g the recommendation from the allegedly biased party. Id. P la in tif f has failed to produce any evidence of such causation. Plaintiff does not c h a lle n g e evidence in the record which establishes that Messrs. Rowe and Green in d e p e n d en tly determined that Plaintiff should be terminated based on their own review of

The only evidence of racial animus offered by Plaintiff as to Mr. Rowe is P lain tiff 's deposition testimony that he felt Mr. Rowe had failed to get him necessary e q u ip m e n t during a time period ending in 2001. See Smith Dep. at 208 l.4 - 209 l.11. Plaintiff specifically denies any discriminatory treatment from Mr. Rowe outside of the tim e during which Mr. Rowe conducted Plaintiff's evaluation in 2001. Id. at 209 l.21 2 1 0 l.3. Plaintiff has made no allegation of discriminatory conduct against Mr. Green. 23

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th e information they were provided and their subsequent collaboration. The mere fact that P la in t if f ' s termination could not have occurred without the approval of Mr. Green, against w h o m Plaintiff has alleged no discriminatory animus, demonstrates the insulation from the a lle g e d discriminatory conduct of Mr. Fisher and Mr. Rowe which Plaintiff enjoyed. Id. at 5 . In short, Plaintiff "has not presented any evidence suggesting [Messrs. Rowe and Green w e re ] influenced by [Mr. Fisher's] alleged discriminatory animus or that [their] decision was b a se d on anything other than [their] independent review of [Mr. Fisher's] recommendation[] a n d [their] own judgment." Id. Without evidence of such causation, Plaintiff's charge that D e f e n d a n t's reasons for terminating his employment were pretextual must fail. In sum, assuming that Plaintiff has established a prima facie case of racial d is c rim in a tio n flowing from his termination, itself a dubious assumption, Plaintiff has not d e m o n s t ra t e d that a reasonable fact finder could determine that the legitimate, nond is c rim in a to ry reasons given for his termination are pretextual. Accordingly, he can not w ith s ta n d summary judgment on his discrimination claim.2 0 V I. CONCLUSION F o r the reasons specified above, the Magistrate Judge RECOMMENDS that the

The undersigned is also mindful that, in this Circuit, "[t]he ultimate question in a disparate treatment case is not whether the plaintiff established a prima facie case or d e m o n s tra te d pretext, but whether the defendant intentionally discriminated against the p la in tif f ." Nix v. WLCY Radio/Rahall Commc's, 738 F.2d 1181, 1184 (11th Cir.1984) (in te rn a l quotations omitted). Thus, even after undertaking the pretext analysis above, the C o u rt has reviewed the entire record in consideration of the Motion for Summary J u d g m e n t and finds that there was no intentional discrimination against Plaintiff. 24

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M o tio n for Summary Judgment (Doc. #31), be GRANTED and this case be DISMISSED. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n by November 16, 2009. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th C ir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D O N E this 3rd day of November, 2009.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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