Guy v. Alabama Power Company

Filing 82

OPINION AND ORDER denying 47 MOTION for Summary Judgment. Signed by Honorable Judge Myron H. Thompson on 4/14/2015. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
WILLIAM A. GUY,
Plaintiff,
v.
ALABAMA POWER COMPANY,
Defendant.

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CIVIL ACTION NO.
2:13cv08-MHT
(WO)

OPINION AND ORDER
Relying on the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C.
§§ 4311 et seq., plaintiff William A. Guy brought this
lawsuit

against

defendant

claiming

that

faced

he

Alabama

illegal

Power

Company

discrimination

as

a

result of his deployment overseas as a member of the
United States military.1

Subject-matter jurisdiction is

1. At the pretrial conference on January 29, 2015,
Guy stated that he was no longer pursuing a retaliation
claim under USERRA.
Guy had also asserted state-law
claims, but the court has already dismissed them. Guy
v. Alabama Power Co., 2013 WL 3929858 (M.D. Ala. 2013)
(Thompson, J.).

proper under 38 U.S.C. § 4323(b) and 28 U.S.C. § 1331.
The case is now before this court on Alabama Power’s
motion

for

summary

judgment.

The

motion

will

be

denied.

I. LEGAL STANDARD
AA party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on

which

summary

judgment

is

sought.

The

court shall grant summary judgment if the movant shows
that 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).

The court must view

the admissible evidence in the light most favorable to
the non-moving party and draw all reasonable inferences
in favor of that party.

Matsushita Elec. Indus. Co.

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

2

II. BACKGROUND
Guy

claims

that

Alabama

Power

terminated

his

employment because of his impending deployment overseas
with

the

United

States

military.

The

Alabama

Power

employees directly involved in his termination are Gail
Willis, a high-level sales employee; Kevin Grice, Guy’s
supervisor; Richard Hutto, a vice-president; and Leslie
Sanders, another vice-president.

The facts that follow

are drawn from the evidence taken in the light most
favorable to Guy.
Since the early 1990s, Guy has been a member of the
Alabama National Guard, which Alabama Power knew when
it

hired

him

as

an

appliance

salesperson

in

2003.

During his time at the company, his military obligation
included regular National Guard trainings as well as
one

extended

17-month

absence

from

2006-2007

pre-deployment training and deployment to Iraq.

3

for

These

absences

did

not

prevent

promoted within Alabama Power.

Guy

from

being

When Guy was deployed

to Iraq, he was a salesperson, a position in which he
could easily be replaced while on leave.

During his

deployment, the company paid the difference between his
military salary and the salary he would have received.
Several colleagues also checked on his family while he
was away and collected a fund for his son, who fell
seriously ill during
return,

Guy

division-sales
position

where

was

his deployment. Soon after his
promoted

manager,
he

would

from

a
be

salesperson

high-level
much

harder

to

management
to

replace.

Altogether, between 2003 and 2007, Guy progressed up
the ranks of the company, going from a salesperson at a
smaller store to a sales manager with authority over 11
stores.
Although Alabama Power promoted Guy, the company
did

express

absences.

some

hesitations

about

his

extended

After learning of Guy’s potential two-year
4

absence in 2006, Guy’s immediate supervisor sent an
email up the chain of command, lamenting that, “Things
just

keep

getting

better

and

better.”

Among

the

recipients of the e-mail was Gail Willis, a high-level
sales employee who would contribute to the decision to
fire Guy in 2012.
before

Guy’s

year--Willis

Moreover, in July 2007--which was

return

from

instructed

Iraq

Guy’s

in

August

supervisor

of
to

that
select

candidates to interview for his position within three
weeks in case he decided not to return to the company.
Willis did note, however, that she would hate to fill
the

position

returned
re-adjust

from
to

if

Guy

wanted

deployment
his

and

family

and

to

return.

asked

for

civilian

When
90
life

days

Guy
to

before

restarting his job, the company refused and instead
said that he needed to return in around one month’s
time.

He agreed and did not file any complaint about

this incident.

5

After his promotion in 2007, Guy received positive
feedback for his work over the next four-and-a-half
years.

In every performance review from 2007 through

2011, including the final one done by his supervisor,
Kevin

Grice,

expectations.

Guy

was

told

that

he

fully

met

Although there was a section to document

any unethical behaviors, every review stated that Guy
had

“clearly

conduct.

demonstrated”
Grice

even

the

required

nominated

Guy

ethical
for

a

leadership-development program in the spring of 2011,
and, in May 2012, Guy was put in a leadership position
for the Alabama Power team competing in a city-wide
rowing race over the summer.
In late May 2012, Guy learned that he once again
would

be

informed

deployed,
his

supervisor,

this

immediate

Willis;

and

time

to

Afghanistan.

supervisor,
other

Grice;

management,

He

Grice’s
including

Leslie Sanders, a vice-president to whom Guy did not
directly report but who ran the business operations at
6

many

of

the

offices

appliance-sales teams.

where

Guy

headed

the

At that point, Willis and Grice

made plans for another division-sales manager to cover
for Guy during his training and deployment.
One month later, Grice and Willis told Guy, for the
first

time,

about

concerns

performance and demeanor.

over

his

professional

Willis raised these concerns

after hearing that Richard Hutto, a vice-president at
the company, had voiced concerns about Guy’s behavior
at

previous

business

forums

in

2011

and

2012,

and

subsequently called Hutto to confirm the reports.
In this June 2012 phone conversation, Hutto told
Willis about two incidents involving Guy.
stated

that

his

executive

secretary

had

First, he
complained

that, at a March 2011 forum, Guy hugged her in a way
that made her feel uncomfortable but she asked Hutto
not

to

tell

anyone.

Although

Alabama

Power

policy

requires reporting all violations of company policy to
human resources, Hutto did not notify anyone of this
7

incident for well over a year.

He also did not report

it in a corporate-compliance survey where Alabama Power
employees were asked if they knew of any person who had
violated company policy.
Second, Hutto also told Willis about a conversation
involving Guy that occurred at the March 2012 business
forum.

After

a

female

colleague

mentioned

her

gynecologist, Guy, who had been drinking, responded,
“If anyone is going to see my wife’s vagina, I’d assume
it would be [her gynecologist].”
comment

was

inappropriate

and

Hutto thought the
worried

actions would get Alabama Power sued.

that

Guy’s

However, Hutto

did not report the comment until a May 2012 meeting
with human resources.
Around the same time, Willis also called a human
resources employee at Alabama Power, who told her that
Guy’s jokes sometimes bordered on unprofessional and
that Guy could be too informal at work functions.

She

also noted that Sanders, the vice-president of business
8

operations
about

in

him.

Guy’s
This

geographical
employee

area,

also

did

had
not

concerns
file

any

complaints about Guy’s behavior.
Willis

and

investigation

Grice,

into

without

these

doing

incidents

any
or

independent

talking

with

Sanders, arranged a June 2012 meeting with Guy, where
they told him about the complaints and their concerns
over his lack of self-awareness. Guy was surprised at
the feedback but did not push back in the meeting.

He

agreed to write a development plan that all three of
them would go over in a follow-up meeting in mid-July.
This form of coaching and counseling was

considered

informal discipline under Alabama Power policy.
Guy sent in his development plan in early July.
this

plan,

he

acknowledged

that,

“In

some

In

social

situations I can come across as awkward, impulsive,
arrogant, or self-righteous.” He also agreed to build
relationships

with

the

business

drinking at company events.
9

team

and

to

stop

This development plan was never discussed.

After

the June counseling session, but before the mid-July
meeting, Sanders contacted Willis to talk about Guy.
Similar

to

Hutto,

Sanders

stated

that

she

had

having problems with Guy for nearly a year.

been

In the

fall of 2011, soon after Sanders was elevated to her
vice-president
different

position,

managers

quick report.

she

introduced

had

a

meeting

themselves

and

where
gave

a

Guy started his report by stating that

“selling

appliances

explain

why

the

sucks”
economic

and

then

proceeded

situation

made

to

sales

difficult. Sanders told Willis that a person “cannot
recover”

from

that

type

of

comment.

Additionally,

Sanders stated that so many of the employees in her
department had complained about Guy’s arrogance that
she had told them to stop working with him.
Although

Sanders’s

main

concern

was

Guy’s

work

performance, she also stated that Guy made at least one
odd

comment

to

her.

Soon
10

after

the

introductory

meeting, Guy had an individual meeting with Sanders in
her

office.

In

response

to

Guy’s

perception

that

Sanders was flirting with him, he mentioned how “hot”
his wife was to show her that he was not interested.
Sanders, who maintains she was not flirting in any way,
found the comment strange.
The

phone

call

where

Sanders

relayed

this

information to Willis took approximately 15 minutes.
Sanders explained that she did not report any of these
incidents to Guy’s supervisors--Grice and Willis--for
the eleven months before the phone call because she was
focused on reorganizing her new division.
Sanders reported one additional incident following
the phone call.

Guy planned on ordering T-shirts for

the rowing competition that he had a leadership role in
and wanted to order better shirts than the year before.
After

he

sent

out

an

initial

email

regarding

the

shirts, one woman approached him and asked him for a
size that he believed would fit her tightly.
11

Based on

this encounter, Guy told Sanders that he planned on
ordering some tighter fitting shirts. Sanders responded
that all team members should have the same size shirt.
While Guy was simply responding to the earlier request
of

a

co-worker

who

wanted

a

tighter

fitting

Sanders interpreted Guy’s comment as sexist.

shirt,

Although

she did ask a colleague to work with Guy when ordering
the

race

shirts,

she

did

not

remove

him

from

his

leadership role.
Willis and Grice decided, following the phone call
with Sanders, that, rather than working with Guy on a
development plan,

they needed a more formal meeting

with Sanders to decide on Guy’s future.

Although they

went ahead with the mid-July meeting with Guy, they did
not

discuss

Sanders’s

the

development

plan

call.

Instead,

they

or

tell

asked

him

about

open-ended

questions about what was occurring in his division and
told him they would schedule an additional meeting to
do his mid-year review.

During this meeting, Guy gave
12

Willis

and

Grice

his

final

training

and

deployment

dates for Afghanistan.
In

late

July

2012,

Grice,

Willis,

Sanders,

and

several employees who report to Sanders met to discuss
Guy.
that

Sanders framed the meeting with the common theme
Guy

does

not

respond

to

e-mail

or

communicate

effectively with other employees, and she repeated what
she had told Willis on the phone.

Other employees at

the meeting then echoed her framing and proceeded to
discuss how Guy was not an effective mentor and how he
failed to respond to questions in a timely manner.
Following this meeting, Grice and Willis decided to
give Guy the option of demotion or resignation.

Even

though Grice did not necessarily believe Guy had acted
poorly, he said he agreed with the decision because
Guy’s working relationships had become too difficult.
On August 9, 2012, they told Guy that he had the option
of

being

demoted

to

an

appliance-sales-dispatcher

position or a commission salesperson, both lower-level,
13

customer-facing positions.
make a decision.

They gave him four days to

On the fourth day, he requested to

use his remaining vacation hours to make a decision,
but they refused.
with

Grice

The next morning, he left a message

stating

that

he

would

not

accept

either

position, but that he was not resigning. Grice sent a
letter confirming Guy’s termination at Alabama Power on
August 14, 2012. The company then found a permanent
replacement for his position.
Guy

brought

suit

against

Alabama

Power

for

discrimination under USERRA, and the company now moves
for summary judgment.

III. DISCUSSION
USERRA bars an employer from discriminating against
a “person who is a member of ... or has an obligation
to perform service in a uniformed service.”
§ 4311.

This

provision

“initial

employment,

prohibits

reemployment,
14

the

38 U.S.C.
denial

retention

of
in

employment, promotion, or any benefit of employment by
an employer on the basis of that membership ... or
obligation.”

Id.

Guy claims discrimination based on his employment
in the National Guard.

Specifically, he contends that

Alabama Power did not want to spend the time and money
training a temporary replacement while he was deployed.
The court finds that there is a genuine dispute of
material fact on this issue.
Congress

enacted

USERRA

“to

encourage

noncareer

service in the uniformed services by eliminating or
minimizing

the

disadvantages

to

civil

careers

and

employment which can result from such service and to
minimize

the

disruption

to

the

lives

of

persons

performing service in the uniformed services as well as
their employers.”
LLC,

605

F.

Dees v. Hyundai Motor Mfg. Alabama,

Supp.

(Thompson,

J.)

quotation

marks

2d

(quoting

1220,
38

omitted),

1224

U.S.C.
aff’d,

15

(M.D.

Ala.

§ 4301)
368

Fed.

2009)

(internal
App'x

49

(11th Cir. 2010).

In the legislative history of a

predecessor statute to USERRA, it was observed that,
“If

these

young

men

are

essential

to

our

national

defense, then certainly our Government and employers
have a moral obligation to see that their economic well
being is disrupted to the minimum extent possible.”
H.R.Rep. No. 1303, 89th Cong. (1966), U.S. Code Cong. &
Admin. News 1966, p. 2370 (quoted in Monroe v. Standard
Oil Co., 452 U.S. 549, 561 (1981)).
USERRA

prohibits

discrimination

in

employment

if

the employee’s membership in the armed services “is a
motivating factor in the employer’s action, unless the
employer

can

prove

that

the

action

would

taken in the absence of such membership.”
§ 4311(c)(1).

have

been

38 U.S.C.

Motivating factor is not the same as

sole factor; “[i]nstead, it is one of the factors that
a truthful employer would list if asked for the reasons
for its decision.”
Inc.,

411

F.3d

Coffman v. Chugach Support Servs.,

1231,

1238
16

(11th

Cir.

2005).

The

employee

must

preponderance

show
of

this

the

motivating

evidence,

at

factor

which

by

point

a

“the

burden shifts to the employer to prove the affirmative
defense that legitimate reasons, standing alone, would
have

induced

action.”

Id.

omitted).

the

employer

to

take

the

same

adverse

at 1238-39. (internal quotation marks

The court will first address whether the

employee showed that discrimination was a motivating
factor and then turn to the affirmative defense.

A.
Because

Motivating Factor

discrimination

is

“seldom

open

or

notorious,” circumstantial evidence is often “critical”
in

a

plaintiff’s

showing

of

a

motivating

factor.

Coffman, at 1238 (quoting Sheehan v. Dep’t of the Navy,
240 F.3d 1009, 1013 (Fed. Cir. 2001)).

To evaluate

circumstantial

evidence

of

discrimination

cases,

consider

a

variety

courts

including:
17

of

in

USERRA

circumstances

“[i][P]roximity in time between the
employee’s military activity and the
adverse
employment
action,
[ii]
inconsistencies between the proffered
reason
and
other
actions
of
the
employer,
[iii]
an
employer’s
expressed hostility towards members
protected by the statute together with
knowledge of the employee’s military
activity, and [iv] disparate treatment
of certain employees compared to other
employees with similar work records or
offenses.”
Id.

(quoting

Sheehan,

240

F.3d

at

1014).

Guy

contends that these first three factors are relevant
here.

Alabama Power disagrees.

The court will address

each in turn.

i.

Temporal Proximity

In this case, the first factor, temporal proximity,
can be analyzed similarly to the analysis of timing in
a

retaliation

claim

in

other

contexts.

In

a

retaliation claim under Title VII of the Civil Rights
Act of 1964, as amended (42 U.S.C. §§ 1981a & 2000e
through 2000e-17), or the Family and Medical Leave Act
18

(29 U.S.C. §§ 2601-2654), the court would look to when
the protected action (such as reporting discrimination)
occurred

and

protected

then

action

the

and

length

any

of

time

between

adverse-employment

the

action.

See, e.g., Hurlbert v. St. Mary’s Health Care Sys., 439
F.3d 1286, 1298 (11th Cir. 2006).

Here, Guy asserts

that he told Alabama Power about his deployment dates
and soon thereafter faced an adverse-employment action
because of his initial reporting.
In either context, temporal proximity “is generally
sufficient circumstantial evidence to create a genuine
issue

of

material

fact

of

a

causal

connection.”

Hurlbert, 439 F.3d at 1298 (11th Cir. 2006) (reversing
grant of summary judgment by district court on a Family
and Medical Leave Act retaliation claim based in part
on close temporal proximity).

Here, Guy let Willis,

Grice, and Sanders know about his deployment in May,
and, one month later, in June, he received informal
discipline

in

the

counseling
19

session.

After

Guy

followed

instructions

and

made

a

development

plan,

Willis and Grice did not even examine it; instead, they
relied on information from Sanders that she had known
for almost a year but had communicated only after Guy
informed

her

that

he

was

deploying

to

Afghanistan.

Grice and Willis made the decision to demote Guy in
late July, and, when he refused to accept the demotion,
they fired him in mid-August.
elapsed

between

late

May,

Thus, around two months

when

Guy

informed

Grice,

Willis, and Sanders of his deployment, and late July,
when Grice and Willis decided to demote or fire him
partly on Sanders’s advice.2

Put differently, after

2. Alabama Power asserts that three months elapsed
between when Guy told his supervisors that he was
deploying to Afghanistan and when he received the
letter terminating him. Guy’s receipt of the letter of
termination is not the right end-point for measuring
temporal proximity.
Temporal proximity is a factor
used to determine the company’s motivation for an
adverse-employment action.
That motivation is best
discerned by when Alabama Power decided to fire Guy
rather than when it informed him of its decision.
Indeed, a company should not be able to avoid the
inference of temporal proximity if it admits to making
a decision about firing an employee and then waits
(continued...)
20

four

years

of

positive

reviews

and

no

reports

of

questionable ethics, Guy was fired within just a few
months of telling his supervisors that he would deploy
based on complaints about his behavior that could have
been brought up a year earlier.
Alabama

Power

contends

that

the

two-month

gap

between when Guy informed his supervisors about his
deployment and when they decided to demote or fire him
is

too

long

a

period

discriminatory motive.

to

be

probative

The court disagrees.

of

a

In the

retaliation context, “cases that accept mere temporal
proximity between an employer's knowledge of protected
activity and an adverse employment action as sufficient
several months to fire him to avoid liability.
See
Blais v. Bridgewell, Inc., 2012 WL 2577566, at *8 (D.
Mass. 2012) (Casper, J.) (holding that company cannot
avoid inference from temporal proximity simply by
waiting
several
months
after
deciding
to
fire
plaintiff).
Regardless, even if the court used the
three-month period, the temporal proximity between
Guy’s deployment and firing--when considered in light
of the other factors--is probative of Alabama Power’s
motive.
21

evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be very
close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (emphasis added) (internal quotation
marks omitted); see also Hurlbert, 439 F.3d at 1298
(“The

close

temporal

proximity

between

Hurlbert’s

request for leave and his termination--no more than two
weeks

...

is

insufficient

evidence
to

(emphasis added).
of

poor

telling

reviews,
management

of

pretext,

establish

though

probably

by

itself.”)

pretext

Of course, if Guy had had a series
and
of

then
his

was

fired

deployment,

a

month

this

after

temporal

proximity likely would not establish a case by itself.
Guy, however, does not contend that temporal proximity,
by

itself,

shows

causation.

Guy

had

a

series

of

positive-performance and ethics reviews over four years
before he told management about his deployment and then
complaints

began

to

surface.

Additionally,

as

explained below, there are significant inconsistencies
22

between Alabama Power’s proffered reasons for firing
Guy and its other actions.
Alabama Power next argues that temporal proximity
is not probative because neither Sanders nor Hutto knew
that Guy was deploying when they made their reports to
Willis and Grice about his questionable performance and
behavior.

As to Sanders, both Grice and Guy testified

that Sanders knew about Guy’s deployment.

Even though

Sanders denies that she knew and Alabama Power claims
Grice’s testimony was ambiguous, the court takes the
evidence in the light most favorable to the plaintiff
on

summary

judgment.

The

court

thus

assumes

that

Sanders learned of Guy’s deployment in May and then
reported year-old problems to Willis regarding Guy’s
performance about a month and a half after learning of
his

re-deployment.

This

timing

contributes

inference of a discriminatory motive.

to

an

Hutto, on the

other hand, did not know that Guy would be deploying
when he raised his concerns with Willis.
23

While this

indicates

that

Hutto

did

not

have

a

discriminatory

motive, the question becomes how Willis and Grice--who
knew

of

Guy’s

information

in

against Guy.
information

impending
taking

deployment--used
adverse-employment

an

Hutto’s
action

As discussed below, their use of the
also

raises

an

inference

of

a

discriminatory motive in his firing.

ii. Inconsistencies Between Proffered Reasons
and Other Actions of the Employer
Guy next contends that there are inconsistencies
between

Alabama

Power’s

proffered

reasons

for

its

adverse-employment action--performance deficiencies and
inappropriate behavior--and its other actions.
an

employer

can

have

multiple

reasons

Because
for

an

adverse-employment action, the court will address each
provided.
Fed.

App’x

See Landolfi v. City of Melbourne, Fla., 515
832,

835

(11th

Cir.

2013)

(“[W]e

have

concluded that the plaintiff failed to show pretext
where,

although

the

employer
24

offered

differing

explanations for its decision, its reasons were

not

necessarily inconsistent.”).
Alabama Power’s first proffered reason for deciding
to demote Guy was his poor performance.
his

“selling

meeting
people

appliances

Sanders
in

her

and

his

sucks”
poor

department.

It points to

comment

when

relationship
Poor

first

with

performance

the

is

a

legitimate reason to demote someone; however, several
of Alabama Power’s actions, taken in the light most
favorable to Guy, are inconsistent with this reason.
First, Sanders suggests that Guy had been a serious
problem for almost a year, but she did not report any
of his performance issues until after she heard about
his

deployment.

could

not

Indeed,

recover

from

if
his

she

determined

initial

that

comment

he

that

“selling appliances sucks,” a reasonable juror could
wonder why she let him recover for at least 11 months.
Moreover, taken in the light most favorable to Guy, her
response that she was too busy to make a 15-minute
25

phone call rings hollow.
she

had

other

Although it is plausible that

priorities,

a

reasonable

juror

could

conclude that she waited to make the short phone call
until after hearing of Guy’s deployment because she did
not

want

him

in

a

high-level

position

when

he

was

deployed. Second, if Guy’s relationships were so bad
that

Sanders

instructed

the

people

within

her

department not to work with him, it seems illogical
that she never raised it with his supervisors earlier.
Third,

Willis

individual

and

Grice

complaints

never

regarding

asked

Guy

about

his

responsiveness

until after they decided to demote him.

While they did

ask general questions about his relationships in the
mid-July

meeting,

they

did

not

bring

up

specific

complaints.

Finally, Guy received positive-performance

reviews

four

for

years

in

the

same

these problems came to the surface.
positive-performance
potential

problems,

reviews,
raises
26

with
the

position

before

The history of
no

indication

question

of

of

what

happened in the fifth year to change his trajectory so
dramatically.

In

sum,

Guy

has

shown

enough

inconsistencies with the poor-performance rationale to
create a jury question whether it was pretextual.
In

addition

argues

that

actions

and

to

Guy

poor

was

performance,

demoted

comments.

for

his

Specifically,

Alabama

Power

inappropriate
it

notes

his

inappropriate hugging of an executive secretary, his
comments

regarding

appearance,

and

his

his

wife’s

discussion

gynecologist
with

Sanders

and
about

tight-fitting T-shirts for the rowing race.

Similar to

poor

should

performance,

inappropriate

comments

be

taken seriously and are clearly grounds for demotion or
termination.
However,

Grice

and

Willis’s

reaction

to

Guy’s

inappropriate comments suggests this reason may also
have been pretextual.

Grice and Willis heard about the

inappropriate hugging and the gynecologist comment in
June

2012.

In

response,
27

they

held

the

counseling

session, but did not suspend or fire him for sexual
harassment or even begin an investigation into whether
Guy was involved in any other incidents.

Additionally,

although Sanders took Guy’s comments about the T-shirts
as inappropriate, she still did not remove him from
leadership

of

the

rowing

team

and

downplayed

this

comment in her deposition as the reason for demoting or
firing Guy.

When Grice and Willis did decide on an

adverse-employment

action,

they

offered

him

customer-facing positions, where he still would be able
to make inappropriate comments.

Put differently, if

the problem was inappropriate comments, putting him in
front of customers would not solve it.
In response to Guy’s contention that its reasons
were

pretextual,

company

can

have

Alabama

Power

differing

first

reasons

argues
for

that

firing

employee as long as they are not inconsistent.
court agrees as far as it goes.
App’x

at

835.

Poor

an
The

See Landolfi, 515 Fed.

performance
28

a

combined

with

inappropriate comments likely provides a sounder basis
for

demotion

Moreover,

than

that

relationships
Grice

simply

Sanders

between

thought

that

of

blamed

him
a

one

and

these
Guy

other

change

rationales.

for

the

employees

needed

to

be

bad
while
made

regardless of whether Guy was at fault does not mean
they offered inconsistent explanations.

As discussed

above,

are

the

problem

is

not

that

there

multiple

legitimate explanations, but that a reasonable juror
could find both
decision

to

reasons offered for Alabama Power’s

demote

Guy

inconsistent

with

argues

Guy’s

its

other

actions.
Alabama

Power

next

that

claim

of

discrimination amounts to nothing more than an attempt
to drag the court into second guessing a corporation’s
legitimate business judgment on its personnel.

It is

true

as

that

federal

courts

“do

not

sit

a

super-personnel department and it is not [their] role
to second-guess the wisdom of an employer’s business
29

decisions--indeed the wisdom of them is irrelevant--as
long

as

those

discriminatory

decisions
motive.”

were

not

Alvarez

made

v.

with

Royal

a

Atl.

Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).
But, asserting business judgment is not a free pass
to avoid court scrutiny of discriminatory actions.
is

important

company’s
such

to

differentiate

business

judgment

was

judgment
a

mask

between

and

for

questioning

questioning

discrimination,

appears to have been in this case.3

It
a

whether
as

it

Granted, Alabama

3.
To clarify, the court can provide an example.
Consider a company deciding whether to make pens or
pencils as a business strategy. Plaintiff, who is part
of a protected class and has a history of good
performance reviews, advocates that the company develop
pens,
which
appear
to
be
the
better
business
investment.
Despite
the
economic
indicators,
management tells the plaintiff it is going to make
pencils and fires the plaintiff for his contrary
advice. In a first scenario, the company pursues a
pencil strategy and loses a lot of money.
The
plaintiff then claims discrimination. The court would
reject such a claim because it is not its role (much
less its expertise) to question the business judgment
of management even if it turned out to be wrong. In a
second scenario, the company fires the plaintiff, but
pursues the pen strategy anyways.
At this point, the
(continued...)
30

Power’s

rationales

that

it

fired

Guy

based

on

poor

performance and inappropriate comments are legitimate
reasons

to

demote

someone,

and,

even

if

they

were

irrational, it would not matter for purposes of this
suit.

However, as discussed above, Alabama Power’s

actions are incongruent with the two business reasons
it provided.

Because discrimination is “seldom open or

notorious,” the court considers such incongruence as
circumstantial

evidence

of

a

discriminatory

motive.

Coffman, 411 F.3d at 1238.

iii. Employer’s Previous Hostility Towards
Members of the Military
Guy last contends that Alabama Power has previously
displayed hostility toward him taking military leave.

judgment
to
pursue
the
pen
strategy
becomes
relevant--not because of the wisdom of the strategy
(which was likely the right one), but rather because it
is inconsistent with the reason the company gave for
firing the plaintiff.
As explained above, this case
resembles the latter scenario.
31

Even construed in the light most favorable to him, this
factor is neutral.
Guy emphasizes two incidents to show past hostility
towards

him:

the

email

sent

in

2007

lamenting

that

things just “keep getting better and better” after Guy
notified the company of his first deployment; and the
company’s refusal to give him 90 days after his first
deployment before he had to come back to work.

While

the email seems to express frustration at Guy’s long
deployment, any suggestion of animus is minimized by
Guy’s promotion soon after he returned from Iraq.
As to the 90-day period that Guy requested before
returning

to

work,

USERRA

does

provide

a

person

deployed for more than 180 days with 90 days to submit
an

application

for

reemployment

worked for pre-deployment.

to

the

company

38 U.S.C. § 4312.

he

Drawing

all reasonable inferences in favor of Guy, the court
finds

that

candidates

Willis’s
selected

instruction
that

could
32

to

have

replace

interview

Guy

several

weeks after he returned indicates she was looking to
fill the position before the legally required 90-day
period ended.

This inference is bolstered by Alabama

Power’s refusal to allow Guy to have additional time
before

returning

to

work

to

be

with

his

family.

Nevertheless, the plain-language of the statute states
that a service member has up to 90 days to apply for
reemployment.

It does not state, and Guy cites no

cases to suggest, that a company cannot ask about a
person’s returning
Regardless,

Willis

to work before that period ends.
did

not

fill

the

position

with

someone else; Guy returned to work; and he did not file
a USERRA complaint.
sensitivity

to

This episode suggests a lack of

Guy’s

home

situation

after

his

deployment but does not, on its own, show widespread
animus.
Weighed

against

these

two

incidents

is

Alabama

Power’s support for Guy’s military service in the past.
It hired him, knowing he was in the military, made up
33

the

difference

in

salary

when

he

promoted him after he returned.

was

deployed,

and

Employees also checked

in on his family and collected donations for his son
while he was in Iraq.
Although

these

actions

might

demonstrate

that

Alabama Power is generally committed to employees that
serve in the military, it does not preclude this claim
altogether, as Alabama Power argues.

See Gillie-Harp

v. Cardinal Health, Inc., 249 F. Supp. 2d 1113, 1120
(W.D. Wis. 2003) (Crabb, J.) (“[T]here is a difference
between holding members of the armed services in high
esteem and being eager to accommodate a reservist's
absences from work .... [A company] is more likely to
develop hostility towards an employee's reserve duties
after experiencing the inconvenience that those duties
can cause to the business.”).

As noted above, the two

incidents regarding Guy’s first deployment, the timing
of

Alabama

Power’s

decision

to

demote

him,

and

the

inconsistent explanations for that decision create a
34

genuine dispute about whether Guy’s deployment was a
motivating factor in the decision to demote him.
Additionally,
2012

re-deployment

the

circumstances

are

Guy’s prior deployment.

different

related
from

to

those

Guy’s
around

When Guy deployed to Iraq in

2006-2007, he was a lower-level sales associate, for
which a temporary replacement could be easily found and
trained.

In contrast, before the deployment at issue,

Guy had become a division-sales manager over 11 stores.
Although another manager temporarily was going to cover
Guy’s stores, this would have stretched the manager for
a long period of time.

Taking the evidence in the

light most favorable to Guy, a reasonable juror could
conclude that Alabama Power decided to demote Guy to
avoid the inconvenience of his training and deployment.

B.

Whether the Same Decision Would Have Been Made

Under USERRA’s mixed-motive provision, a defendant
may raise the affirmative defense that it would have
35

fired the plaintiff for “legitimate reasons, standing
alone.”

Coffman, 411 F.3d at 1238-39.

This means

that, “if the defendant had two reasons for taking an
adverse

action

against

the

plaintiff,

one

of

them

forbidden by the statute and the other not, and the
defendant can show that even if the forbidden one had
been absent the adverse action would still have been
taken, the plaintiff loses.”

Madden v. Rolls Royce

Corp., 563 F.3d 636, 638 (7th Cir. 2009).
As discussed above, there is a genuine dispute of
material fact about both of Alabama Power’s rationales
for deciding to demote Guy.

Unlike other mixed-motive

cases where this defense has been applied, the company
did not restructure during deployment and eliminate the
position.

See, e.g., Coffman, 411 F.3d at 1239 (noting

that

company

the

did

not

even

have

the

management

position that plaintiff sought); Baerga-Castro v. Wyeth
Pharm., 2009 WL 2871148, at *11 (D.P.R. 2009) (Gelpi,
J.) (finding that company reorganization would have led
36

to same action against plaintiff regardless of military
status).

Nor, based on his performance reviews, did

Guy

a

have

long

history

of

documented

incompetence

before he gave Alabama Power his deployment dates. See,
e.g., Madden, 563 F.3d at 638 (finding that plaintiff
would

have

obligations

been

fired

because

regardless

his

work

of

had

his

been

military

“dangerously

incompetent”); Marino v. Akal Sec. Inc., 377 Fed. App'x
683, 685 (9th Cir. 2010) (holding that plaintiff would
have

been

fired

court-security

for

officer

drinking

on

regardless

the
of

job

his

as

a

military

status).

Instead, the inconsistencies Guy points out

undercut

the

affirmative

defense.

Because

genuine

disputes of material fact exist as to each proffered
reason, the court cannot conclude that a reasonable
factfinder

would

have

to

find

that

there

is

a

“legitimate reason” that led to Guy’s firing despite
the potential discriminatory motive. See Atteberry v.
Avantair, Inc., 2009 WL 1615519, at *4 (M.D. Fla. 2009)
37

(Kovachevich, J.) (“Since discriminatory motive can be
inferred

from

the

inconsistent

reasons

given

for

Defendant’s hiring decision, the Defendant failed to
meet [its] burden of showing that Plaintiff was denied
reemployment
purpose.”).

for

a

legitimate,

non-discriminatory

As such, the court finds that the question

of whether Guy would have been fired regardless of his
status is a genuine dispute of material fact.

* * *
Based on the factors discussed above, the court
concludes that the evidence, taken in the light most
favorable to Guy, creates a genuine dispute of material
fact

over

whether

his

deployment

was

a

motivating

factor in Alabama Power’s decision to demote or fire
him.

While

it

Power

decided

is
to

certainly
demote

inappropriate

comments

evidence

been

has

and

presented
38

plausible
Guy

poor
to

that

solely

based

performance,
suggest

Alabama

a

on

enough

different

narrative: Guy told the company about his impending
deployment, it decided to demote or fire him to avoid
finding a temporary fill for his position, and it used
complaints

about

his

behavior

and

performance

suddenly surfaced after four years to do so.

that

It will

be up to a jury to determine what actually occurred.
Accordingly,
summary

judgment

it

is

(doc.

ORDERED
no.

47),

that

the

filed

by

motion

for

defendant

Alabama Power Company, is denied.
DONE, this the 14th day of April, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE