Thomas v. Steris Corporation

Filing 67

MEMORANDUM OPINION AND ORDER granting 56 MOTION for Summary Judgment on all counts. Signed by Honorable Judge Andrew L. Brasher on 9/6/2019. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KENNETH THOMAS,
Plaintiff,
v.
STERIS CORPORATION,
Defendant.

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Case No. 2:16-cv-996-ALB

MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Thomas (“Thomas”) filed a four-count complaint alleging
that Defendant STERIS Corporation (“STERIS”) fired him for engaging in protected
conduct and belonging to a protected class. Count 1 alleges that STERIS fired him
because he was disabled in violation of the ADA. (Doc 24 ¶¶35-39). Count 2 alleges
that STERIS fired him for requesting that his disability be accommodated in
violation of the ADA. Id. ¶¶40-45. Count 3 alleges that STERIS fired him because
he was over forty in violation of the ADEA. Id. ¶¶46-50. Count 4 alleges that
STERIS fired him for complaining that STERIS was firing other people because
they were over forty in violation of the ADEA. Id. ¶¶51-56. This matter comes
before the Court on Defendant STERIS’ motion for summary judgment on all four
counts. (Doc. 56). Upon consideration, the motion is GRANTED as to all counts.
BACKGROUND
Defendant STERIS is a globe-spanning enterprise that styles itself a “leading
provider of infection prevention and other procedural products and services.”1
STERIS operates a plant in Montgomery, where Thomas was employed for the
better part of 40 years as a human resources manager. 2 (Doc. 56 at 3). At times

1
2

About Steris, https://www.steris.com/about/company (last visited Sept. 9, 2019)
In the 33-year period between 1982 and 2015, Thomas took one hiatus from STERIS between 1991 and 2001.

relevant to this action, Thomas was supervised by Denise DeThomas and Mac
McBride. (Doc. 56 at 3-4).
On April 15, 2015, Thomas’ employment came to an end. (Doc. 60 at 2). The
parties find themselves embroiled in controversy because they each have distinctly
different memories of Thomas’ tenure with the company. Thomas alleges that his
firing was the result of a veritable cannonade of STERIS civil rights abuse, including
age discrimination, disability discrimination, retaliation for requesting disability
accommodations, and retaliation for protesting age discrimination.

Id. at 3.

Conversely, STERIS alleges that Thomas was an incompetent employee who could
not continue to serve as a human resources manager because none of the human
resources he was managing trusted or respected him and Thomas had been given
over a decade to convince them of his conviviality. (Doc. 58-1 at 13).
Thomas was 63 years old at the time of his departure from STERIS. (Doc.
61-1 at 1). He was also disabled as a result of an injury sustained while serving in
the United States military. (Doc. 61-1 at 1). Thomas’ left knee required multiple
surgeries and he needed a cane to walk. Id. at 2. After an initial stint as the human
resources manager in the Montgomery plant during the 1980s, Thomas was rehired
to the same position in 2001. (Doc. 58-1 at 3). During the relevant periods of his
employment with STERIS, Thomas was in possession of an authentic handicapped
placard and made use of a handicapped parking space. (Doc. 56-6 at 1).

Until 2014, Thomas received passable performance reviews, either “meeting”
or “achieving” expectations with the only criticism being that he should spend more
time walking amongst the plant workers. (Doc. 58-1 at 3). In late 2014, a decline in
Thomas’ performance seems to have coincided with the appointment of DeThomas
as his new supervisor. Id. at 4. In just two months, Thomas’ spotless record began
to fall apart. In August, Thomas failed to attend an important corporate meeting and
then, during DeThomas’ first visit to the Montgomery plant, she was told by
employees, including members of the leadership team, that they did not trust
Thomas. (Doc. 58-1 at 7). In September, Thomas attended a corporate training
session but failed, not only to successfully complete the training, but also to followup with remedial education. Id. at 8. Thomas’ unhappy fall continued when he
accidentally deleted a presentation he was supposed to give at STERIS’ headquarters
and just days later incorrectly informed McBride as to the rates that the Montgomery
plant paid independent contractors, resulting in significant embarrassment when
McBride conveyed the incorrect figures to executives. Id. at 9-10. Thomas himself
described the latter mistake as a “big deal.” Id. at 10.
In November of 2014, Thomas attended his mid-year performance review
with DeThomas, during which the two spoke about his recent difficulties and the
lack of confidence that some employees had in Thomas’ management. Id. at 10.
Thomas admitted during this review that he was a “work in progress” and had “a lot

of areas for improvement.” Id.

To follow up on the discussion, DeThomas

conducted a Hogan 360 review on Thomas by sending surveys to 28 of Thomas’
coworkers asking them to give her feedback about his performance. Id. at 11. The
results of the review showed Thomas to be in the bottom 10% of managers, with
particularly low marks in areas imperative to success as a human resource manager,
including the ability to build trust and relationships. Id. at 12.
Following his winter of discontent, Thomas met with DeThomas and McBride
on April 16, 2015 to discuss his performance issues. Id. He stated during the
meeting that he knew he had dropped the ball on at least one occasion and failed to
meet expectations. Id. at 12. At this meeting, Thomas’ supervisors mentioned two
courses of action. The first course involved a “transition” plan that would effectively
terminate Thomas but allow him to stay on for a few months to ease the process.
(Doc. 58-1 at 13-14). The second involved a performance improvement plan but
DeThomas made clear that, given the lack of trust Thomas’ co-workers had in him,
she did not believe it would work. (Doc. 62 at 5). At this point, Thomas left the
building and returned only once to collect his things. (Doc. 58-1 at 14). On April
29, DeThomas filled out and returned a notice of claim to the Alabama State
Department of Labor confirming that Thomas has been discharged for performance
issues and misconduct. (Doc. 61-2 at 2).

Thomas explains the foregoing series of undisputed facts by saying that the
timeline of his alleged inadequacy, which he argues is comprised only of the second
half of 2014, conveniently began after a series of discriminatory interactions with
his employer. (Doc. 61-8 at 45). Thomas presents three instances of interaction
between himself and STERIS that he believes are enough to show that STERIS fired
him for engaging in protected activity or belonging to a protected class. First, in
2013, Thomas opposed STERIS’ firing of Alan Burnett, who was over the age of 40
at the time, on the grounds that the decision did not comply with the corporation’s
policies and procedures. 3 (Doc. 1-1 at 2). Second, in May of 2014, McBride asked
Thomas to consider how employees would view his use of the handicapped spot
considering his stories about playing golf over the weekend. (Doc. 60 at 16). Third,
in both 2012 and early 2014, McBride reported to Thomas’ direct supervisor that he
needed to walk the plant floor more often, despite McBride’s knowledge of Thomas’
handicap. (Doc. 60 at 17).
STERIS now seeks summary judgment that Thomas’ firing was not motivated
by a desire to discriminate or retaliate.

3

Plaintiff’s brief also mentions Mai Ujjin, who was never fired or subjected to any adverse employment action and
in fact still works at the Montgomery plant. Plaintiff claims that when Ujjin was considered for transfer at one
point, he brought up that it wasn’t right that Ujjin wouldn’t be accorded a relocation package. (Doc. 61-8 at 86)

STANDARD
The court will grant summary judgment when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc). The
moving party need not produce evidence disproving the opponent’s claim; instead,
the moving party must demonstrate the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In turn, the nonmoving party
must go beyond mere allegations to offer specific facts showing a genuine issue for
trial exists. Id. at 324. When no genuine issue of material fact exists, the court
determines whether the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c).
DISCUSSION
There are three central issues in this case.
The first issue is whether Thomas suffered an adverse employment action.
Defendant argues that Thomas was never terminated because his supervisors offered
him a choice at the meeting between a performance improvement plan and a
transition plan and, instead, Thomas resigned. (Doc. 58-1 at 22). Therefore,
Defendant urges that the Court find that Plaintiff has failed to make out a prima facie
case on any of his claims. (Doc. 62 at 1). Plaintiff argues that he was never given a
true option and was effectively fired. (Doc. 61-1 at 2-3). The Court resolves all

inferences in favor of Plaintiff and concludes that he has produced enough evidence
that a reasonable jury could find that he suffered an adverse employment action.
Second, if there is a dispute about whether Thomas was fired, the Court must
determine whether that dispute precludes summary judgment. Plaintiff urges that
this dispute ought to preclude summary judgment because it involves a material issue
of fact. (Doc. 60 at 5). Defendant concedes that this dispute may mean that Plaintiff
can establish a prima facie case for his claims, but it urges the Court to continue to
address Defendant’s justification for the adverse employment action. (Doc. 58-1 at
22). The Court agrees with Defendant that the dispute over whether Thomas was
fired or quit is not dispositive.
Third, there is the issue of causation. To survive a motion for summary
judgment, all four of Plaintiff’s claims require him to directly rebut any neutral
business justification that Defendant proffers as an explanation for action that might
otherwise appear discriminatory. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,
1333 (11th Cir. 1999). Plaintiff has asserted that there existed discriminatory intent
behind his firing. He has recounted several remarks made by his supervisors that
suggest they saw his protected status as an inconvenience. If the only evidence
before the Court as to Thomas’ inadequacy were the negative reviews given to him
by his supervisors, those who possibly stood to gain by discriminating, there might
be an issue for trial. However, Defendant has made a showing that Thomas’

coworkers did not trust or respect him: the Hogan 360 review. This showing
corroborates DeThomas’ testimony regarding her visit to the plant and, combined
with other complaints of malfeasance, establishes a neutral justification for Thomas’
firing that he cannot rebut with substantial evidence.
I.

A reasonable jury could conclude that the April Meeting led to an
adverse employment action.
Each of Plaintiff’s claims 4 requires for a prima facie showing that an action

be taken against him. The Eleventh Circuit precedent has a broad definition of
“adverse employment action.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th
Cir. 2000). Any kind of action that would result in an alteration of the conditions of
employment qualifies as an adverse employment action. Id.
Here, the Court, careful to draw all factual inferences in favor of the nonmovant, finds that there are enough facts in the record to support an inference that
Thomas was terminated at the April meeting. Plaintiff recalls, and DeThomas
corroborates, that his outlook was bleak at the April meeting. The undisputed facts
are that DeThomas mentioned (1) a transition plan that would gradually phase him
out of employment and (2) a performance improvement plan that would not be
expected to work. (Doc. 58-1 at 13). As Plaintiff points out, there is a genuine
dispute of fact as to the nature of the statements in the final meeting, specifically

4

A finding that there was an adverse employment action is not necessary for a prima facie showing of
discrimination based on disability. However, it is still necessary to show that some action was taken against him
that was motivated by discrimination.

whether Thomas had a true option between two courses of action or whether the
options were illusory and mentioned in an offhand manner to illustrate just how
hopeless Thomas’ supervisors believed him to be as they fired him. (Doc. 60 at 2).
The Court can construct a plausible scenario where Thomas believed he was being
fired. Termination is obviously an action that constitutes an adverse employment
action. Accordingly, the Court concludes, resolving all inferences in favor of the
Plaintiff, that a reasonable jury could conclude that he was fired at the April meeting
and that his termination constituted an adverse employment action.
II.

The dispute of fact about termination is insufficient to foreclose
summary judgment.
Plaintiff argues that if there is a genuine dispute of material fact on any issue,

summary judgment cannot be granted. Id. And, having established a dispute about
whether he was terminated or resigned, Plaintiff’s arguments effectively end.
But Plaintiff misunderstands the analytical framework for a discrimination
case under the ADA and ADEA. Plaintiff’s claims must be tested under the
McDonnell Douglas framework. See Farley v. Nationwide Mut. Ins. Co., 197 F.3d
1322, 1333 (11th Cir. 1999). This test means that there are additional hurdles for
Plaintiff to clear even after the prima facie stage; a fact that is disputed at the prima
facie stage may not be relevant to the ultimate determination if Plaintiff’s case is
conclusively decided by a later hurdle. The McDonnell Douglas test shifts the
burden of production twice. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). First, once the plaintiff has
made a prima facie showing of each element, the burden shifts to the defendant to
show a neutral business justification for the firing. Once the defendant does this, the
burden shifts back to the plaintiff to directly rebut this showing and to expose it as
pretextual cover for discriminatory actions. Id. In this case, as the Court will detail
later, Defendant has proffered a legitimate justification and Plaintiff has failed to
rebut it.
Plaintiff argues that “because there is a dispute as to why Mr. Thomas is no
longer employed with the Defendant, summary judgment must be denied.” (Doc.
60 at 11). But Plaintiff is wrong not to address the remaining steps of the McDonnell
Douglas burden-shifting test. The case cited by Plaintiff to support his proposition
illustrates his misunderstanding. In Fetner, a police chief sued a city claiming a
violation of his due process rights after he was fired without a hearing. Fetner v.
City of Roanoke, 813 F.2d 1183, 1186 (11th Cir. 1987). The city claimed that the
police chief had resigned in front of the mayor and the chief claimed the mayor had
fired him. Id. The city filed for summary judgment and their motion was denied
because there was a genuine dispute as to a fact that was material to the decision in
the case: whether the police chief had been fired. Id. In Fetner this issue was
material because an employee with a vested right in his government employment
cannot make a claim for a procedural due process violation if he quits. In our case,

although there is a similar factual dispute to that in Fetner, it does not eliminate
Plaintiff’s burden to meet the later steps of the McDonnell Douglas test.
III.

The Plaintiff has failed to rebut the Defendant’s justification.
The first step of the McDonnell Douglas test is that the plaintiff must make a

prima facie showing on each claim. See Farley v. Nationwide Mut. Ins. Co., 197
F.3d 1322, 1333 (11th Cir. 1999).

The summary judgment standard requires the

court to believe the evidence of the non-movant and draw all justifiable inferences
in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Thomas has
adduced several interactions and a timeline that could give rise to an inference of
discrimination because of age, disability, disability retaliation, and age retaliation.
The Court will assume for the purposes of argument that Thomas has made a prima
facie showing on each count. See East v. Clayton County, 436 Fed. Appx. 904, 911
(11th Cir. 2011) (Plaintiff meets the requirements for age discrimination by showing
that (1) he was a member of a protected age group, (2) he was qualified for his
position, (3) he suffered an adverse employment action and (4) he was treated less
favorably than any younger, similarly situated employee.); Cash v. Smith, 231 F.3d
1301, 1305 (11th Cir. 2000) (Plaintiff meets the requirements for disability
discrimination by showing that (1) he is disabled, (2) he was a qualified individual
at the relevant time and (3) he was discriminated against because of his disability.);
Bagwell v. Morgan Cnty. Comm’n, 676 Fed. Appx. 863, 869 (11th Cir. 2017)

(Plaintiff meets the requirements for disability retaliation by showing that (1) he
participated in a protected activity, (2) he suffered an adverse employment action,
and (3) there was a causal connection between the Plaintiff’s participation in the
protected activity and the adverse employment action.); Barnett v. Athens Reg’l Med.
Ctr., 550 Fed. Appx. 711, 714 (11th Cir. 2013) (Plaintiff meets the requirements for
age discrimination by showing that he (1) participated in a protected activity, (2)
suffered an adverse employment action, and (3) there was a causal connection
between the Plaintiff’s participation in the protected activity and the adverse
employment action.)
The second step in the McDonnell Douglas test requires the defendant to offer
a neutral business justification for the termination. The defendant at this stage “need
not persuade the court that it was actually motivated by the proffered reasons. It is
sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it
discriminated against the plaintiff.” Chapman v. AI Transp., 229 F.3d 1012, 1024
(11th Cir. 2000). Defendant focuses in this stage on the fact that Thomas’ coworkers
did not trust him. (Doc. 58-1 at 24). They told DeThomas they didn’t trust him in
September, and they repeated it on the survey in November. Id. This evidence is
untainted by the opinions of Thomas’ supervisors and is especially powerful because
it is the opinion of the same employees that he claimed he was protecting from

discrimination, the same employees who he had been managing and presumably
getting to know for over a decade.
The final step is for Plaintiff to directly rebut the evidence of mistrust as a
justification for his firing. The plaintiff “must introduce significantly probative
evidence showing that the asserted reason is merely pretext for discrimination.”
Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir.
2006). This can be done by “directly persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207(1981)
Plaintiff fails to do either. The only time Thomas directly addresses the
evidence of mistrust is in his declaration, where he states that the Hogan 360 review
was mismanaged by DeThomas because she hadn’t sent it to people he
recommended and hadn’t warned them it was coming. (61-1 at 7). The Eleventh
Circuit has explained that quibbles like this are insufficient to defeat an employer’s
justification:
Alvarez argues at length that Royal Atlantic’s complaints about the
quality of her work were unfounded, but the fact that she thinks more
highly of her performance than her employer does is beside the point.
The inquiry into pretext centers on the employer's beliefs, not the
employee's beliefs and, to be blunt about it, not on reality as it exists
outside of the decision maker’s head…The question is not whether it
really was Alvarez’s fault that assignments were not completed on time,
or whether she did delegate excessively, or whether she was aggressive

and rude to her colleagues and superiors, or whether she actually lost
an important document or truly did fall asleep at her desk. The question
is whether her employers were dissatisfied with her for these or other
non-discriminatory reasons, even if mistakenly or unfairly so, or
instead merely used those complaints about Alvarez as cover for
discriminating against her…
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).
Here, Thomas’ quibbles with the survey are not probative of the pretextual
nature of the proffered justification. The survey corroborates DeThomas’ statements
about her interactions with employees when she first visited the plant. Although
Thomas alleges that his supervisors were the ones discriminating against him, his
own co-workers and subordinates were the ones that provided the basis for his firing.
The fact that DeThomas sent the survey to people Thomas had not pre-approved
does nothing to corrode the credibility of the survey. And Thomas’ disagreements
with the methodology or results of the survey are not substantial evidence that could
convince a reasonable jury that it is more likely his firing was motivated by a
protected classification than by his general failure to engender trust amongst his
colleagues.
Plaintiff’s last-ditch effort to overcome Defendant’s justification for his
termination is the argument that “[because] Defendant has taken inconsistent
positions relating to why Mr. Thomas is no longer employed…any reason offered
by the Defendant as to why he is no longer employed is pretextual.” (Doc. 60 at 13).
This argument fails. The only inconsistency in this case is about how Thomas was

separated from the company; Defendant has argued here that Thomas was not
terminated but told the Alabama Department of Labor that he had been. Defendant’s
explanation for why it took the actions that it took—the Hogan 360 review and
related issues—has never changed nor has Defendant been inconsistent in asserting
it.
The cases cited by Plaintiff are inapposite. 5 He cites Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 147 (2000) and Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) to support the proposition
that the Court’s suspicions must be aroused by, respectively, the “falsity of the
employer’s explanation” and “contradictions in the employers proffered legitimate
reasons” as to why the employee and employer have been separated. (Doc. 60 at
13). But the inconsistency that would expose an employer to suspicion under Reeves
and Alvarez is inconsistency as to why the employee was separated. It is not the
same type as the inconsistency that Plaintiff alleges exists in Defendant’s position,
which is over how the employee became separated. An employer is not estopped
from explaining why it terminated an employee simply because it also argues that
the employee was not really terminated but quit instead.

5

Although Defendant argued that the series of events during the April meeting did not constitute termination, it has
conceded that Thomas would have walked out of the room on either a performance improvement plan or a transition
plan. Because the Court has found that these facts support an inference of termination, it will refer to Defendant’s
reasons for the two plans as reasons for termination.

The federal courts “do not sit as a super-personnel department that reexamines
an entity’s business decisions. …our inquiry is limited to whether the employer gave
an honest explanation of its behavior.” Chapman v. AI Transp., 229 F.3d 1012, 1030
(11th Cir. 2000). Whether STERIS fired Thomas, transferred him, or in any other
way altered his employment, it has consistently given a non-discriminatory
justification as to why it happened: Thomas did such a bad job that many of his coworkers distrusted him and told management that he was incapable of continuing to
perform his duties.

(Doc. 58-1 at 28). Since Thomas has not rebutted this

justification or effectively attacked its credibility, his claims fail.
CONCLUSION
Based on the above reasoning, Defendant’s Motion for Summary Judgment
on all counts is GRANTED. Judgment will be entered by separate order.
DONE and ORDERED this 6th day of September, 2019.

/s/ Andrew L. Brasher
ANDREW L. BRASHER
UNITED STATES DISTRICT JUDGE