Morgan v. Saehaesung Alabama, Inc.

Filing 47

OPINION AND ORDER: It is ORDERED that defendant Saehaesung Alabama, Inc.'s 18 Motion for Summary Judgment is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 3/18/2014. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

MICHAEL MORGAN,
Plaintiff,
v.
SAEHAESUNG ALABAMA, INC.,
Defendant.

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CIVIL ACTION NO.
3:12cv816-MHT
(WO)

OPINION AND ORDER
Relying on Title VII of the Civil Rights Act of 1964,
as amended (42 U.S.C. §§ 1981a & 2000e through 2000e-17),
plaintiff Michael Morgan claims that defendant Saehaesung
Alabama,

Inc.

illegally

fired

from

his

position

as

production manager because he is not of Korean national
origin.

Jurisdiction is proper under 28 U.S.C. §§ 1331

(federal question) and 42 U.S.C. § 2000e-5(f)(3) (Title
VII).
This case is now before the court on the company’s
motion for summary judgment. For the reasons described
below, the motion will be denied.

I. LEGAL STANDARD
“A 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).

II. BACKGROUND
Saehaesung Alabama is the local subsidiary of a
Korean-owned automotive parts manufacturer.

Morgan was

hired to serve as a production manager in the company’s
Lafayette,

Alabama

plant.

In

that

role,

he

was

responsible for overseeing shift supervisors and hourly

2

staff; maintaining sufficient quantities and quality of
production; and producing company reports on production
levels and issues.

He was one of two non-Korean managers

in the plant, the other being Human Resources Manager
Barry Moody.
Morgan worked long hours and believed that he was
doing a good job.

However, in his first few months on

the job, he grew to view Dong Jung Kim, the plant manager
(who spoke very limited English), as having an aggressive
and ineffective management style.
criticism

of

company

management

He expressed this
in

an

email,

dated

November 12, 2011, to Jin Heo, the daughter of the
company’s owner:
“HEY,JIN I spoke to you yesterday on the
problems with Mr.KIM. WE need to
address, those problems that going own
at the plant, the employees want to
discuss this with you as well, in a
meeting, they are very upset with all
the things are going own at the plant,
like i told you yesterday, if we don’t
take action, we going have to face some
legal problems down the road, this is
what i trying to prevent for i company,
MR.KIM, don’t realize all what he is
3

doing, and the problems he causing at
the plant, America culture is totally
different than the KOREN, culture, he
must realize that, and there is laws in
America we must abide by where he likes
it or not, he can coast the company a
lot of money, if he not careful, in his
actions toward the employees,i trying to
prevent this from happenings, but i need
your support, and Mr.Bae, in this
matter, I look forward to seeing you
soon, as well as Mr.bae to help resolve
this problem we having at our plant.
thanks Michael and all ways have a
blessed day.
Morgan Email, Def.’s Ex. 4 to Morgan Dep. (Doc. No 20-1)
at 63 (spelling and grammar as in original).
Morgan was fired on December 6, 2011, less than three
months after he had been hired.

He had received no

negative feedback on his work before his termination.
The decision was made in a meeting in which no non-Korean
staff was present.

The plant manager instructed Human

Resources Manager Moody to tell Morgan that he was fired
and to deal with the paperwork.
Moody told him:

4

As summarized by Morgan,

(1)“[I]t looks like they are going to
all Korean management.”

Morgan Dep.,

Def.’s Ex. A (Doc. No. 20-1) at 127:1415; see also id at 135:8-9 (“he told me,
said,

they

are

going

to

a

Korean

management”); Morgan Dec., Pl’s Ex. 5
(Doc. No. 26-5) ¶ 2 (“[Moody told me]
that

they

wanted

an

all-Korean

Management staff”).
(2)“[T]hat Korean management had talked
and that the owner had decided he didn’t
want an American manager at the plant.
Mr. Moody told me that the owner wanted
a

Korean

production

manager

at

the

facility and that the Koreans wanted all
Korean management.”

Equal Employment

Opportunity Commission Charge, Def.’s
Ex. E (Doc. No. 20-5).

5

Moody now denies making these statements, and there is no
other evidence of the statements.
After Morgan was terminated, a Korean manager from
the shipping department began to sit at his desk, but
there is no evidence that the manager took over his
duties.

The company advertised for his position on the

Opelika Career Center website, but has not filled it.
Some of the job duties have been taken on by the nonKorean shift supervisors, and some have been taken on by
a person who goes by “Charles,” who also translates for
the plant manager.

There is not evidence in the record

as to Charles’s legal name or job title.

III. DISCUSSION
A.
Title

VII

bars

an
of

employer

employee

“because

race,

origin.”

42 U.S.C. 2000e-2(a)(1).

6

from

color,

discharging

...

or

an

national

Because
statements

Human

Resources

regarding

Manager

Moody’s

alleged

discriminatory

reasons

behind

Morgan’s termination are a central aspect of Morgan’s
case, the court must determine the admissibility of the
statements.

At this summary-judgment stage as stated

above, the court must credit Morgan’s testimony that
Moody actually made the statements.

However, the court

“may consider only that evidence which can be reduced to
an admissible form.” Rowell v. BellSouth Corp., 433 F.3d
794, 800 (11th Cir. 2005).

Therefore, the court must

determine whether Moody’s statements were hearsay, and,
if so, whether they fall within a hearsay exception.
Hearsay is a statement which is made outside of court
which

is

asserted.

offered

to

prove

the

truth

of

the

matter

Fed. R. Evid. 801(c).

Morgan argues that the court should consider Moody’s
statements as non-hearsay under subpart (d)(2)(D) of Fed.
R. Evid 801, which states that a statement offered by an
opposing party is not hearsay if it “was made by the

7

party’s agent or employee on a matter within the scope of
that relationship and while it existed.”

In Kidd v.

Mando Am. Corp., 731 F.3d 1196 (11th Cir. 2013), the
Court

of

Appeals

for

the

Eleventh

Circuit

recently

clarified how courts should examine such statements in
Title VII cases.

There, the plaintiff claimed that she

was denied a promotion because she was not Korean and
testified that a human resources manager named had told
her that management “refused to even consider an American
candidate” for the job she was seeking. Id. at 1207.

The

manager denied making the statement, and the trial court
refused to admit evidence of the statement as hearsay.
The Kidd court clarified that there are two ways that
such an employee’s statement could be admissible evidence
against his employer.

First, the statement could be

admissible as within the scope of his employment if he
had

“some

kind

of

participation

decision or policy of the employer.”

in

the

employment

Kidd, 731 F.3d at

1209 (quoting Rowell, 443 F.3d at 800) (emphasis added).

8

Alternatively, an employee’s statement is admissible if
he is repeating a statement from the decisionmakers and
the employee’s statement is independently admissible. 731
F.3d at 1207-08.

Because the Kidd court found that the

trial

not

court

had

adequately

assessed

whether

the

manager’s statement could be admissible on one of these
two

grounds,

it

reversed

and

remanded

the

case

for

further factual development. Id. at 1210. On remand, the
statement was again excluded. Kidd v. Mando Am. Corp.,
2013 WL 6772979 (M.D. Ala. Dec. 20, 2013) (Albritton, J.)
(appeal pending).
Morgan cannot admit Moody’s statements under the
first Kidd basis.

The Kidd court drew a contrast: on the

one hand, there is an individual who participates in the
employment decision in a “narrow” or “ministerial” way,
in which case the remark is not admissible; and, on the
other hand, there is an individual whose participation
“amounted to something more” (even if that additional
participation is merely consultation about the decision),

9

in which case the remark may be admissible. Kidd, 731
F.3d at 1210 (citing Simple v. Walgreen Co., 511 F.3d
668, 672 (7th Cir. 2007)).

Morgan admits that Moody

played a substantive role in his discharge only after the
decision was made to fire him.

Opp. Br. at 18 (“Kim

instructed [Moody] to fire Plaintiff and told him the
reasons for the decision.”); Morgan Dep. at 128:23-129:2
(Moody “had to drop the axe on me because that’s what
they told him to do. That’s the only reason he had to do
it.”); see also Moody Dep. 55:4-56:18 (describing Moody’s
non-involvement in the decision to terminate Morgan).
Since Morgan’s termination was a fait accompli by the
time

Moody

became

involved,

his

opinions

cannot

be

attributed to the decisionmaking body.
However, Moody’s statements could be admissible as a
repetition of a decisionmaker’s statements.

Especially

as characterized in Morgan’s sworn discrimination charge
to the Equal Employment Opportunity Commission, Moody’s
alleged statements could be viewed as a repetition of

10

statements from Kim or other Korean managers: “[Moody]
told me that Korean management had talked and that the
owner had decided he didn’t want an American manager at
the plant. Mr. Moody told me that the owner wanted a
Korean production manager at the facility and that the
Koreans wanted all Korean management”.

Equal Employment

Opportunity Commission Charge, Def.’s Ex. E (Doc. No. 205).
“Hearsay within hearsay is not excluded by the rule
against hearsay if each part of the combined statements
conforms with an exception to the rule.” Fed. R. Evid.
805.

Therefore, the court must identify an exception or

exclusion
Morgan’s

for

Kim’s

termination

statements
were

that

that
he

the
did

reasons
not

want

for
an

American manager and for Morgan’s repetition of those
statements.

The court agrees with Morgan that, under

subpart (d)(2)(D) of Rule 801, Kim’s alleged statements
could be admissible.

The court could find at trial that

11

he played a role in the decisionmaking process that led
to Morgan’s termination.
The next step is for Morgan to identify a separate
ground for admissibility of Moody’s repetition of Kim’s
statements.

Morgan presents subpart (d)(2)(D) of Rule

801 again.

He argues that, because hiring and firing

employees was within the scope of Moody’s employment, his
repetition of Kim’s statements fell within that scope of
employment and should be admissible.

However, the Kidd

court refused to include automatically such repetitions
by a member of the human resources department within Rule
801's subpart (d)(2)(D) exclusion from hearsay:
“To be sure, we do not suggest that if
[plaintiff] were able to prove that this
statement was based on an observation
[the manager] made or something he was
told by the ... decisionmakers that it
would automatically be admissible as an
admission
by
a
party
opponent.
[Plantiff] would still have to identify
an additional exception to the rule
against hearsay because it is [the
manager]'s--rather
than
the
...
decisionmakers'--statement itself that
has to be admissible.”

12

731 F.3d at 1208 n.15.
However,

Moody’s

repetition

could

be

admissible

pursuant to subpart (d)(2)(C) of Fed. R. Evid. 801, which
excludes from hearsay a statement “made by a person whom
the party authorized to make a statement on the subject.”
In Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980),
the former Fifth Circuit Court of Appeals ruled that
statements

by

an

expert

hired

by

a

bus

company

to

investigate an accident should be admitted under subpart
(d)(2)(C) because he was authorized to make statements
about

the

causes

of

the

accident.

Id.

at

782.*

Similarly, in B-W Acceptance Corp. v. Porter, 568 F.2d
1179 (5th Cir. 1978), the same court held that subpart
(d)(2)(C)

applies

to

an

employee’s

testimony

in

a

previous proceeding when the employee had been authorized

*

The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit rendered prior to
October 1, 1981, and all Former Fifth Circuit Unit B and
non-unit decisions rendered after October 1,1981. See
Stein v. Reynolds Secur., Inc., 667 F.2d 33, 34 (11th
Cir. 1982); Bonner v. City of Prichard, 661 F.2d 1206,
1207 (11th Cir. 1981)(en banc).
13

by his employer to testify about certain matters. Id. at
1183.
In

this

case,

the

evidence

could

support

the

conclusion that Plant Manager Kim specifically instructed
Human Resources Manager Moody to talk to Morgan about his
termination, including why he was being fired.

According

to Moody, “[Kim] told me that I needed to get with
Michael Morgan, that they were going to go in a new
direction, and that his employment--I was to let him know
that his employment would be ending with Saehaesung.”
Moody Dep. at 56:13-18.
ambiguous,

it

could

be

Although this testimony is
read

to

indicate

that

Kim

instructed Moody to inform Morgan both of the fact of his
termination

and

of

the

reasons

for

his

termination.

Since the court could conclude that Moody was authorized
by Kim to speak to Morgan about why he was being fired,
Moody’s statements could be admissible under subpart
(d)(2)(C) of Rule 801.

14

Since the court could find that Kim’s statements and
Moody’s repetition of them are not hearsay under subparts
(d)(2)(D) and (d)(2)(C) of Rule 801, respectively, the
court will consider them on summary judgment. See Fed. R.
Civ.

P.

56(c)(2);

amendments.

The

advisory
next

committee

question

is

note

to

whether

2010
Kim’s

statements, along with all other evidence in this case,
are sufficient to support a claim of race discrimination
such that the claim should go to a jury.

B.
Title VII expressly states that it is unlawful “to
discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because
of such individual's race.”

42 U.S.C.A. § 2000e-2(a)(1).

Under the 1991 amendments to this Act, “an unlawful
employment practice is established when the complaining
party

demonstrates

that

race,

15

color,...

or

national

origin

was

a

motivating

factor

for

any

employment

practice, even though other factors also motivated the
practice.” 42 U.S.C.A. § 2000e-2(m).

In addition, the

1991 amendments provide that, “On a claim in which an
individual

proves

a

violation

...

and

a

respondent

demonstrates that the respondent would have taken the
same

action

in

the

absence

of

the

impermissible

motivating factor, the court--(i) may grant declaratory
relief, injunctive relief (except as provided in clause
(ii)), and attorney's fees and costs demonstrated to be
directly attributable only to the pursuit of a claim
under section 2000e-2(m) ...; and (ii) shall not award
damages

or

issue

reinstatement,
U.S.C.A.

§

an

order

hiring,

requiring

promotion,

2000e-5(g)(2)(B).

any

or

“Thus,

admission,

payment.”
under

42

these

amendments, if the employee shows merely that race was a
motivating factor, he has established liability and thus
may be entitled to some relief.

Whether the employer has

met its “same action” burden of proof would go to the

16

nature of the relief available.”

Hall v. Ala. Ass'n of

Sch. Bds., 326 F.3d 1157, 1165 (11th Cir.2003).
In considering a claim of discrimination at trial,
therefore,

the

assessment.

court

must

go

through

a

two-step

In the first step, the court must determine

whether the employee has proved by a preponderance of the
evidence

that

motivating

his

factor

race
for

or

the

national

employer's

origin

was

decision,

though other factors also motivated the employer.

a

even

If the

employee has shown this fact by a preponderance of the
evidence, then liability is established and the court
must go to step two of the process.

At step two, the

court must determine whether the employer has proved by
a preponderance of the evidence that it would have taken
the same adverse-employment action against the employee
even in the absence of the impermissible factor.

See

also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101
(2003)

(in

order

to

obtain

a

mixed-motive

jury

instruction under Title VII, 42 U.S.C.A. § 2000e-2(m), “a

17

plaintiff need only present sufficient evidence for a
reasonable jury to conclude by a preponderance of the
evidence, that ‘race, color, ... or national origin’ was
a motivating factor for any employment practice”). Here,
the court concludes that the evidence is sufficient to go
to a jury to undertake this two-step process.
On the one hand, the evidence supports a conclusion
that

company

management

fired

Morgan

because

of

his

hubris, as displayed in the email he wrote to the company
owner’s daughter about how the company could be run
better.

Management could well have viewed the comments

in the email, not as constructive criticism, but as
uncalled-for arrogance, and in particular from someone
whose command of the written English language is far from
perfect.

The evidence thus supports a conclusion that

Saehaesung fired Morgan for entirely legitimate reasons,
or at least would have terminated Morgan absent nationalorigin bias.

18

However, the evidence also supports a conclusion that
the plant management wanted to get rid of Morgan because
he was not Korean.

This conclusion is supported by

evidence that: in his email, Morgan was not only critical
of the company and Plant Manager Kim, he appeared to base
that criticism on the difference he perceived between
American and Korean ‘cultures’; this criticism came from
a non-Korean; this email was sent to the company owner’s
daughter; and his discharge came approximately three
weeks after the email.
in

the

wake

of

his

Because Morgan’s discharge came
criticism

of

perceived

cultural

differences between American workers and Kim, there is
sufficient evidence for a jury to find that national
origin was, at least, in play at time of his discharge is
a reasonable inference.
Resources

Manager

Moody’s

But, also, there are Human
statements,

which

together

suggest that Kim, the person Morgan singled out for
criticism, stated that he “wanted a Korean production
manager, “wanted all Korean management,” and “didn’t want

19

an American manager.”

Thus, the evidence could support

the conclusion that Morgan’s race or origin was not only
‘a motivating’ factor, it was the only factor.
Whether the first conclusion (no discrimination) or
the second (discrimination) is correct cannot be resolved
on summary judgment.

Rather, the evidence is sufficient

to go to trial.
* * *
Accordingly, it is ORDERED that defendant Saehaesung
Alabama, Inc.’s motion for summary judgment (doc. no. 18)
is denied.
DONE, this the 18th day of March, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE