Morgan v. Saehaesung Alabama, Inc.
CORRECTED OPINION AND ORDER 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 3/25/2014. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
SAEHAESUNG ALABAMA, INC.,
CIVIL ACTION NO.
CORRECTED 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 him from his position as
production manager because he is not of Korean national
Jurisdiction is proper under 28 U.S.C. §§ 1331
(federal question) and 42 U.S.C. § 2000e-5(f)(3) (Title
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.
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.”
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).
Saehaesung Alabama is the local subsidiary of a
Korean-owned automotive parts manufacturer.
hired to serve as a production manager in the company’s
responsible for overseeing shift supervisors and hourly
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
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.
He expressed this
November 12, 2011, to Jin Heo, the daughter of the
“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
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
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:
As summarized by Morgan,
(1)“[I]t looks like they are going to
all Korean management.”
Def.’s Ex. A (Doc. No. 20-1) at 127:1415; see also id at 135:8-9 (“he told me,
management”); Morgan Dec., Pl’s Ex. 5
(Doc. No. 26-5) ¶ 2 (“[Moody told me]
(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
facility and that the Koreans wanted all
Opportunity Commission Charge, Def.’s
Ex. E (Doc. No. 20-5).
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
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.
42 U.S.C. 2000e-2(a)(1).
Morgan’s termination are a central aspect of Morgan’s
case, the court must determine the admissibility of the
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
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
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
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.
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
decision or policy of the employer.”
Kidd, 731 F.3d at
1209 (quoting Rowell, 443 F.3d at 800) (emphasis added).
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
manager’s statement could be admissible on one of these
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.)
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),
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
attributed to the decisionmaking body.
However, Moody’s statements could be admissible as a
repetition of a decisionmaker’s statements.
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
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”.
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.
Therefore, the court must identify an exception or
American manager and for Morgan’s repetition of those
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
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
Morgan presents subpart (d)(2)(D) of Rule
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
[Plantiff] would still have to identify
an additional exception to the rule
against hearsay because it is [the
decisionmakers'--statement itself that
has to be admissible.”
731 F.3d at 1208 n.15.
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
investigate an accident should be admitted under subpart
(d)(2)(C) because he was authorized to make statements
Similarly, in B-W Acceptance Corp. v. Porter, 568 F.2d
1179 (5th Cir. 1978), the same court held that subpart
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).
by his employer to testify about certain matters. Id. at
conclusion that Plant Manager Kim specifically instructed
Human Resources Manager Moody to talk to Morgan about his
termination, including why he was being fired.
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.
Although this testimony is
instructed Moody to inform Morgan both of the fact of his
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.
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.
statements, along with all other evidence in this case,
national-origin discrimination such that the claim should
go to a jury.
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 ... or national origin.”
U.S.C.A. § 2000e-2(a)(1).
Under the 1991 amendments to
this Act, “an unlawful employment practice is established
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).
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
impermissible factor] was a motivating factor, he has
established liability and thus may be entitled to some
Whether the employer has met its ‘same action’
burden of proof would go to the nature of the relief
Hall v. Ala. Ass'n of Sch. Bds., 326 F.3d
1157, 1165 (11th Cir.2003).
In considering a claim of discrimination at trial,
In the first step, the court must determine
whether the employee has proved by a preponderance of the
though other factors also motivated the employer.
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.
also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101
instruction under Title VII, 42 U.S.C.A. § 2000e-2(m), “a
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
hubris, as displayed in the email he wrote to the company
owner’s daughter about how the company could be run
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
The evidence thus supports a conclusion that
Saehaesung fired Morgan for entirely legitimate reasons,
or at least would have terminated Morgan absent race or
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.
Because Morgan’s discharge came
differences between American workers and Kim, there is
sufficient evidence for a jury to find that race or
national origin was, at least, in play at time of his
discharge is a reasonable inference.
But, also, there
are Human Resources Manager Moody’s 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
an American manager.”
Thus, the evidence could support
the conclusion that Morgan’s race or national 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)
DONE, this the 25th day of March, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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