Glass v. Supreme Beverage Company

Filing 68

ORDER the court hereby ADOPTS the report of the magistrate judge. The court further ACCEPTS the recommendations of the magistrate judge that Supreme Beverage's motion for summary judgment be GRANTED in Part and DENIED in Part, as further set out within. Final Pretrial Conference set for 6/16/2014 1:15 PM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Jury Trial set for 7/28/2014 9:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge Abdul K Kallon. Signed by Judge Abdul K Kallon on 5/12/2014. (PSM)

FILED
2014 May-12 AM 10:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

PATRICK GLASS,
Plaintiff,
v.
SUPREME BEVERAGE
COMPANY,

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Civil Action Number
2:10-cv-00470-AKK

Defendant.

ORDER
On February 4, 2014, the magistrate judge entered a report and
recommendation, doc. 63, regarding defendant Supreme Beverage’s motion for
summary judgment, doc. 26, and the parties were allowed fourteen (14) days1 in
which to file objections to the recommendations made by the magistrate judge. On
February 25, 2014, defendant Supreme Beverage Company filed objections to the
magistrate judge’s report and recommendation. Doc. 65. The magistrate judge
subsequently amended the report and recommendation on March 25, 2014 for the

1

The magistrate judge subsequently granted the defendant’s motion for a seven-day
extension of this deadline, see doc. 64.
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sole purpose of clarifying the recommendation to reflect that several of plaintiff
Patrick Glass’ claims were untimely or otherwise insufficient, which it determined
in the “Analysis” section of the original recommendation but inadvertently failed
to state that conclusion in the “Recommendation” section. Doc. 66.
Although the court agrees with Supreme Beverage as to the relevant
standard for proper comparators and for the use of so-called “me too” evidence,
see doc. 65 at 14–15, 20–21, the court finds nonetheless that Glass presented
sufficient evidence of pretext to survive a motion for summary judgment. Among
other things, Glass presented evidence of non-protected class employees who
purportedly engaged in nearly identical conduct as Glass, and yet were not
discharged. Whether the evidence regarding these subset of employees will
ultimately be sufficient for Glass to meet his burden of proving retaliatory animus
is a matter for a jury to decide based, in part, on credibility determinations and on
evaluation of the evidence as a whole. At this juncture, however, having reviewed
the pleadings, the briefs, the magistrate’s report and recommendation, and
Supreme Beverage’s objections thereto, the court hereby ADOPTS the report of
the magistrate judge. The court further ACCEPTS the recommendations of the
magistrate judge that (1) Supreme Beverage’s motion for summary judgment be
GRANTED on Glass’s Title VII retaliation claim to the extent it is based on (a)
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the July 2007 drug test; (b) the October 2007 write-up; (c) the November 2007
write-up; and (d) the three-day suspension in March 2009; (2) Supreme
Beverage’s motion for summary judgment be GRANTED on Glass’s § 1981
retaliation claim to the extent it is based on (a) the July 2007 drug test; and (b) the
three-day suspension in March 2009; (3) Supreme Beverage’s motion for summary
judgment be DENIED as to Glass’s Title VII retaliation claim to the extent it is
based on his March 23, 2009 termination; and (4) Supreme Beverage’s motion for
summary judgment be DENIED as to Glass’s § 1981 retaliation claim to the
extent it is based on his (1) October 2007 write-up; (2) November 2007 write-up;
and (3) March 23, 2009 termination.
This case is set for a final pretrial conference on June 16, 2014, at 1:15
p.m. at the Hugo L. Black U.S. Courthouse in Birmingham, Alabama. The court
directs the parties’ attention to the attached pretrial conference instructions. This
case is set for trial on July 28, 2014, also at the Hugo L. Black U.S. Courthouse in
Birmingham, Alabama.
DONE this 12th day of May, 2014.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
PRE-TRIAL DOCKET
HON. ABDUL K. KALLON, PRESIDING
BIRMINGHAM, ALABAMA
This case is set for a pre-trial hearing pursuant to Rule 16 of the Federal
Rules of Civil Procedure. A conference-type hearing will be held in chambers in
the Hugo Black Federal Courthouse in Birmingham, Alabama at the time
indicated.
The hearing will address all matters provided in Rule 16, including the
limitation of issues requiring trial, rulings on pleading motions, and settlement
possibilities.
Counsel attending the conference are expected to be well-informed about
the factual and legal issues of the case, and to have authority to enter appropriate
stipulations and participate in settlement discussions. Counsel appearing at the
conference will be required to proceed at trial notwithstanding the naming of
others as designated trial counsel.
Promptly upon receipt of this notice, plaintiff's counsel is to initiate
discussions with other counsel aimed at ascertaining which basic facts are not in
dispute, at clarifying the parties' contentions (for example, just what is denied
under a "general denial") and at negotiating workable procedures and deadlines
for remaining discovery matters. At least four (4) business days in advance of the
conference, plaintiff's counsel is to submit to chambers (via email at
[e-mail])a proposed Pre-trial Order in WordPerfect
format, furnishing other counsel with a copy. It is anticipated that in most cases
the proposed order, with only minor insertions and changes, could be adopted by
the court and signed at the close of the hearing.
A sample of a proposed Pre-trial Order is available on the Chamber web site
(www.alnd.uscourts.gov/Kallon/Kallonpage.htm) to illustrate the format preferred
by the court and also to provide additional guidance and instructions. Each order
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must, of course, be tailored to fit the circumstances of the individual case.
Counsel drafting this proposed order should consider the utility this
document will provide for the litigants, the jury, and the court alike. The court
anticipates using the pretrial order to (1) identify and narrow the legal and factual
issues remaining for trial, and (2) provide jurors with the legal and factual context
of the dispute. This order should not revisit at length arguments made in previous
filings with the court, nor should it serve as another venue for adversarial
posturing. Pretrial orders should be simple, short, and informative.
IN ANY CASE WHERE COUNSEL HAVE ANNOUNCED
SETTLEMENT TO THE COURT, A CONSENT JUDGMENT IN
SATISFACTORY FORM MUST BE PRESENTED TO THE COURT PRIOR TO
THE SCHEDULED TRIAL DATE; OTHERWISE, THE CASE WILL BE
DISMISSED WITH PREJUDICE.

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