Gunter v. Coca-Cola Bottling Company United, Inc.

Filing 24

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 12/19/12. (KGE, )

FILED
2012 Dec-19 PM 04:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Plaintiff,
v.
COCA COLA BOTTLING CO.
UNITED, INC.,
Defendant.

CIVIL ACTION NO.
11-AR-0522-S

MEMORANDUM OPINION
There are several words to describe this case.
not “easy”.
Cola

One of them is

The court has before it the motion of defendant, Coca

Bottling

Co.

United,

Inc.

(“Coke

United”),

for

summary

judgment, seeking dismissal of the above-entitled action brought by
plaintiff, Ronnie Gunter (“Gunter”).

In his original complaint,

Gunter alleged race discrimination and retaliation by his employer,
Coke United, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.

He appended state

law claims of intentional infliction of emotional distress and
negligent hiring, supervision, training, and retention.

Since

then, Gunter has withdrawn his race discrimination claim, and all
of

his

state

retaliation.1

law

claims.

This

leaves

only

his

claim

For the reasons that follow, Coke United’s motion

for summary judgment will be denied.

1

of

Gunter is the non-movant. Rule 56, F.R.Civ.P., therefore requires
that all admissible evidence, together with all reasonable inferences
therefrom, be viewed in the light most favorable to Gunter.

Background Information
Coke

United

products.

is

a

bottler

and

distributor

of

Coca

Gunter began working for Coke United in 2004.

Cola

He was

first assigned to duties as a maintenance mechanic on the second
shift.

After a year, he was transferred to first shift, where his

primary responsibility was maintenance of production lines to
prevent equipment breakdowns and stoppages of production.

Charles

Ryant (“Ryant”) became Gunter’s supervisor in March of 2009, and
remained his supervisor until Gunter was terminated in August of
the same year.

Shortly after Ryant became Gunter’s supervisor,

Ryant evaluated Gunter’s performance and noted no deficiencies.
Six to eight (“six”, giving Gunter the benefit of the doubt)
weeks before Gunter’s termination, Emma Johnson, a black fellow
employee, came to Gunter, who is white, and asked him to serve as
a

witness

regarding

discrimination.

her

internal

complaint

of

racial

The person or persons who were supposed to hear

and react to Johnson’s internal complaint are not reflected in the
record.

Gunter agreed to speak to Mike Hall, a supervisor, about

Johnson’s complaint, but told Johnson that Hall would have to
approach him, rather than vice versa.

The next day Hall did

approach

Johnson’s

Gunter

and

inquired

about

allegations.

Presumably, Johnson, in response to Gunter’s suggestion, had asked
Hall to talk to Gunter.

Gunter told Hall that he “didn’t like the

treatment that Charles [Ryant] was giving the employees there at

2

the plant,” and intimated that Ryant treated the white employees
under his supervision more favorably than he treated the black
employees.

Doc. 18, Gunter’s Depo. at 34.

Gunter did not share

with Hall the recollection he voiced at his deposition that he had
heard Ryant utter racial slurs2.

After Gunter communicated to Hall

his disapproval of Ryant’s behavior, Hall attempted to explain to
Gunter or to excuse Ryant’s behavior by telling Gunter that Ryant
was under a lot of pressure to keep his numbers up, and that Gunter
needed to be a “team player.”
“go along to get along”.

This remark roughly translates to

After this conversation between Gunter

and Hall, they never spoke again about Ryant’s behavior.

Gunter

was never asked to sign a statement about the conversation and/or
about the things he had observed and heard relating to Ryant.
Gunter’s Termination
On August 12, 2009, Gunter was working as the line one
mechanic.
p.m.

The first shift schedule was from 5:00 a.m. until 3:00

This ten-hour shift could be extended on the few occasions

when production demanded it, in which event, presumably, the
employees were paid overtime.
shift

was

supposed

to

end,

On August 12, shortly before the
the

line

one

crew

was

informed,

apparently by the grapevine, that it needed to stay until 4:00
p.m.. Gunter maintains that no supervisor or member of management

2

These remarks included referring to blacks as “nigs”, and saying things
like “I am not impressed with his black ass.” Ryant denies ever making such
racially offensive remarks.

3

personally told him of this one-hour extension, but he admits that
he heard about it from another operator before he left the plant
and punched out at 3:31 p.m., twenty-nine minutes before the newly
announced quitting time. After Gunter learned of the extension, he
tried three times to reach Ryant on the radio, and even went to
find Ryant on another production line in order to tell him he
needed to leave because he had a dental appointment at 4:30 p.m.
Not being able to find Ryant, or any other supervisory employee,
Gunter told Cleo Bearden, the lead utility person, about his
scheduling problem.

Shortly after Gunter left the plant, the

filler machine ran out of oil, whereupon Ryant tried to contact
Gunter about the need to refill it.

Not being able to find Gunter,

who had departed shortly before, Ryant had to get someone else to
refill the oil.

There was no production shut-down as a result of

Gunter’s absence.
On August 13, the next day after Gunter left without getting
Ryant’s permission, Gunter clocked in at 4:44 a.m., and worked as
usual until the end of his shift at 3:00 p.m., when he was called
into a meeting with managers Ryant, Hall, and Randy Murphree.
Murphree asked Gunter why he had left early the previous day.
Gunter responded that he had a dental appointment.

The three

supervisors, who obviously knew that Gunter had left before the end
of the extended shift the day before, asked if Gunter had a note
from his dentist, whereupon Gunter retrieved a note from his locker

4

and gave it to them.

Murphree asked if Gunter had told any

supervisor he was leaving before he left.

Gunter said “no”, but

that he had tried to do so, and could not find a supervisor, so he
told Bearden.

The managers responded that it did not matter that

he had told Bearden, and advised Gunter that the next time he
needed

to

leave

early

he

should

tell

a

supervisor.

Gunter

explained that he did not know that he needed to tell a supervisor
under the circumstances, because he left after 3:00 p.m., the end
of the regular shift.

They told him that if the plant ran after

the end of regular shift time, he could not leave without a
supervisor’s

permission.

Gunter

left

the

meeting

with

the

impression that he would be written up for his alleged infraction.
During the meeting, termination was never discussed as possible
discipline.
Shortly after this August 13 meeting, Gunter ran into Bearden,
who asked about the meeting.
meeting before it occurred.

Apparently, Bearden knew about the
Gunter explained to Bearden that when

the managers complained about his leaving early, he told them that
he had informed Bearden about his dental appointment before he
left.

Bearden thereupon told Gunter that he was sorry, but

“yesterday was a crazy day”, and that he had not heard Gunter tell
him he needed to leave. Bearden never denied to Gunter that Gunter
tried to leave a message with him about his problem, but did
testify that he did not pass on any such message to any supervisor

5

before Ryant started looking for Gunter.
On August 14, Gunter timely appeared for work, just as he had
on August 12 and 13, and worked until he was called into Murphree’s
office to sign a disciplinary action for leaving on August 12
without telling a supervisor.3

Following the August 13 meeting,

managerial personnel, namely, Gianetta Jones, the Regional Human
Resources Manager over the Birmingham plant, Hall and Ryant, met
and decided to terminate Gunter.

The reason given to Gunter on

August 14 for his being terminated was that he had left early
without telling a supervisor, an offense that his Employment
Termination Form classified as “job abandonment.”

Coke United’s

company work rules list among the offenses that are “grounds for
immediate
premises

termination,”
during

supervisor”.

work

“leaving
hours

the

without

location
the

of

one’s

permission

Doc. 18, Ex. 2, to Gunter’s Depo.

of

work
the

They make no

mention of “job abandonment” as a ground for termination.
Paul

Lammon

was

a

second

shift

preventative

maintenance

mechanic who worked nights and weekends for Coke United, but who
also occasionally worked on the day shift.

Mechanics on night

shift did not have a regular or designated supervisor, but they
routinely received their work orders from a supervisor named Ralph
Sanders (“Sanders”).

They reported to whatever other supervisor

3

The Corrective Action Termination states that Plaintiff left early on
August 13. This was an error. He actually left early on August 12, and was
not fired until two days later. This error goes unexplained by Coke United.
Its significance is a matter of debate.

6

was on duty if Sanders was not present.

It was understood between

Sanders and Lammon, contrary to the written work rules, that when
Lammon finished his work orders for the shift, he could leave work.
However, Sanders orally recommended to Lammon that, as a courtesy,
he should inform the shift supervisor before leaving early.

On

February 9, 2009, after finishing all of the day’s work orders,
Lammon clocked out and left work without informing a supervisor he
was leaving.

On February 12, 2009, three days later, Lammon

received a written warning from Sanders for failing to inform his
supervisor

that

he

was

leaving.

Stacye

Collier

from

Human

Resources asked Sanders why Lammon was not terminated as called for
by the written work rules.

Sanders told her that his instruction

to Lammon was not contrary to the rules, but a mere call for
“courtesy.”

Why such a “discourteous” act called for a warning

goes unexplained.

Sanders insisted that what happened was not a

violation of Coke United’s written policy.
The only significant difference between Lammon’s situation and
Gunter’s situation is that Lammon had never previously complained
about racist conduct by managerial personnel.
Section IV of the Employee Handbook distributed by Coke United
to all of its employees provided, inter alia, as follows:
SUMMARY OF ADDITIONAL SELECTED COMPANY POLICIES
With the goal of operating an efficient plant and maintaining a
safe, productive work environment, the company has established the
following disciplinary guidelines. The following lists are not allinclusive, but represent violations of company policy, which will
subject the employee to progressive discipline, up to, and including

7

termination.
The progressive disciplinary procedure is as follows:
1st
2nd
3rd
4th

Offense
Offense
Offense
Offense

Verbal Warning
Written Warning
Written Warning and 2-Day Suspension
Termination of Employment

The following offenses are grounds for progressive discipline:
1.)
2.)
3.)
4.)

5.)
6.)

7.)
8.)
9.)
10.)

11.)
12.)
13.)
14.)
15.)
16.)
17.)

Personal work on company time.
Violation of company rules or other personal conduct at
work that is dangerous to others.
Solicitation on company premises or in other work area
by an employee for any cause, without approval of the
Department Manager and Human Resources Manager.
Distribution of literature on company premises in other
work areas by an employee for any cause, during work
hours, without approval of the Department Manager or
Human Resources Manager.
Tardiness in reporting to work.
Stopping work or leaving your workstation before break,
lunch, or end of shift without authorization of the
supervisor.
Returning late from lunch and breaks.
Unexcused absence.
Excessive current absenteeism.
Failure to punch timecard; sign in/out at the Beehive or
other non-plant workstations, or comply with any other
procedure designed to account for total time an employee
works.
Visiting other departments during work hours, except as
required by regular duties.
Interfering with other employees in the workplace.
Poor or careless work.
Smoking in areas where it is prohibited.
Violation of employee appearance guidelines.
Chargeable accident while operating any company vehicle.
Sleeping on the job.

The following offenses are grounds for immediate termination:
1.)
2.)
3.)
4.)
5.)

6.)
7.)

Falsification of records or misrepresentation of company
records or other material information.
Reporting for work or working under the influence of, or
possession of illegal drugs or alcohol on company
premises.
Possession of a firearm or weapon of any type other than
pocketknives with blades no longer than three inches.
Intentionally defacing or damaging customer or company
property.
Fighting on company property, except in unprovoked cases
of
clear
self-defense,
striking
or
physically
threatening, intimidating, or coercing a fellow
employee.
Punching another employee’s timecard.
Stealing, taking, borrowing without permission, or in

8

any way converting to an employee’s own use, any private
or company property.
Refusal to obey work-related orders of any supervisor or
other appropriate authority (e.g. lead person, a helpers
Route Salesman), or any other behavior, such as verbal
abuse
toward
a
supervisor,
which
amounts
to
insubordination.
Concerted or willful action to either restrict
production or to endanger the safety of an employee.
Refusal to submit to a required drug/alcohol test or
personal property search.
Failure to ring up cash sale immediately on the cash
register.
Leaving the location of one’s work premises during work
hours without the permission of the supervisor.
Other individual employee actions or inactions, which,
in the opinion of the company, are sufficiently
detrimental to the interest of the company or its
employees as to warrant immediate termination.

8.)

9.)
10.)
11.)
12.)
13.)

(emphasis added).

Pregnant

language

in

the

above-quoted

work

rules

has

been

emphasized.
Does Gunter State a Colorable Retaliation Claim?
Gunter

claims

that

he

was

disciplined

in

the

form

of

termination for his having engaged in an activity protected by
Title VII.

To make such a claim, Gunter must establish that: “(1)

he engaged in statutorily protected expression; (2) he suffered an
adverse

employment

action;

and

(3)

relationship between the two events.”

there

is

some

causal

Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).

If Gunter has

proffered proof of these three things, and thus made out a prima
facie case, Coke United can nevertheless escape liability by
articulating a legitimate non-retaliatory reason for its adverse
employment action, whereupon Gunter would have the burden of
proving that the articulated reason is a pretext.
9

Id.

Was Gunter’s Expression to Hall on Behalf of Johnson
Protected by Title VII?
Coke United first argues that Gunter did not engage in a
statutorily protected activity.

Title VII prohibits an employer

from

employee

discriminating

against

an

(1)

“because

he

has

opposed” discrimination prohibited by Title VII (the “opposition
clause”), or (2) “because he has made a charge, testified, assisted
or participated in any manner in an investigation, proceeding, or
hearing” under Title VII (the “participation clause”).

42 U.S.C.

§ 2000e-3(a).
Gunter
activities.

says

that

he engaged

in both

of

these

protected

He told Hall that Ryant did not treat black employees

fairly. He was obviously backing up Johnson’s similar claim. Doc.
22 at 43. Coke United says that this was not a protected activity
because it was part of an internal investigation, and not part of
a formal EEOC proceeding.

Title VII’s “participation clause”

protects employees for engaging in activities “which occur in
conjunction with or after the filing of a formal charge with the
EEOC; it does not include participating in an employer’s internal,
in-house investigation, conducted apart from a formal charge with
the EEOC.” E.E.O.C. v. Total System Services, Inc. 221 F.3d 1171,
1174 (11th Cir. 2000).

Neither Gunter nor Johnson had filed a

complaint with the EEOC when Gunter had his conversation with Hall.
Therefore, Coke United is correct that Gunter’s activity was not
protected under the “participation clause.”
10

However, Gunter’s

activity was clearly protected under the “opposition clause.” Coke
United’s only argument regarding the “opposition clause” is that
“[t]here can be no dispute that the plaintiff does not qualify for
the protection of the opposition clause as he never complained to
Coke United about Ryant’s alleged racial statements.”
14.

Doc. 23 at

Defendant cites no authority for this proposition.

demonstrate

participation

in

an

activity

protected

by

To
the

opposition clause, the employee must only show (1) that he engaged
in opposition and (2) that he subjectively believed the employer
was engaged in discriminatory practices and that this belief was
objectively reasonable. 42 U.S.C. § 2000e-3; Butler v. Ala. Dep’t
of Transp. 536 F.3d 1209 (11th Cir. 2008). While Gunter admits that
he did not tell Hall about Ryant’s racial slurs, he did tell Hall
that he “didn’t like the treatment that Charles [Ryant] was giving
the black employees...at the plant.” Doc. 21, Gunter’s Depo at 34.
This was enough to constitute a complaint about conduct proscribed
by Title VII.

The Supreme Court has held that “oppose” carries its

ordinary meaning: “to resist or antagonize...; to contend against;
to

confront;

resist;

withstand.”

Crawford

v.

Metropolitan

Government of Nashville and Davidson County, Tenn., 555 U.S. 271,
(2009), citing Webster’s New International Dictionary 1710 (2d ed.
1958). Gunter clearly expressed disdain for Ryant’s behavior.
Therefore, he “resisted” or “contended against” it, and thus he
arguably “opposed” it.

Furthermore, the Supreme Court has said

11

that “opposing” an employer’s actions includes “responding to
someone

else’s

discussion.”

question

Id. at 277.

just

as

surely

as

by

provoking

the

Even though Gunter did not approach

Hall, his response to Hall’s inquiry constituted “opposition” to
racially disparate treatment.
For

Gunter

to

establish

that

he

engaged

in

a

protected

activity he must have had a subjective belief that Coke United was
engaging in racially discriminatory activity, and this belief must
also have been objectively reasonable.

Gunter at deposition

testified that he heard Ryant use racial slurs and that Ryant
treated

white

employees

more

Gunter’s Depo at 123 and 115.

favorably

than

black

employees.

This provided an evidentiary basis

for Gunter to have subjectively believed that Coke United was
violating Title VII.

Based on the facts before the court, a trier

of fact could also find that Gunter’s belief was objectively
reasonable.

Gunter has said that Ryant did not treat black

employees fairly, and Coke United does not argue the fact that
Gunter did not describe to Hall a particular incident of racist
conduct by Ryant.4

The burden is on the parties, not the court, to

formulate arguments at the summary judgment stage.

See Resolution

Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).

4

“The objective reasonableness of an employee’s belief that her
employer has engaged in an unlawful employment practice must be measured
against existing substantive law” Clover v. Total Sys. Servs., Inc., 176 F.3d
1346, 1351 (11th Cir. 1999). Under existing case law, a plaintiff attempting
to make out a prima facie case of discrimination must establish, among other
things, that an adverse employment action occurred. See McDonnell Douglas Corp
v. Green, 411 US 792 (1973).

12

Therefore, there is a question of fact as to whether Gunter’s
belief was objectively reasonable.
Gunter has met the first element of a prima facie case of
retaliation, namely, that he engaged in a statutorily protected
activity.
Did Gunter Suffer an Adverse Employment Action?
The next element of a prima facie case, namely, that Gunter
suffered an adverse employment action, is undisputed.
fired.

He was

Nothing could be a more adverse action unless it was being

beaten with a stick on the way out the door.
Was There a Casual Connection?
Gunter must also demonstrate that there is a causal relation
between the protected activity and the adverse action. Gunter was
fired on August 14, 2009.

He testified that the firing occurred

“six to eight weeks” after he engaged in the statutorily protected
activity. Doc. 22 at 28. Under Rule 56 analysis, this is deemed to
mean“six weeks.”

“To establish a causal connection, a plaintiff

must show that the decision maker was aware of the protected
conduct, and that the protected activity and the adverse actions
were not wholly unrelated.” Summers v. City of Dothan, Ala, 444 F.
App’x 346, 351 (11th Cir. 2011), citing Shannon v. BellSouth
Telecomms., Inc. 292 F.3d 712, 716 (11th Cir. 2002).

Hall, who was

clearly aware of Gunter’s protected conduct, and Ryant, who was the
subject of Gunter’s comment to Hall, both participated in the

13

decision to fire Gunter, thus satisfying the requirement that a
decision-maker be aware of the protected conduct.

A relationship

between the protected conduct and the adverse employment decision
can be shown by an abbreviated amount of time that passed between
the two events.

The Eleventh Circuit has said: “[c]lose temporal

proximity between the protected activity and the adverse action may
be sufficient to show that the two were not wholly unrelated.” Id.5
Gunter’s conversation with Hall and Gunter’s termination were close
enough in temporal proximity for a trier of fact to conclude that
the two were not “wholly unrelated,” and thus that there is
sufficient evidence of a causal connection to make out a jury case
on the causation element.6
Has Coke United Articulated a Legitimate Reason for
Firing Gunter?
Because Gunter has established all elements of a prima facie
case of retaliation, the question now becomes whether Coke United
is able to come up with a legitimate reason for firing Gunter.

5

The Supreme Court has examined “mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case” and said
that the temporal proximity must be “very close.” Clark County Dist. v.
Breeden, 532 US 268, 273-4 (2001) (holding that 20 months is insufficient to
establish causality.
6

The Eleventh Circuit elaborated on what the Supreme Court meant by
“very close” when it held that a temporal proximity of seven weeks between the
protected activity and the adverse action satisfies the causation requirement.
See Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (1999) However, it has
also held that a two-month gap between events was not close enough to
establish temporal proximity. Williams v. Waste Management, Inc., 411 F.App’x
256 (11th Cir. 2011). Based on this precedent, there is a question of fact
whether the 6-8 weeks that passed between these two events was a close enough
temporal proximity to indicate a causal connection between the events.

14

Coke United says Gunter was fired for leaving work early and
failing to notify a supervisor before he left.

This is not

inconsistent with Coke United’s written policy that:

“[l]eaving

the location of one’s work premises during work hours without the
permission of the supervisor” is an offense that is “grounds for
immediate termination.”

Doc. 18, Ex.2 to Gunter Dep. at 4.

The

Eleventh Circuit has referred to the employer’s burden here as
“exceedingly light.”

See Tipton v. Canadian Imperial Bank of

Commerce, 872 F.2d 1491 (11th Cir. 1989).

Because Coke United has

articulated a legitimate reason that has support in the record, it
has met its burden of passing back to Gunter the ultimate burden of
proving a Title VII violation.
Does Gunter Have Enough Evidence to Make Pretext Into a
Jury Question?
Coke United having articulated a facially plausible reason for
Gunter’s termination, the burden shifts to Gunter to establish, if
he can, that Coke United’s stated reason was mere pretext.

See

Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir. 2001).
In discussing a plaintiff’s ultimate burden under Title VII, the
Eleventh Circuit has said: “[a] plaintiff in a discrimination case
based on circumstantial evidence can avoid judgment as a matter of
law by ...producing evidence sufficient to discredit in the mind of
a

reasonable

juror

all

of

the

defendant’s

nondiscriminatory reasons for its actions.”

proffered

(emphasis added).

Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997).
15

Gunter has succeeded in producing enough evidence to discredit Coke
United’s articulated legitimate reason and to provide Gunter an
opportunity to present his claim to a jury.

The jury, of course,

may agree with him or disagree with him.
As stated previously, Coke United’s escape under Rule 56
consideration depends upon whether Gunter can overcome with some
evidence Coke United’s assertion that he was fired for violating a
company rule.

In an unpublished opinion, the Eleventh Circuit

recently addressed this very issue as follows:
[F]or purposes of summary judgment, an
employer’s assertion that an employee was
fired for violating a work rule is “arguably
pretextual when a plaintiff submits evidence
(1) that she did not violate the cited work
rule, or (2) that if she did violate the rule,
other employees outside the protected class,
who engaged in similar acts, were not
similarly treated.”
Bush v. Houston County Comm’n, 414 F. App’x 264, 267 (11th Cir.
2011), quoting Damon v. Fleming Supermarkets of Florida, Inc., 196
F.3d 1354, 1363 (11th Cir. 1999).

This expression by the Eleventh

Circuit introduces the “comparator” concept as a means for Gunter
to prove pretext.
This

court

This concept need not be elaborated here.
recognizes

that

it

is

not

the

wisdom

of

an

employer’s decision that is being evaluated, but whether the
employer’s decision was so unreasonable as to call into question
the decision-maker’s own belief in the reason he offers for his
decision.

The court is not called upon to decide whether Coke

United’s articulated reason was, in fact, pretextual, but whether
16

there are enough evidentiary building blocks upon which Gunter can
mount a plausible argument for pretext.
Construed in Gunter’s favor, there are several facts that
create possibilities for Gunter to argue pretext.
A

work

rule

that

arguably

applied

to

Gunter,

but

that

conspicuously has not been relied upon by Coke United, reads as
follows:
The following offenses are grounds for progressive discipline:
* * *
(6)

Stopping work or leaving your work station
before break, lunch, or end of shift without
authorization of the supervisor.

(emphasis added).
Although Gunter admittedly left his work station before the end of
his

elongated

shift

without

express

authorization

from

his

supervisor, if this act violated the above-quoted rule, it would
only call for progressive discipline, far short of termination.
The absence of reliance by Coke United on this rule provides a
basis for arguing that it wanted Gunter’s termination, the most
drastic form of discipline, getting rid of him for good.

The

termination notice expressly precluded any future employment of
Gunter by Coke United.
The work rule that is here relied upon by Coke United as the
basis for its termination decision reads as follows:
The following offenses are grounds for immediate termination:

17

* * *
(12) Leaving the location of one’s work premises
during work hours without the permission of
the supervisor.
(emphasis added).
There are several problems with Coke United’s hyper-aggressive
application of this rule to Gunter.
First, the words “grounds for” are markedly different from the
words “calling for automatic termination without exception,” or
words of like effect.

This court has, on many occasions, found

good “grounds” for administering a punitive sanction, but has
decided not to impose a sanction, or to impose a light sanction,
because the violation was more inadvertent than deliberate.

To

demonstrate that not adhering to the precise language of this rule
does not invariably result in termination, Gunter points to the
incident in which Lammon obviously violated the very same work
rule, but was only written up.

Sanders, Lammon’s supervisor,

provided more favorable treatment for Lammon than Ryant provided
for Gunter.

Sanders orally modified the same work rule to allow

Lammon to leave the plant before his shift ended if his assigned
work duties had been completed.

Sanders only suggested to Lammon

that “as a courtesy” he notify his supervisor before leaving.
There is no such exception in the written rule as purportedly
applied to Gunter.

In fact, Lammon’s violation of the literal

language of the rule was arguably more egregious than Gunter’s

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because Lammon left before his regular shift ended, whereas Gunter
did not.

Where and how Sanders obtained the authority to vary a

rule that, if violated, would constitute a ground for termination,
is anybody’s guess.
enough to

make

Gunter and Sanders were similarly situated

Lammon

a

“comparator.”

The

only

significant

distinction between Lammon’s and Gunter’s leaving early was that
Lammon had not previously criticized any supervisor for racist
behavior.

No “comparator” is perfect, but the comparison between

Gunter and Lammon is probative enough to create or enhance a
suspicion of pretext.
Second, do the words “work hours” in the rule invoked by Coke
United

mean

“the

regular

shift

hours,”

or

“the

hours

of

an

employee’s shift plus any extension, or no matter how lengthy the
extension may be, and no matter what inconvenience the extension
causes the employee?”

Apparently, Sanders interpreted the rule

loosely enough to make it fit Lammon’s circumstances.

The words

“work hours” are ambiguous enough to cause confusion.
Third,

the

words

that

require

permission

from

“the

supervisor,” literally construed, mean that the permission must
obtained from one person.

The word “the,” followed by a singular

noun, necessarily implies one particular person.

In other words,

if Ryant was the supervisor, as Coke United contends, he could not
be located by Gunter, even though Gunter tried to reach him on the
radio.

The rule did not provide an alternative person from whom

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permission could be sought.
or “some supervisor.”
“the supervisor?”

The rule did not say “a supervisor”,

What was Gunter to do when he could not find
The rule was sufficiently ambiguous to be

bothersome.
Fourth, Coke United did not fire Gunter “immediately” after it
learned that Gunter had left without permission.

Instead, Gunter

was called in after he put in a full day’s work the next day and
was asked to explain himself.

He told the interrogators about his

dental appointment, whereupon they asked him if he had a note from
his dentist.

Why would they ask him for an excuse and about a note

if termination was automatic without regard to what his excuse
might be?

Asking him for a note, which he was able to provide,

constitutes evidence that the termination decision was a matter of
discretion, and was not automatic.

In other words, the employer’s

initial reaction, which was not “immediate,” was consistent with
progressive discipline, and not a reason for termination. There is
absolutely nothing in Coke United’s rules or policies to allow a
supervisor to orally amend the written rules to allow someone to
leave the premises before his shift ended, whether or not the
employee first informed the shift supervisor that he was leaving.
Sander’s

variation

of

the

rule

did

not

even

require

the

supervisor’s permission, but only that a supervisor be informed of
the early departure.
It

is

hard,

if

not

impossible,

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to

argue

that

Gunter’s

termination, which occurred two days after his alleged infraction,
was “immediate.”

What was Coke United waiting for?

Fifth, the “ground” for immediate termination, listed in the
work rules, following the rule here relied upon by Coke United,
reads as follows:
(13) Other
individual
employee
actions
or
inactions, which, in the opinion of the
company, are sufficiently detrimental to the
interest of the company or its employees as to
warrant immediate termination.
This open-ended rule, in and of itself, proves that termination is
not “automatic” for a violation of any of the work rules, and that
an exercise of judgment or discretion by the employer is always
called for.

If this final rule, not here relied upon by Coke

United, is construed literally, it would be possible that employee
criticism of a supervisor’s attitude toward black employees could
be found so “detrimental to the interest of the company” as to
“warrant immediate termination.”

This is not to suggest that this

reasoning was actually employed by Coke United, but it is to
suggest that termination was not automatic.
Sixth, the supervisors who met with Gunter on August 13 (and
again on August 14, an error in paperwork), told Gunter what to do
the “next time” he needed to leave early. If termination was
inexorable, why was such a warning given?
Seventh, what does “job abandonment” mean?

It sounds more

like not showing up for work for several days than leaving a few
minutes early.
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These pieces of the puzzle, in the aggregate, provide enough
evidence of “pretext” to take this case to a jury.
Conclusion
For the foregoing reasons, Coke United’s motion for summary
judgment will be denied by separate order.
DONE this

19th

day of December, 2012.

_

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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