Adams v. Fairfield Southern Company Inc

Filing 27

MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/13/2016. (AVC)

FILED
2016 Jul-13 PM 02:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

WILLOW ADAMS,
Plaintiff,
v.
FAIRFIELD SOUTHERN COMPANY,
INC.,
Defendant.

}
}
}
}
}
}
}
}
}
}

Case No.: 2:14-cv-02295-RDP

MEMORANDUM OPINION
I.

Introduction
This case is before the court on Defendant’s Motion for Summary Judgement (Doc. #

21), filed October 26, 2015. The Motion is fully briefed and supported by the parties’ evidentiary
submissions. (Docs. # 22, 23, 24, 25, 26). In this case, Plaintiff alleges violations of the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). Defendant contends
Plaintiff’s claim fails because he has failed to establish a prima facie case, cannot establish
pretext, and has failed to mitigate his damages. (Doc. # 22 at pp. 13-24). After careful review,
the court agrees and concludes that Defendant’s Motion is due to be granted.
II.

Relevant Undisputed Facts 1
Plaintiff was born on June 12, 1926, and began working for Fairfield Southern (“FS” or

“Defendant”) on September 6, 1951. 2 (Doc. # 23-1 at pp. 7, 16; Doc. # 25-2 at FS000001). FS
1

The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Admr. U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

operates a rail line within United States Steel Corporation (“U.S. Steel”)’s Fairfield Works in
Alabama, as well as other rail lines at other U.S. Steel facilities. (Doc. # 23-3 at p. 1). Plaintiff
started his career as a switchman before eventually becoming a conductor, and ultimately a train
operator in 1973. (Doc. # 23-1 at pp. 18-20). Plaintiff remained a train operator until he was
terminated on September 11, 2013. (Doc. # 23-2 at FS000109). As a train operator at FS,
Plaintiff’s job included operating trains by remote control in and around U.S. Steel’s Fairfield
Works. (Doc. # 23-1 at pp. 19, 37-38).
Plaintiff was a member of the United Steelworkers of America Union (“USWA”), which
represents the bargaining unit employees in the formation of collective bargaining agreements
governing the terms and conditions of their employment. (Doc. # 23-3 at p. 2). The union
agreement with Defendant contains a non-discrimination clause, grievance procedure, and
provides for a final and binding arbitration of grievances by the Board of Arbitration, while also
establishing a Joint Committee on civil rights for discrimination complaints. (Id.). FS also has an
equal employment opportunity (“EEO”) policy, discriminatory harassment policy, code of
ethical business conduct policy, and an anonymous hot line for workers to report complaints.
(Id.). Although Plaintiff got along with him, about two or three months before his discharge, one
of FS’s Transportation Superintendents, Tommy Hosmer, “cracked and said” Plaintiff was “the
oldest man in the company,” and Plaintiff said “I get treated worse than any man here.” (Doc. #
23-1 at pp. 47-48, 50-51, 127-28). (Plaintiff “guess[es]” that he means “joking” when he says
“cracking.” (Id. at p. 51)). Some of Plaintiff’s fellow union workers also asked him when he was
going to retire. (Id. at pp. 48-49). Plaintiff testified that he did not use (and there is no record of

2

Plaintiff worked for predecessor companies United States Steel Corporation and TCI. (Doc. # 23-1 at pp.

15-17).

2

him utilizing) any of the above-mentioned reporting mechanisms to file a grievance complaining
of age discrimination. (Id. at pp. 136, 147; Doc. # 23-3 at p. 2).
A train operator’s performance is governed by “Cardinal Rules,” general operating rules,
special rules, and safe job procedure. (Doc. # 23-1 at pp. 136-40; Doc. # 23-2 at FS000472; Doc.
# 23-4 at pp. 33-37). These rules and procedures exist because safety is extremely important
when working around trains due to the potential danger to persons or property, including death.
(Id.). Cardinal Rules are applied throughout all of Transtar’s railroad properties. (Id.). They are
directed at safety matters and intended to cover potential threatening situations to both people
and property. (Id.). Additionally, general operating rules are in place to protect against property
damages and describe how to perform daily tasks. (Doc. # 23-4 at pp. 10-14). Special rules apply
at specific facilities and are a combination of safety and operating rules. (Id.). Finally, safe job
procedures are simply step by step instructions on how to perform specific tasks. (Id.). Plaintiff
acknowledges that he is supposed to follow all of these rules. (Doc. # 23-1 at p. 44).
In the three-year timeframe prior to his termination, Plaintiff had a number of incidents
for which he received discipline. Plaintiff received a three-day suspension on September 6, 2011,
because a train he was operating hit a gate at #9 Pipe Mill at USS. (Doc. # 23-2 at FS000120).
This was followed by another suspension of fifteen days on February 29, 2012, which involved a
derailment, violation of special instruction PM-3 1-c, and a violation of Cardinal Rule #14. 3 (Id.
at FS000119). On March 9, 2012, a manager from FS conducted an intervention with Plaintiff
regarding the Cardinal Rule #14 violation. (Id. at FS000117). The manager’s comments on that

3

Special Instruction PM-3 1-c provides, “The Forman or shipper will unlock derails and activate green
light after making certain area is clear.” Cardinal Rule #14 states “Continuous visual monitoring in the direction of
travel (head end protection) must be performed prior o and during movement of rail equipment to ensure the path of
travel is clear. Engineers/Operators/Train Service personnel must be able to see both sides of a designated railroad
crossing. An audible warning must be made prior to and through the crossing when the locomotive is on leading end
of movement.” (Doc. # 23-5 at FS000119).

3

interview were complimentary, indicating that Plaintiff “has had a remarkable career with
Fairfield Southern” and “is a very safe and reliable employee.” (Id.). The manager’s report also
acknowledged that Plaintiff attributed the incident to the helper working with him when the
incident happened, and made a commitment to discuss safety with other employees. (Id.). Next,
on December 10, 2012, Plaintiff received a thirty-day suspension for again violating CR #14 and
Special Rule 813.2, when a rail car was driven over a bumper block and was suspended in midair. 4 (Doc. # 23-1 at pp. 119-20; Doc. # 23-2 at FS000115-16, FS000112-13; Doc. # 23-4 at pp.
60, 88-92). After he returned to work following his thirty-day suspension, Plaintiff’s final
incident occurred on August 31, 2013. (Doc. # 23-1 at p. 67). The manager who observed this
incident specifically noticed Plaintiff leaving four rail cars in foul 5 of an adjacent rail spur, and
crossing between railroad equipment without the minimum fifty feet of separation. (Doc. # 23-4
at pp. 62, 71-72, 104-05, 107-08; Doc. # 23-5 at FS000110-11, ADAMS Docs 56). These
actions violated Cardinal Rules #4 and 5. 6 (Doc. # 23-5 at FS000110-11, ADAMS Docs 56).
Defendant’s methodology for dealing with disciplinary actions after an incident occurs
requires the train operator involved to be immediately removed from service, and it typically
4

The description for Notice FS-29/Special Rule 813.2 states: “The remote control operator must visually
determine the direction of the equipment begins to move to ensure direction of movement as intended, or a member
of the crew must visually determine the direction the equipment moves and confirm the direction with the remote
control operator. If no confirmation is received, the movement must be immediately stopped.” (Doc. # 23-2 at
FS000115-FS000116, FS000112-FS000113).
5

“Fouling a track means the placement of an individual in such proximity to a track that the individual
could be struck by a moving train or other on-track equipment, or in any case is within four feet of the nearest rail.”
49 C.F.R. § 220.5.
6

The language of Cardinal Rule #4 is as follows:

Never go between equipment attached to a locomotive or foul a track until the movement comes to
a complete stop, slack adjusts and Red Zone Protection is requested and granted. A minimum
separation distance of fifty (50) feet between equipment must be achieved before going in between
equipment. Do not cross or foul tracks within twenty (20) feet of equipment.
Doc # 23-5 at ADAMS Docs 56). Cardinal Rule #5 reads: “Never leave rail equipment fouling a switch or another
track. (Id.).

4

calls for a review of the video from the camera on the train engine at issue. (Doc. # 23-4 at pp.
19, 55-56, 181-82). Here however, although FS reviewed the video of Plaintiff’s final incident,
FS did not retain copies of it (id. at pp. 56, 58-59, 62, 71-72, 112, 114-18, 124), and claims the
videotapes were recirculated and recorded over. (Id. at pp. 58-59).
After the August 31, 2013 incident, consistent with the protocol that applies when a train
operator is thought to have violated a Cardinal Rule, Plaintiff was removed from service. (Doc. #
23-1 at pp. 65-71). This occurred via a telephone call from Hosmer. (Id. at pp. 67-68, 70-71; see
also Doc. # 23-4 at pp. 60-61 (Defendant typically notifies employees of a suspension “either at
the time or via telephone”)). FS General Superintendent Daniel Webb reviewed Plaintiff’s
violations. (Doc. # 23-4 at pp. 60-61; see also Doc. # 23-2 at FS000110). Consistent with
Defendant’s methodology, Plaintiff received from Hosmer (who reported to Webb) a letter dated
September 3, 2013, suspending him for five days. (Doc. # 23-1 at p. 70; Doc. # 23-2 at
FS000110; Doc. # 23-4 at pp. 54, 60-61).
The company and the union, pursuant to the collective bargaining agreement, then held a
meeting (a “9b hearing”) to discuss Plaintiff’s punishment. (Doc. # 23-4 at pp. 13-15, 26; Doc. #
23-2 at FS000109). The union was presented with the videotape and photographs of the
Plaintiff’s Cardinal Rule violation. (Doc. # 23-4 at pp. 58-59, 114). Plaintiff was not present at
the 9b hearing. (Doc. # 23-1 at p. 82; Doc. # 23-4 at pp. 26-27).
After the 9b hearing, Webb notified Plaintiff by letter dated September 11, 2013, that as a
result of his “disciplinary history and the severity of the offense” his discipline was amended to a
discharge. (Doc. # 23-1 at pp. 61, 81; Doc. # 23-2 at FS000109; Doc. # 23-5 ADAMS Docs 32;
see also Doc. # 23-4 at pp. 25, 39). Webb has held the position of General Superintendent at FS
since August 14, 2012, and is in charge of making employment decisions. (Doc. # 23-4 at pp. 9-

5

11). However, his decisions can be overturned or modified if a grievance is filed (depending
upon the outcome of the grievance as it progresses through the grievance and union arbitration
process). (Id. at pp. 9-11, 14-17, 126-27). FS states it follows a progressive disciplinary policy.
(Id. at pp. 12-14).
In making a discipline decision, Webb considers all the circumstances--including the
employee’s discipline history for the preceding three-years and the severity of an offense--and
works with the FS labor relations department and, in determining disciplinary action for an
offense, compares the situation to similar cases for consistency. (Doc. # 23-4 at pp. 20-22, 132136). However, Webb does not take into account years of service, discipline regarding
attendance and tardiness, or the number of individual violations alone in making his decision.
(Id. at pp. 133-136). Upon weighing all these factors, Webb makes a determination whether
termination is justified. (Id.).
Plaintiff filed a grievance on August 31, 2013, claiming he had been unjustly disciplined
and requested to “be made whole for any and all monies and benefits lost.” (Doc. # 23-1 at pp.
73-75; Doc. # 23-2 at ADAMS Docs 34; Doc. # 23-4 at pp. 130-32). Pursuant to the collective
bargaining agreement, a second step meeting occurred. (Doc. # 23-4 at pp. 32-33). FS affirmed
Plaintiff’s discharge. (Id.). Thereafter, FS and the USWA held a third step meeting. (Doc. # 23-3
at pp. 3-4; Doc. # 23-5 at FS000103). FS rejected Plaintiff’s grievance and affirmed its decision
to terminate Plaintiff’s employment. (Id.). Defendant notified the USWA of that decision on
February 26, 2014, and invoked a provision of the collective bargaining agreement that put the
union “on the clock” to decide whether it would pursue the matter in arbitration. (Doc. # 23-5 at
FS000103). The union ultimately decided not to take Plaintiff’s grievance to arbitration. (Doc. #
23-1 at pp. 55-56, 63, 80; Doc. # 23-3 at p. 4; Doc. # 23-4 at pp. 29-30).

6

Plaintiff subsequently filed his EEOC charge on December 2, 2013. (Doc. # 1-1; Doc. #
23-5 at ADAMS Docs 30). In it, he claimed he was discharged because of his age and race. (Id.).
Thirty-five FS employees, including Plaintiff, committed Cardinal Rule and safety-rule
violations between January 1, 2012 and March 2015. (Doc. # 23-3 at p. 4-7). Of those thirty-five
employees, twenty-one (60%) were over the age of forty, and fourteen (40%) were under the age
of forty. (Id. at p. 4). Of the twenty-one employees older than forty years, five (23.8%) were
discharged. (Id. at p. 5). Of the fourteen employees under forty years, five (35.7%) were
discharged. (Id.). Since September 2013, FS has hired new employees who are “substantially
younger” than Plaintiff. (Doc. # 23-4 at 139:6-139:13).
III.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file -- designate specific facts showing that there is a genuine issue for trial.
See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts

7

about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.
Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine, “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc., teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations
made in the complaint; instead, as the party bearing the burden of proof at trial, she must come
forward with at least some evidence to support each element essential to her case at trial. See
Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue

8

for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
IV.

Analysis
Defendant advances three arguments in support of its summary judgment motion. First, it

contends that Plaintiff cannot establish a prima facie case. In support of that argument Defendant
asserts that no similarly situated employees outside of Plaintiff’s protected class were treated
more favorably than him. As part of this first argument, Defendant also contends that Plaintiff is
not similarly situated to individuals who had their grievances processed by USWA to the third
and final stage of arbitration, as allowed by the collective bargaining agreement. Second,
Defendant contends that even if Plaintiff has established a prima facie case, he cannot show that
its reason for terminating him was a pretext for impermissible discrimination. That is, Defendant
argues that it has presented legitimate, nondiscriminatory reasons for its decision to terminate
Plaintiff, and there is no evidence its reasons are pretextual. Finally, Defendant asserts that
Plaintiff is barred from recovery of back pay or front pay on his claim, because he has failed to
mitigate his damages by conducting a reasonable search for substantially equivalent
employment. The court finds it unnecessary to address Defendant’s third argument regarding
mitigation of damages, because it agrees concerning the first two contentions. It addresses each
argument, and Plaintiff’s counter-arguments, in turn, below.

9

A.

Plaintiff Has Failed to Establish Genuine Dispute of Material Fact with
Respect to his Discrimination Claim.

Plaintiff claims he was terminated because of his age. His age claim is governed by the
ADEA. The ADEA makes it “unlawful for an employer to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.S. §
623 (emphasis added). The phrase “because of” has been interpreted to mean that age must be
the “but for” reason the employer decided to act. Gross v. FBL Fin. Servs., 557 U.S. 167, 176
(2009). “To establish a disparate-treatment claim under the plain language of the ADEA,
therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse
decision.” Id. The Supreme Court further held that, nothing in the statute’s text indicates that
Congress has carved out an exception to that rule for a subset of ADEA cases. Id. at 177. Where
the statutory text is “silent on the allocation of the burden of persuasion,” we “begin with the
ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” Id. (quoting
Schaffer v. Weast, 546 U.S. 49, 56 (2005)).
To prevail on his disparate-treatment claim in violation of the ADEA, Plaintiff must
establish that age was the “but-for” cause of his employer’s adverse decision. Gross, 557 U.S. at
176. Defendant argues that there is “no direct evidence of age discrimination” and the court
agrees. 7 (Doc. # 22 at p.13). Because no direct evidence of discrimination exists here, Plaintiff
must either satisfy the circumstantial evidence framework provided in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), see Thomas v. Humana Health Plan, Inc., 457 F. App’x 819, 821
7

Defendant’s brief acknowledges Plaintiff’s claims regarding co-workers making jokes about his age.
However, as Defendant correctly notes, the alleged jokes are not evidence of age discrimination, because they were
made by non-decision making parties, and are thus irrelevant. Washington v. United Parcel Serv., Inc., 567 F. App’x
749, 751 (11th Cir. 2014) (per curiam) (citing Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir. 1998)).
That is, Hosmer (who reported to Webb) made a joke, but he did not make the employment decisions at issue here.

10

(11th Cir. 2012) (per curiam) (citations omitted); see also Cofield v. Goldkist, Inc., 267 F.3d
1264, 1268 n. 6 (11th Cir. 2001) (“Although the McDonnell Douglas framework originally
applied to Title VII cases, it is now widely accepted that the framework applies to claims of
discrimination under the ADEA as well.”), or otherwise raise some inference of age
discrimination. The McDonnell Douglas framework requires a plaintiff to present a prima facie
case of discrimination. Thomas, 457 F. App’x at 821 (citation omitted). If Plaintiff is able to
establish a prima facie case then the burden shifts to the employer (FS) to demonstrate that the
employment decision was made for legitimate, nondiscriminatory reason. Id. (citation omitted).
Then, should Defendant articulate a reason that is legitimate and nondiscriminatory, any
presumption of discrimination “drops from the case.” Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255
& n. 10 (1981)) (internal quotations omitted).
To establish a prima facie case of an ADEA violation, Plaintiff must prove (1) he is a
member of a protected class; (2) he was subjected to an adverse employment action, (3) FS
treated similarly situated employees outside the class more favorably, or he was replaced by a
younger individual; and (4) he was qualified to do the job. Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999); Washington v. United Parcel Serv., 567 F. App’x 749, 751 (11th Cir.
2014) (per curiam); Brooks v. CSX Transp., Inc., 555 F. App’x 878, 883 (11th Cir. 2014) (per
curiam); Thomas, 457 F. App’x at 821. Plaintiff has established he is a member of a protected
class because he is over the age of forty, and the court infers he was qualified inasmuch as he
held his position for a significant period of time. (Doc. # 23-1 at pp. 7, 16-17). See Crapp v. City
of Miami, 242 F.3d 1017, 1020 (11th Cir. 2001) (noting that “where a plaintiff has held a
position for a significant period of time, qualification for that position sufficient to satisfy the test

11

of a prima facie case can be inferred”). Plaintiff clearly suffered an adverse employment action,
as he was terminated from his job. (Doc. # 23-2 at FS000109). Thus, the only prima facie case
issue here is whether Plaintiff has satisfied the third prong.
Plaintiff contends that the only question here is whether FS replaced him with a younger
individual, and that he has adequately shown this to be true. (See Doc. # 24 at pp. 13-14)
(quoting King v. Adtran, 626 F. App’x 789, 791 (11th Cir. 2015) (per curiam) (citing in turn
Chapman v. Al Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc))). Of course, the prima
facie case elements are flexible and there are alternatives to this “required” showing. The
“similarly situated” standard is such an alternative to the “younger individual” test and these
represent different means of making a prima facie case of age discrimination. See, e.g.,
Washington, 567 F. App’x at 751 (“In order to make out a prima facie case for an ADEA
violation, the plaintiff must show that she . . . (4) was replaced by a younger individual, or that
her employer treated employees who were not members of her protected class more favorably
under similar circumstances.” (citations omitted)). The “younger individual” standard is
inapplicable here because there is insufficient evidence to show who replaced Plaintiff. But even
if that were not so, Plaintiff has not, at this stage, made “a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp., 477 U.S. at 322. In other words, Plaintiff has not
presented “specific factual evidence, . . . more than mere allegations” that he was terminated so
that a younger individual could assume his position. Gargiulo, 131 F.3d at 999. He only points
the court to (and the court’s review of the record reveals) a very brief portion of Defendant’s
Rule 30(b)(6) deposition: “Have there been any new hires at [FS] since September of 2013? A. I
believe there has, yes. Q. And would it be a fair statement all would be substantially younger

12

than Willow Adams? A. That’s fair.” (Doc. # 23-4 at 139:6-139:13). A statement that the
company as a whole hired new individuals substantially younger than Plaintiff is in no way
indicative of Plaintiff being replaced in his particular position by a younger individual
(nonetheless, an individual younger than the age of the protected class, i.e. forty). See, e.g.,
Gortemoller v. Int’l Furniture Mktg., Inc., 434 F. App’x 861, 863 (11th Cir. 2011) (per curiam)
(to determine whether a younger individual replaced a plaintiff in the protected class a court
considers, “among other things, the plaintiff’s position and responsibilities). To be sure,
Plaintiff’s facts may be enough to survive a motion to dismiss the pleadings, but there is not
enough factual evidence to allow the case to proceed to a jury.
Similarly, Plaintiff has failed to identify similarly situated comparators younger than him
who were treated more favorably. In order to make a valid comparison, Plaintiff must show that
he and his comparators are similarly situated in all relevant respects. Washington, 567 F. App’x
at 751 (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). To establish a
disciplinary comparator, a plaintiff must establish that the comparator’s misconduct is “nearly
identical” to Plaintiff’s misconduct in “quantity and quality.” 8 Id. at 751-52 (citing Maniccia,
171 F.3d at 1368-69).
Plaintiff identifies J. Casey Brown (“Brown”) and J. Nelson (“Nelson”) as comparators in
his summary judgment opposition. The court addresses the Rule 56 facts about Brown and
Nelson, in turn.
Brown was hired by FS on June 23, 2010 and was approximately twenty-five years old
when he was terminated on September 10, 2014. (Doc. # 25-2 at FS000001). He was first hired

8

Of course, alternatively, a plaintiff may withstand summary judgment in the absence of an adequate
comparator if he presents “a convincing mosaic of circumstantial evidence” that would allow a reasonable jury “to
infer intentional discrimination by the decisionmaker.” Washington, 567 F. App’x at 752 (quoting Smith v.
Lockheed-Martin, 644 F.3d 1321, 1328 (11th Cir. 2011)). Plaintiff has not made this alternative showing here.

13

as a helper (a different job than the one held by Plaintiff), and performed different duties than
Plaintiff. (Doc. # 23-4 at pp. 164-64; Doc. # 25-2 at FS000001). Also, Brown was not hired to
replace Plaintiff. In fact, he was hired three years prior to Plaintiff’s termination date and before
the date of Plaintiff’s first violation (September 6, 2011) during the three-year time period
leading up to his discharge. (Compare Doc. # 23-2 at FS000120 and Doc. # 25-2 at FS000001).
Brown was later promoted to the position of train operator at an unspecified date. However, at
the time Brown was hired, he was placed in a different job with different responsibilities and
duties. Thus, Brown and Plaintiff are not similarly situated. See Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1326 n.17 (11th Cir. 2011).
Nelson was hired by FS on August 15, 2011, also originally as a helper, and was
approximately forty-two when he was terminated on July 28, 2014. (Doc. # 23-5 at FS000846;
Doc. # 25-2 at FS000003). Again, like Brown, Nelson was hired before Plaintiff was discharged
and was hired to fill a different role than the one Plaintiff occupied.
In the Complaint, Plaintiff also alleged that “Defendant treated Plaintiff worse than the
following individuals who committed the same rule violations as Plaintiff: William Sellers (33),
(FNU) Roman (30s), Ben Davis (40s), (FNU) Davis (40s), Patrick Herrion (40), and (FNU)
Buckelow (40).” (Doc. # 1 at ¶ 15). According to Plaintiff’s evidentiary submission, Sellers and
Roman (1) were Transportation Supervisors (Plaintiff was listed as an Assistant Superintendent),
and (2) had their suspensions amended to full discharge (although, to be sure, they were
reinstated). (Doc. # 25-2 at FS000001, FS000003). Moreover, the circumstances here (Plaintiff
had multiple incidents in the three-year period before his discharge) were not present in the cases
of these other employees. Plaintiff has not pointed to any comparator who had four separate
severe incidents within three years, committed nearly identical safety violations including

14

crashing a rail car into a gate, driving a rail car over a bumper block, fouling track and also
fouling equipment by leaning over a knuckle without fifty feet of separation between equipment,
committed Cardinal Rules #4 and 5 violations on the same shift, and who had previously been
suspended three times (for periods of three, fifteen, and thirty days). (Plt. Dep., pp. 145-46). See
Horn v. United Parcel Servs. Inc., 433 F. App’x 788, 794-95 (11th Cir. 2011) (finding that
plaintiff failed to identify proper comparators where “the other six center managers … were not
accused of ‘nearly identical’ misconduct” because four managers had only one “integrity
violation” while plaintiff had three and, although one manager had committed a similar number
of violations, the nature of the violations were materially different from those committed by
plaintiff); Greer v. Birmingham Beverage Co., 291 F. App’x 943, 946 (11th Cir. 2008) (holding
plaintiff failed to identify a similarly situated comparator where plaintiff’s excessive phone use
was greater than that of the alleged comparators stating “[t]he quantity and quality of the
comparator’s misconduct must be nearly identical to prevent courts from second-guessing
employers’ reasonable decisions”). Plaintiff has noted that other employees have committed
safety violations, but has utterly failed to explain how those alleged comparators engaged in the
same “quantity” and “quality” of violations he did. Maniccia, 171 F.3d at 1368. This does not
suffice to meet his burden. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004)
(finding it necessary that a comparator be “nearly identical to prevent courts from secondguessing a reasonable decision by the employer”).
Indeed, a substantial argument is that it is Plaintiff (not others) who was treated more
favorably. Davis v. Dunn Constr. Co., 872 F. Supp. 2d 1291, 1331 (N.D. Ala. 2012) (no prima
facie case where plaintiff “selectively choos[es] a single comparator who was allegedly treated
more favorably, while ignoring a significant group of comparators who were treated equally to

15

her” (quoting Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 642 (3d Cir. 1998)).
Indeed, FS employees who were under the age of forty and committed Cardinal Rule and safety
rule violations were discharged at a substantially greater rate (35.7%) than were those over the
age of forty (23.8%). Webb discharged four employees under the age of forty on the first
occasion they committed Cardinal Rule violations (Simmons – 29, McGhee – 32, Sellers – 33,
and Roman – 35). Hood (38) was discharged on the second occasion when he violated Cardinal
Rules. There is no employee under the age of forty who within the previous three years had a
three-day, fifteen-day, and thirty-day suspension and violated a Cardinal Rule but who was not
discharged by Webb. Similarly, there is no employee that committed Cardinal Rules #4 and 5
violations on the same shift and was not discharged by Webb. No other employee ever drove a
rail car over a bumper block. (Doc. # 23-3 at ¶¶ 19-37).
Even if both Brown, Nelson, or another employee could be deemed similarly situated to
Plaintiff (and, to be sure, they cannot) and even if they engaged in the same misconduct (and, to
be clear, Plaintiff has also failed to make this showing), Plaintiff has still failed to demonstrate
that those outside the protected group were treated more favorably than him.
Finally, Plaintiff argues that some of the other employees who were discharged received
“last chance agreements” as a result of the third stage of the grievance process (i.e., arbitration).
But, the USWA decided not to pursue arbitration in Plaintiff’s case; therefore, Plaintiff is not
similarly situated to those employees that the union arbitrated for after they grieved their
discipline. Therefore, the Rule 56 record does not support Plaintiff’s assertion that he is similarly
situated to Brown or Nelson. Plaintiff has not established a prima facie violation of the ADEA.

16

B.

Plaintiff Has Failed to Establish Pretext.

Even if Plaintiff had established a prima facie ADEA violation (and to be clear, he has
not), he has not shown that the legitimate reasons Defendant offered for his termination were
merely pretext. See Combs, 106 F.3d at 1528. “To survive summary judgment, Plaintiff must
come forward with evidence that Defendant’s articulated legitimate, nondiscriminatory reason is
merely a pretext for unlawful discrimination.” Nowlin v. Jones Intercable, Inc., 102 F. Supp. 2d
1364, 1371 (S.D. Ga. 2000) (citing Burdine, 450 U.S. at 256). Defendant has articulated
legitimate, nondiscriminatory reasons (safety) for discharging Plaintiff. Plaintiff cannot rely on
conclusory allegations and assertions as the only source of support for his claim that the
legitimate, nondiscriminatory reasons Defendant put forth are false, and that age was the “but
for” reason for Plaintiff’s discharge. See Gargiulo, 131 F.3d at 999. Plaintiff is instead required
to present “concrete evidence in the form of specific facts.” Earley v. Champion Int’l Corp., 907
F.2d 1077, 1081 (11th Cir. 1990).
The plain language of Rule 56(c) mandates the entry of summary judgment . . .
against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the
burden of proof at trial. In such circumstances, there can be “no genuine issue of
material fact,” since a complete failure of proof concerning an essential element
of the non-moving party’s case necessarily renders all other facts immaterial.
Earley, 907 F.2d at 1080 (quoting Celotex Corp., 477 U.S. at 322-23). Here, Defendant “is
‘entitled to a judgment as a matter of law’ because [Plaintiff] has failed to make a sufficient
showing on an essential element of h[is] case with respect to which []he has the burden of
proof.” Id.
Plaintiff had multiple Cardinal Rule infractions within the three-year scope of review
undertaken by FS. Again, as already noted, Cardinal Rules are meant to protect against loss of
life and property. Plaintiff does not dispute that he, in fact, committed these violations. There is
17

no evidence of age animus by Webb in making his decision to discharge Plaintiff. 9 The evidence
offered by Defendant regarding its disciplinary actions demonstrates that, statistically, age has
not been a factor in discharge decisions. Indeed, Plaintiff’s protected class was actually
discharged at a lower rate than those not in the protected class. (See Doc # 23-3 at pp. 4-7). Nor
is there any basis for saying the Rule 56 record permits an inference of pretext or a finding of age
discrimination. After viewing the summary judgment evidence in the light most favorable to the
nonmoving party, the court concludes that no reasonable jury could find that age played any role
in Plaintiff’s discharge. Therefore, Defendant is entitled to summary judgment on Plaintiff’s
discrimination claim.
V.

Conclusion
For all of these reasons, the court determines that no question of material fact exists

regarding Plaintiff’s claim of age discrimination. Plaintiff has failed to bear the burden of
presenting a prima facie case. He has also failed to show that Defendant’s reasoning for
discharging plaintiff was merely a pretext for unlawful discrimination. Therefore, Defendant’s
Motion for Summary Judgment (Doc. # 22) is due to be granted. A separate order will be
entered.
DONE and ORDERED this July 13, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
9

It is not lost on the court that one of Plaintiff’s violations resulted in a train car suspended in mid-air.
(Doc. # 23-1 at pp. 119-20; Doc. # 23-2 at FS000115-16, FS000112-13; Doc. # 23-4 at pp. 60, 88-92; see also Doc.
# 3-3 at p. 10 (“I know of no other FS employee who has ever driven a rail car on top of a bumper block.”)). And,
although FS cited Plaintiff with violations of CR #14 and Special Rule 813.2, it only suspended him for five days.
(Doc. # 23-2 at FS000115-16). FS did not terminate Plaintiff until a later incident, which violated CRs # 4 and 5.
(See Doc. # 23-2 at FS000109; Doc. # 23-5 at FS000110-11, ADAMS Docs 56). And, the USWA—the union that
represents Plaintiff—would not go to bat for him in arbitration. (Doc. # 23-1 at pp. 55-56, 63, 80; Doc. # 23-3 at p.
4; Doc. # 23-4 at pp. 29-30; see also Doc. # 23-4 at pp. 58-59, 114). On this record of undisputed facts, the court
may reasonably infer that even the union determined Plaintiff’s termination to be for entirely legitimate reasons.

18