Guy v. Landers McLarty Dodge Chrysler Jeep Ram

Filing 37

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 11/24/2015. (KAM, )

FILED
2015 Nov-24 PM 04:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHONNE GUY,
Plaintiff,
v.
BESSEMER AL AUTOMOTIVE, LLC,
Defendant.

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CIVIL ACTION NO.
2:14-CV-2391-WMA

MEMORANDUM OPINION
Before the court is a motion for summary judgment (Doc. 19)
filed by defendant Bessemer AL Automotive, LLC (“Landers McLarty”).
For the reasons stated below, the motion will be granted.
BACKGROUND1
Plaintiff Shonne Guy (“Guy”) was employed by Landers McLarty
as a car salesman from July 2010 until March 2013. (Doc. 21-16 at
2, ¶ 2). As a salesman, Guy was subject to several different
policies,

many

but

not

all

of

which

were

contained

in

the

dealership’s Employee Handbook. (See Doc. 32-4). The handbook
stated that violation of any policy may result in termination, but
termination may occur for other circumstances as well. (Doc. 32-4).
One of those policies, the Salesperson Pay Plan (“Sales Policy”),
required Guy to sell eight vehicles per month. If he did not reach
that quota in a given month, he would be placed on a 90-day

1

The facts are presented in the light most favorable to Guy,
the non-movant. See Skrtich v. Thornton, 280 F.3d 1295, 1299
(11th Cir. 2002).
1

probation. If he failed to sell eight units in a month during the
probation period, he could be terminated. (Doc. 21-4). Guy was
written up twice during his employment for violating the Sales
Policy, but neither of those write-ups occurred when he was in a
probationary

period.

whether additional

(Docs.

verbal

21-5,

21-6).

counseling

The

occurred

parties

dispute

regarding

Guy’s

sales, which would not appear in his employment file.2 (See Docs.
21-2 at 104:14-25, 353 at 19:11-18).
Guy was also subject to a Use of Company Vehicle Policy
(“Vehicle Use Policy”). That policy provides:
1. I understand that if I find it necessary to use a
company vehicle for any reason without a customer in the
vehicle with me that I must have approval from the desk
manager and sign a demo agreement or I will be terminated
immediately.
2. I understand that it is against company policy for me
to use a company owned vehicle for personal use, (getting
lunch, running to gas station, or any personal errands)
and is grounds for immediate termination.
3. I understand that if I allow anyone to use a company
owned vehicle that I have to get permission from the
vehicle director, GSM [General Sales Manager], or GM
[General Manager] and have verified full coverage
insurance. I also understand that allowing someone to use

2

Landers McLarty contends that Guy admitted to being
counseled “all the time” about failing to meet the sales
requirements, (Doc. 21-2 at 104:14-25), but the court finds that
statement to be ambiguous and will not rely on it. While
difficult to decipher from the deposition transcript, Guy may
have been saying that he was counseled “all the time” about
improving his sales, but the counseling concerned selling more
cars generally and was not only in reference to the eight per
month minimum.
3

Pages and lines cited in this document correspond to the
marked numbers, not the actual page and line numbers.
2

a company owned vehicle without completing this will
result in immediate termination.
4. I understand that if I see or hear anyone else
violating this policy that it is my responsibility to
report it to management.
5. I understand that this serves as the first and last
warning and that any violation of this policy will result
in immediate termination.
(Doc. 21-1).
Keys for company vehicles were stored in a key track machine.
(Doc. 35 at 43:13-19). Salespeople could access the machine using
their fingerprint or a unique code. (Doc. 21-2 at 46:1-3). The key
machine kept track of which person checked out and returned each
key and the date and time of each action. (Doc. 35 at 43:13-22).
Landers McLarty had a Key Policy in place that required salespeople
to return all keys to the key track machine at the end of their
shifts. (Doc. 21-3). A salesperson was allowed to check a key out
on another’s behalf, but such action must be noted in the machine.
(Doc. 21-3). Guy testified, however, that this policy was not
always followed or enforced. According to Guy, many salespeople did
not return checked-out keys to the key track machine at the end of
each shift, and some managers instructed the salespeople to lock
keys in their desks instead of returning them. (Docs. 21-2 at 48:13, 32-1 at 3). Unlike other policies, the Key Policy was silent as
to potential discipline. (Doc. 21-3). Before the incident in
question, it is undisputed that Guy had not violated the Key
Policy. (Doc. 21-12 at 4).
On April 30, 2012, Guy filed a charge of discrimination with
3

the EEOC against Landers McLarty, accusing the dealership of
showing favoritism toward white salespeople regarding financing
arrangements. (Doc. 21-7). The parties settled that charge, with
the lawyers coming to terms on November 16, 2012, (Doc. 21-8 at 2),
and Guy signing agreements on December 4, 2012, and January 16,
2013. (Docs. 21-10, 21-11). Landers McLarty offered to settle the
charge for a higher amount if Guy resigned from the dealership, but
he chose instead to settle for a lower amount and keep his job.
(Docs. 21-2 at 134:10-135:1, 21-8 at 2). According to Guy, before
the charge settled, Knox Williams, the general manager at Landers
McLarty, called Guy into his office and questioned him about
dropping his EEOC charge. When Guy indicated that he would not drop
the charge, Williams “became rather agitated . . . and called the
meeting to an end.” (Doc. 32-1 at 6). Williams does not recall that
conversation. (Doc. 35 at 89:4-13).
Guy’s son, Tadarius Guy, attended college at nearby Lawson
State Community College and frequently spent afternoons at Landers
McLarty while waiting for his mother to pick him up. (Docs. 21-2 at
70:21-71:1, 21-12 at 8). While Tadarius was at Landers McLarty, Guy
often checked out a car for him to sit in and to listen to the
radio. (Doc. 21-2 at 70:21-71:1). Guy did not ask permission to do
this, but according to Guy this was a common practice among
dealership employees of which management was aware, and no one
complained to him about it. (Doc. 21-2 at 38:2-25, 132:19-133:4).

4

Guy testified that he gave Tadarius strict instructions never to
drive the cars. (Doc. 21-12 at 8). Guy himself was unable to drive
by virtue of his three recent brain aneurysms. (Doc. 32-1 at 4).
On January 22, 2013, an inventory of the vehicles at Landers
McLarty revealed that a white Chrysler 200 was missing from the
lot. (Doc. 21-12 at 2). The key machine showed that Guy was the
last person to check out the key, with that check-out occurring on
January 4, 2013. (Id.). Guy does not remember what happened to that
key, and he testified that any number of scenarios are possible.
(Doc. 21-2 at 48:11-19). According to Guy, the sales log showed
that a customer was interested in that vehicle on January 4, but
other salesmen showed the vehicle to the customer (Guy even called
the customer to verify this), so it is possible that he gave the
key to the other salesmen without properly noting that action in
the key machine. (Doc. 21-2 at 48:11-49:9). Guy also said it was
possible that the key was taken from his desk or that he gave it to
Tadarius to allow him to listen to music in the car. (Doc. 21-2 at
76:12-22).
The next day, Guy received a call from Tadarius’ cell phone.4
(Doc. 21-12 at 7). The call was actually placed by a Fairfield
police officer, who informed Guy that the phone had been found in
an abandoned car that had been involved in an accident that day.

4

Guy did not believe the phone to be Tadarius’ primary cell
phone because he had recently purchased Tadarius a new cell
phone. (Doc. 21-2 at 52:8-13).
5

Guy confirmed with the officer that the car was the missing
Chrysler 200.

(Id.).

According

to

the

woman

involved

in

the

accident, three males in their early twenties and a six-year-old
girl fled the scene immediately after the accident. (Doc. 21-2 at
53:1-4). Landers McLarty repaired the woman’s car free of charge
and provided her with a car to drive while her car was being
repaired. (Doc. 21-15 at 5).
Guy then informed Jeff Burt, the sales manager at Landers
McLarty, of the conversation with the police. (Docs. 21-2 at 26:1621, 21-12 at 7). Burt reported the car to the police as stolen, and
Landers McLarty hired an investigator. (Doc. 21-12 at 2). Soon
after, Guy spoke with his son, who denied stealing the car and told
him that he had lost his phone a few days earlier. (Doc. 21-2 at
43:7-15). Tadarius guessed that the phone had fallen out of his
pocket at some point while listening to the radio in that car.
(Doc. 21-12 at 9). Guy’s niece thereafter told him that Tadarius
confessed to the theft of the car. Tadarius purportedly admitted
that he regularly drove the car with two friends and parked it
somewhere other than at home but fled once they got into an
accident with a woman. (Doc. 21-2 at 74:19-75:8). The woman also
identified Tadarius out of a photo lineup. (Doc. 21-14 at 2). Burt
was aware of the alleged admission and identification. (Doc. 2114).
On February 1, 2013, Guy told Burt that he took Tadarius to

6

see a lawyer that morning and that Tadarius “may have confessed” to
the crime. (Docs. 21-2 at 69:8-13, 21-13). Landers McLarty took
this as an admission to the theft and reported it as such, (Docs.
21-13, 21-15 at 2), but Guy contends that he was only stating his
lack of knowledge on the subject, since the attorney met with
Tadarius in private. (Doc. 21-2 at 69:8-13). Williams testified
that the dealership believed that Guy gave the key in question to
Tadarius. (Doc. 35 at 74:4-7). Tadarius was indicted for theft of
the vehicle on February 28, 2013.5 (Doc. 21-18).
Landers McLarty terminated Guy on March 20, 2013, purportedly
for “[v]iolation of company policy that resulted in a financial
loss

for

the

company

and/or

employee

is

below

acceptable

performance standards.” (Doc. 21-19). Guy was not eligible for
rehire. (Doc. 21-19). Guy filed this action on December 12, 2014,
alleging that Landers McLarty’s given reason for his termination
was pretextual, and that he was actually fired in retaliation for
filing and settling an EEOC charge against the dealership, in
violation of 42 U.S.C. § 1981. (Doc. 1). Landers McLarty moved for
summary judgment on July 15, 2015. (Doc. 19).
DISCUSSION
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to

5

While not particularly relevant, given that it occurred
after Guy’s termination, Tadarius was granted youthful offender
status and sentenced to probation. (Doc. 21-2 at 130:17-25).
7

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must
“examine the evidence in the light most favorable to the non-moving
party,” drawing all inferences in favor of such party. Earl v.
Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). “[A] ‘judge’s
function’ at summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there is
a genuine issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (quoting Anderson v Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)).
Retaliation claims under § 1981, absent direct evidence of
retaliation, are evaluated under the familiar McDonnell Douglas
framework. Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009).6
First, to establish a prima facie case of retaliation, “a plaintiff
must prove that he engaged in statutorily protected activity, he
suffered a materially adverse action, and there was some causal
relation between the two events.” Goldsmith v. Bagby Elevator Co.,
Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). If the employee meets
this burden, the burden shifts “to the employer . . . [to]
produc[e] legitimate, [non-retaliatory] reasons for the challenged
employment action.” Combs v. Plantation Patterns, 106 F.3d 1519,

6

Because § 1981 and Title VII retaliation claims employ the
same standards, including the necessity of establishing “but for”
causation, the court will cite authority relating to the two
statutes interchangeably. See Jones v. Suburban Propane, Inc.,
557 F. App’x 951, 954-55 (11th Cir. 2014); Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
8

1528 (11th Cir. 1997).
If

the

employer

meets

this

“exceedingly

light”

burden,

Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997) (quoting
Turnes v. Amsouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994)),
the employee then “bears the burden of showing that the reasons
offered were merely pretext,” Rojas v. Florida, 285 F.3d 1339, 1342
(11th Cir. 2002). An employee may prove pretext “either directly by
persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981). “[T]o avoid summary
judgment [the employee] must introduce significantly probative
evidence showing that the asserted reason is merely a pretext for
[retaliation].” Brooks v. Cty. Comm’n, 446 F.3d 1160, 1163 (11th
Cir. 2006) (quoting Clark v. Coats & Clark, Inc., 990 F.2d 1217,
1228 (11th Cir. 1993)).
A. Prima Facie Case
Landers McLarty challenges Guy’s ability to establish the
causal connection prong of his prima facie case. Under University
of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517
(2013),

Guy

must

show

that

Landers

McLarty

would

not

have

terminated him but for its desire to retaliate against him for
filing an EEOC charge against the dealership. Landers McLarty
correctly argues that Guy cannot rely on temporal proximity alone
9

to establish a causal connection, see Montgomery v. Bd. of Trs.,
No. 2:12-cv-2148-WMA, 2015 WL 1893471 (N.D. Ala. Apr. 27, 2015),
but Guy does not rely solely on temporal proximity. Instead, Guy
points to a conversation with Knox Williams, Landers McLarty’s
general manager, as indicative of a but-for causal connection. In
that conversation, which allegedly took place while Guy’s EEOC
charge was still pending, Williams asked Guy if he planned to drop
his EEOC charge. According to Guy, when he indicated that he would
not drop the charge, Williams “became rather agitated . . . and
called the meeting to an end.” (Doc. 32-1 at 6). While Williams
does not recall this conversation taking place, it is indicative at
the summary judgment stage of Williams’s potential animosity toward
Guy for filing an EEOC charge and suffices to create a genuine
issue of material fact as to a but-for causal connection.7
Landers McLarty argues that the court should not consider this
conversation

because

Guy

introduced

it

in

a

“self-serving

affidavit,” but the court is unconvinced. As Landers McLarty
acknowledges, Guy first mentioned this conversation in his response
to Landers McLarty’s interrogatories. (Doc. 36 at 42). While his
recollection of the conversation there is not as complete as in his

7

Though not explicitly relied upon by Guy, the same is true
of the dealership’s offer to settle Guy’s EEOC charge for more
money if he resigned his position. (Docs. 21-2 at 134:10-135:1,
21-8 at 2). The court does not, however, accord any significance
to Landers McLarty’s opposition to Guy’s entitlement to
unemployment benefits. (Doc. 32-3).
10

later-submitted affidavit (Doc. 32-1), the two are not in conflict.
If Landers McLarty wished to cross-examine Guy on the subject, it
could have done so in Guy’s deposition, but it did not. (See Doc.
21-2).

Because

the

affidavit

does

not

contradict

but

merely

supplements Guy’s earlier interrogatory response, the court will
consider it. Guy has therefore presented sufficient evidence to
demonstrate a but-for causal connection at this juncture.
B. Pretext
Landers McLarty contends that it fired Guy for his violation
of the Key and Vehicle Use Policies, which caused financial loss to
the dealership, as well as for poor sales performance. (See Doc.
21-19). This

proffer

satisfies

Landers

McLarty’s

light” burden to produce a non-retaliatory reason.

“exceedingly

Holifield, 115

F.3d at 1564. Guy argues, however, that the dealership’s given
reason was pretextual, and that he was actually terminated in
retaliation for filing and settling an EEOC charge against Landers
McLarty. After consideration of all the evidence and arguments, the
court finds that Guy has not presented significantly probative
evidence that Landers McLarty’s given reason was pretextual. The
court will group Guy’s various arguments into five categories and
discuss each in turn.
1. Factual basis for proffered reason
Guy challenges the factual basis for the dealership’s belief
that Guy gave the key in question to Tadarius, who used that key to
11

steal and wreck the car. Guy argues that (1) there is no evidence
as to how the thief obtained the key, since Guy does not remember
what happened to the key and there are several possibilities; (2)
Tadarius told Guy he did not steal the car and Guy never told
Landers McLarty otherwise; and (3) Tadarius’ cell phone may have
fallen out of his pocket while listening to music, not while
stealing and driving the car.
It is axiomatic that an employee may demonstrate pretext by
pointing

to

“weaknesses,

incoherencies,
legitimate

or

implausibilities,

contradictions

reasons

for

its

in

action.”

the

inconsistencies,

employer's

Combs,

106

proffered

F.3d

at

1538

(quoting Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061,
1072 (3d Cir. 1996) (en banc)). But “when a plaintiff chooses to
attack the veracity of the employer's proffered reason, ‘[the]
inquiry

is

limited

to

whether

the

employer

gave

an

honest

explanation of its behavior.’” Kragor v. Takeda Pharm. Am., Inc.,
702 F.3d 1304, 1310-11 (11th Cir. 2012) (quoting Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)). After all,
“an ‘employer may fire an employee for a good reason, a bad reason,
a reason based on erroneous facts, or for no reason at all, as long
as its action is not for a discriminatory reason.’” Chapman v. AI
Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (quoting
Nix v. WLCU Radio/Rahall Commc’ns., 738 F.2d 1181, 1187 (11th Cir.
1984)). The inquiry is thus centered on the good-faith belief of
12

the employer, not whether the employee can demonstrate some minor
flaw in the employer’s given reason. See Rawls v. Ala Dep’t of
Human Res., 507 F. App’x 895, 898 (11th Cir. 2013).
Guy’s submitted evidence falls far short of what is necessary
to seriously question the honesty of Landers McLarty’s explanation.
The dealership conducted a thorough investigation which produced,
inter alia, the following facts: the key to the missing car was
last checked out by Guy (Doc. 21-12 at 2); Guy regularly checked
out car keys so that his son could sit in the cars at the
dealership and listen to music (Doc. 21-2 at 70:21-71:1); the car
was found abandoned after an accident, with Tadarius’ cell phone
inside (Doc. 21-12 at 7); the woman involved in the accident
identified Tadarius out of a photo lineup as being involved (Doc.
21-14 at 2); Guy’s niece told Guy that Tadarius confessed to taking
the car and to the accident (Doc. 21-2 at 74:19-75:8); Guy took
Tadarius to see an attorney and told Burt that Tadarius “may have
confessed”

to

the

crime

(Docs.

21-2

at

69:8-13,

21-13);

and

Tadarius was indicted for theft of the vehicle (Doc. 21-18).
Based on this investigation, Williams, the general manager at
Landers

McLarty,

testified

that

the

dealership

believed

that

Tadarius had taken the car using the key provided to him by Guy.
(Doc. 35 at 74:4-7). The lack of conclusive evidence of the manner
in which the key and car were taken from the dealership, the lack
of

an

admission

by

Tadarius

to

13

Guy,

and

the

possibility

of

Tadarius’ phone being in the car apart from the theft in no way
overcome

the

somehow

show

thorough
that

investigation

Landers

McLarty

and

details

had

any

uncovered

doubt

about

to
the

reliability of the investigation. Despite Guy’s arguments to the
contrary, these perceived minor flaws do not demonstrate pretext.
2. Inconsistent enforcement of policies
Guy next argues that Landers McLarty enforced its policies
harsher

against

him

than

against

other

employees,

which

can

demonstrate pretext, see Silvera v. Orange Cty. Sch. Bd., 244 F.3d
1253, 1259 (11th Cir. 2001). To this end, Guy makes two separate
but similar arguments. First, Guy argues and testified that other
employees frequently violated the Key Policy by not turning in keys
each night

and

seemingly

violated

the

Vehicle

Use

Policy

by

allowing their children to sit in cars and listen to music, but the
dealership did not discipline any of these employees. According to
Guy, because he gave strict instructions to Tadarius not to drive
the cars, but only to listen to music in them, Guy’s alleged
violation of the policies was no more serious than that of the
other

employees

who

were

not

disciplined,

so

the

stricter

enforcement of the policies against him demonstrates pretext. In
the same vein, Guy argues that he did not violate the Vehicle Use
Policy, which prohibits employees from “allow[ing] anyone to use”
a

vehicle

without

authorization,

because

the

dealership’s

acceptance of others checking out vehicles so their children could

14

sit in them forecloses the dealership from now saying, as only
against Guy, that this action constitutes impermissible “use” of
the vehicle.
The court is unpersuaded by Guy’s position. Guy would have the
court find that his purported violation of the policies, which (in
the apparent view of Landers McLarty) resulted in Tadarius taking
and damaging the car, is no more worthy of discipline than the
above-mentioned policy violations by other employees simply because
Guy instructed his college-aged son not to drive the car to which
he was given a key. The court finds the opposite to be true:
Landers McLarty did not act improperly by imposing a harsher
punishment on Guy than on the other violating employees precisely
because of the damage caused by the respective violations. Guy’s
violation is not on the same level as the others simply because he
instructed his son not to drive the cars, and the harsher treatment
of Guy does not demonstrate pretext. For the same reason, this
situation does not demonstrate that Landers McLarty interpreted its
Vehicle Use Policy stricter against Guy than against the other
employees. Whether or not sitting in a car at the dealership is
considered “use” under the Vehicle Use Policy, Landers McLarty was
justified in treating Guy differently because of the damage caused.
Second, Guy argues that many dealership employees violated
many different terminable policies (some of whom did so repeatedly)
but were not terminated, which demonstrates that Landers McLarty

15

pretextually

treated

him

more

harshly.

See

Walker

v.

St.

Joseph’s/Candler Health Sys., Inc., 506 F. App’x 886, 889 (11th
Cir. 2013) (“A typical means of establishing pretext is through
comparator evidence. . . . A comparator is ‘a similarly-situated
employee who committed the same violation of work rules, but who
was disciplined less severely than [the plaintiff].’”) (quoting
Rioux v. City of Atlanta, 520 F.3d 1269, 1276 (11th Cir. 2008).
Most of the employee misconduct referenced by Guy, however, is
wholly irrelevant because the employee conduct was completely
different

from

Guy’s

alleged

conduct.

Such

conduct

includes

drinking on the job, fighting with coworkers, sexual or racial
harassment, and accepting payment in the form of bird dogs. (Docs.
32-15 at 12-13, 39-41, 53-56; 32-16 at 11; 32-17 at 25-26, 58-59).
Given

the

vast

differences

in

the

conduct,

the

dealership’s

discipline of these employees cannot possibly demonstrate pretext.
As to those who committed misconduct arguably more similar to
Guy’s, the court still finds that none are proper comparators. See
Rioux,

520

F.3d

at

1280

(“The

‘quantity

and

quality

of

the

comparator’s misconduct [must] be nearly identical to prevent
courts from second-guessing employers’ reasonable decisions and
confusing apples with oranges.’”) (quoting Burke-Fowler v. Orange
Cty., 447 F.3d 1319, 1323 (11th Cir. 2006)). The policy violations
of most of the employees cited by Guy only overlap with his because
of Sales Policy violations. (See Docs. 32-15, 32-16, 32-17).
16

Because there is no evidence that those employees caused loss to
the company by allowing others to use company vehicles, their
misconduct can hardly even be described as similar to Guy’s, much
less nearly identical, so they will not be considered.
Only three of the alleged comparators violated the Vehicle Use
Policy or caused direct loss to the dealership. One of them, Ed
Mason, reportedly had some involvement with a wrecked car. He was
immediately suspended pending investigation and resigned that same
day. (Doc. 32-17 at 3-4). Even if Mason is considered a comparator,
he was in no way treated better than Guy. If anything, he was
treated

worse,

since

he

was

immediately

suspended

pending

investigation, while Guy was able to continue working during his
investigation. The second, Bryan Dye, drove a company vehicle for
personal use, was involved in a violent incident at the dealership,
and received stolen property. Shortly after, Dye negotiated a
termination agreement with Landers McLarty (he was paid $800) and
was not eligible for rehire. (Doc. 32-15 at 43-51). Because Dye’s
conduct did not involve a car being stolen and damaged, but only
that it was driven for personal use and returned, and given the
dearth of details on his alleged receipt of stolen property, the
court finds that Dye is not a proper comparator to Guy. Finally,
Guy points to Jared Lake as a potential comparator. Lake was
disciplined for many different issues, including absence/tardiness,
sales, negligence, insubordination, and improper charging of $20 to

17

a company credit card. He appears to have been terminated twice and
rehired after each termination. (Doc. 32-16 at 32-59). Lake’s
situation is hardly comparable to Guy’s, as his violations spanned
much different misconduct, and the only misconduct causing a direct
loss to the company ($20 on a company credit card) is of nowhere
near the same magnitude as theft of a car and required repair of
two vehicles. Guy has therefore failed to demonstrate that other
similarly situated employees were treated more favorably than he.
3. Eligibility for termination under Sales and Key Policies
Guy next argues that his termination was pretextual because he
was not actually subject to termination under two of the policies
he allegedly violated: the Key Policy said nothing about discipline
and the

Sales

Policy

only

allowed

discipline

if

a

violation

occurred during a probationary period, but Guy’s write-ups did not
occur during a probationary period. Guy’s contention, however, does
not demonstrate pretext. Guy’s factual correctness on these points
is itself unclear, since the Employee Handbook states that an
employee may be terminated for violation of any policy and that the
listed

policies

are

non-exhaustive,

so

an

employee

may

be

terminated for other reasons as well. (See Doc. 32-4). But more
fundamentally, Guy’s position is incorrect because he ignores the
fact that

he

was

terminated

for

conduct

that

violated

three

policies, one of which (the Vehicle Use Policy) states: “[A]ny
violation of this policy will result in immediate termination.”

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(Doc. 21-1). The fact that he may not have been eligible for
termination under the Key and Sales Policies does not change the
fact that he was eligible for termination under the Vehicle Use
Policy. Landers McLarty’s mentioning of non-terminable violations
in connection with violation of a terminable policy in no way
demonstrates pretext.
4. Consistency of given reasons for termination
Guy also contends that Landers McLarty has given inconsistent
reasons for his termination, demonstrating pretext. See Hurlbert v.
St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir.
2006). Guy’s termination form states that he was terminated for
“[v]iolation of company policy that resulted in a financial loss
for the company and/or employee is below acceptable performance
standards.”

(Doc.

21-19).

In

its

responses

to

Guy’s

interrogatories, Landers McLarty stated that Guy “was terminated
for violation of the dealership’s Key Policy, for violation of the
dealership’s

Use

of

Company

Vehicle

Use

Policy,

and

for

the

Plaintiff’s unacceptable performance standards.” (Doc. 21-16 at 2,
¶ 4). Guy argues that these two statements are inconsistent because
the

termination

form

uses

“policy”

as

singular

while

the

interrogatory response mentions two policies.
The court finds that the dealership has been completely
consistent in its given reasons. The singular and plural uses of
policy are not inconsistent, as “company policy” is commonly

19

understood as a reference to the sum of all of a company’s policies
- the termination form mentioned violation of “company policy,” not
“a company policy.” Likewise, the interrogatory response’s listing
of

the

specific

policies

in

no

way

contradicts

the

general

description in the termination form. Guy has therefore demonstrated
no inconsistency in the given reason for termination.
5. Prima facie evidence
This leaves only the evidence relied upon by Guy to establish
his prima facie case: that Williams expressed displeasure with
Guy’s refusal to drop his EEOC charge and that Landers McLarty
offered to settle the EEOC charge for a higher amount if Guy would
resign his position. While this evidence is sufficient to establish
a causal connection, the court finds that it, without more, falls
far short of significantly probative evidence of pretext. It at
most suggests that the dealership might have been motivated to
concoct a reason to terminate Guy at some point in the future. But
there is essentially no evidence that the reason actually given in
this

case

was

in

fact

concocted,

as

Guy

has

produced

no

significantly probative evidence that the specific given reason was
in any way pretextual. Absent any evidence that the dealership’s
perceived

displeasure

was

actually

carried

forward

to

his

termination, then, the court cannot attach significantly probative
weight to this evidence. Guy has therefore failed to demonstrate
that

Landers

McLarty’s

given

reason

20

for

his

termination

was

pretextual.
CONCLUSION
For the reasons stated above, Landers McLarty’s motion for
summary judgment (Doc. 19) will be GRANTED. A separate order will
be entered.
DONE this 24th day of November, 2015.

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

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