Knight v. General Telecom Inc
MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 23 MOTION for Summary Judgment, GRANTING IN PART and DENYING IN PART 31 MOTION for Summary Judgment as set out herein. Signed by Judge Virginia Emerson Hopkins on 9/27/2017. (JLC)
2017 Sep-27 PM 12:34
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
GENERAL TELECOM, INC.,
Case No.: 2:16-CV-218-VEH
MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, Ronald Knight, against the
Defendant, his former employer, General Telecom, Inc. (“GTI”). The Complaint
alleges that: the Plaintiff was fired (and not reinstated) by the Defendant, because of
his disability, diabetes, in violation of the Americans with Disabilities Act, 42 U.S.C.
§§ 12111-12117 (the “ADA”) (Count One); the Defendant failed to accommodate the
Plaintiff’s disability in violation of the ADA (Count Two); and, after his termination,
the Defendant failed to give the Plaintiff the required notice of his rights pursuant to
29 U.S.C. § 1166(a), of the Consolidated Omnibus Budget Reconciliation Act of
1985 (“COBRA”) (Count Three).
The case comes before the Court on the Defendant’s motion for summary
judgment on all counts (doc. 23), and the Plaintiff’s motion for summary judgment
as to Count Three, the COBRA Claim (doc. 31). For the reasons stated herein, both
motions will be GRANTED in part and DENIED in part.
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary 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 a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting 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 that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
GTI installs and maintains electric equipment and towers for cellular telephone
communications customers including AT&T, Verizon, Sprint, T-Mobile, Ericsson,
and, in the past, General Dynamics. The parties agree that, at all relevant times, GTI
employed 19-24 employees. (Doc. 24 at 5, ¶2 (not disputed by Plaintiff)). However,
the record contains evidence that GTI “employed 31 full-time employees on July 18,
2014, [and] 27 full-time employees on July 17,2015.” (Doc. 31-1 at 17).2 All but four
The facts set out herein are gleaned, in substantial part, from the facts proffered by the
parties. To the extent that a party has proffered a fact which is not disputed, it has been included
herein exactly as it was proffered, without citation. To the extent that a fact proffered by a party
was disputed by another party, the Court first examined the proffered fact to determine whether
the evidence cited in support of that fact actually supported the fact as stated. If it did not, the fact
was not included. If it did, the Court then looked to whether the evidence cited in support of the
dispute actually established a dispute. If it did not, the Court presented the fact as proffered, with
citation to the evidence supporting the fact as proffered. If the cited evidence was disputed by
contrary evidence, the evidence was viewed, as this Court must, in the light most favorable to the
non-movant, with citation to such supporting evidence. If more explanation was needed, the
Court included that information in an appropriate footnote. Some facts proffered by the parties,
which the Court deemed irrelevant and/or immaterial, may have been omitted. Further, as
necessary, the Court may have included additional facts cast in the light most favorable to the
In his own motion for summary judgment, the Plaintiff points out the discovery
responses which demonstrate the higher number of employees. (See doc. 31 at 7, ¶15). The
inconsistency between what the Plaintiff failed to dispute from the Defendant’s proffer, and his
own proffer, may be due to the confusing manner in which the Defendant set out facts in support
of its own motion for summary judgment. The Defendant sets out only 14 numbered facts.
However, many facts have “subfacts” within them. In response, the Plaintiff renumbered the facts
and responded accordingly. (See doc. 34-1 at 5-18; doc. 33 at 4-8). The Court has attempted to
keep this in mind when drafting the statement of facts in the light most favorable to the nonmovant, while also understanding that these are “cross” motions for summary judgment.
GTI employees spent most of their time completing work for customers in the field.
All GTI employees worked in the field from time-to-time. Individuals employed by
GTI had different skill sets, and would perform different duties based on customer
At all relevant times, GTI employees have been required to adhere to policies
in GTI’s Employee Handbook, which GTI distributes and explains to all of its
employees. GTI’s Handbook includes Equal Opportunity and Americans with
Disabilities Act policies, which, inter alia, call for reasonable accommodation of
employee disabilities and strictly prohibit discrimination in all employment terms and
conditions based on an employee’s disability. Also, pursuant to GTI’s Employee
Handbook, employees are subject to discipline up to and including termination, for:
poor job performance, unsatisfactory quality or quantity of work, failing to follow
instructions or company procedure, failing to meet safety expectations,
insubordination or refusal to perform work, disorderly conduct or acts of violence,
misusing or destroying company property, and using illegal drugs or reporting to
work under the influence of same.
Accordingly, when the Court has been made aware of facts which dispute certain “admitted”
facts, it does not deem those facts to be admitted.
Knight was employed by GTI as a “helper” from April 2006 until his
termination on June 24, 2015. The duties of a helper include generator installation,
simple directed wire splicing, and ditch digging.
Knight was diagnosed with Type 2 diabetes in 2012. He takes metformin to
control his diabetes and also takes medication for diabetic nerve damage in his feet.
His diabetic condition constrains his diet, limiting the foods he is able to eat. Knight
has to eat in order to keep his blood sugar up so that he can work.
Knight’s Training, Certifications, and Abilities
Knight can only read “some” and cannot write. (Doc. 25-2 at 9(29); doc. 25-1
at 2, ¶8.b.). It is undisputed that Knight was never certified to perform tower climbs
because he feared heights. Further, he obtained no industry or other certifications, and
he did not attend any training or classes in the telecommunications field.
At all relevant times in this case, Knight reported to GTI’s Chief Financial
Officer Dr. Lee Chamoun, and Field Manager Jeff Bowerman.3 Chamoun states in his
Technically Knight also reported to GTI’s President Joe Chamoun. However, to avoid
confusion, and because very few relevant facts in this case concern Joe Chamoun, the Court
omits any reference to him at this time. Simple references to “Chamoun” should be construed to
mean Dr. Lee Chamoun.
Ron’s skill set was the smallest of all employees who worked for the
Company; coworkers reported occasions in which he aggressively
declined to learn how to follow blueprints and perform even the simplest
tasks, and he never pursued training opportunities.
(Doc. 25-1 at 5, ¶12.b.). Accordingly, “[Knight’s] skills were confined to digging
ditches and following specific A-B-C instructions on what wire to place where.”
(Doc. 25-1 at 3, ¶8.c.) Bowerman who has “worked with Ronald Knight for
approximately twenty years,” and who was Knight’s supervisor at GTI, states the
following in his declaration:
At GTI, Ronald Knight was typically assigned work tasks such as
running pipe and simple electrical wiring. Mr. Knight’s skills and job
knowledge were limited in comparison to other employees under my
supervision. Based on my observation, Mr. Knight was not able to read
and/or write and did not have any desire to learn new technologies or
skills. To my knowledge, Mr. Knight never expressed interest in
attending training or classes to advance in the telecommunications field.
Because Mr. Knight was limited with regard to job skills and
knowledge, I had to assign him to jobs that offered simple electrical
work tasks. Unlike employees such as Michael Jones, Mr. Knight could
not perform technical electrical tasks such as integration and fiber optic
work on telecommunications job sites.
(Doc. 25-7 at 2, ¶¶5-6). Michael Jones, who worked with Ronald Knight “from
approximately 2009 until [Knight’s] employment ended,” stated:
[Knight’s] skills and knowledge of how to properly perform work tasks
was very limited. Unlike other GTI employees, Ronald Knight did not
actively keep up with changes and technology so that he could add value
to the company. Instead, Ronald Knight was only capable of performing
specific manual labor and simple electrical tasks.
(Doc. 25-9 at 2, ¶¶6, 7).
Due to Knight’s inability to communicate effectively in writing, GTI
management primarily communicated with him verbally. However, there is evidence
that Knight does communicate via text message. (Doc. 25-2 at 20(74); doc. 34-2).4
Still, Knight’s wife, Kimberly Knight (“Mrs. Knight”), typically communicated with
GTI on Knight’s behalf when something had to be completed in writing.
Knight’s Work Efficiency Issues
At all pertinent times, Knight understood that completing projects and contract
work quickly and efficiently was a top priority for GTI. In his deposition, Knight
testified: “[N]obody talked to me about work performance or anything. I’ve always
worked hard, always did my job, and I always did the best I could.” (Doc. 25-2 at
39(151)). However, his co-workers and supervisors saw things differently.5 In his
Knight did not communicate with management through e-mail because he could not use
a computer and did not know how to communicate using a computer. (See doc. 25-2 at 20(74)).
The quoted sections of the declaration testimony which follow are referenced in the
“facts” section of the Defendant’s brief in support of its motion. (See doc. 24 at 8, ¶¶9 - 9.a., and
evidence cited). The Plaintiff disputes none of the incidents described in this material, instead
Defendant never documented alleged coworker complaints or reports to
management prior to Plaintiff’s termination; a reasonable jury could find that the
unsigned writeups were created by Chamoun after Plaintiff was fired. (EX 3, 4).
The emails from General Dynamics make no reference to Plaintiff. (Doc. 25-1 p.
affidavit, Chamoun states that:
Ron was not efficient with the few skills he possessed when compared
to other employees at a time when a decision had to be made. . . .
Reports persisted that Ron’s work was beyond slow; he took 3 to 4 times
longer to perform simple tasks than did others, and he was reported by
co-workers as having taken extended breaks smoking in posted
restricted areas after being told not to smoke in restricted areas
(Doc. 25-1 at 5, ¶12. a.). Knight testified that he knows nothing about who might
have made any such reports, when reports might have been made, or any specifics
regarding same. (Doc. 25-2 at 38(145-146)).
Chris Howard was a “Lead Fieldman” responsible for supervising and directing
Knight’s work. He stated:
Though Mr. Knight and I were employed at GTI for many years, we
only worked together on projects and at job sites during approximately
the last six months of his employment. During that period, Mr. Knight
and I worked on numerous generator installation projects. Mr. Knight
typically was assigned to perform electrical work on projects.
 Based on my experience working with Mr. Knight, I would assess his
job performance as subpar. He would either take way too long to
complete a task or would breeze through it and do it incorrectly. For
example, I remember it taking Mr. Knight approximately 20 minutes to
complete tasks that generally take 2 hours. Mr. Knight also took
extended restroom and other breaks while GTI employees were
(Doc. 33 at 5). However, these writeups are nowhere mentioned in the sections cited. Also, it is
unclear to which “General Dynamics emails” the Plaintiff is referring, since the citation appears
to be a typo. Regardless, like the write-ups, the emails are not referenced in the sections cited by
performing work and would only reappear when the assigned work tasks
were at or near completion. In addition, Mr. Knight frequently stood
around [job sites] and smoked cigarettes while other GTI employees
performed assigned work.
 I frequently counseled Mr. Knight regarding his slow and poor job
performance. For example, while on a job in Mississippi installing a
power bay, Mr. Knight took approximately 18 hours to complete 30
minutes of work. During the project, I requested that he speed up and
finish the work he was performing. Mr. Knight, however, refused to do
so. On other occasions, I told Mr. Knight he would need to redo certain
electrical work that did not meet GTI or the customer’s quality standards
and expectations. Mr. Knight, however, refused to redo such work and
I or some other GTI employee would redo it before leaving the [job
 When I worked with Mr. Knight, he took more frequent and longer
breaks than any other GTI employees. . . . I would estimate that Mr.
Knight spent approximately 75% of his workdays on break.
 In May/June 2015, Jeff Bowerman discussed with me why my group
was not working as efficiently as expected and completing job projects
and work in a timely manner. In response, I requested that Jeff
Bowerman visit the job site and observe and assess for themselves the
performance of employees under my supervision. As requested, Jeff
Bowerman visited the job site where my crew was working and
observed the work of myself, Nicholas Gotay, and Mr. Knight.
(Doc. 25-8 at 2-3, ¶¶6-10).6
Bowerman stated the following in his declaration:
In May-June 2015, GTI learned that the work crew led by Chris
Howard, which included Chris Howard, Nicholas Gotay, and Ronald
In his deposition, the Plaintiff testified that he asked Bowerman to come out “and see
what was taking so long on the job sites.” (Doc. 25-2 at 38(146)).
Knight at the time, was taking a long time to complete projects. I talked
with Chris Howard about his crew’s efficiency and he requested that I
come observe his crew’s work so that I could see for myself what the
issue was. On June 12, 2015, and at other times, I observed Mr. Knight
working very slowly with no enthusiasm and poor work ethic. For
example, I watched Mr. Knight smoke cigarettes while Chris Howard
and Nicholas Gotay dug a ditch. I discussed with Mr. Knight that he
needed to help his crew perform assigned work in a timely and efficient
manner.7 I continued to observe Mr. Knight’s performance and counsel
him regarding his need to improve; however, his performance did not
improve and he showed no desire or willingness to perform GTI's work.
The Plaintiff states that Bowerman actually said “if we can't get these jobs done in ten
hours, then he's going to have to hire somebody else.” (Doc. 25-2 at 38(148)). Furthermore, in his
deposition, Knight denied ever having been counseled about or disciplined for anything, or
having had any rules discussions with anyone. (Doc. 25-2 at 34(129)). He stated that he has
always followed the rules. (Doc. 25-2 at 26(98)). The following discussion took place during
All right. During your employment at General Telecom, do you remember
receiving counseling for performance and rules violations?
Nobody ever counseled you about anything?
Nobody ever disciplined you for anything?
Nobody ever discussed rules violations with you?
(Doc. 25-2 at 33(128)-34(129)). However, elsewhere in his deposition he testified that a week
before he was fired Janis Rosser had called him regarding smoking on GTI property. (Doc. 25-2
at 28(106-107)). Also, Knight agreed that Chamoun had spoken to him about his positive test for
marijuana in March of 2014. (Doc. 25-2 at 30(116)).
(Doc. 25-7 at 3, ¶12). Bowerman also stated:
Employees frequently complained to me about working with Ronald
Knight. For example, Barry Key, Brandon Reno, Len Bracken, Mike
Jones, Chris Howard, Justin Bowerman, Scylar Stephenson, and Nick
Gotay all raised concerns and complained to me about working with
Ronald Knight because of his poor work performance, attitude, and
ethic. While Mr. Knight was employed by GTI, I tried to assign
employees who did [not] want to work with Mr. Knight to alternative
projects with other Field Technicians as best possible.
(Doc. 25-7 at 2, ¶7). Bowerman noted that “employees including Chris Howard and
Len Bracken reported to me that Mr. Knight had used marijuana while on-the-clock
at GTI.8 After the reports of drug use, Mr. Knight refused to take a drug test and told
me that he would never stop smoking marijuana.” (Doc. 25-7 at 2, ¶8).9
Len Bracken stated the following in his declaration:
Based on my experience working with Ronald Knight on a daily basis,
his performance was very poor. Ronald Knight was extremely slow in
performing simple work tasks and would spend a large amount of his
time during the shift finding ways to keep from performing required
work. For example, Mr. Knight frequently and constantly made walks
to our work truck for tools or water while the rest of the crew was
performing manual labor. In addition, Mr. Knight often stood around on
a job site and watched others perform work. Mr. Knight would try to cut
corners on work quality in order to complete job tasks as quickly and
easily as possible. I knew and understood that whenever I was assigned
In his deposition, the Plaintiff denied that he ever smoked marijuana on a job site or at a
GTI facility. (Doc. 25-2 at 24(91)).
It is unclear as to when this allegedly occurred. Absent more specifics, a jury could
reasonably conclude that Bowerman is referencing only the incident which occurred after the
Plaintiff passed out on June 9, 2015, discussed infra.
to a [work site] with Mr. Knight that he would not perform an equal load
of the required work and therefore I would need to work at a quicker
pace so that we could finish the job in a timely fashion.
 On one occasion while working with Ronald Knight at a [job site] in
Georgia, Mr. Knight was assigned to perform simple grounding work on
a generator disconnect. Though this particular work task typically takes
approximately 15 minutes to complete, Mr. Knight spent approximately
2 hours working on it. While performing other work duties, I watched
Mr. Knight and noticed that he was working very slowly on this simple
task. As a result and because Mr. Knight was my partner, I had to
complete other work duties and tasks on the [job site] that Mr. Knight
could have performed himself had he finished the grounding work in a
(Doc. 25-6 at 2, ¶6-7).
Michael Jones stated that:
[u]nless we know the job site will be close to somewhere we can eat,
GTI employees typically bring lunch so that we can eat quickly and
continue working to complete the job. Ronald Knight, however, refused
to bring lunch with him. I believe that he refused to bring lunch so that
he [could] request to stop working and take a lengthy lunch break.
(Doc. 25-9 at 2-3, ¶9).10 Jones also described Knight’s job performance as “generally
poor,” and stated that Knight “often refused to perform certain assigned work and job
tasks,” and “often would disappear from the [work site] for lengths of time.” (Doc.
25-9 at 2, ¶8). Jones also noted that he “personally saw Ronald Knight smoking
marijuana while on-the-clock or at a GTI job site.” (Doc. 25-9 at 3, ¶10).
There has been no objection to the admissibility of this statement.
Tommy Payton stated in his declaration:
Because I supervise GTI's Tower Crew, I only worked with Ronald
Knight on a few occasions. On several occasions, however, I heard other
GTI employees including Scyler Stephenson and Len Bracken complain
that Ronald Knight's work performance was poor and that they did not
want to work with Ronald Knight moving forward because Mr. Knight
failed and/or refused to perform assigned work tasks on job sites.
(Doc. 25-12 at 2, ¶7).11
Brandon Reno stated:
During my employment with General Telecom, I worked with Ronald
Knight on a daily basis during May and June 2015. During the [time] I
worked with Ronald Knight at [job sites], he displayed extremely slow
and poor work performance. For example, while performing a generator
installation, Mr. Knight worked in the air conditioned shelter at the job
site while the rest of the crew worked in the sun. On that day, Mr.
Knight took approximately six hours to complete what is generally two
hours of electrical work on the generator.
 At the end of a day’s work, the crew working with Ronald Knight
would check his work to ensure that he actually completed whatever
tasks he said he was working on during the day and that his work met
GTI and customer’s standards. The crew at times found Mr. Knight's
work tasks were not completed or did not meet standards and thus had
to complete the tasks for him or redo his work.
(Doc. 25-10 at 2, ¶¶6-7). Reno also stated that:
When I began my employment at GTI, I was assigned to perform
preventative maintenance work on generators with Ronald Knight. Mr.
Knight was expected to train me regarding preventative maintenance on
generators. As part of the job, Mr. Knight and I were required to change
There has been no objection to the admissibility this statement.
the oil in generators that had over 50 hours. Mr. Knight, however,
instructed me to not change the oil in the generators and to falsify the
job completion paperwork. In addition, the work required certain testing
of generators and paperwork certifying the completion of the testing.
Mr. Knight told me to simply complete the paperwork stating that
testing on the generators had been completed even though it had not
been completed. I refused to falsify the paperwork and reported Mr.
Knight's conduct to GTI management.
(Doc. 25-10 at 2, ¶5).
Chamoun explained that Knight was frequently insubordinate and disrespectful
to him. The following exchange took place in his deposition:
. . . He insulted me and offended me.
How did he do that?
“Fucking no.” These were his words. The “fucking,” aggressive,
violent, verbal abuse was his constant response to my -- to my
communications with him.
When did he do that?
On several, several occasions.
Are they noted [in writing]?
. . . [T]he “Fucking no” and “Fucking yes” and “I’ll fucking” this
-- excuse my language -- were not recorded maybe in some of these
documents because I feel insulted that these words were directed toward
When you were telling him what to do?
No, sir. When I told him what not to do.
Okay. Well, when you gave him instruction, whether to do it or
not do it, he used the curse words toward you?
Not curse words. Insulting, violent, abusive language, yes.
When he said “Fucking no,” that was his response to you giving
It was more than that, sir.
Okay. He was aggressive, is what you're --
Yes. His eyes would bulge out, his face will turn red, and he will
say, “Nobody will fucking tell me where to smoke and where not to
smoke.” That was an example, one example of that.
(Doc. 25-4 at 10(35-36)).
However, Chamoun admits that the Plaintiff was not fired for acts of
insubordination. In his deposition, the following exchange took place:
So, why didn't you just fire him for one of those two times when
he was being insubordinate to you?
. . . Thank you for this question. It's an excellent question that I
ask myself that every day, every hour of the day and the night.
Well, then you must have a really good answer.
No. It's stupidity on my part.
It's a mistake on my part. And it's out of the goodness of my heart
and love and respect for Mr. Knight.
(Doc. 25-4 at 12(41)).
Knight’s First “Termination” and Subsequent Probation
In March 2014, Chamoun decided to terminate Knight after Knight tested
positive for illegal drugs (marijuana). (Doc. 25-1 at 3, ¶10.a.). After Knight was
notified of his termination, Knight “begged and pleaded” to stay. (Doc. 25-1 at 3,
¶10.a.). Chamoun agreed to let Knight stay employed, on probationary status, on the
condition that any future policy or procedure violations or performance issues would
result in his immediate discharge. (Doc. 25-1 at 3, ¶10.a.).12 Knight admitted in his
deposition that he continued to smoke marijuana “at his house” after the failed drug
test and while he was still employed by GTI. (Doc. 25-2 at 32(121-122)). Chamoun
understood that Knight had stopped using marijuana as part of his continued
The “Fiber Optic Pedestal” Incident
In his declaration, Bracken describes the following incident:
In his deposition, Chamoun stated: “I told him, ‘You will be rehired under two
conditions: one, to seek help and treatment for your addiction; and two, you will be on probation
for the rest of your employment at General Telecom, Inc. and that one more mess-up of any kind
will result in your termination.’” (Doc. 25-4 at 9(29-30)). Knight admitted in his deposition that
he failed the drug test and that he asked Chamoun to let him stay. (Doc. 25-2 at 30(116)31(117)).
On or about February 19, 2015, I was assigned to work with Ron Knight
on a job site in Springville, Alabama on Simmons Mountain for
T-Mobile. On that day, Knight and I were assigned to dig an
approximate 60 foot ditch by hand because heavy machinery was
prohibited in the area. Knight became very upset at the prospect of
digging the ditch as required by hand. Knight told me that he refused to
help dig the ditch by hand and sat in the truck while I began digging.
After I had dug approximately 20 feet of the ditch, Knight got out of the
truck and grabbed a pick axe. Knight began wielding the axe around
wildly and violently. I was afraid for my personal safety and I personally
observed Knight intentionally damage a fiber optic pedestal with the
axe, which I understand GTI later had to pay to have fixed and/or
replaced. As a result, I reported Knight's behavior to Jeff Bowerman that
afternoon. I further notified GTI management that I could not work
[with] Knight in the future because of his violent behavior and overall
poor work ethic. After Knight broke the pedestal, he took a break from
the job and I dug almost the entire ditch myself while Knight watched
me over an approximately six hour period. I did not continue to work on
projects with Mr. Knight after this incident.
(Doc. 25-6 at 3, ¶9).13 Mr. Knight claims that he damaged the pedestal “accidentally.”
(Doc. 25-2 at 36(137)). In his deposition he stated: “I was using a pickaxe. And, like
The Plaintiff disputes Bracken’s account as conflicting with Bracken’s handwritten
statement regarding this incident. The Plaintiff writes:
the handwritten statement says nothing about Plaintiff swinging the axe in a
“violent and aggressive manner” or “swinging an axe wildly in anger” but rather
states that he was using a pickaxe “to break ground loose,” consistent with
digging a ditch, and that in the course of this work he “broke the base of the fiber
(Doc. 33 at 5, ¶22) (citing doc. 25-1 at 65). In fact, the statement to which the Plaintiff refers
consists of two pages (the Plaintiff cited only the second). (See doc. 25-1 at 64-65). When the
complete statement is reviewed, it actually states that Knight was “swing[ing] wildly in a [tirade]
[manner] and broke the base of the fiber optic pedestal.” (Doc. 25-1 at 64). Bracken also states:
“I request from my supervisor that I wasn’t able to continue working with Ron that I needed
another person to work with who was ethically performing his work.” (Doc. 25-1 at 65).
I said, it was froze [sic] like that (indicating). It was solid ice. Pick was bouncing off
of it. I just accidentally hit it.” (Doc. 25-2 at 36(137)).14
When asked in his deposition if there was “a reason you didn’t fire him for
that?” Chamoun testified: “[m]y stupidity, my mistake, and my good heart.” (Doc. 254 at 13(47)). The following exchange also took place:
And the reason you didn’t fire him for that is the same? Correct?
I should have fired him ten times already, but I didn’t, yes.
(Doc. 25-4 at 12(48)).15
The Fainting Incident
It is undisputed that, on June 9, 2015, the Plaintiff passed out, on a job site, as
a result of his blood sugar getting too low. (Doc. 25-2 at 41(159), 42(163)-43(165)).
The Plaintiff and the rest of his crew had stayed at a hotel the night before. For
The Defendant proffers the following fact:
During 2015, some of Knight’s coworkers notified GTI management that they
refused to work on projects with Knight because of Knight's work habits and fear
of Knight's violent and aggressive behavior.
(Doc. 24 at 9, ¶9.c.) (and citations thereto). The citations provided by the Defendant in support of
this fact establish only that Bracken made such a request. (See doc. 25-6 at 3, ¶9).
The Defendant states that “GTI learning of Knight destroying customer property from
an employee who no longer wanted to work with Knight was a factor in the discharge decision.”
(Doc. 37 at 2) (citing doc. 25-1 ¶13.c. and doc. 25-6 ¶9). Both citations given by the Defendant
are merely different persons recounting that the fiber optic pedestal event occurred. Neither
citation provides evidence that that event was a factor in the decision to fire the Plaintiff.
breakfast the Plaintiff had only a muffin at the hotel. Because he understood from
Chris Howard that the job would last only a couple of hours, the Plaintiff had only a
pack of crackers in his lunch box, which he ate early in the day at around 10:00 am.
The job took longer than expected however, and, around noon, the Plaintiff
began feeling ill, and told the others he needed to eat. Knight testified that “when I
start to feel really bad when my diabetes really acts up, the sunlight just is a big glare
and I can’t -- I can't see. So I went into the shelter and I sat down, and next thing I
know Chris Howard was picking me up off the floor.” (Doc. 25-2 at 43(165)). This
was around 3:00 pm. (Doc. 25-2 at 43(165)). The Plaintiff told Chris Howard that he
needed food, and Howard sent another employee down the road to Jack’s. Within an
hour, Knight felt better.
Howard called Bowerman, and Bowerman told Howard to bring Knight to the
shop. (Doc. 25-3 at 13(45); doc. 25-7 at 3, ¶10; doc. 25-2 at 43(166)).16 Chamoun
This disputed fact is cast in the light most favorable to the Plaintiff. Bowerman testified
that he first told Howard to take Knight to the hospital, but that Knight refused to go. (Doc. 25-3
at 13(45); see also doc. 25-7 at 3, ¶10 (Bowerman Declaration)). Howard stated the following in
I . . . called Jeff Bowerman . . . and told him it appears like Mr. Knight has
“passed out[.]” At that time, Mr. Knight sat straight up and stated: “I am alright. I
just need to eat.” During the telephone call, Mr. Bowerman instructed me to take
Mr. Knight to the nearest hospital so that he could receive medical treatment. Mr.
Knight, however, stated that he was “not going to the fucking hospital[.]” Mr.
Bowerman then instructed me to bring him to GTI’s office in Bessemer, Alabama.
I told Mr. Bowerman that I would bring Mr. Knight to GTI as soon as I finished
my safety paperwork at the job site.
After his incident, Mr. Knight came to my office. And as soon as I saw
him, I said, “Ron, you need to get medical” -- “to be checked out and get
a drug test.” And he said: “No, I don't want to do that today. Fucking
no.” And he walked away.
(Doc. 25-4 at 20(75)). Bowerman testified that he saw Knight at the shop too and told
Knight that he needed to go to the hospital, but that Knight refused and did not say
why. (Doc. 25-3 at 13(47)). In his declaration, Bowerman states:
When Mr. Howard and Mr. Knight arrived at GTI, I instructed Mr.
Knight that GTI needed to take him to the hospital for treatment and a
post-incident drug test. Mr. Knight, however, told me that he was not
going to see GTI’s doctor and would make an appointment with his own
personal doctor at his convenience. I told Mr. Knight a drug test was
required by GTI policy. Mr. Knight then got in his vehicle and left the
(Doc. 25-7 at 3, ¶10).
The following exchange took place in the Plaintiff’s deposition:
. . . And did you ride back to the shop in Bessemer with Chris
While I completed my safety paperwork, I instructed Brandon Reno to go
to Jack’s and pick up lunch. After I finished my safety paperwork at the job site
and Mr. Knight ate his lunch, as instructed I drove Mr. Knight in my truck to
GTI’s office. During the ride back to GTI, Mr. Knight told me that he could not
go to the hospital because he could not “pass a piss test[.]”
(Doc. 25-8 at 3, ¶11). The Plaintiff testified that Bowerman said to “bring me back to the shop,”
and that no one told him to go to the hospital. (Doc. 25-2 at 43(166-167)). When asked in his
deposition whether he remembered telling anyone that he would have failed a drug test if taken
that day, the Plaintiff answered “No.” (Doc. 25-2 at 44(169)).
When you arrived at the shop, what did you do?
Got my tools out of Chris’[s] truck and put them in my truck. I
think I talked to [Dr.] Lee [Chamoun], I’m not sure, about Lee said I
needed to go see a doctor and get it -- and get a drug test.
But you didn't go on that day, did you?
No. It was late when we got back. I explained to Lee that it was
my diabetes is why I passed out. And once I got something to eat, I was
fine. But he still wanted me to go see a doctor and get a drug test. So I
went the very next morning.
(Doc. 25-2 at 43(168)-44(169)). Knight admitted in his deposition that he knew that
after any type of work-related accident or injury he would be required to take a drug
test immediately. (Doc. 25-2 at 32(123)).
It is undisputed that, after Knight left, Chamoun sent him a text message asking
him to “[p]lease seek medical treatment and also please get a drug test done today or
tomorrow at the latest. We need these tests after every incident for ins [sic]
requirement.” (Doc. 34-2 at 4). Although Chamoun testified that “[w]e have a
specified doctor that he’s been to twice when he was injured on the job, and he went
to our company-designated doctor and -- that everyone goes to” (doc. 25-4 at 20(76)),
Chamoun admitted that at no time did he ever tell Knight specifically to go to this
doctor (doc. 25-4 at 21(77)). Chamoun explained that the requirement to go to this
was common knowledge and . . . he has been to that same doctor twice.
You just assume this is our doctor, that's where you go. Unless he
wanted to go to an emergency room, which we wanted him to as soon as
the incident happened, to go to an emergency room. When he refused
and showed up at the office, then I told him go to the doctor if not go to
an emergency room.
(Doc. 25-4 at 21(77)).
The next day Knight took a five panel drug test and the results were negative.
(Doc. 25-2 at 46(179-180), 115). When confronted with these test results in his
deposition, Chamoun testified:
The drug test that we require people to seek is our designated drug
testing center and workmen's comp physician. And this was not
performed at that center. The drug test we perform is a ten-panel drug
test. If I remember, this is a five-panel drug test. And comment that Mr.
Knight made to people the day before he took this drug test, or two or
three days before he did it, he “will not go to no fucking hospital,” and
if his drug test -- and if he does take a drug test, it will be positive. He
wants to go to a doctor's office where his drug test will be negative.
Did you hear him say that?
(Doc. 25-4 at 14(50-51)).
Employee Warning Notices
The record contains seven written “Employee Warning Notices” which were
completed by Chamoun and which report conduct allegedly engaged in by Knight.
(Doc. 25-4 at 39-45). The purpose of these “warnings” is unclear since, even though
there is a place for doing so on each form, none of the forms is signed by the Plaintiff,
and Chamoun admits that he never showed any of the forms to the Plaintiff.17
Chamoun stated that he “told them to him verbally” (doc. 25-4 at 10(33))18 since the
Plaintiff could not read. Although it is unclear from the record the date each of these
notices were created, Chamoun testified that “these were things I witnessed
specifically on these dates.” (Doc. 25-4 at 13(48)). Again, Knight testified that no
rules violations were ever discussed with him. (Doc. 25-2 at 34(129)).
December 12, 2014
On this warning, Chamoun has written:
I saw Ronnie Knight smoking at GTI as he was talking to James
Stephenson. When I approached them, Ronnie threw down his cigarette
as he cursed me. I told him that smoking is not allowed at GTI. And to
please remember that. He walked away. So I asked James Stephenson
As to one of the notices (the one concerning the incident where the Plaintiff passed
out), Chamoun testified that it was created merely to document the incident. (Doc. 25-4 at
When asked why he didn’t read the warning forms (verbatim) to the Plaintiff, Lee
Chamoun testified, “Oh, he would have stabbed me with a knife ... He would have stabbed me or
killed me or insulted me.” (Doc. 25-4 at 10(33)-(35)).
what was Ronnie talking to him about and James said, [“]Oh he just
wanted to talk about shit and stuff.[”]
(Doc. 25-4 at 39). The applicable “Violation” marked was “Conduct.” The Plaintiff
disputes that this conversation took place. (Doc. 25-2 at 34(131)). Referring to this
warning, the following exchange took place in Knight’s deposition:
It refers to you smoking on General Telecom's premises and
that Dr. Chamoun told you that smoking was prohibited.
Do you remember that discussion in December 2014?
(Doc. 25-2 at 34(131); see also doc. 25-2 at 100 (December 12, 2014, warning
notice).19 Regardless, it is undisputed that Knight repeatedly broke the smoking rule.20
Thereafter, the following exchange took place:
. . . you are disputing that a verbal discussion was had with you?
I don’t remember one.
All right. And when you say I don't remember, does that mean it might
have happened and you just don't remember as you sit here today?
I don’t remember ever having a discussion about smoking.
(Doc. 25-2 at 34(131)).
As noted previously, Knight denies ever being counseled on rules violations. However,
the following facts were proffered by the Defendant and not disputed by the Plaintiff:
[10.b.] (3) . . . (a) Whether or not he felt others sometimes broke the rule, Knight
January 15, 2015
On this warning, Chamoun has written: “Ron has not been to work for 4 days
and has not presented to us a vacation or time off request as per GTI policy.” (Doc.
25-4 at 40). The applicable “Violation” marked was “Attendance.” Chamoun
confirmed that this write up was not created on January 15, 2015. (Doc. 25-4 at
13(45)). Knight states that the facts stated in this warning are not true and that he
“wouldn’t be a no show person.” (Doc. 25-2 at 35(133)).
alone was repeatedly observed ignoring GTI’s rule against smoking in areas where
explosive chemicals are present even after being instructed to stop.
1-Safety and customer relations reasons support the rule and
photographs reflect in these areas signs clearly forbidding smoking
Dr. Chamoun had reason to believe Knight would see.
2-Dr. Chamoun repeatedly brought this issue to the attention of
Knight and his supervisor.
3-Dr. Chamoun observed and received reports that Knight was
ignoring his instruction throughout this period.
(Doc. 24 at 11-12). The Plaintiff only responds to these facts with: “Lee Chamoun admits that the
Plaintiff was not fired for smoking, for being insubordinate by smoking after being told not to,
nor for allegedly cursing when he was told not to smoke.” (Doc. 33 at 6). Since, to the Court’s
knowledge, except for the part about Knight being counseled, these facts have not been disputed
in the record, they are deemed to be admitted for the purpose of liability on the discrimination
claim only. As noted in this Court’s discussion regarding the COBRA claim, in light of the
difference in the arguments made by the Defendant, and the way in which the Defendant
presented its facts, the Court gives the Plaintiff the benefit of the doubt and assumes that his
response to these facts was not crafted with the COBRA claim in mind, and therefore will not
deem those facts to be admitted as to that claim.
February 19, 2015
On this warning, Chamoun has written:
Ronald Knight was working with Lynn Bracken at a Springville job site
today. Ron refused to work, complained and cursed GTI and while Lynn
was digging the ditch of 55', Ron was calling and getting mad and
sitting in his truck on the phone making phone calls. He finally got an
axe and went into a tirade and started swinging the axe. Lynn was afraid
for his safety. Ron swinging at the fiber optic pedestal and broke it. GTI
now [has] to send a crew to repair the damage that was negligently
caused by Ron.
(Doc. 25-4 at 41). The applicable “Violations” marked were “Carelessness,” “Gross
Mis-conduct,” “Insubordination,” “Personal Work,” “Safety,” and “Willful Damage
to Company Property.” As noted previously, the Plaintiff admits that he damaged the
pedestal, but that it was an “accident.” (Doc. 25-2 at 36(137)).
February 20, 2015
On this warning, Chamoun has written:
After damaging the fiber optic pedestal[;] [a]fter cursing and
complaining all day[;] [a]fter swinging an [a]xe in a tirade[;] [a]fter
refusing to work[;] [a]fter negligently [d]amaging customer property[;]
Ron did not show up to work today.
(Doc. 25-4 at 42). The applicable “Violations” marked were “Attendance,” and
“Unauthorized Absence.” The Plaintiff states that he remembers showing up for work
on that day. (Doc. 25-2 at 37(141)).
April 13, 2015
On this warning, Chamoun has written:
I observed Ron smoking inside the warehouse building as he stood right
next to gasoline red gallons, spray cans, solvents, paints, [and]
compressed gases containers. A sign of [sic] non smoking was facing
him on the shelf. I approached him in a hurry and asked not to smoke
and that it is dangerous to smoke here. He turned his back to me,
smoked more, and mumbled [“]no one can tell me whether I can smoke
or not.[”] He walked slowly as he smoked towards the exit door. GTI
does not allow smoking outdoors as well due to gasoline storage tanks.
(Doc. 25-4 at 43; see also doc. 25-4 at 11(37-38) (reading the contents of the
warning)).21 The applicable “Violations” marked were “Gross Misconduct,” and
“Gross Insubordination.” In his deposition, Chamoun testified that on this occasion
Knight also cursed at him, using the word “fucking.” (Doc. 25-4 at 11(39)). Knight
states that he does not remember the conversation referenced in this warning. (Doc.
25-2 at 37(143)). Further, as noted above, it is undisputed that Knight repeatedly
broke the smoking rule by smoking around dangerous chemicals.
June 8, 2015
On this warning, Chamoun has written:
Ronald was smoking inside adjacent to flammables and gasoline tanks
and by the sign that said [“]no smoking.[”] He looked at me with anger,
As they are handwritten, it is very difficult to make out all of the contents of each
warning. Thus, the Court has combined the warning itself and the deposition testimony of
Chamoun, where he read the warning aloud.
turned his back and kept smoking. I said [“]Ron please you cannot
smoke at GTI and it is not safe man, it’s really dangerous to [sic].[”] He
walked away; stayed in the warehouse and kept smoking indoors where
it is dangerous and prohibited due to safety. I walked up to Jeffrey
Bowerman and said [“]Jeff please tell Ron he cannot smoke in here, it’s
not safe and this is not the first time he [has done] it.[”] Tell him I am
serious and that [this is] his 3rd warning that I am going to write up.
(Doc. 25-4 at 44; see also doc. 25-4 at 11(39-40) (reading the contents of the
warning)). No applicable “Violations” were marked, although the word “gross” has
been handwritten in twice over the both words “Conduct,” and “Insubordination.”
Chamoun testified that on this occasion as well Knight cursed at him, although it is
not documented. (Doc. 25-4 at 11(40)).22 Knight does not remember the conversation
referenced in this writeup. (Doc. 25-2 at 37(144)-38(145)). Again, however, it is
undisputed that Knight repeatedly broke the smoking rule.
June 9, 2015
On this warning, Chamoun has written:
The following exchange took place during Chamoun’s deposition:
Is that everything that was said on that occasion? Or did he use the curse
He always used the curse word, even when I -- at this occasion, I'm sure he
did, but I did not document it.
Told you “Fucking no” and things like that?
(Doc. 25-4 at 11(40)).
Chris Howard called us today and said that Ronald Knight has passed
out inside the cell tower shelter as he was sitting down on the floor of
the shelter while smoking a cigarette inside. Smoking inside the shelter
is prohibited by the customer.
(Doc. 25-4 at 45). Under “Action Taken” appears the following language: “Informed
Chris to take Mr. Knight to the nearest hospital E.R. for treatment and for [drug
testing] as required by our Insurance.” (Doc. 25-4 at 45; see also doc. 25-4 at 12
(reading the contents of the warning)). The applicable “Violations” marked were
“Gross Misconduct,” and “Gross Insubordination.” Chamoun testified that he did not
go over this warning, even verbally, with Knight. (Doc. 25-4 at 20(73)-(74)).
The Downturn in GTI’s Business23
Until the fall of 2014, GTI worked on projects using crews of as few as one and
as many as five employees on a site. For a large part of the time during which the
Plaintiff was employed as a helper, GTI installed and maintained generators at
customer sites, but that work (which often required a helper) largely dried up after the
completion of the General Dynamics contract ending June 12, 2015. Furthermore, in
2014 and thereafter, GTI’s customers were facing changes in the industry relating to
charges for data and other services, and began insisting that GTI perform services
All of the facts in this section are either admitted by the Plaintiff, or deemed to be
admitted by the Court. Some of these facts were proffered by the Defendant in document 24 at
pages 4-5, ¶¶1.a.-1c., 2.d.). All of those facts were admitted by the Plaintiff. (See doc. 33, no
dispute). Many of the facts were proffered by the Defendant in document 24 at pages 9-11,
¶10.b.(1)-(2). In his brief, the Plaintiff has not disputed these facts. Instead he addresses these
facts together saying:
A reasonable jury could find that the “reduction in force” was pretext because
Plaintiff’s termination occurred almost immediately after Lee Chamoun learned
that Plaintiff was diabetic and that he had experienced a syncope at work; he was
the only Alabama employee laid off, and Defendant then rehired Mike Jones.
(Doc. 33 at 5-6). The court’s Uniform Initial Order, entered in this case on April 14, 2016, states:
Any statements of fact that are disputed by the non-moving party must be
followed by a specific reference to those portions of the evidentiary record upon
which the dispute is based. All material facts set forth in the statement required of
the moving party will be deemed to be admitted for summary judgment purposes
unless controverted by the response of the party opposing summary judgment.
(Doc. 11 at 17) (italics in original). Not only does the Plaintiff’s response not “dispute” anything,
it cites to no portion of the record in support of his statement. His response is “argument,”
inappropriate for this portion of his brief. Accordingly, the Court has deemed these facts to be
admitted, and included them verbatim.
with crews of one, except when the services require a certified tower climber to
climb, and where the law called for more than one. Only individuals with climbing
certifications perform work climbing cell phone towers to install or maintain
equipment, and only those able to operate the truck GPS can serve on one-person
crews. Knight could not operate the GPS necessary to enable him to find the
customers’ remote locations and he lacked certifications necessary to do tower
climbs, and knowledge and skills for other available work. In other words, Knight
lacked skills necessary for work available following changes in the
telecommunications industry and loss of work with customer General Dynamics
beginning on June 13, 2015. Accordingly, Knight was discharged as part of a
reduction in force during the third week of June 2015.24
After the incident where the Plaintiff passed out, Knight returned to work on
June 10, 2015, and worked June 11 through June 13, and June 15 through June 19,
2015. On the evening of Saturday, June 21, 2015, twelve days after passing out from
the episode on June 9, the Plaintiff received a text from Jeff Bowerman telling him
“Stay home tomorrow it’s going to be [too] hot for you to work.” (Doc. 25-3 at 31).
Knight admits he had no knowledge respecting GTI’s future work or contracts at the
time of his discharge.
Plaintiff responded, “I will be fine tomorrow I will see you at 6.” (Doc. 25-3 at 31).
Bowerman replied, “I can’t let u work.” (Doc. 25-3 at 31). Plaintiff asked, “Why[,]
I’ve been working in the heat,” and Bowerman replied, “You will have to talk to Lee
[Chamoun].” (Doc. 25-3 at 31). In Bowerman’s deposition, the following exchange
Why did you tell him, “You need to stay out of the heat”?
Because heat will make you sick if you're -- I don’t know.
Will make you sick if you’re diabetic?
Will make you sick if you’re in it for a long period of time.
(Doc. 25-3 at 14(50)). It is undisputed that Bowerman had been told by Chamoun to
tell Plaintiff he should not work because it was too hot. Chamoun testified that he had
Bowerman tell Plaintiff to stay home and rest because the last time he talked to him,
the Plaintiff said “I’m fucking tired. I’m too fucking tired.” (Doc. 25-4 at 31(117)).25
The decision to terminate Mr. Knight has been going as a long-term process. And
I was preparing to make that decision. And that was why I asked him to stay
[home], because of the heat. In addition to that, Mr. Knight, last time I saw him, I
said, “How are you, Ron?” He said: “I’m fucking tired. I'm too fucking tired.” So
we told him to stay home so he can get some rest. But I’d already made the
decision to terminate him, as a part of a continuous process. Chamoun testified,
“[a]fter we begged him, several of us, to go to the hospital to seek treatment and
he did not, we just given up on Mr. Knight.”
(Doc. 25-4 at 30(116)-31(117)).
The Plaintiff testified that he never told Chamoun he was tired. (Doc. 25-2 at
Nevertheless, Knight returned to GTI the next morning, July 22, 2015, to work.
That day, the Plaintiff spoke to Chamoun, who told him “work was slow,” that they
had laid someone else off in Mississippi, and that Plaintiff should “go home and rest”
and Chamoun would call him. (Doc. 25-2 at 49 (191)). Chamoun stated the following
in his deposition:
I wanted to tell him that he was terminated, but I was afraid of him, he's
already used aggressive, violent, abusive language with me. So I told
him, “You're tired, please go home and get some rest.” I was afraid of
telling him that he's being laid off at that point.
(Doc. 25-4 at 31(119)).
The Plaintiff eventually found out that he had been terminated when he called
Chamoun on June 24, 2015, and Chamoun told him that he was being terminated for
“inefficiency.” (Doc. 25-2 at 49(192)).26 Chamoun testified that it “was a lengthy
process” (doc. 25-4 at 18(68)) which culminated in Knight’s termination
[a]fter extreme deliberation on my part and evaluating Mr. Knight's
incompetence, Mr. Knight’s gross misconduct, and after our lack -occurrence of lack of work, and after Mr. Knight has violated
The Plaintiff used the word “insufficiency” in his deposition, which the court has
corrected to “inefficiency.” Chamoun states that he told the Plaintiff he was being “laid off”
“[d]ue to the lack of work, his inefficiency, his gross misconduct, and his violation of his
probation time.” (Doc. 25-4 at 32(121)).
repetitively the terms of his probation from 2014, the termination and
(Doc. 25-4 at 19(69)).
It is undisputed that “[n]o medical condition—known or unknown—played any
role in the decision to discharge Knight.” (Doc. 24 at 14, ¶11 (proffered by Defendant
and not disputed by Plaintiff). Chamoun, Bowerman, and other company employees
are diabetics. Knight told Chamoun that he too was a diabetic and that he (Knight)
believed his diabetes caused him to faint. No one told Knight he was discharged
because of his diabetes. No one told Knight anything leading him to conclude he was
discharged because he had diabetes. Knight knows of no similarly situated
employees, who engaged in the same alleged conduct as he, who were retained in the
employment of GTI. Knight has no other facts supporting the conclusion he was
discharged because of diabetes.27
Knight’s Unemployment Claim
The Defendant did not fight the Plaintiff’s unemployment claim. Chamoun
stated that the company generally does not fight unemployment claims “[u]nless it
was something that we believe that the -- it was intentional or involves -- it involves
This last fact was proffered by the Defendant. In response, the Plaintiff states:
“Plaintiff’s attorneys, not Plaintiff are responsible for marshaling the facts.” (Doc. 33 at 8). One
wonders for what opportunity Plaintiff’s counsel is waiting to begin “marshaling”, if not in
response to this proffer? Counsel’s failure to dispute this proffered fact at all, much less with
citations to the record, has resulted in the Court deeming this fact to be admitted.
fraud.” (Doc. 25-4 at 26(99)). The only reason Chamoun gave to the Alabama
Department of Labor for the Plaintiff’s discharge was “lack of work.” (Doc. 25-4 at
Others Who Were Laid Off/Rehired
About the same time that the Plaintiff was laid off, the Defendant also laid off
Dyrk Trosclair in Mississippi, and Johnny Wills in Alabama. (Doc. 25-1 at 5, ¶11.e.).
Defendant hired two employees/independent contractors after it terminated the
Plaintiff. One employee, Jason Thompson, “was hired as a tower climber to climb and
perform work on telecommunications and satellite towers, which Mr. Knight was not
certified to perform.” (Doc. 25-7 at 3, ¶15). The company also re-hired Mike Jones,
whom Bowerman stated could perform technical electrical tasks such as integration
and fiber optic work on telecommunications sites–also tasks Knight could not do.
(Doc. 25-7 at 2, ¶6).28 Jones worked on various crews doing various tasks, including
installing equipment such as batteries and power plants. Chamoun testified that Mike
Jones “is multitasked, like everybody else at the company” and also performed
non-skilled labor such as “bathroom receptacle, cleaned warehouse, technician, LTE.”
(Doc. 25-4 at 27(102)).
Chamoun testified that Jones quit shortly after Chamoun contacted him about another
employee, with whom he worked, allegedly stealing from the company. (Doc. 25-4 at 25(93)).
It is undisputed that the Defendant did not terminate Jason Thompson or
Stephan Glass despite a physical altercation in which both of them were engaged at
work. (Doc. 25-4 at 23(85-88); doc. 25-4 at 49).
Knight’s Post-Termination Threats Against Other Employees
On August 3, 2015, Mike Jones informed Chamoun that Knight had called him
(Jones) and “threatened [him] with bodily harm if [he] [made] a statement as to
[Knight’s] perform[ance] at GTI.” (Doc. 25-1 at 77).29 Chamoun reported to the
Bessemer police that Knight had “threatened at least two of our employees.” (Doc.
25-1 at 79).30
Chamoun’s affidavit refers to “threats” plural. The Court has examined the statements
he cites, and only sees a threat against Jones, which is documented twice. (See doc. 25-1 at 74 (“I
would regret not helping him”), and 77 (“threatened me with bodily harm”). The Plaintiff states
that he “never made such threats,” but the evidence he cites to references only a portion of his
deposition where he denies making a threat against Howard, not Jones. (See doc. 33 at 7, ¶45).
The Defendant proffers the following fact: “Knight lost his subsequent employment at
Camping World for similar such behavior.” (Doc. 24 at 13,-14, ¶10.c.(1)(b)). This fact is
STRICKEN since it, and the evidence cited in support thereof, is inadmissible character and/or
“other acts” evidence. See FED. R. EVID. 404(a)(1), (b)(1).
Alleged Denial of Accommodations31
Knight testified that he has not any issues before June 9, 2015, performing the
duties of his job because of his diabetes. (Doc. 25-2 at 41(158)). He also stated that
there were no jobs he could not perform because of his diabetes, and he did not need
any type of help or assistance to perform his job. (Doc. 25-2 at 41(158)). Prior to June
10, 2015, Knight never requested any type of accommodation. (Doc. 25-2 at 46(177178)).32 At that time he presented a doctor’s note to Chamoun which stated that the
Plaintiff needed “regular breaks for rest and meals.” (Doc. 25-2 at 45(174); doc. 25-2
The facts in this section are almost entirely proffered by the Defendant. (See, doc. 24 at
15-16, ¶¶12.a.-12.d. and citations therein). The Plaintiff does not address each fact separately.
Instead, he responds to all of these facts with the following:
Disputed, as Plaintiff testified, “people that I've worked with know that I'm a
diabetic. And when I told them that I feel bad, I need to eat, that -- they told me
that the job's almost done, wait, wait, wait, where they waited too late and I passed
out.” (Doc. 25-2, 152:1-6). A reasonable jury could find that Plaintiff was
terminated to avoid accommodating his need for breaks for his diabetes going
(Doc. 33 at 7). This single statement and citation to the record does not sufficiently dispute all of
the facts or evidence cited by the Defendant.
Bowerman stated that he never spoke to Knight about his need for breaks. (Doc. 25-3 at
25(94)). In Chamoun’s affidavit, he states that:
I received after June 10, 2015 a list of restrictions from his physician, but not a
medical record stating why they were imposed; I honored the restrictions (I had
never received any before or since and never got anything from a doctor that
stated he had diabetes until after his termination).
(Doc. 25-1 at 6, ¶14.c.).
at 114). When asked about this in his deposition, Knight agreed that he had always
been permitted to take sufficient breaks, even before that request, stating that he “took
breaks as [he] needed them.” (Doc. 25-2 at 46(177)).
The following exchange took place during Bowerman’s deposition:
Did anybody let you know that he needed -- that Mr. Knight
needed to take regular breaks?
Dr. Lee [Chamoun] did tell me that Ron Knight needed to take
Did he take extra breaks?
He, from my observing him, yes, he took many breaks.
(Doc. 25-3 at 25(94)). The Plaintiff testified that Chamoun told him after he passed
out that he could not take a break. (Doc. 25-2 at 22(84)). No one else ever told him
that he could not take a break. (Doc. 25-2 at 23(85)). He was never prohibited from
taking a break. (Doc. 25-2 at 28(105)). However, Knight testified:
Because I've -- people that I've worked with know that I'm a diabetic.
And when I told them that I feel bad, I need to eat, that -- they told me
that the job's almost done, wait, wait, wait, where they waited too late
and I passed out. Chris Howard knows I'm a diabetic. You know, Mike
Jones, everybody I've ever worked with. Scieler knew I was diabetic.
When I told him I had to eat, Scieler would always say okay, let's go eat,
you need something.
(Doc. 25-2 at 39(152)).
Chamoun testified in his deposition that at the time the Plaintiff passed out
Chamoun did not know that the Plaintiff was a diabetic. (Doc. 25-4 at 12(43)). At
first, Chamoun testified that he only learned of the Plaintiff’s condition when the
Plaintiff filed his EEOC charge alleging disability discrimination. (Doc. 25-4 at
12(43)). Later, Chamoun admitted to having received a text message from the
Plaintiff on June 9, 2015 which stated “I got sick because of my diabetes.” (Doc. 25-4
at 16(57)). Chamoun testified that before that text he had never been informed, in any
way, that the Plaintiff had diabetes. (Doc. 25-4 at 18(67)). The Plaintiff states that he
informed the Defendant of his diagnosis “years before [his] employment ended,”
because he informed it right after he was diagnosed. (Doc. 25-2 at 40(156)).
Chamoun states in his affidavit that he:
provided a blanket notice . . . that included COBRA information and
also notified the reader how to obtain additional information; I had used
this notice in the past without incident with employees, and employees
who had elected COBRA coverage in response.
(Doc. 25-1 at 7, ¶16.b.; doc. 25-1 at 83). A handwritten note appears in the record
On Thursday, July 30th 2015[,] around 3 PM, Ron Knight[’]s wife Kim
came by and picked up his last paycheck. Dr. Lee Chamoun and I gave
Kim a release form to read and sign. She read it and said she did not
want to sign it. We gave her the check and she left.
(Doc. 25-4 at 37). The note appears to be signed by Janis Rosser. (Doc. 25-4 at 37).
In her declaration, Rosser confirmed these events and added that she gave the form
to Mrs. Knight to “have him sign and return it to GTI.” (Doc. 25-11 at 2, ¶8). She
states that Mrs. Knight “stated that she would ask Mr. Knight to sign [the form] and
took it . . . when she left the premises.” (Doc. 25-11 at 2, ¶8). The “release” to which
the note refers appears at least 4 times in the record as documents 25-1 at 83, 25-2 at
172, 25-4 at 38, and 25-11 at 6. Chamoun also testified that Mrs. Knight took the
document with her. (Doc. 25-4 at 7(22)). Mr. Knight testified in his deposition that
he never received the document, and that his wife did not receive it. (Doc. 25-2 at
On June 26, 2015, Chamoun received an email from Kerri Edwards at Blue
Cross/Blue Shield which stated: “Based on the group size–COBRA is not available
to this group. If the group is larger than 20 employees, please send me a letter so that
we can update.” (Doc. 25-1 at 81). On June 30, 2015, Chamoun wrote Edwards:
“[B]efore terminating [Knight and one other employee] we had 21 employees covered
by BCBS. After this termination . . . the employee number covered is 19. Does
COBRA apply?” (Doc. 25-1 at 81). On July 1, 2015, Edwards responded with
“COBRA does not apply for this group.” (Doc. 25-1 at 81).
It is undisputed that at no time did Knight notify GTI that he wished to elect
COBRA coverage or that he received medical charges that otherwise would have
been covered by COBRA coverage. Knight concedes he joined his wife's healthcare
plan through her employer shortly after his GTI discharge.
Summary Judgment Will Be Granted to the Defendant on the
Denial of Reasonable Accommodations Claim in Count Two
An entity covered by the ADA discriminates by
not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is
an applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.
42 U.S.C.A. § 12112(b)(5)(A); see also 29 C.F.R. § 1630.9(a) (“It is unlawful for a
covered entity not to make reasonable accommodation to the known physical or
mental limitations of an otherwise qualified applicant or employee with a disability,
unless such covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of its business.”).
To state a prima facie claim for failure to accommodate under the ADA,
the plaintiff must show that: (1) [he] is disabled; (2) [he] is a qualified
individual; and (3) [he] was discriminated against by way of the
defendant's failure to provide a reasonable accommodation. “The
plaintiff bears the burden of identifying an accommodation, and of
demonstrating that the accommodation allows [him] to perform the job's
Bagwell v. Morgan Cty. Comm'n, 676 F. App'x 863, 865 (11th Cir. 2017) (citing and
quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001)).
The Plaintiff does not argue that he requested any accommodation which was
denied. Indeed, it is undisputed that the Plaintiff was never denied any breaks (the
accommodation he requested) either before he formally requested them, or after.
Instead, he argues that he was fired so that he would not have to be accommodated
in the future. In his brief in response to the motion for summary judgment he writes:
A reasonable jury could find that Plaintiff, or his doctor on his behalf,
requested such an accommodation prior to his termination when he
provided a note from his doctor communicating his need to take
occasional breaks for his diabetes. Based on the evidence presented
above, a reasonable jury could find that Defendant terminated Plaintiff,
at least in part, to avoid providing that reasonable accommodation going
forward. Accordingly, summary judgment should be denied on
Plaintiff’s reasonable accommodation claim.
(Doc. 33 at 32) (citations omitted) (see also doc. 33 at 28 (“A reasonable jury could
find that Defendant terminated Plaintiff to avoid accommodating Plaintiff’s disability
The Plaintiff provides no authority, or argument, that the Eleventh Circuit has
recognized a claim for denial of reasonable accommodations in the future.
Furthermore, this Court finds that such a claim conflicts with the language of the third
element of the prima facie case which requires the Plaintiff to demonstrate that he
“was discriminated against by way of the defendant's failure to provide a reasonable
accommodation.” Bagwell, 676 F. App'x at 865 (emphasis added). The Plaintiff is
actually arguing either a retaliation claim33, or a straight discrimination claim that the
Plaintiff was fired “because of” his disability.34 The former type of claim is not made
in this case. The latter is made in Count One.
Because there is no genuine issue of material fact that the Plaintiff was
provided all accommodations for which he asked (and did not ask), and because the
Court holds that the claim in Count Two can only be based on a past denial of an
accommodation, summary judgment will be granted as to the failure to accommodate
claim, and Count Two will be dismissed.
Summary Judgment Will Be Granted to the Defendant on the
Termination in Violation of the ADA Claim in Count One
Under the ADA, it is unlawful for an employer to discriminate on the basis of
disability in regards to the “terms, conditions, and privileges of employment,”
including “discharge of employees.” 42 U.S.C. § 12112(a). “Employees may claim
See Bagwell v. Morgan Cty. Comm'n, 676 F. App'x 863, 869 (11th Cir. 2017) (claiming
that his employer fired him for making a request for accommodation)
See 42 U.S.C. §1221(a).
unlawful discrimination under the ADA by showing either that the employer’s
facially neutral conduct had a disparate impact on members of a protected class
(disparate impact) or that the employer treated certain employees worse than others
because they possessed a protected trait (disparate treatment).” Norris v. GKN
Westland Aerospace, Inc., 921 F. Supp. 2d 1308, 1313 (M.D. Ala. 2013) (Thomson,
J.) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 52–53, 124 S.Ct. 513, 157
L.Ed.2d 357 (2003)). In the instant case, the Plaintiff claims that he was subjected to
“disparate treatment” when the Defendant “terminated . . . and failed to reinstate
him.” (Doc. 1 at 7). The Eleventh Circuit has noted:
We analyze ADA discrimination claims under the McDonnell
Douglas burden-shifting analysis applied to Title VII employment
discrimination claims. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th
Cir.2000). Under that framework, a plaintiff-employee first establishes
a prima facie case of discrimination. See Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir.2004). To establish a prima facie case of
ADA discrimination, a plaintiff must show (1) a disability, (2) that she
was otherwise qualified to perform the job, and (3) that she was
discriminated against based upon the disability. Cleveland v. Home
Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.2004). The
burden then shifts to the defendant to articulate a legitimate reason for
its employment action. Wilson, 376 F.3d at 1087. If it can, the burden
shifts back to the plaintiff to offer evidence that the reason is pretextual.
Id. If the plaintiff fails to show pretext, we affirm the grant of summary
judgment on that ground. EEOC v. Total Sys. Servs., 221 F.3d 1171,
1177 (11th Cir.2000). Where the defendant has met its burden of
articulating a legitimate, non-discriminatory reason for its action, we
may assume without deciding that the plaintiff has established a prima
facie case and decide the case on the question of pretext. See, e.g.,
Holifield v. Reno, 115 F.3d 1555, 1564 (1997); Wascura v. City of S.
Miami, 257 F.3d 1238, 1243 (11th Cir.2001).
Thomas v. Dolgencorp, LLC, 645 F. App'x 948, 950–51 (11th Cir. 2016).35
The Plaintiff Has Not Established a Prima Facie Case of
There is no dispute that the Plaintiff has a disability, diabetes, and that he was
otherwise qualified to perform his job. In this case, the parties dispute only the third
element of the Plaintiff’s prima facie case–whether he was discriminated against
based upon the disability.
The Complaint Alleges Only that the Plaintiff’s
Termination Was Discriminatory
The McDonnell Douglas analysis applies to claims, such as the instant claim, which are
based on circumstantial evidence. The Plaintiff’s brief argues that:
Plaintiff also has direct evidence of a causal connection between his syncope
episode and Lee Chamoun’s decision to take adverse employment actions. After
Plaintiff passed out from low blood sugar at work, Chamoun created a “warning
notice” regarding the June 9, 2015 incident. On this warning form, which Plaintiff
never saw, Chamoun checked the boxes for “conduct” and “insubordination” and
also modified the form to read “gross misconduct” and “gross insubordination,”
showing his intent to create a pretext for terminating Plaintiff because of his
diabetes and supporting an inference that such actions were taken because he
regarded Plaintiff as having diabetes.
(Doc. 33 at 22-23) (emphasis added). This argument, which alleges that the evidence creates only
an “inference” of discrimination, misunderstands the concept of direct evidence. “Direct
evidence is ‘evidence, that, if believed, proves [the] existence of [a] fact without inference or
presumption.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (emphasis
added) (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th
The Plaintiff argues that “a reasonable jury could find that Defendant took
adverse actions [(plural)] against [the] Plaintiff, including terminating his
employment because of his diabetes.” (Doc. 33 at 20-21).36 The Plaintiff states that
“[a]lmost immediately after learning that Plaintiff had diabetes [after the June 9, 2015
passing out incident], Chamoun began taking adverse employment actions against
him” in the form of “creating post-hoc documentation of alleged performance and
conduct issues dating back to December, 2014.” (Doc. 33 at 21). He argues that “[a]
reasonable jury could . . . find that the warning notices were all created by Lee
Chamoun after Plaintiff’s June 9, 2015[,] . . . [passing out] episode.” (Doc. 33 at 22).
Later, he also references the warning created for the June 9, 2015, incident. (Doc. 33
First and foremost, the Complaint alleges only one adverse action–the
Plaintiff’s termination. (See doc. 1 at 7-9). “A plaintiff may not amend [his] complaint
through argument in a brief opposing summary judgment.” Gilmour v. Gates,
The prima face case is sometimes stated as follows:
A plaintiff asserting a disability discrimination claim must establish that he (1)
has a disability; (2) is qualified for the job, with or without reasonable
accommodations; and (3) suffered an adverse employment action because of [his]
Menzie v. Ann Taylor Retail Inc., 549 F. App'x 891, 893–94 (11th Cir. 2013) (citing Doe v.
Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1445 (11th Cir.1998)) (emphasis added).
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Furthermore, the Plaintiff’s
argument that the creation of these warnings was discriminatory is without merit.
First, it contradicts Knight’s deposition testimony where he states that he informed
the Defendant of his diagnosis “years before [his] employment ended.” (Doc. 25-2 at
40(156)). Second, assuming that Chamoun only knew about the Plaintiff’s condition
after June 9, 2015, there is no evidence that all (or any) of the “warnings” in this case
were created after the June 9, 2015, episode, except for the one which concerned the
episode which occurred on that date. The Plaintiff’s argument is based on the
following exchange in Chamoun’s deposition:
Did you write all of these warnings up on the day these events
No, sir. This was not the day it happened. When Ron disappeared
from work for four days, we assumed he's not coming back. Then he
returned. And we knew then that he's not -- he just left the job without
notice, without asking for pay request.
(Doc. 25-4 at 13(45)). This exchange concerned only one warning, dated January 15,
2015, in which Chamoun wrote that “Ron has not been to work for 4 days and has not
presented to us a vacation or time off request as per GTI policy.” (Doc. 25-4 at 40;
see also doc. 25-4 at 12(44)-13(45)). Even if the Court assumes that none of the
warnings were created at the time of the events in question, there is no evidence to
suggest that all (or even any) of them were created after June 9, 2015, except, again,
the one which related to the episode which occurred on that date. Chamoun testified
that each warning, no matter when it was created, memorializes events which
occurred on the date shown thereon. The Plaintiff is merely speculating.
Further, it is undisputed that no action was taken against the Plaintiff as a result
of the creation of the warnings themselves.37 The Plaintiff states that these “warnings”
were never shown to or discussed with him. “An adverse employment action is an
ultimate employment decision, such as discharge or failure to hire, or other conduct
that alters the employee's compensation, terms, conditions, or privileges of
employment, deprives him or her of employment opportunities, or adversely affects
his or her status as an employee.” Menzie, 549 F. App'x at 894 (internal quotations
and citations omitted). “If an action has no effect on an employee, it is not an adverse
employment action.” Clark v. Potter, 232 F. App'x 895, 896 (11th Cir. 2007) (citing
Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir.2004)). The only alleged act
of discrimination which the Court will consider is the Plaintiff’s termination.
There Is No Evidence that the Plaintiff Was Fired
Because He Has Diabetes
The Plaintiff Has No Comparators
The Eleventh Circuit has stated:
The Defendant argues that the conduct described in each warning was a factor, but the
creation of the warnings themselves had no impact on the Plaintiff.
To establish unlawful disparate treatment, a plaintiff generally must
demonstrate that his employer treated similarly situated employees
outside of his protected class more favorably than he was treated. See
Burke–Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th
Cir.2006). When the plaintiff alleges . . . that other employees engaged
in similar conduct [as he] but were not similarly disciplined, the
plaintiff must produce evidence that “the quantity and quality of the
comparator's conduct [was] nearly identical.” McCann v. Tillman, 526
F.3d 1370, 1373 (11th Cir.2008) (quotation marks omitted).
Wolfe v. Postmaster Gen., 488 F. App'x 465, 468 (11th Cir. 2012) (ADA).
The Plaintiff never explicitly argues comparator evidence. However, in the
context of his argument that the Defendant’s stated reasons for his termination were
a mere pretext for discrimination, the Plaintiff states:
after Plaintiff’s termination Defendant re-hired a former employee, Mike
Jones, as a contractor to perform the same kind of unskilled electrician
labor that Plaintiff had been performing before his termination.
(Doc. 33 at 24).38 This argument is based on Chamoun’s testimony that Mike Jones
“is multitasked, like everybody else at the company” and performed non-skilled labor
such as “bathroom receptacle, cleaned warehouse, technician, LTE.” (Doc. 25-4 at
27(102)). That comment cannot fairly be read to mean that that was all Jones did.
Further, the Plaintiff ignores Bowerman’s sworn declaration in which he states that
Jones could also perform technical electrical tasks such as integration and fiber optic
Jones is apparently proffered to rebut the Defendant’s argument that the Plaintiff was
fired because of the downturn in the Defendant’s work, and because there was no work for purely
a “helper” any longer.
work on telecommunications job sites, something Knight could not do.39 Jones is not
a valid comparator.
There Is No Other Evidence Creating an
Inference of Discrimination
The Eleventh Circuit has noted that
a plaintiff will survive summary judgment even without comparator
evidence as long as he presents some other circumstantial evidence that
raises a question of fact as to the employer's discriminatory intent. See
Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)
(“[E]stablishing the elements of the McDonnell Douglas framework is
not, and never was intended to be, the sine qua non for a plaintiff to
survive a summary judgment motion in an employment discrimination
Banks v. iGov Techs., Inc., 661 F. App'x 638, 644 (11th Cir. 2016). Of course, in the
instant case it is undisputed that “[n]o medical condition—known or
unknown—played any role in the decision to discharge Knight.” (Doc. 24 at 14, ¶11
(proffered by Defendant and not disputed by Plaintiff). Even if the Court assumes that
that admission was an oversight by the Plaintiff, in his deposition Knight could
articulate no basis for any such claim:
Okay. Did doctors tell you that General Telecom was letting you
go because you have a disability?
As noted above, other individuals were hired and/or retained by the Defendant. The
Plaintiff does not argue that any of them are valid comparators, and there is nothing more than a
passing discussion of any of them in the “argument” section of the Plaintiff’s brief. Accordingly,
the Court holds that none of them are valid comparators either.
Did [Chamouns] tell you that General Telecom was letting you go
because it perceived you as disabled?
Did Dr. Chamoun tell you that any medical condition played a
role in its decision to let you go?
Did anybody else tell you that?
Did Dr. Chamoun say anything leading you to believe your
employment ended because you have a disability?
Did anybody else tell you that?
. . . Did Dr. Chamoun say anything leading you to believe General
Telecom was ending your employment because it perceived you as
Did anybody else say anything leading you to that conclusion?
(Doc. 25-2 at 50(193-194)). Knight admitted in his deposition that he has no idea why
he was selected for termination, who made the decision, or when it was made. (Doc.
25-2 at 50(195). When asked specifically if he knew “what any layoff decisions were
based on,” he answered “No.” (Doc. 25-2 at 50(195)). Furthermore, the Plaintiff cites
no evidence which calls into question whether there truly was a downtown in
business, or the need to change the way crews were staffed.
Be that as it may, as noted above, the Plaintiff seems to be arguing that the
warning notices prepared by Chamoun somehow prove that the Plaintiff’s termination
was because of his diabetes. (See doc. 33 at 21-23). Again, there is no evidence that
any of the warnings themselves adversely affected the Plaintiff’s employment. Even
if, as the Plaintiff contends, every single warning was created after Chamoun learned
of the Plaintiff’s diagnosis (see doc. 33 at 21), no repercussions came from the
The Plaintiff also argues that the warning notice created after the Plaintiff
fainted, which alleged “Conduct” and “Gross insubordination” to be the Plaintiff’s
“Violations, ” shows Chamoun’s “intent to create a pretext for terminating the
As is discussed in the next section, the Defendant’s proffered reason for firing the
Plaintiff was the downturn in GTI’s business, and the Plaintiff’s lack of qualifications for the few
positions which remained.
Plaintiff because of his diabetes and supporting an inference that such actions were
taken because he regarded the Plaintiff as having diabetes.” (Doc. 33 at 22-23).
Again, the Plaintiff fails to explain how this warning, which Chamoun states was
created only to document the fact that the Plaintiff failed to follow instructions by
refusing to go to the doctor after the incident, shows discriminatory intent, much less
an adverse action.41
Because the Plaintiff has failed to provide evidence that his termination was
because of his diabetes, he has failed to make out a prima facie case of disability
discrimination. Summary judgment is therefore due to be granted in favor of the
Defendant on the Plaintiff’s disability discrimination claim in Count One.
The Defendant Has Proffered a Legitimate Non-Discriminatory
Reason for the Plaintiff’s Termination
Assuming that the Plaintiff had been able to establish a prima facie case of
discrimination based on his diabetes, the burden would have shifted to the Defendant
to produce evidence that its action was taken for a legitimate,
non-discriminatory reason. The defendant need not persuade the court
that it was actually motivated by the proffered reason, but need only
present evidence raising a genuine issue of fact as to whether it
discriminated against the plaintiff. However, the defendant's response
must frame the factual issue with sufficient clarity so that the plaintiff
Again, this is especially true when considering that the Defendant’s proffered reason
for terminating the Plaintiff was the downturn in work, not the warnings, nor the conduct alleged
will have a full and fair opportunity to demonstrate pretext. The
defendant may not satisfy its burden by presenting a hypothetical reason
for the employment decision in question.
Voudy v. Sheriff of Broward Cty. Florida, No. 16-12059, 2017 WL 2983892, at *4
(11th Cir. July 13, 2017) (internal quotations and citations omitted).
In the instant case, the Defendant, in his initial brief, writes:
Every reason offered was true. Business conditions in the industry
generally have created a severe downturn in GTI’s business in the years
leading up to discharge. Crews that previously could contain three or
four—room for a helper who cannot operate the GPS and who has no
certifications or skills enabling him to perform multiple tasks—in
contracts going forward may contain only one. Generator installation (as
distinguished from maintenance) work with significant labor and simple
tasks for which a helper was needed is gone for the foreseeable future.
Like others separated for lack of work, there simply was no need any
longer for what Knight did when he worked. Even when he worked,
those experienced in his tasks concluded that he worked at a pace so
slow that it simply was not sustainable for what customers wanted done.
Decisionmaker Dr. Chamoun’s judgment that Knight’s pattern of
conduct culminating in belligerence and refusing to follow necessary
directives proved prescient when others reported his post-employment
threats and his next employer fired him for that reason.
(Doc. 24 at 24-25) (internal citations omitted).
It is important to note what the Defendant does not clearly articulate–that the
Plaintiff’s insubordination and violation of work rules were the reason for his
termination. While the Defendant discusses “Knight’s pattern of conduct,” and there
is sufficient evidence in the record to create a genuine issue of material fact as to
whether such instances played a part in the Plaintiff’s termination42, the Court cannot
say that this vague reference in the Defendant’s brief “frame[s] the factual issue with
sufficient clarity so that the plaintiff will have a full and fair opportunity to
demonstrate pretext.” Voudy, 2017 WL 2983892, at *4. The court deems the
Defendant’s articulated legitimate non-discriminatory reason to be only the lack of
work for which the Plaintiff was suited.43
For example, Chamoun testified that he terminated Knight
[a]fter extreme deliberation on my part and evaluating Mr. Knight's incompetence,
Mr. Knight's gross misconduct, and after our lack -- occurrence of lack of work,
and after Mr. Knight has violated repetitively the terms of his probation from
2014, the termination and rehiring.
(Doc. 25-4 at 19(69)); see also doc. 25-4 at 30(114)) (explaining that Knight was terminated for
“lack of work,” and “[inefficiency], gross misconduct, and violating the terms of his probation
from his termination and rehiring of 2014.”); doc. 25-4 at 31(120)-32(121)) (explaining that
Chamoun told the Plaintiff that he was being fired “[d]ue to the lack of work, his inefficiency, his
gross misconduct, and his violation of his probation time.”); doc. 31-1 (Defendant’s discovery
responses explaining that “Plaintiffs employment was terminated because of lack of available
work and because Plaintiff engaged in gross misconduct, gross insubordination, and company
policy violations including violations of the company drug testing policy, violations of policy
regarding attendance and smoking, smoking on GTI property, job sites, and near flammable
liquids and gases subjecting employees to danger, refusing and failing to perform assigned work
and/or otherwise displaying poor work performance, destroying company and/or customer
property in an intentional and gross manner, and engaging in violent and threatening behavior.”).
In its reply brief, the Defendant argues that the Plaintiff was chosen to be laid off: 1)
because he was less trained and efficient than others who worked there, and 2) because of the
alleged rules violations. See e.g. doc. 37 at 9 (“It is undisputed Knight and others were
discharged as part of a reduction-in-force necessitated by adverse business conditions and GTI's
loss of a contract after Knight's June 9, 2015 episode. GTI undisputedly chose Knight based on
his lack of required skills and the aggregate of his misconduct.”) (emphasis added). Had this
phrasing been used in the Defendant’s initial brief, the Court would have considered this to be
sufficient. However, “[a]rguments raised for the first time in a reply brief are not properly before
a reviewing court.” Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1353 (11th Cir. 2005).
The Plaintiff Cannot Establish that the Reason for His
Termination Is a Pretext for Discrimination
The Eleventh Circuit has stated that
“[t]o avoid summary judgment [the plaintiff] must introduce
significantly probative evidence showing that the asserted reason is
merely a pretext for discrimination.” Clark v. Coats & Clark, Inc., 990
F.2d 1217, 1228 (11th Cir.1993) (citation omitted). A reason is not
pretext for discrimination “unless it is shown both that the reason was
false, and that discrimination was the real reason.” St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
Brooks v. Cty. Comm'n of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006).
In the instant case, it is undisputed that one person crews were becoming the norm at
GTI and that only individuals with climbing certifications perform work climbing cell
phone towers to install or maintain equipment, and only those able to operate the
truck GPS can serve on one-person crews. Because Knight lacked skills necessary for
work available following changes in the telecommunications industry and loss of
work with customer General Dynamics beginning on June 13, 2015, Knight was
discharged as part of a reduction in force during the third week of June 2015.44 The
The Plaintiff tries to show pretext by recasting the above as merely an argument that
Knight was fired for “lack of work.” (See doc. 33 at 24 (“Defendant’s brief focuses on the idea
that Plaintiff was terminated for alleged ‘lack of work.’”)). To be sure, the Defendant does use
the phrase “lack of work” in its brief, but that is an oversimplification of its argument.
Specifically, the Defendant argues that “[l]ike others separated for lack of work, there simply was
no need any longer for what Knight did when he worked.” (Doc. 24 at 25). However, the entire
quote in which that line appears reads:
Crews that previously could contain three or four—room for a helper who cannot
evidence regarding the downturn in work, and Knight’s lack of qualifications, is
Furthermore, it is undisputed that Chamoun received reports that the Plaintiff’s
work was “beyond slow.” (Doc. 25-1 at 5, ¶12. a.). Knight fails to dispute any of the
statements witnesses have made regarding his efficiency issues and work ethic.
However, in his deposition, he does state: “[N]obody talked to me about work
performance or anything. I've always worked hard, always did my job, and I always
did the best I could.” (Doc. 25-2 at 39(151)). Assuming that this is sufficient to create
a genuine issue of material fact as to whether he actually had efficiency and work
ethic issues, “merely showing that the employer was mistaken is not sufficient to
show pretext.” Chapman v. AI Transp., 229 F.3d 1012, 1055 (11th Cir. 2000). “The
inquiry is not whether an employee was guilty of misconduct, but whether the
employer in good faith believed that the employee had done wrong and whether that
belief was the reason for the termination.” Holmes v. Jefferson Cty. Sch. Dist., 657
operate the GPS and who has no certifications or skills enabling him to perform
multiple tasks—in contracts going forward may contain only one. Generator
installation (as distinguished from maintenance) work with significant labor and
simple tasks for which a helper was needed is gone for the foreseeable future.
Like others separated for lack of work, there simply was no need any longer for
what Knight did when he worked.
(Doc. 24 at 24-25). Clearly, the Defendant does not contend that Knight was let go merely for
“lack of work.” Instead, it is arguing that it had to be more selective in who was on the
crews–opting for individuals who had more qualifications than the Plaintiff.
F. App'x 874, 876 (11th Cir. 2016) (citing Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991)). The Plaintiff has presented no evidence which shows
that Chamoun did not, in good faith, believe that Knight actually had efficiency and
work ethic issues.45
Still, the Plaintiff argues that “a reasonable jury could find that Plaintiff’s job
continued to be performed after his termination, showing that this reason, too, is
pretext, as his crew continued to go out to jobs on the day he was sent home.” (Doc.
33 at 24). This argument is based only on the following exchange which took place
in the Plaintiff’s deposition:
And when you arrived at General Telecom the next morning [after
receiving the text saying not to come to work], was Jeff Bowerman
All right. And did he tell you that there was no available work and
to wait until you heard something further?
No. They were loading up a truck to get ready to go to work. He
did not say that there was no work.
Okay. What did he tell you?
He said I was going to have to see Lee [Chamoun].
Assuming that the Defendant had articulated the Plaintiff’s workplace conduct as an
additional legitimate non-discriminatory reason for his termination, the Plaintiff’s claim would
also have failed because he has not shown that the Defendant did not have a good faith belief that
that conduct actually occurred.
All right. Did he tell you there was no available work for you in
(Doc. 25-2 at 49(189-190)). Again, this exchange only establishes that the crew
continued to work, not that the Defendant did not legitimately eliminate the Plaintiff
from the crew because of the need to pare it down, and the Plaintiff’s lack of
sufficient qualifications to work alone. For this same reason, the Court rejects the
Plaintiff's argument that the Defendant’s reason was a pretext for discrimination
because “every other member of his crew remained employed.” (Doc. 33 at 24).46
The Plaintiff argues that the Defendant’s admission that its business had begun
a downturn in 2014, demonstrates that its termination of the Plaintiff in 2015 for
business reasons is a pretext for discrimination. This argument ignores the undisputed
fact that the Defendant also laid off two other workers at the same time as the
Plaintiff, neither of whom is alleged to have been disabled. Furthermore, the impetus
for the Plaintiff getting laid off was GTI losing the General Dynamics contract, which
occurred on June 13, 2015. Despite the downturn that began in 2014, the General
Dynamic contract still provided work in the form of the installation and maintenance
The Court has already addressed, in the preceding section, the Plaintiff’s argument that
the hiring of Mike Jones demonstrates pretext. It does not.
of generators at customer sites which often required a “helper” such as the Plaintiff.
There is no dispute that that type of work was mostly gone after the completion of the
General Dynamics contract. The Plaintiff admits that he has no evidence which
contradicts the Defendant on this point.47
Finally, the Plaintiff argues that the text Bowerman sent to the Plaintiff telling
him not to work is evidence that the real reason for the Plaintiff’s termination was his
diabetes. (Doc. 33 at 27). Specifically, he states that:
[a] reasonable jury could infer that this text was sent, and that Plaintiff’s
employment was terminated, because of a belief by Bowerman or
Chamoun that Plaintiff’s diabetes somehow impaired him from working
The Plaintiff’s argument ultimately is that the Court should consider the temporal
proximity between the Plaintiff’s discharge and his revelation to Chamoun that he had diabetes.
“[T]emporal proximity alone does not establish pretext. Jackson v. Hennessy Auto, 190 F. App'x
765, 768 (11th Cir. 2006) (citing Wascura v. City of South Miami, 257 F.3d 1238, 1244–45 (11th
Cir.2001)). The Plaintiff also argues that, considering this temporal proximity, and the
Defendant’s “flurry of activity to create post-hoc documentation for alleged performance and
conduct issues” (doc. 33 at 25), this Court should ignore the fact that he cannot satisfy his burden
under McDonnell Douglas because
establishing the elements of the McDonnell Douglas framework is not, and never
was intended to be, the sine qua non for a plaintiff to survive a summary judgment
motion in an employment discrimination case. . . . Rather, the plaintiff will always
survive summary judgment if he presents circumstantial evidence that creates a
triable issue concerning the employer's discriminatory intent.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). The Plaintiff has
produced no such circumstantial evidence that GTI intended to discriminate against him because
he has diabetes. Additionally, his temporal-proximity argument is directly contradicted by his
own deposition testimony that he informed the Defendant of his diabetes “years before [his]
employment ended.” (Doc. 25-2 at 40(156)).
in the heat, supporting a conclusion that Defendant “subjected [Plaintiff]
to a prohibited action because of an actual or perceived physical or
mental impairment.” 29 CFR 1630.2.
(Doc. 33 at 27). This argument is based, in part, on the portion of Bowerman’s
deposition where he stated that “the heat will make you sick if you’re . . ..” (Doc. 33
at 27). The Plaintiff contends that Bowerman meant to (but did not) finish this
sentence with the words “a diabetic.” (Id.).
Even if Bowerman and/or Chamoun believed that working in the heat would
make the Plaintiff sick because he was a diabetic, that does not mean that Chamoun
fired him for that reason.48 In any case, it does not rebut the Defendant’s explanation
regarding the downturn in business, and the reports of the Plaintiff’s inefficiency.
Summary judgment is due to be granted to the Defendant as to his
discrimination claim in Count One, for the additional reason that the Plaintiff has
failed to demonstrate pretext.49
The COBRA Violation Claim in Count Three
The Plaintiff alleges that “[u]pon his termination, a qualifying event, Defendant
failed to given notice to Plaintiff of his COBRA rights within the time allowed by
statute.” (Doc. 1 at 11, ¶61). Federal law provides:
Both Bowerman and Chamoun’s brother, Joe Chamoun, the head of GTI, are diabetics.
Because the Court finds that the discrimination claim is due to be dismissed, it will not
address the Defendant’s after-acquired evidence defense. (See doc. 24 at 26).
The plan sponsor of each group health plan shall provide . . . that each
qualified beneficiary who would lose coverage under the plan as a result
of a qualifying event is entitled, under the plan, to elect, within the
election period, continuation coverage under the plan.
29 U.S.C.A. § 1161(a).
There Is No Genuine Issue of Material Fact that GTI Did Not
Provide the Notice Required by COBRA
The Plaintiff argues that there is no genuine issue of material fact that the
notice was not sent to him. (Doc. 31 at 15-18). He moves for summary judgment on
that issue. The Defendant neither responds to this argument, nor moves for summary
judgment on this issue.50 Regardless, there is no dispute in this case that the only
notice which might have been sent to the Plaintiff was the notice contained in the
“release” which GTI claims it gave to the Plaintiff’s wife when she picked up his last
paycheck, and which provided, regarding COBRA coverage:
“Releasor” acknowledges that this is a notification of the rights to elect
Cobra [sic] continuation coverage, if terminated or hours reduced, with
similar benefits to company plan at Releasor's own expense for 18 to 36
months. “Releasor” acknowledges that details of Cobra [sic] can be
obtained from the cfo of GENERAL TELECOM, INC. 1000 Powder
Plant Rd, Bessemer, Alabama 35022, Phone # 205-428-8455.
(Doc. 25-4 at 38).
The Court assumes, without deciding, that: 1) it is acceptable under the
On this issue, the Defendant’s initial argument (doc. 24 at 27-32) and its response to the
Plaintiff’s motion (doc. 35 at 7-14) are essentially identical.
circumstances of this case for the Plaintiff’s wife (as opposed to the Plaintiff directly)
to be given the release; 2) that GTI actually gave the release to the Plaintiff’s wife;
and 3) that the Plaintiff received the release from his wife.51 Be that as it may, the
release was not a proper COBRA notice because it did not contain most of the
information required by applicable regulations.52 Accordingly, it is inadequate as a
All of these contentions are disputed by the Plaintiff.
Federal regulations require that the notice
. . . shall be written in a manner calculated to be understood by the average
plan participant and shall contain the following information:
(i) The name of the plan under which continuation coverage is
available; and the name, address and telephone number of the party
responsible under the plan for the administration of continuation
(ii) Identification of the qualifying event;
(iii) Identification, by status or name, of the qualified beneficiaries
who are recognized by the plan as being entitled to elect
continuation coverage with respect to the qualifying event, and the
date on which coverage under the plan will terminate (or has
terminated) unless continuation coverage is elected;
(iv) A statement that each individual who is a qualified beneficiary
with respect to the qualifying event has an independent right to
elect continuation coverage, that a covered employee or a qualified
beneficiary who is the spouse of the covered employee (or was the
spouse of the covered employee on the day before the qualifying
event occurred) may elect continuation coverage on behalf of all
other qualified beneficiaries with respect to the qualifying event,
and that a parent or legal guardian may elect continuation coverage
on behalf of a minor child;
(v) An explanation of the plan's procedures for electing
continuation coverage, including an explanation of the time period
during which the election must be made, and the date by which the
election must be made;
(vi) An explanation of the consequences of failing to elect or
waiving continuation coverage, including an explanation that a
qualified beneficiary's decision whether to elect continuation
coverage will affect the future rights of qualified beneficiaries to
portability of group health coverage, guaranteed access to
individual health coverage, and special enrollment under part 7 of
title I of the Act, with a reference to where a qualified beneficiary
may obtain additional information about such rights; and a
description of the plan's procedures for revoking a waiver of the
right to continuation coverage before the date by which the election
must be made;
(vii) A description of the continuation coverage that will be made
available under the plan, if elected, including the date on which
such coverage will commence, either by providing a description of
the coverage or by reference to the plan's summary plan
(viii) An explanation of the maximum period for which
continuation coverage will be available under the plan, if elected;
an explanation of the continuation coverage termination date; and
an explanation of any events that might cause continuation
coverage to be terminated earlier than the end of the maximum
(ix) A description of the circumstances (if any) under which the
maximum period of continuation coverage may be extended due
either to the occurrence of a second qualifying event or a
determination by the Social Security Administration, under title II
or XVI of the Social Security Act (42 U.S.C. 401 et seq. or 1381 et
seq.) (SSA), that the qualified beneficiary is disabled, and the
length of any such extension;
(x) In the case of a notice that offers continuation coverage with a
maximum duration of less than 36 months, a description of the
plan's requirements regarding the responsibility of qualified
beneficiaries to provide notice of a second qualifying event and
notice of a disability determination under the SSA, along with a
description of the plan's procedures for providing such notices,
matter of law. See, Griffin v. Neptune Tech. Grp., No. 2:14CV16-MHT, 2015 WL
1635939, at *12 (M.D. Ala. Apr. 13, 2015) (Thompson, J.) (Denying summary
judgment to employer which contended that it has provided the notice, where the
notice did not contain most of the items required by the regulation).
Summary judgment will be granted in favor of the Plaintiff, and against the
Defendant, on the issue of whether a proper COBRA notice was provided to the
including the times within which such notices must be provided
and the consequences of failing to provide such notices. The notice
shall also explain the responsibility of qualified beneficiaries to
provide notice that a disabled qualified beneficiary has
subsequently been determined to no longer be disabled
(xi) A description of the amount, if any, that each qualified
beneficiary will be required to pay for continuation coverage;
(xii) A description of the due dates for payments, the qualified
beneficiaries' right to pay on a monthly basis, the grace periods for
payment, the address to which payments should be sent, and the
consequences of delayed payment and non-payment;
(xiii) An explanation of the importance of keeping the
administrator informed of the current addresses of all participants
or beneficiaries under the plan who are or may become qualified
(xiv) A statement that the notice does not fully describe
continuation coverage or other rights under the plan, and that more
complete information regarding such rights is available in the
plan's summary plan description or from the plan administrator.
29 CFR § 2590.606-4(b)(4) (emphasis added). In addition, subsection (b)(v) requires “[a]n
explanation of the plan's procedures for electing continuation coverage, including an explanation
of the time period during which the election must be made, and the date by which the election
must be made.” 29 C.F.R. § 2590.606–4(b)(v).
Plaintiff. The Court affirmatively holds that there is no genuine issue of material fact
that such notice was not provided to the Plaintiff.
A Genuine Issue of Material Fact Exists as to Whether the
Plaintiff Was Terminated for Gross Misconduct
The Defendant argues that the Plaintiff was not entitled to a COBRA notice
because he was fired for “gross misconduct.” Termination for “gross misconduct”
is not a “qualifying event.” 29 U.S.C. §1163(2); see also, DeBene v. BayCare Health
Sys., Inc., 688 F. App'x 831, 838–39 (11th Cir. 2017) (“Termination for reasons other
than an employee's gross misconduct is a qualifying event.”).53
Some of the Conduct Alleged Is “Gross Misconduct”
COBRA does not define “gross misconduct.” The parties attempt to provide
guidance to the Court by citing several cases from many other district courts, most of
which are from other circuits. After reviewing same, the Court agrees with the
observation of one court that “[n]o uniform definition of gross misconduct exists.”
Zickafoose v. UB Services, Inc., 23 F.Supp.2d 652, 655 (S.D.W.Va.1998) (Chambers,
J.). The only guidance from the Eleventh Circuit on this issue comes from Virciglio
v. Work Train Staffing LLC, 674 F. App'x 879, 891 (11th Cir. 2016), an unreported
decision, where the Eleventh Circuit noted that
Recall that the Defendant argues for most of its brief that the impetus for firing the
Plaintiff was the downturn in its business, combined with the Plaintiff’s lack of qualifications to
we agree with the Seventh Circuit that it must involve something more
than incompetence or unsatisfactory performance. See Mlsna v. Unitel
Commc'ns, Inc., 91 F.3d 876, 881 (7th Cir. 1996) (“job incompetence
alone does not constitute gross misconduct for COBRA purposes”). In
short, there is no evidence to suggest that Plaintiff was terminated for
anything other than lackluster sales, which does not qualify as “gross
misconduct” under COBRA.
Virciglio v. Work Train Staffing LLC, 674 F. App'x 879, 891 (11th Cir. 2016). Thus,
Virciglio explained not so much what “gross misconduct” is but what it is not.
Therefore, the Court must determine for itself what “gross misconduct” is.
When a statutory term is not defined in the statute itself the Court should “‘start
with the assumption that the legislative purpose is expressed by the ordinary meaning
of the words used.’” United States v. Rodgers, 466 U.S. 475, 479, 104 S. Ct. 1942,
1946, 80 L. Ed. 2d 492 (1984) (quoting Richards v. United States, 369 U.S. 1, 9, 82
S.Ct. 585, 591, 7 L.Ed.2d 492 (1962)). As one Court has noted, “the adjective gross
means outrageous, extreme or unconscionable. Accordingly, conduct is gross
misconduct if it is so outrageous that it shocks the conscience. Such a definition
necessitates a case by case fact-based analysis.” Zickafoose, 23 F. Supp. 2d at 655.
In Zickafoose, the Court held that the Plaintiff’s savagely beating his co-worker to a
point where she required five days of hospitalization, conduct which resulted in his
being convicted of a felony, was gross misconduct. Id. at 656. In Cotte v. Cooperativa
de Ahorro y Credito Yabucoena, 77 F. Supp. 2d 237, 241 (D.P.R. 1999) (Pieras, J.),
the district court used the same definition and held that misappropriation of company
funds could be gross misconduct.
Gross misconduct has also been defined as “intentional, wanton, willful, or
deliberate misconduct.” Nero v. Univ. Hosps. Mgmt. Servs. Org., No. 1:04CV1833,
2006 WL 2933957, at *4 (N.D. Ohio Oct. 12, 2006) (Aldrich, J.). In Nero, the Court
the filing of lab results in the wrong chart or the mislabeling of a blood
sample, though having potentially serious consequences, does not
constitute gross misconduct absent any evidence that the action was
intentional, wanton, willful, or deliberate. Similarly, failing to follow
through with a patient referral or a prescription refill does not constitute
gross misconduct absent any evidence that it was anything more than a
Nero, 2006 WL 2933957, at *5.
In Collins v. Aggreko, Inc., 884 F. Supp. 450, 454 (D. Utah 1995) (Boyce,
M.J.), the district court, defining gross misconduct as conduct which is “intentional,
wanton, willful, deliberate, reckless or in deliberate indifference to an employer's
interest,” determined that driving a company vehicle while drunk qualified. Aggreko,
884 F. Supp. at 454. In Nakisa v. Cont'l Airlines, No. CIV. A. H-00-090, 2001 WL
1250267 (S.D. Tex. May 10, 2001) (Werlein, J.), the district court used that same
definition, but added that “[a] deliberate violation or disregard of standards of
behavior required by an employer or which an employer has a right to expect from
employees constitutes gross misconduct.” Id. It then determined that the employee’s
conduct in “throw[ing] an apple toward a window of [a] plane and audibly . . .
utter[ing] the word ‘nigger’ is far more than negligent conduct. [It was gross
misconduct because it] demonstrates a substantial and deliberate indifference to
Continental's clear interests in customer and employee relations.” Id. at *3. Similarly,
the Sixth Circuit, in Berry v. Frank's Auto Body Carstar, Inc., 495 F. App'x 623, 627
(6th Cir. 2012), affirmed a district court opinion which, using the same definition of
“gross misconduct,” had held that
[s]creaming profanities at another employee, making hand gestures
toward the employee (which others believed to be threatening), saying
the employee would “get” hers and generally seeming to be out of
control is conduct so manifestly so outrageous and extreme as to
constitute gross misconduct.
Berry v. Frank's Auto Body Carstar, Inc., 817 F. Supp. 2d 1037, 1047 (S.D. Ohio
2011) (Wehrman, J.), aff'd, 495 F. App'x 623 (6th Cir. 2012).
Other cases seem to use a combination of all the above methods. For example,
in Boudreaux v. Rice Palace, Inc., No. CIV.A. 04-541, 2006 WL 3345198 (W.D. La.
Nov. 15, 2006) (Melancon, J.), the Court reviewed all of the above definitions and
that defendants' proffered evidence supports their conclusion that
plaintiff's improper use of prescription medication resulted in plaintiff's
inability to properly and safely perform her duties. Moreover, such use
was done in deliberate violation of the employer's standards of conduct
imposed on employees, or carelessness or negligence of such a degree
or recurrence as to manifest equal culpability, wrongful intent, or evil
design aimed at causing injury to the employer or the employee's fellow
workers; which falls within the proffered definitions of gross
Boudreaux, 2006 WL 3345198 at *6 (internal quotations and citations omitted).
Similarly, in Moore v. Williams Coll., 702 F. Supp. 2d 19, 24 (D. Mass. 2010)
(Ponsor, J.), aff'd, 414 F. App'x 307 (1st Cir. 2011), the court held that the Plaintiff,
who had been hired as a visiting lecturer at a college, was guilty of gross misconduct
in that he falsely represented to the institution that he had a bachelor’s degree, and in
that he had committed criminal student aid fraud.
The Fourth Circuit has determined that “‘flagrant, repeated insubordination’
by a managerial employee” is “gross misconduct” for COBRA purposes. Bryant v.
Food Lion, Inc., 8 F. App'x 194, 196 (4th Cir. 2001). The decision in Bryant affirmed
a district court’s opinion, which had adopted the following standard:
In this district, gross misconduct for management employees has been
defined as “‘substantial deviation from the high standards and
obligations of a managerial employee that would indicate that said
employee cannot be entrusted with his management duties without
danger to the employer.’” Karby v. Standard Prods. Co., 1992 WL
333931 at *6 (D.S.C. June 22, 1992).
Bryant v. Food Lion Inc., 100 F. Supp. 2d 346, 376 (D.S.C. 2000) (Hawkins, J.), aff'd,
8 F. App'x 194 (4th Cir. 2001).
Finally, the undersigned, in Colvin v. Peterson Indus., Inc., No.
4:13-CV-1458-VEH, 2015 WL 4067321, at *8 (N.D. Ala. July 2, 2015) (Hopkins, J.),
It has been noted that “COBRA ... does not provide a definition
of ‘gross misconduct’ and federal case law addressing the subject is
sparse.” Zickafoose v. UB Servs., Inc., 23 F.Supp.2d 652, 655
(S.D.W.Va.1998). At least one court has found that
Applying an ordinary meaning of the statutory terms, the
adjective gross means outrageous, extreme or
unconscionable. Accordingly, conduct is gross misconduct
if it is so outrageous that it shocks the conscience. Such a
definition necessitates a case by case fact-based analysis.
One district court described gross misconduct as
“misconduct beyond mere minor breaches of employee
standards, but conduct that would be considered gross in
nature.” Collins v. Aggreko, Inc., 884 F.Supp. 450, 454
Zickafoose, 23 F.Supp.2d at 655. Gross misconduct has been found
where an employee used a company vehicle without authorization and
while intoxicated. Aggreko, 884 F.Supp. at 454 (“Such conduct is
wanton and a deliberate disregard of his employer's interest.”).
Colvin, 2015 WL 4067321, at *8 (emphasis added). In Colvin, this Court determined
that a threat to “gut” an employer while physically reaching for a knife, and a threat
to “gut [an employee’s] bulldog ass if you get up, bitch,” was gross misconduct.
Guided by the above case law, the Court will next examine whether the
conduct in which the Plaintiff was alleged to have engaged qualifies as gross
misconduct. The Defendant argues that:
Knight's individual acts of insubordination, including but not limited to,
failed and refused tests for illegal drugs and violent behavior on [work
sites], are each enough alone to constitute “gross misconduct.” Even if
one event were not enough, Knight's cumulative insubordinate conduct
taken together in the aggregate leaves no doubt.
(Doc. 24 at 28). Then it states:
Here, GTI's good faith belief Knight engaged in “gross misconduct” was
based on the aggregate of (1) Knight's failed March 2014 drug test for
which he continued employment on probationary status; (2) coworker
reports and management's observation of Knight's work habits; (3)
coworker reports of Knight's violent behavior, and (4) Knight's repeated
refusal to follow Dr. Chamoun's instructions regarding smoking near
dangerous chemicals and following procedure for workplace medical
(Doc. 24 at 29).
First, the Court agrees that Knight’s original failed drug test, when combined
with the refusal to take a drug test when instructed, would be gross misconduct.
Further, violent behavior at a work site, such as swinging an axe wildly and
destroying customer property, is gross misconduct. Also, the Court agrees that
participating in dangerous activities such as smoking around dangerous materials is
gross misconduct, especially when one is counseled multiple times and continues to
do so. On the other hand, the Plaintiff’s “work habits” are akin to “incompetence or
unsatisfactory performance,” which the Eleventh Circuit has stated is insufficient to
qualify as “gross misconduct.” Virciglio, 674 F. App'x at 891.
There Is a Genuine Issue of Fact as to Why the Plaintiff
There is substantial evidence that the Plaintiff was not fired for gross
misconduct. When asked in his deposition if there was “a reason you didn't fire him
for [the fiber optic pedestal incident]?" Chamoun testified: “[m]y stupidity, my
mistake, and my good heart.” (Doc. 25-4 at 13(47)). The following exchange also
And the reason you didn't fire him for that is the same? Correct?
I should have fired him ten times already, but I didn't, yes.
(Doc. 25-4 at 12(48)). Chamoun also confirmed that he did not fire the Plaintiff for
insubordination. (Doc. 25-4 at 12(41)). Furthermore, after the Plaintiff applied for
worker’s compensation benefits, the only reason Chamoun gave to the Alabama
Department of Labor for the Plaintiff's discharge was “lack of work.” (Doc. 25-4 at
Of course, Chamoun also testified that the Plaintiff was fired, at least in part,
for these reasons. (Doc. 25-4 at 19(69)); doc. 25-4 at 30(114)); doc. 25-4 at 31(120)32(121); see also doc. 31-1 (Defendant’s discovery responses explaining that
“Plaintiffs employment was terminated because of lack of available work and because
Plaintiff engaged in gross misconduct, gross insubordination, and company policy
violations including violations of the company drug testing policy, violations of
policy regarding attendance and smoking, smoking on GTI property, job sites, and
near flammable liquids and gases subjecting employees to danger, refusing and
failing to perform assigned work and/or otherwise displaying poor work performance,
destroying company and/or customer property in an intentional and gross manner, and
engaging in violent and threatening behavior.”). In consideration of this conflict in
the evidence, summary judgment will be denied to both parties on this issue.
The Plaintiff Disputes that He Engaged in the Conduct
If the Defendant had argued in response to the claim for discrimination that the
Plaintiff was fired for the “gross misconduct” alleged in this section, GTI’s good faith
belief, even if mistaken, that the Plaintiff engaged in such conduct would have been
sufficient to defeat a claim for discrimination. However, under COBRA “the
employer's belief that the employee engaged in gross misconduct must be more than
its honest, actual belief—the record must demonstrate that the employee did indeed
engage in gross misconduct.” See Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d
672, 680 (7th Cir. 1997); Rodriguez v. Oriental Fin. Grp. Inc., 802 F. Supp. 2d 350,
357 (D.P.R. 2011) (Dominguez, J.) (same); De Nicola v. Adelphi Acad., No.
CV-05-4231, 2006 WL 2844384, at *7, n. 4 (E.D.N.Y. Sept. 29, 2006) (Trager, J.)
(same); Richard v. Indus. Commercial Elec. Corp., 337 F. Supp. 2d 279, 281 (D.
Mass. 2004) (Gorton, J.).54 In this case, the conduct is disputed.
For example, the only incident in which it is alleged that the Plaintiff “refused
tests for illegal drugs” is the one which occurred after the Plaintiff passed out. GTI
claims that Chamoun and Bowerman told Knight that he had to have a drug test done
that day, but the Plaintiff insists he was not told to do so that day, and the text sent by
Chamoun to the Plaintiff, which states that the Plaintiff could take the test “today or
tomorrow,” supports the Plaintiff’s version of events. The only incident of “violent
behavior” which is alleged is the incident regarding “wildly flailing” an ax and the
fiber optic pedestal, the first portion of which the Plaintiff denied, and the latter
portion of which the Plaintiff claimed was an accident. Chamoun testified that when
he counseled the Plaintiff, he was insubordinate, but, because the Plaintiff states that
he was never counseled for rules violations, a jury could reasonably find that the acts
of insubordination did not occur.55
Under the circumstances, and considering that additional proof at trial may
reveal more, the Court will deny summary judgment to both the Defendant and the
The Court is persuaded that this approach is the correct one. Regardless, the parties
agree that this is correct. (See doc. 24 at 27 and note 100; doc. 31 at 23-24).
Recall that the Court deemed “undisputed,” for purposes of liability on the
discrimination count, the Defendant's proffered facts concerning Knight smoking near dangerous
chemicals. As explained previously (supra note 20), that fact is not deemed to be admitted as to
the COBRA claim.
Plaintiff on the issue of whether the Plaintiff engaged in “gross misconduct.”
The Small Employer Exception Does Not Apply
The Plaintiff argues at length regarding the number of employees employed by
the Defendant, and whether the Defendant falls within an exception to COBRA for
employers which “normally employed fewer than 20 employees on a typical business
day during the preceding calendar year.” 29 U.S.C. §1161(b). The Defendant neither
responds to this argument, nor asserts, in its own motion, that the exception applies.
Accordingly, the Court determines that summary judgment is due to be granted in
favor of the Plaintiff and against the Defendant on this issue. See, Powell v. Am.
Remediation & Envtl., Inc., 61 F. Supp. 3d 1244, 1253 (S.D. Ala. 2014), aff'd, 618 F.
App'x 974 (11th Cir. 2015) (and cases cited therein) (“[W]here the non-moving party
fails to address a particular claim asserted in the summary judgment motion but has
responded to other claims made by the movant, the district court may properly
consider the non-movant's default as intentional and therefore consider the claim
abandoned.”). The Court affirmatively holds that the small employer exception does
not apply to the Defendant.
Prejudice and Bad Faith
The Defendant argues that “[b]oth prejudice to the participant and bad faith by
the administrator are relevant factors in assessing penalties.” (Doc. 35 at 12). Since
the Court will be trying several factual issues regarding the COBRA claim, it will
deny summary judgment to both sides on this issue and reserve judgment until the
trial of this matter.56 For the same reason, it will deny summary judgment to both
parties as to the availability of attorney’s fees on this issue.
Based on the foregoing, it is hereby ORDERED, ADJUDGED, and
DECREED only57 as follows:
The Defendant’s motion for summary judgment is GRANTED as to the
There is no doubt that lack of prejudice and lack of bad faith are not prerequisites to a
penalty under COBRA. The Court is persuaded by, and adopts the following reason from Judge
Kallon of this district:
Because damages under COBRA are “designed more for the purpose of punishing
the violator than compensating the participant,” Scott v. Suncoast Beverage Sales,
LTD, 295 F.3d 1223, 1232 (11th Cir. 2002), the court finds [the] argument that
[the Plaintiff] suffered no prejudice from the failure to issue a notice unavailing.
While “prejudice is a factor to be considered in determining the appropriate
penalty,” the Eleventh Circuit has “explicitly rejected treating prejudice as a
prerequisite to a penalty.” Id. (citation omitted). Likewise, [the] argument
regarding the purported lack of bad faith misses the mark because the plan
sponsor “is charged with knowledge of every provision of ERISA” and is
“obligated, under ERISA, to determine employees' rights to continuation coverage
and notify them of these rights.” Nat'l Companies Health Benefit Plan v. St.
Joseph's Hosp. of Atlanta, Inc., 929 F.2d 1558, n. 15 (11th Cir. 1991) (citation
omitted), abrogated on other grounds by Geissal v. Moore Med. Corp., 524 U.S.
74 (1998); see also 29 U.S.C. § 1161(a).
Virciglio v. Work Train Staffing, LLC, No. 2:12-CV-3738-AKK, 2014 WL 12591416, at *5
(N.D. Ala. May 16, 2014), aff'd, 674 F. App'x 879 (11th Cir. 2016).
The findings in this opinion are made in order to reach the conclusions set out herein.
No party should deem any issue in this case to be resolved, except as set out in this section.
Plaintiff’s claims for relief in Counts One and Two. Counts One and
Two are hereby DISMISSED with prejudice.
In all other respects, the Defendant’s motion is DENIED.
The Plaintiff’s motion is hereby GRANTED as to the issue of whether
the Plaintiff was sent the notice required to be sent him pursuant to 29
U.S.C.A. § 1161(a). The Court affirmatively holds that there is no
genuine material fact, such that the Plaintiff is entitled to, and is hereby
GRANTED, judgment as a matter of law that he was not sent said
The Plaintiff's motion is hereby GRANTED as to the issue of whether
the “small employer exception” applies to the Defendant. The Court
affirmatively holds that there is no genuine material fact, such that the
Plaintiff is entitled to, and is hereby GRANTED, judgment as a matter
of law that the Defendant does not fall within that exception.
In all other respects, the Plaintiff’s motion is hereby DENIED.
DONE and ORDERED this 27th day of September, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
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