Coleman et al v. Morris-Shea Bridge Company Inc et al
Filing
123
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 11/23/2020. (PSM)
FILED
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 1 of 51
2020 Nov-23 PM 01:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LARRY COLEMAN, et al.,
Plaintiffs,
v.
MORRIS-SHEA BRIDGE
COMPANY, INC., et al.,
Defendants.
)
)
)
)
)
)
)
)
2:18-cv-00248-LSC
MEMORANDUM OF OPINION
I.
INTRODUCTION
Plaintiffs Larry Coleman (“Larry”), Chester Coleman (“Chester”), and
Freddie Seltzer (“Freddie”) (collectively, “Plaintiffs”), three African-American
brothers, bring this action against their former employer, Morris-Shea Bridge
Company (“MSB”), and the President of MSB, Richard J. Shea, Jr. (“Shea”)
(collectively, “Defendants”). In Count I of Plaintiffs’ Complaint, Larry asserts a
claim for unpaid overtime wages under the Fair Labor Standards Act of 1938,
29 U.S.C. § 201 et seq. (“FLSA”). In Counts II through VII and Counts XIV through
XIX, Plaintiffs assert race discrimination claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and 42 U.S.C. § 1981. In Counts
VIII through XIII, Plaintiffs allege that they were subjected to a racially hostile work
Page 1 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 2 of 51
environment in violation of Title VII and § 1981. In Counts XX through XXII,
Plaintiffs assert claims for age discrimination under the Age Discrimination in
Employment Act, 29 § 601 et seq. (“ADEA”).
Before the Court are Defendants’ Motion for Summary Judgment (doc. 75),
Defendants’ Motion to Strike (doc. 115), Plaintiffs’ Motion to Strike (doc. 117), and
Plaintiffs’ Opposition to Defendants’ Declaration (doc. 119). All matters are fully
briefed and ripe for review. For the reasons stated below, Defendants’ Motion for
Summary Judgment is due to be granted in part and denied in part. Defendants’
Motion to Strike is due to be granted in part and denied in part and terminated as
moot in part. Plaintiffs’ Motion to Strike and Opposition to Defendants’ Declaration
are due to be denied.
II.
BACKGROUND 1
MSB is a contractor specializing in two types of deep foundation work: driven
piles and drilled piles. Driven piles involve the use of cranes, whereas drilled piles
1
The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed
to be undisputed, their respective responses to those submissions, and the Court’s own
examination of the evidentiary record. These are the “facts” for summary judgment purposes
only. They may not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension
Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced
evidence supporting a party’s position. As such, review is limited to exhibits and specific portions
of the exhibits specifically cited by the parties. See Chavez v. Sec’y, Fla. Dept. of Corr., 647 F.3d
1057, 1061 (11th Cir. 2011) (“[D]istrict court judges are not required to ferret out delectable facts
buried in a massive record . . . .”).
Page 2 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 3 of 51
involve the use of a proprietary soil displacement system utilizing drills. Work with
driven piles and drilled piles requires different skill sets and qualifications. For
example, the Occupational Safety and Health Administration instituted a licensing
requirement for operating cranes in 2010, although this requirement did not become
effective until 2018. This means that operating cranes for driven piles requires a
special license from an accredited organization, such as the National Commission for
the Certification of Crane Operators (“NCCCO”) or the Crane Institute
Certification (“CIC”). MSB asserts that before this licensing requirement became
mandatory, many of its customers wanted crane operators who were already
certified. MSB contends that because of this preference, employees licensed to
operate cranes could command higher salaries than those who were not certified.
In contrast, drill rigs used by MSB for drilled piles are not subject to any
licensure requirements, although MSB offers its own certification process. MSB
contends that because of the complex nature of drilling projects, employees
specializing in this work can command higher salaries than, for example, unlicensed
Plaintiffs’ brief is riddled with misrepresentations of the evidentiary record and inaccurate
citations lending little to no support for Plaintiffs’ contentions. The Court is not required to
identify unreferenced evidence supporting a party’s position. Therefore, the Court declines to
comb through the record to find supporting material for Plaintiffs’ assertions when Plaintiffs failed
to do so in their response brief. Accordingly, the Court will disregard any statements of fact made
by either party that are not supported by the evidentiary material to which the parties cite.
Page 3 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 4 of 51
crane operators specializing only in driven piles. Some employees specialize in either
driven piles or drilled piles, while some employees work on both types of projects.
MSB hires employees for each project and determines salaries based in part
on the type of project. The employee’s classification also determines, in part, the
salary. Employees are classified based on their designation as, for example, laborer,
crane operator, drill operator, foreman, or superintendent. Employees are also
classified by MSB based on their skill level and years of experience.
Employees are paid hourly unless they have a supervisory role, such as a
foreman or superintendent, in which case they are typically salaried. Hourly
employees are entitled to overtime pay for work in excess of forty hours a week.
Salaried employees receive a weekly base rate of pay plus an additional eight hours
of pay if they work on the weekend. Superintendents and foremen make suggestions
about pay for their crew members; however, ultimate decisions concerning
compensation are made by Shea and his three sons, Richard Shea (“Richard”),
Steve Shea (“Steve”), and Bill Shea (“Bill”).
Plaintiffs assert that race was also a consideration when determining employee
compensation. For example, Plaintiffs contend that Caucasian foremen receive
overtime pay, citing to Richard’s deposition testimony. However, Plaintiffs
misrepresent this testimony. In his deposition, Richard stated that Tony Dennis
Page 4 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 5 of 51
(“Dennis”) received overtime pay because he was “still hourly at $30 an hour,
which is five dollars less than Larry.” (Doc. 76-3 at 231.) Richard further testified
that Dennis was “trying to earn the supervisory position,” which is why he was kept
hourly for a period of time, as opposed to Larry, who was already in a supervisory
role and thus was salaried. (Id.)
Employees are also entitled to per diem, a hotel allowance, and mileage when
they are sent to work on out-of-town projects. Employees receive variable amounts
of per diem depending on factors including their position; how far they travel; what
the cost of living is in the area in which they are working; and the time of year. 2
2
Plaintiffs dispute MSB’s contention that per diem rates fluctuate. Plaintiffs argue that per
diem is determined solely based on an employee’s job function. This assertion is not supported by
Plaintiffs’ citations to the evidentiary record. Plaintiffs cite to Richard’s deposition testimony;
however, in the cited section, Richard testifies that “in different areas, the wage rates change.”
(Doc. 76-3 at 64.) Furthermore, Richard’s deposition testimony also supports MSB’s contention
that per diem rates fluctuate based on the location. Richard states that “per diem . . . fluctuates by
area, depending on . . . what the cost of living is.” (Id. at 67.)
Plaintiffs also misrepresent the per diem received by Gary Watson (“Watson”), Dennis,
and Christopher Hughes (“Hughes”) in an effort to support their position. Dennis’s per diem
increased to $90 a day “[b]ecause the cost of living [in Texas] is higher than it is here.” (Doc. 1111 at 135.) Dennis testified that at various jobs, his rate of per diem fluctuated, but that it would
increase when “the cost of living . . . was higher.” (Id. at 137–38.) Hughes testified that his per
diem “depend[ed] on the project,” providing by way of example that if the project was “a
Northeastern project, [per diem] would have to be raised a little bit to accommodate for the
additional cost.” (Doc. 100-78 at 9–10.) Plaintiffs cite to the deposition testimony of Sean Watson
(“Sean”), not Gary Watson. (See doc. 112 at 4 n.51.) Plaintiffs’ citations to Sean’s testimony do
not correspond to a discussion of per diem rates. The Court presumes Plaintiffs intended to cite to
Watson’s deposition testimony; however, his testimony does not support Plaintiffs’ contention
either. Watson stated that his per diem varied based on the “location of the job” and that “the cost
of living factors into” the amount of per diem he received. (Doc. 100-74 at 18.)
Page 5 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 6 of 51
MSB regularly disciplined both African-American and Caucasian employees.
Employees were subject to discipline, including termination, for failing drug tests
and for tardiness. MSB would routinely rehire employees who had been disciplined
and terminated. Larry recalls working on a job site where a Caucasian worker was
late to work but was not disciplined.
A.
Larry Coleman
Larry began working at MSB in 1980. Larry worked in a variety of positions
ranging from laborer to superintendent over the course of almost thirty-seven years
with MSB. Larry was not licensed by the NCCCO or the CIC and did not have any
other certifications from MSB.
The parties dispute whether Larry was a pile-driving foreman or
superintendent prior to his separation from MSB. Regardless of his title, Larry’s
responsibilities included supervising a small crew of men; assigning work; ensuring
the crew safely completed assignments; and completing paperwork. On jobs where
the parties agree Larry was classified as a superintendent, Larry had additional
responsibilities including engaging with clients; ordering material; and completing
added paperwork. MSB challenges exactly how much of these additional
responsibilities Larry handled while working as a superintendent. Even when Larry
was in a supervisory position, he still performed manual labor, frequently working
Page 6 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 7 of 51
alongside his crew. 3 Larry explains that working alongside his crew was a personal
choice, and that this was not a job requirement. 4
Larry’s most recent position at MSB in 2017 was salaried. He earned $1,400
per week, or $35 an hour, plus eight hours of pay if he worked on Saturday or Sunday,
as well as per diem when appropriate. 5 Larry states that there were occasions when
he had to work eighteen-to-twenty-hour days. Because he was salaried, he was not
compensated for any additional work except as previously stated. Larry’s per diem
ranged from $75 to $85. 6
3
Larry claims that he “devoted approximately 80 to 90% of this time performing the same
work as his crew and 20% or less was devoted to supervisory functions.” (Doc. 112 at 15 ¶ 18 (citing
Doc. 102-1 ¶ 63).) Defendants do not dispute this assertion.
4
Plaintiffs claim in their response brief that Larry was required to work alongside his crew
whereas Caucasian superintendents were not. This is unsupported by the evidentiary record,
including Larry’s deposition testimony. See infra Part IV.
5
Larry claims that his salary was based on a fifty-hour work week, whereas other Caucasian
foremen’s salaries were based on a forty-hour work week. (See doc. 112 at 4 ¶ 28.) However, this
assertion is unsupported by Plaintiffs’ citations. For example, Plaintiffs cite to Dennis’s deposition
for the proposition that Dennis’s salary was based on forty hours of work. However, in the cited
section, Dennis states that “when you work a job and you put in 70 hours a week, and then you
work a job and you do 40 hours a week, you can do the math right there, and it don’t come out
right.” (Doc. 111-1 at 142.) Dennis made this statement in response to the question “what’s in your
checkbook when you went from hourly to salary?” (Id.) This testimony, while confusing, does not
support Plaintiffs’ assertion that Dennis and other Caucasian foremen were paid based on a fortyhour work week.
6
The per diem rates for Larry, Chester, and Freddie are from the most recent major projects
to which they were assigned.
Page 7 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 8 of 51
Larry asserts that other foremen with less experience received higher pay and
per diem, such as Dennis, a Caucasian foreman; Sam Gardner (“Gardner”), a
Caucasian superintendent; and Keith Pate (“Pate”), a Caucasian superintendent.
Dennis was originally hired as a laborer earning $20 an hour. Dennis was eventually
promoted to pile-driving foreman, a salaried position where he earned $1,600 a week,
or $40 an hour. Dennis’s per diem ranged from $65 to $75, increasing to $90 when
he was assigned to a project in Texas. Dennis was certified to operate a drill rig and
was a certified welder. Larry was not. Larry states that Gardner earned $50 an hour,
but offers no information as to Gardner’s job qualifications.7 Pate earned $2,350 a
week, or $57.50 an hour. Pate was certified to operate small equipment, and he was
a certified welder. Larry was neither. Pate’s per diem fluctuated based on the region
in which he worked, ranging from $35 a day to $95 a day. 8
Larry had multiple interactions with Shea. As President of MSB, Shea was
responsible for ensuring MSB was free from discrimination. Larry alleges that Shea
made two racially offensive comments, cautioning Larry “about not becoming nigger
rich,” and telling him “had a strike against [him] because [he] was black.” (Doc. 76-
7
Defendants did not dispute this statement of fact; therefore, it is deemed admitted for the
purposes of summary judgment. See Fed. R. Civ. P. 56(e)(2).
8
Pate’s per diem was $35 a day on a project in Texas, where MSB also paid for Pate’s motel.
Page 8 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 9 of 51
7 at 61.) Larry states that these comments were made at a project in Bowater,
Tennessee. Although Defendants do not concede that these comments were made,
they note that this project occurred decades ago. Larry was offended by these
comments but did not report them to anyone else at MSB.
Larry also interacted with many employees at MSB, including Lee Dubberly
(“Dubberly”), a Caucasian superintendent. He states that Dubberly told AfricanAmerican workers to “find something to do or get off my job,” which resulted in
them “picking up sticks [while] the white guys stood by.” 9 (Doc. 76-7 at 135, 139.)
Defendants assert that this had nothing to do with race, referring to the deposition
testimony of Harris, a Caucasian superintendent, who states he worked on jobs that
involved “picking up rocks and sticks,” and that he personally did that work. (Doc.
76-17 at 89.) Larry also asserts that Dubberly referred to African-American
employees as boys and niggers, although Plaintiffs never heard Dubberly refer to
them as niggers directly. 10 Dubberly claims he referred to everyone as “boys,”
regardless of race.
9
Larry also alleges that Dubberly made racially insensitive jokes in his presence. However,
Larry was unable to elaborate any further on the nature of these jokes other than to reiterate that
Dubberly told black jokes.
10
While Larry did not hear Dubberly call African-American employees “niggers,” he heard
from other workers that he did so. Henry Pettway (“Pettway”), an African-American, worked on
the same crew as Larry, Chester, and Freddie. In his declaration, Pettway states he heard Dubberly
refer to African-Americans “as niggers on a daily basis.” (Doc. 102-5 ¶ 7.)
Page 9 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 10 of 51
B.
Chester Coleman
Chester began working at MSB in 1992, holding different positions at MSB
ranging from laborer to operator. 11 The parties dispute the specific classification of
Chester’s most recent position at MSB but agree that he was a crane operator,
although he was not licensed by either the NCCCO or CIC. 12 Chester received a
raise when he was promoted to crane operator, earning $25 an hour with per diem
ranging from $60 to $85.
Plaintiffs state that “MSB paid Chester less than White operators performing
the same/comparable work” and that “[w]hite employees received higher per diem
rates than Chester.” (Doc. 112 at 17–18.) However, Plaintiffs do not cite to any
evidence that can be reduced to admissible form to support these claims. Plaintiffs
rely on Chester’s deposition testimony in which he states he believes that James
Romo (“Romo”), a Caucasian foreman, earned more than he did for comparable
work because MSB was “bringing guys in, and I was only making 25 dollars an hour.”
11
MSB states that Chester was employed on and off between 1992 and 2017. Plaintiffs
challenge this, stating that Chester “worked continuously until 2017.” (Doc. 112 at 6 ¶ 40.)
Thereafter, Plaintiffs contradict their position, admitting that “Chester was fired and recalled one
week later to the same project” after a drill rig was damaged. (Id. at 7 ¶ 43.) Furthermore, Chester
testifies that, on a separate occasion, he “failed [a] drug test [and] was fired.” (Doc. 76-9 at 75.)
12
MSB contends Chester was a pile-driving crane operator, whereas Plaintiffs state Chester
was a crane operator and heavy equipment operator.
Page 10 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 11 of 51
(Doc. 76-9 at 53.) Chester admits that he had no idea how much Romo earned and
that he did not know if there were other Caucasian operators who were paid more
than him.
Plaintiffs also cite to an MSB census from 2016, which provides basic
information about a handful of employees including their classification, race, and
pay. From this list, Plaintiffs do not distinguish which operators perform the same or
comparable work to Chester. There are other Caucasian and African-American
employees who are classified as “Crane Operator 1,” which is Chester’s
classification, but Plaintiffs provide no additional information concerning their job
responsibilities or qualifications. Some African-American and Caucasian operators
classified as “Crane Operator 1” were paid more than Chester, while some were paid
less. Plaintiffs make no distinction between these operators and identify no specific
individuals with whom to compare Chester.
Concerning per diem, Plaintiffs cite to Dennis’s deposition for evidence of a
Caucasian foreman who received $90 a day. However, as previously explained,
Dennis received this amount on a Texas project to account for an increase in the cost
of living. Dennis was classified as a foreman when he received $90 a day; Chester
was not classified as a foreman.
Page 11 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 12 of 51
Chester worked on projects with Dubberly. Like Larry, Chester states he
heard Dubberly refer to African-American employees as boys.
C.
Freddie Seltzer
Freddie began working for MSB in 1989. Freddie was employed on and off,
holding different positions at MSB including welder, pile driver, and crane operator.
Most recently, Freddie was a certified welder on pile driving jobs earning $20.50 an
hour with per diem ranging from $50 to $70. Over the course of his employment,
Freddie received periodic raises.
Freddie also worked on job sites with Dubberly. On one occasion, he states
that Dubberly called him “a black ass.” (Doc. 76-12 at 100–01.)
D.
The Mountain Lakes Farm and Richard Shea Residence Projects
The last projects to which Plaintiffs were assigned were at Mountain Lake
Farms and Richard’s residence (the “Shea Residence”). Defendants state that “in
an effort to keep some of its long-time workers gainfully employed, MSB chose to
use workers like Plaintiffs and continued their usual rate of pay” even though the
work Plaintiffs were asked to perform was “non-equipment” manual labor, which
could have been performed by unskilled laborers for between $10 and $15 an hour.
(Doc. 75 at 13 ¶ 57.) In addition to their regular pay, Plaintiffs received per diem for
these projects.
Page 12 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 13 of 51
On the Mountain Lakes Farm and Shea Residence projects, Plaintiffs showed
up late to work approximately “ten percent of the time.” (Doc. 76-2 at 112.) Shea
states that he observed a decline in Plaintiffs’ work ethic on these projects, claiming
that “they were not working diligently . . . and were taking too long for lunch.” (Id.
at 100.) Jimmy Harris (“Harris”), a superintendent on these projects, states that
Plaintiffs were taking more than thirty minutes for lunch, and that he reminded Larry
what the lunch policy was. After that conversation, Harris states that Larry started
bringing his lunch instead of going out with Chester and Freddie.
On April 10, 2017, Plaintiffs were working on the Shea Residence when
Freddie and Chester went out for lunch. The parties dispute whether they were late
returning, but it is undisputed that Shea believed they took longer than thirty
minutes for lunch. As such, Shea told Harris to send Freddie and Chester home from
the job site. Larry had traveled to the site with Freddie and Chester, so he was given
permission to leave with his brothers.
On April 11, 2017, Larry showed up to work without Freddie and Chester.
Shea instructed Harris to send him home, while still paying him for a full day of work.
Shortly thereafter, Hughes, a Caucasian superintendent who was also assigned to the
Shea Residence, informed Linda Catlin (“Catlin”), an employee in payroll, that he
Page 13 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 14 of 51
believed Plaintiffs had been fired, although Shea testified that he did not intend to
terminate Plaintiffs.
On April 11, 2017, Larry was fifty-nine, Chester was fifty-five, and Freddie was
fifty-two. Larry asserts that he was replaced by either Gardner, Dennis, or Hughes.
Chester and Freddie assert that they were replaced by Hispanic and Caucasian
employees in their twenties and thirties; however, this is not supported by the
evidentiary record to which they cite. 13 Defendants state that Gardner, Larry Young
(“Young”), and Dennis were transferred to the Shea Residence after Plaintiffs were
sent home. Gardner, a Caucasian superintendent, was fifty-four; Young, an AfricanAmerican foreman, was forty-six; and Dennis, a Caucasian foreman, was forty-four.
After Plaintiffs were sent home, they applied for and received unemployment
compensation from the State of Alabama Department of Labor, representing they
were laid off from MSB. Larry and Chester stated they were laid off due to a lack of
work. Freddie stated he was laid off for violating a company policy.
13
Plaintiffs misrepresent Hughes’s deposition testimony in an effort to show that they were
replaced by substantially younger men who were Caucasian and Hispanic. Hughes states that before
Plaintiffs were sent home, there were “four or five people” working on the Shea Residence who
were responsible for the demolition of a house. (Doc. 100-78 at 133–36.) These men were in their
twenties and thirties. There is nothing in Hughes’s testimony to suggest that these men were used
to replace Plaintiffs, in fact, Hughes testifies that he does not have personal knowledge regarding
who replaced Plaintiffs.
Page 14 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 15 of 51
Larry and Freddie also filed applications with the Social Security
Administration (“SSA”) seeking a determination that they were disabled and
entitled to benefits. Larry represented that he was disabled as of April 12, 2017.
Freddie represented that he was disabled as of March 30, 2017. The SSA determined
that Larry and Freddie were disabled as of those dates, respectively.
On May 11, 2017, one month after the brothers were sent home from the Shea
Residence, Dubberly called Chester and offered him a pile-driving job, which he
declined as he had a job lined up with a different company. The parties dispute
whether Dubberly extended offers to Larry and Freddie.
III.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact 14 and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine dispute as
to a material fact exists “if the nonmoving party has produced evidence such that a
reasonable factfinder could return a verdict in its favor.” Greenberg v. BellSouth
14
A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1050 (11th Cir. 2015).
Page 15 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 16 of 51
Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (quoting Waddell
v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge
should not weigh the evidence, but should determine whether there are any genuine
issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986).
In considering a motion for summary judgment, trial courts must give
deference to the nonmoving party by “view[ing] the materials presented and all
factual inferences in the light most favorable to the nonmoving party.” Animal Legal
Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated
assertions alone are not enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory
allegations and a “mere scintilla of evidence in support of the nonmoving party will
not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d
1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, 358 F.3d
859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the moving
party has the burden of either negating an essential element of the nonmoving party’s
case or showing that there is no evidence to prove a fact necessary to the nonmoving
party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir.
Page 16 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 17 of 51
2013) (per curiam). Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
IV.
PRELIMINARY MATTERS
Both parties have raised substantial challenges to the other side’s briefing of
this summary judgment motion. Defendants seek to strike Plaintiffs’ response brief
for failure to comply with the Court’s Uniform Initial Order (doc. 17) and Order to
Show Cause (doc. 107). Defendants also seek to strike Plaintiffs’ response brief
alleging it contains numerous false allegations. Finally, Defendants seek to strike
portions of Plaintiffs’ evidentiary material, alleging that Plaintiffs have submitted
exhibits and sham declarations that contain inadmissible hearsay; lack a basis in
personal knowledge; and lack foundation. Plaintiffs argue that Defendants’ reply
brief should be stricken for failure to comply with the Court’s Uniform Initial Order
and for raising new arguments in their brief that were not raised in their initial
motion. Plaintiffs also oppose one of Defendants’ declarations, arguing that it is a
sham declaration. The Court will address each challenge in turn.
Page 17 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 18 of 51
A.
Defendants’ Motion to Strike (Doc. 115)
Defendants argue that Plaintiffs failed to comply with the Court’s Order to
Show Cause by submitting a fifty-nine-page brief with 399 footnotes in eight-point
font. The Court granted Plaintiffs additional pages for their response brief but did
not otherwise alter the requirements in the Court’s Uniform Initial Order. The
Court agrees with Defendants that Plaintiffs’ liberal use of noncompliant footnotes
is likely intended to circumvent the page limit for their response brief, and Plaintiffs
concede that if their footnotes were in twelve-point font, their brief would have
exceeded the limitations set by the Court’s Order. However, the Court declines to
strike Plaintiffs’ response brief. Defendants responded to Plaintiffs’ statement of
facts and arguments raised in their response brief despite Plaintiffs’ failure to comply
with formatting requirements. Also, while the Court finds that many of Plaintiffs’
assertions either lack evidentiary support or grossly misconstrue the cited
evidentiary material, the Court declines to strike the entirety of Plaintiffs’ brief.
Accordingly, Defendants’ Motion to Strike is due to be denied in part.
Defendants also assert that portions of Plaintiffs’ evidentiary material should
be stricken. Defendants argue that several declarations submitted by Plaintiffs are
shams. “Variations in a witness’s testimony and any failure of memory throughout
the course of discovery create an issue of credibility” concerning that witness.
Page 18 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 19 of 51
Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986). This is to be
distinguished from a sham affidavit or declaration, where “a party has given clear
answers to unambiguous questions which negate the existence of any genuine issue
of material fact,” precluding that party from “creat[ing] such an issue with an
affidavit that merely contradicts, without explanation, previously given clear
testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th
Cir. 1984).
There are multiple inconsistencies between Plaintiffs’ deposition testimony
and their declarations. Fourteen days after Defendants filed their motion, Plaintiffs
filed a response in which they attempted to explain these inconsistencies. Taking
into consideration Plaintiffs’ response, the Court finds that there are some direct
contradictions in Plaintiffs’ declarations that are not adequately explained. For
example, Plaintiffs assert that Chester was fired on at least two occasions: once after
failing a drug test, and once after damaging a drill rig. Yet, in his declaration, he
claims that he “never received any discipline.” (Doc. 102-2 at 1 ¶ 4.) These
statements are clearly contradictory. Plaintiffs attempt to reconcile Chester’s
statements by making a distinction between “administrative termination” and
discipline related to his work performance. The Court finds this explanation to be
unpersuasive; however, it is unnecessary to strike this portion of Chester’s
Page 19 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 20 of 51
declaration as the Court did not rely upon it in its analysis. Thus, Defendants’
Motion to Strike is due to be terminated as moot in part.
Larry testifies that it was his personal choice to work alongside his crew,
whereas in his declaration he states that he was “required” to work alongside his
crew. (Doc. 102-1 at 3 ¶ 9.) These are clearly contradictory statements, and Plaintiffs
have provided no evidence to explain this contradiction. 15 To the extent that Larry’s
declaration contradicts his deposition testimony without explanation, Defendants’
Motion to Strike is due to be granted in part.
Freddie’s declaration also contains inconsistencies from his deposition
testimony. For example, in his declaration, he states he was “denied job advances
and promotions due to my race.” (Doc. 102-3 at 3 ¶ 11.) In his deposition testimony,
Freddie states that the only person at MSB to whom he expressed an interest in a
promotion was his brother, Larry, who did not follow through with Freddie’s
15
While Larry’s personal choice to work alongside his crew may reflect on his “work ethic,
values, and the pride he took in this work” as Plaintiffs argue, that by no means supports the
proposition that he was required to work alongside his crew while Caucasian superintendents were
not. (Doc. 121 at 7.) Required means “stipulated as necessary to be done, made, or provided.”
Required,
MERRIAM-WEBSTER
(Oct.
29,
2020),
https://www.merriamwebster.com/dictionary/required. Nothing in Larry’s deposition testimony supports the
conclusion that he was required to work alongside his crew. In fact, Larry makes it clear that this
was his choice. Plaintiffs do not support their assertion that Larry was required to work alongside
his crew with any citations to evidentiary material other than to a single paragraph in Larry’s
declaration, which directly contradicts, without explanation, his deposition testimony. The Court
finds this statement to be a sham declaration in an attempt to create a material dispute of fact where
none exists.
Page 20 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 21 of 51
request. These contradictions, however, are irrelevant to the claims brought by
Plaintiffs. Plaintiffs bring specific disparate treatment claims regarding pay and
termination. They do not bring any failure to promote claims. Thus, this portion of
Freddie’s testimony and declaration are irrelevant and will be disregarded. Because
the Court disregards all irrelevant evidence, it is unnecessary to consider whether
this portion and other irrelevant portions of Plaintiffs’ declarations should be
stricken. Accordingly, Defendants’ Motion to Strike is due to be terminated as moot
in part.
Additionally, Defendants ask the Court to strike portions of Plaintiffs’
declarations and exhibits, arguing that the declarations lack foundation; contain
inadmissible hearsay; are irrelevant; and that the declarants lack personal
knowledge. To the extent that this is the case, the Court disregards all evidence that
is irrelevant or that cannot be reduced to admissible form at trial. Defendants object
to five exhibits on the following grounds: authenticity; hearsay; best evidence rule;
and lack of foundation, specifically that the preparer of the challenged exhibits had
no personal knowledge or that the alleged comparators are not valid comparators.
Defendants do not challenge the content of these exhibits. This is noteworthy
because three of the exhibits contain information about the race and compensation
of MSB employees and could be easily authenticated and verified by MSB. In fact,
Page 21 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 22 of 51
Defendants rely upon some of these exhibits as the basis of declarations submitted
by MSB employees.
While it is true that the exhibits as submitted by Plaintiffs are not in admissible
form, the exhibits and the information contained therein may be reduced to
admissible form by trial. See, e.g., Denney v. City of Albany, 247 F.3d 1172, 1189 n.10
(11th Cir. 2001) (“In considering a summary judgment motion, a court may only
consider evidence that is admissible or that could be presented in admissible
form.”); 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, § 2722 (4th ed.). As such, the Court may consider these exhibits in its
ruling on summary judgment. The Court does not rely on the other two challenged
exhibits in its analysis. Accordingly, Defendants’ Motion to Strike is due to be denied
in part and terminated as moot in part.
B.
Plaintiffs’ Motion to Strike (Doc. 117)
The Court finds Plaintiffs’ Motion to Strike to be meritless, and questions why
Plaintiffs seek to strike Defendants’ reply brief. Plaintiffs dispute the majority of
Defendants’ statement of facts. In Plaintiffs’ response, they include a footnote in
which they attempt to incorporate every one of their disputes to Defendants’
statement of facts as part of their own statement of undisputed facts. Plaintiffs then
argue that their disputed facts should be deemed admitted as they are not challenged
Page 22 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 23 of 51
in Defendants’ reply brief. The Court hopes that Plaintiffs would not rely on such a
tactic in an effort to trap Defendants. Accordingly, Defendants properly limited their
reply brief to a discussion of Plaintiffs’ statement of undisputed facts, and Plaintiffs’
statement of disputed facts is not deemed admitted.
Furthermore, Defendants did not raise new legal theories in their reply brief.
As Defendants correctly point out, Plaintiffs raise an argument based on a
misinterpretation of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), incorrectly
claiming that the Supreme Court abandoned the McDonnell Douglas framework 16 for
Title VII cases. 17 Not only is this inaccurate, but Defendants were well within their
rights to respond to this argument as it was raised by Plaintiffs in their response brief.
Defendants correctly state that they argued for the applicability of the McDonnell
Douglas framework in their Motion for Summary Judgment, and that any discussion
of Bostock resulted solely from Plaintiffs’ misguided interpretation of the Supreme
Court’s holding. Accordingly, Plaintiffs’ Motion to Strike (doc. 117) is due to be
denied.
16
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
17
In Bostock, the Supreme Court interpreted Title VII such that discrimination because of sex
encompasses discrimination because of sexual orientation. Bostock, 140 S. Ct. at 1754. The Court
did not abandon the McDonnell Douglas framework in its analysis.
Page 23 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 24 of 51
C.
Plaintiffs’ Opposition to Declaration of Richard Shea (Doc. 119)
Additionally, Plaintiffs’ Opposition to Declaration of Richard Shea is
meritless. Plaintiffs cite to the sham affidavit rule in an effort to lead the Court to
strike Richard’s declaration, arguing that his declaration contradicts Shea’s
deposition testimony. Plaintiffs misapply the sham affidavit rule. This rule applies to
contradictory evidence given by the same witness. Plaintiffs ask the Court to strike
Richard’s declaration as inconsistent with Defendant Shea’s deposition testimony,
not Richard’s deposition testimony. Plaintiffs have made no coherent argument as
to why Richard’s declaration is a sham affidavit; therefore, the Court will not
disregard or strike this declaration.
V.
DISCUSSION
Plaintiffs bring four types of claims against Defendants. First, Larry claims
that he was misclassified as an exempt employee under the FLSA, and thus is
entitled to overtime wages for work performed in excess of forty hours per week.
Second, Plaintiffs claim that they were subjected to discrimination on the basis of
their race. Third, Plaintiffs claim they were subjected to a racially hostile work
environment. Fourth, Plaintiffs claim they were subjected to discrimination on the
basis of their age. Defendants have moved for summary judgment on all claims.
Page 24 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 25 of 51
A.
FLSA—Count I
Larry argues that he was misclassified as an exempt employee, thus he should
be entitled to overtime wages. Under the FLSA, if an employee works more than
forty hours in one week, the employer must pay the employee for those overtime
hours at a rate of one and one-half times their regular rate of pay. 29 U.S.C. §
207(a)(1). A plaintiff may establish a prima facie case for unpaid overtime by showing
that (1) the defendant employed the plaintiff; (2) the defendant is covered by the
FLSA; (3) the plaintiff worked in excess of a 40 hour work week; and (4) the
defendant did not pay the plaintiff overtime wages. See Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1277 n.68 (11th Cir. 2008). However, the FLSA also
provides that “any employee employed in a bona fide executive, administrative, or
professional capacity” is exempt from minimum wage and maximum hour
requirements. 29 U.S.C. § 213(a)(1).
To determine if an employee is covered by the executive exemption, the Court
considers whether: (1) the employee is “[c]ompensated on a salary basis . . . at a rate
of not less than $684 per week”; 18 (2) the employee’s “primary duty is
management”; (3) the employee “customarily and regularly directs the work of two
18
At the time Plaintiffs were employed by MSB, the weekly salary threshold was $455. See 29
C.F.R. § 541.100 (2016).
Page 25 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 26 of 51
or more other employees”; and (4) the employee “has the authority to hire or fire
other employees or whose suggestions and recommendations as to the hiring, firing,
advancement, promotion or any other change of status of other employees are given
particular weight.” 29 C.F.R. § 541.100(a). The executive exemption is narrowly
construed, “and the employer shoulders the burden of establishing that it is entitled
to an exemption.” Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150,
1156 (11th Cir. 2008).
It is undisputed that Larry was employed by MSB; MSB is an employer
covered by the FLSA; Larry routinely worked well over forty hours per week; and
he was only compensated for an additional eight hours at his regular rate of pay for
work performed on a Saturday or Sunday. Accordingly, Larry has stated a prima facie
case for unpaid overtime wages under the FLSA.
Defendants argue that Larry was covered by the executive exemption and thus
not entitled to overtime under the FLSA. Plaintiffs argue that Defendants waived
the executive exemption when they failed to state this as an affirmative defense in
their Answer. While Defendants did not raise the executive exemption as an
affirmative defense, they did assert it in their Answer. (See doc. 29 at 3–6.) The
purpose of requiring a defendant to raise an affirmative defense is to provide notice
to the plaintiff. See, e.g., Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.
Page 26 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 27 of 51
1988). Here, Defendants adequately asserted the executive exemption in the body of
their Answer, thereby providing sufficient notice to Plaintiffs such that they would
not be prejudiced by Defendants raising this in their motion. Therefore, the Court
will consider in its analysis Defendants’ assertion that Larry was exempt from the
FLSA.
Defendants argue that Larry was properly categorized as an executive, thus
exempting him from the overtime provisions of the FLSA. It is undisputed that
Larry’s compensation was well above the minimum threshold. It is also undisputed
that Larry regularly directed the work of two or more employees, both as a foreman
and as a superintendent. Plaintiffs challenge the extent to which Larry’s input was
taken into consideration concerning hiring, firing, and compensation; however, this
assertion is supported only by a conclusory statement made by Larry, who lacked
personal knowledge as to the extent to which Defendants considered his input. 19
Whereas Plaintiffs’ assertion is conclusory and unsubstantiated, Defendants provide
accurate citations that support their assertion that Larry could and did make
suggestions with respect to hiring, firing, and the compensation of his crew;
19
Plaintiffs assert that “Larry was not allowed to make pay suggestions or decisions.” (Doc
112 at 4 ¶ 22.) For this assertion, Plaintiffs provide a single citation to a single paragraph in Larry’s
declaration in which he states “I have reviewed the foreign [sic] and declare under penalty of
perjury that it is truthful and correct.” (Doc. 102-1 ¶ 64.) However, nothing in Larry’s declaration
refers to whether MSB considered his input regarding compensation. Thus, stating he declares
under penalty of perjury that his declaration is truthful is meaningless in this context.
Page 27 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 28 of 51
therefore, this factor is deemed undisputed. The only factor remaining is whether
Larry’s primary duty was management. As to this factor, there is a genuine dispute
among the parties.
An employee’s “primary duty” is “the principal, main, major or most
important duty that the employee performs. Determination of an employee’s
primary duty must be based on all the facts of a particular case, with the major
emphasis
on
the
character
of
the
employee’s
job
as
a
whole.”
29 C.F.R. § 541.700(a). Factors to weigh when determining an employee’s primary
duty include: (1) “the relative importance of the exempt duties as compared with
other types of duties”; (2) “the amount of time spent performing exempt work”; (3)
“the employee’s relative freedom from direct supervision”; and (4) “the
relationship between the employee’s salary and the wages paid to other employees
for the kind of nonexempt work performed by the employee.” Id. While no one factor
is dispositive, a general guideline is that an employee who is performing exempt work
“more than 50 percent of the time” will likely satisfy the primary duty requirement
for the executive exemption. Id. § 541.700(b).
Here, there are questions of fact as to whether Larry’s primary duty was
management. It is undisputed that some of Larry’s responsibilities included
supervising a small crew of men; assigning work; ensuring the crew safely completed
Page 28 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 29 of 51
assignments; and completing paperwork. Defendants question, however, how many
of these managerial tasks Larry handled. Richard testifies that Larry was “not
capable of doing paperwork like we need done, documentation on the jobs, [and]
going to meetings.” (Doc. 76-3 at 425.)
It is undisputed that Larry spent time performing manual labor with his crew
on projects on which he was classified as either a foreman or a superintendent. While
laboring alongside his crew may not have been required, it does not change the fact
that Larry claims that most of his time was spent performing nonexempt work
alongside hourly employees. Defendants do not dispute this assertion.
Additionally, while Larry was responsible for supervising his crew, he also
“need[ed] supervision” by other superintendents and Shea. (Id.) Lastly, Defendants
have not addressed whether Larry’s compensation was different from the
compensation of nonexempt hourly employees. Weighing all of these factors, a
reasonable jury could conclude that Larry’s primary duty was not management. As
such, a reasonable jury could also conclude that Larry was misclassified as an exempt
employee and should be entitled to overtime wages. Accordingly, Defendants’
Motion for Summary Judgment is due to be denied on Count I.
Page 29 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 30 of 51
B.
Race Discrimination
Title VII prohibits, among other conduct, “discriminat[ion] against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). “[A]
plaintiff may use three different kinds of evidence of discriminatory intent: direct
evidence, circumstantial evidence or statistical evidence.” Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998). Title VII and § 1981 “have the same
requirements of proof and use the same analytical framework.” Id.
Absent direct evidence of racial discrimination, such as specific statements
made by the employer’s representatives, a plaintiff may demonstrate circumstantial
evidence of disparate treatment through the McDonnell Douglas burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Tex.
Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248 (1981).20 Under this framework, the
aggrieved employee creates a presumption of unlawful discrimination by first
establishing a prima facie case of discrimination. See Lewis v. City of Union City, 918
F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). The burden then shifts to the
20
“Direct evidence of discrimination would be evidence which, if believed, would prove the
existence of a fact without inference or presumption.” Carter v. City of Miami, 870 F.2d 578, 581–
82 (11th Cir. 1989). Because Plaintiffs have not offered any direct evidence of discrimination, the
Court addresses their claims under the standards applicable to circumstantial evidence of
discrimination. See Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010).
Page 30 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 31 of 51
employer “to articulate a legitimate, nondiscriminatory reason for its actions.” Id. at
1221 (citing Burdine, 450 U.S. at 253). If the employer proffers a legitimate,
nondiscriminatory reason, the burden returns to the employee to prove that the
employer’s reason is a pretext for unlawful discrimination. Crawford v. Carroll, 529
F.3d 961, 976 (11th Cir. 2008). Although the McDonnell Douglas framework is one
way of showing discriminatory intent, it is not the only way to show discriminatory
intent in a Title VII or § 1981 discrimination claim. See Smith v. Lockheed–Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “[T]he plaintiff will always survive
summary judgment if he presents circumstantial evidence that creates a triable issue
concerning the employer’s discriminatory intent.” Id.
1. Disparate Pay—Counts II, III, IV, V, VI, VII
Plaintiffs claim that they were paid less than Caucasian employees. To
establish a prima facie case for disparate treatment in compensation, a plaintiff must
show: (1) he is a member of a protected class; (2) he was qualified to receive higher
compensation; (3) similarly situated individuals outside his protected class received
higher compensation; and (4) he received lower compensation. Cooper v. S. Co., 390
F.3d 695, 735 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546
U.S. 454, 457 (2006). To satisfy the third prong of the prima facie case, the proffered
Page 31 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 32 of 51
comparator must be similarly situated to the plaintiff “in all material respects.” 21
Lewis, 918 F.3d at 1226. As the Eleventh Circuit has explained, “a valid comparison
will turn not on formal labels, but rather on substantive likenesses.” Id. at 1228.
While the precise “similarity” is “to be worked out on a case-by-case basis,” a
similarly situated comparator “will have engaged in the same basic conduct (or
misconduct) as the plaintiff”; “will have been subject to the same employment
policy”; “will ordinarily (although not invariably) have been under the jurisdiction
of the same supervisor”; and “will share the plaintiff’s employment or disciplinary
history.” Id. at 1227–28.
Plaintiffs have not established a prima facie case for discrimination in
compensation.22 It is undisputed that Plaintiffs are members of a protected class.
21
The Eleventh Circuit applies the “similarly situated in all material respects standard . . . to
all discrimination claims pursued under McDonnell Douglas.” Lewis, 918 F.3d at 1226 n.11 (internal
quotations omitted).
22
In this analysis, the Court will not address Plaintiffs’ allegations regarding discrepancies in
per diem pay. Plaintiffs rely solely on inadmissible evidence for their proposition that they were
paid less per diem than Caucasian employees. Specifically, Plaintiffs rely on inadmissible hearsay,
only citing to their own deposition testimony where they state that they heard that there were other
Caucasian employees who earned more than they did. Defendants provide evidence in admissible
form proving that Plaintiffs received the same per diem as similarly situated Caucasian employees
working on the same projects. Because Plaintiffs’ only evidence in support of their claim is
inadmissible hearsay, they have failed to create a genuine dispute of a material fact concerning their
per diem. See Pritchard v. S. Co. Servs., 92 F.3d 1130, 1136 (11th Cir. 1996) (stating that a plaintiff
may not “use inadmissible hearsay to defeat summary judgment when that hearsay will not be
reducible to admissible form at trial”). As such, the Court will only address Plaintiffs’ assertions
concerning their non-per diem wages.
Page 32 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 33 of 51
However, Plaintiffs have not met their burden to demonstrate that they were
qualified to receive higher compensation. Although it is not their burden, Defendants
present evidence that employees’ wages are determined, in part, based on their skill
level and certifications. Employees, like Plaintiffs, who lacked certain licenses and
certifications, were generally paid less than employees who were certified. Plaintiffs
argue that they were denied the opportunity to receive additional training and
certifications which impacted their compensation; however, this is belied by the
evidentiary record and is not supported by Plaintiffs’ citations.
Furthermore, Plaintiffs have failed to provide any meaningful comparators.
Plaintiffs’ proffered comparators are not similarly situated to them in “all material
respects.” Plaintiffs rely heavily on job classifications but not on substantive likeness.
Plaintiffs provide a laundry list of employees who were paid more than them but fail
to engage in a discussion of the meaningful characteristics of their comparators. For
example, Larry provides a list of nine employees classified as foremen and fourteen
employees classified as superintendents. A similarly situated comparator for Larry
would have similar job responsibilities, similar licenses or certifications, and a similar
employment history. Thus, a proper comparator would, at the very least, be either a
foreman or superintendent who lacked an NCCCO or CIC license, and who had no
other certifications from MSB. Larry does not identify a single comparator with these
Page 33 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 34 of 51
characteristics. Without more, Larry cannot establish a valid comparator, thus he has
not made out a prima facie case for disparate treatment in compensation.
Chester and Freddie have also failed to offer comparators who are similarly
situated to them in all material respects. As with Larry, Chester and Freddie do not
provide any meaningful comparators other than to allege generally that Caucasian
employees with the same job titles were paid more than they were. However, even
that statement is inconsistent with Plaintiffs’ evidence. Chester identifies twelve
Caucasian employees who earned more per hour than he did; however, Chester does
not address the fact that there is also a Caucasian employee who earned less per hour
than he did. Jamie R. Caudle, a Caucasian employee classified as “Crane Operator
1,” earned $18 per hour, compared with Chester, who earned $25 per hour. (Doc.
100-9 at 2.) Regardless, Chester provides no discussion of the meaningful
characteristics of any of the proffered comparators, such as whether they were
NCCCO or CIC licensed. The same holds true for Freddie, who relies solely on job
classifications to identify a single comparator.
Page 34 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 35 of 51
Plaintiffs fail to identify any comparators as part of their prima facie case for
disparate treatment in compensation, thus they have not met their burden at
summary judgment. 23
Even if Plaintiffs had established a prima facie case for disparate treatment in
compensation, Defendants proffered legitimate, nondiscriminatory reasons for any
hypothetical differences in compensation, including differences in skill sets of
employees; the presence or absence of licenses; and the types of projects to which
Plaintiffs were assigned. Defendants meet their burden of production with these
proffered nondiscriminatory reasons for differences in compensation. See Chapman
v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (“[T]he employer’s
burden is merely one of production; it ‘need not persuade the court that it was
actually motivated by the proffered reasons. It is sufficient if the defendant’s
evidence raises a genuine issue of fact as to whether it discriminated against the
plaintiff.’” (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.
1997)).
Since Defendants state legitimate, nondiscriminatory reasons for the
differences in compensation, the burden shifts back to Plaintiffs to demonstrate that
23
Although the burden is on Plaintiffs to demonstrate proper comparators, Defendants have
offered evidence demonstrating that Plaintiffs’ compensation was within the normal range for the
types of jobs on which they worked, and in some cases was higher than other employees with
similar classifications. (See doc. 76-21.)
Page 35 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 36 of 51
these reasons were pretextual. Plaintiffs have not argued that any of Defendants’
legitimate, nondiscriminatory reasons for differences in compensation were a pretext
for unlawful discrimination. Plaintiffs have failed to make this argument before the
Court and have failed to demonstrate a prima facie case for disparate treatment in
compensation. Accordingly, Defendants’ Motion for Summary Judgment is due to
be granted as to Counts II-VII.
2. Termination—Counts XIV, XV, XVI, XVII, XVIII, XIX
Plaintiffs also claim they were discriminated against based on race when
Defendants allegedly terminated them in April 2017. To establish a prima facie case
for wrongful termination, a plaintiff must show: (1) he is a member of a protected
class; (2) he was qualified for the position from which he was terminated; (3) he was
terminated; and (4) he was replaced by an individual outside of his protected class or
he was treated less favorably than similarly situated individuals outside his protected
class. See Maynard v. Bd. of Regents of the Div. of Univs. of the Fla. Dep’t of Educ., 342
F.3d 1281, 1289 (11th Cir. 2003).
It is undisputed that Plaintiffs are members of a protected class and that
Chester was qualified for the position from which he was allegedly terminated.
Defendants contend that Larry and Freddie were not qualified on the basis of their
Page 36 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 37 of 51
representations to the SSA. 24 Defendants also contest the characterization of
Plaintiffs’ separation from MSB as a termination. 25 The crux of Defendants’
argument, however, focuses on the fourth prong of Plaintiffs’ prima facie case, which
is dispositive.
Plaintiffs have failed to meet their burden of showing that they were replaced
by individuals outside of their protected class. Larry challenges Defendants’
assertion that Young, an African-American foreman, was one of Plaintiffs’
replacements, instead claiming that either Hughes, Dennis, or Gardner replaced
him, all of whom are Caucasian. However, the evidence to which Larry cites does
not support this proposition. 26 Taking Defendants’ assertion as true as it is the only
24
Defendants argue that because Larry and Freddie represented to the SSA that they were
disabled as of April 12, 2017, and March 30, 2017, respectively, they were no longer “qualified”
when they were sent home on April 11, 2017. Because the Court finds the fourth prong of the
applicable standard to be dispositive, the Court does not discuss whether Larry and Freddie were
qualified.
25
Because the Court finds the fourth prong of the applicable standard to be dispositive, the
Court does not discuss whether Plaintiffs were terminated.
26
Plaintiffs’ argument is contradictory. Plaintiffs assert that Gardner, Dennis, and Young
were not transferred to the Shea Residence project until after Plaintiffs filed EEOC charges and
informed Defendants that they would be pursing litigation, arguing that these employees were not
Plaintiffs’ replacements. This is not supported by Plaintiffs’ citations to the evidentiary record.
For example, the evidence to which they cite shows Young being transferred from the Shea
Residence to a new project on May 22, 2017, which occurred shortly after MSB received Plaintiffs’
litigation hold letter.
Implicitly acknowledging this, Larry subsequently argues that “Defendants replaced [him]
either with Hughes, Dennis, or Gardner.” (Doc. 112 at 27.) Plaintiffs ignore the fact that Young
was also transferred to the Shea Residence, because that would be dispositive on this prong of their
Page 37 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 38 of 51
statement supported by accurate citations to the evidentiary record, one of the men
who allegedly replaced Larry was also African-American. Thus, Larry has not met
his burden of demonstrating that his purported replacement was outside of his
protected class.
Likewise, Chester and Freddie do not identify anyone outside of their
protected class who replaced them. Chester and Freddie do not assert that either
Gardner, Dennis, or Young replaced them. Rather, they assert that a crew of
Caucasian and Hispanic employees replaced them on the jobsite. However, Chester
and Freddie lack personal knowledge as to whom their replacements were, and, as
previously stated, Plaintiffs fail to support their assertion with citations to the
evidentiary record. 27 Thus, Chester and Freddie have failed to demonstrate that they
were replaced by employees outside of their protected class.
Additionally, Plaintiffs have failed to demonstrate that they were treated less
favorably than similarly situated individuals outside their protected class as an
alternative method of establishing the fourth prong of their prima facie case. Plaintiffs
provide no comparators for Larry. Therefore, Larry has not demonstrated a prima
facie case for wrongful termination either based upon an assertion that he was
prima facie case. If Larry was replaced by an employee who is also African-American, then there is
no presumption of disparate treatment based on race and the claim fails.
27
See supra note 13.
Page 38 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 39 of 51
replaced by or treated less favorably than similarly situated individuals outside his
protected class.
Chester and Freddie have also failed to provide any comparators who are
similarly situated in all material respects. They provide a single comparator, Doug
Earl (“Earl”), a Caucasian employee, who they claim was late returning from lunch
on a different project and who was not disciplined for that action. However, Plaintiffs
fail to provide any other information relevant to the comparator analysis, such as
whether Earl worked under the same supervisor as Plaintiffs, and whether he had a
similar employment and disciplinary history to Plaintiffs. For example, Chester
testifies that he was fired for failing a drug test and also fired after a drill rig was
damaged. Plaintiffs also concede that they were routinely late to work. Defendants
claim that Plaintiffs repeatedly took too long for lunch. Whether Earl has a similar
history is relevant for the comparator analysis. While Plaintiffs do not need to offer
a comparator who is identical in every way, Plaintiffs have provided no information
about Earl other than to allege in deposition testimony that he is Caucasian and that
he was late returning from lunch on a single occasion on an unrelated job. This is
insufficient to demonstrate that Earl is similarly situated to Chester and Freddie in
all material respects; therefore, they have not stated a prima facie case for wrongful
termination.
Page 39 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 40 of 51
Even assuming, arguendo, that Plaintiffs could state a prima facie case for
discrimination, Defendants offer legitimate, nondiscriminatory reasons for
terminating Plaintiffs. Shea states that Plaintiffs routinely showed up late to work;
that they repeatedly took too long for their lunch breaks; and that he perceived a
noticeable decline in Plaintiffs’ overall work ethic. Having provided legitimate,
nondiscriminatory reasons for terminating Plaintiffs, the burden shifts back to
Plaintiffs to show that Defendants’ reasons were pretextual.
A “plaintiff can show pretext ‘either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.’” Kragor v.
Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Burdine, 450
U.S. at 256). In determining whether the proffered reason is pretextual, courts are
not in the “business of adjudging whether employment decisions are prudent or
fair,” but rather “whether unlawful discriminatory animus motivates a challenged
employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1361 (11th Cir. 1999).
Plaintiffs fail to demonstrate that Defendants’ legitimate, nondiscriminatory
reasons for terminating Plaintiffs were pretextual. Plaintiffs argue that MSB deviated
from its disciplinary policy when it terminated Plaintiffs. However, Plaintiffs have
Page 40 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 41 of 51
failed to show that this was the case. Plaintiffs rely upon MSB’s handbook that
describes a progressive discipline policy. What Plaintiffs fail to show, however, is
that this policy was applied differently to them than to other employees. While
Plaintiffs are correct that a reasonable jury could infer that Defendants’ reasons for
terminating them could be pretextual if MSB had a disciplinary policy that was
applied differently to Caucasians than to African-Americans, Plaintiffs have failed to
demonstrate such here.
Plaintiffs also argue that two comments made by Shea to Larry demonstrate
racial bias against African-Americans. However, Larry worked for MSB for over
thirty years, and over the course of that time, he recounts two offensive comments
made by Shea that were remote in time to his termination. This is insufficient to
demonstrate that Defendants’ reasons for terminating Plaintiffs were pretextual.
Additionally, Plaintiffs argue that Shea could not have believed that Freddie
and Chester returned late from lunch, but the only basis for this assertion is Larry’s
testimony in which he states he told Shea that Freddie and Chester were not late.
This is insufficient to demonstrate that Shea could not have had a sincere belief that
Freddie and Chester were late returning from lunch. Even if Plaintiffs had stated a
prima facie case for wrongful termination, they have failed to show that Defendants’
legitimate, nondiscriminatory reasons for terminating Plaintiffs were pretextual.
Page 41 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 42 of 51
Plaintiffs attempt to argue in the alternative that they have presented a
“convincing mosaic” of evidence to support that they were terminated from MSB
because of their race. “A triable issue of fact exists if the record, viewed in a light
most favorable to the plaintiff, presents ‘a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.’” Smith, 644 F.3d at 1328 (footnote omitted) (quoting Silverman v.
Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011)). However, the majority of Plaintiffs’
allegations they rely upon to create a “convincing mosaic” are unsupported by the
evidentiary record to which they cite. The only allegations raised by Plaintiffs in this
argument that are supported by the evidence concern statements Dubberly allegedly
made to Plaintiffs. However, Dubberly did not tell Plaintiffs to leave the Shea
Residence nor was he responsible for their termination. If true, some of Plaintiffs’
allegations suggest that MSB’s worksites were run in a racially insensitive manner.
Racial insensitivity does not, however, prove racial discrimination. In sum, Plaintiffs
have not provided evidence that creates a “convincing mosaic” of discrimination
such that they can survive summary judgment. Accordingly, Defendants’ Motion for
Summary Judgment is due to be granted as to Counts XIV–XIX.
Page 42 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 43 of 51
C.
Hostile Work Environment—Counts VIII, IX, X, XI, XII, XIII
Plaintiffs bring hostile work environment claims based on alleged racial
harassment and disparate treatment. A separate violation of Title VII and § 1981
occurs when “the workplace is permeated with [racially] discriminatory
intimidation, ridicule, and insult[ ] that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012)
(alterations in original). An employer can be held liable if the employee proves that:
(1) he is a member of a protected class; (2) he was subjected to unwelcome
harassment; (3) the harassment was based on the individual’s membership in the
protected class; (4) it was “severe or pervasive” enough to alter the terms and
conditions of employment and create a hostile environment; and (5) the employer is
responsible for this environment either directly or vicariously. Id. To meet the fourth
element, the plaintiff must show that the conduct is both subjectively and objectively
“severe or pervasive.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999).
In evaluating the objective severity of the harassment, the court considers: “(1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and (4) whether
the conduct unreasonably interferes with the employee’s job performance.” Adams
Page 43 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 44 of 51
v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250–51 (11th Cir. 2014) (quoting Mendoza,
195 F.3d at 1246).
At issue here is whether the alleged harassment to which Plaintiffs were
subjected was objectively severe or pervasive enough to alter the terms and
conditions of employment. Plaintiffs claim they were subjected to a hostile work
environment based on the following incidents that occurred over decades of
employment at MSB: three incidents involving racial slurs (the “nigger rich”
comment; the “strike against him” comment; and the “black ass” comment); being
referred to as “boys”; being told to pick up sticks on jobsites while Caucasian
workers stood by; hearing racially offensive jokes; and having a general awareness
that the term “nigger” was used daily, albeit not directly at Plaintiffs. 28
Construing the evidence in the light most favorable to Plaintiffs, a reasonable
person in their position would not perceive the alleged harassment as sufficiently
severe or pervasive as to alter the terms or conditions of their employment. Plaintiffs
describe isolated instances of racially offensive comments and behavior that
occurred over decades of employment. With the exception of the “nigger rich”
comment directed toward Larry, Plaintiffs testify that they never heard “nigger”
28
Plaintiffs also argue that Caucasian employees used profanity on job sites that was directed
toward African-American employees, and not Caucasian employees. Plaintiffs contradict this
assertion in their deposition testimony, admitting that profane language was routinely used on job
sites regardless of race.
Page 44 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 45 of 51
used around them. Although the term “nigger” is severe, again, Plaintiffs never
heard it used, nor was it directly threatening to them. The Court recognizes that
using the term “boys” to refer to African-Americans can be objectively severe or
pervasive; however, Defendants contend that all employees are referred to as
“boys,” regardless of race.
Each individual incident described by Plaintiffs would not be enough on its
own to demonstrate the alleged harassment was objectively severe or pervasive.
Even considering Plaintiffs’ allegations in their totality, Plaintiffs have not
demonstrated that these incidents altered the terms or conditions of their
employment. Not only did Plaintiffs continue to work for MSB for decades, but
Plaintiffs make no argument that any of these incidents unreasonably interfered with
their job performance. Even when construing the evidence in the light most favorable
to Plaintiffs, none of the evidence is sufficient to demonstrate they faced harassment
that was severe or pervasive enough to alter the terms and conditions of their
employment. See, e.g., McCann v. Tillman, 526 F.3d 1370, 1378–79 (11th Cir. 2008)
(finding that a few racially insensitive comments over the course of several years
were “too sporadic and isolated to establish that [the] employers’ conduct was so
objectively severe or pervasive as to alter the terms and conditions
Page 45 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 46 of 51
of . . . employment”). Accordingly, Defendants’ Motion for Summary Judgment is
due to be granted as to Counts VIII-XIII.
D.
Age Discrimination—Counts XX, XXI, XXII
Plaintiffs also allege that they were terminated because of their age in violation
of the ADEA. The ADEA prohibits discrimination “against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). ADEA claims that rely
upon circumstantial evidence are analyzed using the McDonnell Douglas burdenshifting framework. See Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th
Cir. 2015).
To establish a prima facie case of age discrimination, the plaintiff must
demonstrate that: “(1) he was a member of the protected group between the age of
forty and seventy; (2) he was subject to an adverse employment action; (3) a
substantially younger person filled the position from which he was discharged; and
(4) he was qualified to do the job from which he was discharged.” Id. The Eleventh
Circuit has found that the third requirement may be satisfied by demonstrating that
the plaintiff was replaced by an employee who was only several years younger than
the plaintiff. See, e.g., Damon, 196 F.3d at 1360 (finding that a forty-two year old
plaintiff who was replaced by a thirty-seven year old employee met the ADEA’s
Page 46 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 47 of 51
“substantially younger” replacement requirement); Carter v. DecisionOne Corp., 122
F.3d 997, 1003 (11th Cir. 1997) (per curiam) (finding that a three-year age difference
between the plaintiff and her replacement satisfied the ADEA’s “substantially
younger” requirement). See also Turlington v. Atlanta Gas Light Co., 135 F.3d 1428,
1433 (11th Cir. 1998) (stating that a plaintiff “need not show that a person outside of
the plaintiff’s [protected] class” replaced the plaintiff).
Once a plaintiff establishes a prima facie case of age discrimination, the burden
shifts to the defendant to provide a legitimate, nondiscriminatory reason for the
plaintiff’s termination. Liebman, 808 F.3d at 1298. Then, the burden shifts back to
the plaintiff to show that the proffered reason is pretextual. Id. The plaintiff has the
“burden of persuasion . . . to proffer evidence sufficient to permit a reasonable
factfinder to conclude that the discriminatory animus was the ‘but-for’ cause of the
adverse employment action.” Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir.
2013) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)).
It is undisputed that Plaintiffs are members of a protected group (over forty
years of age) and that they were subjected to an adverse employment action.29 At
issue is whether Plaintiffs’ replacements were “substantially younger” to support
29
Although Defendants dispute the nature of Plaintiffs’ separation from MSB, they do not
dispute that Plaintiffs suffered an adverse employment action for the purposes of Plaintiffs’ ADEA
claim. (See Doc. 75 at 41.)
Page 47 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 48 of 51
an inference of age discrimination, and whether Plaintiffs were qualified. At the time
of their termination, Larry was fifty-nine, Chester was fifty-six, and Freddie was
fifty-two. Plaintiffs argue that they were replaced by men in their twenties and
thirties, although this is not supported by their citations to the evidentiary record.
Defendants state that the three employees who replaced Plaintiffs were fifty-four,
forty-six, and forty-four years old. It is not clear which employee replaced which
Plaintiff, thus it is possible that Freddie, who was fifty-two, was replaced by an older
employee, who was fifty-four. Regardless, the Court assumes, arguendo, that
Plaintiffs collectively were replaced by “substantially younger” men, thus they
satisfy this portion of their prima facie case.
The parties do not dispute that Chester was qualified, thus Chester has stated
a prima facie case for age discrimination. Defendants argue that Larry and Freddie
should be estopped from claiming that they were qualified for their positions because
of their representations to the SSA, and the SSA’s determination that they were
totally disabled. Defendants cite to a Second Circuit decision for the proposition that
a plaintiff may not make a representation to the SSA of total disability, and then
“perform an about-face and assert that [he] is a qualified individual who is capable
of working.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 47 (2d Cir. 2015)
Page 48 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 49 of 51
(quoting Lee v. City of Salem, 259 F.3d 667, 674 (7th Cir. 2001)). 30 Rather, a plaintiff
“must demonstrate that the assertion [of total disability] was . . . consistent with
[his] ability to perform the essential functions of [his] job.” Id. (quoting Lee, 259 F.3d
at 674). In Robinson, the plaintiff was terminated from her position on September 23,
2010. Id. at 43. She subsequently received disability benefits after a determination
that she was disabled as of June 14, 2010. Id. The plaintiff argued that although her
date of disability effectively predated her termination, because she worked up until
her termination, she was qualified at the time she was fired. Id. at 47. The court found
this to be insufficient to explain the contradiction between the claim that she was
both totally disabled and also qualified. Id.
Unlike the plaintiff in Robinson, Larry did not represent that he was disabled
until one day after he was terminated. Thus, at the time of termination, Larry can
represent that he was qualified for his job; therefore, Larry states a prima facie case
for age discrimination.
However, like the plaintiff in Robinson, Freddie represented to the SSA that
he was disabled as of March 30, 2017 and was not sent home until April 11, 2017,
arguing that he must have been qualified because he continued working past the date
by which the SSA determined he was disabled. This does not explain the
30
While this case is not binding on the Court, it is persuasive.
Page 49 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 50 of 51
contradiction between Freddie’s position that he was both totally disabled and also
qualified. Thus, he cannot state a prima facie case for age discrimination.
Since Larry and Chester state prima facie cases for age discrimination, and
assuming, arguendo, that Freddie does as well, the burden of production shifts to
Defendants, who offer the same legitimate, nondiscriminatory reasons for
terminating Plaintiffs as stated in their race discrimination claims. Thus, the burden
shifts back to Plaintiffs to show that Defendants’ reasons were pretextual.
Plaintiffs have offered no evidence to suggest that Defendants’ legitimate,
nondiscriminatory reasons for terminating their employment were pretextual for
terminating them because of their age. Plaintiffs incorporate by reference their
pretext analysis for their race discrimination claims, which focuses on disparate
treatment between African-Americans and Caucasians.31 Even if this analysis was
relevant to their age discrimination claims, Plaintiffs have proffered nothing to
suggest that their age motivated Defendants’ actions. Thus, Plaintiffs cannot
demonstrate pretext. Accordingly, Defendants’ Motion for Summary Judgment is
due to granted on Counts XX-XXII.
31
See supra Part V.B(2).
Page 50 of 51
Case 2:18-cv-00248-LSC Document 123 Filed 11/23/20 Page 51 of 51
VI.
Conclusion
For the reasons stated above, Defendants’ Motion for Summary Judgment
(doc. 75) is due to be GRANTED as to Counts II through XXII and DENIED as to
Count I. Defendants’ Motion to Strike (doc. 115) is due to be GRANTED IN PART
and DENIED IN PART and TERMINATED AS MOOT IN PART. Plaintiff’s
Motion to Strike (doc. 117) is due to be DENIED. An order consistent with this
opinion will be entered contemporaneously herewith.
DONE and ORDERED on November 23, 2020.
_____________________________
L. Scott Coogler
United States District Judge
202892
Page 51 of 51
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?