Cox v. Tennesee Valley Authority et al

Filing 66

MEMORANDUM OPINION, as set out, re dft's Motion for Summary Judgment 53 . Signed by Judge Sharon Lovelace Blackburn on 3/31/14. (CTS, )

FILED
2014 Mar-31 AM 11:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES DAVID COX,
Plaintiff,
v.
DAY & ZIMMERMANN NPS, INC.,
Defendant.

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CASE NO. 5:11-CV-2559-SLB

MEMORANDUM OPINION
This case is before the court on Motion for Summary Judgment filed by defendant
Day & Zimmerman NPS [DZ]. (Doc. 53.)1 Plaintiff James David Cox alleges that
defendant, his former employer, discriminated against him because of his age in violation of
federal law. Upon consideration of the Motion, the supporting and opposing memoranda,
arguments of counsel, and the relevant law, the court finds that defendant’s Motion for
Summary Judgment, (doc. 53), is due to be denied.
I. SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment
is appropriate “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.” Fed. R. Civ. P.

1

Reference to a document number, (“Doc. ___”), refers to the number assigned to each
document as it is filed in the court’s record.

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Waddell v. Valley
Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). The moving party
bears the initial burden of demonstrating the absence of a genuine issue of material fact and
that it is therefore entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323;
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has
met its burden, Rule 56(e) requires that the nonmoving party go beyond the pleadings and
show that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Celotex, 477
U.S. at 324-25. “There is a genuine issue of material fact if the nonmoving party has
produced evidence such that a reasonable factfinder could return a verdict in its favor.”
Waddell, 276 F.3d at 1279; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. Determining credibility, weighing evidence, and
drawing legitimate inferences from the facts are all functions of the jury, see id. at 255;
therefore, the court must accept as true all evidence favoring the nonmoving party and draw
all justifiable inferences from the evidence in that party’s favor.

Nevertheless, the

nonmoving party need not be given the benefit of every inference but only of every
reasonable inference. See Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir.
1988).

2

II. STATEMENT OF FACTS
A.

GENERAL BACKGROUND
Browns Ferry Nuclear Plant is the largest boiling-water reactor nuclear power station

in the United States. (Melvin Depo. [docs. 55-2 and doc. 55-3] at 61.) Tennessee Valley
Authority [TVA] operates the station and supplements its labor force by retaining
contractors, such as defendant DZ, to perform portions of the plant’s maintenance work.
(Melvin Depo. at 65.) DZ is a power maintenance contractor for nuclear, fossil, and
hydroelectric power plants in the United States, including Browns Ferry. (Doc. 36 ¶ 6.)
Plaintiff James David Cox began working with TVA in 1969 as a Laborer. (Cox Depo. [doc.
55-7] at 10-11.) He remained employed with TVA for approximately 35 years, eventually
attaining the position of Mechanical Production Manager in Maintenance, until he retired in
December 2004. (Id. at 18-21.) After retiring, Cox has continued to work periodically at
Browns Ferry under various TVA subcontractors. (Doc. 23 ¶ 11.)
The Project Maintenance and Modifications Agreement [PMMA] between TVA and
its contractors, including DZ, covers and describes general personnel matters. (Doc. 55-5;
Collins Depo. II [doc. 55-6] at 41.) Under the PMMA, DZ may hire employees at Browns
Ferry as either “augmented” or “task-managed” workers. (Doc. 55-5 at 3.) “Augmented”
workers, although technically DZ’s employees, are supervised by and receive their work
assignments from TVA managers or supervisors; “task-managed” workers are supervised by

3

and receive their work assignments from DZ contractors or supervisors. (Id.; Melvin Depo.
at 77-79; Collins Depo. II at 42.)
B.

FIRST PERIOD OF EMPLOYMENT WITH DZ – CHECK VALVE
INSPECTIONS
DZ hired Cox as a Task Manager to supervise modifications for the Unit 3 refueling

outage in February 2010. (Cox Depo. at 39.) Although classified as a Task Manager, Cox’s
assignment was to perform “check valve inspections.” (Doc. 60-22 ¶ 2.) He supervised a
team of craftsmen assigned to inspect valves for fitness and durability and to ensure that
those inspections were accurately documented. (Id. ¶ 4.) He directed some of the
craftsmen’s work, but they did not report to him. (Cox Depo. at 39.)
At some point, Ron Rogers, TVA’s Projects Maintenance and Modifications Manager,
instructed Cox to review all work orders relating to the installation of new valves to ensure
that they complied with TVA’s valve packing procedure. (Doc. 60-22 ¶ 5.) One such work
order, WO 02-003234-000, involved the installation of new replacement valves in the Unit
3 reactor’s heat vent. (Id.) Cox reviewed this work order and noticed that the work package
did not include valve packing instructions. (Id. ¶ 6.) Cox added TVA procedure MCI-0-000PCK001 (“PCK001”) to the work package, which describes “the generic maintenance
instructions for valve packing.” (Id.; doc. 60-34 at 3; see generally doc. 60-29.)
Section 7.7 of PCK001 describes the procedure for “packing adjustment.” (Doc. 6029 at 13-15.) Section 7.7 directs the person responsible for replacing a valve to “cycle” the
valve, a process that consolidates the valve’s packing material prior to installation. (Id. at
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13-14; doc. 60-22 ¶¶ 7, 11.) Often this process requires adding packing or re-packing a
valve. (Doc. 60-22 ¶ 7.) However, the work package did not include a valve packing data
sheet for the Unit 3 replacement valves. (Id. ¶ 8; Cox Depo. at 102.) A data sheet contains
the valve packing specifications, which includes a valve’s torque value, packing materials,
and a packing configuration. (Doc. 60-22 ¶¶ 7-8.) This information is necessary before
packing or re-packing a valve properly. (Id. ¶ 8.)
Cox consulted TVA’s Maintenance Valve Packing Specialist to obtain the valve
packing specifications for the Unit 3 replacement valves. (Id. ¶ 8; Cox Depo. at 102-03.)
The valve packing specifications were not in the Browns Ferry valve packing database, and
TVA contacted Flowserve, the manufacturer of the valves. (Id.) However, Flowserve did
not provide the specifications. (Id.) Cox then consulted with a TVA Projects Maintenance
and Modifications Manager, the DZ Site Manager, and the DZ Site Superintendent; “they all
agreed to only verify that the valves had packing and [that] the packing be inspected in
accordance with the valve packing procedure.” (Doc. 60-22 at ¶ 8.) Cox had the supervisor
inspect the valve to see if it had packing or needed consolidating. (Cox Depo. at 104.)
Cox subsequently marked Section 7.7[2] as “N/A” or “not applicable,” as directed by
Section 7.7[1] of PCK001, which requires that Section 7.7[2] of the packing adjustment
procedure be omitted if the torque value is unknown. (Doc. 60-22 ¶ 9; doc. 60-29 at 5.) Cox
further marked Sections 7.7[3.1]-[3.5] and 7.7[5]-[6], and their corresponding “Quality
Control hold points,” as “N/A” or “not applicable” because, according to Cox, “each of these

5

sections required knowledge of the torque values for the valve in order to complete these
tasks and that information was unavailable.” (Doc. 60-22 ¶ 9; doc. 60-29 at 6; Cox Depo.
at 103.) Cox testified that “if you don’t perform a step, it’s a practice to [mark] N/A.” (Cox
Depo. at 101.) Sections 7.7[3.1]-[3.5] contained the procedure for cycling the valves and
consolidating the valve packing material therein. (Doc. 60-29 at 5-6.) Sections 7.7[3.4] and
[3.5] direct the packer to torque and repeat, explicitly directing the person filling out the form
to mark “N/A” otherwise. (Id. at 6.) Section 7.7[5] directs that person to “[r]ecord final
torque applied. Otherwise, N/A.” (Id. at 7.) Cox did not install or inspect the Unit 3
replacement valves. (Cox Depo. at 78-80; doc. 60-22 ¶ 12.) The supervisor responsible for
the project was Charles Campbell. (Doc. 60-22 ¶ 12; doc. 60-26 at 5.)
This period of Cox’s employment lasted for the rest of the refueling outage and ended
in May 2010. (Cox Depo. at 39.)
C. SECOND PERIOD OF EMPLOYMENT WITH DZ – FIRE PROTECTION
PROJECT
The following month, on June 10, 2010, DZ rehired Cox to supervise roofing
contractors at Browns Ferry. (Id. at 40; doc. 23 ¶ 15.) In July 2010, Cox was reassigned to
supervise the 95-002 Fire Protection Project inside the plant’s protected area. (Cox Depo.
at 40-41; doc. 23 ¶ 15.) This project involved replacing and refurbishing pipes and valves
associated with the plant’s fire protection system. (Cox Depo. at 40-41, 56.)
On July 26, 2010, DZ hired John Melvin as Site Manager at Brown Ferry. (Melvin
Depo. at 59, 64.) Melvin was thirty-eight years old. (Id. at 12.) As Site Manager, Melvin
6

supervised all DZ projects and employees at Browns Ferry, and he had authority to discipline
DZ employees for work rule violations. (Id. at 64, 87-88, 115.)

Melvin used his

“management judgment” to apply the DZ “job site work rules” in determining the severity
of the discipline to be imposed. (Id. at 115-16, 205-06.) He testified that he did not have,
and did not exercise, discretion to stray from the job site work rules in disciplining
employees. (Id. at 125-26.)
Shortly after Melvin arrived at Browns Ferry, Cox introduced himself to Melvin and
informed Melvin that he had retired from TVA in 2004, that he had been performing
contracting work at Browns Ferry since his retirement, and that he was willing to help Melvin
in any way possible. (Cox Depo. at 56-57.) Melvin told plaintiff that “the old station
personnel . . . were the problem” for him and DZ. (Id. at 57 [emphasis added].) Melvin later
told DZ supervisor Jack Watson (“Watson”), who was sixty-five at the time, that he “found
that old station hands did not conform to the company’s expectations.” (Watson Depo. [doc.
60-3] at 23-24 [emphasis added].) Watson testified that he asked Melvin what expected
qualities he was missing. (Id.) Melvin simply turned around and walked away. (Id.)
Watson also testified that on another occasion Melvin asked him, “Watson, you got a
problem working for me?” (Id. at 24.) Watson replied, “No, why?;” to which Melvin said,
“Your age.” (Id.) Watson testified he asked Melvin, “. . . “I’m not but sixty-five, have you
got a problem with me working for you?” (Id.) Melvin did not answer, but he “turned red
as [a] Coke can” and walked away. (Id.)

7

On August 12, 2010, a forced outage2 occurred on the Unit 3 reactor at Browns Ferry
due to a significant increase in unidentified drywell leakage. (Doc. 55-16 at 1.) The forced
outage lasted for three days. (Doc. 60-22 ¶ 21.) An inspection of the Unit 3 reactor
identified the “source of the leak to be leaking packing gland on a manual reactor head vent
line drain valve BFN-3-VTV-010-0502,” a Unit 3 replacement valve installed through WO
02-003234-000. (See doc. 60-34 at 3; doc. 60-29 at 4). This was the project on which Cox
had been responsible for ensuring the valve installation complied with TVA’s valve packing
procedures. TVA launched an investigation into whether the incident constituted a “human
performance event” – i.e., whether somebody had made an error in procedure – and
completed a Performance Evaluation Report (“PER”), which determined that the leak was
a “human performance event” and attributed fault to an unnamed DZ valve technician. (See
Melvin Depo. at 204; doc. 55-15.) TVA rates PERs on an alphabetical scale: an A-PER is
the most severe and a D-PER is the least severe. (Melvin Depo. at 208-09.) TVA rated the
PER to the failure of valve 10-502 as a B-PER. (Doc. 55-15.) This was the only time during
Melvin’s two-year tenure that any of the three power units was shut down due to work
performed by DZ. (Melvin Depo. at 217-18.)
Patrick Guevel, TVA’s Modifications Manager, investigated the B-PER and
completed a Quick Human Error Analysis Tool [QHEAT], which gathers facts, develops a

2

An “outage” is the term used for the shutdown of a nuclear power unit. (Doc. 60-4

at 34.)
8

time line of events, defines the responsible individuals, and sets forth their perceptions and
actions. (Cox Depo. at 107-08; Melvin Depo. at 206, 213, 229; doc. 60-34 at 1 & 8.) Guevel
interviewed Cox as part of his investigation. (Cox Depo. at 83; doc. 60-22 ¶ 21.) Cox
explained that the work package for the Unit 3 replacement valves did not contain valve
packing instructions or a valve packing data sheet and that he added PCK-001 into the work
package. (Doc. 60-22 ¶ 21.) Guevel told Cox that he was “the only one in the chain of
command who had done what they were supposed to do.” (Id.)
However, Guevel reached a different conclusion in the QHEAT, attributing the
valve’s failure to the actions taken by Cox. (See generally doc. 60-34.) According to
Guevel’s QHEAT –
The investigation determined that the valve assembly was prefabricated prior
to the 2006 refueling outage, but not installed. The investigation also found
that the packing was not properly consolidated when the valve was installed
in the March 2010 refueling outage.
A valve technician added Valve Packing Procedure MCI-0-000-PCK001 into
the work order package but violated procedure by inappropriately marking
the packing consolidation and hold steps as N/A.
(Doc. 60-34 at 7.) Also, the QHEAT stated, “Consolidation steps MCI-0-000-PCK001 refer
to the use of a specific torque value in performing the steps,” and that the valve technician
incorrectly assumed that the step for consolidating the valve could not be performed without
knowledge of the valve’s torque value. (Id.) However, the QHEAT noted that PCK001 is
unclear on the requirements for “new valves/new packing material” and that, “[e]ven after
the procedure was added by [the] valve technician[,] it was not followed.” (Id. at 5.)
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Although he was not named in the QHEAT and he was not a valve technician, Cox testified
that he was the individual who added PCK001 to the work package investigated by Guevel
and that he was the one that marked the N/As on the work order. (See Cox Depo. at 78-79,
103-104, 109; see also doc. 60-22 ¶ 21.)
On September 23, 2010, Guevel emailed Melvin the QHEAT and informed Melvin
that it would result in a “Site Clock Reset.” (Doc. 55-15.) Clocks at the plant measure how
much time has elapsed since the last procedure violation, injury, or human performance
event. (Melvin Depo. at 206-07.) Different crews and departments have different clocks,
but when the event or violation is the most severe, the site clock—the clock for the entire
site—resets to zero. (Id.) TVA management must approve of the decision to reset a clock.
(Id. at 207-208.)

On September 24, 2010, after receiving the QHEAT, supporting

documentation, and news of the Site Clock Reset, Melvin terminated Cox. Melvin testified
that he informed Cox that he was being terminated for failure to follow procedure. (Melvin
Depo. at 259; see doc. 60-17 at 1.) Cox was sixty-two years old at the time. (Cox Depo. at
8.) Melvin also terminated Watson on the same day for reasons unrelated to the Unit 3
reactor valve. (Id. at 67.)
Cox testified that, when he and Watson left, the major work on the Fire Protection
Project had been completed, but he had expected a crew to remain on the project to tie up
loose ends. (Cox Depo. at 73-74.) Cox was told that Josh Normand became supervisor over

10

the Fire Protection Project, followed by Jason Hovater.3 (Id. at 73.) At the time, Normand
was at least six years younger than Cox, (Melvin Depo. at 167), and Hovater was in his early
forties, (see doc. 60-36 at 4). In an email sent to TVA on the day of Cox’s termination,
Melvin stated, “Ryan Collins is working with Brooks [Patterson] to back fill the supervisory
slots left from Dave Cox and Jack Watson.” (Doc. 60-19 at 1; Melvin Depo. at 314.)
Patterson was “the task manager put in place [by TVA] to assist with the project,” (Melvin
Depo. at 105), and was estimated to be in his early forties, (id. at 309-310). Melvin testified
that he could not say who “solely” replaced Cox and Watson, but “it was probably Jeff
Armstrong and Ryan Collins.” (Id. at 313.) Collins was thirty-five at the time. (Collins
Depo. I [doc. 60-20] at 13.) Jeff Armstrong was in his “mid to late fifties,” and at least six
years younger than Cox. (See Melvin Depo. at 181.) Melvin also testified that there were
numerous supervisors on site and that he thought Jim Davenport took over a portion of Cox
and Watson’s work. (Id. at 324.) Davenport was sixty-five at the time of Melvin’s
deposition. (Id.) Melvin testified that DZ did not have a “record-keeping process of who is
assigned where.” (Id. at 325.) In any case, he testified that Cox’s position was not
eliminated and that someone had to fill his role. (Id. at 314-15.)

3

The record contains references to Hovater as “Hovator.” For purposes of this
opinion, the court will use “Hovater,” which appears to be the correct spelling. (See doc. 6036 at 2.)
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D. BYRON BAKER
At the time relevant to this action, Byron Baker was an electrical supervisor between
40 and 50 years old. (Collins Depo. II at 95.) Baker’s conduct came under scrutiny after his
performance on a project allegedly resulted in a site clock reset. (Id.) The Quality Assurance
Oversight [QAO] Report stated:
A significant human performance situation occurred this report period with the
2A Battery Bank Charger where workers tasked with pulling a breaker
discovered it was bolted to the bus (contrary to the work order language) and
did not stop immediately. Additionally, there were related clearance boundary
and clearance confirmation issues associated with the same task; this led to a
discretionary site clock reset.
(Doc. 61-3 at 44.) This incident occurred on or about December 21, 2010, while Melvin was
Site Manager. (See doc. 60-33 at 19; Melvin Depo. at 59.) “It was stated in the QHEAT that
the Primary Authorized Employee’s understanding of his role in verifying the adequacy of
the clearance did not meet expectations for safe job procedures (SR 300163).” (Id. at 45.)
Baker was the only employee Collins identified as having been involved in this event.
(Collins Depo. II at 95.) The PER4 prepared by TVA stated:

4

Testimony does not explicitly link this PER to the event described in the QAO
Report. However, a number of clues make it reasonable to conclude that they address and
describe the same event. When Collins was referring in his deposition to the document
labeled DZ-45064, (see doc. 61-3 at 44), he stated that “the Alpha Battery Bank Charger
work was being performed by one of [his] electrical supervisors . . . Byron Baker,” (Collins
Depo. II at 94-95). The QAO Report credits the maintenance workers for “perform[ing]
voltage checks and discover[ing] the presence of 480 volts,” (doc. 61-3 at 45), and PER
300866 states that “the craft observed voltage [480 V] on the breaker [2-BKR-248-0002AB]
when performing live-dead-live checks.” PER 300866 describes an event that occurred on
December 21, 2010. (Doc. 60-33 at 1.) A draft version of the Report suggests that the
12

While working under clearance . . . the craft observed voltage on the breaker
when performing live-dead-live checks. . . . The work was stopped and
placed in a safe condition. The clearance was revised to adequately remove
all power from the breaker being worked. . . . The investigation into the event
revealed the isolation boundary for the work being performed was not
adequate. The clearance was intentionally written so as to not tag the alternate
power supply . . . . A poorly written clearance request led to the Operations
Responsible Employee [Baker]5 making an assumption on the work
boundaries. The ensuing clearance would have been adequate for the assumed
work but did not adequately cover the actual work scope. . . . The
Responsible Employee (RE) [Baker] did not follow the procedural guidance
in NPG-SPP-10.2 when the RE accepted the poor documentation in the
clearance request. . . . [Contributing cause number two:] Clearance writer
[apparently, someone different than the RE] did not “Stop When Unsure.” The
clearance writer/reviewer did not fully understand the scope of the work and
did not stop to gain a clear understanding; an assumption was made based on
past experiences instead of contacting the Maintenance Organization/Planning
to clarify what an acceptable clearance boundary would be.
(Doc. 60-33 at 20.) Under the “Extent of Condition/Cause,” the Report stated, “Any error
within the clearance system degrades the confidence of our ability to safeguard the safety of

service request that initiated the event was issued on December 20, 2010. (Doc. 60-20 at
112; Melvin Depo. at 226.) Finally, the QAO Report states: “It was stated in the QHEAT
that the Primary Authorized Employee’s understanding of his role in verifying the adequacy
of the clearance did not meet expectations for safe job procedures.” (Doc. 61-3 at 45.) This
language is echoed in PER 300866: “The evaluation was conducted because of an
inadequate clearance boundary. . . . CC-1: The PAE [primary authorized employee] assumed
the clearance was adequate.” (Doc. 60-33 at 20.)
5

One of a series of identical write-ups lists “William J. Baker” as the responsible
employee. (Doc. 60-33 at 19.) On this PER, Michelle Nunley is listed as the Supervisor and
as the Department Manager. (Id. at 21.) However, another in the series lists Patrick Derriso
as the “Responsible Employee.” (Id. at 2-3.) In that write-up, Timothy Boland is listed as
the Supervisor and “William J. Baker” is listed as the “Department Manager.” (See id.) The
court assumes that “William J. Baker” is Byron Baker, pursuant to Collins’s testimony that
the individual identified as working on the Alpha Battery Bank Charger was Byron Baker.
(Collins Depo. II at 95.)
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the workers.” (Id. at 21.) The PER was rated level B. (Id. at 20.) Baker is still employed
with DZ. (Collins Depo. II at 95.)
III. ANALYSIS
Plaintiff claims defendant terminated him in violation of the Age Discrimination in
Employment Act [ADEA], which prohibits certain employers from discriminating against
employees “because of [their] age.” 29 U.S.C. § 623(a)(1). In the absence of direct evidence
of discrimination, see, e.g., Earley v. Champion International Corp., 907 F.2d 1077, 1081
(11th Cir. 1990) (“Fire Earley—he is too old”), these cases are typically analyzed using the
McDonnell Douglas burden-shifting method, Chapman v. AI Transport, 229 F.3d 1012, 1024
(11th Cir. 2000). Under McDonnell Douglas, a plaintiff must establish a prima facie case
of age discrimination, which shifts the burden to the defendant to put forth a legitimate, nondiscriminatory reason for the adverse action. Id. If the defendant does so, the burden shifts
back to the plaintiff to show that the reason is pretext. Id.
Defendant points to Stanfield v. Answering Service, Inc., 867 F.2d 1290 (11th Cir.
1989), which states that a plaintiff can show a prima facie case by proving that “(1) plaintiff
was a member of a protected group, (2) plaintiff was discharged, (3) plaintiff was replaced
with a person outside the protected group,6 and (4) plaintiff was qualified to do the job.” Id.

6

“Outside the protected group,” language drawn from McDonnell Douglas, is dated
in light of O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996). As will
be explained, what matters is how much younger the replacement was, not whether the
replacement was in the protected class (individuals over 40).
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at 1293 (emphasis and footnote added). Defendant argues that plaintiff cannot prove he was
replaced by someone outside his protected class:
First, no one was hired to replace Plaintiff. The project for which Plaintiff was
hired was near its end, having concluded on October 29, 2010, and other
employees were used to assume parts of Plaintiff’s job duties for a short period
of time. Second, no single person assumed Plaintiff’s duties. Instead,
Plaintiff’s duties were spread among several employees. . . . All [but one of
them were] in the protected category of age.
(Doc. 54 at 26 [internal citations omitted].) However, contrary to defendant’s assumption,
a plaintiff alleging discriminatory termination based on an alleged work rule violation does
not have to prove he was replaced; he can establish a prima facie case by establishing that
defendant treated similarly situated, substantially younger employees more favorably with
regard to discipline for a work rule violation. See, e.g., Jones v. Gerwens, 874 F.2d 1534,
1540 and n.9 (11th Cir. 1989)(citing, inter alia, Nix v. WLCY Radio/Rahall Communications,
738 F.2d 1181, 1185 (11th Cir. 1984)(“a plaintiff fired for misconduct makes out a prima
facie case of discriminatory discharge if he shows that he was qualified for the job from
which he was fired, and ‘that the misconduct for which [he] was discharged was nearly
identical to that engaged in by [an employee outside the protected class] whom [the
employer] retained”)). When a plaintiff presents evidence that defendant treated the
comparator more favorably, “[t]he prima facie case is established even if the plaintiff's
replacement is also a member of the protected class.”

Nix, 738 F.2d at 1185 (citing

Cockrham v. South Central Bell Telephone Co., 695 F.2d 143, 145 (5th Cir. 1983)(per

15

curiam); EEOC v. Brown & Root, Inc., 688 F.2d 338, 340 (5th Cir. 1982); Byrd v. Roadway
Express, Inc., 687 F.2d 85, 86-87 (5th Cir. 1982)).
Plaintiff argues that he can establish a prima facie case of age discrimination with
reference to a younger employee, Byron Baker,7 who committed a nearly-identical work rule
violation, but was not discharged. (Doc. 59 at 42-44.) Defendant did not address any
comparators arguably treated more favorably than plaintiff for nearly identical conduct in its
Motion for Summary Judgment, focusing on plaintiff’s replacements, and its Reply Brief is
limited to its response to plaintiff’s undisputed facts. Therefore, for purposes of deciding
defendant’s Motion for Summary Judgment, the court finds that plaintiff has established a
prima facie case of age discrimination based on defendant’s favorable treatment of Baker as
compared to plaintiff.
Defendant alleges that it terminated plaintiff based on the procedure violation
described in the QHEAT, which Melvin ascribed to plaintiff. (Doc. 54 at 27-29.) This is
sufficient to carry defendant’s “exceedingly light” burden to provide a legitimate, non-

7

Collins testified that Baker was between 40 and 50 years old. (Doc. 55-6 at 95.) For
purposes of age discrimination claims, comparators are not required to be outside the
protected class; to be relevant comparators, they must be “substantially younger” than the
plaintiff. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996)(holding that
whether replacement is “substantially younger than the plaintiff” is the true test); Carter v.
DecisionOne Corp, 122 F.3d 997, 1003 (11th Cir. 1997) (holding that three years younger
can be “substantially younger”). Plaintiff Cox was 62 at the time he was terminated.
Therefore, Baker was at least 12 years younger than Cox. The court finds that Baker was
substantially younger than Cox.
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discriminatory reason for termination. Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061
(11th Cir. 1994).
With regard to showing pretext under McDonnell Douglas, the Eleventh Circuit has
recently held:
Once the employer identifies a legitimate, nondiscriminatory reason for
its decision, the presumption of discrimination disappears, and the burden
shifts back to the plaintiff “to demonstrate that the proffered reason was not
the true reason for the employment decision.” [Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248,] 256 [(1981)]. The plaintiff “cannot recast the reason
but must meet it head on and rebut it.” Wilson [v. B/E Aerospace, Inc.], 376
F.3d [1079,] 1088 [(11th Cir. 2004)]. The plaintiff must show “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the
employer’s rationale. Combs [v. Plantation Patterns], 106 F.3d [1519,] 1538
[(11th Cir. 1997)] (quotation marks omitted). To do so, the plaintiff may rely
on the evidence offered initially to establish the prima facie case. Wilson, 376
F.3d at 1088.
Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir. 2012)
Defendant contends that to show that its proffered reason is pretext plaintiff must
establish that he “did not violate the cited work rule; or . . . [that] other employees outside
the protected class who committed similar violations were not similarly treated.” (Doc. 54
at 29-30 [citing Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th
Cir. 1999)].) Defendant argues that since Melvin had a “non-pretextual belief that [p]laintiff
overrode the quality control check points causing a major valve failure and resulting in a
three day shutdown of Unit 3 and a site clock reset,” plaintiff cannot demonstrate pretext.

17

(Id. at 30.) Defendant does not address whether other similarly-situated, substantially
younger employees were treated more favorably.
Melvin testified that his decision to terminate Cox was based on two considerations:
First, as a contractor, DZ is responsible to TVA. When a power unit must be shut down and
the site clock reset on DZ’s watch, DZ’s contract and reputation with its client TVA is at
stake, and DZ must explain what happened. (See, e.g., id. at 247-48.) So, according to
Melvin, every misstep by a DZ employee must be scrutinized closely. And, second, TVA
believed Cox had violated TVA procedure that resulted in a major negative event at the plant.
Melvin testified that TVA’s “[p]rocedures and work packages govern what [DZ does] at a
nuclear power station.” (Id. at 217.) He also testified that in the case of a procedure human
performance event, the station, the employees, and the local public are at risk. (Id.) He
testified, “You cannot NA a QC hold point. [Cox’s] integrity [was] in question [because he
took] it upon himself without the QA or QC department validating [whether he could or
could not] perform a step in a procedure.” (Id. at 234.) Melvin stated, “It is expected that
you perform the procedures as written. It’s also part of the safety of a nuclear power plant
that if your work can’t be performed as written, that’s where you stop.” (Id. at 236-37.)
Defendant contends, regardless of whether Cox’s marking “N/A” on the data sheet caused
any actual damage to TVA, his conduct was enough for Melvin to decide he had violated
TVA procedure at a crucial point – a “QC hold point.”

18

Plaintiff’s contention that he did not cause the outage is irrelevant to the court’s
decision on defendant’s Motion for Summary Judgment. (See doc. 59 at 46-49.) However,
defendant has not addressed whether plaintiff can establish pretext based on defendant’s
more favorable treatment of similarly-situated, substantially-younger employees.8
To establish that a similarly-situated, substantially-younger employee was treated
more favorably, plaintiff must prove similarity between his conduct and that of the
comparator “in all relevant respects.” Wilson, 376 F.3d at 1091. This includes showing that
“that the quantity and quality of the comparator’s misconduct [was] nearly identical” to his
own conduct preceding his termination. Burke-Fowler v. Orange Cnty, 447 F.3d 1319, 1323
(11th Cir. 2006)(quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999))(internal
quotation marks omitted); see also Rioux v. City of Atlanta, 520 F.3d 1269, 1279-80 (11th
Cir. 2008)(applying “nearly identical” standard in pretext stage); McCann v. Tillman, 526
F.3d 1370, 1374 n.4 (11th Cir. 2008), cert. denied sub nom. McCann v. Cochran, 555 U.S.

8

Plaintiff also alleges that defendant’s Motion for Summary Judgment is due to be
denied based on Melvin’s inadequate investigation of his conduct before deciding to
terminate him. (Doc. 59 at 46.) Plaintiff contends that his alleged procedural violation
occurred before Melvin was employed at Browns Ferry and, therefore, Melvin had relied
solely on his inadequate investigation. (Id.) He contends Melvin’s investigation could not
have provided a good-faith basis for his decision to fire Cox because Melvin never talked to
Campbell, the supervisor allegedly responsible for the valve replacement project, during his
investigation. (Id. at 49.) However, Melvin did not need to interview Campbell to determine
whether Cox had written “N/A” because his initials – “JDC” – were written by each “N/A”
strikethrough on the work package. (See doc. 60-29 at 3-8; Melvin Depo. at 232.)
Therefore, Melvin did not lack a good-faith basis for concluding that Cox had violated
procedure simply because he failed to interview Campbell.
19

944 (2008). The “nearly identical” standard means that the court will only compare apples
to apples. Maniccia, 171 F.3d at 1368-69. The Eleventh Circuit has repeatedly emphasized
that the district court is not tasked with reviewing an employer’s business judgment. In Elrod
v. Sears, Roebuck, the court held:
The inquiry of the ADEA is limited to whether [decisionmakers] and believed
that [plaintiff] was guilty of [a work-rule violation], and if so, whether this
belief was the reason behind [plaintiff’s] discharge. Federal courts do not sit
as a super-personnel department that reexamines an entity’s business decisions.
No matter how medieval a firm’s practices, no matter how high-handed its
decisional process, no matter how mistaken the firm’s managers, the ADEA
does not interfere. Rather, our inquiry is limited to whether the employer gave
an honest explanation of its behavior. For an employer to prevail the jury need
not determine that the employer was correct in its assessment of the
employee’s performance; it need only determine that the defendant in good
faith believed plaintiff's performance to be unsatisfactory.
Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991). By considering only
incidents of nearly-identical misconduct, the court properly limits its consideration to
incidents of apparently disparate treatment. See Lee v. GTE Florida, Inc., 226 F.3d 1249,
1254 (11th Cir. 2000); see also Wilson, 376 F.3d at 1091-92.
Plaintiff puts forward three comparators: Baker, (doc. 59 at 42-44), Collins, (id. at
44-45), and Campbell, (id. at 48-49, 31 ¶ 50). Collins’s and Campbell’s conduct is readily
distinguishable from Cox’s. According to Cox, Collins committed a “serious safety
violation[]” when workers he supervised allowed a metal shear to dislodge and fall. (Id. at
44.) Plaintiff does not present any other details about the incident – such as whether the site
clock was reset or whether a QHEAT found that Collins had violated procedure. Therefore,

20

Cox has not shown that Collins was engaged in nearly identical conduct but was treated more
favorably.
Plaintiff seems to imply that Campbell, the supervisor under Cox, was to blame for
the outage, since he actually handled the installation of the failed valve, but was not
disciplined. (Id. at 48-49, 31 ¶ 50.) However, as Melvin testified, Campbell could not act
without Cox’s approval, and it was Cox’s authorization that caused the bypass of the QC
hold point. (Melvin Depo. at 220-21, 224-25, 237-38.) This is certainly a reasonable
distinction and it establishes that Campbell and Cox were not similarly situated in all relevant
aspects with regard to the problems with the Unit 3 reactor vent.
At set forth above, Baker is substantially younger than Cox. Also, Baker’s conduct
came under scrutiny after his performance on a project allegedly resulted in a site clock
reset. His misconduct shares many common attributes with Cox’s alleged misconduct. (See
doc. 59 at 42-44.) DZ has not presented any argument to distinguish Cox’s misconduct from
Baker’s misconduct. Had defendant offered some reasoned argument for finding the
violations at issue were not nearly identical, a more considered comparison may have been
possible. (See doc. 54 [not addressing comparator evidence in summary judgment brief];
doc. 63 [no response to plaintiff’s arguments, only his facts].) As it is, no significant
differences are apparent.9 The events both resulted in a site clock reset. Both Baker and

9

This case turns on analysis of an extremely technical subject—nuclear engineering
procedure, yet defendant let plaintiff argue his comparator evidence unopposed. Perhaps
21

Cox violated established procedures. The work could not or should not have been performed
as written and the employees should have stopped, but they moved forward. The PER level
for both events was “B,” signifying that TVA considered the violations equal or comparable,
at least on some level.
Although the court notes that a power unit had to be taken offline as a result of the
violation in Cox’s case, this difference alone does not prevent the conduct of Cox and Baker
from being deemed nearly identical for purposes of deciding the Motion for Summary
Judgment. Therefore, plaintiff has shown that Melvin treated a significantly younger,
similarly-situated employee more favorably than he treated plaintiff. This difference in
treatment would support a reasonable jury verdict that DZ’s articulated reason for terminating
Cox is unworthy of credence.
Moreover, the court finds that a reasonable jury could find Melvin’s comments
regarding “old” employees of TVA reflected age-based animus. While Melvin’s comments
are not direct evidence that he terminated Cox because of his age, the evidence of Melvin’s

defendant did not anticipate plaintiff using Baker as a comparator, or relied on the fact that
it is plaintiff’s burden to show pretext. The court will not pretend to have considered every
possible relevant difference between the alleged misconduct of Cox and Baker. Perhaps
Melvin can point out he considered Baker’s procedural violation to be different than Cox’s,
though on the evidence before the court, the two seem nearly identical. If he can, he will
have to do so at trial. “There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary judgment.
Rather, the onus is upon the parties to formulate arguments . . . .” Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (internal citations omitted).
22

comments to Cox and Watson and his termination of both men, together with evidence that
a substantially-younger individual was not terminated, is sufficient circumstantial evidence
to support a jury verdict in favor of Cox.10 Wilson, 376 F.3d at 1091 (“Language not
amounting to direct evidence, but showing some [discriminatory] animus, may be significant
evidence of pretext once a plaintiff has set out the prima facie case.”) (internal quotation
marks and citations omitted).
CONCLUSION
For the foregoing reasons, the court is of the opinion that there are material facts in
dispute and defendant is not entitled to judgment as a matter of law. An Order denying
defendant’s Motion for Summary Judgment, (doc. 53), will be entered contemporaneously
with this Memorandum Opinion.
DONE, this 31st day of March, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

10

The court notes that the evidence is not such that a reasonable jury would be
compelled to find in favor of Cox. Certainly, the jury does not have to view the evidence in
the light most favorable to Cox and presumably will have defendant’s explanation of the
reasons, if any, for treating Baker more favorably than Cox. The jury may also find that
when Melvin referred to “old station personnel” he was not referring to the age of the
employees, but the length of time they had worked for the company. However, the court,
viewing the evidence in the light most favorable to Cox, the non-movant, and drawing all
reasonable inferences in his favor, finds the evidence is sufficient to support a jury verdict
in favor of Cox and against DZ on Cox’s termination claim.
23