King v. Adtran, Inc.
MEMORANDUM OPINION and ORDER DISMISSING CASE that defendant's motion for summary judgment is GRANTED, and all claims asserted against Adtran, Inc., are DISMISSED with prejudice and Costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/10/2014. (AHI )
2014 Dec-10 AM 11:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JOSEPH E. KING,
Civil Action No. 5:13-CV-1362-CLS
MEMORANDUM OPINION AND ORDERS
Plaintiff, Joseph King, asserts claims for age discrimination and retaliation in
violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et
seq. (“ADEA”), and the Alabama Age Discrimination in Employment Act of 1997,
Ala. Code § 25-1-20 et seq. (1975) (“AADEA”), against his former employer, Adtran,
Inc.1 Plaintiff’s complaint also asserts a state-law claim for “negligent and/or wanton
hiring, training, supervision and retention.”2 The case presently is before the court on
defendant’s motion for summary judgment.3 Upon consideration of the pleadings,
briefs, and evidentiary submissions, this court concludes that the motion should be
See doc. no. 1 (Complaint), ¶ 1.
See doc. no. 11 (Summary Judgment Motion).
I. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In
making this determination, the court must review all evidence and make all reasonable
inferences in favor of the party opposing summary judgment.” Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of
Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving
party are not unqualified, however. “[A]n inference is not reasonable if it is only a
guess or a possibility, for such an inference is not based on the evidence, but is pure
conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321,
1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party for
a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. SUMMARY OF FACTS
Adtran, Inc., headquartered in Huntsville, Alabama, designs and manufactures
telecommunications equipment, and employs approximately 2,500 persons around the
world.4 The company does not market its telecommunications equipment directly to
consumers.5 Instead, it sells to other companies that, in turn, sell to consumers.
Adtran refers to this structure as a “sales channel.”6
Adtran markets its products through two types of sales channels: a “Network
Service Provider” channel and a “Value Added Reseller” channel.7 A Network Service
Provider (“NSP”) is a media carrier company (e.g., AT&T) that sells “enterprise
products” (e.g., routers and switches) to consumers.8 A Value Added Reseller
Doc. no. 13-2 (Koch Affidavit), ¶ 2.
Doc. no. 13-4 (Koch Deposition), at 12–13. It is also sometimes referred to as a
“distribution channel.” See, e.g., doc. no. 13-2 (Koch Affidavit), ¶ 9.
Doc. no. 13-4 (Koch Deposition), at 12–13.
Doc. no. 13-2 (Koch Affidavit), ¶ 8.
Id. Network Service Providers are sometimes referred to as “carriers.” See, e.g., doc. no.
12 (Defendant’s Summary Judgment Brief), at 3.
(“VAR”) is a company that markets and sells Adtran data communication products
and services to consumers.9 Adtran’s sales employees are expected to develop
relationships with Network Service Providers and Value Added Resellers, and to
divide their time equally between the two sales channels.10
Joseph King’s Employment at Adtran
Plaintiff, Joseph King, was hired into Adtran’s sales department as a “channel
account manager” in 1996.11 He held several sales positions at the company before
his 2003 promotion to “Territory Manager for the Southeast.”12 In that position,
plaintiff was responsible for Network Service Provider and Value Added Reseller
sales in Alabama, Mississippi, Arkansas, and Florida.13 His responsibilities included
“territory management,” cultivating relationships with Network Service Providers and
Doc. no. 13-1 (Plaintiff Deposition), 21–24.
Doc. no. 13-2 (Koch Affidavit), ¶ 9.
Doc. no. 13-1 (Plaintiff Deposition), at 69.
Id. at 69–70; doc. no. 15-1 (Exhibit E (January 1, 2004 Performance Appraisal)), at ECF
16; see also doc. no. 14 (Plaintiff’s Response to Summary Judgment Motion), at 6. It should be
noted that some documents list plaintiff’s position as “Enterprise Territory Manager.” See, e.g., doc.
no. 15-1 (Exhibit E (January 1, 2008 Performance Appraisal)), at ECF 2. “ECF” is the acronym for
“Electronic Case Filing,” a system that allows parties to file and serve documents electronically.
See Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009).
Bluebook Rule 7.1.4 permits citations to the “page numbers generated by the ECF header.” Wilson
v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The Bluebook: A Uniform System
of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al., 19th ed. 2010)). Even so, the
Bluebook recommends “against citation to ECF pagination in lieu of original pagination.” Wilson,
772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court will cite the original pagination
in the parties’ pleadings. When the court cites to pagination generated by the ECF header, it will,
as here, precede the page number with the letters “ECF.”
Doc. no. 13-1 (Plaintiff Deposition), at 10.
Value Added Resellers, and developing new sales opportunities.14 Like all sales
employees at Adtran, plaintiff’s compensation included sales commissions, the size
of which depended upon his performance in relation to quotas set by his supervisors.15
Plaintiff held the position of Territory Manager for the Southeast until his employment
was terminated on March 20, 2012.16
The identity of the person who served as plaintiff’s direct supervisor during the
time he held the position of Territory Manager for the Southeast is not clear. It is
undisputed, however, that Tom Koch became one of plaintiff’s supervisors on March
23, 2011: the date on which Koch was promoted to the position of “Director of Sales
for Value Added Resellers in the United States.”17 Koch’s promotion coincided with
Adtran’s decision to prioritize the Value Added Reseller sales channel, and to create
a Value Added Reseller-only sales team beginning the following year, in January of
Doc. no. 13-4 (Koch Deposition), at 126–127. Significantly, Plaintiff never received a
formal job description from Adtran. Id. at 33.
Doc. no. 13-2 (Koch Affidavit), ¶ 11.
Doc. no. 13-1 (Plaintiff Deposition), at 10, 69.
Doc. no. 13-4 (Koch Deposition), at 18–19. Plaintiff testified that Tom Koch, who
terminated Plaintiff’s employment in 2012, was not his direct supervisor. He testified that Dave
Sanford, Director of Sales, was his direct supervisor throughout his employment. See doc. no. 13-1
(Plaintiff Deposition), at 54, 191, 199. He also testified, however, that Tom Koch became his direct
supervisor in 2011. Id. at 211–212. An “Employee Status Change Form,” dated January 28, 2008,
listed Plaintiff’s “Current Supervisor” as Dave Sanford and his “New Supervisor” as Tom Koch.
Doc. no. 15-2 (Defendant’s Exhibit “F” (Employee Status Change Form)). Dave Sanford signed
Plaintiff’s 2009 and 2010 performance evaluations as “Supervisor,” however. Doc. no. 15-3
(Defendant’s Exhibit “G” (January 1, 2009 Performance Evaluation)), at ECF 9. Koch testified that
he became Plaintiff’s supervisor in March of 2011, when he became the Director of Sales for Value
Added Resellers. Doc. no. 13-4 (Koch Deposition), at 18–19.
2012.18 Director of Sales Dave Sanford also served as plaintiff’s supervisor while
plaintiff held the position of Territory Manager for the Southeast.19 Vice President of
Sales Ted Cole served as direct supervisor of both Tom Koch and Dave Sanford.20 B.
Plaintiff’s Performance Improvement Plan (“PIP”)
As plaintiff’s immediate supervisor, Tom Koch frequently evaluated plaintiff’s
performance by reviewing his weekly reports, partner participation data, and sales
activity.21 During 2011 Koch identified several aspects of plaintiff’s performance that
concerned him. First, he determined that plaintiff was failing to meet his Value Added
Reseller sales quota.22 That concerned Koch, because plaintiff was slated to join
Koch’s Value Added Reseller-only sales team that was to be established the following
year, in January of 2012.23 Second, Vice President of Sales Ted Cole informed Koch
that one of plaintiff’s Value Added Resellers had complained that plaintiff had not
been devoting sufficient time to developing a relationship with that company.24
Finally, Koch received complaints from an account manager hired to assist plaintiff
Doc. no. 13-2 (Koch Affidavit), ¶ 18.
See supra note 17.
Doc. no. 13-4 (Koch Deposition), at 16–17.
Doc. no. 13-2 (Koch Affidavit), ¶ 26.
Id. ¶ 28. Plaintiff’s Value Added Reseller sales were below 65% of quota in 2008, 2009,
and 2010. Doc. no. 13-1 (Dec. 1, 2011 Letter to Plaintiff), at ECF 124.
Doc. no. 13-2 (Koch Affidavit), ¶ 30. As previously noted, Adtran sales employees were
expected to devote equal time to the Value Added Reseller and Network Service Provider channels.
This policy continued until the end of 2011.
Doc. no. 13-2 (Koch Affidavit), ¶ 28.
with sales in Florida that plaintiff “was not returning his calls and not traveling with
him.”25 Based upon those and other concerns, Koch decided to issue plaintiff a
“Performance Improvement Plan” (PIP): a document that identifies areas of an
employee’s job duties and responsibilities that require improvement, defines clear
performance expectations, and specifies a discrete time period within which the
employee must meet the performance expectations.26
Improvement Plan was intended to last for sixty days. Before Koch delivered the
document to plaintiff, however, he consulted Frank Humphrey, Adtran’s Employment
Relations and Compliance Manager, who reviewed the Plan for clarity and fairness.27
Koch issued the Performance Improvement Plan to plaintiff on November 17,
2011, and discussed it with him during a telephone conversation that same day.28
Koch told plaintiff that he had issued the PIP because he wanted plaintiff to raise his
sales performance to the level of his peers.29 The first page of the plan listed several
aspects of plaintiff’s performance that Koch found to be inadequate:
Partner coverage in the Territory.
Feedback from partners
Id. ¶ 29.
Id. ¶ 30; doc. no. 13-3 (Humphrey Deposition), at 18–19; doc. no. 13-4 (Koch Deposition),
at 54. It should be noted that, if a sales employee fails to meet his quota, disciplinary action is at the
discretion of the employee’s supervisors, and, therefore, discipline for failure to meet a quota is not
uniform. See doc. no. 13-1 (Plaintiff Deposition), at 96–97.
Doc. no. 13-3 (Humphrey Deposition), at 7, 18, 21–22.
Doc. no. 13-4 (Plaintiff’s Exhibit 12 — Performance Improvement Plan), at ECF 85.
Doc. no. 13-4 (Koch Deposition), at 63.
suggesting you’re unwilling to work with them.
Inability to manage accounts in your territory as illustrated by
numerous customer problems and lost business without your
knowledge (UNA [University of North Alabama], State of
Alabama opportunities, Madison County opportunities as
Not a positive example for others to follow.
Consistent under performance of Value Added Reseller segment
for 2 years. Performance in 2010 below 71% of plan. 2011
Performance below plan 8 out of the first 10 months
Not motivated, doesn’t demonstrate a positive, optimistic attitude.
Poor communication skills.
Lack of demonstrated knowledge of policies or processes:
specialization, deal registration, on-boarding partners, ongoing
partner lifestyle management.
Failure to manage time to drive towards strategic goals. Does not
reinforce EN goals and objectives.
Failure to mentor new hires in territory.
The Territory you are responsible for is currently performing not
only below plan but well below the national average performance of
other Territories in the company. The data below does not include
performance for the State of Florida as it is now directly supported by
Doc. no. 13-4 (Plaintiff’s Exhibit 12 – Performance Improvement Plan), at ECF 85
The PIP indicated that, as of October of 2011, plaintiff’s Value Added Reseller
sales were 86.1% of quota: three percentage points below Adtran’s national average
of 89.1%.31 The PIP directed plaintiff to match the national average by the end of
2011.32 It also directed plaintiff to create sales plans for current and potential Value
Added Resellers, and to “secure the essential resources to execute” those plans.33 The
document did not address plaintiff’s Network Service Provider sales — sales which,
at the time, exceeded his quota.34
Plaintiff’s Responses to the Performance Improvement Plan
Plaintiff requested in a November 28, 2011 letter addressed to Tom Koch that
“the [sixty-day] time line to review and accomplish the PIP be extended to the end of
[the second quarter of] 2012, allowing a reasonable time frame [within which] to
It should be noted that Koch did not include Florida in his analysis even though, at the time
the PIP was issued, Plaintiff remained involved in sales in Florida and continued to receive
commissions on those sales. See doc. no. 13-1 (Plaintiff Deposition), at 10, 131.
Doc. no. 13-4 (Plaintiff’s Exhibit 12 — Performance Improvement Plan), at ECF 86.
Id. at 86–87. Significantly, Plaintiff previously had been required to meet short-term
Value Added Reseller goals in the first quarter of 2011 due to his poor Value Added Reseller sales
in 2010. See doc. no. 13-1 (Plaintiff Deposition), at 117.
Doc. no. 13-4 (Plaintiff’s Exhibit 12 — Performance Improvement Plan), at ECF 86.
Doc. no. 13-1 (Plaintiff Deposition), at 142–43. Indeed, Plaintiff met his total sales quota
in 2010, even though his Value Added Reseller sales reached only 64.1% of quota. See doc. no. 131 (January 1, 2011 Performance Appraisal), at ECF 111; doc. no. 13-1 (December 1, 2011 Letter to
Plaintiff), at ECF 124.
accomplish these items.”35 Koch declined that request in a December 1, 2011 letter
Plaintiff complained during a December 7, 2011 meeting with Frank
Humphrey, Adtran’s Employment Relations and Compliance Manager — who, as
previously noted, had reviewed the Performance Improvement Plan for clarity and
fairness before it was issued to plaintiff — that the document “was essentially a set-up
. . . to get an older employee out of Adtran.”37 Plaintiff also described the document
as “pretextual.”38 He identified during the meeting several younger employees whose
Value Added Reseller sales were below quota for the 2011 fiscal year, but who did not
receive PIPs: i.e., Brent Frederick, who reached 62.4% of his Value Added Reseller
quota; Stewart Austin, who reached 77.8%; and Andy Solomon, who reached 78.8%
On some undisclosed date after that meeting, Humphrey advised Koch that he
should not meet with plaintiff without a witness present, because Humphrey believed
Doc. no. 13-1 (Letter to Plaintiff), at ECF 124 (alterations supplied).
Doc. no. 13-1 (Plaintiff Deposition)), at 128, 151.
Id. at 151.
Id. at 225; doc. no. 13-4 (Plaintiff’s Exhibit 13 — 2011 Sales Team Performance
Summary), at ECF 89. Plaintiff asserts in his brief, with dubious support, that Stewart Austin and
Brent Frederick both were under the age of forty during 2011, but Adtran disputes those facts. See
doc. no. 14 (Plaintiff’s Response to Summary Judgment Motion), at 20, ¶¶ 64–65; doc. no. 18
(Defendant’s Reply Brief), at 4, ¶¶ 64–65.
that plaintiff “was heading towards a legal discussion or legal issue.”40 Koch
previously had told plaintiff that he would meet with him in mid-December and midJanuary, to discuss his progress on achieving the objectives outlined in the PIP; but,
acting upon Humphrey’s advice, Koch never scheduled any such meetings.41
Plaintiff detailed his disagreements with ten statements contained in the
Performance Improvement Plan in a December 14, 2011 e-mail to Frank Humphrey.42
Plaintiff did not mention age discrimination in that communication, but, in an e-mail
to Humphrey preceding the December 14th message, he wrote: “I trust that we can
mutually work this out and that this PIP is not pre-textual such that there is some
Plaintiff re-iterated his disagreements with the PIP during a conference
telephone call with Humphrey and Koch on January 4, 2012: a call that plaintiff
recorded without the knowledge of the other participants.44 Plaintiff did not mention
age discrimination during that conversation, either explicitly or implicitly (e.g.,
through the use of legal jargon, such as the term “pretext”).45
Doc. no. 13-4 (Koch Deposition), at 67.
See id.; doc. no. 13-1 (Letter to Plaintiff), at ECF 124–125.
Doc. no. 13-1 (Plaintiff Deposition), at 147–49. That e-mail was requested by Humphrey.
Doc. no. 13-1 (Defendant’s Exhibit 23 – E-mail Exchange Between Plaintiff and
Humhrey), at ECF 126, 128.
Doc. no. 13-4 (Transcript of January 4, 2012 Conference Call), at ECF 90–122.
Despite Humphrey’s admonition to meet with plaintiff only when another
witness was present — because Humphrey believed that plaintiff “was heading
towards a legal discussion or legal issue”46 — Koch testified that Humphrey never
stated directly that King had allege discrimination on the basis of age:47 i.e., that the
PIP “was essentially a set-up . . . to get an older employee out of Adtran.”48
Huntsville City Schools Account
On some undisclosed date during the sixty-day period of plaintiff’s
Performance Improvement Plan — i.e., between November 17, 2011 and January 17,
2012 — Adtran lost a potential sales opportunity with the Huntsville City Schools to
its primary competitor, Cisco Systems, Inc. According to Tom Koch, that lost
had the potential for $1.1 million in revenue. This was also critical to
ADTRAN since Huntsville City Schools is in the city of ADTRAN’s
corporate headquarters. This was also significant because this was
within Mr. King’s territory. This was also very concerning because Mr.
King failed to notify me, Dave Sanford, or anyone else of any potential
issues with obtaining the business or problems that he was encountering
in having contact with Huntsville City Schools. On multiple occasions
in early 2012, Mr. King had communicated that we were going to be
able to secure the business and expressed confidence in ADTRAN’s
ability to do so. The loss, without any further notification that the
potential business was at risk, was very concerning to me. This further
illustrated to me Mr. King’s lack of engagement with ADTRAN’s
Doc. no. 13-4 (Koch Deposition), at 67.
Doc. no. 13-2 (Koch Affidavit), ¶ 50.
Doc. no. 13-1 (Plaintiff Deposition)), at 128, 151.
overall strategic objectives.
Doc. no. 13-2 (Koch Affidavit), ¶ 49 (emphasis supplied).
Koch made the decision to terminate plaintiff’s employment on some
undisclosed date prior to February 21, 2012, even though all of the data concerning
plaintiff’s sales during the sixty-day period of his Performance Improvement Plan
would not be available for Koch’s review until March 1, 2012.49 From the data
available at the time Koch made his decision, however, he determined that plaintiff
was meeting his Value Added Resellers sales quota.50 Even so, Koch stated in the
affidavit submitted in support of summary judgment that he had determined that
plaintiff “had not met the elements of the [PIP], including what his [Value Added
Reseller] partners had done, and likely would not be successful in doing so” by March
1st.51 In his deposition, however, Koch testified that he could not point to any specific
aspect of the PIP that King had not met.52
Koch obtained approval to replace plaintiff from Vice President of Sales Ted
Cole and Cole’s supervisor, Division General Manager Rick Schaunsman.53 He
Doc. no. 13-4 (Koch Deposition), at 79; doc. no. 13-3 (Humphrey Deposition), at 63–64.
Doc. no. 13-2 (Koch Affidavit), ¶ 47.
Id. ¶ 48 (alterations supplied).
Doc. no. 13-4 (Koch Deposition), at 100–101.
Id. at 88.
informed Humphrey in a March 11, 2012 e-mail that “everything [was] finally in place
for [him] to let Joe King go.”54
Plaintiff was asked to meet with Humphrey and Koch at Adtran’s Huntsville
headquarters on March 20, 2012.55 The meeting lasted approximately fifteen minutes,
and most of the discussion addressed the lost Huntsville City Schools sales
opportunity.56 It was “obvious” to plaintiff that Koch was “not happy” about losing
that account.57 Moreover, during his deposition, plaintiff could not recall whether
there had been any discussion of his Performance Improvement Plan during the
At some point, Frank Humphrey asked Tom Koch to leave the room. When
Koch did so, Humphrey informed plaintiff that his employment with Adtran was
terminated, “effective immediately.”59
On the date plaintiff was fired, he was fifty-five years of age. Tom Koch was
fifty years of age, Ted Cole was approximately sixty-one, and Frank Humphrey was
Doc. no. 13-4 (Plaintiff’s Exhibit 10 (Mar. 11, 2012 E-mail to Frank Humphrey)), at ECF
Doc. no. 13-1 (Plaintiff Deposition), at 14; doc. no. 13-4 (Koch Deposition), at 106–07.
Doc. no. 13-1 (Plaintiff Deposition), at 251.
Id. at 25, 252 (“It was obvious in his demeanor and tone or volume of voice.”).
Id. at 252.
Id. at 13.
in his fifties.60 Director of Sales Dave Sanford hired David Converse to replace
plaintiff. On the date of his hiring, Converse was forty-six years of age.61
Equal Employment Opportunity Commission Charge and Dismissal
Plaintiff filed a formal “Charge of Discrimination” with the Equal Employment
Opportunity Commission on September 13, 2012.62 The EEOC issued a “Dismissal
and Notice of Rights” on April 23 of the following year, stating that the agency had
terminated its investigation of his charge because it was unable to conclude that the
information obtained established violations of the civil rights statutes.63
document notified plaintiff of his right to file suit, and this action followed.
Negligent Hiring, Training, and Supervision Claim
Plaintiff did not address Adtran’s contention that he had failed to assert any
facts supporting his state-law “negligent and/or wanton hiring, training, supervision
and retention” claim, and that summary judgment was, for that reason, due to be
entered in defendant’s favor on that claim.64 Upon consideration of the record, as well
Id. at 29–30; doc. no. 13-2 (Koch Affidavit), ¶¶ 6–7.
Doc. no. 13-2 (Koch Affidavit), ¶ 52.
Doc. no. 1-1.
Doc. no. 1-2.
See doc. no. 12 (Summary Judgment Brief), at 28–29; doc. no. 14 (Plaintiff’s Response
to Summary Judgment Motion).
as plaintiff’s “Statement of Facts,” this court concludes that plaintiff has indeed failed
to assert any facts supporting that claim.65 Accordingly, summary judgment is due to
be entered in favor of Adtran.
Plaintiff asserts claims of age discrimination under both the federal Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), and
the Alabama Age Discrimination in Employment Act of 1997, Ala. Code § 25-1-20
et seq. (“AADEA”).66 However, one section of the Alabama Act explicitly states that
a plaintiff cannot simultaneously pursue an age discrimination claim under both
federal and state statutes, but must, instead, elect his or her remedies:
Any person aggrieved may elect to pursue their remedies under
Title VII of the Civil Rights Act of 1964 as amended, and the Age
Discrimination in Employment Act[,] 29 U.S.C. Section 621[,] or in the
alternative bring a civil action in the circuit court of the county in which
the person was or is employed for such legal or equitable relief as will
effectuate the purposes of this article. However, if an action is brought
in the federal court, any action pending in the state court shall be
simultaneously dismissed with prejudice. Further, any party bringing
action under this section shall only be entitled to one recovery of
damages. Any damages assessed in one court will offset any entitlement
to damages in any other state or federal court. In any action, a person
shall be entitled to a trial by jury of any issue of fact in any action for
recovery of amounts owed as a result of a violation of this article,
regardless of whether equitable relief is sought by any party in the
Doc. no. 1 (Complaint), ¶¶ 1, 38–44; doc. no. 14 (Plaintiff’s Response to Summary
Doc. no. 1 (Complaint).
action. Any employment practice authorized by the federal Age
Discrimination in Employment Act shall also be authorized by this
article and the remedies, defenses, and statutes of limitations, under this
article shall be the same as those authorized by the federal Age
Discrimination in Employment Act except that a plaintiff shall not be
required to pursue any administrative action or remedy prior to filing suit
under this article.
Ala. Code § 25-1-29 (1975) (alterations and emphasis supplied). See also, e.g.,
Collins v. Compass Group, Inc., 965 F. Supp. 2d 1321, 1330 (N.D. Ala. 2013)
(Kallon, J.) (finding that, pursuant to the foregoing language of the AADEA, claims
based upon both that statute and the ADEA are “duplicative”). Accordingly, this court
will address plaintiff’s claims under only the rubric of the federal ADEA statute.
The ADEA makes it “unlawful for an employer . . . to discharge any individual
or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29
U.S.C. § 623(a)(1). The statute protects individuals who “are at least 40 years of age
but less than 70 years of age.” 29 U.S.C. § 621(a).
Plaintiff has not produced direct evidence of age discrimination. Therefore, he
must satisfy the burden-shifting framework for claims based upon circumstantial
proofs that was promulgated by the Supreme Court in a trilogy of decisions, beginning
with McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), then elaborated in
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and finally
elucidated in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The analytical
framework developed by that trilogy of cases has three steps, the goal of which is that
of “progressively . . . sharpen[ing] the inquiry into the elusive factual question of
intentional discrimination.” Hicks, 509 U.S. at 506 (quoting Burdine, 450 U.S. at 255
n.8) (alteration in original). Under that familiar framework, the plaintiff bears the
initial burden of establishing a prima facie case of his employer’s intent to
discriminate on the basis of the plaintiff’s age. If the plaintiff does so, he creates a
presumption of intentional discrimination. To rebut that presumption, the employer
must articulate a legitimate, nondiscriminatory reason for the contested employment
action. If the employer shoulders that burden, the presumption of discrimination
drops from the case, and the burden shifts back to the plaintiff to show that the
defendant’s proffered reason is merely a pretext for unlawful discrimination. See, e.g.,
McDonnell Douglas, 411 U.S. at 802–05; Burdine, 450 U.S. at 252–56.
A plaintiff establishes a prima facie case of age discrimination if he proves that:
he was a member of the class of persons protected by the Act (that is, individuals
between the ages of 40 and 70); he was qualified to perform the duties of his position;
he was, nonetheless, discharged; and that he was replaced by a substantially younger
person. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142
(2000); Bogle v. Orange County Board of County Commissioners, 162 F.3d 653,
656–57 (11th Cir. 1998); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432
(11th Cir. 1998); Benson v. Tocco, Inc., 113 F.3d 1203, 1207–08 (11th Cir. 1997).
The first three elements of a prima facie case are not in dispute. A plaintiff may
satisfy the fourth element — the requirement to show that he was replaced by a
substantially younger person — by showing that he was replaced by an employee who
was at least three years younger. See, e.g., Damon v. Fleming Supermarkets of
Florida, Inc., 196 F.3d 1354, 1360 (11th Cir. 1999); Carter v. DecisionOne Corp.,
122 F.3d 997, 1003 (11th Cir. 1997) (citing Carter v. City of Miami, 870 F.2d 578,
582–83 (11th Cir. 1989). Joseph King was replaced by a man who was nine years
younger than he.67 Accordingly, plaintiff has demonstrated a prima facie case of age
Adtran articulated two primary reasons for Koch’s decision to terminate
plaintiff’s failure to meet the requirements of his
Performance Improvement Plan; and his inadequate handling of the Huntsville City
Schools sales opportunity.68 Accordingly, Adtran met its burden of coming forward
with legitimate, non-discriminatory reasons for firing plaintiff.
In order to show that an employer’s stated reasons are merely a pretext for
discrimination, a plaintiff “must demonstrate such weaknesses, implausibilities,
Doc. no. 13-1 (Plaintiff Deposition), at 29–30; doc. no. 13-2 (Koch Affidavit), ¶ 52.
Doc. no. 12 (Summary Judgment Brief), at 12–13, ¶¶ 59–60.
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them unworthy
of credence.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th
Cir. 2010) (internal quotation marks omitted); see also, e.g., Kragor v. Takeda
Pharmaceuticals America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012); Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997); Cooper-Houston v.
Southern Railway Co., 37 F.3d 603, 605 (11th Cir. 1994).
Plaintiff has offered substantial evidence that one of Adtran’s stated reasons for
his termination — i.e., his failure to meet the requirements of his Performance
Improvement Plan — is unworthy of belief.69 Even so, the Eleventh Circuit held in
an en banc opinion that an employee must show that each of the employer’s stated
reasons for the adverse employment action is pretextual in order to survive summary
judgment. Chapman v. AI Transport, 229 F.3d 1012, 1024–25 (11th Cir. 2000) (en
banc); see also id. at 1049 (Birch, J., dissenting) (“As a general rule, I agree with the
[majority’s holding] that, where an employer offers multiple legitimate,
nondiscriminatory reasons for its challenged action, the employee must proffer
evidence that shows pretext as to each of the proffered reasons.” (alteration supplied,
emphasis in original)). Here, plaintiff has failed to demonstrate pretext as to Adtran’s
See, e.g., supra Part II.E.
second stated reason for his discharge: i.e., his inadequate handling of the Huntsville
City Schools sales opportunity.
Plaintiff contends that Adtran’s assertion that Koch terminated him because of
the loss of the Huntsville City Schools sales opportunity contradicts Koch’s testimony
that he did not hold King accountable for the loss of that account.70 The court
disagrees. Koch testified during his deposition that he faulted plaintiff for not
realizing that Adtran was in danger of losing the Huntsville City Schools sales
opportunity, and for not involving others in Adtran’s corporate hierarchy in an effort
to salvage the opportunity, but not for the loss itself:
I didn’t hold Joe accountable [for the loss of] that opportunity at
[T]he key is you can’t win them all. But as long as we don’t give up —
you know, our management has a philosophy that says never lose alone.
At any point in time if you feel you’re going to lose, it’s your
responsibility to escalate to the next level and to the next level.
So if Joe was losing that deal and he knew it, it would be
incumbent upon him to pick up the phone to call me.
Doc. no. 13-4 (Koch Deposition), at 124-25 (alterations and emphasis supplied).
Later in his deposition, Koch elaborated as follows:
Doc. no. 14 (Plaintiff’s Response to Summary Judgment Motion), at 4, ¶ 60.
It wasn’t — the fact that that deal was lost — and again, it was
one of those situations where the opportunity was lost.
It was my perception and my opinion that Joe did not . . . involve
anybody other than himself to bring other people in to help win that
deal. And it came as a surprise.
And it was identified by me as . . . another example of where
opportunities in our own backyard, which it was real obvious to me and
I assume to Joe, too, especially after the Madison County Courthouse
situation earlier in 2011 that opportunities that involved Adtran product
in the City of Huntsville were . . . very serious losses in the state. And
we needed to be all over making sure that people knew what was going
on. And if we were — if it was ever an inkling we were going to lose a
deal, we had to notify as many people. We had to make sure that we
weren’t going to lose that deal without making sure everybody else knew
[I]t was just simply another example in my mind that Joe didn’t have a
handle on what was happening in the territory.
Id. at 154–55 (emphasis and alteration supplied). That testimony is consistent with
the statements from Koch’s affidavit that were quoted in Part II.D., supra. It also is
consistent with Koch’s observation in the Performance Improvement Plan that
plaintiff exhibited poor communication skills and poor partner management.71
Plaintiff attempts to show a contradiction in the foregoing stated reason by
pointing out that Adtran Chief Executive Officer Tom Stanton became involved in
discussions with Huntsville City Schools before the company lost the account. The
court sees no reason why that fact casts doubt upon Koch’s testimony that King was
Doc. no. 13-4 (Plaintiff’s Exhibit 12 (Performance Improvement Plan)), at ECF 85.
at fault for failing “to notify [Koch], Dave Sanford, or anyone else of any potential
issues with obtaining the business or problems that he was encountering in having
contact with Huntsville City Schools.”72
Plaintiff also has alleged that Adtran’s termination of five older employees is
evidence of an intent to discriminate on the basis of age.73 “Even when offered to
show pretext rather than a prima facie case, ‘me, too’ evidence is suspect. To be
probative, the other incidents must implicate a common decisionmaker.” Bell v.
Crowne Management, LLC, 844 F. Supp. 2d 1222, 1236 (S.D. Ala. 2012) (Steele, J.)
(citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)). Koch
has testified that he was the direct supervisor to only one of the five employees
identified by King: Chris Volta, whose “employment was terminated after he released
confidential information and misrepresented this fact to Ted Cole and [Koch].”74 The
court finds that Koch’s termination of the employment of one older employee, for
misconduct unrelated to the circumstances surrounding plaintiff’s termination, is not
probative of his intent to discriminate on the basis of age.
Plaintiff has presented no other evidence casting doubt upon that stated reason.
Accordingly, the court concludes that summary judgment is due to be entered in favor
Doc. no. 13-2 (Koch Affidavit), ¶ 49.
Doc. no. 14 (Plaintiff’s Response to Summary Judgment Motion), at 21, ¶ 68.
Doc. no. 13-2 (Koch Affidavit), ¶¶ 55–59 (alteration supplied).
of Adtran on his federal age discrimination claim.
Plaintiff contends that Adtran terminated his employment in retaliation for his
complaints of age discrimination, in violation of the ADEA and the AADEA.75 As
previously noted, the AADEA does not permit the simultaneous pursuit of ADEA and
AADEA claims. See Ala. Code § 25-1-29 (1975). Accordingly, the court will address
only King’s ADEA retaliation claim.
When, as here, there is no direct evidence of retaliation, courts again employ
the burden-shifting analytical framework articulated in McDonnell Douglas and
Burdine to evaluate a plaintiff’s circumstantial evidence of retaliation. To establish
a prima facie case of retaliation, a plaintiff must demonstrate that: he engaged in
statutorily protected activity; he suffered an adverse employment action; and there is
a causal connection between the protected activity and the adverse employment action.
See, e.g., Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1297 (11th
Cir. 2006). If the plaintiff does so, the employer must come forward with a legitimate,
non-retaliatory reason for the adverse employment action. Holified v. Reno, 115 F.3d
1555, 1566 (11th Cir. 1997). If the employer does so, the plaintiff then bears the
burden of demonstrating that the employer’s stated reason is merely a pretextual
Doc. no. 1 (Complaint).
excuse for retaliation. Id.
The court need not decide whether King has established a prima facie case of
retaliation, because it already has concluded that King has not shown that both of
Adtran’s stated reasons for terminating his employment were pretextual. Accordingly,
summary judgment is due to be entered in favor of Adtran on King’s retaliation
IV. CONCLUSION AND ORDERS
In accordance with the foregoing, defendant’s motion for summary judgment
is GRANTED, and all claims asserted against Adtran, Inc., are DISMISSED with
prejudice. Costs are taxed to plaintiff. The Clerk is directed to close this file.
DONE and ORDERED this 10th day of December, 2014.
United States District Judge
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