Roberts v. Caterpillar Global Mining America LLC

Filing 25

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 1/5/2017. (PSM)

FILED
2017 Jan-05 AM 11:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
B. MICHAEL ROBERTS,
Plaintiff,
vs.
CATERPILLAR GLOBAL
MINING AMERICA LLC,
Defendant.

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7:15-cv-01586-LSC

Memorandum of Opinion
I.

Introduction
Plaintiff B. Michael Roberts (“Roberts”) filed this action against his former

employer, Caterpillar Global Mining America LLC (“CGM”), alleging that CGM
unlawfully discriminated against him due to his age in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the
Alabama Age Discrimination in Employment Act (“AADEA”), Ala. Code § 25-120 et seq. Roberts also alleges a claim for conversion under Alabama common law.
Before this Court is Defendant CGM’s motion for summary judgment (Doc. 18),
which has been fully briefed and is ripe for decision. For the reasons explained
below, Defendant CGM’s motion is due to be granted in part.

II.

Factual Background1

Roberts was first hired by a company known as Bucyrus International, Inc.
(“Bucyrus”) on April 7, 2011. When Caterpillar, Inc. (“Caterpillar”) acquired
Bucyrus in July 2011, CGM 2 was formed as a subsidiary of Caterpillar, and Roberts
became a full-time CGM employee. His physical office was located at CGM’s
Houston, Pennsylvania, facility, although Roberts traveled frequently and often
worked remotely. During his employment with CGM, Roberts worked in the Belt
Products Group, first as a Product Manager and as of September 1, 2012, as an
Industry Product Application Manager. Roberts served in the latter position until
his termination on March 20, 2014. As part of his duties, Roberts directly
supervised employees Bill Call (“Call”), Terence Johnson (“Johnson”), Jeff
Mayer (“Mayer”), Osama “Sam” Rabadi (“Rabadi”), and Danny Sayers
(“Sayers”). David Becktel (“Becktel”) was Roberts’s direct supervisor.
On March 6, 2014, Rabadi complained to CGM’s Human Resources
Manager for the Houston facility, Tammy Richardson (“Richardson”), that

1

In ruling on a motion for summary judgment, this Court must “view the facts and draw
reasonable inferences in the light most favorable to the party opposing the . . . motion.” White v.
Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015) (quoting Scott v. Harris, 550
U.S. 372, 378 (2007)). Thus, if the parties’ versions of the facts differ with regard to a particular
issue, this Court accepts the nonmoving party’s version as true. See Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
2
CGM manufactures mining and mining transportation equipment.
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Roberts had made an inappropriate threat during a meeting held on February 20 or
21, 2014, in Hillsville, Virginia. According to Richardson, 3 Rabadi was physically
present at the meeting with Roberts and Mayer, and the three spoke with supplier
Tim Phelps (“Phelps”) by telephone to discuss parts manuals for customers. Also
according to Richardson, during the meeting, Roberts became angry and stated,
“Don’t make me go Middle Eastern on you and throw the three of you in a corner
and shoot.” Although Rabadi understood the statement to be directed to the three
subordinates present at the meeting (Rabadi, Mayer, and Phelps), Rabadi felt
specifically threatened because he is of Jordanian national origin and his first name
is Osama. Richardson observed that Rabadi appeared “nervous and anxious” when
recalling the events.
As part of her investigation of the incident, Richardson spoke with Mayer on
March 11, 2014. In that telephone call, Mayer informed Richardson that he was
present at the meeting and that Roberts was frustrated, but Mayer did not recall
Roberts making any inappropriate comments. The next day, Richardson received a
voicemail from Mayer, who stated that he wanted to speak with Richardson. When
Richardson returned Mayer’s phone call, Mayer retracted his earlier statement and
3

There is no deposition, declaration, or other sworn statement from Rabadi in the record.
Because Roberts does not appear to dispute that Rabadi made a complaint to Richardson but
rather asserts that Rabadi’s complaint was false, this Court relies on Richardson’s declaration for
factual information related to her meeting with Rabadi.
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explained that he did hear Roberts make the threatening comment during the
meeting but had lied to Richardson the previous day because he feared he would
lose his job.
Richardson then spoke with Roberts by telephone on March 13, 2014.
Roberts stated that he was present at the employee meeting in Hillsville, but when
Richardson asked him if he recalled any inappropriate comments, Roberts replied
that he did not know what Richardson was talking about. At an in-person meeting
in Houston on March 18, 2014, Richardson asked Roberts if a confrontation
occurred during the Hillsville employee meeting. Roberts responded that the only
issue at the meeting stemmed from Rabadi’s delay in providing spare parts pricing
information to a customer. The following day, Richardson informed Roberts that
he would be suspended with pay during the remainder of the investigation into
Rabadi’s complaint. Roberts denied that he had made the inappropriate threat and
expressed his willingness to take a polygraph test, but CGM declined.
On March 18 and 19, 2014, Richardson met with the members of CGM’s
Human Resources management team and explained that an employee had
complained that Roberts threatened him at a meeting and that another employee
present at the meeting had corroborated the inappropriate statement. Based on this
evidence, the team unanimously decided to terminate Roberts’s employment with
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CGM because Roberts had violated CGM’s harassment and workplace violence
policies. Richardson and Rachael Reeb (“Reeb”), CGM’s corporate Human
Resources Manager, called Roberts on March 20, 2014, to inform him of the
decision. During this telephone conversation, Roberts claimed that Richardson had
not conducted a thorough investigation into the matter by failing to interview
Sayers and Johnson, whom Roberts alleged were also present at the meeting.
Neither Richardson nor Reeb responded to his claim.
Because Roberts was not permitted to return to his office after his
termination, Richardson inventoried the items in the office and arranged for
Roberts’s personal items to be mailed to his home address in Alabama. Richardson
states that all of Roberts’s personal items were returned to him, with the exception
of a jug of antifreeze and a bottle of champagne that were discarded because she
was unable to ship them. Roberts states that he never received the champagne,
engineering drafting instruments and simple scales, his Alabama professional
engineer stamp, notes and notebooks, colleagues’ business cards, and a decanter.
In the year following Roberts’s termination, CGM transferred much of the
Belt Products Group’s operations to another company not affiliated with
Caterpillar or CGM. The positions of many of Roberts’s coworkers were
eliminated, and these individuals, including Rabadi and Mayer, were either
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transitioned to the acquiring company or separated as part of a reduction in force.
Roberts also claims that Sayers, Johnson, John Kellis, and Denny McCormick, who
are all over the age of forty, were laid off the day after he was terminated. On
August 15, 2014, fifty-year-old Wilson Tavares (“Tavares”) replaced Roberts in
his position. On September 16, 2014, Roberts filed an EEOC charge alleging that he
was accused of making an inappropriate statement and that he was terminated
without severance pay. He received his right-to-sue letter on June 12, 2015. The
instant action was filed on September 11, 2015, within the requisite time period.
III. Standard of Review
A motion for summary judgment is due to be granted upon a showing that
“no genuine dispute as to any material fact” remains to be decided in the action
and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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.”
Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).

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IV. Discussion
A. Age Discrimination
The ADEA4 prohibits an employer from discharging an individual or
“otherwise discriminat[ing] against any individual with respect to his
compensation, terms, conditions, or privileges of employment” based on the
individual’s age. 29 U.S.C. § 623(a)(1). Absent direct evidence of age
discrimination,

such

as

specific

statements

made

by

the

employer’s

representatives, an ADEA plaintiff may demonstrate circumstantial evidence of
disparate treatment through the McDonnell Douglas burden-shifting framework. See
Liebman v. Metropolitan Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the
aggrieved employee “creates a presumption of unlawful discrimination” by first
establishing a prima facie case of age discrimination. Liebman, 808 F.3d at 1298.
The burden then shifts to the employer “to rebut the presumption of
discrimination with evidence of a legitimate, nondiscriminatory reason for the
adverse employment action.” Id. (quoting Kragor v. Takeda Pharm. Am., Inc., 702
F.3d 1304, 1308 (11th Cir. 2012)). If the employer proffers a legitimate,

4

A claim under the AADEA is analyzed under the same evidentiary framework as one made
under the ADEA. Robinson v. Ala. Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007).
Therefore, this Court will not discuss each claim separately.
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nondiscriminatory reason, the burden returns to the employee to prove that the
employer’s reason is a pretext for unlawful discrimination. Id. Stated another way,
the employer’s legitimate, nondiscriminatory reason for the adverse employment
action destroys the presumption of discrimination but leaves the plaintiff an
opportunity to prove his case through additional evidence of discrimination.
Kragor, 702 F.3d at 1308 n.1.
1. Prima Facie Case
To establish a prima facie case of age discrimination, the plaintiff employee
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 the plaintiff was
discharged; and (4) he was qualified to do the job from which he was discharged.
Liebman, 808 F.3d at 1298. The initial burden to demonstrate a prima facie case of
discrimination is a low threshold for the plaintiff to meet. See English v. Bd. of Sch.
Comm’rs of Mobile Cnty., 83 F. Supp. 3d 1271, 1282 (S.D. Ala. 2015).
No dispute exists that Roberts, who was sixty-two years old at the time of his
termination, is entitled to the protections of the ADEA. See 29 U.S.C. § 631(a)
(limiting the application of the ADEA to individuals forty years of age or older).

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Further, both parties agree that Roberts suffered an adverse employment action
because he was discharged from his position in March 2014. See Liebman, 808 F.3d
at 1298 (firing qualifies as adverse employment action for purposes of ADEA). The
employee who replaced Roberts following his termination was fifty years old, and
this age difference satisfies the “substantially younger” prong even though Tavares
is also a member of the protected class. Id. at 1299. Finally, Roberts had performed
similar duties for the extent of his employment with CGM and possessed extensive
experience in his field; indeed, CGM does not assert that Roberts was not qualified
for the position from which he was discharged. See id. (“In assessing a plaintiff’s
qualification for a position, [this Court] examine[s] his skills and background.”); see
also Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1360 (11th Cir.
1999) (plaintiff “discharged from a previously held position” need not show that he
was qualified for that position). Roberts has thus presented sufficient evidence on
each of the elements to establish a prima facie case of age discrimination.
2. Legitimate, Nondiscriminatory Reason
The employer’s burden to articulate a legitimate, nondiscriminatory reason
for taking the adverse employment action against the plaintiff employee is
sufficiently satisfied if the employer presents evidence that “raises a genuine issue
of fact as to whether it discriminated against the plaintiff.” Chapman v. AI
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Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (quoting Combs v. Plantation
Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)). The presumption of discrimination
is eliminated if the employer produces evidence that “would allow the trier of fact
rationally to conclude that the employment decision had not been motivated by
discriminatory animus.” Combs, 106 F.3d at 1528 (quoting Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 257 (1981)) (emphasis deleted). An employer’s
good faith belief that the employee has violated the employer’s policies may
constitute evidence of a legitimate, nondiscriminatory reason for the employee’s
termination. See Kragor, 702 F.3d at 1309; Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991) (“The inquiry of the ADEA is limited to whether [the
decisionmakers] believed that [the employee] was guilty of harassment, and if so,
whether this belief was the reason behind [the employee’s] discharge.”).
In response to Roberts’s claim of age discrimination, CGM asserts that it
terminated Roberts’s employment due to the threatening statement he made at the
February 2014 meeting. This statement, according to CGM, violated the
company’s harassment and workplace violence policies. CGM avers that its human
resources team made the unanimous decision to discharge Roberts based on
Rabadi’s initial complaint to Richardson and Mayer’s corroboration of Rabadi’s
account. Roberts does not challenge the decisionmakers’ apparent belief, based on
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this evidence, that he made the inappropriate statement. Indeed, even if the
decisionmakers were mistaken in their belief, CGM was entitled to fire Roberts on
that basis, as long as the belief was honest and reasonable. 5 See Damon, 196 F.3d at
1363 n.3 (“An employer who fires an employee under the mistaken but honest
impression that the employee violated a work rule is not liable for discriminatory
conduct.”); Elrod, 939 F.2d at 1470; Smith v. Papp Clinic, P.A., 808 F.2d 1449,
1454–53 (11th Cir. 1987) (“[I]f the employer fired an employee because it honestly
believed that the employee had violated a company policy, even if it was mistaken
in such belief, the discharge is not ‘because of race’ and the employer has not
violated § 1981.”). Because CGM has presented a legitimate, nondiscriminatory
reason for Roberts’s termination (i.e., violation of company policies), the
presumption of unlawful discrimination is eliminated.
3. Pretext for Age Discrimination
The plaintiff may attack the employer’s explanation for the adverse
employment action “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, 702 F.3d at
5

Roberts appears to suggest that CGM’s belief that he had made the inappropriate threat was not
reasonable because, in his opinion, CGM failed to adequately investigate Rabadi’s complaint.
These arguments, however, are more appropriately considered as part of the pretext prong and
will thus be addressed below.
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1308 (quoting Burdine, 450 U.S. at 256). To do this, the plaintiff must “produce
sufficient evidence to allow a reasonable finder of fact to conclude that the
[employer’s] articulated reasons [for the adverse employment action are] not
believable.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th
Cir. 2006) (citing Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th
Cir. 2005)). An employer’s proffered reason might be unworthy of credence, for
example, where the employee points out “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in the explanation that have a
basis in the record. Id. (quoting Jackson, 405 F.3d at 1289). The plaintiff
employee’s own “speculative testimony” about his employer’s reasons, without
evidence to support that inference, is insufficient to demonstrate pretext. See
Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006).
“Provided that the proffered reason is one that might motivate a reasonable
employer, an employee must meet that reason head on and rebut it, and the
employee cannot succeed by simply quarreling with the wisdom of that reason.”
Chapman, 229 F.3d at 1030. Neither the plaintiff nor this Court is permitted to
“substitute [its] business judgment for that of the employer.” Id. “To ultimately
prevail, ‘[a] plaintiff must prove by a preponderance of the evidence . . . that age
was the but-for cause of the challenged employ[ment] decision.’” Mazzeo v. Color
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Resolutions Int’l, LLC, 746 F.3d 1264, 1270 (11th Cir. 2014) (quoting Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)).
Roberts’s principal argument 6 is that CGM failed to conduct a thorough
investigation into Rabadi’s complaint and instead relied only upon “the
statement[s] of [Rabadi], whom [Roberts] had just criticized for work performance,
and one other employee who gave two separate versions of events.” Roberts asserts
that he informed Richardson and Reeb that Sayers and Johnson were also present
at the February 2014 meeting, but Richardson did not interview them because
Rabadi “did not identify them as witnesses” in his initial complaint. CGM should
have more closely scrutinized Rabadi’s allegations, according to Roberts, because
Roberts “had reprimanded [Rabadi] concerning his work performance at the
meeting in question,” which provided Rabadi with “a possible ulterior motive” for
making the complaint. It is clear from Roberts’s deposition testimony that he had
problems with Rabadi—performance-related or otherwise—prior to the February
2014 meeting.
6

Roberts made the argument in his EEOC charge and at his deposition that unlike other
employees, he was not offered severance pay upon his termination. However, he has not
responded to Defendants’ arguments in favor of summary judgment on this ground and is
therefore deemed to have abandoned it. Clark v. City of Atlanta, 544 F. App’x 848, 855 (11th Cir.
2013) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995));
Resolution Trust Corp., 43 F.3d at 599 (“[G]rounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.”). “[A] party may not rely on his pleadings to avoid
judgment against him.” Resolution Trust Corp., 43 F.3d at 599 (quoting Ryan v. Int’l Union of
Operating Eng’rs, Local 675, 794 F.3d 641, 543 (11th Cir. 1986)).
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However, even if Roberts’s speculation about Rabadi’s motives is correct,
his arguments essentially challenge the wisdom of CGM’s human resources team
in investigating the incident and deciding to fire him. The evidence demonstrates
that Richardson received a complaint, interviewed the witnesses named by the
complainant, and reached a decision on that basis. This course of action is not
patently unreasonable, and Roberts does not contest these facts—he believes that
Rabadi did indeed make the complaint and that Mayer “backed [Rabadi] up.”
Rather, Roberts’s arguments imply that CGM’s human resources team based its
conclusion on unreliable witnesses—the biased accuser and the employee who
“changed his story.” Had Richardson spoken with Sayers and Johnson, and had
they told her that they did not hear Roberts make the statement, 7 Richardson and
the human resources team still could have relied on the reports of Rabadi and
Mayer in determining that Roberts violated company policy. Richardson’s belief
that Rabadi’s account was credible could be utterly wrong, but there is no evidence
that Richardson chose to believe Rabadi and Mayer and not Roberts as a result of
Roberts’s age. This—not the ultimate question of whether Roberts was in fact
guilty of making the statement—is the proper inquiry for this Court in evaluating
whether Roberts has demonstrated pretext. See Elrod, 939 F.2d at 1470 (“[The
7

Aside from Roberts’s own statements about what Sayers and Johnson would have told
Richardson, there is no evidence in the record as to what the testimony of these two employees
would reveal.
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court] can assume for purposes of this opinion that the complaining employees
interviewed by [the employer] were lying through their teeth. The inquiry of the
ADEA is limited to whether [the decisionmakers] believed that [the plaintiff
employee] was guilty of harassment, and if so, whether this belief was the reason
behind [the employee’s] discharge.” (emphasis in original)). 8
Here, there is no question that the decisionmakers believed—correctly or
incorrectly—that Roberts made the inappropriate threat and that this was the
reason for his discharge. Roberts himself concedes in his EEOC charge that CGM
decided to terminate him “for employee harassment.” To find pretext on the
grounds that CGM’s human resources employees could have done more is to
engage in the prohibited practice of substituting this Court’s business judgment for
that of CGM. Furthermore, and most importantly, nothing about CGM’s handling
of the investigation suggests that Richardson or any of the other decisionmakers
acted with discriminatory animus toward Roberts because of his age. See Nix v.
WLCY Radio/Rahall Communic’ns, 738 F.2d 1181, 1187 (11th Cir. 1984) (reiterating
the fact that an employer may discharge an employee for virtually any reason, “as
8

Roberts asserts that Elrod is inapposite to the case at bar because the plaintiff employee
admitted to engaging in sexual harassment. A more accurate characterization is that the plaintiff
employee did not object to the accusations being leveled against him, but he nonetheless argued
at trial that the accusations were false, much as Roberts does here. Even if the jury believed “that
the allegations against [the plaintiff employee] were untrue,” this was insufficient to meet the
plaintiff employee’s burden to show that his employer’s belief in the truth of the allegations “was
unworthy of credence.” Elrod, 939 F.2d at 1471.
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long as its action is not for a discriminatory reason”). Summary judgment is to be
entered in favor of CGM on Roberts’s ADEA and AADEA claims.
B. Conversion
Roberts also contends that CGM unlawfully converted some of the property
left in his Houston, Pennsylvania office at the time of his termination. He
acknowledges that he did receive some of his personal items from CGM, but he
claims that CGM retained other items, such as a bottle of champagne that
Richardson admits she discarded because she was unable to ship it. The evidence in
the record places Roberts’s word against CGM’s word, and this dispute of fact
should be resolved by the jury.
As an initial matter, Roberts expressly brings his claim under Alabama
common law, but CGM asserts that Pennsylvania law applies to Roberts’s claim. It
would appear that CGM is correct, as Roberts’s physical office and the personal
property that CGM allegedly converted were located in Pennsylvania. See Atkins v.
GE Capital Mortg. Servs., Inc., 993 F. Supp. 1406, 1417 n.8 (M.D. Ala. 1998)
(“[T]he law of the state wherein the property was allegedly converted is applicable
to Plaintiff’s conversion claim . . . .”); Ex parte U.S. Bank Nat. Ass’n, 148 So. 3d
1060, 1069–70 (Ala. 2014) (explaining that law of state where injury occurred

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governs tort claim). However, citing Fed. R. Civ. P. 12(b), Roberts contends that
CGM has waived this argument by not including it in its answer. Presuming that
Roberts construes CGM’s argument that Pennsylvania law applies as an argument
that Roberts has failed to state a claim under Fed. R. Civ. P. 12(b)(6), CGM has not
waived the argument and may raise it even at trial. Fed. R. Civ. P. 12(h)(2).
Nonetheless, having granted summary judgment in favor of CGM on
Roberts’s federal claims, this Court has “dismissed all claims over which it has
original jurisdiction.” See 28 U.S.C. § 1367(c)(3). It therefore elects to decline to
exercise supplemental jurisdiction over Roberts’s state-law conversion claim. Id.;
see Murphy v. Fla. Keys Elec. Co-op. Ass’n, 329 F.3d 1311, 1320 (11th Cir. 2003).
Roberts’s conversion claim is therefore due to be dismissed without prejudice so as
to allow him to file the same in state court if appropriate.
V.

Conclusion
For the reasons stated above, CGM’s motion for summary judgment (Doc.

18) is due to be GRANTED as to the ADEA and AADEA claims. Roberts’s
conversion claim is due to be DISMISSED WITHOUT PREJUDICE. A separate
order consistent with this opinion will be entered.

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DONE and ORDERED on January 5, 2017.

_____________________________
L. Scott Coogler
United States District Judge
186289

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