Fleenor v. Warrior Met Coal Mining LLC et al
Filing
44
MEMORANDUM OPINION. Signed by Magistrate Judge Gray M Borden on 8/28/2020. (KAM)
FILED
2020 Aug-28 AM 10:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JEFFREY L. FLEENOR,
Plaintiff,
v.
WARRIOR MET COAL MINING,
LLC, et al.,
Defendants.
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Case No. 7:18-cv-817-GMB
MEMORANDUM OPINION
Pending before the court is the Motion for Summary Judgment (Doc. 29) filed
by Defendants Warrior Met Coal Mining, LLC; Warrior Met Coal Intermediate
Holdco, LLC; and Warrior Met Coal, Inc. (collectively, the “defendants”). Plaintiff
Jeffrey L. Fleenor has filed a response to the motion (Doc. 38), and the defendants
have filed a reply brief in support. Doc. 40. Fleenor also has filed a Motion to Strike
(Doc. 36) and Motion for Leave to File Sur-Reply or Alternatively Motion to Strike
(Doc. 41). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
jurisdiction of a United States Magistrate Judge. After careful consideration of the
parties’ submissions and the applicable law, and for the reasons that follow, the court
concludes that the Motion for Summary Judgment is due to be granted in part and
denied in part, and that the other pending motions are moot.
I. JURISDICTION AND VENUE
The court has jurisdiction over the claims in this lawsuit pursuant to 28 U.S.C.
§ 1331. The parties do not contest personal jurisdiction, nor do they contest that
venue is proper in the Northern District of Alabama. The court finds adequate
allegations to support the propriety of both.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Warrior Met Coal Mining, LLC (“WMC”) produces and exports
metallurgical coal. Doc. 30 at 4. WMC is a wholly-owned subsidiary of Warrior
Met Coal Intermediate Holdco, LLC (“WMC Holdco”), which is a holding company
wholly owned by Warrior Met Coal, Inc. (“WMC, Inc.”). On March 8, 2016, WMC
hired Fleenor, who was 64 at the time he filed suit, as a shift foreman at Mine No. 4
in Brookwood, Alabama. Doc. 38-2 at 2–3. Fleenor began working in underground
mining in 1974 and had approximately 42 years of mining experience when WMC
hired him. Doc. 38-2 at 2.
As a shift foreman, Fleenor organized and managed each day’s shifts,
including those for WMC’s longwall section, belt crews, and locomotive crews.
Doc. 31-1 at 22. The shift foreman position “is the first line of management
overseeing underground operations.” Doc. 30 at 4–5. If Fleenor delayed “lining up”
the employees for a shift, these delays harmed production and forced WMC to pay
overtime to any employees who were not relieved on time by their replacements.
2
Doc. 31-1 at 22–23. Delays also could cause safety issues if they contributed to
employees who were fatigued on the job. Doc. 31-1 at 22.
Mine Manager Brian Frederickson testified that Phillip O’Rear, who was
Fleenor’s direct supervisor, Doc. 31-1 at 25, counseled Fleenor for failing to start a
longwall shift on time around December 2016. Doc. 31-2 at 14–15. Frederickson
recalled that Fleenor did not start the shift at all. Doc. 31-2 at 15. O’Rear, who
submitted a declaration, did not testify to this occurrence.1 See generally Doc. 3113. According to Frederickson, Fleenor told O’Rear that he did not believe he had
the necessary manpower to start the shift. Doc. 31-2 at 15. However, Frederickson
believed that Fleenor had enough people. Doc. 31-2 at 15. Frederickson advised
Fleenor that he should timely start all longwall shifts in the future. Doc. 31-2 at 16.
According to Fleenor, this conversation never occurred and no one ever mentioned
this shift to him, either at the time or later. Doc. 38-2 at 4.
There is no
contemporaneous documentation of this incident, and according to Frederickson
“the only one that can attest to it is Phillip [O’Rear].” Doc. 31-2 at 17.
Frederickson testified that several weeks later, in January 2017, Fleenor again
failed to start a longwall shift on time. Doc. 31-2 at 17. Frederickson explained that
Keith Shalvey, the Deputy Mine Manager, counseled Fleenor on this occasion.
1
Frederickson suggested in his deposition that counsel should “ask Phillip O’Rear” about this
occurrence, Doc. 31-2 at 14 & 15, but no deposition of O’Rear is in the record before the court.
3
Doc. 31-2 at 18. While he does not know what Shalvey told Fleenor “word for
word,” Frederickson believes that Shalvey “basically” informed Fleenor that this
was his second late shift start and that he needed to follow instructions.2 Doc. 31-2
at 18. Fleenor again contends that this conversation did not occur, Doc. 38-2 at 4,
and the incident was not documented in writing. Doc. 31-2 at 18.
In late February or early March of 2017, Frederickson contends that Fleenor
failed to start a third longwall shift on time. Doc. 31-2 at 19. Frederickson spoke
with Fleenor to advise him to start his shifts on time, and Frederickson also told him
that he should not need oversight to comply. Doc. 31-2 at 19. Fleenor said that the
shift was delayed because of a damaged mine chute. Doc. 31-2 at 19. Specifically,
he claimed that a hole in the chute was leaking a “massive amount of coal.” Doc.
38-2 at 5. Frederickson disagreed that the hole in the chute necessarily delayed the
shift, maintaining that Fleenor could have proceeded safely by “station[ing]
someone there to shovel what accumulations [of coal] would have spilled.” Doc. 312 at 19. Fleenor contends that he did not have the manpower necessary to shovel the
leaking coal back onto the conveyor belt. Doc. 38-2 at 5. Additionally, while Fleenor
inspected the conveyor belts in advance of the shift, a worker already had begun to
repaire the hole. Doc. 38-2 at 5. Fleenor stated that Frederickson, who never saw
the hole, nevertheless told Fleenor that he “made the right call” by completing the
2
There is no testimony from Shalvey in the record.
4
repair before the shift. Doc. 38-2 at 5.
In October 2017, after a six-month absence due to an on-the-job injury,
Frederickson told Fleenor that “his shift was not starting on time.” Doc. 31-2 at 20.
Frederickson again counseled Fleenor, who explained that the delay was caused by
his inability to recognize certain people on his shift because of employee turnover
that occurred during his absence. Doc. 31-2 at 21. Fleenor vowed to become familiar
with his new employees so that he could get his shifts started on time. Doc. 31-2 at
21. Fleenor testified that O’Rear had given him with an incorrect shift roster,
causing “a lot of confusion.” Doc. 38-2 at 6. He explained that the delay also related
to an inoperable mine elevator, which “caused major issues in getting the workers
underground in a timely manner.” Doc. 38-2 at 6. Even so, the next day, O’Rear
told Fleenor that he “did a great job starting the shift in a timely manner” and did
“much better” than two other shifts that day. Doc. 38-2 at 6.
However, about a week and a half later in mid-October, Fleenor failed to start
another shift on time according to Frederickson. Fleenor explained that he still was
struggling to get to know his new employees. Doc. 31-2 at 22–23. Fleenor also
maintains that, during this time, the primary mine elevator remained inoperable.
Doc. 38-2 at 6–7. He claims that no one counseled him about this incident, which
was “obviously not [his] fault.” Doc. 38-2 at 7. According to Frederickson, several
WMC employees, including members of the longwall crew, complained in late
5
October 2017 to management that it took significantly more time to perform routine
maintenance on Fleenor’s shifts than on the shifts of other foremen. Doc. 31-2 at
23–24. Frederickson said that these complaints ultimately convinced him to meet
with O’Rear and Darin Arnold to discuss a demotion for Fleenor. Doc. 31-2 at 24.
According to Fleenor, the incident leading to these complaints occurred because the
“belt crew” did not timely replace rollers on a conveyor belt in the last week of
October 2017. Doc. 38-2 at 7. As with all other maintenance, Fleenor could not start
the shift until the rollers were changed. Doc. 38-2 at 7. Fleenor states that no one
confronted him about this incident or “claimed that [he] did anything wrong.”
Doc. 38-2 at 7.
WMC maintains that Fleenor initially resisted its methods and struggled to
adjust to its expectations, insisting on “doing things the way he had done them in the
past for his previous employer, Jim Walter Resources.” Docs. 30 at 8–9 & 31-13
at 1. O’Rear also heard that Fleenor opposed a request to complete a functional
capacity examination following his leave of absence, a standard requirement for all
WMC employees. Doc. 31-13 at 2. Fleenor maintains that he was not required to
take an examination, only told that he might have to do so if ordered by a doctor.
Doc. 38-2 at 7. According to Arnold, the Deputy Mine Manager and O’Rear’s direct
supervisor, other managers observed that Fleenor appeared “lost” and particularly
struggled when assistant shift foreman Vince Netherly was not able to assist him.
6
Doc. 31-14 at 3.
After a discussion with O’Rear and Arnold, Frederickson decided to demote
Fleenor from mine foreman to outby foreman. Doc. 31-2 at 25. While Frederickson
consulted O’Rear and Arnold, he made the decision alone. Doc. 31-2 at 27.
Frederickson testified that he made this decision based on the overall performance
of Fleenor’s shifts and his inability to improve after various conversations and
counseling sessions. Doc. 31-2 at 25–26. On October 31, 2017, Frederickson met in
his office with Fleenor and Human Resources Manager Sherry Sterling. Docs. 31-1
at 42–43 & 31-2 at 28. Frederickson told Fleenor that he was being demoted to
outby foreman because of performance issues. Doc. 31-1 at 43. Specifically,
Frederickson says that he told Fleenor he was demoted because he had “been having
issues getting [his] shift started on time, with repairs being made to the belt line not
going well.” Doc. 31-2 at 28.
According to Sterling, Frederickson told Fleenor that he “couldn’t get his shift
started on time” and that “there had been other situations where [Frederickson]
specifically told [Fleenor] to do something and [Fleenor] didn’t do it and
[Frederickson] had gotten complaints from other employees.” Doc. 31-3 at 14.
Fleenor expressed concern that the demotion would result in a significant pay
decrease. Doc. 31-1 at 43. Frederickson told Fleenor that he was not being fired and
that he still brought value to WMC, but that he would better serve the company as
7
an outby foreman. Doc. 31-2 at 28. Fleenor responded that he would not accept a
demotion. Doc. 31-1 at 43. Frederickson explained that he could either accept the
demotion or quit. Doc. 31-2 at 28.
The parties disagree about what happened next. Frederickson testified that
Fleenor walked out of the room and began to yell in the hallway. Doc. 31-2 at 29.
After three to four minutes, Sterling asked Frederickson to help him calm Fleenor.
Doc. 31-2 at 29. About five minutes after that, Frederickson told Fleenor that he
needed to leave the property. Doc. 31-2 at 29. At that point, Fleenor got angrier and
told Frederickson, “That’s your problem––you don’t respect anybody here.” Doc.
31-2 at 29. As Fleenor continued to “ramble at the mouth,” Frederickson reiterated
that he needed to “get the hell off the property.” Doc. 31-2 at 29. Frederickson
testified that he asked Fleenor if he was quitting, and Fleenor responded, “I guess
my lawyer will let you know that.” Doc. 31-2 at 28.
Fleenor testified that he walked out of the room after Frederickson told him
that he could either accept the demotion or quit. Doc. 31-1 at 44. When Sterling
asked him if he was resigning, he replied “absolutely not,” but also told her that he
was going to talk to his attorney. Doc. 31-1 at 44. She then asked Fleenor for his
rescuer device.3 Doc. 31-1 at 44. Sterling testified that Fleenor “went back to the
3
A rescuer device is a “portable oxygen source that provides breathable air when the
[underground] environment lacks oxygen or is contaminated with toxic gases.” Doc. 38-2 at 8. All
8
bath house area and got all of his belongings and . . . handed me his rescuer.” Doc.
31-3 at 14. According to Fleenor, Sterling took the rescuer device from him and,
when a manager takes a rescuer device “in the coal business, [it] means that the
miner no longer works for the company and is fired.” Doc. 38-2 at 8. When Fleenor
walked back into the hallway to gather his belongings, Frederickson walked out and
told him to “get the hell off the company property.” Doc. 31-1 at 44. Fleenor replied
that he was trying to gather his belongings and “just trying to be cool,” but left once
Frederickson commanded him to leave the property. Doc. 31-1 at 44. Fleenor
maintains that he never resigned and never told any WMC employee that he
resigned. Doc. 38-2 at 8. Rather, he claims that he was terminated. Doc. 38-2 at 8.
Fleenor maintains that he was not responsible for the delays in starting the
longwall shifts. According to Fleenor, the delays occurred on Sundays, which were
reserved for mine maintenance. Doc. 38-2 at 3. Production shifts could begin only
after all maintenance had been completed. Doc. 38-2 at 3. Fleenor states that it is
the maintenance workers’ responsibility to complete their work and then notify the
foreman when it is finished. Doc. 38-2 at 3.
Frederickson testified that he “rotated the shift foremen all around [on a
monthly] basis” after Fleenor’s employment ended. Doc. 31-2 at 29. He believes
miners “must have them on at all time[s] while working underground.” Doc. 38-2 at 8. Sterling
denies asking for Fleenor’s rescuer device. Doc. 31-3 at 14.
9
Chris Smith “possibly” 4 filled in, along with Perry Scarborough, Chris Gable, and
Gilbert Saba. Doc. 31-2 at 29. He estimates that Scarborough was in his “late 40s,
approximately 50,” Gable was “[p]robably mid-40s,” and Saba was in his “early- to
mid-50s.” Doc. 31-2 at 29–30. Chris Smith was 33. Doc. 38-3.
III. STANDARD OF REVIEW
Summary judgment is appropriate “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). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute of material fact is genuine only if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a genuine
[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotation marks omitted). In responding to a properly supported motion
4
Although this is the only evidence in the record reflecting Smith’s utilization as a backfill for
Fleenor, in briefing the defendants do not dispute that Smith served as one of Fleenor’s
replacements, as discussed below.
10
for summary judgment, the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the nonmovant
must “go beyond the pleadings” and submit admissible evidence demonstrating
“specific facts showing that there is a genuine [dispute] for trial.” Celotex, 477 U.S.
at 324 (internal quotation marks omitted). If the evidence is “merely colorable, or
is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249 (citations omitted).
When a district court considers a motion for summary judgment, it “must view
all the evidence and all factual inferences reasonably drawn from the evidence in the
light most favorable to the nonmoving party, and must resolve all reasonable doubts
about the facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The
court’s role 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.
“If a reasonable fact finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a genuine issue of material
fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Ed.
for Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted).
Importantly, if the nonmovant “fails to adduce evidence which would be sufficient
11
. . . to support a jury finding for [the nonmovant], summary judgment may be
granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370
(11th Cir. 1997) (citation omitted).
IV. DISCUSSION
In his Amended Complaint, Fleenor asserts claims under the Age
Discrimination in Employment Act (“ADEA”) and Alabama Age Discrimination in
Employment Act (“AADEA”). Doc. 10 at 5–8. Fleenor also brings state-law claims
for wrongful termination and negligent hiring, training, supervision, or retention.
Doc. 1 at 8–11. The defendants argue that summary judgment is due to be granted
on all of Fleenor’s claims.
A.
Wrongful Termination
In his response to the motion for summary judgment, Fleenor advanced no
argument in support of his wrongful termination claim. A plaintiff abandons any
claims he fails to address in a response to a properly-supported motion for summary
judgment. Brackin v. Anson, 585 F. App’x 991, 994–95 (11th Cir. 2014); see also
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[T]he
onus is on the parties to formulate arguments; grounds alleged in the complaint but
not relied upon in summary judgment are deemed abandoned.”). Accordingly, the
12
defendants are due summary judgment on this claim.5
B.
Age Discrimination
With respect to Fleenor’s age discrimination claims, the defendants argue that
Fleenor has not satisfied his burden to demonstrate a prima facie case of age
discrimination and that, even if he had, the defendants prevail at the burden-shifting
stage. Fleenor contends both that he has successfully established a prima facie age
discrimination case and that he has demonstrated that WMC’s stated reasons for its
decision are a pretext for discrimination.
The ADEA and AADEA prohibit employers from discriminating against
employees because of their age.6 29 U.S.C. § 623(a)(1); Ala. Code § 25-1-21.
A plaintiff may prove an age discrimination claim by direct or circumstantial
evidence. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).
Where, as here, an age discrimination claim is based on circumstantial evidence,
5
In response to the motion for summary judgment, Fleenor also filed a motion to strike, arguing
that certain evidence relied upon by the defendants in their motion is irrelevant. See generally Doc.
36. Because the court will sift through the evidence in the record and decline to consider legally
irrelevant evidence on its own accord, this motion is moot. Additionally, Fleenor has filed a
Motion for Leave to File Sur-Reply or Alternatively Motion to Strike (Doc. 41), arguing that the
defendants have advanced arguments in their reply brief that did not appear in their initial brief.
Wile the court generally agrees with the premise of the motion, it has addressed these arguments
in the discussion below and therefore finds this motion to be moot.
6 Courts analyze claims under the ADEA and AADEA using the same analytical framework. King
v. CVS Caremark Corp., 2 F. Supp. 3d 1252, 1258 (N.D. Ala. 2014). While it is “not clear whether
a plaintiff may simultaneously pursue claims under the AADEA and ADEA,” Collier v. Harland
Clarke Corp., 379 F. Supp. 3d 1191, 1202 n.8 (N.D. Ala. 2019), the defendants have moved for
summary judgment on both claims jointly on substantive grounds and have not argued that the
claims are duplicative or that Fleenor’s AADEA claim is due for dismissal for any other reason.
See Doc. 30 at 13 n.4.
13
courts employ the well-worn burden-shifting framework first established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id.
That framework first requires a plaintiff to establish a prima facie case of
employment discrimination by showing that he (1) is between the ages of 40 and 70;
(2) was subjected to an adverse employment action; (3) was replaced by a
substantially younger person, or a substantially younger person was treated more
favorably; and (4) was qualified for the position for which he was rejected. Id. If he
does so, this creates a presumption of discrimination. Id. The burden then shifts to
the employer to rebut this presumption by offering evidence of “a legitimate,
nondiscriminatory reason for the adverse employment action.” Id. If the employer
does so, the burden shifts back to the plaintiff to “show that the employer’s stated
reason is a pretext for discrimination.” Id.
1.
Prima Facie Case
It is undisputed that Fleenor is between the age of 40 and 70 and suffered an
adverse employment action. 7 Thus, the two elements at issue are whether Fleenor
was qualified for the mine foreman position and whether he was replaced by a
substantially younger employee. Nevertheless, the defendants raised all of their
7
The parties disagree over how Fleenor’s employment ended––with WMC claiming that he quit
and Fleenor contending that WMC fired him. This distinction is immaterial to Fleenor’s prima
facie case because WMC admits that it did make the decision to demote Fleenor, which is an
adverse employment action. See, e.g., Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)
(including demotion as one form of an adverse employment action).
14
arguments in opposition to Fleenor’s prima facie case for the first time in their reply
brief, and “[a]rguments not properly presented in a party’s initial brief or raised for
the first time in a reply brief are deemed waived.” Egidi v. Mukamai, 571 F.3d 1156,
1163 (11th Cir. 2009).
The only argument against Fleenor’s prima facie case that is properly before
the court is the claim that “there is no evidence that any employee in particular
directly replaced” Fleenor. Doc. 30 at 17. This statement is not supported by any
controlling case law requiring Fleenor to demonstrate that he was “directly replaced”
by a single substantially younger individual. Frederickson’s testimony suggests that
WMC employed four people as mine foremen after Fleenor’s employment ended––
Chris Smith, Chris Gable, Perry Scarborough, and Gilbert Saba. Doc. 31-2 at 29.
This court is not familiar with any requirement in the law that a plaintiff be replaced
by just one substantially younger individual, and the defendants have not offered any
such authority. The record reflects that Fleenor was not replaced by any one
individual because WMC rotated foremen in and out of different shifts on a monthly
basis in his absence. Doc. 31-2 at 29. While the record may be scant on this issue,
the defendants have not directed the court to any evidence rebutting Frederickson’s
testimony.
It is nevertheless Fleenor’s duty to establish a prima facie case of age
discrimination, so the court must examine the record evidence to determine whether
15
he has done so. “In assessing a plaintiff’s qualification for a position, we examine
his skills and background.” Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1299
(11th Cir. 2015). Fleenor had 44 years of mining experience and testified that he
regularly received praise for his performance at work, including from Frederickson,
WMC’s Chief Operating Officer (“COO”) Jack Richardson, and other employees.
Doc. 31-1 at 9, 20, 42 & 47. For example, Chris Thielen, a Deputy Mine Manager,
told Fleenor that he hated to see that he was leaving because he was “such a good
employee,” and James Jones stated that he would be in “seventh heaven” if he had
“30 people as good as” Fleenor.8 Doc. 31-1 at 9. On another occasion, Jones called
him “the best man on the property” and said he wished “everybody cared as much
about the mines as [Fleeonor] did.” Doc. 31-1 at 20. The son of COO Jack
Richardson, Chase Richardson, told Fleenor after his injury that Jack was “glad
you’re back” after Fleenor said that there were “two” who did not want him back
(referring to Frederickson and O’Rear). Doc. 31-1 at 42. Fleenor testified that he
had “top notch” personnel evaluations and that “not one soul” was happy about his
departure. Doc. 31-1 at 47.
Additionally, Fleenor could perform a wide variety of tasks and positions at
the mine. He had experience as a longwall shear operator, headgate operator, and
8
Fleenor did not know Jones’ exact position, stating that Jones “was something over the prep
plant.” Doc. 31-1 at 9.
16
longwall mechanic, among other mining positions. Doc. 31-1 at 15. He was able to
“run every piece of equipment underground and outside except for a bulldozer.”
Doc. 31-1 at 15. According to Fleenor, his shift regularly outperformed the day’s
other two shifts. Doc. 31-1 at 22. While some of these statements may be selfserving, this alone does not discount their relevance at the summary judgment stage.
Liebman, 808 F.3d at 1299. Accordingly, Fleenor has successfully demonstrated
that he was qualified for his position for the purposes of his prima facie case.
Fleenor also has satisfied his burden to demonstrate that he was replaced by a
substantially younger employee. The record reflects that Fleenor was replaced at
the longwall shift foreman position by a combination of Chris Smith, Perry
Scarborough, Chris Gable, and Gilbert Saba. Doc. 31-1 at 55 & 31-2 at 29; Doc. 383. WMC admits that, at a minimum, Chris Smith was “among several individuals”
who replaced Fleenor. Doc. 30 at 17. Smith was 33 when Fleenor left, while
Frederickson estimates that Gable was in his mid-40s, Scarborough was in his late40s, and Saba was in his early- to mid-50s. Doc. 38-3; Doc. 31-2 at 29–30. The
defendants argue that three of the four replacements were in Fleenor’s protected age
group and therefore cannot be considered substantially younger than him. But this
is a mischaracterization of the law. “The fact that one person in the protected class
has lost out to another person in the protected class is . . . irrelevant, so long as he
has lost out because of his age.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S.
17
308, 312 (1996). Seven years, which is the smallest approximated difference
between Fleenor and his oldest replacement, generally qualifies as “substantially
younger” under the ADEA. See, e.g., Liebman, 808 F.3d at 1299 (holding that a
seven-year difference “qualifies as substantially younger” and gathering cases
holding that differences as small as three years met the “substantially younger”
threshold). Thus, Fleenor has successfully demonstrated that he was replaced by
someone substantially younger. Fleenor has made out a prima facie case of age
discrimination.
2.
McDonnell Douglas Burden-Shifting
At the first stage of the McDonnell Douglas burden-shifting framework, the
burden is on the defendants to come forth with evidence of “a legitimate,
nondiscriminatory reason for the adverse employment action.” Kragor, 702 F.3d at
1308. This is a burden of production, not persuasion, and the defendants need not
persuade the court that they were actually motivated by the nondiscriminatory
reason. Id. “It is sufficient if the defendant’s evidence raises a genuine issue of fact
as to whether it discriminated against the plaintiff.” Id. (internal quotation marks
omitted). WMC has put forth demonstrable evidence that it did not believe Fleenor
was meeting performance metrics as a shift foreman.
Specifically, Fleenor’s
supervisors testified to five occasions on which he failed to start a shift on time.
Additionally, supervisors observed that Fleenor appeared “lost” without his assistant
18
foreman and heard complaints from employees on his shifts about maintenance
delays. Frederickson cited these performance issues as the reason for his decision
to demote Fleenor and place him in a less demanding role. Fleenor casts doubt on
the veracity of this testimony, claiming that he was not counseled about the majority
of these alleged incidents. Indeed, there is no contemporaneous documentation in
the record of the purported delays or the counseling sessions Frederickson identified.
But, at this stage, the defendants need only proffer a legitimate reason for the
decision. They have done so.
Fleenor thus has the opportunity to demonstrate that WMC’s stated reason for
its decision “is a pretext for discrimination.” Kragor, 702 F.3d at 1308.9 He can do
so “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.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981). “In other words, the plaintiff has the opportunity to come
forward with evidence . . . sufficient to permit a reasonable factfinder to conclude
that the reasons given by the employer were not the real reasons for the adverse
employment decision.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th
9
Courts frequently describe the burden as shifting back to the plaintiff at the pretext stage, “but it
is more accurate to say that once the employer offers evidence of a legitimate, nondiscriminatory
reason for the adverse action, the McDonnell Douglas framework––with its presumptions and
burdens––disappears, and the sole remaining issue is discrimination vel non.” Kragor, 702 F.3d at
1308 n.1 (internal quotation marks omitted and alterations adopted).
19
Cir. 1997). “If a plaintiff produces sufficient evidence that the employer’s proffered
reason is merely pretextual, that evidence may sometimes be enough to preclude
summary judgment in favor of the employer.” Kragor, 702 F.3d at 1309. “The
opportunity provided to a plaintiff to show pretext is simply an opportunity to
present evidence from which the trier of fact can find unlawful discrimination.” Id.
at 1308 n.1.
To demonstrate pretext, Fleenor makes two primary arguments: (1) that he
was confronted about only two discrete performance issues, and (2) that
Frederickson made several comments about his age, including one just weeks before
the end of his employment. Fleenor contends that he was confronted on only one of
the five alleged instances of late-starting shifts and on one other occasion––the case
of the damaged coal chute.
“When a plaintiff chooses to attack the veracity of the employer’s proffered
reason, the inquiry is limited to whether the employer gave an honest explanation of
its behavior.” Kragor, 702 F.3d at 1310–11 (internal quotation marks omitted).
Where multiple inferences can be drawn from a set of facts, “reasonable inferences
are to be drawn in favor of the party opposing summary judgment.” Id. at 1311.
Summary judgment may be precluded where a plaintiff “cast[s] sufficient doubt on
[the employer’s] proffered nondiscriminatory reasons to permit a reasonable
factfinder to conclude that [its] proffered legitimate reasons were not what actually
20
motivated its conduct.” Combs, 106 F.3d at 1538.
Fleenor claims that Frederickson made “approximately six remarks” about his
age in the last year of his employment. Doc. 38 at 25; see also Doc. 31-1 at 11. On
one occasion, when discussing a misunderstanding among WMC workers about
Fleenor’s job status while he was on an injury-related leave of absence, Frederickson
asked, “How old are you, again?” Doc. 31-1 at 11. Fleenor replied, “You know
exactly how old I am,” and explained that he was 63 years old and would turn 64
during the next month. Doc. 31-1 at 11. Frederickson offered that “maybe you just
need to go ahead and move on,” to which Fleenor replied that he planned to work
until he was 66. Doc. 31-1 at 11. Fleenor does not remember the other dates on
which Frederickson asked him about his age, but testified that the first occurred soon
after Frederickson joined WMC. Doc. 31-1 at 39. Fleenor did not remember specific
details of the other occasions Frederickson inquired about his age. Doc. 31-1 at 40.
Fleenor also testified that in 2016 he said to O’Rear, “Well, I guess I’m the oldest
man on the property, now.” O’Rear replied, “I can tell you one thing, I don’t think
that’s a good thing.” Doc. 31-1 at 28.
The court concludes that Fleenor has submitted sufficient evidence to create
a triable issue of fact as to whether his purported performance issues were a pretext
for age discrimination. According to Fleenor, he was confronted about performance
issues only twice. The discrepancy between WMC’s record evidence of five
21
performance issues, none of which were documented contemporaneously, and the
two addressed at the meeting regarding Fleenor’s demotion cast some doubt on
WMC’s proffered reason for Fleenor’s demotion and could lead a reasonable juror
to conclude that WMC is not providing an “honest explanation of its behavior.”
Elrod v. Sears, Robuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); see also
Menefee v. Sanders Lead Co., Inc., 786 F. App’x 963, 966–67 (11th Cir. 2019)
(“When an employer asserts that it fired the plaintiff for poor performance . . . [the
employee] must demonstrate that the employer did not believe that his performance
was lacking, and merely used that claim as a cover for discriminating against him
based on his age.”). Indeed, the only two performance issues Fleenor remembers
are the same two issues discussed at the meeting among Fleenor, Frederickson, and
Sterling. See Doc. 31-1 at 43.
Compounding this doubt are the six age-related comments Fleenor contends
Frederickson made, including one in early October 2017, just a few weeks before
the demotion meeting.
In Damon v. Fleming Supermarkets of Florida,
Incorporated, 196 F.3d 1354, 1362 (11th Cir. 1999), a supervisor responsible for the
plaintiff’s termination told the plaintiff’s younger successor that he wanted
“aggressive, young men” to be promoted. The court found that this remark was
“highly suggestive circumstantial evidence from which a jury could infer
discriminatory animus” because it could show “probative evidence of the state of
22
mind of the decision-maker at the time” of the plaintiff’s termination. Id. The
comment also suggested that the decision maker “had an ageist preference for young
managers.” Id. “Given the substance, context, and timing” of the comment, if
credited, the court determined that it was “a significant piece of circumstantial
evidence.” Id. On the other hand, stray remarks “isolated and unrelated to the
challenged employment decision . . . are not direct evidence of discrimination,”
though they may “contribute to a circumstantial case for pretext.” Rojas v. Florida,
285 F.3d 1339, 1342 (11th Cir. 2002) (emphasis omitted).
Here, Fleenor has testified that Frederickson––his direct supervisor and the
man who made the decision to demote him––asked him for the sixth time about his
age just a few weeks before demoting him. According to Fleenor, when he told
Frederickson his age, Frederickson told him that it could be time for him to “move
on.” The court concludes that, like the comment in Damon, this comment, if
credited, could demonstrate Frederickson’s preference for a younger employee and
be probative of his state of mind immediately before he decided to demote Fleenor.
Moreover, if a jury believes Fleenor’s testimony, Frederickson’s comment could be
characterized as more than a stray remark since it was the sixth time Frederickson
had discussed Fleenor’s age in approximately a year and a half. The court finds that
this evidence, combined with Fleenor’s age and the age of his replacements, could
lead a rational trier of fact to infer discriminatory animus from WMC’s decision and
23
determine that its proffered reason for the decision to demote Fleenor is mere pretext
for age discrimination.
Fleenor’s age discrimination claims survive summary
judgment.
C.
Negligent Hiring
To establish a claim for negligent or wanton hiring, training, retention, or
supervision, a plaintiff must prove that the allegedly incompetent employee
“engage[d] in tortious conduct.” Williams v. United Launch All., LLC, 286 F. Supp.
3d 1293, 1311 (N.D. Ala. 2018). “The underlying wrongful conduct must constitute
a common-law, Alabama tort, not a federal cause of action such as Title VII.” Id.
(internal quotation marks omitted). Without an underlying state-law tort, a negligent
hiring, training, retention, or supervision claim fails. Id.
As this and other courts in this district have held, “the Alabama statutory cause
of action for age discrimination [is] not Alabama common law.” E.g., Shackelford
v. Publix Super Markets, Inc., 2014 WL 5148461, at *16 (N.D. Ala. Oct. 14, 2014);
see also Gibbons v. CVS Health Corp., 2019 WL 4014834, at *9 (N.D. Ala. Aug.
26, 2019) (holding, where a plaintiff alleged that the employer was “on notice” of
an employee’s allegedly discriminatory conduct, that the plaintiff could not rely on
his age discrimination claim as a basis for a negligent or wanton hiring, training,
supervision, or retention claim). Accordingly, Fleenor’s claim for negligent or
wanton hiring, training, supervision, or retention fails as a matter of law.
24
D.
Enterprise Liability
Having found that material disputes of fact prevent summary judgment on at
least some of Fleenor’s claims relating to his employment with WMC, the court must
address the extent to which any entity other than WMC could be liable for those
claims. Fleenor argues that both WMC, Inc. and WMC Holdco have liability
exposure for WMC’s conduct. WMC, Inc. owns WMC Holdco, which operates as
a holding company for various subsidiaries, including WMC. Doc. 30 at 29; see also
Doc. 38-6 at 46.
By statute only an employer can be held liable under the ADEA. E.g., Hendon
v. Kamtek, Inc., 117 F. Supp. 3d 1325, 1328 (N.D. Ala. 2015). An employer is
defined as “a person engaged in an industry affecting commerce who has twenty or
more employees for each working day in each of twenty or more calendar weeks in
the current or preceding calendar year.” 29 U.S.C. § 630(b). But the Eleventh Circuit
has “identified three circumstances in which it is appropriate to aggregate multiple
entities for the purposes” of determining the responsible parties in an employment
discrimination context. Lyes v. City of Riveria Beach, Fla., 166 F.3d 1332, 1341
(11th Cir. 1999). The only one of the three circumstances applicable to the facts at
hand is the “integrated enterprise” test, where multiple entities are “highly integrated
with respect to ownership and operations.” Id. (internal quotation marks omitted).
To determine whether two entities can be considered joint employers for liability
25
purposes, courts consider the following factors: “(1) interrelation of operations,
(2) centralized control of labor relations, (3) common management, and (4) common
ownership or financial control.” McKenzie v. Davenport-Harris Funeral Home, 834
F.2d 930, 933 (11th Cir. 1987). The term “employer” must be given a “liberal
construction.” Id.
To be considered an integrated enterprise, the entities must be “‘highly
integrated with respect to ownership and operations.’” Id. (quoting Fike v. Gold Kist,
Inc., 514 F. Supp. 722, 726 (N.D. Ala. 1981)). No one factor is controlling, and not
every factor must be present. Lyes, 166 F.3d at 1341. A “crucial element” of this
examination is whether the entities “exhibit centralized control of labor relations,
including tasks such as handling job applications, approving personnel status reports,
and exercising veto power over major employment decisions.” Parker v. Columbia
Pic. Indus., 204 F.3d 326, 341 (2nd Cir. 2000) (internal quotation marks omitted).
Indeed, the required showing has been described as “evidence of control suggesting
a significant departure from the ordinary relationship between a parent and its
subsidiary . . . to permit an inference that the parent corporation was a final decisionmaker in its subsidiary’s employment decisions.” Lusk v. Foxmeyer Health Corp.,
129 F.3d 773, 778 (5th Cir. 1997).
Although initially adopted by the National Labor Relations Board to
determine whether separate corporate entities should be consolidated, Bruce v. S&H
26
Riggers and Erectors, Incorporated, 732 F. Supp. 1172, 1175 (N.D. Ga. 1990),
courts have applied the integrated enterprise test in the employment discrimination
context to determine whether “separate entities should be treated as a single,
integrated enterprise when determining whether a plaintiff’s ‘employer’ comes
within the coverage of Title VII [of the Civil Rights Act of 1964].” Lyes, 166 F.3d
at 1341. Moreover, “given the common language and purposes of” Title VII and the
ADEA, courts apply the single enterprise test to age discrimination cases. E.g.,
Bruce, 732 F. Supp. at 1175; Lusk, 129 at 777 (applying the integrated enterprise test
“[t]o determine whether a parent corporation and its subsidiary may be regarded as
a ‘single employer’ under the ADEA”).
WMC asserts that Fleenor has submitted no evidence that the three entities
are interrelated such that they can be considered a joint employer. The court
disagrees, and finds that there is a question of material fact as to the level of
interrelation between WMC and WMC, Inc. WMC, Inc. describes itself as a
“holding company” with no operations or assets of its own other than “direct
ownership of 100% of the equity interests of” WMC Holdco, “through which [it]
indirectly hold[s its] operating subsidiaries,” including WMC. Doc. 38-6 at 46; see
also Doc. 38-6 at 60 (listing WMC as one of WMC, Inc.’s “administrative
headquarters and production facilities”); Doc. 38-7 at 68. Thus, there is evidence in
the record that the three entities share common ownership and financial control to
27
the extent that WMC is wholly owned by WMC Holdco, which is wholly owned by
WMC, Inc.
This shared ownership is the only meaningful record evidence of WMC
Holdco’s relationship to the other two entities. There is no other evidence bearing
on WMC Holdco’s operations, and thus nothing before the court even suggesting
that any of the other McKenzie factors are satisfied by the relationship between
WMC Holdco and WMC. Instead, the record before the court, including WMC,
Inc.’s annual report excerpted above, reveals that WMC Holdco is a shell existing
solely for passive ownership of WMC, Inc.’s operating subsidiaries. See Doc. 38-6
at 46. The parties have not identified any evidence establishing, for example, that
WMC Holdco has its own employees or carries on any operations independent of its
subsidiaries. Fleenor therefore has not directed the court to any evidence other than
common ownership from which it could conclude that the relationship between
WMC and WMC Holdco satisfies any aspect of the integrated enterprise test—and
common ownership alone is insufficient to create a triable issue of fact. See Shiflett
v. Shores Holding Co., Inc., 601 F. App’x 28, 30–31 (2nd Cir. 2015) (granting
summary judgment for a holding company where common ownership was “the only
factor of the [integrated enterprise] test weighing” in the plaintiff’s favor).
Accordingly, WMC Holdco is due to be dismissed as a defendant.
Turning back to WMC, Inc., Fleenor has pointed the court to evidence tending
28
to show at least some level of common management structure and operational
interrelation between this entity and WMC. First, there are employees working at
the WMC mines who either are employed by WMC, Inc. or directly report to WMC,
Inc. employees. For example, Jack Richardson (Frederickson’s direct supervisor)
serves as the COO of WMC, Inc. Docs. 31-2 at 32 & 38-6 at 140. O’Rear (Fleenor’s
direct supervisor) reports to WMC, Inc. Chief Executive Officer (“CEO”) Walt
Scheller. And Sherry Sterling’s supervisor in human resources reports to Kelly Gant
(WMC, Inc.’s Chief Administrative Officer and Secretary), who reports to Scheller.
Doc. 31-3 at 9–10 & 19. Second, in addition to this apparent blending of the WMC
and WMC, Inc. management structures, the employees who were deposed in this
case did not differentiate between the entities. In fact, while the parties assume in
briefing that Frederickson, O’Rear, and Sterling are employed by WMC, they have
not identified any direct evidence in the record supporting this assumption.
Frederickson testified that he “work[s] for Warrior Met Coal” and admitted that he
does not know the difference between WMC, WMC Holdco, and WMC, Inc.
Doc. 31-2 at 32. Similarly, O’Rear’s declaration states simply that he is “employed
by Warrior Met Coal.” Doc. 31-13 at 1. And Sterling testified that she does not
know which entity hired her, stating, “Warrior Met Coal, that’s the only name that I
know.” Doc. 31-3 at 9. When asked if she viewed WMC and WMC, Inc. as the same
company, she replied, “I just know it as Warrior Met Coal.” Doc. 31-3 at 10. This
29
testimony muddies the water and the parties have not directed the court to any
documentation clearing up even the simple question of which entity employs these
individuals. As a result of this uncertainty and the known commonality in the
management structure, the court must conclude that there is significant evidence in
the record of some degree of interrelated operations and management between WMC
and WMC, Inc.
There is limited evidence in the record regarding how, specifically,
employment decisions are made, and it is therefore unclear whether there is
centralized control of labor relations. Nevertheless, Frederickson testified that he
did not have to “run any decisions by” Jack Richardson, and instead would “keep
him informed on certain things.” Doc. 31-2 at 32. He did not communicate his
decision to demote Fleenor to Richardson. Doc. 31-2 at 32. Moreover, Sterling
testified that she and Frederickson interviewed both hourly and salaried employees
and made the hiring decisions.10 Doc. 31-3 at 21. Thus, this evidence suggests that
WMC made its own personnel decisions without input from WMC, Inc., cutting
against a finding of integration.
However, as Fleenor points out, WMC, Inc. describes WMC’s mines as its
own in its 2017 and 2018 annual reports. See, e.g., Doc. 38-6 at 18 (stating that
10
When asked to identify the entity that “pays the salaries for the employees at the Number 4
mine,” however, Sterling generically identified “Warrior Met Coal,” again without specifying
whether this is a reference to WMC or WMC, Inc. Doc. 31-1 at 20.
30
WMC, Inc. is “a large scale, low-cost U.S.-based producer and exporter of premium
met coal operating two highly productive underground mines in Alabama, Mine No.
4 and Mine No. 7”). WMC, Inc.’s annual reports also describe miners working in
WMC mines as WMC, Inc. employees. See, e.g., Doc. 38-6 at 29 (“As of December
31, 2017, we had 1,354 employees, of whom 957 were hourly employees and 397
were salaried employees . . . .”). WMC employees are subject to WMC, Inc.’s
Employee Handbook. Doc. 31-3 at 20; see also Doc. 38-8. And the Central Mining
Office that WMC, Inc. CEO Walt Scheller manages and where his office is located,
also houses the WMC employees’ personnel files and the employees who conduct
background investigations on prospective WMC employees. Doc. 31-3 at 14 &
20–22.
The defendants do little to counter Fleenor’s evidentiary basis for the
integrated enterprise test. They maintain that there is no evidence indicating that
WMC, Inc. made personnel decisions or that Frederickson worked “for or on behalf
of either parent company,” Doc. 30 at 30, but the defendants all but abandoned their
enterprise liability arguments in their reply brief by failing to respond specifically to
Fleenor’s contentions. Doc. 40 at 16 n.8. Ultimately the court concludes that
Fleenor’s evidence on the McKenzie factors raises a genuine issue of material fact.
McKenzie, 834 F.2d at 933. Here, as in McKenzie, there is demonstrable evidence
of “common ownership, and, to some extent, common management.” Id. The court
31
therefore finds that the defendants have not carried their burden of coming forth with
sufficient evidence to resolve all factual disputes as to whether WMC, Inc. may be
exposed to liability under the integrated enterprise doctrine. See, e.g., Parker, 204
F.3d at 341 (finding that genuine “factual issues remain[ed] for trial” where the
plaintiff introduced evidence, including disability forms and payroll forms listing
the defendant as his employer).
To be sure, on this record the court does not find that WMC and WMC, Inc.
are, in fact, an integrated enterprise. Fleenor’s burden to convince the jury of WMC,
Inc.’s liability will be a heavy one, as “[t]he doctrine of limited liability creates a
strong presumption that a parent corporation is not the employer of its subsidiary’s
employees.” Lusk, 129 F.3d at 778. Rather, the court’s conclusion is merely that
Fleenor has pointed to sufficient evidence in the record that, when viewed in the
light most favorable to Fleenor, indicates that the defendants have failed to meet
their burden to demonstrate beyond any genuine dispute of material fact that WMC,
Inc. is not liable for the claims against WMC. Summary judgment for WMC, Inc.
is due to be denied.
DONE and ORDERED on August 28, 2020.
_________________________________
GRAY M. BORDEN
UNITED STATES MAGISTRATE JUDGE
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