Wheat v. Rogers & Willard, Inc.

Filing 48

ORDER denying 28 Motion for Summary Judgment;denying as moot 44 Motion to Strike. Signed by District Judge William H. Steele on 9/26/17. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RALPH WHEAT,
Plaintiff,
v.
ROGERS & WILLARD, INC.,
Defendant.

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) CIVIL ACTION 16-0282-WS-B
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PUBLISH
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ORDER

This matter is before the Court on the defendant’s motion for summary
judgment. (Doc. 28). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 29, 30, 36, 38, 39, 45), and the motion
is ripe for resolution. After careful consideration, the Court concludes that the
motion is due to be denied.
BACKGROUND
According to the complaint, (Doc. 1), the plaintiff was employed by the
defendant as a project manager/estimator until he was terminated at the age of 77.
The single claim presented by the plaintiff is that he was terminated on the basis of
his age in violation of the Age Discrimination in Employment Act (“ADEA”).
DISCUSSION
Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003). “Therefore, the plaintiff’s version of the facts (to the extent
supported by the record) controls, though that version can be supplemented by
additional material cited by the defendants and not in tension with the plaintiff’s

2

version.” Rachel v. City of Mobile, 112 F. Supp. 3d 1263, 1274 (S.D. Ala. 2015),
aff’d, 633 Fed. Appx. 784 (11th Cir. 2016).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.1 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995); accord Gennusa v. Canova, 748 F.3d 1103, 1116 (11th Cir. 2014).
The Court accordingly limits its review to those arguments the parties have
expressly advanced.
“A plaintiff in an ADEA claim may establish a claim of illegal age
discrimination through either direct evidence or circumstantial evidence.” Mora v.
Jackson Memorial Foundation, Inc., 597 F.3d 1201, 1204 (11th Cir. 2010)
(internal quotes omitted). The defendant argues the plaintiff cannot succeed under
either approach; the plaintiff says he can succeed under both methods. The Court
agrees with the plaintiff as to the former and therefore does not reach the latter.
The parties agree that the plaintiff was terminated on May 2, 2014, when
he was 77 years old, and that Mike Rogers and Steve Willard, the majority owners
of the defendant, made the termination decision. (Doc. 29 at 12; Doc. 36 at 7-8).
In May 2013, Rogers attended a conference. His notes from the conference
dated May 29, 2013 include the following:

1

Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and
“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a
massive record ….” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d
1057, 1061 (11th Cir. 2011) (internal quotes omitted).

3

• Immediately under the heading, “Attracting and Retaining
employees,” Rogers wrote, “‘Fire all the old people.’ Fiat
president”;
• Next to this statement, Rogers wrote, “many large companies
bringing in new bloo[d]”;
• Three bullet points later, Rogers wrote, “Older Guys – Ralph &
Jerry – Mentor to their replacements – same with Diane”;
• Four bullet points later, Rogers wrote, “‘Paint’ a vision of what
company will look like in three years, i.e., new, younger employees
.…”
(Doc. 39-2 at 3). The parties agree that “Ralph” is the plaintiff.
“For statements of discriminatory intent to constitute direct evidence of
discrimination, they must be made by a person involved in the challenged
decision.” Bass v. Board of County Commissioners, 256 F.3d 1095, 1105 (11th
Cir. 2001) (internal quotes omitted). The defendant acknowledges that Rogers
was a decisionmaker regarding the plaintiff’s termination. (Doc. 29 at 12).
“Direct evidence is evidence that establishes the existence of discriminatory
intent behind the employment decision without any inference or presumption.”
Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). “Only
the most blatant remarks, whose intent could be nothing other than to discriminate
on the basis of age, … constitute direct evidence of discrimination.” Van Voorhis
v. Hillsborough County Board of County Commissioners, 512 F.3d 1296, 1300
(11th Cir. 2008) (internal quotes omitted). Examples of direct evidence of age
discrimination, as characterized by the Eleventh Circuit, include the following:
• Decisionmaker stated that “he did not want to interview [any of the
applicants] because he didn’t want to hire an old pilot”;2

2

Van Voorhis, 512 F.3d at 1298, 1300.

4

• Decisionmaker stated that when the assistant manager’s position
came open, “the company would be looking for a person younger
than [the plaintiff] to fill it”;3
• Decisionmaker expressed surprise at longevity of staff members,
indicated the hospital needed “new blood” and that he intended to
recruit younger doctors and nurses, and commented on the plaintiff’s
“advanced age”;4
•

A hypothetical memorandum saying, “Fire Earley – he is too old.”5

The Eleventh Circuit has in addition repeatedly found direct evidence of
race or gender discrimination in less precise statements. See, e.g., Haynes v. W.C.
Caye & Co., 52 F.3d 928, 930 (11th Cir. 1995) (decisionmaker said he felt women
were not tough enough for the job of overseeing collections); see also Merritt v.
Dillard Paper Co., 120 F.3d 1181, 1189-90 (11th Cir. 1997) (collecting cases).6
The defendant offers three reasons that Rogers’ notes cannot constitute
direct evidence of age discrimination in the plaintiff’s termination: (1) the notes
are too vague, in that they do not say, “Fire Ralph”; (2) Rogers offers an innocent
explanation of those notes, which is controlling as to their meaning; and (3) the
notes were written almost a year before the plaintiff’s termination. (Doc. 45 at 1415). None of these reasons withstand scrutiny.

3

Lindsey v. American Cast Iron Pipe Co., 772 F.2d 799, 801, 802 (11th Cir.

4

Buckley v. Hospital Corp. of America, 758 F.2d 1525, 1530 (11th Cir. 1985).

5

Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

1985).

6

The Eleventh Circuit has employed the same analysis of direct evidence
regardless of the protected category involved. Indeed, while Merritt involved direct
evidence in a retaliation context, the panel relied on cases discussing direct evidence in
the contexts of race, gender and age. 120 F.3d at 1189-90. The defendant as well relies
on direct evidence cases involving age, gender, race and religion. (Doc. 45 at 13-14 &
nn.22-25).
5

As the examples cited above reflect, direct evidence is not limited to “fire
[the plaintiff], he’s too old.” In any event, that is exactly what Rogers’ notes say:
“Fire all the old people,” with the plaintiff identified as an “older guy.” To “fire
all the old people” is to fire them precisely because they are old, and identifying
the plaintiff as an “older guy” directly marks him for termination because of his
age. There is not the slightest subtlety or ambiguity in this statement, and it falls
easily within the “most blatant” of remarks.
The defendant offers Rogers’ affidavit for the proposition that he did not
really mean what his notes say. He did not really mean the defendant should “fire
all the old people” but was only remembering what he had heard spoken in jest by
the president of Fiat at an earlier conference. He did not really mean the defendant
should “bring in new blood” but was only remembering what he had heard at the
earlier conference. He did not really mean he intended to “replace” the plaintiff
and other “older guys,” only that they should become mentors to younger project
managers. And by expressing a three-year “vision” of the defendant with “new,
younger employees,” he did not mean that older employees should go, only that
the defendant should anticipate and prepare for the future. (Doc. 29 at 15-16; Doc.
30-2 at 21-22). The defendant asserts that the plaintiff “has no evidence to rebut”
Rogers’ explanation of his notes and of his mental state regarding them. (Doc. 45
at 3). Thus, the defendant concludes, Rogers’ testimony “provides the true
meaning of his notations, which Plaintiff cannot dispute.” (Id.; accord id. at 15).
“Direct evidence is evidence which, if believed, proves the existence of a
fact without inference or presumption.” Scott v. Suncoast Beverage Sales, Ltd.,
295 F.3d 1223, 1227 (11th Cir. 2002) (emphasis added); accord Hamilton v.
Southland Christian School, Inc., 680 F.3d 1316, 1320 (11th Cir. 2012). If the jury
believes that Rogers wrote, “fire all the old people” and that he identified the
plaintiff as an “older guy,” that statement alone would entitle the jury to find,
without inference or presumption, that the defendant fired the plaintiff because of

6

his age.7 The defendant proposes that the plaintiff’s evidence should not be
believed as accurately expressing Rogers’ true intent, but whether to believe the
evidence is not a proper inquiry at the summary judgment stage.
Of course, “[i]n a direct evidence case, the plaintiff must produce direct
testimony that the employer acted with discriminatory motive, and must convince
the trier of fact to accept the testimony.” EEOC v. Alton Packaging Corp, 901
F.2d 920, 923 (11th Cir. 1990) (emphasis added). Just as a defendant can offer
evidence that its representative did not make the statement constituting direct
evidence, it can offer evidence that its representative did not mean what his words
on their face reflect. In either situation, if the trier of fact accepts the defendant’s
version, the plaintiff cannot prevail at trial on a direct evidence theory.
What the defendant suggests, however, is that Rogers’ spin on what he
wrote prevents the plaintiff from ever reaching the jury on a direct evidence
theory. The defendant is mistaken. Just as testimony that the defendant’s
representative made a statement creates a fact issue for the jury even though the
representative denies making the statement,8 the content of the alleged statement
creates a fact issue for the jury as to the representative’s intent even though the
representative offers an alternative explanation for his words. Indeed, by
definition direct evidence consists of statements so stark that the very language
they employ admits of no non-discriminatory construction. Van Voorhis, 512 F.3d
at 1300. Thus, while it is permissible for a defendant to go behind the words to
address their context or the author’s thought process in expressing them, the jury is
not required to accept such self-interested explanations over the plain meaning of
the words themselves. As in Mora, “[a] reasonable juror could find that [Rogers’]

7

The other statements in Rogers’ notes may not independently constitute direct
evidence, but they echo and bolster the discriminatory intent manifest in “fire all the old
people.”
8

E.g., Dixon v. Hallmark Cos., 627 F.3d 849, 855 (11th Cir. 2010); Bass, 256 F.3d

at 1112.
7

statements should be taken at face value and that [the defendant] fired Plaintiff
because of [his] age.” 597 F.3d at 1204 (vacating entry of summary judgment for
the defendant on this basis).
The defendant offers no legal authority for its position that it can obtain
summary judgment simply by its decisionmaker’s assertion that he did not mean
what he wrote – a position which, if accepted, would amount to an automatically
successful “just kidding” defense. For reasons stated above, the Court rejects the
defendant’s unsupported argument.
The defendant’s timing argument is foreclosed by Lindsey v. American
Cast Iron Pipe Co., 772 F.2d 799 (11th Cir. 1985). On October 1, 1979, the
plaintiff asked about an assistant manager position he had heard might be coming
open. He was told that, “when the position opened up, the company would be
looking for a person younger than [the plaintiff] to fill it.” Id. at 801. When the
assistant manager’s position opened up “in the spring of 1981,” the company
offered the job to a substantially younger employee. Id. Even though the only
statement at issue was made approximately 1½ years before the adverse
employment action, the Lindsey Court held that the statement constituted direct
evidence. Id. at 802. The maximum relevant time gap here is approximately
eleven months – from May 29, 2013 to May 2, 2014.9 Thus, under Lindsey, the

9

Because Rogers’ notes say, “fire all the old people,” involuntary separations of
other older employees are evidence the defendant acted on that basis and may serve to
shorten the relevant time gap. It is uncontroverted that the defendant fired Lillian Dobbs
and accepted the coerced resignation of Bill Dobbs (receptionist and superintendent,
respectively) in 2013, after the May conference, and non-renewed Jerry Ingle (contractor
project manager identified as one of the “older guys” in Rogers’ notes) in February 2014.
The Dobbses were in their middle to late 60’s, and Ingle was 73. (Doc. 38-5 at 12-13;
Doc. 38-10 at 21-22, 27, 36). There is thus evidence the defendant began “fir[ing] all the
old people” no more than seven months after Rogers’ notes. The defendant denies any
age discrimination regarding these separations, but for present purposes the significant
point is that the defendant began firing the old people within months after Rogers wrote
his notes and that it continued doing so until it terminated the plaintiff.

8

plaintiff’s direct evidence was not transformed into circumstantial evidence by the
lapse of time.
Although uncited by the defendant, the Court is aware of two unpublished
appellate decisions that might draw the foregoing conclusion into question. “A
biased statement, separate in time from the employment decision under challenge,
is not direct evidence of discrimination.” Williamson v. Adventist System/Sunbelt,
Inc., 372 Fed. Appx. 936, 940 (11th Cir. 2010). “To qualify as direct evidence of
discrimination, we require that a biased statement by a decision-maker be made
concurrently with the adverse employment event, such that no inference is
necessary to conclude that the bias necessarily motivated the decision.” Id. “In
order to constitute direct evidence, the evidence must directly relate in time and
subject to the adverse employment action at issue.” Jones v. BE&K Engineering
Co., 146 Fed. Appx. 356, 358 (11th Cir. 2005). “Because the statements here were
made subsequent to the [adverse employment action] and did not refer to
statements made during the decision-making process, the statements are not direct
evidence of age discrimination.” Id. at 359. Because timing was the only reason
given by either opinion for rejecting the plaintiff’s proposed direct evidence, and
because both decisions affirmed summary judgment for the defendant, the quoted
statements appear to express holdings.10
Jones and Williamson are unpublished. “Unpublished opinions are not
controlling authority and are persuasive only insofar as their legal analysis
warrants.” Rogers v. Secretary, Department of Corrections, 855 F.3d 1274, 1278
n.1 (11th Cir. 2017) (internal quotes omitted). To the extent Jones and Williamson
might suggest that the passage of time downgraded Rogers’ notes from direct
evidence to circumstantial evidence, the Court does not find them persuasive.

10

“The holding of a case comprises both the result of the case and those portions
of the opinion necessary to that result.” United States v. Caraballo-Martinez, 866 F.3d
1233, 1244 (11th Cir. 2017) (internal quotes omitted).

9

In light of Lindsey and other cases, Williamson’s declaration that only
statements made “concurrently with the adverse employment event” may
constitute direct evidence cannot be credited. As noted, the statement in Lindsey
was uttered approximately 1½ years before the plaintiff was denied promotion. In
Buckley v. Hospital Corp. of America, 758 F.2d 1525 (11th Cir. 1985), most of the
direct evidence consisted of statements made approximately two years before the
plaintiff was terminated.11 In Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497
(11th Cir. 1985), the Court found two pieces of direct evidence, the first of which
preceded the plaintiff’s termination by approximately two years.12 In Miles v.
M.N.C. Corp., 750 F.2d 867 (11th Cir. 1985), the direct evidence preceded the
denial of recall by perhaps as much as two years.13 In Sennello v. Reserve Life
Insurance Co., 872 F.2d 393 (11th Cir. 1989), the statements constituting direct
evidence were made “in the weeks and months preceding the demotion and
subsequent firing of” the plaintiff. Id. at 394-95 (internal quotes omitted).
The Williamson panel provided no rationale for its limitation of direct
evidence to statements made contemporaneously with the challenged employment
decision; instead, it simply cited to Damon v. Fleming Supermarkets, Inc., 196
F.3d 1354 (11th Cir. 1999). Damon, however, neither states nor supports the
proposition for which Williamson cited it. The Damon Court held only that, where
the plaintiff alleged he was terminated because of his age, a statement by the
11

The Eleventh Circuit identified the direct evidence as the new hospital
administrator’s comments about the staff’s longevity, his belief the hospital needed “new
blood,” his intent to recruit younger doctors and nurses, and the plaintiff’s “advancing
age.” 758 F.2d at 1530. All of these comments but the last were made in 1978; the
plaintiff was terminated in late 1980. Id. at 1527-29.
12

Before the decisionmaker became the plaintiff’s supervisor in September 1980,
he said that, if it were up to him, he would have no women employees; the plaintiff was
constructively discharged in July 1982. 777 F.2d at 1499-1501.
13

In 1978 or 1979, the decisionmaker stated that the company had no blacks
because “[h]alf of them weren’t worth a shit”; the plaintiff was denied recall between
January and June 1980. 750 F.2d at 872, 874-75.

10

decisionmaker that the company needed “aggressive young men like [the
plaintiff’s replacement] to be promoted” was not direct evidence because,
“[t]hough probative circumstantial evidence of [the decisionmaker’s] state of
mind, the comment still requires us to infer that [his] interest in promoting young
men motivated his decision to terminate [the plaintiff].” Id. at 1359 (emphasis
omitted). While it noted that the timing of the statement (immediately after the
plaintiff’s termination) supported the plaintiff’s argument that it constituted direct
evidence, id., the Damon panel in no way suggested that such tight temporal
proximity is a prerequisite to a statement being deemed direct evidence. In light
of the cases cited above, it could not have done so.
Williamson has not been cited in any Eleventh Circuit opinion. While a
number of trial courts within the Circuit have cited and/or relied on Williamson,
the Court’s review of them reveals no explanation of or support for Williamson’s
“concurrently with” restriction on direct evidence.14 Because it provided no
rationale for this restriction, because no other court has done so, and because
published Eleventh Circuit decisions are irreconcilable with it, the Court declines
to follow Williamson.
While Jones also addresses the significance of timing in the determination
whether a statement constitutes direct evidence, it does so in less precise terms
than Williamson. Under Jones, direct evidence “must directly relate in time … to
the adverse employment action at issue.” 146 Fed. Appx. at 358. The terminated
plaintiff in Jones was required to arbitrate his age discrimination claim, and he
relied on statements made at the arbitration hearing (and in discovery preceding
the hearing) as direct evidence of age discrimination. 146 Fed. Appx. at 357-58.

14

This critique extends to the two previous opinions of this Court citing
Williamson. See Bell v. Crowne Management, LLC, 844 F. Supp. 2d 1222, 1226 (S.D.
Ala. 2012); Woods v. Austal, U.S.A., LLC, 2011 WL 1380054 at *11 (S.D. Ala. 2011).
Neither decision examined, or relied on, the accuracy of Williamson in resolving the
motions under consideration.

11

The Jones panel ruled that, “[b]ecause the statements here were made subsequent
to the RIF and did not refer to statements made during the decision-making
process, the statements are not direct evidence of age discrimination.” Id. at 359.
Jones thus appears to equate “directly relate[d] in time” with “during the decisionmaking process.”15
If this is all Jones stands for, it is consistent with the Court’s ruling; if
Rogers’ notes are believed by the jury, they reflect a decision to fire the plaintiff
and thus were written during the decision-making process.
But Jones appears to envision a more specific temporal connection with the
adverse employment decision. Jones relied on Standard and Scott, citing Scott for
the proposition that a statement made over two years before (not after) the adverse
employment action was not direct evidence. 146 Fed. Appx. at 358-59. And
Standard concluded (in a passage uncited by Jones) that, “[a]lthough these
statements [offered by the terminated plaintiff] may constitute direct evidence of
discriminatory intent in refusing to hire production workers at those times,” they
were not direct evidence supporting the plaintiff’s case because they required one
to “infer that the same discrimination applied to the tooling department positions
at a significantly later date.” Id. at 1330-31 (emphasis added). At least two of the
three statements relied on by the plaintiff in Standard were made over a year
before he was terminated.16
15

It appears that Jones understood Standard’s rule that statements constituting
direct evidence must be “[r]elated to” the decisionmaking process, 161 F.3d at 1330, as
meaning they must be “made during” the decisionmaking process. But a reminiscence by
a decisionmaker about how a past decisionmaking process unfolded is most naturally
viewed as related to that process. The automatic exclusion of post-decision statements
from the realm of direct evidence, as per Jones, would prevent even a decisionmaker’s
post hoc explicit admission that her employment decision had been based on a protected
characteristic from being deemed direct evidence. It seems doubtful the Eleventh Circuit
would embrace such a curious result.
16

The plaintiff was terminated in late December 1995. 161 F.3d at 1325. One
statement was made before the plaintiff was hired in July 1994, and another was made a
few months later. Id. at 1323-24, 1330. The date of the third statement is not provided.
12

While Standard and Scott mention timing, neither decision depended on
timing for its result. The Eleventh Circuit has recognized that, “when the
employer … makes a specific comment in relation to a specific job or promotion,
we believe that the value of that comment as direct evidence is limited to a
challenge to that specific job or employment decision.” Burrell v. Board of
Trustees, 125 F.3d 1390, 1393 n.7 (11th Cir. 1997) (employer’s statement
regarding promotion to one job could not be direct evidence regarding termination
from a different job). This rule governed both Standard17 and Scott18 and dictated
their result regardless of any question about timing.
It is thus not clear that any published Eleventh Circuit decision has ever
developed any temporal limitations on the use of direct evidence, and Lindsey,
Buckley and Bell establish that, at least when (as here) the statement is sufficiently
explicit and sufficiently tied to a particular employment decision, its staying power
as direct evidence is measured in years. Neither Jones, the cases it cites nor the
cases citing it offer any reason to believe otherwise.
“If the plaintiff offers direct evidence and the trier of fact accepts that
evidence, then the plaintiff has proven discrimination.” Maynard v. Board of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). The defendant makes no
argument that it can obtain summary judgment despite the plaintiff’s direct
evidence. (Doc. 45 at 14-15).
Because the plaintiff’s direct evidence requires the denial of the defendant’s
motion, the Court does not consider whether he could also avoid summary
17

Standard was captured by this rule because the plaintiff attempted to
extrapolate statements regarding hiring in one department to firing in another department.
161 F.3d at 1330.
18

Scott involved a statement by the plaintiff’s co-worker (later his supervisor),
during a discussion of the plaintiff’s absence for jury duty, that “We’ll burn his black
ass.” 295 F.3d at 1227. Scott was captured by this rule because the plaintiff attempted to
extrapolate to a termination context a statement regarding retaliation for missing work for
jury duty.

13

judgment under a circumstantial evidence theory. See Merritt, 120 F.3d at 1191
(“Because we hold that [the plaintiff] has presented sufficient direct evidence to
survive summary judgment, we do not address his McDonnell Douglas argument
and whether he has presented evidence of pretext.”).
CONCLUSION
For the reasons set forth above, the defendant’s motion for summary
judgment is denied.19
DONE and ORDERED this 26th day of September, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

19

The defendant’s motion to strike, (Doc. 44), is denied as moot, since the Court
has not considered the evidentiary materials made the subject of that motion.
14