Lane v. G.A.F Material Corporation et al

Filing 84

ORDER: Defendant G.A.F. Materials Corporation's Motion for Summary Judgment and Incorporated Memorandum of Law 69 is GRANTED. The Clerk is directed to enter final judgment in favor of Defendant and against Plaintiff. The Clerk of Court is directed to close this case and terminate any pending motions as moot. Signed by Judge James S. Moody, Jr on 3/25/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CALEB LANE ,
Plaintiff,
v.

Case No. 8:11-cv-2851-T-30TBM

G.A.F. MATERIAL CORPORATION,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant G.A.F. Materials
Corporation’s Motion for Summary Judgment and Incorporated Memorandum of Law (Dkt.
69) and Plaintiff’s Response to Defendant G.A.F. Materials Corp.’s Motion for Summary
Judgment (Dkt. 83). The Court, having reviewed the motion, response, record evidence, and
being otherwise advised in the premises, concludes the motion for summary judgment should
be granted.
BACKGROUND1
In his second amended complaint, Plaintiff Caleb Lane alleges two counts against
Defendant G.A.F. Materials Corporation: (1) discriminatory termination under 42 U.S.C. §
1981 and (2) a hybrid § 301/fair representation claim. Count II was also alleged against
Defendant United Steelworkers Local 9-458 (“USW”), but the Court granted the joint motion

1

These facts are taken in a light most favorable to Lane, the non-movant.

by Lane and USW for a stipulation of dismissal with prejudice pursuant to Rule
41(a)(1)(A)(ii).2
GAF manufactures residential and commercial roofing products, including shingles.
Lane, an African-American, was hired by GAF on February 1, 2008, where he worked as a
general laborer and coater operator. During his employment with GAF, Lane worked under
the terms of the collective bargaining agreement (“CBA”) between GAF and USW. The
CBA explicitly prohibits discrimination against any employee on the basis of race, as does
GAF’s Rules of Conduct.
In August of 2008, Lane submitted a bid for a coater operator position. The selection
was based on seniority and Lane stated that nobody really likes the position, so there were
not many applicants. Marcus Evans, another coater operator, trained Lane for approximately
a week, which Lane claims is insufficient time to learn how to perform his job adequately.
Lane admits that his position is very important to the production line because if the granules
were not correct, the finished product would be substandard and GAF could not sell it.
As a coater operator, Lane’s duties included making color changes to the granules
blend and testing the granules blend quality. Lane learned to conduct two different types of
tests to ensure the mix did not have any defects. The first method for completing a sample
match blend test required the operator to physically pull a sample of the granules blend by
using a “long handle sampler” and comparing it to samples previously taken. This was the

2

The Court’s order of January 11, 2013, contains the procedural history of the case. Dkt. 59.
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standard operating procedure for GAF found in written company policy and officially
included in a coater operator’s duties. Alternatively, Lane claims he was instructed to use
a visual test by “checking the product in the looper” without collecting a sample. There is
no evidence that this second method, although apparently done by employees and permitted
by supervisors, was formally authorized by GAF policy. A coater operator was required to
conduct a sample match blend test each hour of his shift and enter the results into a computer
program called WINSPC.
Prior to July 15, 2010, Lane had informed his supervisor, Norvel Coleman, that there
was a problem with the sample bottles used in the former method for completing a sample
blend test. Coleman instructed Lane to observe the overhead looper as a substitute for
performing the sample match blend test because the samples were contaminated.
Additionally, Coleman testified that Lane was still expected to log his sample match blend
tests in the WINSPC.
On July 15, 2010, Lane worked as a coater operator from 3 p.m. to 9 p.m. Lane
claims he conducted a test every hour by checking the looper and recorded those tests in
WINSPC. After 8 p.m., the video surveillance shows Lane conducted a sample match blend
test by pulling samples using the long handle sampler, rather than checking the blends in the
overhead looper. When Shane Green took over Lane’s duties at 9 p.m., Green conducted a
sample match blend test by pulling samples rather than conducting a visual test. Green
noticed the colors of the granules did not match and notified his supervisor. By the time the
production line was shut down, 1,526 squares of substandard shingles were lost and GAF lost
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approximately $53,410.00. It is estimated that this production loss began between 4 p.m. and
5 p.m. during Lane’s shift.
Operations Manager Daniel DeJarnette investigated the incident leading to this
production failure. DeJarnette determined several individuals contributed to this incident,
including Norvel Coleman, Damian McDonald, Walter Butler, Lenton Douglas, and Lane.
All these men, except Lane, admitted their part in the production failure and received written
warnings. Notably, all these fellow crew members of Lane are also African-American.
When DeJarnette met with Lane, DeJarnette claims Lane refused to accept any
responsibility for the production failure and that Lane told him he followed standard
operating procedure by conducting the sample match blend test each hour of his shift.
DeJarnette found this explanation suspicious because Green discovered the problem as soon
as he arrived on his shift. When DeJarnette reviewed the video surveillance, it showed that
Lane had not conducted the tests every hour according to the written policy of using the long
handle sampler, but only conducted that type of test sometime after 8:10 p.m. Based on
DeJarnette’s investigation, he found Lane to be the only member of his crew who did not
admit wrongdoing, and, more significantly, the only crew member to have falsified company
documents by inputting into WINSPC that he conducted sample blend tests. Falsification
of company records is a violation of Company policy, and DeJarnette recommended Lane
be terminated. On July 21, 2010, GAF terminated Lane for falsification of company
documents.

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In the second amended complaint, Lane points to two white coater operators, Rick
Bishop and Shane Green, who were not terminated after causing defective roofing shingles.
Lane testified he is unaware of any other GAF employee who was accused of falsifying
company records. GAF submitted an affidavit of Becky Ewing, a human resources assistant
at GAF, that stated a white female employee was terminated in 2009 for falsifying company
records. She was the only other employee accused of falsifying records during Lane’s
employment at GAF, and both were terminated as a result.
GAF now moves for summary judgment on both counts, arguing that Lane has failed
to present any evidence showing he was terminated based on his race. Lane responds that
GAF’s proffered reason, falsification of records, is merely pretext for unlawful
discrimination because Lane could not reasonably be expected to know he was falsifying
records based on his inadequate training.
SUMMARY JUDGMENT STANDARD OF REVIEW
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
show there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The existence of some factual disputes between the litigants will not defeat an
otherwise properly supported summary judgment motion; “the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (emphasis in original). The substantive law applicable to the claimed causes of action
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will identify which facts are material. Id. Throughout this analysis, the court must examine
the evidence in the light most favorable to the non-movant and draw all justifiable inferences
in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior Tombigbee
Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a
material fact is genuine and summary judgment is inappropriate if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248;
Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a
conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).

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DISCUSSION
I.

Count I: Discriminatory Termination - 42 U.S.C. § 1981
The elements of a claim of racial discrimination under 42 U.S.C. § 1981 are the same

as a Title VII disparate treatment claim in the employment context. Rice-Lamar v. City of
Ft. Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000). In the absence of direct
evidence of racial discrimination, a district court analyzes the circumstantial evidence by
using the framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264
(11th Cir. 2010).
Under the burden-shifting framework, a plaintiff bears the initial burden of presenting
sufficient evidence to allow a reasonable jury to determine that he has satisfied the elements
of his prima facie case. Id.

A plaintiff may establish a prima facie case by showing that

(1) he is a member of a protected class; (2) he was subjected to an adverse employment
action; (3) his employer treated similarly situated employees outside his protected class more
favorably than he was treated; and (4) he was qualified to do the job. Burke-Fowler v.
Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).3
3

Lane argues that prong three should be whether his former position was filled by a nonminority, or, in the alternative, whether a similarly situated person who is not in his protected
category was treated more favorably. For support of this position, Lane cites Jones v. Lumberjack
Meats, Inc., 680 F.2d 98, 101 (11th Cir. 1982). The overwhelming majority of Eleventh Circuit
precedent indicates this prong is whether similarly situated employees outside the plaintiff’s
protected class were treated more favorably. See, e.g., Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1264 (11th Cir. 2010); Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.
2001); Rice-Lamar, 232 F.3d at 842; Selby v. Tyco Healthcare Grp., L.P., 301 Fed. App’x 908, 911
(continued...)
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A rebuttable presumption arises once a plaintiff presents a prima facie case. Alvarez,
610 F.3d at 1264. The employer may rebut that presumption by offering a legitimate, nondiscriminatory reason for the adverse employment action. Id. The burden then shifts back
to the plaintiff to prove the proffered reason is a mere pretext for unlawful discrimination.
Id. The plaintiff may satisfy his burden by offering evidence that a defendant more likely
than not acted with a discriminatory motive, or by showing that its proffered reasons are not
credible, “unless the record shows that the real motive was a non-proffered reason that is
non-discriminatory.” Id. at 1265.4 “The district court must evaluate whether the plaintiff has
demonstrated ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.’” Silvera v. Orange Cnty. Sch. Bd., 244
F.3d 1253, 1258 (11th Cir. 2001). Despite the burden-shifting framework, the plaintiff
maintains the ultimate burden to show the employer intentionally discriminated against him.
Alvarez, 610 F.3d at 1265.

3

(...continued)
(11th Cir. 2008); Hall v. Dekalb Cnty. Gov’t, 2013 WL 104810, at *5 (11th Cir. Jan. 9, 2013); but
see Coutu v. Martin Cnty. Bd. of Cnty. Comm’rs., 47 F.3d 1068, 1073 (11th Cir. 1995); Lee v.
Russell Cnty. Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982). Moreover, “[t]he methods of
presenting a prima facie case are flexible and depend on the particular situation,” Alvarez, 610 F.3d
at 1264, and it is appropriate to compare similarly situated employees given this case concerns
termination, not a job promotion or new position.
4

Although GAF argues the primary reason is falsification of records, the Court notes that an
alternative non-discriminatory reason for GAF’s actions could be Lane’s refusal to admit
responsibility for the accident.
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GAF argues that Lane fails to establish even a prima facie case. There is no dispute
that Lane meets the first, second, and fourth elements of his prima facie case. Lane is
African American, he was terminated, and he was qualified to be a coater operator. Lane and
GAF disagree whether employees who did not belong to the protected class were “involved
in or accused of the same or similar conduct and [were] disciplined in different ways.” Id.
(quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).5
“In determining whether employees are similarly situated for purposes of establishing
a prima facie case, it is necessary to consider whether the employees are involved in or
accused of the same or similar conduct and are disciplined in different ways.” Silvera, 244
F.3d at 1259 (quoting Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1311 (11th Cir.
1998), opinion modified by 151 F.3d 1321 (11th Cir. 1998)). “[T]he quantity and quality of
the comparator’s misconduct [must] be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” Maniccia,
171 F.3d at 1368.
Here, Lane points to Rick Bishop as a white employee who was similarly situated to
himself in that Bishop caused damage to shingle production approximately twenty to thirty
days before July 15, 2010, yet Bishop was not terminated for failing to conduct proper
sample match blend tests. GAF responds that Bishop is an inappropriate comparator because
there is no evidence that Bishop falsified company records, which is GAF’s primary reason
5

As discussed above, Lane first argues that the appropriate comparator is Jason Rumbler, a
white male who assumed Lane’s position as coater operator on the “B” shift after Lane’s
termination.
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for terminating Lane. The Court agrees. An appropriate comparator would be an employee
outside of Lane’s protected class who was also accused of falsifying company records. GAF
provided one: Melissa Bowe, a white female who was terminated for falsifying company
records in June 2009. Lane does not dispute or offer contradictory evidence that Bowe was
terminated for the same misconduct and that she is outside Lane’s protected class, nor does
Lane point to a white employee who was not terminated for falsifying company records.6 As
such, Lane fails to present a prima facie case of discrimination.
However, assuming arguendo that Lane can establish a prima facie case, the record
lacks any evidence that would give rise to an inference that GAF terminated Lane based on
his race. GAF sets forth a legitimate, non-discriminatory reason for Lane’s termination,
thereby shifting the burden back to Lane to prove the proffered reason is mere pretext for
unlawful discrimination. Lane does not carry this burden because he cannot show that
GAF’s reason is not credible nor does he present evidence that GAF more likely than not
terminated him because of a discriminatory motive.
“Caleb Lane is terminated effective July 21, 2010 for falsification of Company
documents.” See Dkt. 82-1, Ex. 13. That statement was GAF’s primary reason noted on
Lane’s Disciplinary Action Form and it is the same reason GAF has proffered throughout this
lawsuit. There is no dispute in the record that GAF’s Rules of Conduct clearly make

6

In the second amended complaint, Lane alleges that Rick Bishop and Shane Green are two
white comparators. However, in his response to the motion for summary judgment, Lane admits that
he does not have sworn testimony from Green to support his allegation that Green was a coater
operator who experienced a similar incident yet was not terminated.
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falsifying company records a terminable offense. See Dkt. 82-1, Ex. 4. There is no dispute
in the record that Lane received a copy of the Rules of Conduct. See Dkt. 82, Lane’s Depo.,
129:9-20. There is no dispute that GAF written policy requires using the long handle
sampler to conduct the sample blend match test, and Lane acknowledged that method was
the standard operating procedure. Dkt. 82, Lane’s Depo. 147:7-25; Dkt. 82-1, Ex. 11.
Therefore, it is a legitimate reason to believe Lane falsified company records by inputting
in WINSPC that he conducted the sample blend match tests when he did not actually follow
the required method.
Furthermore, the only other employee, a white female, accused of falsifying company
records during Lane’s employment was also terminated. See Dkt. 76, Ewing Aff., ¶ 3. This
fact supports GAF’s decision to terminate Lane as legitimate based on company practice.
Accordingly, GAF has proffered a legitimate, non-discriminatory reason for his termination.
See Simpson v. Fla. Dep’t of Corr., 134 Fed. App’x 303, 305 (11th Cir. 2005) (affirming
district court grant of summary judgment because plaintiff failed to show employer’s reason
for termination, submission of false time sheets and failure to cooperate with investigation,
were pretext).
After GAF proffered a legitimate, non-discriminatory reason, Lane’s burden is to
show that GAF’s proffered reason, falsification of company records, is not only ill-founded
but also that unlawful discrimination was the true reason. Alvarez, 610 F.3d at 1266 (citing
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000). The Eleventh Circuit has
aptly described the focal point of the issue of pretext:
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The inquiry into pretext centers on the employer’s beliefs, not the
employee’s beliefs and, to be blunt about it, not on reality as it exists outside
the decision maker’s head. The question is not whether it really was Alvarez’s
fault that assignments were not completed on time, or whether she did delegate
excessively, or whether she was aggressive and rude to her colleagues and
superiors, or whether she actually lost an important document or truly did fall
asleep at her desk. The question is whether her employers were dissatisfied
with her for these or other non-discriminatory reasons, even if mistakenly or
unfairly so, or instead merely used those complaints about Alvarez as cover for
discriminating against her because of her Cuban origin.
Alvarez, 610 F.3d at 1266 (internal citations omitted).
“[A]n employer who fires an employee under the mistaken but honest impression that
the employee violated a work rule is not liable for discriminatory conduct.” Hudson v. Blue
Cross Blue Shield of Ala., 431 Fed. App’x 868, 869 (11th Cir. 2011) (quoting Damon v.
Fleming Supermarkets of Fla., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999)). This is true if an
employer set unreasonable or nearly impossible standards that made it difficult for employees
to comply with work rules. Alvarez, 610 F.3d at 1267 (finding no pretext on behalf of
employer’s reason because “[employer] was free to set unreasonable or even impossible
standards, as long as [it] did not apply them in a discriminatory manner.”). However, “[a]n
asserted ‘work rule’ violation may be pretextual when the plaintiff proffers evidence ‘(1) that
[he] did not violate the cited work rule, or (2) that if [he] did violate the rule, other employees
outside the protected class, who engaged in similar acts, were not similarly treated.’” Damon,
196 F.3d at 1363 (emphasis added).
Here, Lane tries to show the falsification reason is pretext by showing that he was
inadequately trained and was misinformed about whether he was allowed to conduct an

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alternative visual inspection instead of the required sample blend match test. He also points
to the fact that the computer system does not directly ask him what type of test he conducted.
Lane’s logic is that he was unaware of company policy requiring only sample blend tests and
ignorant of the fact that he was incorrectly entering data.7 He also strongly relies upon his
testimony that his supervisor instructed him to conduct the visual inspection and that he
would be considered insubordinate if he did not comply.
But, ignorance does not mean he did not violate the work rule, nor does GAF’s subpar training of Lane undo the fact that he inaccurately entered data in violation of GAF’s
policy. If true, the Court can sympathize with Lane’s predicament: he lacked the mental
intent to falsify records and his termination appears unfair. However, the Court is not
allowed to sit as a “super-personnel department” to second-guess GAF’s wisdom or business
procedures, Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000), and fairness is
not the proper inquiry, Rojas v. Fla., 610 F.3d 1339, 1342 (11th Cir. 2002) (“We are not in
the business of adjudging whether employment decisions are prudent or fair. Instead, our
sole concern is whether unlawful discriminatory animus motivates a challenged employment
decision.”). As the Eleventh Circuit has repeatedly stated, “[an] employer may fire an
employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason
at all, as long as its action is not for a discriminatory reason.” See, e.g., Dulaney v. Miami7

Lane argues Seventh Circuit precedent should persuade the Court to analyze the legitimate
reason with the additional requirement that the employer have a reasonable expectation that the
employee could comply with work regulations. Not only is the Court not bound by other Circuits’
precedent, this standard seems opposed to the Eleventh Circuit’s precedent that does not require an
employer’s reasons to be fair, reasonable, or prudent.
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Dade Cnty., 481 Fed. App’x 486, 490 (11th Cir. 2012); Santillana v. Fla. St. Ct. Sys., 450
Fed. App’x 840, 844 (11th Cir. 2012); Greer v. Birmingham Beverage Co., Inc., 291 Fed.
App’x 943, 946 (11th Cir. 2008). Ultimately, Lane cannot point to anything in the record
that suggests GAF did not honestly believe he falsified company records or that
discrimination was the true motive.8 See Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir.
1997) (“The inquiry into pretext centers upon the employer’s beliefs, and not the employee’s
own perceptions of his performance.”).
Accordingly, GAF is entitled as a matter of law to summary judgment on the
discriminatory termination claim.
II.

Count II: Hybrid § 301/Breach of Duty of Fair Representation
GAF moves for summary judgment on Count II for breach of the duty of fair

representation on the grounds that GAF cannot be substituted in the place of USW because
it owes no duty of fair representation to Lane and Count II’s allegations relate solely to
USW’s behavior, not GAF. Lane fails to respond to GAF’s motion for summary judgment
on Count II.
“[A] district court cannot base the entry of summary judgment on the mere fact that
the motion was unopposed, but, rather, must consider the merits of the motion . . . [and]
ensure that the motion itself is supported by evidentiary materials.” United States v. One

8

Lane argues that non-binding precedent from labor arbitration cases should persuade this
Court to add the principle of “just cause” into an employer’s duty under Section 1981. Lane admits
that he can find no case law to support this argument. This Court must follow binding Eleventh
Circuit precedent. As such, the Court declines to extend an employer’s duty to include “just cause.”
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Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th
Cir. 2004). A failure to respond to the motion for summary judgment merely deems the
movant’s assertions of fact “undisputed for purposes of the motion,” but the record must
show the movant is entitled to summary judgment. Fed. R. Civ. P. 56(e)(2); see Branch
Banking & Trust Co. v. Howard, 2013 WL 951652, at *3 (S.D. Ala. Mar. 8, 2013).
If Count II was simply a breach of the duty of fair representation, GAF’s arguments
would be availing. However, the Court previously found in its order denying GAF’s motion
to dismiss that Lane adequately pled a hybrid § 301/fair representation claim against both
GAF and USW. See Dkt. 26. A hybrid 301 claim consists of two causes of action: the suit
against the employer rests on § 301 and alleges a breach of the CBA while the suit against
the union is one for breach of the union’s duty of fair representation.
Moreover, for hybrid § 301 claims, “[t]he employee may, if he chooses, sue one
defendant and not the other; but the case he must prove is the same whether he sues one, the
other, or both.” DelCostello v. Int’l Bhd. of Teamsters, 463 U.S. 151, 165 (1982). “To
prevail, a plaintiff must demonstrate both that the CBA was breached and that the union
breached its duty of fair representation.” Aldred v. Avis Rent-A-Car, 247 Fed. App’x 167,
171 (11th Cir. 2007).
In Lane’s second amended complaint, he alleges that GAF violated the CBA because
it discriminated against him on account of his race.

The CBA explicitly prohibits

“discrimination of any sort against any qualified employee on the basis of race.” Lane also

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alleges that USW, motivated by discriminatory animus, permitted the violation to go
unrepaired and thereby breached its duty of fair representation towards Lane.
To succeed on his hybrid claim, Lane must be successful on both causes of action.
As discussed in Count I, GAF is entitled to summary judgment because Lane has failed to
present evidence that GAF terminated him based on racial discrimination. Therefore, he
cannot establish that GAF violated the CBA’s provision against discrimination based on race,
the first necessary cause of action to succeed on the hybrid claim.
Furthermore, although GAF does not point to specific facts, the Court notes that
Lane’s deposition testimony firmly establishes that USW did not permit the violation to go
unrepaired based on his race. See Dkt. 57-1. When asked whether USW discriminated
against him because of his race, Lane responded, “Not so much even that. I think the union
has clicks [sic]. . . . I just believe that I was discriminated because I wasn’t in the certain click
[sic].” Id. Although USW is no longer a party, Lane is still entitled to bring this claim only
against GAF. Nevertheless, Lane maintains the burden of proving the claim against USW.
There are no facts in the record which support Lane’s claim that USW breached its duty of
fair representation based on discriminatory animus.
Accordingly, GAF is entitled to summary judgment on the hybrid 301/duty of fair
representation claim.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant G.A.F. Materials Corporation’s Motion for Summary Judgment and
Incorporated Memorandum of Law (Dkt. 69) is GRANTED.
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2.

The Clerk is directed to enter final judgment in favor of Defendant and against
Plaintiff.

3.

The Clerk of Court is directed to close this case and terminate any pending
motions as moot.

DONE and ORDERED in Tampa, Florida on March 25, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2011\11-cv-2851.mtsumjudg.frm

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