PERMENTER v. FEDEX FREIGHT INC

Filing 31

ORDER granting 23 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE HUGH LAWSON on 3/7/2016. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
JAMES FREDERICK PERMENTER,
Plaintiff,
v.

Civil Action No. 7:14-CV-104 (HL)

FEDEX FREIGHT, INC.,
Defendant.

ORDER
Plaintiff James Frederick Permenter, a veteran road driver for Defendant
FedEx Freight, Inc., was terminated on May 21, 2012, for allegedly falsifying his
driver log. Plaintiff, who was 50 years old at the time of his separation, contends
that Defendant terminated him based not on his purportedly faulty record keeping
but on his age alone, in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. Now before the Court is Defendants’ Motion
for Summary Judgment. (Doc. 23). After reviewing the pleadings, briefs,
depositions, and other evidentiary materials presented, and determining that
there is no genuine dispute of the material facts, the Court finds that Defendant is
entitled to judgment as a matter of law and grants Defendant’s motion.
I.

FEDERAL RULE 56 AND LOCAL RULE 56
Preliminarily, the Court must address Plaintiff’s objections to the sworn

declarations of Craig Donaldson, Anthony Bernhard, and Charlie Pullen. Plaintiff

argues generally that the affiants lacked prior knowledge of the information
propounded, or provided information inconsistent with sworn deposition
testimony, and that the affidavits contain inadmissible hearsay.
Under Federal Rule of Civil Procedure 56(c)(2), “[a] party may object that
the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” As explained in the advisory committee’s
notes, the objection functions much like an objection raised at trial, and the
“burden is on the proponent to show that the material is admissible as presented
or to explain the admissible form that is anticipated.” Fed.R.Civ.P. 56(c)(2)
advisory committee’s note to 2010 amendment. The rule, therefore, enables a
party to submit evidence in an inadmissible form at the summary judgment stage
that ultimately may be admissible at trial. For example, “a district court may
consider a hearsay statement in passing on a motion for summary judgment if
the statement could be reduced to admissible evidence at trial or reduced to
admissible form.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th
Cir. 2012) (internal quotation and citation omitted).
Upon review of the disputed affidavits, the Court is convinced that
Defendant has carried its burden of persuading the Court that it will be able to
present the evidence set forth in the affidavits in an admissible form at trial.

2

Accordingly, the Court will consider that evidence in the course of analyzing the
present motion for summary judgment.
Of more concern to the Court is Plaintiff’s total disregard for the
requirements of Local Rule 56. Plaintiff’s Statement of Disputed and Undisputed
Facts (Doc. 28) complies in no part with the local rule, which provides, “The
respondent to a motion for summary judgment shall attach to the response a
separate and concise statement of materials facts, numbered separately, to
which the respondent contends there exists a genuine dispute to be tried.
Response shall be made to each of the movant’s numbered material facts.”
M.D.Ga. L.R. 56. Rather than responding to each numbered paragraph as
directed by the rule, Plaintiff essentially has responded in the form of a
supplemental brief, which is insufficient under the local rule. The Court
accordingly deems admitted Defendant’s statement of facts that are properly
supported by citations to the record. M.D.Ga. L.R. 56; see also Mann v. Taser
Intern., Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (holding that district court
properly deemed defendant’s statement of material facts admitted when plaintiff
failed to comply with the local rule); BMU, Inc. v. Cumulus Media, Inc., 366 Fed.
App’x 47, 49 (11th Cir. 2010) (affirming grant of summary judgment when
respondent failed to file a response to movant’s statement of undisputed facts).

3

II.

FACTUAL BACKGROUND
Plaintiff James Frederick Permenter began working for American Freight at

the Valdosta, Georgia Service Center as a road driver in September 1995. (Doc.
23, ¶ 1). At some point in 2001, Defendant FedEx Freight, Inc. acquired
American Freight. (Id.). Defendant is a nationwide LTL (less-than-truckload)
carrier of general commodity freight. (Id. at ¶ 2). Defendant’s operation relies on
both road drivers, like Plaintiff, who transport freight between service centers,
and city drivers, who transport freight between service centers and customers.
(Id.).
Approximately two years prior to his termination, Plaintiff placed a
successful bid for what was known as the Spanish Fort “meet and turn” run
(“Spanish Fort run”). (Id. at ¶ 9). The job required Plaintiff to depart with a load
from the Valdosta Service Center around 7:00 p.m. (Id.). He then drove to
Spanish Fort, Alabama, where he rendezvoused with another road driver at one
of Defendant’s vacant terminals. (Id.). The two drivers swapped loads, and
Plaintiff returned with his new load to Valdosta. (Id.). Plaintiff typically made this
run five nights per week. (Id.).
In early May 2012, Craig Donaldson, the Valdosta Service Center
Manager, received instructions from his supervisors to review Plaintiff’s
Department of Transportation (“DOT”) logs. (Id. at ¶ 11; Doc. 25-1, ¶ 4).

4

Apparently Defendant had received complaints from other drivers that Plaintiff
frequently was an hour or more late returning from the Spanish Fort run, which
had the effect of delaying the next run between Valdosta and Orlando, Florida.
(Doc. 23, ¶ 11). Defendant instructed Donaldson to determine the cause of the
delays. (Id.). Donaldson enlisted the assistance of Susan Lacey, a Human
Resources Advisor for Defendant, who guided Donaldson throughout his
investigation. (Id. at ¶ 12).
As a part of his investigation, Donaldson reviewed Plaintiff’s DOT logs for
the week of May 3, 2012 through May, 9, 2012. (Id.). Donaldson then compared
the log entries to the GPS data retrieved from the message switch1 in Plaintiff’s
truck.2 (Id.) Donaldson identified the following discrepancies:
(a)

On May 3, 2012, Plaintiff recorded in his DOT driver log that he

stopped for his lunchbreak in Caryville, Florida from 3:15 a.m. until 4:15 a.m. The

1

Plaintiff argues that the GPS data is unintelligible and that none of Defendant’s
witnesses were able to decipher the relevant printouts. The Court finds Plaintiff’s
position on this point unsupported by the record.
2
The parties refer to two different GPS mechanisms throughout the record: the
message switch and the CN3 handheld electronic device that Defendant began
issuing to road drivers beginning in March 2012. The handheld device enabled
the driver to input trip information, including the identification of the truck and
trailer being utilized during the trip, and also allowed the driver to download GPS
data that both recorded the particular truck’s location and calculated estimated
arrival times. (Doc. 23, ¶¶ 7-8). Plaintiff contests the accuracy of the handheld
device but makes no mention of the message switch. The Court is uncertain
whether the equipment referenced is two independent devices. Ultimately,
though, the distinction is immaterial.
5

message switch showed Plaintiff stopped in Sycamore, Florida for one hour and
twenty-four minutes, from 4:25 a.m. until 5:49 a.m. (Id. at ¶ 13(a)).3
(b)

On May 4, 2012, Plaintiff recorded in his DOT driver log that he

stopped for his lunchbreak in Caryville, Florida from 3:15 a.m. until 4:15 a.m. The
message switch showed Plaintiff stopped in Sycamore, Florida for one hour and
thirty-eight minutes, from 4:20 a.m. until 5:58 a.m. (Id. at ¶ 13(b)).
(c)

On May 5, 2012, Plaintiff recorded in his DOT driver log that he

stopped for his lunchbreak in Caryville, Florida from 3:15 a.m. until 4:15 a.m. The
message switch showed Plaintiff stopped in Sycamore, Florida for two hours and
thirteen minutes, from 4:20 a.m. until 6:33 a.m. (Id. at ¶ 13(c)).

3

None of Defendant’s witnesses expressed any personal knowledge about the
geographic location of Sycamore, Florida or the relative distance between
Caryville and Sycamore. In his deposition, Donaldson testified only that
Sycamore is a city in Florida located along I-10 just west of Tallahassee. (Doc.
29-3, p. 17). An online Google Maps search reveals that there are approximately
69 miles between the two cities. See Google Maps, www.google.com/maps (last
visited March 3, 2016). Since Google Maps is a “source[ ] whose accuracy
cannot reasonably be questioned” when used to determine general distances,
the Court takes judicial notice of this Google Maps search. See Fed.R.Evid.
201(b)(2), (c)(1); see also Cobb Theatres III, LLC v. AMC Entm’t Holdings, Inc.,
101 F.Supp.3d 1319, 1329 (N.D.Ga. March 20, 2015) (citing United States v.
Proch, 637 F.3d 1262, 1266 n. 1 (11th Cir. 2011) (indicating that courts do
occasionally take judicial notice of maps); Pahl v. Thomas, 718 F.3d 1210, 1216
n. 1 (10th Cir. 2013) (taking judicial notice of Google Maps to illustrate the
general location of events relevant to the litigation); Global Control Sys., Inc. v.
Luebbert, 2015 WL 753124, at *1 n. 1 (W.D.Mo. Feb. 23, 2015) (taking judicial
notice of Google Maps to establish the approximate distance between two
locations)).
6

(d)

On May 8, 2012, Plaintiff recorded in his DOT driver log that he

stopped for his lunchbreak in Caryville, Florida from 3:15 a.m. until 4:15 a.m. The
message switch showed Plaintiff stopped in Sycamore, Florida for one hour and
twenty-nine minutes from 4:20 a.m. until 5:49 a.m. (Id. at ¶ 13(d)).
(e)

On May 9, 2012, Plaintiff recorded in his DOT driver log that he

stopped for his lunchbreak in Tallahassee, Florida from 5:15 a.m. until 6:15 a.m.
The message switch showed Plaintiff stopped in Sycamore, Florida for one hour
and twenty-three minutes, from 4:25 a.m. until 5:48 a.m. (Id. at ¶ 13(d)).4
Plaintiff was aware that Defendant’s meal and break policy provided for a
one-hour lunch break. (Doc. 26-1, p. 54). Plaintiff also understood that, according
to policy, if he needed to exceed the one hour break, for example if he was
fatigued, it was his responsibility to notify central dispatch. (Doc. 23, ¶ 17). Most
importantly, Plaintiff expressed understanding about

the importance of

maintaining an accurate, up to date DOT log. (Id. at ¶ 18).
After reviewing Plaintiff’s DOT log book and the GPS data, Donaldson and
Lacey noted three discrepancies between the two: inconsistencies in the location
of Plaintiff’s break, the time Plaintiff took each break, and the duration of each
break. (Id. at ¶ 12). Donaldson and Lacey thereafter concluded that Plaintiff

4

An online Google Maps search shows that there are approximately 37 miles
between Sycamore and Tallahassee. See Google Maps, www.google.com/maps
(last visited March 3, 2016).
7

falsified his DOT log book and determined that further investigation was
warranted. (Id. at ¶ 15).
Donaldson met with Plaintiff on May 10, 2012 to address the
inconsistencies. (Id. at ¶ 16). When advised that the data retrieved from the
message switch in Plaintiff’s truck did not correspond with Plaintiff’s log, Plaintiff
replied that he was “caught like a fox in the hen house.” (Id.). Plaintiff provided a
written statement, in which he explained, “I made a mistake on log book, put
wrong city and time on log after returning to center.” (Id.). Donaldson informed
Plaintiff that he was relieved of his duties pending an investigation. (Id.).
The following day, May 11, 2012, Donaldson met with Plaintiff again along
with Operations Supervisor Ben Prince. During this encounter, Donaldson posed
a series of questions to Plaintiff, to which Plaintiff provided written responses:
 Question: Freddy how much time does this run allow for a break?
Answer: 1 hour
 Question: Why did you take a longer break?
Answer: Fatigue
 Question: Why on 5-8-2012 does your log show a break from 3:15 am
to 4:15 am but the GPS log shows from 4:20-5:49?
Answer: Mistake doing my log
 Question: Why did you show only an hour if you were stopped for a
total of 89 min?
Answer: Fatigue
 Question: You put that you were in Caryville on the log break but
actually show in Sycamore why?
8

Answer: Made a mistake after returning to center
 Question: For the previous four days you show the same patters [sic] of
inconsistencies in times and locations why?
Answer: Made a mistake on my log on returning
 Question: What are the rules for when you are suppose [sic] to fill out
the log?
Answer: Change of duty or when stop
 Question: Why would you fill out your log when you return?
Answer: Habit, always did it that way
 Question: Why are you marking a 60 min break but taking a break
averaging 90 min long?
Answer: Fatigue
 Question: You made the comment to me that you were caught “in the
Hen House.” Why did you say that?
Answer: Because of the information [Craig] had
(Id. at ¶ 19). Later that same day, Lacey called Plaintiff and asked a similar set of
questions. (Id. at ¶ 20). Plaintiff reaffirmed the responses he provided to
Donaldson and Prince. (Id.). When Lacey inquired why Plaintiff was exceeding
the time permitted for his break, Plaintiff responded, “I must have gone over. I’m
not always looking back at the screen to check the time. When I get back [to
Valdosta] I fill out the log. When I get back I fill out the log. I show an hour
because it’s supposed to be a [sic] hour lunch.” (Id.). At the conclusion of the
telephone call, Lacey informed Plaintiff that the matter remained under
investigation. (Id.).

9

As a part of the continuing investigation, Defendant reviewed the DOT logs
and GPS data for the two other Valdosta road drivers assigned to the Spanish
Fort Run, Richard Peterson and Leslie Smyth. (Id. at ¶ 21). Defendant
ascertained that both Peterson and Smyth took breaks longer than the allotted
hour without notifying dispatch. (Id.). However, the log books for both drivers
reflected time and location entries that were consistent with their message
switches. (Id.). Defendant, therefore, concluded that these two drivers had not
falsified their log books. (Id.). However, Defendant verbally counseled each driver
for taking breaks in excess of an hour without telling dispatch and advised that
further policy violations could result in additional disciplinary action. (Id.).
Lacey thereafter compiled all of the information gathered during the
investigation and prepared a Corrective Action Recap, summarizing the results of
the entire investigation and reviewing Plaintiff’s past disciplinary history. (Id. at ¶
22). She also reviewed Defendant’s Employee Handbook, which specifically
classifies falsification of DOT logs as a violation of Defendant’s Standards of
Conduct and as an offense that may result in discharge. (Id.). At the conclusion
of the Corrective Action Recap, Lacey recommended Plaintiff for termination.
(Id.).
The Corrective Action Recap was reviewed by three additional levels of
management. (Id. at ¶ 23). First, Craig Thompson, the Managing Director of

10

District Operations concurred in recommendation. (Id.). Next, Defendant’s inhouse Legal Department reviewed the report. (Id.). Finally, Charlie Pullen,
Division Human Resources Manager, Field HR, located in Atlanta, Georgia,
reviewed Lacey’s report and made the final decision to terminate Plaintiff. (Id.).
On May 21, 2012, Donaldson contacted Plaintiff and notified him of his
termination. (Id. at ¶ 24).
Several events transpired following Plaintiff’s termination. Plaintiff’s initial
reaction was to engage legal counsel to assist him in filing an appeal to
Defendant’s Termination Appeal Review Committee (“TARC”). (Id. at ¶ 25).
Plaintiff’s substantive argument on appeal was that the CN3 handheld unit was
defective and would freeze or not function properly in remote areas. (Id. at ¶ 26).
Plaintiff also argued that “any inaccuracies in my logbook were due to honest
mistakes rather than made ‘willfully,’” and that Defendant should not have taken
the extreme measure of terminating him. (Doc. 26-1, p. 162). After reviewing the
record, the TARC Committee denied Plaintiff’s appeal and upheld the
termination. (Doc. 23, ¶ 12).
Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Counsel (“EEOC”) on September 8, 2012. (Id. at ¶ 37). He reported
to the EEOC that Defendant informed him that he was terminated for falsifying

11

records but that he believed he had been “discriminated against because of my
age (50)” in violation of the ADEA. (Doc. 26-1, p. 164).
Then, sometime in late September 2012, Plaintiff received a visit from an
elderly acquaintance by the name of Larry Boyd. (Doc. 23, ¶ 35). Around
September 25, 2012, Boyd responded to a Craig’s List advertisement for a used
truck for sale in Lee, Florida. (Id.). The truck happened to belong to Donaldson,
Plaintiff’s former supervisor. (Id.). While Boyd inspected the vehicle, he and
Donaldson struck up a friendly conversation, which included an exchange about
current and past employment. (Id.). After Donaldson revealed that he worked for
Defendant, Boyd mentioned that he, too, used to drive a truck but declared, “Of
course, I’m too old now.” (Id.). In response, Donaldson allegedly replied, “yeah, I
fired one the other day because he was too old.” (Id.). According to Boyd,
Donaldson identified the terminated worker as Plaintiff. (Id.).5
On March 31, 2014, the EEOC issued a Notice of Right to Sue at Plaintiff’s
request. (Id. at ¶ 37). Plaintiff initiated this lawsuit on July 1, 2014. (Id.).
III.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
5

Donaldson recollects discussing the sale of the truck with Boyd but denies any
conversation about Plaintiff or the reason for Plaintiff’s termination. (Id. at ¶ 36).
12

of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue of material fact arises only when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for
summary judgment, the court must evaluate all of the evidence, together with any
logical inferences, in the light most favorable to the nonmoving party. Id. at 25455. The court may not, however, make credibility determinations or weigh the
evidence. Id. at 255; see also Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000).
The

party

seeking

summary

judgment

“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 issue of a material fact.” Celotex,
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324-26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). In sum, summary

13

judgment must be entered “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
IV.

DISCUSSION
Plaintiff alleges in his single count Complaint that Defendant discriminated

against him on the basis of his age in violation of the ADEA. The ADEA, which
applies to individuals who are at least 40 years old, makes it unlawful for an
employer to “discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. §§ 623(a)(1), 631(a).
To prevail in an action under the ADEA, an employee must establish that his age
was the “but for” cause of the adverse employment action. Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 176 (2009). This showing may be made through
either direct or circumstantial evidence. Mora v. Jackson Mem’l Found., Inc., 597
F.3d 1201, 1203 (11th Cir. 2010). Plaintiff here relies on both direct and
circumstantial evidence, which the Court will address in turn.
A.

Direct Evidence of Discrimination

The Eleventh Circuit defines direct evidence of discrimination as evidence
that “reflects a discriminatory or retaliatory attitude correlating to the
discrimination or retaliation complained of by the employee.” Wilson v. B/E

14

Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999))
(internal quotations omitted). Stated another way, direct evidence “is evidence
which, if believed, would prove the existence of a fact in issue without inference
or presumption.” Burrell v. Bed. Of Trs. Of Ga. Military Coll., 125 F.3d 1390, 1393
(11th Cir. 1997) (citations omitted). Courts have found “only the most blatant
remarks, whose intent could be nothing other than to discriminate on the basis of
age, to constitute direct evidence of discrimination.” Carter v. City of Miami, 870
F.2d 578, 582 (11th Cir. 1989). “[R]emarks . . . unrelated to the decisionmaking
process itself are not direct evidence of discrimination.” Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Rather, in order to qualify as
direct evidence, “the evidence must directly relate in time and subject to the
adverse employment action at issue.” Jones v. BE&K Eng’g Co., 146 Fed. App’x
356, 358 (11th Cir. 2005) (holding that statements made during the arbitration
held subsequent to the plaintiff’s termination and not during the decision making
process are not direct evidence of age discrimination); see also Scott v.
Suncoast Beverage Sales Ltd., 295 F.3d 1223, 1227 (11th Cir. 2002) (finding that
a statement made two and a half years prior to the plaintiff’s termination did not
qualify as direct evidence of race discrimination). The biased statement,
accordingly, must “be made concurrently with the adverse employment event,

15

such that no inference is necessary to conclude that the bias necessarily
motivated the decision.” Williamson v. Adventist Health Sys./Sunbelt, Inc., 372
Fed. App’x 936, 940 (11th Cir. 2010) (citing Damon v. Fleming Supermarkets of
Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999)).
Plaintiff relies heavily on the interchange between Donaldson and Boyd in
support of his claim of age discrimination and asserts that Donaldson’s purported
commentary is direct and indisputable evidence that Defendant targeted Plaintiff
for termination based on his age. According to Plaintiff, sometime in September
2012, more than four months after Plaintiff’s termination, Boyd, a casual
acquaintance of Plaintiff’s who is otherwise unrelated to this case, traveled to
Lee, Florida in response to a Craig’s List advertisement for a truck in which Boyd
was interested. The truck happened to belong to Donaldson. While Boyd
inspected the truck, he and Donaldson engaged in small talk, which eventually
led to a conversation about past and present employment. After Boyd learned
that Donaldson worked for Defendant, he remarked that while he used to drive
trucks he was “too old now.” (Doc. 23, ¶ 35). Donaldson then, unsolicited,
allegedly offered that he recently fired Plaintiff “because he was too old.” (Id.).
Although Donaldson’s alleged comment may provide circumstantial
evidence of discriminatory intent, the statement was made outside of the context
of the decision making process and is not sufficiently related in time to the

16

adverse employment decision to constitute direct evidence. To conclude
otherwise would require the Court to draw an impermissible inference of bias.
Accordingly, the Court finds that no direct evidence of age discrimination exists in
this case.
B.

Circumstantial Evidence of Discrimination

The Eleventh Circuit evaluates ADEA claims premised on circumstantial
evidence by applying the burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Sims v. MVM, Inc., 704 F.3d
1327, 1332 (11th Cir. 2013). Under McDonnell Douglas, the plaintiff bears the
initial burden of establishing a prima facie case of age discrimination. Chapman
v. AI Trans., 229 F.3d 1012, 1014 (11th Cir. 2000). If the plaintiff is able to make
out a prima facie case, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for the employment decision. Id. The
employer’s burden “is merely one of production; it need not persuade the court
that it was actually motivated by the proffered reason. It is sufficient that the
defendant’s evidence raises a genuine issue of fact as to whether it discriminated
against the plaintiff.” Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519,
1528) (internal quotation marks omitted). Provided the employer can come
forward with one or more reasons, “the presumption of discrimination is
eliminated and the plaintiff has the opportunity to come forward with evidence,

17

including the previously produced evidence establishing the prima facie case,
sufficient to permit a reasonable factfinder to conclude that the reasons given by
the employer were not the real reasons for the adverse employment action.” Id.
(internal quotation marks omitted).
To establish a prima face case of disparate treatment under the ADEA, a
plaintiff must show that (1) he is a member of a protected age group; (2) he was
qualified for his position; (3) he suffered an adverse employment action; and (4)
he was treated less favorably than a similarly situated employee outside his
protected age group.” Rouse v. Donley, 2012 WL 1188306, at *6 (M.D.Ga. Apr.
9, 2012) (citing Horn v. United Parcel Servs., Inc., 433 Fed. App’x 788, 793 (11th
Cir. 2011)). It is undisputed that Plaintiff, who was 50 years old at the time of his
termination, was a member of a protected age group; that he was qualified to
work as a road driver; or that he suffered an adverse employment action.
Accordingly, the only question before the Court is whether Plaintiff has produced
an adequate comparator to support his contention that he was treated less
favorably than a similarly situated employee outside of his protected age group.
To draw a valid comparison, a plaintiff must demonstrate that he and any
proffered comparators “are similarly situated in all relevant aspects.” Holifield v.
Reno, 115 F.3d 1555, 1562. In the context of disciplinary action, “the quantity
and quality of the comparator’s misconduct [must] be nearly identical to prevent

18

courts from second-guessing employers’ reasonable decisions and confusing
apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
“[I]t is necessary to consider whether the employees are involved in or accused
of the same or similar conduct and are disciplined in different ways.” Holified, 115
F.3d at 1562; see also Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th
Cir. 2008) (“The most important factors in a comparator analysis in the
disciplinary context are the nature of the offenses committed and the nature of
the punishment imposed.”). Summary judgment is appropriate where the plaintiff
fails to demonstrate the existence of a similarly situated employee and where
there is no other evidence of discrimination. Holifield, 115 F.3d at 1562.
Plaintiff offers two comparators for the Court’s consideration: Richard
Peterson and Tim Taylor. Plaintiff alleges that Peterson, who was 40 years old at
the time of Plaintiff’s termination and also drove the Spanish Forte run,
committed the same logging error as Plaintiff and yet only received a verbal
reprimand while Plaintiff was terminated. During its investigation of Plaintiff,
Defendant examined Peterson’s DOT log book in comparison to the GPS
information stored in his truck’s message switch. Even though Defendant did
ascertain that Peterson was extending his lunch break beyond the sanctioned
hour without first notifying central dispatch, the crucial difference between
Peterson and Plaintiff is that Peterson accurately recorded the time and length of

19

his breaks. There also is no evidence that Peterson failed to accurately note the
location where he took his breaks. Peterson, thus, is not similarly situated to
Plaintiff in all relevant respects relating to the misconduct alleged. The more
salient observation is that Peterson falls within Plaintiff’s protected class, i.e.
individuals 40 years of age or older at the time of Plaintiff’s termination. He
accordingly is not a proper comparator for the purpose of establishing Plaintiff’s
prima facie case.
Tim Taylor is also not a proper comparator. Taylor was 43 years old at the
time of Plaintiff’s termination, placing him within Plaintiff’s protected class and
eliminating him as a viable comparator. (Doc. 23, ¶ 31). Even if Taylor’s age did
not pose an obstacle for Plaintiff, Taylor’s alleged misconduct bears no similarity
to Plaintiff’s. In March 2011, a Georgia State Patrolman pulled Taylor over for
speeding. (Id. at ¶ 32). During the traffic stop, the patrolman performed a DOT
inspection, which included review of Taylor’s DOT log. (Id.). The patrolman
discovered that Taylor was recording Wednesday’s log entries on Monday’s
page. (Id.). Apparently, Taylor inadvertently forgot to remove the pages from his
log book for Saturday and Sunday, so when he commenced his work duties on
Monday, he began entering Monday’s data on Saturday’s page, throwing off the
remainder of his daily entries. (Id.). The information recorded in the log was
accurate, just on the wrong page. (Id.). The patrolman issued Taylor a citation for

20

failure “to retain previous 7 days” of his log. (Id.). Defendant also issued a verbal
counseling and suspended Taylor for three days. (Id.). Neither the patrolman nor
Defendant accused Taylor of falsifying his log book. (Id.). The Court therefore
finds that Taylor was not similarly situated in all relevant respects to Plaintiff and
that he is an invalid comparator. In the absence of a proper comparator, Plaintiff
cannot make out a prima facie case of discrimination.
Even though Plaintiff has failed to set forth a prima facie case of age
discrimination, his claims may survive summary judgment if the record, viewed in
a light most favorable to Plaintiff, presents “a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011) (“[E]stablishing the elements of the McDonnell Douglas framework is not,
and never was intended to be, the sine qua non for a plaintiff to survive a
summary judgment motion in an employment discrimination case.”). The only
evidence proffered by Plaintiff that his age was the “but for” causation of his
termination is the alleged statement made by Donaldson to Boyd. This one
comment alone falls short of creating a “convincing mosaic” that would permit a
reasonable jury to infer intentional discrimination by Defendant. First of all,
Donaldson made the purported statement that he terminated Plaintiff because he
had become too old for the job at least four months after Plaintiff’s termination.

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Thus, the connection between the statement and the decision to terminate
Plaintiff is tenuous at best. Second, Donaldson’s role in Plaintiff’s termination was
limited to conducting the initial fact finding investigation and to making the final
telephone call to Plaintiff informing him of his termination. The ultimate decision
to terminate Plaintiff filtered through operations management, two levels of
human resources, and Defendant’s legal department. Defendant offers no
evidence that his age influenced the decision-making of any these various levels
of upper-level management. Absent some other evidence linking Defendant’s
decision to terminate Plaintiff to Plaintiff’s age, there is insufficient evidence to
permit a reasonable jury to conclude that Plaintiff’s age was the “but for” cause of
his termination. Plaintiff’s claim that Defendant discriminated against him on the
basis of his age, therefore, must fail as a matter of law.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment

(Doc. 23) is granted, and this case is dismissed with prejudice.
SO ORDERED, this the 7th day of March, 2016.
s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
aks

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