Nguyen v. Georgia Power Company

Filing 27

ORDER granting 16 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 1/28/13. (bcw)

HLED
U.S.q1sTi 1
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA 21J13 JAN 28
SAVANNAH DIVISION

LE

PHUONG K. NGUYEN,
Plaintiff,

CASE NO. CV411-174

V.

GEORGIA POWER COMPANY,
Defendant.

ORDER

Before the Court is Defendant Georgia Power Company's
("Georgia Power") Motion for Summary Judgment. (Doc. 16.)
For the reasons that follow, Defendant's motion is GRANTED
and Plaintiff's claims are DISMISSED. The Clerk of Court
is DIRECTED to close this case.

BACKGROUND
This case involves allegations of race discrimination
by Georgia Power against Plaintiff.' Plaintiff, an Asian
American, began working for Savannah Electric in 1992.
(Doc. 21 ¶ 38.) Savannah Electric merged with Georgia
Power in 2006.

(Doc. 16-18 ¶ 14.)

At all times during

Plaintiff's employment, he was a member of the
International Brotherhood of Electrical Workers, Local No.

1

The Court construes the facts in the light most favorable
to Plaintiff. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 577-78 (1986)

84 ("Union") .

(Id. ¶ 7.)

Defendant has a collective-

bargaining agreement with the Union ("CBA"), which governs
the terms and conditions of Union members' employment.
(Id. ¶ 8.) Defendant has established a Labor Relations
Department, which offers guidance and advises on employment
and disciplinary actions for employees covered by the CEA.
In 2007, Defendant promoted Plaintiff to the position
of a troubleman. 2 (Id. ¶ 39.) Plaintiff's immediate
supervisor was initially Ronald Canady and later Larry
Varner, who both reported directly to Distribution Manager
Matthew Conner. (Id.

¶T 19-20.)

Plaintiff not only worked for Defendant, but also was
a customer whose account became delinquent in 2010 due to
over $1,000.00 in unpaid electric bills. (Id. ¶ 22.)
Defendant provided Plaintiff several notifications, warning
that his electrical service would be disconnected if the
account was not brought current.
was not received.

(Id.

¶j 23, 24.) Payment

On September 10, 2010, Defendant's

Customer Service Department disconnected Plaintiff's
electricity and placed a seal over the meter box.
¶ 25.)

(Id.

The next day, after realizing his power had been

2

According to the parties, a troubleman was responsible for
troubleshooting power outages of residences and businesses
as well as servicing street lights,
reconnections,
disconnections, and other issues.
(Doc. 16-18 ¶ 18; Doc.
21 ¶ 39.)
2

disconnected, Plaintiff removed the seal and restored
electrical power. (Id. ¶ 28.) Plaintiff admits his
actions were unauthorized and that he never reported his
actions to Defendant. (Id. ¶ 29.)
On September 14, 2010, a Customer Service Department
manager informed Distribution Manager Matthew Conner that
her department observed electrical use at Plaintiff's
residence despite the September 10, 2010 disconnect order.
(Id. ¶ 31.) Conner and Canady went to Plaintiff's
residence and observed that the seal had been removed, the
meter was connected, and the house drawing electricity.
(Id. ¶ 33.) According to Defendant, the Customer Service
Department then ordered the meter to be removed, as is
standard practice when electrical service is restored
without authorization. (Id. ¶ 36.)
Plaintiff then met with Conner, Canady, Plaintiff's
direct supervisor Larry Varner, and Plaintiff's Shop
Steward David Harvey. (Id. ¶ 40.) Plaintiff freely
admitted he had restored his own electrical power without
authorization and that he knew his conduct was a violation
of Defendant's rules of conduct. (Id. ¶ 42.) After being
administratively suspended (Doc. 16-4 at 21), Plaintiff's
employment was formally terminated on September 16, 2010
(Id. at 22)
3

Pursuant to the CBA, Plaintiff filed a grievance.
Plaintiff contends that Defendant violated its common
practice to have the employee's supervisor attend the
grievance hearing. Soon thereafter, Defendant denied
Plaintiff's grievance. (Doc. 21 ¶ 69.) Plaintiff then
filed with Defendant's workplace ethics department a
discrimination complaint against Conner. (Id. ¶ 70.)
According to Plaintiff, no disciplinary action was taken
against Conner as a result of Plaintiff's discrimination
complaint. (Id. ¶ 72.)
Plaintiff proceeded to file an EEOC complaint, which
was denied on April 7, 2011. (Doc. 1-2 at 2.) After
receiving notice of his right to sue, Plaintiff timely
filed suit in this Court. (Doc. 1.) The complaint
contains four counts against Defendant: (1) Title VII
racial discrimination; (2) 42 U.S.C. § 1981 intentional
racial discrimination; (3) attorney's fees; and (4)
intentional infliction of emotional distress. (Id.)
Plaintiff has voluntarily dismissed the intentional
infliction of emotional distress claim. (Doc. 16-2 at 1.)
Defendant has moved for summary judgment. (Doc. 16.)
In the motion, Defendant argues that Plaintiff cannot
establish a prima facie case of race discrimination because
he cannot identify anyone who engaged in nearly identical
4

behavior and whose employment was not terminated.
16-1 at 2.)

(Doc.

In the alternative, Defendant contends that

Plaintiff's employment was terminated for the legitimate,
non-discriminatory reason that Plaintiff restored power to
his personal residence without authorization. (Id.) In
response, Plaintiff suggests that he has established a
prima facie case because two Caucasian employees—Reggie
Abbott and Joey Blissett—engaged in conduct substantially
similar to Plaintiff's, but were only reprimanded. (Doc.
20 at 1.)
ANALYSIS

I.

STANDARD OF REVIEW
According to Federal Rule of Civil Procedure 56 (a),

"[a] party may move for summary judgment, identifying each
claim or defense—or the part of each claim or defense—on
which summary judgment is sought." Such a motion must be
granted "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." Id. The "purpose of
summary judgment is to 'pierce the pleadings and to assess
the proof in order to see whether there is a genuine need
for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56
advisory committee notes)
5

Summary judgment is appropriate when the nonmovant
"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 Corp. v. Catrett, 477 U.S. 317, 322

(1986).

The substantive law governing the action

determines whether an element is essential. DeLong Equip.
Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th
Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district court of the basis for its motion and
identifying those portion 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 material fact.
Celotex, 477 U.S. at 323.

The burden then shifts to the

nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 58788. However, the nonmoving party "must do more than simply

show that there is some metaphysical doubt as to the
material facts."

Id. at 586.

A mere "scintilla" of

evidence, or simply conclusory allegations, will not
suffice.

See, e.g., Tidwell v. Carter Prods., 135 F.3d

1422, 1425 (11th Cir. 1998) .

Nevertheless, where a

reasonable fact finder may "draw more than one inference
from the facts, and that inference creates a genuine issue
of material fact, then the Court should refuse to grant
summary judgment." Barfield v. Brierton, 883 F.2d 923, 933
(11th Cir. 1989)
II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Where, as here, there is no direct evidence of
discrimination, a plaintiff must establish a
circumstantial, prima facie case of racial discrimination
by demonstrating that: "(1) he belongs to a racial
minority; (2) he was subjected to adverse job action; (3)
his employer treated similarly situated employees outside
[his] classification more favorably; and (4) he was
qualified to do the job.'

,3 1-lolifield v. Reno, 115 F.3d

1555, 1561-62 (11th Cir. 1997) (citing McDonnell Douglas
The Eleventh Circuit has held that claims under Title VII
and 42 U.S.C. § 1981 have the same requirements of proof
and present the same analytical framework. Jones v. Ala.
Power Co., 282 F. App'x 780, 781 n.l (11th Cir. 2008)
(citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998)) . Accordingly, the Court will
address these claims together.
7

Corp. v. Green, 411 U.S. 792, 802 (1973)).

To show that

employees are similarly situated, the plaintiff must show
that the "employees are similarly situated in all relevant
respects." Id. at 1562. Moreover, to make this
determination, "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." Id. Both
the "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 v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999)
Under McDonnell Douglas, a plaintiff must first
produce sufficient evidence to make out a prima facie case,
which creates a presumption that the employer unlawfully
discriminated against him in taking the alleged adverse
action. Combs v. Plantation Patterns, 106 F.3d 1519, 152728 (11th Cir. 1997) . If a prima facie case is made, the
defendant employer must rebut this presumption by producing
evidence that the employment action was motivated by
legitimate, non-discriminatory or non-retaliatory reasons.
Id. Should the defendant produce legitimate nondiscriminatory reasons, the McDonnell Douglas presumption

drops from the case and the plaintiff has an opportunity to
discredit defendant's proffered explanation. Id. at 1528.
Presently, Plaintiff has not established a prima facie
case. Plaintiff has not established that Defendant treated
similarly situated employees who are not members of his
class more favorably. Plaintiff has attempted to analogize
two similarly situated employees—Reggie Abbott and Joey
Blissett. In order to make this comparison, Plaintiff must
show that he and Abbott and Blissett are "similarly
situated in all relevant respects." Holifield, 115 F.3d at
1562. For the reasons that follow, Plaintiff is unable to
do so, and summary judgment is proper.
A.

Similarly Situated Employees
1.

Reggie Abbott

Reggie Abbott, a Caucasian male, was a dispatch
supervisor for Savannah Electric. Because Abbott was a
supervisor, he was not covered by the CBA that existed
between Savannah Electric and the Union. In 2005, before
the merger of Savannah Electric with Georgia Power, Abbott
obtained a work order to provide electric power to his
house so that an electrician could check heating and
airflow. (Doc. 16-11 at 2-5.) Abbott directed an employee
of Savannah Electric to use a jumper plate to temporarily

provide power to the house. 4 Abbott testified that it was
common practice at the time for electricians to use a
jumper plate to test the conditions of a house. (Id.)
According to Abbott, because it was common practice and
because he was a supervisor, he did not believe he needed
to receive permission. (Id.) After Savannah Electric
learned of Abbott's actions, Jimmy Carnes—Savannah
Electric's Senior Investigator in the Corporate Security
Department—and Carnes's supervisor, Matthew Conner,
investigated the matter. Conner reported the findings to
Abbott's two supervisors—David Johnson and Rex Johnson, who
then decided the proper course of discipline for Abbott's
misconduct. Abbott received a "coaching session" from his
two supervisors and received no further discipline. (Doc.
20 at 9.)
Here, although Plaintiff and Abbott both reconnected
electricity, the two individuals are not similarly
situated. Critically, Abbott was in a supervisory position
when his misconduct occurred; Plaintiff was not a
supervisor. Indeed, "different factors come into play in
disciplining employees at different levels" making "an
employee in a management position generally ill-suited to
According to the parties, a jumper plate allows
electricity to be used without the meter recording any
usage.
10

serve as a comparator for a lower-level employee."
Pastures v. Potter, 2009 U.S. Dist. LEXIS 115111, at *2324
(S.D. Ga. Dec. 10, 2009)
Additionally,
disciplinary

different

decisions

individuals

regarding

each

made

the

employee's

misconduct. See Jones v. Gerwens, 874 F.2d 1534, 1541
(11th Cir. 1989) ("Courts have held that disciplinary
measures undertaken by different supervisors may not be
comparable for purposes of Title VII analysis.") Abbott
was disciplined by David Johnson and Rex Johnson.
Plaintiff has not produced anything in the record to
suggest that Conner made any disciplinary decisions for
Abbott. Conner, however, was involved in Plaintiff's
disciplinary proceedings. It was different supervisors who
made the ultimate disciplinary decisions based upon
independent assessments of the misconduct. Simply, the
comparator's misconduct is not similarly situated in all
relevant respects to Plaintiff's. See Holifield, 115 F.3d
at 1562; see also Burke-Fowler v. Orange Cnty. Fla., 447
F.3d 1319, 1323 (11th Cir. 2006) . Abbott is not a proper
comparator for Plaintiff—Abbott was not a member of the
Union or subject to the CBA, was in a supervisory position,
and was subject to different individuals' disciplinary
decision-making.
11

2.

Joey Blissett

Joey Blissett, a Caucasian male, also worked for
Defendant in a supervisory position. Matthew Conner
assumed managerial authority over Blissett in March 2007.
In May 2011, Blisett received a written reminder from
Conner regarding his job performance. (Doc. 20 at 9-10.)
Specifically, an investigation found that Blissett had a
chainsaw belonging to Defendant in a shed at Blissett's
personal residence. (Id.) Blissett stated that he both
used the chainsaw for personal use and loaned it to other
individuals. The written reminder outlined Blissett's
violation of the Code of Ethics regarding "us[ing]
corporate resources—time, personnel, equipment, and
supplies—only for company business or company approved
activities." (Doc. 16-10 at 4.) According to Conner, he
believed Blissett's actions were inadvertent because of "a
practice in that headquarters and several of our other
headquarters of borrowing equipment." (Doc. 20 at 10.)
Here again, the misconduct for which Elissett was
disciplined is hardly similar to that engaged in by
Plaintiff. See Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d
1181, 1185 (11th Cir. 1984) ("[T]he misconduct for which
[the plaintiff] was discharged [must be] nearly identical
to that engaged in by an employee outside the protected
12

class whom the employer retained.") .

Plaintiff was

discharged for his unauthorized restoring of power to his
residence after his account fell past due. Plaintiff was
unequivocal in admitting that he reactivated his power
without authorization. Elissett received a written
reminder for using and loaning a company chainsaw.
Elissett's conduct, however, was deemed to be inadvertent
and common practice. Regardless of whether inadvertent or
common practice, Blissett's violation of the Code of Ethics
is not sufficiently identical to Plaintiff's conduct. See
Holifield, 115 F.3d at 1562. While there does not have to
be an exact correlation of misconduct, it must be similar
in all relevant aspects. See Silvera v. Orange Cnty. Sch.
3d., 244 F.3d 1253, 1259 (11th Cir. 2001) . The conduct of
Elissett and Plaintiff is not similar in any relevant
aspects. Blissett used and loaned a work tool; Plaintiff
restored power to his residence without authorization.
Thus, the nature of the offenses committed are not similar.
Plaintiff attempts to analogize Blissett and
Plaintiff's conduct by suggesting that both should be
treated similarly because both violated the Code of Ethics.
(Doc. 20 at 9.) Such a standard should hardly be the case.
The misconduct of Blissett borrowing tools is not remotely
similar to that of Plaintiff so to constitute a similarly
13

situated employee.

See Summers v. City of Sothan, 757 F.

Supp. 2d 1184, 1206-07 (M.D. Ala. 2010) (finding that two
employees were not similarly situated even when both
violated the same rule and both subjected the employer to
undue financial loss because the misconduct was not nearly
identical). In short, "Title VII does not take away an
employer's right to interpret its rules as it chooses, and
to make determinations as it sees fit under those rules."
Silvera, 244 F.3d at 1369. To equate conduct that is not
nearly identical, as is the case here, would improperly
take away Defendant's right to make valid employment
determinations.
Finally, as was the case with Abbott, Blissett was in
a supervisory position. Plaintiff was not. While not
solely determinative, different factors are weighed when
disciplining employees that are supervisors versus regular
employees. See Jones v. Gerwens, 874 F.2d at 1541. As a
result of all these factors, Blissett is also not a proper
comparator. Because of Plaintiff's failure to "show the
existence of a similarly situated employee, summary
judgment is appropriate." Holifield, 115 F.3d at 1562.

14

B.

Defendant's Legitimate, Non-Discriminat
Justification of Plaintiff's Employment
Termination

Even if Plaintiff could establish a prima facie case
of discrimination, Defendant has presented legitimate, nondiscriminatory reasons for terminating Plaintiff's
employment. Defendant's disciplinary actions were taken as
a result of Plaintiff's violation of company policy and the
Code of Ethics. (Doc. 16-4 at 22.) Accordingly, Plaintiff
would be given the opportunity to come forward with
evidence that any justification is merely a pretext for
discrimination. See Combs, 106 F.3d at 1528, 1538.
If the reason provided by the employer is one that
might motivate a reasonable employer, a plaintiff cannot
merely recast the reason, but must rebut it. Chapman v. Al
Transport., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
A reason cannot be a pretext for discrimination "unless it
is shown both that the reason was false, and that
discrimination was the real reason." St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 515 (1993) (emphasis added); see
also Tiggs-Vauhn v. Tuscaloosa Hous. Auth., 385 F. App'x
919, 923 (11th Cir. 2010)
In attempting to rebut Defendant's justification,
Plaintiff relies almost exclusively on the testimony of
Plaintiff's immediate supervisor—Larry Varner—to establish
15

pretext. According to Plaintiff, there was discriminatory
animus because Varner testified that he believed Plaintiff
was discriminated against, Conner used racial epithets, and
Varner was demoted after voicing his views about Plaintiff.
(Doc. 20 at 24.)
Despite these claims, Plaintiff has failed to show
that Defendant's proffered reason is unworthy of credence,
or that Defendant was more likely motivated by a
discriminatory reason in taking action against Plaintiff.
See Holifield v. Reno, 115 F.3d at 1565-66 (citing
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332,
336 (7th Cir. 1991)) . Plaintiff admits he reconnected his
power without authorization in violation of Defendant's
Code of Ethics. 5 Accordingly, even if Plaintiff could
present a prima facie case, summary judgment is proper
because Defendant has provided a legitimate, nondiscriminatory justification that Plaintiff cannot show is
both false and pretextual. See Hicks, 509 U.S. at 515.
C.

Attorney's Fees

Finally, Plaintiff seeks to recover attorney's fees
pursuant to 42 U.S.C. § 1988(b). (Doc. 10 ¶J 87-93.)
In Defendant's brief in support of summary judgment,
Defendant has provided three other employees—two African
Americans and a Caucasian—who were all terminated after
reconnecting power without authorization. (Doc. 16-1 at
15.)
16

However, because all of Plaintiff's substantive claims have
been dismissed, there is no basis for attorney's fees. See
42 U.S.C. § 200-5(k). Accordingly, Plaintiff's claim for
attorney's fees must be dismissed.
CONCLUSION

For the foregoing reasons, Plaintiff has failed to
demonstrate that there exist any genuine issues of material
fact.

Accordingly, Defendant's motion is GRANTED and

Plaintiff's claims are DISMISSED.

The Clerk of Court is

DIRECTED to close this case.

SO ORDERED this

day of January 2013.
--

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

17