DOTSON v. AT&T

Filing 55

ORDER granting 39 Motion for Summary Judgment. Pltf shall take nothing by way of his complt. Judgment shall enter accordingly. Signed by Judge Larry J. McKinney on 7/16/2012. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DERRICK DOTSON,
Plaintiff,
vs.
AT&T SERVICES, INC.,
Defendant.

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1:10-cv-1175-LJM-DML

ORDER ON MOTION FOR SUMMARY JUDGMENT
This mater comes before the Court on Defendant’s, AT&T Services, Inc. (the
“Company”), motion for summary judgment [dkt. no. 39].

Plaintiff, Derrick Dotson

(“Dotson”), alleges that the Company engaged in race discrimination when it terminated his
employment in violation of Title VII, 42 U.S.C. § 2000 et al., and 42 U.S.C. § 1981. For the
following reasons, the Court GRANTS the Company’s motion [dkt. no. 39].

I. BACKGROUND
Dotson, an African-American, began working full-time for the Company in 1994.
Dotson Aff. at ¶¶ 1-3. At all times during his employment, Dotson was a member of the
Communication Workers of America Union (the “Union”). Dotson Dep. at 26. In 2008,
Dotson began working for the Company as a Heavy Vehicle Driver. Dotson Aff. at ¶ 4. As
a Heavy Vehicle Driver, Dotson worked out of the Company’s location at 5206 Rockville
Road, Indianapolis, Indiana (“Rockville Road”), and reported directly to Donna Earnest
(“Earnest”), a First-Line Manager in supply chain logistics. Dotson Dep. at 31. Earnest
reported to Phil Gleissner (“Gleissner”), an Area Manager in supply chain logistics, who in

turn reported to Dave Lawton (“Lawton”), the Director of supply chain logistics. Earnest
Dep. at 6-7. As a Heavy Vehicle Driver, Dotson’s duties included the delivery of telephone
poles, cable, innerduct, and other equipment used to maintain the Company’s
telecommunications network. Dotson Dep. at 32-33, 38-39. Dotson drove Companyowned semi-trailer trucks and other large vehicles, the operation of which required him to
possess a valid Class A Commercial Drivers License (“CDL”). Dotson Dep. at 32-33.
The Company has adopted and disseminated to its workforce a “Code of Business
Conduct” (“COBC”) that provides general standards of behavior that the Company expects
all employees to follow in the workplace and in conducting Company business. Dotson
Dep. at ex. 4. The COBC has a provision titled “On and Off Duty Misconduct,” which states
in relevant part:
While AT&T employees’ personal lives are their own as a general matter, offduty misconduct can affect an employee’s work. Always avoid conduct that
could impair work performance or negatively affect the company’s reputation
or business interests.
Employees have certain reporting requirements related to arrests, charges,
convictions, guilty pleas, pleas of “no contest” and similar dispositions as well
as traffic tickets, accidents, citations, which are described below. These
reporting requirements apply to conduct both on and off the job.
All employees, regardless of their job duties, must report:
- All arrests, charges, convictions, guilty pleas, pleas of “no contest”
and similar dispositions for non-driving-related criminal offenses.
- All traffic tickets, citations, arrests charges, convictions, guilty pleas,
pleas of “no contest” and similar dispositions for any driving-related
offense that involves intoxication, such as driving while intoxicated,
driving under the influence and any similar offenses.
- Any other conduct that may affect your ability to perform your job.
Employees whose job involves the operation of a company-owned or
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company-leased motorized vehicle or aircraft must also report the
following:
- All accidents,
- All tickets, citations, arrests, charges, convictions,
guilty pleas, pleas of “no contest” and similar
dispositions for any driving-related offense other than
parking tickets, equipment violations or other nonmoving violations,
-Any other issue that impacts the status of your driver’s or
pilot’s license.
All required reports must be made in writing to the employee’s supervisor
immediately upon returning to work after the reportable event.
The employee’s supervisor is then responsible for immediately forwarding a
copy of the employee’s written notification to HR.
HR will determine whether the matter needs to be reported to Asset
Protection. In all cases involving the arrest or charge of an employee for any
criminal offense, the Company may, at any time, conduct an independent
review of the facts and determine whether disciplinary or other employment
action is warranted.
Dotson Dep. at ex. 4, at 16.
On June 28, 2009, Dotson was arrested for operating a vehicle while intoxicated
(OVWI) while off duty in his personal vehicle. Dotson Aff. at ¶ 4. Dotson called Earnest
from jail to inform her that he would need a day off. Dotson Aff. at ¶ 6. He asserts that
during the same phone call, he informed Earnest that he was arrested and in jail. Id.
Earnest states that she does not remember Dotson saying that he was arrested during the
June 28, 2009 phone call. Earnest Dep. at 11. She states that he may have told her that
he was arrested, but she did not hear it. Earnest Dep. at 21. On July 15, 2009, Dotson
was informed that his license was going to be suspended. Dotson Aff. at ¶ 7. On the same
day, Dotson met with Earnest and informed her that his license was going to be suspended
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due to his arrest. Earnest Dep. at 14. Dotson told Earnest that he had a Court date on July
21, and he believed his OVWI charge would be reduced to public intoxication. Dotson Dep.
at 103. Earnest told Dotson that she would not report his arrest to her boss until after
Dotson’s next court date. Earnest Dep. at 15. Earnest immediately prohibited Dotson from
driving Company vehicles. Id.
After Dotson’s July 21, 2009 court date, Earnest understood that Dotson’s license
remained suspended and he was still charged with OVWI. Earnest Dep. at 16-17. Earnest
reported Dotson’s arrest and license suspension to her supervisor, Gleissner.

Id.

Gleissner advised Earnest to report Dotson’s arrest to HR. Id. The Company did not
formally discipline Earnest for her failure to immediately report the matter to HR. Id. On
July 22, 2009, Earnest informed Dotson, with a union representative present, of Lawton’s
decision to suspend Dotson pending an investigation as to whether Dotson timely informed
the Company of his arrest as required by the COBC. Dotson Dep. at 108-09.
During Dotson’s suspension, Jeff Larkin (“Larkin”), Asset Protection Lead Analyst,
investigated Dotson’s arrest. Dotson Dep. at 111; Dotson Dep. at ex. 10. On July 28,
2009, Larkin interviewed Dotson with Earnest and a Union representative present. Dotson
Dep. at 111-14; Dotson Dep. at ex. 10. After completing the interview, Larkin and Dotson
prepared a collaborative statement summarizing the information Dotson provided during
the interview. Dotson Dep. at 112-14; Dotson Dep. at ex. 10. Dotson did not ask to
change any part of the statement or characterize any of its contents as inaccurate. Dotson
Dep. at 113. Dotson read the statement, initialed and signed it, and acknowledged its truth.
Dotson Dep. at 114. In the statement, Dotson acknowledged that he knew of the COBC’s
arrest-reporting requirement and that he understood his employment could be terminated
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for violating the COBC. Dotson Dep. at ex. 10. The statement also provided that Dotson
was not sure whether Earnest heard him state that he was in jail during the June 28, 2009
phone call. Id.
Earnest prepared written summaries of her June 28, July 14, and July 15
conversations with Dotson as part of the investigation. Earnest Dep. at 27-28. Earnest
stated that on June 28 she only heard Dotson request to be off work on June 29 and June
30. Earnest Dep. at exs. 10 & 11. Earnest summarized her July 14 conversation with
Dotson by explaining that Dotson called her and requested a day off, which she granted.
Earnest Dep. at ex. 10. Earnest summarized her July 15 meeting with Dotson, stating that
Dotson informed her of his license suspension as a result of an OVWI charge, and that
after his July 20, 2009 court appearance, Dotson believed his charge would be reduced to
public intoxication. Earnest Dep. at ex. 11.
Larkin prepared an executive summary of his investigation and provided it to Earnest
and Lawton among others. Lawton Dep. at 25; Lawton Dep. at ex. 3. Lawton reviewed the
summary and contacted Earnest by phone. Lawton Dep. at 17-19. Earnest told Lawton
that during her brief telephone conversation with Dotson on Sunday, June 28, he did not
tell her he had been arrested, and only requested vacation time. Lawton Dep. at 18-19.
On July 30, 2009, the Company informed Dotson that his employment status had
been changed to suspended pending termination. Dotson Dep. at 123. On August 20,
2009, Lawton, Dotson’s Union representatives, and others held a Review Board meeting
to discuss the basis for the Company’s contemplated termination decision under the terms
of the collective bargaining agreement (“CBA”). Dotson Dep. at 123-24. Dotson had the
opportunity to tell his side of the story at this meeting. Dotson Dep. at 124. At the meeting,
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he stated that when he called Earnest on June 28, he spoke with his shirt over his mouth
and he was in tears and that he spoke quickly because he did not want to get the officer
who let him use his cell phone in trouble. Dotson Dep. at 124-26.
Following the Review Board meeting, Lawton made the decision to proceed with the
termination of Dotson’s employment. Lawton Dep. at 14. Lawton concluded that Dotson
violated the COBC by failing to report his arrest in a timely fashion, and that this violation
warranted termination because of the nature of Dotson’s OVWI charge and his position as
a Heavy Vehicle Driver. Lawton Dep. at 20. On August 24, 2009, the Company informed
the Union that it had decided to proceed with termination of Dotson’s employment. Dotson
received notice of the Company’s decision through a telephone call from a Union
representative, and he understood that the Company’s articulated reason for its decision
was that he failed to timely report his OVWI arrest as required by the COBC. Dotson Dep.
at 130.
Pursuant to the CBA between the Company and the Union, the parties submitted
the issue of whether the Company had just cause to terminate Dotson’s employment to
final and binding arbitration. On August 18, 2011, Arbitrator Daniel Brent heard testimony
from Earnest, Lawton, and Dotson. Arbitrator Brent also received documentary evidence
from the parties. The parties submitted post-hearing briefs. On November 7, 2011
Arbitrator Brent issued his decision in favor of the Company. Def.’s Ex. F.
The Court includes additional facts below as necessary.

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II. STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass’n of Black Landscapers
v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for summary
judgment are governed by Federal Rule of Civil Procedure 56(a), which provides in relevant
part:
The court shall grant summary judgment 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.
Once a party has made a properly-supported motion for summary judgment, the opposing
party may not simply rest upon the pleadings but must instead submit evidentiary materials
showing that a fact either is or cannot be genuinely disputed. Fed. R. Civ. P. 56(c)(1). A
genuine issue of material fact exists whenever “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating
that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992,
997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of evidence
to defeat a motion for summary judgment; rather, the nonmoving party bears the
responsibility of identifying applicable evidence. See Bombard v. Fort Wayne Newspapers,
Inc., 92 F.3d 560, 562 (7th Cir. 1996).
In evaluating a motion for summary judgment, the Court should draw all reasonable
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inferences from undisputed facts in favor of the nonmoving party and should view the
disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole
v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by
itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the
outcome of the suit in light of the substantive law will preclude summary judgment. See
Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273
(7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even
when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). If the moving
party does not have the ultimate burden of proof on a claim, it is sufficient for the moving
party to direct the court to the lack of evidence as to an element of that claim. See Green
v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n.3 (7th Cir. 1994). “If the nonmoving party fails
to establish the existence of an element essential to his case, one on which he would bear
the burden of proof at trial, summary judgment must be granted to the moving party.” Ortiz
v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).

III. DISCUSSION
Dotson alleges that when the Company terminated his employment, it discriminated
against him on the basis of his race in violation of Title VII and § 1981. Under both
statutes, Dotson may prove his case through either the direct or indirect method of proof.
See Brown v. Illinois Dep’t Natural Res., 499 F.3d 675, 681 (7th Cir. 2007).
The indirect, “burden-shifting” approach requires Dotson to prove a prima facie case
of discrimination by a preponderance of the evidence. Atanus v. Perry, 520 F.3d 662, 671
(7th Cir. 2008). To establish a prima facie case of unlawful discrimination, Dotson must
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prove (1) he is in a protected class, (2) he was meeting legitimate employment
expectations, (3) he suffered an adverse employment action, and (4) the employer treated
similarly situated individuals outside of his protected class more favorably. Dear v.
Shinseki, 578 F.3d 605, 609 (7th Cir. 2009). If Dotson is unable to prove his prima facie
case, summary judgment must be entered in favor of the defendant. Anders v. Waste
Mgmt. of Wis., Inc., 463 F.3d 670, 676 (7th Cir. 2006). If, however, Dotson establishes all
four elements of his prima facie case, the burden shifts to the Company to articulate a
legitimate, nondiscriminatory reason for terminating Dotson’s employment.

Naik v.

Boehringer Ingelheim Pharms., 627 F.3d 596, 600 (7th Cir. 2010). If the Company meets
its burden, Dotson must demonstrate that the reasons the Company offered for his
suspension are pretextual. Id.
It is undisputed that Dotson, an African-American, is a member of a protected class
and that when the Company terminated his employment, Dotson suffered an adverse
employment action. The Company asserts that Dotson was not meeting its legitimate
employment expectations because he failed to report his arrest in a timely manner pursuant
to the COBC.

Dotson contends that the Company applied the COBC reporting

requirements in a discriminatory manner. “When a plaintiff produces evidence sufficient
to raise an inference that an employer applied its legitimate expectations in a disparate
manner . . . the second and fourth prongs merge – allowing plaintiffs to stave off summary
judgment for the time being, and proceed to the pretext inquiry.” Peele v. Country Mut. Ins.
Co., 228 F.3d 319, 329 (7th Cir. 2002). That scenario is present here. Dotson does not
deny that the Company was not aware of his arrest until July 15, 2009. Instead, he argues
that there are at least four similarly situated Caucasian employees who made similar errors
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under the COBC reporting requirements without being terminated for their errors.
Accordingly, the Court proceeds to the pretext analysis.
“A pretext . . . is a deliberate falsehood.” Forrester v. Rauland-Borg Corp., 453
F.3d 416, 419 (7th Cir. 2006).

To show pretext, Plaintiff must establish “by a

preponderance of the evidence that the legitimate reasons offered by . . . [Defendants’]
were not [their] true reasons, but were a pretext for discrimination.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotes omitted). “[I]t is not
enough for a plaintiff to show that his employer’s explanation was based on an inaccurate
assessment of its employee’s performance.” Olsen v. Marshall & Ilsley Corp., 267 F.3d
597, 602 (7th Cir. 2001). Instead, “[p]retext means a dishonest explanation, a lie rather
than an oddity or an error.” Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
“[C]omparator evidence is relevant at the pretext stage.” Coleman v. Donahoe, 667
F.3d 835, 857 (7th Cir. 2012). Indeed, “[i]n order to demonstrate pretext under the
McDonnell Douglas analysis, a plaintiff may put forth evidence that (1) employees outside
of the protected class . . ., (2) who were involved in acts of comparable seriousness, (3)
were nevertheless retrained or rehired (while plaintiff was not).” Hiatt v. Rockwell Int’l
Corp., 26 F.3d 761, 770 (7th Cir. 1994). Therefore, the same inquiry into similarly situated
employees may be made at the pretext stage as is made at the fourth prong of the prima
facie case. See Coleman, 667 F.3d at 857; Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559,
561 (7th Cir. 1998). In order for employees to be “similarly situated” to Dotson, those
employees must be comparable to him in all material respects. Crawford v. Ind. Harbor
Belt R.R. Co., 461 F.3d 844, 846-47 (7th Cir. 2006). However, the inquiry as to whether
two employees are “similarly situated” is one of common sense that depends upon the
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employment context. Filar v. Bd. of Educ., 526 F.3d 1054, 1061 (7th Cir. 2008). Indeed,
Dotson need not “present a doppelganger who differs only by having remained the
employer’s good graces.” Id. However, Dotson must show “substantial similarity” between
herself and the alleged similarly situated employee such that “confounding variables, such
as differing roles, performance histories, or decision-making personnel” are eliminated.
Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007). “In other words, the
inquiry simply asks if there are sufficient commonalities on the key variables between
[Dotson] and the would-be comparator to allow the type of comparison that, taken together
with the other prima facie evidence, would allow a jury to reach an inference of
discrimination.” Id. Dotson presents four Caucasian individuals as comparators. The
Court examines each in turn.
First, Dotson contends that his supervisor, Earnest, is similarly situated to him in all
material respects but was not treated as harshly. Specifically, Dotson argues that he and
Earnest dealt with the same supervisor, were subject to the same standards, and engaged
in similar conduct, but Dotson’s employment was terminated as a result of the conduct, but
Earnest was not formally disciplined. See Rogers v. White, 657 F.3d 511, 518 (7th Cir.
2011).
The Company argues that Earnest is not similarly situated to Dotson because she
is a supervisor and she did not engage in conduct of comparable seriousness to Dotson.
Typically supervisors make poor comparators for plaintiffs claiming employment
discrimination because employees of differing ranks generally have differing job duties or
performance standards. However, in situations such as this where uneven discipline is the
basis of the discrimination claim, a supervisor who engaged in similar misconduct, was
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subject to similar performance standards, and shared a disciplining supervisor with the
subordinate may be similarly situated to the subordinate. See Rogers, 657 F.3d at 517518. Accordingly, the fact that she is Dotson’s supervisor is not enough, on its own, to
establish that Earnest is not similarly situated to Dotson.
The Company also argues that Earnest’s failure to report was not of comparable
seriousness to Dotson’s failure to report because Dotson’s failure to report allowed him to
continue driving after his arrest, opening the Company to potential liability and reputational
damage. The Company asserts that because Earnest immediately prohibited Dotson from
driving upon learning of his arrest, even though she did not report the arrest, her failure to
report was less serious. Lawton Dep. at 39 (stating that Lawton enforced the COBC as he
did because Dotson’s failure to timely report his arrest opened up the Company to potential
liability).
The Court focuses on the portion of the Company’s argument that concerns liability.
The parties dispute whether the Company actually believed that Dotson’s driving in the
period between his arrest and the BMV’s notice that his license had been suspended
opened it to potential liability. Dotson cites evidence of another driver, Jack Simon
(“Simon”), who was arrested for a DUI but permitted to continue driving company vehicles
until his court date in support of his argument that the Company was aware that there was
no potential liability for Dotson’s driving between when he was arrested and when his
license was suspended. See Lawton Dep. at ex. 11; dkt. no. 47-12 at 3. However, Simon
provided his supervisor with a form from the police department stating that Simon could
continue to legally drive until his court date and that the outcome would determine the next
step. See id. Dotson provided the Company with no such documentation. Accordingly,
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that the Company allowed Simon to continue driving after his arrest does not suggest a
broad understanding on the part of the Company that such behavior is always prudent or
legal.1
Additionally both parties provide the Court with citations to Indiana statutes intended
to support their respective positions regarding the potential for liability based upon Dotson’s
continued operation of company vehicles after his arrest. The Court declines to comment
on the actual legality of Dotson’s driving after his arrest. Instead, the Court’s focus is
properly on whether the Company believed that Dotson’s behavior created liability concerns
where Earnest’s did not. See Stewart, 207 F.3d at 378 (stating that pretext means a
deliberate falsehood, not an oddity or error). Dotson has pointed to no evidence suggesting
that the Company did not honestly believe that his behavior created potential liability.
Therefore, because Earnest’s behavior and Dotson’s behavior was not of comparable
seriousness, they are not similarly situated such that deviation in their treatment suggests
pretext.
Dotson next points to Edward Brewer (“Brewer”) as a potential comparator. Brewer
was a Supply Attendant who reported to Earnest. Earnest Dep. at 32-33. As a Supply
Attendant, Brewer drove a 26,000 pound straight truck to different garages in Indiana and
needed a Class B CDL to perform his job duties. Id. On March 17, 2009, Brewer was
pulled over for a lane violation while operating a Company vehicle. Earnest Dep. at 39-40.
He was cited for the lane violation and for driving a commercial vehicle with a disqualified

1

Although the Company raised concerns about the admissibility of the Simon
evidence, the Court declines to comment its admissibility because the Court concludes
that its substance does not further Dotson’s arguments on the merits.
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CDL. Earnest Dep. at 34. The police did not allow Brewer to continue driving, and Dotson
had to complete Brewer’s route. Dotson Aff. at ¶ 12. The same day, Brewer went to the
BMV to remedy his CDL disqualification, but while he was there, the BMV provided Brewer
with a letter dated October 6, 2008 that stated Brewer’s CDL was disqualified on May 2,
2008. Earnest Dep. at 41-42; Earnest Dep. at ex. 16. Brewer brought the letter to Earnest
the following day, and informed her that he had not received the letter and he was not
aware that his CDL had been disqualified prior to March 17, 2009. Earnest Dep. at 38-39,
41. Earnest stated that she had no reason to believe that Brewer had prior knowledge of
his CDL disqualification. Earnest Dep. at 40. The Company did not discipline Brewer for
failure to report his CDL disqualification.
Although the existence of the October letter from the BMV addressed to Brewer’s
personal residence does create some question as to whether Brewer timely reported his
CDL disqualification to the Company, Lawton stated in his deposition that he did not have
knowledge of Brewer or the situation regarding Brewer’s CDL. Lawton Dep. at 40, 42.
Dotson argues that there is no way that Lawton could not have known about the situation,
but he does not provide any evidence to support his argument. In order to prevent
summary judgment, Plaintiff must do more than “raise a metaphysical doubt as to the
material facts, and instead must present definite, competent evidence to rebut the motion.”
Michael v. St. Joseph Cnty., 259 F.3d 842, 845 (7th Cir. 2001). Accordingly, because
Lawton, the disciplining supervisor, did not know about Brewer’s alleged COBC violation,
Brewer and Dotson are not similarly situated. See Ellis v. United Parcel Serv., Inc., 523
F.3d 823, 827 (7th Cir. 2008).

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In conjunction with his assertions regarding Brewer, Dotson notes that Earnest did
not report Brewer’s CLD disqualification to HR, but was never disciplined. Earnest Dep.
at 37. Dotson argues that the Company’s more favorable treatment of Earnest with respect
to her failure to report leads to an inference of pretext. However, Earnest did not allow
Brewer to continue to drive on his suspended CDL once she was aware that it had been
suspended. Dotson Aff. at ¶ 12. Accordingly, the liability concerns that the Company held
with respect to Dotson’s failure to timely report are different than those concerning
Earnest’s failure to timely report Brewer’s CDL disqualification. Therefore, the Company’s
failure to discipline Earnest concerning her failure to report Brewer’s CDL disqualification
does not lead to an inference of pretext with respect to its stated reason for terminating
Dotson’s employment.
Dotson asserts that Kim Kimbrell (“Kimbrell”) is another similarly situated Caucasian
individual who was treated more favorably. Kimbrell is a Distribution Operator that worked
under Gwen Hochstetler’s (“Hochstetler”) supervision. Hochstetler Dep. at 9. As a
Distribution Operator, Kimbrell drove a fork truck in the building but did not operate
Company vehicles on public roadways. Id. On September 17, 2008, Kimbrell was charged
with driving under the influence (“DUI”). Kimbrell Aff. at ¶ 3. In October 2009, the
Company received an anonymous call alleging that Kimbrell had failed to report his DUI
arrest. Hochstetler Dep. Ex. 4. Hochstetler asserts that Kimbrell’s wife called and informed
her that Kimbrell had been arrested on the same day that Kimbrell was arrested, but that
Hochstetler did not then report it to anyone. Hochstetler Dep. at 9-11. The Company
initiated an investigation, and Kimbrell received a final warning. Lawton Dep. at 35.
Kimbrell’s alleged failure to timely report his arrest is not of comparable seriousness to
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Dotson’s failure to timely report his arrest because Dotson drives Company vehicles on
public roads and Kimbrell does not. Accordingly, Kimbrell and Dotson are not similarly
situated such that the Company’s more favorable treatment of Kimbrell could lead to an
inference of pretext. See Humphries, 474 F.3d at 405.
Finally, Dotson asserts that Hochstetler is similarly situated to Dotson because she
failed to report Kimbrell’s arrest pursuant to the COBC, but she only received a letter of
reprimand. Lawton Dep. at 37. Like the Company believed that Earnest’s failure to report
Dotson’s arrest and Brewer’s CDL suspension did not open it to potential liability, so the
Company believed that Hochestetler’s failure to report Kimbrell’s arrest was not as serious
as Dotson’s failure to timely report his arrest. Accordingly, Dotson and Hochstetler are not
similarly situated such that the Company’s more favorable treatment of Kimbrell could lead
to an inference of pretext. See Humphries, 474 F.3d at 405.
Although Dotson has not presented sufficiently similarly situated employees to
create an inference of pretext, the Court’s analysis does not stop there. Dotson asserts
that the Company shifted its explanation for its employment decision by stating in its
briefing that Dotson’s failure to report was more serious than any of his alleged
comparators’ reporting failures because of both potential liability and reputational damage,
but Lawton testified that Dotson’s behavior was more serious because of potential liability
without mentioning reputational damage. See Lawton Dep. at 39. In support of his
argument that this is a sufficient difference in explanation of the challenged employment
decision that the Court should infer pretext, Dotson cites Appelbaum v. Milwaukee
Metropolitan Sewerage District, 340 F.3d 573, 579 (7th Cir. 2003). In Appelbaum, the
defendant initially stated that it fired the plaintiff because of her poor work performance and
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a confidentiality breach. Id. At trial, however, the defendant abandoned the charge of poor
work performance and said that it played “zero role” in the termination decision. Id. That
shift in explanation prompted the Seventh Circuit to note that “[o]ne can reasonably infer
pretext from an employer’s shifting or inconsistent explanations for the challenged
employment decision.” Id. In this case, however, the Company consistently cited liability
concerns as underpinning the determination that Dotson’s failure to report was more
serious than any other alleged in the briefing. In its briefing supporting its motion for
summary judgment, the Company adds reputational damage to its explanation, but that is
not inconsistent with its reliance on the potential for liability as the reason for its decision
to terminate Dotson. Certainly, the addition of reputational damage to its explanation,
which is a natural extension of a concern for potential liability, is not the same as
completely abandoning a stated reason for the challenged employment decision as the
defendant did in Appelbaum. Accordingly, the Court concludes that the Company’s
augmentation of its explanation for Dotson’s termination does not lead to an inference of
pretext. Therefore, because Dotson has not presented any evidence suggesting that the
Company’s stated explanation for its termination decision is anything other than an honestly
held belief, the Court concludes that he fails to fend off summary judgment under the
indirect burden-shifting method. Reeves, 530 U.S. at 143.
Dotson also argues that he can avoid summary judgment under the direct method.
Under the direct method, Dotson survives summary judgment if he can demonstrate “triable
issues as to whether discrimination motivated the adverse employment action.” Darchak
v. City of Chi. Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009). The focus of the direct
method of proof is not whether the evidence offered is itself “direct” or “circumstantial” but
17

rather whether the evidence “points directly” to a discriminatory reason for the employer’s
action. Atanus, 520 F.3d at 671. Direct evidence of discrimination like an admission from
the decision maker that the adverse employment action was motivated by discriminatory
animus is rare. Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th Cir. 2009).
However, “[d]irect proof of discrimination is not limited to near-admissions by the employer
that its decisions were based on a proscribed criterion . . . but also includes circumstantial
evidence which suggests discrimination through a longer chain of inferences.” Atanus, 520
F.3d at 671. Circumstantial evidence to support an allegation of discrimination under the
direct method can include “evidence, whether or not rigorously statistical, that similarly
situated employees outside the protected class received systematically better treatment.”
Darchak, 580 F.3d at 631.
Dotson relies upon his alleged comparators to provide a “convincing mosaic” of
circumstantial evidence.

Coleman, 667 F.3d at 860 (7th Cir. 2012).

However, as

discussed above, Dotson’s proffered comparators do not support an allegation of
discrimination because the Company did not perceive the alleged comparators to have
engaged in conduct of comparable seriousness to the conduct Dotson engaged in that
provided the reason for his termination.

Therefore, Dotson cannot resist summary

judgment under the direct method. Accordingly, the Court GRANTS summary judgment
in favor of the Company.

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IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s, AT&T Services, Inc.,
Motion for Summary Judgment [dkt. no. 39]. Plaintiff, Derrick Dotson, shall take nothing
by way of his Complaint. Judgment shall enter accordingly.
IT IS SO ORDERED this 16th day of July, 2012.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution to:
Laura A. Lindner
LITTLER MENDELSON, P.C.
[e-mail]
Brian Lee Mosby
LITTLER MENDELSON, P.C.
[e-mail]
Gregory A. Stowers
STOWERS & WEDDLE PC
[e-mail]

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