Miller v. Metro Ford Automobile Sales, Inc.
MEMORANDUM OPINION re 71 Order on Motion for Summary Judgment. Signed by Senior Judge Glen H. Davidson on 5/1/12. (rel)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 1:11-CV-00014-GHD
METRO FORD AUTOMOBILE SALES, INC.
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Presently before this Court is a motion for summary judgment  fil¢d by Defendant,
Metro Ford Automobile Sales, Inc. ("Defendant" or "Metro Ford"). After due consideration, the
Court finds the motion  should be granted.
A. Factual and Procedural Background
Plaintiff Hubert Miller ("Plaintiff') brings this action to recover actu.l and liquidated
damages for alleged violations of the Age Discrimination in Employment Act of 1967 (the
"ADEA") and the Fair Labor Standards Act (the "FLSA"), invoking the Court's federal question
Plaintiff was employed as a car salesman at Metro Ford from August 2008 until his
termination in April 2010. Plaintiff alleges that during his approximate two-ye~ employment at
Metro Ford, he was discriminated against due to his age, and that he was terminated in retaliation
for his wage- and age-related complaints. During his time at Metro Ford,
treated less favorably than younger salesmen due to the friendship between the ~unger salesmen
and Plaintiffs superior. Plaintiff alleges his superior often denied sales to him tIhat were given or
referred to the younger salesmen and otherwise favored the younger salesmen. Plaintiff alleges
that he complained to his supervisor, Metro Ford's general manager, Beyron Erby, that he was
underpaid, and that Erby responded by asking him why he was still there and tdlling him to "get
his shit and leave." See PI.' s Dep. [61-1] at 96. Plaintiff maintains he then complained to Metro
Ford's sales manager, Kenny Johnson, about the perceived favored treatment y,ounger salesmen
were receiving and his feelings that he should be compensated for all of the
Due to Plaintiffs dissatisfaction with his work environment at Metro Ford, on March 28, 2010,
Plaintiff maintains he compiled his work-related frustrations in a letter addreSsed to the EEOC
which stated that he was treated unfairly compared to other employees, n<>t afforded equal
employment opportunities, and paid for only forty hours of work when he had actually worked
fifty-five hours. The letter did not expressly state that the perceived unfair tre.tment was due to
Plaintiffs age. Although Metro Ford contends it never received a copy of this letter, Plaintiff
maintains he tried to hand-deliver the letter to Johnson, who allegedly refused to accept the letter
due to instructions from Erby not to acknowledge receipt of anything from Plaintiff.
On April 25, 2010, Plaintiff maintains he was told he would be written up for not
reporting to work on the previous Sunday, which Plaintiff says was a nonmartdatory attendance
day. By all accounts, Defendant terminated Plaintiff on April 26, 2010. Plaintiff was fifty-one
years old at the time. Plaintiff claims that he was fired due to his age, his infbrming Defendant
of his complaints of age discrimination and that he was filing an EEOC charge, and his
complaining of acts that would constitute violations of the ADEA and the FLSA. Defendant
contends that Plaintiff was terminated for selling a car outside the terms ;of a consignment
agreement between Metro Ford and the car owner, who was also a Metro Ford car salesman.
Plaintiff denies this and contends that Metro Ford's articulated reason for his termination is mere
pretext; Plaintiff argues that Metro Ford unlawfully and willfully discriminated against him.
Plaintiff timely filed two formal EEOC charges of discrimination wherein he qharged that he was
the victim of age discrimination and retaliation. See EEOC Charges [43-1] at 4-5. Upon receipt
of his right to sue letters in connection with both EEOC charges, Plaintiff brotJght this action in
this Court. He seeks damages for lost income, liquidated damages, and reasonable attorneys'
fees. Defendant filed a motion for summary judgment  on December 7,2011.
B. Summary Judgment Standard
Summary judgment "should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law." FED. R. CIV.
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Weaver v.
CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the eptry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
sufficient showing 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., 477 U.S. at 322,106 S.
The party moving for summary judgment bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S. Ct. 2548. Under
Rule 56(a) of the Federal Rules of Civil Procedure, the burden then shifts to th~ non-movant to
"go beyond the pleadings and by ... affidavits, or by the 'depositions, answers to interrogatories,
and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' "
Id. at 324, 106 S. Ct. 2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). "The mere
existence of a scintilla of evidence in support of the plaintiffs position will belinsufficient" to
preclude summary judgment; "there must be evidence on which the jury could reasonably find
for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505,91 L. Ed.
2d 202 (1985).
C. Discussion and Analysis
Plaintiff's age discrimination claim under the ADEA and retaliation
ADEA and the FLSA are analyzed under the framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792,93 S. Ct. 1817,36 L. Ed. 2d 668 (1973).1
1. Age Discrimination Claim
Plaintiff alleges that Metro Ford discriminated against him due to his
in violation of
the ADEA. Under the ADEA, it is "unlawful for an employer ... to ... 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). A plaintiff bringing. an ADEA claim
"must prove by a preponderance of the evidence (which may be direct or cirdumstantial), that
age was the 'but-for' cause of the challenged employer decision." Gross v. FBLFin. Servs., Inc.,
557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009). "[F]or an age-based comment to be
probative of an employer's discriminatory intent, it must be direct and unambigpous, allowing a
reasonable jury to conclude without any inferences or presumptions
age was an
impennissible factor in the decision to terminate the employee." Moss v. BMC Software, Inc.,
610 F.3d 917, 929 (5th Cir. 2010) (citing EEOC v. Tex. Instruments, Inc., 100 F.3d 1173, 1181
(5th Cir. 1996) (internal quotation marks omitted»; see also Sandstad v. CB Ri¢hard Ellis, Inc.,
309 F.3d 893, 897 (5th Cir. 2002) (citing Mooney v. Aramco Servs. Co., 54 F.3di 1207, 1217 (5th
1 Although the United States Supreme Court has not definitively resolved whether the McDonnell
Douglas framework is applicable to the ADEA, see Gross, 557 U.S. 167, 129 S. Ct. at 2349 n.2,ithis Court is bound
to follow Fifth Circuit precedent, which holds that the McDonnell Douglas framework applieg to ADEA actions.
See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010); Hagan v. Echostar Satellite,
L.L.c., 529 F.3d 617, 624 (5th Cir. 2008).
Cir. 1995)). Because Plaintiff offers no direct evidence of age discriminatioq, the McDonnell
Douglas framework applies. "To demonstrate [a prima facie case of] age idiscrimination a
'plaintiff must show that (1) he was discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge [i.e., at least 40 years old]; and (4) he was
either i) replaced by someone outside the protected class [i.e., under the age of 40], ii) replaced
by someone younger, or iii) otherwise discharged because of his age.' " Racltid v. Jack in the
Box, Inc., 376 F.3d 305,309 (5th Cir. 2004) (quoting Palasota v. Haggar Clothing Co., 342 F.3d
569, 576 (5th Cir. 2003) (internal quotation marks and citation omitted)).
: "The first three
elements of a prima facie case of age discrimination under the ADEA are ideptical to the first
three elements of a Title VII prima facie case." Meinecke v. H & R Block ofHouston, 66 F.3d
77,83 (5th Cir. 1995) (internal citation omitted).
If the plaintiff establishes a prima facie case of age discrimination,
burden shifts to
the employer to provide a legitimate, non-discriminatory reason for the employment decision. If
the employer articulates a legitimate, non-discriminatory reason for the employment decision,
the plaintiff must then be afforded an opportunity to rebut the employer's purpprted explanation
to show that the reason given is merely pretextual." Moss, 610 F.3d at 922 (inttimal citations and
quotation marks omitted). A plaintiff may show pretext "either through evidence of disparate
treatment or by showing that the employer's proffered explanation is false .or 'unworthy of
credence.''' Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378-7P (5th Cir. 2010)
(quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). The plaintiff must prove that
"discriminatory animus was the 'determinative basis for his termination.' " Machinchick v. PB
Power, Inc., 398 F.3d 345, 351 (5th Cir. 2005) (quoting Rachid, 376 F.3d at 310). "As a
practical matter, this requirement dictates that the plaintiff put forward evidence rebutting each
one of a defendant's non[-]discriminatory explanations for the employment deqision at issue....
This approach differs from that used in the mixed-motive analysis, under whiJh a plaintiff need
only prove that discriminatory animus was a 'motivating factor' in an adv.erse employment
decision." Id. at 351-52 (internal footnotes and citations omitted).
a. Prima Facie Case
It is undisputed that Plaintiff was discharged and within the protected class, as he was
fifty-one years of age at the time of discharge. It may be easily inferred that Plaintiff was
qualified for the position. However, the parties dispute whether Plaintiff has satisfied the fourth
The record does not support that the Plaintiff was replaced by
protected class. Thus, Plaintiff attempts to show that he was "otherwise discharged because of
his age." See Rachid, 376 F.3d at 309. Plaintiff has presented some proof that he was otherwise
discharged because of his age, including his testimony and the testimonies of former salesmen
tending to show that certain younger salesmen received more favored treatment than the Plaintiff
did with respect to sales; that Plaintiffs supervisor, general manager Beyron Erby, repeatedly
asked him why he was still working at Metro Ford; and that his complaints of work-related
problems went unheeded and ultimately resulted in his termination. The Fifth Circuit has stated
that the plaintiff "need only make a very minimal showing" to establish a prima facie case.
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38,41 (5th Cir. 1996) (internal citation omitted). In
addition, "purely indirect references to an employee's age ... can support an inference of age
discrimination." Machinchick, 398 F.3d at 353 (internal footnote and citations omitted) (finding
company vice president's remarks in e-mail to human resources that plaintiff had "[l]ow
motivation to adapt" to change, as well as his remarks in his deposition that plaintiff was
"inflexible," "not adaptable," and possessing a "business-as-usual attitude" supported inference
of age discrimination). See Rachid, 376 F.3d at 315; Hansard v. Pepsi-Cola MJtro. Bottling Co.,
865 F.2d 1461, 1466 (5th Cir. 1989).
Plaintiff, which the Court must do at the summary judgment stage, the Court llnds that Plaintiff
has met his burden of establishing a prima facie case of age discrimination tinder the ADEA.
Assuming, arguendo, that Plaintiff has established a prima facie case of age discrimination,
Metro Ford must provide a legitimate, nondiscriminatory reason for its decision to terminate
b. Legitimate, Nondiscriminatory Reason
Metro Ford contends it terminated Plaintiff solely due to his involvement in an incident in
which he sold a car that Metro Ford had on consignment outside the terms of the consignment
agreement, and in so doing, "intentionally misled a customer into believing that the customer
was purchasing a vehicle from Metro Ford." Def. 's MSJ 
2. Metro Ford had the right to
sell a 2003 Lincoln Aviator belonging to one ofits salesmen, David Turner, pursuant to the terms
of a consignment agreement entered into between Metro Ford and Turner. The terms of the
agreement allowed Turner through Metro Ford to sell the vehicle through i either a visual
storefront or an online marketplace. Turner was required to pay Metro Ford 100% of any excess
Plaintiff had worked with a customer, Rod Matthews, on the possible purchase of a
Chrysler vehicle from Metro Ford. When the deal fell through, Plaintiff spoke to Matthews
about the possible purchase of Turner's 2003 Lincoln Aviator.
Metro Ford contends that
Plaintiff represented to Matthews that he would be purchasing the vehicle from Metro Ford.
Metro Ford maintains that an individual named Kevin Beeks helped Matthews to purchase the
Aviator, and Beeks testified that throughout the process, he believed Plaintiff was acting on
Metro Ford's behalf and that he was purchasing the vehicle from Metro Ford. Metro Ford
maintains that Plaintiff ultimately sold Turner's 2003 Lincoln Aviator to Matthltws, but this sale
was outside the terms of the consignment agreement and for Plaintiff's own bemWt.
Beeks testified that after the purchase of the vehicle he tried several times to contact
Plaintiff to ask about obtaining an extra set of keys for the Aviator, but after he was unable to
reach the Plaintiff, he spoke to Metro Ford's general manager, Beyron Erby. BQeks testified that
it was at this point that he first learned the Aviator had not been sold by Me,tro Ford, but by
Plaintiff as an individual.
Beeks testified that he told Erby he would not have knowingly
purchased the vehicle through Plaintiff as an individual.
reviewed the company's computer system, only to find that Metro Ford had
none of the
proceeds of the sale of the Aviator. It is Metro Ford's position that Plaintiff knew the vehicle
was on consignment with Metro Ford, and could not have known the selling price of the vehicle
unless he had asked someone in Metro Ford's sales office. Metro Ford asserts that subsequent to
Erby's discovery on the computer system, Erby spoke to Beeks, Matthews, and Turner about the
Metro Ford maintains that Turner said he and the Plaintiff had discussed the
possibility of making more money on the sale of the Aviator if they bypassed Metro Ford.
Subsequently, Metro Ford maintains that Turner voluntarily quit his employntent with Metro
Ford and Metro Ford then terminated the Plaintiff for misrepresenting himseIfito the customer
and for selling the Aviator outside the terms of the consignment agreement, all incident Metro
Ford characterizes as "in essence, [a] theft" and "at a minimum, ... dishonest or unethical
conduct, all of which is expressly prohibited under Metro Ford's Employee Haddbook." Def. 's
Mem. Br. SUpp. MSJ  at 9.
The handbook, attached as an exhibit to Metro Ford's
submissions, provides in pertinent part: "The continued success of [Metro Ford] is dependent
upon customers' trust and we are dedicated to preserving that trust. Employaes owe a duty to
[Metro Ford], its customers, and shareholders to act in a way that will merit tbe continued trust
and confidence of the public." Metro Ford Co. Policy [51-8] at 2. Defendant maintains that
"[Plaintiff] is not protected from having his employment terminated simply because he is over
the age of 40 when there is direct evidence of misconduct and/or fraud, as in the instant action."
Def.'s Mem. Br. SUpp. MSJ  at 10.
Assuming, arguendo, that Plaintiff has made a prima facie case of age discrimination and
Defendant has sufficiently rebutted this presumption by offering a legitimate, nondiscriminatory
reason for Plaintiff's termination, the Court must next examine whether the
Plaintiff maintains in response to Metro Ford's articulated reason for the termination the
following: (1) Plaintiff was not aware of the consignment agreement, only ithat Turner had
parked the 2003 Lincoln Aviator out in front at Metro Ford and was trying to sell the vehicle, see
Pl.'s Dep. [51-2] at 9, 11, Pl.'s Dep. [61-1] at 25;2 (2) Plaintiff had never sold a vehicle that was
on consignment with Metro Ford and had "never heard of consignment in the
Dep. [61-1] at 26; and (3) Plaintiff suspects that the consignment agreement
the incident in question, but admittedly has "no proof' of same, id. at 47. Plaintiff strongly
2 The Court notes that former Metro Ford car salesman Willie Gardner testified by deposition in contrast
that he had been familiar with the fact that Turner's 2003 Lincoln Aviator was on consignmettt with Metro Ford,
because "as a salesperson, ... you get a list of cars that's on the lot. And .. if you brought yot.r vehicle and spoke
with [Erby] about selling it, you know, sometimes it wasn't on that list. So you go to [Erby] ',' .. And he would
explain this is such and such, this is the price I want for the vehicle and such. So when he told ~ou these things, you
knew it was a consignment vehicle. Because it wasn't a vehicle brought in by Metro Ford." G$-dner Dep. [61-4] at
denies selling the Aviator, and maintains that he simply referred the custo$er to Turner by
telling Matthews: "[T]his guy here is trying to sell his car. It may be in yourJprice range what
you've been approved for." See id. at 8. Plaintiff contends that the only monley he received in
connection with the sale of the Aviator was a $100 referral fee or ''bird dog" frofn Turner.
However, following his termination, Plaintiff says Matthews called the Plaintiff on his
cell phone "I guess [because] he felt guilty. All he was saying was it's going to:be all right, man,
it's going to be all right. I'm like, man, do you know what you just did? He said it's going to
be all right. That was the extent of the conversation." Pl.'s Dep. [61-1] at
Plaintiff testified that he supposed "[Matthews] was trying to conSult me as far as
getting me fired or whatever or having a hand in getting me fired. I don't know j" Id. at 40. This
exchange, particularly Plaintiffs comment "I'm like, man, do you know what you just did?"
shows that Plaintiff is acknowledging he understood, at least at that time, that he was terminated
due to his involvement in the sale of the Aviator.
Plaintiff alleges Metro Ford's reason for the termination was pretextual and Metro Ford's
real reason for terminating him was due to his age. In support of this argument. Plaintiff asserts
that the workplace environment at Metro Ford was a "buddy situation" in whiph superiors had
"childish ways and attitudes" and lack of respect towards Metro Ford emplowes. See EEOC
Letter [43-1] at 1-3. Plaintiff asserts that Metro Ford's age-based discrimination against him
first presented itself in the less favorable treatment Plaintiff received with respect to sales, which
were often denied to him and given to younger salesmen based on those salesmen's friendships
with Erby, and that this discrimination culminated in the Plaintiffs terminati
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