Inmon v. Mueller Copper Tube Co., Inc.
Filing
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MEMORANDUM OPINION re 75 Order on Motion for Summary Judgment. Signed by Senior Judge Neal B. Biggers on 2/16/2018. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MARGARET SUE INMON
PLAINTIFF
V.
CIVIL ACTION NO. 1:16CV209-NBB-DAS
MUELLER COPPER TUBE COMPANY, INC.
DEFENDANT
MEMORANDUM OPINION
This cause comes before the court upon the defendant’s motion for summary judgment.
Upon due consideration of the motion, response, exhibits, and applicable authority, the court is
ready to rule.
Factual and Procedural Background
The plaintiff, Margaret Sue Inmon, was hired by the defendant, Mueller Copper Tube
Company, Inc. (“Mueller”), in 1997 when she was fifty-one years old. Mueller produces copper
tubing and operates a facility in Fulton, Mississippi, where it employs over three hundred
workers. Inmon alleges that she was wrongfully terminated from her employment on January 5,
2016, because of her age (sixty-nine at the time of termination) in violation of the Age
Discrimination in Employment Act and in violation of Mississippi public policy for her reporting
of an alleged crime at the plant.
Mueller’s Fulton plant is a unionized facility with a collective bargaining agreement that
controls the terms and conditions for the hourly employees at the facility. The collective
bargaining agreement provides: “It shall be the continuing policy of the parties that the
provisions of this Agreement shall be applicable to all employees without regard to race, color,
sex, religion, age, handicap or national origin.”
Mueller’s Fulton facility also operates under a set of Plant Rules setting forth the
accepted standards of personal conduct consistent with the safe, successful, and efficient
operation of the plant in order to maintain uninterrupted production on the job and to protect
Mueller and its employees.
Mueller’s plant manager, Mike Baum, who is Vice President of Operations and the
highest ranking employee at Mueller’s Fulton facility, made the decision to terminate the
plaintiff’s employment after the plaintiff incurred several infractions of plant rules during 2015.
Mueller’s policy is to terminate any employee who receives four disciplinary actions within a
one-year period.
In 2015, the plaintiff received a verbal warning, a written warning, and a three-day
suspension for separate incidents unrelated to each other and unrelated to the fourth incident
which ultimately resulted in the termination of the plaintiff’s employment. The verbal warning
was issued on August 21, 2015, when the plaintiff left shortly after her regular shift ended at
11:00 p.m. despite agreeing to be drafted to stay over until another employee could replace her.
Mueller was unable to provide a replacement when the plaintiff left, and, as a result, production
on the plaintiff’s line was stopped for approximately four hours. The plaintiff acknowledges she
was required to work the overtime pursuant to the terms of the collective bargaining agreement
but contends no other employee ever received a verbal warning for being drafted for overtime
and leaving.
On November 20, 2015, the plaintiff received a written warning after her supervisor, Jon
McWilliams, observed the plaintiff sitting down reading a newspaper when she should have been
cleaning her area, thereby wasting time and violating Plant Rule 8 which states, “An employee
shall not waste time, loaf or loiter on the job or on Company premises during working hours
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shall he neglect job duties and responsibilities, or do personal work of any kind.” On November
23, 2015, McWilliams met with the plaintiff and issued the written warning. According to
McWilliams, the plaintiff became very loud and combative, but though she could have pursuant
to plant rules and the collective bargaining agreement, the plaintiff did not file a grievance
regarding this disciplinary action. Instead, the following day, the plaintiff went to the Fulton
Police Department and filed criminal charges against McWilliams under Miss. Code Ann. § 9735-15, “Disturbing the Peace.” In doing so, she completed an affidavit stating that on November
23, 2015, McWilliams “disturb [sic] the peace of Margaret Inmon at 404 Mueller Brass Road by
yelling at her and telling her to shut her mouth.” McWilliams was arrested while at work at
Mueller on December 8, 2015. Plant manager Mike Baum and human resources manager Travis
Fisher accompanied McWilliams to the courthouse for two appearances. On December 9, 2015,
the day after McWilliams’ arrest, the plaintiff was disciplined for “making false, vicious
statements, distracting attention of others, insubordinate conduct.” Because the plaintiff had
already received a verbal warning and a written warning in 2015, she received a three-day
suspension for this violation of plant rules.
The plaintiff’s fourth infraction of 2015 occurred on December 28 when an investigation
into a report made by two employees, Helen Northington and Carol Gable, revealed that on that
date the plaintiff had struck Northington with copper tubing. Video surveillance footage of the
plaintiff’s work area shows that the plaintiff left her machine early, littered the plant floor, and
used her cell phone when, according to Mueller, she should have been working, all in violation
of Mueller’s plant rules. Because the December 28 incident involved multiple violations of plant
rules and because these violations amounted to the plaintiff’s fourth disciplinary action within a
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one-year period, Mike Baum made the decision to terminate the plaintiff’s employment, and her
employment was terminated on January 5, 2016.
The plaintiff filed a grievance regarding her termination. On May 6, 2016, the union
submitted a letter to the plaintiff stating, “After a thorough investigation and careful
consideration of any and all evidence and based on the merits of the case, we do not believe we
can prevail in arbitration. Therefore, your grievance has been withdrawn from the grievance
procedure and will not be arbitrated.”
The plaintiff filed the present action on November 22, 2016. She asserts that she was
disciplined for frivolous reasons and that she was disciplined for actions that she alleges were
common at Mueller and for which other employees were not disciplined. In other words, she
asserts that the alleged disciplinary reasons for her termination were pretext for age
discrimination.
The plaintiff’s second claim, that she was terminated in violation of Mississippi public
policy for reporting a crime occurring at the plant, arose from the disciplinary incident with
McWilliams and his arrest. The defendant asserts that Baum’s decision to terminate the plaintiff
had nothing to do with the plaintiff’s filing charges against McWilliams and that Baum was not
surprised by the plaintiff’s actions in filing her police report because she had previously called
911 to report someone’s vehicle in what she wrongfully asserted was her personal handicapped
parking space at the Mueller facility.
Standard of Review
“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.” Fed.
R. Civ. P. 56(a). On a motion for summary judgment, the movant has the initial burden of
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showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). If the movant makes such a showing, the burden then shifts to the non-movant to
“go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue
for trial.” Id. at 324. Before finding that no genuine issue for trial exists, the court must first be
satisfied that no rational trier of fact could find for the non-movant. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment, although a useful
device, must be employed cautiously because it is a final adjudication on the merits.” Jackson v.
Cain, 864 F.2d 1235, 1241 (5th Cir. 1989).
Analysis
A plaintiff seeking to establish a prima facie case of discrimination in violation of the
Age Discrimination in Employment Act must introduce evidence that (1) she is a member of the
protected class, that is, over the age of forty; (2) that she is qualified for the position; (3) that she
has been the subject of an adverse employment decision; and (4) that she was either replaced by
someone outside the protected class, replaced by someone younger, or otherwise discharged
because of her age. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Machinchick
v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). Once the plaintiff has established her
prima facie case, the burden of production shifts to the defendant who must then proffer a
legitimate nondiscriminatory reason for the employment action. Machinchick, 398 F.3d at 350.
“To establish a prima facie case, a plaintiff need only make a very minimal showing.”
Nichols v. Loral Vought Systems Corp., 81 F.3d 38, 41 (5th Cir. 1996). The plaintiff here has
shown her ability to establish a prima facie case. The plaintiff was sixty-nine years old at the
time of her termination; thus, she is a member of the protected class for age discrimination. The
plaintiff had worked at Mueller for almost nineteen years, the last ten years running the same
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machine. It would be disingenuous to assert that the plaintiff was not qualified for her job. The
termination of the plaintiff’s employment was, of course, an adverse employment action.
Finally, the plaintiff was replaced by Tianna Huddleston, who was twenty-four years old at the
time. Huddleston is forty-five years younger than the plaintiff and outside the protected class.
The court now turns to the defendant’s proffered legitimate nondiscriminatory reason for
the plaintiff’s termination and an examination to determine if the plaintiff can show that the
reason is pretext for discrimination. As mentioned, the defendant asserts that it terminated the
plaintiff’s employment in accordance with company policy because the plaintiff received four
disciplinary actions within a one-year period. The employer’s reason for the adverse
employment action need not be persuasive or credible. See St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 509 (1993); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir. 2002).
The defendant’s burden is instead to produce “evidence, which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action.” Price v. Federal
Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). The employer is not “required to persuade the
court that it was actually motivated by the proffered reasons.” Turner v. Kansas City S. Ry. Co.,
675 F.3d 887, 901 (5th Cir. 2012). The defendant must only “clearly set forth, through the
introduction of admissible evidence, the reasons for [its decision].” Texas Dept. of Community
Affairs v. Burdine, 450 U.S 248, 255 (1981). The court finds that the defendant has sufficiently
met its burden in this regard.
To establish pretext, the plaintiff must produce evidence demonstrating that the reason
given for her termination was not the true reason. Waggoner v. City of Garland, Tex., 987 F.2d
1160, 1166 (5th Cir. 1993). Pretext may be demonstrated “through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or ‘unworthy of
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credence.’” Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Jackson v.
Cal-Western Packaging Corp., 602 F.3d 374, 378-79 (5th Cir. 2010)). Evidence of pretext must
be “of such quality and weight that reasonable and fair-minded [persons] in the exercise of
impartial judgment might reach different conclusions.” Long v. Eastfield College, 88 F.3d 300,
308 (5th Cir. 1996). Further, under the ADEA, the plaintiff must “prove, by a preponderance of
the evidence, that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL
Financial Services, Inc., 557 U.S. 167, 176 (2009). “But for” cause does not mean “sole” cause,
however. McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 282 n.10 (1976). To meet her
evidentiary burden regarding pretext, the plaintiff must show “that [the defendant] did not in
good faith believe the allegations, but relied on them in a bad faith pretext to discriminate against
[her] on the basis of [her] age.” Swenson v. Schwan’s Consumer Brands N. Am., Inc., 500 F.
App’x 343, 346 (5th Cir. 2012) (citing Waggoner, 987 F.2d at 1166). Conclusory allegations,
speculation, improbable inferences, unsubstantiated assertions, and legalistic arguments do not
constitute an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co.
v. Sedgwick James of Washington, 276 F.3d 754 (5th Cir. 2002).
The court finds that the plaintiff has failed to meet her burden of showing pretext. As the
defendant argues, the plaintiff’s belief that she should not have received disciplinary actions and
her belief that no employee received a verbal warning for being drafted and leaving are
irrelevant. “A fired employee’s actual innocence of his employer’s proffered accusation is
irrelevant as long as the employer reasonably believed it and acted on it in good faith.”
Cervantez v. KMGP Services Company, Inc., 349 F. App’x 4, 10 (5th Cir. 2009); Waggoner, 987
F.2d at 1165-66. Nevertheless, because the plaintiff refutes the four disciplinary actions which
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led to her termination and because these actions constitute the basis of the defendant’s legitimate
nondiscriminatory reason for the plaintiff’s termination, the court will address each.
Regarding the plaintiff’s verbal warning for leaving after being drafted for overtime in
August 2015, Mike Baum testified that certain employees had received warnings for leaving
early while others may have been drafted and left on occasions and did not receive warnings.
Baum explained the distinction: “I’m aware we do give disciplinary actions for people when
they refuse to stay at times, if it stops work production. If it actually stops production of a line,
we do give disciplinary action.” The plaintiff’s asserted belief to the contrary is irrelevant, and
the plaintiff does not direct the court to any facts which refute Baum’s explanation.
As for the plaintiff’s November 23, 2015 written warning for sitting down on the job, the
plaintiff has shown no evidence, only conclusory allegations, that the supervisor witnessed other
employees failing to perform their work without disciplinary consequences. The plaintiff asserts
that this supervisor, McWilliams, who was not her direct supervisor, harassed her as long as she
worked at Mueller and “would be hateful” to her. These statements do not contain specific facts
and do not constitute evidence showing a genuine issue for trial.
The plaintiff also asserts that the alleged harassment she received from McWilliams
motivated her decision to file criminal charges against him. The plaintiff’s third infraction of
2015 resulted in her suspension for three days. The defendant asserts that the plaintiff’s threat to
get even with McWilliams and her bragging to employees that she had filed a police report
against him were disruptive to the workplace. Beyond her own accusations, the plaintiff has
presented no evidence to substantiate her claim that McWilliams engaged in harassing or
criminal behavior, and the court notes that the plaintiff ultimately withdrew a harassment claim
she initially asserted in this action and dismissed her criminal charges against McWilliams.
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Finally, as to the infractions that resulted in the plaintiff’s fourth disciplinary action in
2015 and her ultimate termination, the plaintiff has not identified another individual who
committed the same violations of plant rules without resulting disciplinary action. She therefore
has failed to demonstrate that a similarly situated employee outside her protected class was
treated differently for the purpose of establishing pretext. Further, Gable and Northington, the
plaintiff’s coworkers, voluntarily reported the plaintiff’s inappropriate conduct, and the plaintiff
has made no showing that her age was at issue in any way regarding this incident or the others.
The plaintiff bases her belief that Mueller wanted to get rid of older employees on vague
remarks to that effect allegedly made by union representatives, not by Mueller management. The
plaintiff alleges that McWilliams harassed her because he wanted to get rid of older employees.
This allegation is immaterial because McWilliams played no role in the termination decision
which was solely made by Mike Baum. The plaintiff also contends that a union official stated
that a Mueller representative made statements several years earlier during union negotiations that
older employees were costing the company too much in the way of insurance. In addition to
amounting to hearsay, this statement lacks temporal proximity to the circumstances giving rise to
this case such that even if taken as true, the statement would hold little to no probative value.
Finally, the plaintiff asserts that a “buy-out” plan negotiated between Mueller and the union
somehow discriminated against employees because of their age. The purpose of the buy-out was
to allow the employees working at a lower hourly rate either to leave employment or to receive
training for a more skilled position. If the employee chose neither, his or her hourly rate was
subject to reduction due to the implementation of a new compensation structure. This buyout
provision was voted on and approved by the union employees. The plaintiff has shown no
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manner in which the buyout discriminated against older employees or constituted part of the
company’s alleged plan to get rid of older employees.
Because the plaintiff has failed to show evidence indicating that the defendant’s proffered
legitimate nondiscriminatory reason for her termination was pretext for discrimination, her claim
for wrongful termination in violation of the ADEA cannot move forward. She has been unable
to show the existence of a genuine issue of material fact as to this claim. Summary judgment is
appropriate, and the claim must be dismissed.
The plaintiff also brings a claim of wrongful termination in violation of Mississippi
public policy, alleging that she was terminated for reporting the alleged criminal act of
McWilliams. It has long been well-settled in Mississippi that “a contract for employment for an
indefinite period may be terminated at the will of either party, whether the discharge is for any
reason or no reason at all.” Community Care Center of Aberdeen v. Barrentine, 160 So. 2d 216,
218 (Miss. 2015). The Mississippi Supreme Court, however, carved out a narrow public policy
exception to the at-will employment doctrine in McArn v. Allied Bruce-Terminix Co., 626 So. 2d
603 (Miss. 1993), recognizing that an employer may not discharge an employee in retaliation for
the employee’s refusing to participate in illegal acts or reporting illegal acts of its employer. Id.
at 606. This exception was further limited to “acts complained of [that] warrant the imposition
of criminal penalties, as opposed to mere civil penalties.” Gray v. Town of Terry, 196 So. 3d
211, 218 (Miss. App. 2016). “A plaintiff’s subjective belief that the acts reported were illegal
does not satisfy McArn; instead, the alleged act must actually be illegal.” McGrath v. Empire
Inv. Holdings, LLC, No. 1:11-CV-209-A-S, 2013 WL 85205, at *4 (N.D. Miss. Jan. 7, 2013)
(citing Wheeler v. BL Development Corp., 415 F.3d 399, 403 (5th Cir. 2005)).
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This claim is wholly without merit. In addition to the fact that the plaintiff dropped her
charges against McWilliams and in addition to the fact that no evidence in the form of witness
testimony, surveillance video, or any other form beyond the plaintiff’s own unsupported
accusations has been presented showing that McWilliams committed any crime, the Mississippi
Court of Appeals has held that the Mississippi statute which prohibits disturbing the peace refers
solely to “the public peace or the peace of others.” Collins v. State, 223 So. 2d 817, 821 (Miss.
App. 2017). The only peace the plaintiff alleges was disturbed is that of her own. The plaintiff’s
affidavit plainly states McWilliams “disturb [sic] the peace of Margaret Inmon at 404 Mueller
Brass Road by yelling at her and telling her to shut her mouth.” Because the applicable statute
requires a disturbance of the peace of more than one person, the statute was not violated. The
plaintiff’s filing of her police report against McWilliams therefore does not afford her protection
under McArn. Accordingly, this claim should be dismissed.
Conclusion
For the foregoing reasons, the court finds that the defendant’s motion for summary
judgment is well taken and should be granted. A separate order in accord with this opinion shall
issue this day.
This, the 16th day of February, 2018.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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