Plemmons v. Regional Elite Airline Services

Filing 50

ORDER entered by Judge Nanette Laughrey. The motion for summary judgment filed by Defendant Regional Elite is GRANTED [Doc. # 41] on all counts. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
ROBERT PLEMMONS

)
)
Plaintiff,
)
)
)
vs.
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REGIONAL ELITE AIRLINE SERVICES, )
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Defendant.
)

Case No. 2:10-CV-04177

ORDER
Pending before the Court is Defendant Regional Elite Airline Services’s (“Regional
Elite’s”) motion for summary judgment. [Doc. # 41] on Plaintiff Robert Plemmons’s claims
of wrongful termination under the Railway Labor Act and the Missouri Constitution. For the
reasons stated below, the Court grants summary judgment in favor of Regional Elite on all
of Plaintiffs’ claims.
I.

Factual background1
Plemmons began his employment with Regional Elite at its Asheville, North Carolina

station. He transferred to its Columbia, Missouri station in December of 2009. Plemmons’s
supervisor in Columbia was Brenton Daniel, the Station Manager.
Plemmons is a former member of the United States Steelworkers union. Plemmons

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In considering Regional Elite’s motion, the Court has drawn all reasonable inferences in
favor of Plemmons, the non-movant.

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spoke to five coworkers at Columbia Regional Elite about the union. These conversations
occurred outside the open door to Daniel’s office. Daniel is sometimes able to hear
conversations outside his office, although there is background noise from an aircraft radio
and television in the area. Plemmons did not participate in any organizing efforts other than
these conversations. Neither Regional Elite nor Daniel ever made any communication to
Plemmons regarding unions. Daniel never said anything to Plemmons about these union
conversations, nor interfered with them, although Daniel once stated to Plemmons over lunch
that Plemmons’s co-workers felt like Plemmons was “rocking the boat” at the station. [Doc.
# 42-1 at 12]. Plemmons does not believe anyone else within Regional Elite’s management
was aware of Plemmons’s support for the union.
The Company Communications Equipment Policy of Regional Elite’s Employee
Handbook provides that internet access should not be used for inappropriate behavior. [Doc.
# 42-1 at 28]. On February 14, 2010, Ms. Bonner discovered a picture of a woman who was
either nude or wearing a bathing suit on the computer in the Columbia Regional Elite
operations room. This particular computer belonged to Mesaba Airlines. Ms. Bonner
reported to Daniel that she had found an image of a nude woman on the computer. Daniel
asked employee Larry Newsome to help him search the computer’s internet history, because
Mr. Newsome was good with computers. The internet history revealed visits to several
obviously pornographic websites as well as several inappropriate search terms. This history
also revealed that around that same time, someone had accessed the website of an Ashville,
North Carolina, radio station. Daniel sent a printout of this internet history, along with a
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statement he solicited from Ms. Bonner, to his supervisor, J.W. Jones.
Daniel consulted the employee work schedule, which indicated that only Plemmons
and co-worker Ed Hamadto were working at the time the pornographic websites were
accessed. Because Plemmons had recently transferred from Ashville, Daniel spoke to
Plemmons first about the incident. Plemmons admits that this was a reasonable decision
given his connection to Asheville. [Doc. # 42-1 at 30].
Daniel confronted Plemmons about the incident, and showed Plemmons the evidence
from Daniel’s investigation. Plemmons denied responsibility for the incident. Daniel told
Plemmons that “[Plemmons] was not allowed to leave until [Daniel] had something in his
hand for HR.” [Doc. 3 42-1 at 16]. Plemmons wrote a statement that read, in relevant part,
“I am truthfully sorry for my actions here at COU in regards to the sites that were noticed.
I give you my word that this will never happen again...” [Doc. # 42-3 at 36]. Although
Plemmons only intended to admit to accessing social networking, personal email, and videogame sites, Daniel interpreted this as an admission that Plemmons had accessed pornographic
websites. Daniel also met with and obtained a statement from Hamadto. This statement
accounted for Hamadto’s whereabouts during the times when Daniel believed pornographic
websites were accessed. Hamadto denied any use of the computer during that time.2 Daniel
sent Plemmons home pending the outcome of the investigation.

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Plemmons objects to this statement on hearsay grounds. For purposes of this Order, the
Court considers the statement only for its effect on Daniel, and not for the truth of the matter
asserted. The statement does not meet the definition of hearsay for these purposes.

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Daniel submitted all information gained from the investigation to his supervisor,
Jones, who forwarded it to Regional Elite’s People Department. Daniel also verbally
recounted the steps of the investigation to Jones. As per Regional Elite policy, the decision
to terminate Plemmons was made jointly by the Regional Manager, People Generalist, and
People Manager. On February 19, 2010, People Generalist Anne Hanson emailed Daniel
instructing him to terminate Plemmons’s employment. Plemmons admits that termination
of employment is an appropriate measure for an employee who accesses inappropriate
pictures of nude women at work. [Doc. # 42-1 at 32]. Three other employees at Regional
Elite have been accused of similar misconduct, and all three were discharged from
employment. [Doc. # 48 at 25].
Pursuant to Regional Elite policy, Plemmons was allowed an appeal of the termination
decision. Plemmons submitted his appeal, denying responsibility for the incident. Former
Director of Field Operations Brian Cobb reviewed the appeal and upheld the termination.
II.

Discussion
A.

Railway Labor Act

In order to state a prima facie case for wrongful discharge under the Railway Labor
Act, Plemmons must show by a preponderance of the evidence that (1) he engaged in union
activities; (2) his employer knew of his protected activity; (3) his employer harbored animus
toward the activity; and (4) the animus was a causal factor in the termination. See Lebow v.
American Trans. Air, Inc., 86 F.3d 661, 666 (7th Cir. 1996). If Plemmons succeeds in
meeting his burden, then the burden shifts to Regional Elite to prove beyond a preponderance
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of the evidence that Plemmons would have still been fired for a valid reason. Id. The Court
assumes for purposes of this Order that Plemmons has met his prima facie case and considers
Regional Elite’s argument that it would have validly and independently terminated
Plemmons for viewing pornography at work.
Assuming Plemmons has stated a prima facie case for wrongful discharge, Regional
Elite has met its burden to show a non-discriminatory reason for terminating Plemmons.
After a Regional Elite employee discovered inappropriate materials on a workplace
computer, Regional Elite: (1) narrowed its list of potential users by determining who was
on duty when the forbidden web pages were accessed; (2) connected the specific Asheville,
NC, website visit to Plemmons; (3) reviewed the alibi of Mr. Hamadto, the other employee
on duty when the forbidden pages were accessed; and (4) was told by Plemmons that
Plemmons was sorry for his actions related to the website he had been shown by Daniel.
Plemmons himself has admitted that many of the steps of the investigation were reasonable,
and that termination is the proper action for those viewing pornography at work.
Given this evidence, no reasonable juror could conclude that Plemmons was
terminated because Daniel overheard Plemmons talking about the value of unions. This is
especially true because Daniel, the only manager who might have been aware of Plemmons’s
union conversations, did not participate in the decision to terminate Plemmons, and because
Regional Elite also terminated the three other Regional Elite employees on record accused
of violating this policy.
Plemmons argues that the investigation of his alleged viewing and downloading
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pornography at work was so poorly conducted as to suggest that it was pretextual, and that
union animus was the true underlying cause. Specifically, Plemmons disputes whether
Regional Elite employed the correct methods to trace internet activity, and disputes whether
this method yielded the correct times that the pornographic websites were, in fact, accessed.
But “[t]he critical inquiry in discrimination cases like this one is not whether the employee
actually engaged in the conduct for which he was terminated, but whether the employer in
good faith believed that the employee was guilty of the conduct justifying discharge.” See
McCullough v. Univ. of Arkansas for Med. Sci., 559 F.3d 855, 861-62 (8th Cir. 2009) (Title
VII case). Thus, whether Plemmons violated Regional Elite’s internet policy is not the
dispositive issue. The relevant inquiry is whether Regional Elite, in good faith, believed that
he had. Given the evidence, no reasonable juror could conclude that Regional Elite did not
have a good faith belief that Plemmons did access pornography.
Plemmons also argues that the Court should infer union animus from the temporal
proximity between Plemmons’s protected activity and his termination. But a subsequent
admission by an employee that he violated a workplace policy is an “intervening event” that
“undermines any causal inference that a reasonable person might otherwise have drawn from
temporal proximity.” Freeman v. Ace Telephone Ass’n., 467 F.3d 695, 698 (8th Cir. 2006)
(refusing to infer causation from temporal proximity where, between his protected activity
and his termination, a co-CEO admitted to continuing and lying about a forbidden sexual
relationship with a subordinate employee).
B.

Wrongful discharge under the Missouri Constitution
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Plemmons also argues that he was terminated for exercising his constitutional right
to bargain collectively, in violation of article I, section 29 of the Missouri Constitution. See
Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 91 n.8 (Mo. 2010). Plemmons argues
that the same evidence he presented for his Railway Labor Act case supports a prima facie
case under the Missouri Constitution as well. This argument also fails because Regional
Elite has demonstrated a non-discriminatory purpose for terminating Plemmons’s
employment .
III.

Conclusion
Accordingly, it is hereby ORDERED that the motion for summary judgment filed by

Defendant Regional Elite is GRANTED [Doc. # 41] on all counts.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: September 7, 2011
Jefferson City, Missouri

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