Opinion
Civil Action File No. 2:01-CV-165-WCO
August 2, 2002
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and this Courts Local Rules 72.1 and 58.1. Let the same be filed and a copy, with a copy of this order, be served upon counsel for the parties.
Each party may file written objections. if any, to the Report and Recommendation within ten days of receipt of this Order. 28 U.S.C. § 636(b)(1). Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appeal of factual findings will be limited to a review for plain error or manifest injustice. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.
IT IS SO ORDERED.
FINAL REPORT AND RECOMMENDATION I. Procedural History
Harold W. McCord ("Plaintiff") filed this action against Defendants United Parcel Service, Inc. ("UPS"), International Brotherhood of Teamsters and Teamsters Local No. 728 [Doc. 1], alleging that Defendant UPS terminated his employment because of his age in violation of the Age Discrimination in Employment Act ("ADEA") (Count I); that Defendant UPS treated Plaintiff "more severely" in matters of discipline because of his race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, (Count III) and 42 U.S.C. § 1981 ("Section 1981") (Count V); and that all defendants retaliated against him under the ADEA (Count II) and Title VII (Count IV).Defendant UP filed a motion to dismiss Plaintiff's retaliation claims (Counts II and IV) [Doc. 12], and that motion was granted by the district court on October 17, 2001. [Doc. 28]. The parties have also stipulated to a voluntary dismissal with prejudice of Plaintiff's claims against International Brotherhood of Teamsters and Teamsters Local No. 728. [Doc. 39]. Thus, only UPS remains as a defendant.
UPS has filed a Motion for Summary Judgment [Doc. 30] with respect to the remaining Counts (I, III and V) of Plaintiff's Complaint. In his response to the motion, Plaintiff states that "discovery has failed to provide sufficient evidence to sustain the race charges and the plaintiff withdraws these charges." (Plaintiff's Memorandum of Law, p. 8). UPS has filed a reply brief asking for summary judgment with respect to all three counts, including the race discrimination claims. [Doc. 38].
II. Factual Background
The submissions of the parties, as set out in Defendants' "Statement of Material Facts as to Which There Exists No Genuine Issue to be Tried" [Doc. 30], Plaintiff's "Response to Defendant's Statement of Material Facts" and "Statement of Facts as to Which There are Genuine Issued to be Tried" [Doc. 36], as well as uncontroverted record evidence establish the following facts, which are construed in a light most favorable to Plaintiff, the non-movant:
See Frederick v. Sprint/United Mgt., 246 F.3d 1305, 1309 (11th Cir. 2001).
Plaintiff began his employment with UPS as a package car driver on October 19. 1978. (Defendant's Statement of Material Facts, "SMF," ¶ 4). UPS is engaged in the delivery of packages through a worldwide distribution network of business units called "package centers" and "hubs." (Defendant's SMF, ¶ 1). UPS package car drivers are represented by the Teamsters labor union, and Plaintiff joined the Teamsters after he became a permanent employee of UPS. (Defendant's SMF, ¶ 7). UPS and the Teamsters are parties to a collective bargaining agreement ("CBA") which governs the terms of employment of all UPS package car drivers in Georgia. (Defendant's SMF, ¶ 8). Plaintiff was familiar with the terms of the CBA because he was elected to be a union steward in November 1998, and his responsibilities as union steward included handling complaints and grievances and advising employees of their rights under the CBA. (McCord Depo., Def. Exh. 1, pp. 22-23).
Article 54 of the CBA, "Meal Period," provides that employees are entitled to a one (1) hour lunch period, and that "[f]ailure to take and properly record the required meal period may be cause for disciplinary action. . . ." (Defendant's SMF, ¶ 11). Exceeding the one-hour meal period is grounds for termination of employment. (Defendant's SMF, ¶ 12). Article 52 of the CBA provides that UPS "shall not discharge nor suspend any employee without just cause," and further states that "no warning notice need be given to an employee before discharge if the cause of such discharge is dishonesty . . ." (Defendant's SMF, ¶ 9). Plaintiff signed an Honesty in Employment Policy when he was hired by UPS. (Defendant's SMF, ¶ 6).
In June 1999, UPS began an internal investigation into allegations that a group of package car drivers in the Gainesville Center were driving off their assigned delivery areas and overextending their meal periods. (Defendant's SMF, ¶ 45). On June 28, 1999, Security Supervisor Jeff Joyner and Larry Bennink, a Security Specialist, conducted surveillance of the Zaxby's Restaurant in Clarkesville, Georgia from 12:00 p.m. to 2:45 p.m. (Defendant's SMF, ¶¶ 46, 47). Joyner documented the arrival and departure times of six (6) UPS package cars driven by six (6) UPS drivers: Plaintiff, Jerry Seabolt, William Bowen, Terry Etchison, Chuck Woodard and Jeremy Burgess. (Defendant's SMF, ¶ 48). According to Joyner, Plaintiff arrived at the restaurant at 1:31 p.m. and left the parking lot at 2:42 p.m. (Joyner Decl., Def. Exh. 5, ¶ 9). Defendant's SMF, ¶ 51). According to Joyner's observations, the only driver who did not exceed the one-hour lunch period on that date was Jeremy Burgess. (Defendant's SMF, ¶ 52).
On June 30, 1999, Joyner and Dave Frederick, Security Supervisor, conducted surveillance at the El Campesino Mexican Restaurant from 1:00 p.m. to 3:00 p.m. (Defendant's SMF, ¶¶ 55, 56). Joyner observed that Plaintiff arrived at the restaurant at 1:38 p.m. and left at 2:50 p.m. (Defendant's SMF, ¶ 57). Joyner also observed that drivers Bowen, Etchison, Woodard and Seabo]t took more than an hour for lunch. (Defendant's SMF, ¶ 58).
After he completed his investigation of the Gainesville drivers, including Plaintiff, Joyner reported the results and documentation of his surveillance to District Labor Manager Bill Zbieszkowski, Division Manager Robert Pope and Gainesville Center Manager Mike Harris. (Defendant's SMF, ¶ 60). After the presentation of this evidence, Pope recommended to Zbieszkowski that six drivers — Seabolt, Bowen, Etchison, Woodard, Jay McNair and Plaintiff — be terminated. (Defendant's SMF. ¶ 64). Zbieszkowski made the final decision to terminate Plaintiff and the other drivers for dishonesty in accordance with Articles 52 and 54 of the CBA. (Defendant's SMF, ¶ 65). Zbieszkowski is approximately five years older than Plaintiff. (Defendant's SMF, ¶¶ 69, 70). At the time of his termination, Plaintiff was 44 years old. (Plaintiff's Complaint, ¶ 19; McCord Depo., p. 8).
Although McNair was not with the other drivers on June 28th and 30th, he apparently was seen overextending his lunch on July 6, 1999. (See Exhibit C, attached to Declaration of Jeff Joyner, Exhibit 5 to Defendant's Motion for Summary Judgment).
In his response to Defendant's Statement of Material Facts as to Which There is No Genuine Issue to be Tried [Doc. 36], Plaintiff disputes this statement. He does not, however, offer any citation to the record or affidavit setting forth specific facts showing there is a genuine issue for trial with respect to this statement as required by Fed.R.Civ.P. 56(e) and LR 56.1B(2). NDGa. Thus. it is undisputed that Zbieszkowski made the final termination decision and that he contends he did so (1) because of Plaintiff's dishonesty. and (2) in accordance with Articles 52 and 54 of the CBA.
On July 7, 1999 Plaintiff met with Division Manager Pope and Center Manager Harris and a fellow union steward, at which time Plaintiff was informed that he was being terminated for dishonesty because he took more than the one-hour meal period permitted under Article 54. (Defendant's SMF, ¶¶ 73, 74). Plaintiff also received a letter via certified mail from Pope informing him that he was being terminated for dishonesty. (Defendant's SMF, ¶ 75).
Plaintiff and the other five drivers filed union grievances challenging their termination. (Defendant's SMF, ¶¶ 79, 80). After an employee files a grievance, the first step of the grievance procedure is a local-level hearing, where the employee, represented by the Teamsters business agent, meets with UPS management to try to resolve the grievance. (Defendant's SMF, ¶ 14). If the grievance is not resolved at the local-level hearing, the grievance is heard by the Southern Region Area Parcel Grievance Committee ("SRAPGC"), a panel comprised of three UPS representatives and three Teamster representatives (generally referred to as "the panel hearing"). (Defendant's SMF, ¶¶ 16, 171).
On July 15, 1999, local-level hearings were conducted on all six discharge grievances. (Defendant's SMF, ¶ 83). UPS was represented by Pope, Harris and Zbieszkowski among others. (Defendant's SMF, ¶ 82). UPS denied all six discharge grievances at the local level hearing stage. (Defendant's SMF, ¶ 86).
On July 20, 1999 the six grievances were heard by SRAPGC panels. (Defendant's SMF, ¶¶ 16, 87). The three UPS representatives who heard Plaintiff's grievance were David Hershberger, Mike Dennis and Mike Rosentrater. (Defendant's SMF, ¶ 97). The three Teamster officials who heard Plaintiff's case, Josh Zivalich, Rolando Pina and Clay Jeffries, were not employees of UPS. (Defendant's SMF, ¶¶ 97, 98). All of the UPS representatives on the panel were over the age of forty. (Defendant's SMF, ¶¶ 101, 102).
During the panel hearing, Zbieszkowski and Joyner presented evidence against Plaintiff, and Plaintiff, assisted by Teamsters Business Agent Dennis Moore, presented evidence and testimony on his own behalf. (Defendant's SMF, ¶¶ 105, 108, 111). Plaintiff admitted to the panel that he had overextended his meal periods on June 28 and 30, 1999 (McCord Depo., Def. Exh. 1, pp. 114-15), but offered several excuses, such as having to talk to customers who called him on his lunch hour and having to consult a map In the restaurant parking lot because he was confused about the location of a stop. (Hershberger Decl., Def. Exh. 3, ¶ 22)). The panel upheld Plaintiff's discharge because, as a union steward, Plaintiff was familiar with the meal period policy and the consequences of violating that policy, and he was responsible for setting an example for the other drivers to follow. (Defendant's SMF, ¶ 123). Teamsters Business Agent Richard Black told Plaintiff that the panel had denied his grievance, and then Plaintiff received a letter from Teamsters Local 728 informing him that his grievance had been denied. (Defendant's SMF, ¶¶ 144, 147).
The same panel which decided Plaintiff's termination also upheld Seabolt's termination (Hershberger Decl., Def. Exh. 3, ¶ 5) due to Seabolt's previous discipline for dishonesty, his evasive testimony before the panel and his attempted justifications for his wrongdoing. (Hershberger Decl., Def. Exh. 3, ¶ 18). Panels made up of different UPS and Teamsters representatives heard the grievances of the remaining drivers, although Hershberger and Teamsters Representative Zivalich were on all of the panels. (Hershberger Decl., Def. Exh. 3, ¶¶ 5-7). The panels reinstated drivers Bowen, Etchison, Woodard and McNair with an unpaid suspension because these men had admitted their wrongdoing, apologized and did not try to justify their actions. (Hershberger Decl., Def. Exh. 3, ¶¶ 27-30). The four drivers reinstated were under 40 years of age. (McCord Depo., Def. Exh. 18 p. 163).
On December 15, 1999, Plaintiff sent a letter to the Equal Employment Opportunity Commission (EEOC) alleging that he had been discriminated against on account of his age and race. (Defendant's SMF, ¶ 151). Plaintiff received a letter dated January 20, 2000 from the EEOC informing him that the EEOC had received his correspondence and that the EEOC would contact him for additional information that might be necessary. (Def. Exh. 23 to McCord Depo.). On March 23, 2000, the EEOC sent Plaintiff a letter which enclosed EEOC Form 5, Notice of Discrimination. The letter also requested Plaintiff to review, sign, date and return the form to the EEOC within thirty (30) days of receipt of the letter and form, or the charge would be dismissed. (Defendant's SMF, ¶ 154; Def. Exh. 24 to McCord Depo.). Plaintiff signed the Notice of Charge of Discrimination form on April 25, 2000 and sent it to the EEOC, which received it May 1. 2000. (Def. Exh. 25 to McCord Depo.).
III. Summary Judgment Standard
"Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered if `there is no genuine issue as to a material fact and [if] the moving party is entitled to judgment as a matter of law.' According to the Supreme Court:
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial."Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988) (quotingCelotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert. denied, 488 U.S. 1004 (1989). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. (quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).
In determining whether the moving party has demonstrated that a genuine issue exists in the case, the court reviews the evidence and all facts In the case in the light most favorable to the party opposing the motion.See Frederick v. Sprint/United Mgt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987);Thrasher v. States Farm Fire Casualty Co., 734 F.2d 637, 638 (11th Cir. 1984). If the party seeking summary judgment meets the initial burden of demonstrating that there is no genuine issue of material fact, the burden then shifts to the non-moving party to come forward with sufficient evidence to rebut this showing with affidavits or other relevant and admissible evidence. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991), cert. denied, 506 U.S. 952 (1992). A non-moving party opposing a summary judgment motion which is supported by affidavits cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial. Id. The evidence cannot consist of conclusory allegations or legal conclusions. Id. Furthermore, unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714 (11th Cir. 1984).
IV. Discussion
A. Counts III and V: Claims of racial discrimination in violation of Title VII and Section 1981
In Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, Plaintiff "concedes [with respect to the Title VII race discrimination charge] that the letter of December 15, 1999 was not under oath and did not constitute a valid charge." (Plaintiff's Memorandum, p. 8). He also states that "discovery has failed to provide sufficient evidence to sustain the race charges and the plaintiff withdraws these charges." Therefore, because Plaintiff has failed to produce evidence that would create a genuine issue of material fact to be tried with respect to his claims of racial discrimination under Title VII or Section 1981. it is RECOMMENDED that Defendant's Motion for Summary Judgment as to Plaintiff's Title VII and Section 1981 race discrimination claims against UPS, Counts III and V, be GRANTED. B. Count I: Claim of age discrimination in violation of ADEA
Pursuant to the ADEA, it is "unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise 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). The Eleventh Circuit uses the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 248 (1973) andTexas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) to evaluate ADEA claims that are based on circumstantial evidence of discrimination.Chapman v. Al Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Under the McDonnell Douglas framework, the plaintiff can establish a prima facie case of discrimination by showing that "he (1) was a member of the protected age group, (2) was subjected to adverse employment action, (3) was qualified to do the job, and (4) was replaced by or otherwise lost a position to a younger individual." Chapman, 229 F.3d at 1024. If the plaintiff establishes a prima facie case of age discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action. Id. This burden is one of production, not persuasion; "[a defendant employer] need not persuade the court that it was actually motivated by the proffered reasons. it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. (citations omitted).
If the defendant satisfies this burden, the presumption of discrimination disappears, and the plaintiff must then come forward with evidence "sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Id. "If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiff's claim." Id. at 1024-25. 1. The timeliness of Plaintiff's ADEA charge
Although the defendant is entitled to summary judgment in its favor if the plaintiff does not proffer sufficient evidence of pretext, the converse is not necessarily true. If the plaintiff does proffer sufficient evidence that the defendant's stated reasons are pretextual. the plaintiff still may not be entitled to take his case to a jury."Chapman, 229 F.3d at 1025 n. 11. See also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49 (2000) ("Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors [including] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law. . . .").
Defendant argues first that Plaintiff did not file his charge of age discrimination with the EEOC within 180 days of the alleged discrimination as required by 29 U.S.C. § 626(d)(1) and that his ADEA claim is therefore barred. Defendant argues that the December 15, 1999 letter Plaintiff sent to the EEOC (McCord Depo., Def. Exh. 22) did not satisfy the filing requirement because it was not made under oath, and the letter "did not satisfy the objectives established by Congress because the EEOC in this case did not treat Plaintiff's letter as the equivalent of a formal charge of discrimination and UPS was not notified of the charge within 180 days." (Defendant's reply brief. p. 4).
Unlike Title VII, the ADEA does not require the charging document to be made under oath. In Clark v. Coats Clark, Inc., 865 F.2d 1237 (11th Cir. 1989), the court held that an unsworn EEOC intake questionnaire can satisfy ADEA's filing requirement. The court based its conclusion on the EEOC's regulations interpreting the ADEA, specifically. 29 C.F.R. § 1626.6 and 1626.8. The court observed, "[t]he EEOC's interpretation of statutes which it is charged with enforcing is entitled to great deference." Clark, 865 F.2d at 1240.
29 C.F.R. § 1626.6 provides, in part, that "[a] charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s)." 29 C.F.R. § 1626.8(a) requires that the charge should also contain the name, address and telephone number of the person making the charge and the name and address of the person against whom the charge is made; a statement of the facts supporting the charge; if known, the approximate number of persons employed by the employer; and a statement as to whether the claimant has begun proceedings involving the alleged unlawful employment practice "before a State agency charged with the enforcement of fair employment practice Jaws and, if so, the date of such commencement and the name of the agency." Finally, 29 C.F.R. § 1626.8(b) provides:
Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge either a written statement or information reduced to writing by the Commission that conforms to the requirements of § 1626.6.
Plaintiff's December 15, 1999 letter contained all the information required by 29 C.F.R. § 1626.6 and 1626.8. The letter was sent within 180 days of Plaintiff's termination. On January 20, 2000, the EEOC acknowledged receiving it. The record reflects that the EEOC actually received Plaintiff's letter on December 17, 1999. (See Copy of Plaintiff's December 15, 1999 letter bearing the stamp "Received Dec 17 1999 EEOC-ATDO," McCord Depo., Def. Exh. 22). Thus the facts of record are sufficient to create a triable issue on the question whether the EEOC received a letter from Plaintiff which conformed to the requirements of 29 C.F.R. § 1626.6, within 180 days of his discharge.
Defendant suggests that Clark does not support Plaintiff's contention that his ADEA charge was timely because in Clark, the EEOC treated the intake questionnaire submitted by the plaintiff as a charge, whereas in this case, the EEOC did not treat Plaintiff's letter as a charge. The court does not read Clark to condition the applicability of sections 1626.6 and 1626.8 on the manner and timeliness of the EEOC's response to correspondence it receives. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1320 (11th Cir. 2001) ("[W]e are reluctant to condition an action for discrimination on the EEOC's performance of its duties."). A factual dispute remains as to the timeliness of Plaintiff's ADEA charge, and summary judgment is therefore not warranted on the ground that Plaintiff's ADEA charge was untimely.
2. Plaintiff's prima facie case
Defendant concedes for purposes of this motion (Defendant's Memorandum in Support of its Motion for Summary Judgment, p. 21. n. 5). and the court finds, that Plaintiff has established a prima facie case of age discrimination. He was 44 years of age when he was terminated (Plaintiff's Complaint, ¶ 19: McCord Depo., p. 8); he was subjected to an adverse employment, i.e. dismissal; he was qualified to perform his job, and he was replaced by a younger person. See Chapman, 229 F.3d at 1024.
3. Defendant's proffered legitimate. non-discriminatory reason for terminating Plaintiff's employment
Defendant argues, however, that it had a legitimate, non-discriminatory reason for terminating Plaintiff, namely its determination, after an investigation into the conduct of Plaintiff and other drivers, that Plaintiff had been dishonest when he twice took a meal period which exceeded the allowed one hour. Defendant produced evidence showing that the applicable CBA provisions authorized termination for such conduct. Defendant has met its burden to articulate a legitimate, non-discriminatory reason for terminating Plaintiff's employment. 4. Plaintiff's evidence of pretext
Though the adverse employment action — the decision to termination Plaintiff — was taken by UPS. the labor panel that considered Plaintiff's challenge to his termination declined to undo that action. Defendant has also produced evidence to show that the members of the labor panel, comprised of 3 UPS representatives and 3 union representatives (Hershberger Decl., Def. Exh. 3. ¶ 4), upheld Plaintiff's termination because he was a union steward who knew the work rules and should have set an example for the other drivers; he tried to make excuses for his misconduct instead of taking responsibility for it; and his excuses for taking the long lunch were not supported by the evidence. (Hershberger Decl., Def. Exh. 3, ¶ 26). Thus the reasons for the panel's decision were also legitimate and non-discriminatory.
Because Defendant has articulated a legitimate, non-discriminatory reason for Plaintiff's termination, Plaintiff must, in order to survive summary judgment, "come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.'"Chapman, 229 F.3d at 1024-25 (quoting Combs v. Plantation Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. 1997), cert. denied, 522 U.S. 1045 (1998)); see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (after employer articulates reason for action, the plaintiff has "the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employers proffered explanation is unworthy of credence.").
Plaintiff argues that he has created an issue of fact as to whether Defendant's proffered reason for terminating him is pretextual because he has "presented concrete evidence" to show that he did not violate Defendant's policy regarding dishonesty. (Plaintiff's Memorandum of Law. p. 9). Plaintiff contends that he was conducting company business such as taking packages from customers, talking to customers and reviewing route maps during the period Joyner was observing him at the eating establishments. (Plaintiff's Depo., pp. 50, 51, 136, 138-39, 143-44, 147). This contention is insufficient to create a genuine issue of material fact. The material issues are whether the decisionmaker believed Plaintiff had violated company policy and whether that belief was the reason for Plaintiff's termination, not whether Plaintiff in fact violated company policy. See Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Even if Joyner was lying to the managers when he reported that Plaintiff had taken a longer lunch period than allowed by company policy, Plaintiff has not produced any evidence to show that Robert Pope, who recommended that Plaintiff be terminated, or Bill Zbieszkowski, who made the decision to terminate Plaintiff, did not honestly believe that Plaintiff had violated company policy or that this belief was not the reason for the termination. In Sweeney v. Alabama Alcoholic Beverage Control Bd., 117 F. Supp.2d 1266, 1272 (M.D. Ala. 2000), the court explained the burden to show pretext:
Thus, to establish pretext, the employee must show more than facts establishing that he or she did not commit the work rule violation. The employee must point to evidence which raises a question as to whether the decisionmaker, In fact, knew that the violation did not occur and. despite this knowledge, fired the employee based upon the false premise of an alleged work rule violation. For example, where the employer relies on a subordinate's report that a plaintiff violated a work rule, the plaintiff must establish pretext by showing (or, at least pointing to evidence that suggests) that the employer either did not rely on that report or that the employer did rely on the report but knew it was false.Sweeney, 117 F. Supp.2d at 1273.
In this case, the evidence shows that the decisionmakers — Pope, who recommended termination, and Zbieszkowski, who made the final decision-relied on Joyner's reports of his observations of Plaintiff and the other drivers in deciding to terminate Plaintiff. Although Plaintiff accuses Joyner of lying, he has not presented any evidence that the decisionmakers knew that Joyner was lying or that they did not have a good faith belief that he violated the meal period and honesty policies. Thus. Plaintiff has failed to show that Defendant's proffered reason for terminating him was pretextual.
Nor has Plaintiff provided any evidence that age more likely than not motivated his discharge. In fact, Zbieszkowski, who made the final decision to terminate him, is five years older than Plaintiff. See, e.g., Elrod, 939 F.2d at 1471 ("Elrod faces a difficult burden here, because all [three] of the primary players behind his termination . . . were well over age forty and within the class of persons protected by the ADEA. These three are more likely to be the victims of age discrimination than its perpetrators").
In his Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment. Plaintiff advances the argument that Defendant's proffered reason for terminating him was pretextual because Defendant lacks policies which would provide "guidance to its supervisors in the selection of penalties." (Plaintiff's Memorandum of Law, p. 2). Plaintiff also questions the mechanism for investigating and terminating Plaintiff because he was not informed of the investigation, and he was not given an opportunity to respond to the charges prior to his termination.
Plaintiff neither explains nor provides authority for his contention that Defendant's alleged lack of policies and its investigative practices are evidence of pretext, and the court rejects that contention. Defendant's policies state that violating the company's honesty policy is grounds for termination, and the record shows that Plaintiff was aware of the fact that exceeding the meal period was grounds for termination. (See McCord Depo., p. 238). Furthermore, the CBA states that if an employee is dismissed for violating the honesty policy, "no warning notice need be given to an employee before discharge. . . ." As for Plaintiff's complaint about Defendant's investigative and termination practices, Plaintiff had the opportunity, through the grievance process, to challenge the evidence against him, to present evidence in his behalf and to challenge his dismissal.
Plaintiff also argues that Defendant engaged in discovery abuse "significant enough to present a jury issue." (Plaintiff's Memorandum of Law, p. 9). Plaintiff contends that the court should infer pretext because Defendant has obstructed discovery. Again, Plaintiff does not explain or cite authority for this contention, and the court rejects it.
The court notes that Plaintiff filed a Motion to Compel [Doc. 27] discovery requests from Defendant on October 15, 2001, but then withdrew that motion on November 5, 2001 [Doc. 29]. Plaintiff filed no other motions to compel and sought no sanctions for Defendant's alleged discovery abuses. It does not appear that Plaintiff is complaining that Defendant is relying on evidence in support of its Motion for Summary Judgment which Defendant had not provided to Plaintiff during discovery. It appears that Plaintiff is simply alleging that Defendant was late in turning over requested documents, which were produced in October 2001 instead of May 2001, and that he is also complaining that Defendant's objections to certain discovery requests were unfounded. The remedy for these alleged "abuses" was for Plaintiff to seek to compel Defendant to provide the requested discovery and to seek sanctions.
Finally, although Plaintiff does not discuss this allegation in his Memorandum, Plaintiff alleged in his Complaint that four of the six drivers who were terminated for overextending their meal breaks were reinstated, and that the four employees who were reinstated were all younger than Plaintiff. (Plaintiff's Complaint, ¶¶ 28, 29). The evidence showed that Defendant UPS terminated all six employees, and that the four younger employees were reinstated by labor panels, made up of UPS and Teamsters representatives. The labor panels reviewing the terminations of Plaintiff and the four younger employees were comprised of different members. Neither Pope, who recommended Plaintiff's termination, nor Zbieszkowski, who made the termination decision, was on the panel that rejected Plaintiff's request for reinstatement.
Furthermore, the panels that decided to reinstate the four employees did so because these employees had never had any disciplinary action, did not try to make excuses for violating company policy and seemed remorseful. (Hershberger Decl., Def. Exh. 3, ¶¶ 27-30). In contrast, Plaintiff's panel upheld Plaintiff's dismissal because Plaintiff was a union steward and should have set a better example for the less senior employees; Plaintiff tried to make excuses for his conduct and did not seem credible, and Plaintiff did not seem remorseful. (See Hershberger Decl., Def. Exh. 3, ¶¶ 25-32). To the extent that Plaintiff relies on these facts to show pretext, his reliance is unfounded. Plaintiff has produced no evidence that would suggest that the decision of the panel not to reinstate him was controlled by or attributable to Defendant. Even if he had made that showing, he has produced no evidence tho show that the panel's stated reasons for its decision were false.
In summary, the court finds that Defendant has satisfied its burden of articulating a legitimate, non-discriminatory reason for terminating Plaintiff's employment, and that Plaintiff has failed to produce evidence "sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for [his termination]. . . ." Chapman, 229 F.3d at 1024. It is therefore RECOMMENDED that Defendant's motion for summary judgment as to Plaintiff's ADEA claim be GRANTED.
SUMMARY
It is RECOMMENDED that Defendant's motion for summary judgment [Doc. 30] be GRANTED as to all of Plaintiff's remaining claims and this case be DISMISSED.The Clerk is DIRECTED to terminate the District Court's referral of this action to the undersigned.