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Ambus v. Autozoners, LLC

United States District Court, M.D. Alabama, Eastern Division

December 29, 2014

TOMMY AMBUS, Plaintiff,

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For Tommy Ambus, Plaintiff: Christopher W Worshek, Joseph Charles Guillot, LEAD ATTORNEYS, McPhillips Shinbaum LLP, Montgomery, AL.

For Autozoners, LLC, Defendant: Kary Bryant Wolfe, LEAD ATTORNEY, Jones Walker LLP, Birmingham, AL; Laurie M. Riley, LEAD ATTORNEY, Jones Walker LLP, Miami, FL; Tracy E. Kern, LEAD ATTORNEY, PRO HAC VICE, Jones Walker, New Orleans, LA.

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This case is before the court on a Motion for Summary Judgment (Doc. # 56) filed by Defendant AutoZoners, LLC on October 6, 2014. Also before the court are Plaintiff Tommy Ambus's Brief in Opposition to the Motion (Doc. # 59), and Defendant's response thereto (Doc. # 63).

Plaintiff filed his initial Complaint, pro se, in this case on November 2, 2012. He thereafter filed an Amended Complaint, through counsel, on January 29, 2013. The Amended Complaint set forth claims for Race Discrimination, Retaliation, and Hostile Work Environment Discrimination under both Title VII and 42 U.S.C. § 1981. Defendant then filed a Partial Motion to Dismiss the Amended Complaint for Failure to State a Claim. The court granted in part and denied in part that motion on March 29, 2013. After the court ruled, Plaintiff's remaining claims under Title VII, § 1981, or both were: 1) race discrimination through a failure to promote Plaintiff twice in 2012, removal from schedule and reduction in hours,[1] denial of training, write ups of Plaintiff, and different discipline of drivers in accidents; 2) racially hostile work environment; and 3) retaliation claims through the 2012 failures to promote, removal from the schedule and reduction in hours, and the write ups of Plaintiff. Among other claims, the Partial Motion to Dismiss was granted as to a separate failure to promote claim from a July 2008 promotion of one of Plaintiff's colleagues.

For the reasons to be discussed, the Motion for Summary Judgment is due to be GRANTED in part and DENIED in part.


Summary judgment is proper " if there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party asking for summary judgment " always bears the initial responsibility of informing the district court of the basis for its motion," relying on submissions " which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party has met its burden, the nonmoving party must " go beyond the pleadings" and show that there is a genuine issue for trial. Id. at 324.

Both the party " asserting that a fact cannot be," and a party asserting that a fact is genuinely disputed, must support their assertions by " citing to particular parts of materials in the record," or by

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" showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56 (c)(1)(A)-(B). Acceptable materials under Rule 56(c)(1)(A) include " depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials."

To avoid summary judgment, the nonmoving party " must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, 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).


In its Reply Memorandum (Doc. # 63), Defendant argues that the evidence contained in four affidavits submitted by Plaintiff (or portions of them) cannot be properly considered on summary judgment and should be stricken. Under Fed.R.Civ.P. 56(c)(4), an affidavit used to support or oppose a motion for summary judgment " must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." The court has not relied on some of the evidence to which Defendant objected because the evidence had no bearing on any material issues related to Plaintiff's claims. Because it was not probative of a material fact, this evidence was not relevant. This evidence includes:

(1) the portion of Plaintiff's Affidavit stating the reason why he failed to report any discrimination to AutoZone Relations or Karen Shakerin; (2) the portions of Karen Ponce's Affidavit in which she discussed the 2008 promotion of Corbett,[2] her statements about Linson's feelings on Plaintiff's appearance, her statements about the reasons she believed people did not like Plaintiff, and statements about comments made by Davila's wife; [3] (3) the portions of Austin Dial's Affidavit stating that people discriminated against and harassed Plaintiff due to his race; [4] and (4) the portions of Kenyatta Meadows' Affidavit in which she discussed other employees who had accidents, what other employees were allowed to do at work, testimony about her own potential promotion, and a reference to " other instances of discrimination and retaliation." [5] As to all of the

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listed evidence, the court will grant Defendant's request to strike because it did not consider it.[6]

As to the portions of the affidavits to which Defendant objected, which the court has considered, the court partially agrees with Defendant's objection as to one piece of evidence, but overrules the objections as to the others.

1. Karen Ponce's Affidavit

The court has considered evidence that Corbett made derogatory statements about Plaintiff that did not explicitly mention race, and that she made derogatory comments about African-Americans generally. Such statements and comments need not be explicitly about race or about Plaintiff himself to be related to Corbett's intent, and are therefore relevant as circumstantial evidence. While they may not ultimately support Plaintiff's claims, they are nonetheless relevant to the factual issues surrounding Corbett's relationship with Plaintiff.

The court has considered a statement in the affidavit that Ponce believed Corbett did not like Plaintiff and wanted to get him fired only to the extent that the statement clarifies the next sentence in the affidavit, stating on personal knowledge that Ponce overheard Davila telling Corbett to write up Plaintiff " so they could get rid of him." (Doc. # 59-18 at 1.) To the extent that the court will not consider Ponce's stand-alone opinion that Corbett wanted to get Plaintiff fired and did not like him, the court concurs with Defendant's objection to that particular statement, because Ponce's opinion of Corbett's attitude is not relevant to Plaintiff's claims, at least as a separate piece of evidence.

2. Austin Dial's Affidavit

The court has considered evidence that Corbett stated that Plaintiff was a " drug dealer" and had " stolen stuff." This evidence will be considered as circumstantial evidence on the issue of intent. This evidence is not hearsay because it is not offered for the truth of the matter asserted ( i.e., it is not offered to prove that Plaintiff is or was a drug dealer or a thief; only as evidence of Corbett's attitude toward him). The Defendant's objection is due to be overruled as to this evidence.

3. Kenyatta Meadows' Affidavit

The court has considered evidence that Davila told Meadows not to talk to Plaintiff, as this is circumstantial evidence relevant to Plaintiff's hostile work environment claim. This is not inadmissible hearsay as Davila's commands to Meadows are not offered for the truth of the matter asserted ( i.e., that the employees did not in fact talk to Plaintiff). The court has also considered evidence that Meadows personally saw a stack of write ups of Plaintiff left out for all to see, as this evidence is based on personal knowledge and is probative of Plaintiff's claims. The Defendant's objections to this evidence are also due to be overruled.


The submissions of the parties establish the following facts, construed in the light most favorable to the nonmovant, the Plaintiff:

a. Plaintiff's Employment Relationship with Defendant

Plaintiff, an African-American, was first hired by Defendant as a part-time driver in February 2004. He was hired to work

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at the Opelika store, which is a " HUB" store and additionally has a commercial department and a " DIY" retail component. HUB stores serve as small regional warehouses that service fifteen to twenty-one nearby stores. Plaintiff moved up to a management position as a Parts Sales Manager (PSM) in the HUB area of the store in 2007. This promotion also moved him from part-time to full-time status. He continued to be paid by the hour and received a $3.00/hour pay raise. The promotion brought him to the level of a " gray shirt," or management-level, employee. In contrast, part-time employees are " red shirt" employees. Plaintiff's main job duties as a PSM were " picking" (selecting) parts from the HUB and driving them to other stores as needed. By the time Plaintiff was promoted, he reported to Jorge Davila, Store Manager of the Opelika store. Davila reported to Keith Linson, the District Manager. Linson is African-American and Davila is black and of Puerto Rican origin. Plaintiff also worked with and under Elizabeth Corbett, HUB Coordinator at the Opelika store, and Jessie Harris, Assistant Store Manager at the same store. Corbett is white and Harris is African-American.

Corbett, Plaintiff, and other coworkers described tension between Corbett and Plaintiff throughout the time periods relevant to Plaintiff's claims. Plaintiff and others believe Corbett did not like Plaintiff at least in part because he is African-American. Other AutoZone[7] employees heard Corbett refer to Plaintiff as a " drug dealer" and say that he had " stolen stuff." Another employee heard Davila tell Corbett to write Plaintiff up " so they could get rid of him."

In addition, Davila was overheard using negative profanity to refer to black men in general. He also told other ...

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