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Guy v. Alabama Power Co.

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

April 14, 2015

WILLIAM A. GUY, Plaintiff,


MYRON H. THOMPSON, District Judge.

Relying on the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4311 et seq., plaintiff William A. Guy brought this lawsuit against defendant Alabama Power Company claiming that he faced illegal discrimination as a result of his deployment overseas as a member of the United States military.[1] Subject-matter jurisdiction is proper under 38 U.S.C. § 4323(b) and 28 U.S.C. § 1331. The case is now before this court on Alabama Power's motion for summary judgment. The motion will be denied.


"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. 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). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


Guy claims that Alabama Power terminated his employment because of his impending deployment overseas with the United States military. The Alabama Power employees directly involved in his termination are Gail Willis, a high-level sales employee; Kevin Grice, Guy's supervisor; Richard Hutto, a vice-president; and Leslie Sanders, another vice-president. The facts that follow are drawn from the evidence taken in the light most favorable to Guy.

Since the early 1990s, Guy has been a member of the Alabama National Guard, which Alabama Power knew when it hired him as an appliance salesperson in 2003. During his time at the company, his military obligation included regular National Guard trainings as well as one extended 17-month absence from 2006-2007 for pre-deployment training and deployment to Iraq.

These absences did not prevent Guy from being promoted within Alabama Power. When Guy was deployed to Iraq, he was a salesperson, a position in which he could easily be replaced while on leave. During his deployment, the company paid the difference between his military salary and the salary he would have received. Several colleagues also checked on his family while he was away and collected a fund for his son, who fell seriously ill during his deployment. Soon after his return, Guy was promoted from salesperson to division-sales manager, a high-level management position where he would be much harder to replace. Altogether, between 2003 and 2007, Guy progressed up the ranks of the company, going from a salesperson at a smaller store to a sales manager with authority over 11 stores.

Although Alabama Power promoted Guy, the company did express some hesitations about his extended absences. After learning of Guy's potential two-year absence in 2006, Guy's immediate supervisor sent an email up the chain of command, lamenting that, "Things just keep getting better and better." Among the recipients of the e-mail was Gail Willis, a high-level sales employee who would contribute to the decision to fire Guy in 2012. Moreover, in July 2007-which was before Guy's return from Iraq in August of that year-Willis instructed Guy's supervisor to select candidates to interview for his position within three weeks in case he decided not to return to the company. Willis did note, however, that she would hate to fill the position if Guy wanted to return. When Guy returned from deployment and asked for 90 days to re-adjust to his family and civilian life before restarting his job, the company refused and instead said that he needed to return in around one month's time. He agreed and did not file any complaint about this incident.

After his promotion in 2007, Guy received positive feedback for his work over the next four-and-a-half years. In every performance review from 2007 through 2011, including the final one done by his supervisor, Kevin Grice, Guy was told that he fully met expectations. Although there was a section to document any unethical behaviors, every review stated that Guy had "clearly demonstrated" the required ethical conduct. Grice even nominated Guy for a leadership-development program in the spring of 2011, and, in May 2012, Guy was put in a leadership position for the Alabama Power team competing in a city-wide rowing race over the summer.

In late May 2012, Guy learned that he once again would be deployed, this time to Afghanistan. He informed his immediate supervisor, Grice; Grice's supervisor, Willis; and other management, including Leslie Sanders, a vice-president to whom Guy did not directly report but who ran the business operations at many of the offices where Guy headed the appliance-sales teams. At that point, Willis and Grice made plans for another division-sales manager to cover for Guy during his training and deployment.

One month later, Grice and Willis told Guy, for the first time, about concerns over his professional performance and demeanor. Willis raised these concerns after hearing that Richard Hutto, a vice-president at the company, had voiced concerns about Guy's behavior at previous business forums in 2011 and 2012, and subsequently called Hutto to confirm the reports.

In this June 2012 phone conversation, Hutto told Willis about two incidents involving Guy. First, he stated that his executive secretary had complained that, at a March 2011 forum, Guy hugged her in a way that made her feel uncomfortable but she asked Hutto not to tell anyone. Although Alabama Power policy requires reporting all violations of company policy to human resources, Hutto did not notify anyone of this incident for well over a year. He also did not report it in a corporate-compliance survey where Alabama Power employees were asked if they knew of any person who had violated company policy.

Second, Hutto also told Willis about a conversation involving Guy that occurred at the March 2012 business forum. After a female colleague mentioned her gynecologist, Guy, who had been drinking, responded, "If anyone is going to see my wife's vagina, I'd assume it would be [her gynecologist]." Hutto thought the comment was inappropriate and worried that Guy's actions would get Alabama Power sued. However, Hutto did not report the comment until a May 2012 meeting with human resources.

Around the same time, Willis also called a human resources employee at Alabama Power, who told her that Guy's jokes sometimes bordered on unprofessional and that Guy could be too informal at work functions. She also noted that Sanders, the vice-president of business operations in Guy's geographical area, had concerns about him. This employee also did not file any complaints about Guy's behavior.

Willis and Grice, without doing any independent investigation into these incidents or talking with Sanders, arranged a June 2012 meeting with Guy, where they told him about the complaints and their concerns over his lack of self-awareness. Guy was surprised at the feedback but did not push back in the meeting. He agreed to write a development plan that all three of them would go over in a follow-up meeting in mid-July. This form of coaching and counseling was considered informal discipline under Alabama Power policy.

Guy sent in his development plan in early July. In this plan, he acknowledged that, "In some social situations I can come across as awkward, impulsive, arrogant, or self-righteous." He also agreed to build relationships with the business team and to stop drinking at company events.

This development plan was never discussed. After the June counseling session, but before the mid-July meeting, Sanders contacted Willis to talk about Guy. Similar to Hutto, Sanders stated that she had been having problems with Guy for nearly a year. In the fall of 2011, soon after Sanders was elevated to her vice-president position, she had a meeting where different managers introduced themselves and gave a quick report. Guy started his report by stating that "selling appliances sucks" and then proceeded to explain why the economic situation made sales difficult. Sanders told Willis that a person "cannot recover" from that type of ...

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