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Burns v. Alabama Power Co.

United States District Court, N.D. Alabama, Jasper Division

April 25, 2017

DARYL K. BURNS, Plaintiff,
v.
ALABAMA POWER COMPANY, Defendant.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER, UNITED STATES DISTRICT JUDGE

         Plaintiff Daryl K. Burns (“Burns”) brought this action against his former employer, Alabama Power Company, d/b/a Gorgas Steam Plant (“Alabama Power”), alleging claims for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. Before this Court is Alabama Power's Motion for Summary Judgment. (Doc. 19.) For the reasons stated more fully herein, the motion is due to be granted.

         I. Background[1]

         Burns began his employment with Alabama Power on October 7, 2013, as a Plant Auxiliary (“PA”) at Plant Gorgas. He was one of four black PAs who began working at Alabama Power in October and November 2013. During the PAs' multi-day orientation program, the plant's Scheduler, Julia Hester (“Hester”), who is white, trained the newly hired PAs about proper completion and submission of their timesheets. Hourly employees, such as PAs, manually completed paper timesheets for each biweekly pay period, which the employees were required to submit to Hester or to their Team Leader of Operations (“TLO”). Newly hired PAs generally printed out their timesheets and placed them in a binder in their training classroom. The training instructor was supposed to review the PAs' timesheets for accuracy before signing them, and Hester would take the timesheets from the binder to enter the employees' hours. Hester explained to the PAs that if they needed help filling out their timesheets, they could seek help from her, their supervisors, their classroom instructor, or anyone in management. On October 8, 2013, Burns completed a computer-based training program that informed him of Alabama Power's policy that falsification of timesheets “will result in immediate discharge.”

         PAs, as new employees, occasionally made errors on their timesheets. For example, because Plant Gorgas used a timesheet that required its employees to use pay codes that corresponded with their hours worked, PAs would mistakenly leave a nightshift code on their timesheets after being switched to work dayshift. Generally, if a PA made a mistake on his timesheet, Hester would notice the discrepancy while entering the employee's time. She would then contact the TLO on shift at the time the employee was scheduled to work in order to determine whether the employee's schedule had been changed. If it had not been changed, the TLO or Hester would contact the employee about the discrepancy, and the employee would immediately correct the mistake and initial the correction. According to Burns, his co-workers Jon Robinson (“Robinson”), [2] Nate Ford (“Ford”), and Cruz Hyche (“Hyche”), who are all white, were permitted to correct timesheet errors of some kind during the time Burns worked at Alabama Power.

         In January 2014, Plant Gorgas was actively engaged in freeze protection due to severe weather conditions, so the PAs were frequently asked to work overtime to keep the plant running during the inclement weather. On Sunday, January 5, 2014, the TLOs on shift called out some of the PAs to work overtime for freeze protection. Burns was not called out, and he complained to Hester the next day about the way the callout was handled. He asked Hester to explain the overtime callout procedure to him because he felt that there was some “favoritism” and a “buddy system, ” since he was the most senior PA and was not called out. According to Burns, he also told Hester that all of the employees called out on January 5 were white, and that the TLOs “could have called some of the black employees.”

         Some aspects of Burns's position as a probationary PA were covered under a collective bargaining agreement (“CBA”) between Alabama Power and the International Brotherhood of Electrical Workers (the “Union”). Hester explained to Burns that the CBA required Alabama Power to distribute overtime opportunities equally over a one-year period, and although the most senior employees typically receive overtime before other employees, the inclement weather that weekend constituted “extenuating circumstances” that necessitated deviation from the standard procedures. Hester told Burns that she would “look into” the callout and get back to him, but she did not inform the plant's management of Burns's complaint.

         On Monday, January 6, and Tuesday, January 7, 2014, Burns was held over after the end of his regular shift and worked four hours of overtime each day. On Wednesday, January 8, 2014, Hester called Burns to work overtime shortly after his regular shift ended, but Burns did not respond to her call and did not report back to work that afternoon. Six days later, on January 14, 2014, Burns completed his timesheet for the pay period beginning January 4, 2014, in the training room with other PAs present. According to PA Tyler Pate (“Pate”), who is white, Burns asked the other PAs who the TLO on shift was for the evening of January 8, 2014. Although Burns did not work overtime on January 8, he submitted a timesheet that reported four hours of overtime worked on that day.

         On January 14, 2014, the same day the new PAs completed their timesheets together, a Plant Control Operator (“PCO”) telephoned Plant Gorgas's Operations Manager, Hal Miller (“Miller”), who is white, and informed him that several PAs had reported that Burns had falsified his timesheet. Miller intended to speak with Hester about the allegation the following morning, but before he could do so, some of Burns's classmates, including Pate, notified Hester that Burns had recorded unworked overtime on his timesheet. Because Pate knew that Burns did not work overtime on January 8 but had overheard Burns ask about the TLO on shift that day while the new PAs were completing their timesheets, Pate told Hester that she should review Burns's timesheet. Hester notified Miller, her supervisor, on January 15, 2014, of the allegation that Burns had falsified his timesheet.

         The plant's management directed Hester to send an email to all the PAs asking them to verify the overtime they had worked during the pay period beginning January 4, 2014. Hester sent the email on January 15, 2014, and asked the PAs to respond with the overtime hours that they worked the previous week and the name of the TLO who called them out or held them over.[3] In his reply to Hester's email, Burns stated, “1/08/14 TLO Mike Franks, ” which was consistent with the timesheet he had submitted. Once she had received all of the responses, Hester turned them over to Miller and did not have any subsequent discussions with management regarding Burns's timesheet. Hester was not otherwise involved in the investigation of the allegations against Burns, nor did she participate in the decision to terminate his employment.

         Because Burns reported in the email to Hester that he worked overtime on January 8, 2014, when he had not worked overtime on that day, Miller and the plant's Human Resources Business Consultant, Michael Gilland (“Gilland”), who is black, called Burns into Miller's office for a meeting on January 16, 2014. During the meeting, which Burns characterizes as “adversarial, ” Miller and Gilland asked Burns several times if his timesheet was correct, and each time Burns responded that it was. At one point, Burns stated that he was sure he worked overtime on either Wednesday, January 8, or Thursday, January 9, 2014. When Miller informed Burns that no one worked overtime on January 9, Burns answered that he must have worked overtime on January 8. Toward the end of the meeting, Miller and Gilland informed Burns of the error on his timesheet, and Burns attempted to correct the timesheet as soon as he realized he had made a mistake. Burns was placed on administrative leave with pay pending Miller and Gilland's investigation into the matter.

         After Miller and Gilland concluded their investigation, they provided Plant Manager Susan Mayfield (“Mayfield”), who is white, with Burns's timesheet, the gate logs showing the times Burns entered and left the plant, Hester's January 15 email to the PAs and Burns's response to that email, and a summary of the January 16 meeting, as well as “a complete summary of the information they had regarding Burns.” Based on this information, the plant management believed that Burns had committed a serious violation of company policy by falsifying his timesheet. Pursuant to the CBA, a probationary employee such as Burns could not be placed on any formal disciplinary level below termination, so Mayfield, after consulting with the Union, the company's Vice President of Operations, and individuals in Human Resources and Labor Relations, decided to terminate Burns's employment. Burns was terminated on January 23, 2014, at a meeting with Miller, Gilland, and a Union representative.

         Following his termination, on January 24, 2014, Burns filed a formal Concern through Alabama Power's Concerns Program, alleging that he was wrongfully terminated. Burns alleged neither race discrimination nor retaliation in his intake form or in his final written statement. After an investigator concluded that there was “no information to support” the Concern, Burns appealed the finding on May 27, 2014. Although he spent two months drafting the appeal, Burns did not reference race discrimination or retaliation in any written document he submitted as part of the appeal. A different investigator concluded that the appeal was likewise unsubstantiated and that Burns's termination “was based upon company policy.”

         II. Standard of Review

         A motion for summary judgment is due to be granted upon a showing that “no genuine dispute as to any material fact” remains to be decided in the action and “the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material “if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004). A genuine dispute as to a material fact exists where “the nonmoving party has produced evidence such that ...


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