United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge.
a civil action filed by the Plaintiff, Jerald Seals, against
the Defendant, Lee Brass Foundry, LLC. (“Lee
Brass”), his former employer. The Complaint alleges
that the Defendant “harassed [the] Plaintiff, treated
[the] Plaintiff differently[, ] and terminated [the]
Plaintiff, ” in violation of the Americans with
Disabilities Act (the “ADA”), as amended by the
ADA Amendments Act of 2008 (the “ADAAA”), 42
U.S.C. §§ 12101-12213, and 47 U.S.C. §§
225 and 611.
(Count One). The Complaint also alleges that the Defendant
“subjected [him] to different terms and conditions of
employment because of his race, subjected [him] to racial
discrimination and terminated [him] because of his race,
African American, ” in violation of the Civil Rights
Act of 1866, as amended, 42 U.S.C. § 1981
(“Section 1981). (Count Two).
case comes before the Court on the Defendant's motion for
summary judgment. (Doc. 26). For the reasons stated herein,
the motion will be GRANTED in part and
DENIED in part.
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary
judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings in answering the movant. Id.
at 324. By its own affidavits - or by the depositions,
answers to interrogatories, and admissions on file - it must
designate specific facts showing that there is a genuine
issue for trial. Id.
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. Chapman, 229
F.3d at 1023. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson,
477 U.S. at 248. A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. If the evidence
presented by the non-movant to rebut the moving party's
evidence is merely colorable, or is not significantly
probative, summary judgment may still be granted.
Id. at 249.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact - that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once
the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating
the existence of a triable issue of fact.” Id.
(citation omitted) (emphasis added).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996). The second method a
movant in this position may use to discharge its burden is to
provide affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
Lee Brass's Business and Organization
Brass is a manufacturing facility that produces metal
castings or parts for its customers based on specifications
provided by the customer. There are multiple steps in the
manufacturing process: the Foundry; the Cleaning Room; Test
and Pack Department; and Shipping Department. A part is first
cast in the Foundry. Thereafter, excess metal is cut off of
the part by the saw operators. Afterwards, it is sent to the
Cleaning Room in order to be smoothed down, and excess metal
removed, before it is sent to the machine shop. The number of
parts passing through each phase of Lee Brass's
manufacturing process is dictated by the number of customer
Lee Brass's Human Resources Department and
Brass's Human Resources Department (“HR”) is
run by Jerome Truss. As stated in its employee handbook, Lee
Brass has a policy of prohibiting workplace discrimination
and harassment based on race and provides employees with
multiple options to report concerns of alleged race
discrimination. (Doc. 28-2 at 3, ¶6; doc. 28-2 at 14,
¶I and pp. 60-62). The Plaintiff disputes that these
policies were effective in this case. (Doc. 34 at 3,
¶8). However, he admits that he received the Employee
handbook provides that “[e]mployment is at the will of
Lee Brass, and either Lee Brass or the associate may at any
time terminate the employment relationship with or without
cause.” (Doc. 28-2 at 10; see also doc. 28-2
at 13). It states that “violation of any of the
following rules will lead to disciplinary action that may
include dismissal[:] . . . Fighting or acts of physical
violence on company property[;] Immoral, illegal or
disorderly conduct[;] . . . [and] Insubordination[.]”
(Doc. 28-2 at 59). The handbook also sets out the following
The purpose of this policy is not primarily to punish, but to
correctively encourage behavior modification to discourage
repetition of misbehavior by the offender or by another
following their example. Record of disciplinary action will
become part of a associate's personnel file.
Before administering discipline, the manager should be sure
they have all the facts. The associate's past record
should be examined in the Human Resources office to determine
if the associate has had any previous violations. Associates
should be given ample opportunity to present their side
before any final decision is made as to the discipline to be
administered. The review and decision to issue disciplinary
action is to be done in a timely manner.
- A verbal counseling should represent a direct attempt of
the manager and associate to deal with a breach of rules at
an early stage. It should clarify, in specific terms, what
behavior needs attention and define a method and a reasonable
time for correction.
- Written warnings represent a more formalized means of
correcting behavior and become part of an associate's
work record. Should associates have any additional factors or
knowledge of extenuation circumstances relating to the
incident they should be discussed at this time. The
supervisor or department manager will then consider this
information when deciding what discipline to administer. In
order to maintain consistency, Human Resources must be
involved in the preparation of any written warnings. Human
Resources will insure that documentation of the event leading
to any action is made a part of the offending associate's
disciplinary actions will be cumulative for a rolling period
of 6 (six) months. Group violations are cumulative.
usual disciplinary steps will be:
Final Written Warning
Subject to Discharge
upon the violation, the procedure may be at any of the above
steps and other required condition/actions may have to be
met. (Doc. 28-2 at 59-60).
The Plaintiff's Employment with Lee
January of 2012, Seals began his employment with Lee Brass as
a “laborer” on the cleanup crew, in the Foundry,
which is part of the Maintenance Department. The position of
laborer is physically demanding, and required Seals, among
other things, to shovel clay by carrying shovel loads of
approximately 50 pounds on a regular basis.
Plaintiff testified in his deposition that, after about 90
days in the Cleanup Crew, he “got hired on
permanent.” (Doc. 28-3 at 10(35)). Seals applied for
and was given an open position as a “saw
operator” in the Foundry, where his duties were to cut
excess metal pieces off of the parts after they are cast from
time Seals worked at Lee Brass, there were two different
types of saws, referred to as the “big saws” and
the “small saws.” Parts are delivered to the
sawing area by one of several forklift operators, who
transport the parts on a pallet from the area of the Foundry
where the parts are cast. The big saws are used to cut larger
parts, and the blades can be moved - rather than the operator
simply moving the part, as on the small saws - to cut the
part at angles. The blade on a big saw is sixteen inches in
diameter. When larger or heavier parts need to be sawed, the
saw operators use a crane (also referred to as a winch) next
to their saws to lift the part onto the sawing table.
However, Seals testified that the winch did not always work,
and when they did not, the big saw operator would
“[b]ring [the part] on a forklift or . . . wait until
they get around to fix [the winch].” (Doc. 28-3 at
everyone who works on a small saw also works on a big saw.
(Doc. 28-3 at 12(43)). Seals testified that that was because
people “have to be trained to work on the big
saw.” (Doc. 28-3 at 12(43)). Seals agreed in his
deposition that it was hard to work on the big saws and
agreed with the characterization of that work as
“skilled labor.” (Doc. 28-3 at 12(44)). McCormick
testified in her deposition that employees did not have to be
trained on a small saw but they did have to be trained on a
big saw. (Doc. 28-4 at 7(24)-8(25)). She also agreed that
safety training on a big saw was conducted prior to
employees' using it. (Doc. 28-4 at 8(26)). Derrick
Murphy, another employee of the Defendant who has worked
there for 29 years, agrees that a big saw required training
and that “some guys don't feel comfortable sawing
on them big saws.” (Doc. 33-3 at 26(98)). He was never
trained on a big saw and did not know how to operate one.
(Doc. 33-3 at 27(103)). Stan Hand, the plant manager,
testified that employees who worked a big saw made the same
amount of money as those who worked a small saw. (Doc. 27-8
at 8(27)). The Plaintiff testified that people who work a big
saw get paid more. (Doc. 28-3 at 17(63)).
sawing, the saw operator puts each part into a bin next to
his or her saw. The parts in the bin are then inspected by a
supervisor or a more senior saw operator to ensure that they
are cut properly, and then they are sent to the cleaning
room. (Doc. 28-3 at 16(58-59)). The saw operator throws the
scrap metal that he or she saws off the part into another
bucket. The scrap bucket contains only a single alloy at a
time. That is because the scrap is melted down again to be
reused, and different alloys of scrap cannot be
Accordingly, a saw operator works on only one type of alloy
at a time. Each time a saw operator finishes a job, a
forklift operator goes to the saw operator's machine and
switches out his or her scrap bucket and replaces it with an
empty scrap bucket for use by the operator to receive scraps
from the next job. It takes approximately 30 minutes to
transition a saw operator from cutting one type of alloy to
another type of alloy.
description of saw operator explains that the operator is
required to lift between fifty and seventy-five pounds.
However, when Seals became a saw operator, he was assigned to
a small saw. His supervisor was Kenny Deramus. Seals
explained that he sought out that position because he got a
pay increase and because “it was lighter weight,
” and “less physically demanding.” (Doc.
28-3 at 11(37)). He explained further that “the parts
was so small on the small saw. It was so small, so, I mean,
you could stand there and do that all day.” (Doc. 28-3
at 11(38)). Throughout his tenure, he was assigned primarily
to do work on a small saw cutting green brass and red brass.
However, as will be discussed, when Judy McCormick became his
supervisor, she began assigning him to work a big saw.
The Plaintiff's Hospitalization
April of 2013, Seals had to leave work in the middle of his
shift because he began vomiting blood and was experiencing
dizziness, pounding in his ears, and olfactory disturbances.
Leslie Underwood, a forklift operator at Lee Brass, recalled
the incident in his deposition and stated:
A. . . . I didn't know what was wrong with him. So I went
and got Judy [McCormick], and I told Judy about it. I said,
he's spitting up blood and stuff. I don't know
what's wrong with him.
Q. And what did Judy do?
A. They went to the first aid building.
Q. Okay. So did Judy see him throwing up blood?
A. He had it on the paper towel.
Q. And she saw that?
Q. And you were there as well?
(Doc. 28-10 at 27(10)). Derrick Murphy, another employee at Lee
Brass, also witnessed the Plaintiff vomiting blood.
began experiencing these symptoms around the start of his
shift at 3:00 a.m. Around 7:00 a.m., when Deramus got into
work, Seals reported to him that he was feeling ill and asked
to be dismissed for the day. Deramus agreed without
then drove himself to the emergency room at Stringfellow
Memorial Hospital. The nurse in the E.R. told Seals he was
“dying.” The doctors at Stringfellow informed
Seals that he was “short on blood” and gave him a
blood transfusion. Thereafter, Seals was hospitalized at
Stringfellow for approximately eleven days and tests were
performed. The testing did not reveal what had caused Seals
to become ill, and the Plaintiff has not had a recurrence of
these symptoms. When Seals was released from the hospital
he was feeling physically well with the exception that he did
not have much of an appetite. He was given a doctor's
note stating that he could work only “light duty”
for a time. Other than this hospitalization, Seals had no
medical issues of any kind while he was employed by Lee
Seals's First Attempt To Return to Work
attempted to return to work the day after he was released
from the hospital. He gave his “light duty”
doctor's note to either Deramus or Ray Wood, both of whom
had supervisory authority over him. One or both of them told
him that he could not return to work until he was cleared of
all restrictions. No one explained to him why he was not
allowed to work light duty. (Doc. 28-3 at
Deramus told Seals that, before going home, he should go to
HR and speak with Truss, which Seals did. Truss confirmed to
Seals that he could not return to work until his doctor
cleared him of restrictions. Seals did not encounter
McCormick that day.
declaration, Truss states that Lee Brass allowed employees to
work light or restricted duty only where the medical
condition precipitating the need to work light duty was
caused by an injury that occurred in the course of the
employee's job duties. (Doc. 28-2 at 3, ¶7). He
states that Deramus has never allowed light duty otherwise.
(Doc. 28-2 at 3, ¶8). In his declaration, Wood denies
ever giving light duty to anyone not hurt on the job. (Doc.
28-9 at 2-3, ¶3). In her deposition, McCormick stated
that employees only get light duty for “job-related
injuries, ” and she did not know of an incident where
anyone got light duty for a non-job-related incident. (Doc.
28-4 at 47(182)).
deposition the Plaintiff pointed to Richard Bearden, an
employee at Lee Brass, and said that after Bearden hurt his
back moving a hot water heater at his home, “[h]e had
to be on light duty. He didn't do anything.” (Doc.
28-3 at 44(172)-45(173)). Bearden worked on the cleanup crew
with Seals prior to Seals transferring to the position of saw
operator. Seals claims Bearden asked Seals if he could
“cover” for him because of his back injury. Seals
encouraged Bearden to report his injury to their supervisor
at the time, Ray Wood, which Bearden reported to Seals that
he had done. According to Seals, Wood gave Bearden a back
brace to wear. The Defendant disputes that Bearden was given
being told he could not return to work without a full
release, Seals “begg[ed] the doctor to give me a excuse
without no restrictions so I can go back to work and
won't get evicted out my house.” (Doc. 28-3 at
74(289)). Seals testified that the following exchange took
place between him and his doctor: “I'm about to be
evicted out my house, about to lose my car. He was like, you
can't lift nothing heavy. I said, well, my job that I do
have, it's on a small saw. I'm not lifting nothing
heavy. [The doctor said are you] sure? You sure? I said
I'm positive.” (Doc. 28-3 at 74(291-292)).
The Pill Cap Endoscopy Procedure
days after he was released from the hospital, Seals returned
to the hospital and had a “pill cap” endoscopy
where he swallowed a small camera which was used to examine
his digestive tract. In order for the endoscopy to be
successful, Seals was required to be active and walk around
while the camera passed through his system over the course of
several days. He had a small bag related to the procedure
strapped to his side as he walked around.
Seals Returns to Work
or four days after the start of the pill cap endoscopy, while
that procedure was ongoing, and despite the fact that the
doctor had not yet given him the results, Seals had already
been cleared to return to work by his doctor and brought a
note to that effect to the HR department at Lee Brass. On the
day he brought in his new doctor's note, Seals ran into
McCormick, who at that time was not yet his
outside the HR office. McCormick noticed the equipment that
Seals was wearing related to the endoscopy procedure and
inquired about it. This was the first conversation Seals had
ever had with McCormick. Regarding that conversation, the
following exchange took place in the Plaintiff's
Q. Okay. And when you were bringing in your paperwork, you
said you had a conversation with her, and she said,
A. Yes. She said, I heard that was very serious. I said, yes,
First she asked me what that was.
A. . . . And I told her what [the pouch] was. I said it's
monitoring my body taking pictures where they can see
what's going on.
(Doc. 28-3 at 49(191-192)). Seals also testified that she
said “I'm glad to see you back in good
health.” (Doc. 28-3 at 36(137)). Seals told McCormick
that he had been hospitalized, but did not tell McCormick
about the specific symptoms which had put him in the
It is undisputed that Seals never gave McCormick any
paperwork or doctor's note indicating that he had been in
the hospital or was having medical issues of any kind.
was Seals's supervisor when the Plaintiff returned from
the hospital. Seals told Woods that he was not
supposed to lift anything heavy. Woods told Seals he would
not need to since he worked a small saw. When Seals returned
to work after his hospitalization, he continued to be
assigned to a small saw, as he had been before his
McCormick Takes Over Supervising the Saws
after Seals was released to full duty, in late spring or
summer of 2013, McCormick, the supervisor over the cleaning
room, took supervisory authority over the saws in order to
improve the efficiency of the manufacturing process and make
sure that the jobs that were more urgent were prioritized.
When Stan Hand became the plant manager, he kept McCormick with
supervisory authority over the saws because he thought that
would streamline the process of finishing the metal castings.
was viewed by those she supervised as a tough boss because
she is a hard worker and expected the same work ethic from
those she supervised. McCormick was strict with every
employee she supervised. When McCormick was the supervisor of
the cleaning room as well as over saws, she would walk back
and forth between the Cleaning Room and the saws, which is a
short distance across a small alley. Seals and the other saw
operators chatted with each other during the day, which
McCormick did not like. In the course of his job duties,
Seals also spoke with the forklift operators, who were
Derrick Murphy, Leslie Underwood, and Mike Mason.
Plaintiff contends that McCormick was not as friendly to
African American employees as to Caucasian employees. (Doc.
28-3 at 47(182)). However, Seals testified that McCormick was
friendly with the African American employees who she
supervised in the Cleaning Room. According to Seals, McCormick also
was friendly with Lewis Butts, an African American forklift
operator. Seals claims that McCormick did not like to chat
with the saw operators, all of whom were African American,
but she was more friendly with the employees in the
Maintenance Department. Seals alleges that at the time he
worked at Lee Brass, African American employees were somehow
precluded from working in the Maintenance Department.
told all of the saw operators, including Seals, that they
sometimes took bathroom breaks too frequently. All of the
employees who worked on the saws were African American. Seals
talked to Lamar Willingham, Stacey McClellan, and Lewis Butts
about their feeling that McCormick was discriminating against
them because they were African American.
claims that, after McCormick became his supervisor, she timed
him when he went to the bathroom and would tell him he had
been in the bathroom too long or had gone to the bathroom too
frequently. McCormick told all the saw operators, all of whom
were African American, that they needed to try and limit the
number of bathroom breaks they took and try to make them as
short as possible. Seals claims that McCormick watched all
the saw operators closely and would make them re-cut parts if
she felt a part was not cut properly; Seals does not know if
she supervised the employees in the Cleaning Room as closely.
and Deramus allowed the saw operators to end their shifts
early so they had more time to shower, but McCormick made the
saw operators work until the scheduled end of their shifts.
Seals claims that McCormick treated the saw operators
differently than Wood or Deramus had because, if they were
late coming off a break, McComick would issue a write-up,
where Deramus and Wood would not have. However, McCormick
never wrote up Seals. McCormick required the saw operators to
be at their saws five minutes before the horn signaling the
start of work went off. Seals testified that McCormick
treated all the saw operators the same way and the saw
operators discussed her supervisory style amongst themselves.
The Plaintiff's Medical Condition and Belief That He
never told anyone at Lee Brass he was “disabled.”
When asked in his deposition whether he had “a physical
condition which makes you disabled, ” the Plaintiff
testified “Not at this point now.” (Doc. 28-3 at
83(325-326)). However, he testified that while he worked for
the Defendant, “[t]he symptoms that [he] experienced
going in the hospital, that made me disabled.” (Doc.
28-3 at 83(326)). He also testified to “spitting up
some black mucus, ” after he left the hospital. (Doc.
28-3 at 83(326)). Seals's disability claim is based on
his contention that he was regarded by Lee Brass as
McCormick Starts To Have the Plaintiff Operate a Big
wanted Seals to move from working on a small saw to working
on a big saw. Some months after he was released from
the hospital in April 2013, McCormick began to regularly move
Seals from working on the small saws to working on the big
saws. None of Seals's previous supervisors had ever had
him work on a big saw. McCormick moved Seals from a small saw
to a big saw because, of the saw operators who normally
worked on a small saw, Seals had been employed with Lee Brass
the longest and was the most experienced. On multiple
occasions McCormick required Seals to use a big saw to cut
larger parts that needed to be sawed, which he was able to
do. He successfully operated a big saw and cut large parts
using it over twenty times in a period of approximately three
months. However, in his deposition, Seals testified that he
“didn't know how to use [a big saw].” (Doc.
28-3 at 17(63)).
on an unspecified date, when McCormick asked Seals to use a
big saw, he told her that he could not lift the heavier parts
onto the sawing table and protested that he had not been
trained on a big saw. McCormick responded that his inability
to lift was not a problem because he could use the crane next
to the saw to lift heavy parts, to which Seals responded that
the crane in question did not work. Seals testified that
McCormick then told him that he needed to go operate a big
saw “if he wants the job” so Seals complied and
operated a big saw successfully that day. (Doc. 28-3 at
36(139)). Since the crane was not working, Seals got the
larger parts onto the saw table by having a forklift operator
lift them for him.
The Events Leading to the Plaintiff's
August 21, 2013, Seals was operating a small saw cutting red
brass. He had already told McCormick, that day, that he was
not feeling well. (Doc. 28-3 at 57(224)). McCormick asked
Seals if he needed to go home and Seals said he was alright
and was just feeling woozy but he could manage. McCormick
told Seals to let her know if he needed to leave.
point thereafter, on that same day, McCormick told Seals that
he needed to use a big saw to cut a job. McCormick wanted
Seals to work on a big saw to cut a “hot job” of
parts that were also made of red brass and which needed to
ship out as soon as possible. A “hot job” is an
order of parts that must ship from Lee Brass very soon to
meet customer requirements. When hot jobs arise, everyone in
the manufacturing process must strive to get the order ready
deposition Seals stated:
I could not do it. I mean, I told her that. And she was like,
well, I don't see nothing on the doctor. I said, because
I told the doctor, Ms. Judy, that -- the doctor asked me did
I have a light duty job. I said, well, yes, what I do out
there, the little parts, they are light. . . . So when she
sent me to go over there, I told her, I said, Ms. Judy, I
don't supposed to be lifting this heavy stuff. I say, you
know, I was in the hospital back in April.
(Doc. 28-3 at 49(192)-50(193)). Although McCormick had
assigned Seals to use a big saw more than twenty times, Seals
testified that this was the first occasion where he told
McCormick he could not operate a big saw due to his
hospitalization in April.
following exchange then took place in the Plaintiff's
A. . . . [McCormick] left. She came back. Well, I don't
see nothing in your file talking about you can't lift
nothing heavy or nothing like this. I said, well, it's
nothing that's going to be in my file, Ms. Judy, because
I always worked on the small saw since I signed up to be a
saw operator. You're going to work on the big one today.
I said, no, no, I'm not. So -- yes, you are. She grabbed
me by my arm. I said, hey, don't do that.
Don't touch me. So she left and went and got Stan Hand.
He came back. I explained to him. We standing up there.
I'm explaining to him, Stan, I can't lift this. Well,
why don't you just quit. Just go on and quit. I said, I
ain't no quitter, Mr. Stan Hand. I don't give up on
nothing. Because he hadn't been there long being the
plant manager. I don't know where he came from.
A. . . . He's like, why don't you just quit, just
give up and just quit. I said, no, I ain't going to quit.
I got bills to pay, and I don't quit at nothing that I
do, but I can't go over there and lift that - I'm not
going to go over there and lift that heavy stuff. I'm not
fixing to do that. Okay, just stay where you're at. They
left, him and Judy left. Ms. Judy came back, told me to come
to the office.
(Doc. 28-3 at 50(194-195). Despite his protestations
regarding lifting, it is undisputed that, at this time, Seals
was in good physical shape and was physically capable of
weightlifting, which had been a hobby of his. However, Seals
testified that he had not done any weightlifting since April
of 2013. (Doc. 28-3 at 92(364)). Seals believes he could
bench press between 425 and 475 pounds at that time. (Doc.
28-3 at 58(228)-59(229)).
Plaintiff also testified that he told Hand that he had not
been trained on a big saw, and that Hand told him to stay on
a small saw. (Doc. 28-3 at 57(221)). Hand had been the Plant
Manager for only a few weeks, was not working there when the
Plaintiff was hospitalized, and Seals had not spoken to him
previously. Seals did not cut any parts on a big saw
and at some point that same day, Seals began to cut green
brass on a small saw. Seals then had an interaction with
Underwood, who was operating a forklift. The Plaintiff
Ms. Judy went over there and told him something, and then he
came over there on this forklift and brought me some things
to cut. And I asked him, I said, put it on the floor. I said,
I'll get to it. I ain't feeling too bright, man.
(Doc. 28-3 at 61(238)). The Plaintiff testified that the
parts Underwood brought were red brass. (Doc. 28-3 at
62(243)). Underwood then said: “You going to cut them,
motherfucker. You're going to cut them now. She want them
cut. You going to cut them.” (Doc. 28-3 at 61(239)).
Seals responded: “[Y]ou can put them on the floor.
I'll cut them when I'm finished, when I'm
finished with this right here.” (Doc. 28-3 at 61(239)).
The Plaintiff also testified: “I said, I don't care
what she said. I'm going finish this first, and then
I'll get to that when I got time, if I have time.”
(Doc. 28-3 at 61(239)). Seals also admits that he swore back
at Underwood. After that, McCormick left. (Doc. 28-3 at
testified that when Underwood attempted to change the pallet
that Seals was working on, Seals became angry, and she spoke
to the Plaintiff and told him that Underwood was only doing
what she had told him to do. (Doc. 28-4 at
She states that at that time Seals threw a part that he had
in his hand. (Doc. 28-4 at 35(135-136)). The Defendant
alleges that this part was thrown at Underwood, but the
Plaintiff disputes that he threw anything. (Doc. 28-3 at
65(253-254)). When Underwood was asked in his
deposition if he knew why the Plaintiff had been terminated,
he stated he “didn't see him do nothing.”
(Doc. 28-10 at 29(109-110)). Murphy was present as well and did not
see the Plaintiff throw anything, but also admits that he did
not watch the entire altercation. (Doc. 33-3 at 18(66)).
to Hand, both McCormick and Underwood then reported this
incident to him. In Hand's deposition, the following
exchange took place:
A. [McCormick] told me that [Seals] had threw a part, and it
bounced off the wooden pallet and almost hit Leslie
Q. Okay. Where was -- what was he throwing the part at? I
mean, what, was he throwing it at the bins or was he throwing
it at something else?
A. According to her, he was throwing it at Leslie.
Q. Oh, okay.
Q. Did she say she saw that?
Q. And what did Leslie Underwood tell you?
A. Actually, Leslie was the first one that burst in my office
and tell me that he had -- Jerald was cussing him and threw a
part at him.
Q. And what did he tell you?
A. He told me that he was trying to set up this hot part that
Judy needed to get out. And I think Derrick Murphy was
helping Leslie at the time. And he stated to Derrick that he
didn't want to do that part, and Derrick went and got
Leslie. And when Leslie got over there on his forklift, he
told him he was going to cut it. I ...