United States District Court, N.D. Alabama, Southern Division
MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.
an age discrimination case. Pending before the court is the
Defendant Federal Express Corporation's Motion for
Summary Judgment. (Doc. 30). The defendant seeks dismissal of
the plaintiff's claim of alleged age discrimination under
the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621, et
seq. The motion has been fully briefed, and the parties
have consented to dispositive jurisdiction by a United States
Magistrate Judge in accordance with 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a), summary judgment is
proper “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
party asking for summary judgment “always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)). The movant can meet this
burden by presenting evidence showing there is no dispute of
material fact or by showing that the nonmoving party has
failed to present evidence in support of some element of its
case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. There is no
requirement, however, “that the moving party support
its motion with affidavits or other similar materials
negating the opponent's claim.”
Id. at 323.
the moving party has met its burden, Rule 56 “requires
the nonmoving party to go beyond the pleadings and by her own
affidavits, or by the ‘depositions, answers to
interrogatories, and admissions of file, ' designate
‘specific facts showing that there is a genuine issue
for trial.'” Id. at 324 (quoting former
Fed.R.Civ.P. 56(e)). The nonmoving party need not present
evidence in a form necessary for admission at trial; however,
he may not merely rest on his pleadings. Celotex,
477 U.S. at 324. “[T]he 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 that party's case, and on which that
party will bear the burden of proof at trial.”
Id. at 322.
the plaintiff has properly responded to a proper motion for
summary judgment, the court “shall” grant the
motion if there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The substantive law will identify which
facts are material and which are irrelevant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Id. at 248. “[T]he judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 249. His guide is the same
standard necessary to direct a verdict: “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at
251-52; see also Bill Johnson's Restaurants, Inc. v.
N.L.R.B., 461 U.S. 731, 745 n. 11 (1983).
the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The evidence
supporting a claim must be “substantial, ”
Marcus v. St. Paul Fire and Marine Ins. Co., 651
F.2d 379 (5th Cir., Unit B, 1981); a mere scintilla of
evidence is not enough to create a genuine issue of fact.
Young v. City of Palm Bay, 358 F.3d 859, 860 (11th
Cir. 2004); Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1249-50 (11th Cir. 2004). If
the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.
Anderson, 477 U.S. at 249 (citations omitted);
accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir.
1989). Furthermore, the court must “view the evidence
presented through the prism of the substantive evidentiary
burden, ” so there must be sufficient evidence on which
the jury could reasonably find for the plaintiff.
Anderson, 477 U.S. at 254; Cottle v. Storer
Communications, Inc., 849 F.2d 570, 575 (11th Cir.
1988). Nevertheless, credibility determinations, the weighing
of evidence, and the drawing of inferences from the facts are
the function of the jury, and therefore the evidence of the
non-movant is to be believed and all justifiable inferences
are to be drawn in his favor. Anderson, 477 U.S. at
255. The non-movant need not be given the benefit of every
inference but only of every reasonable inference. Brown
v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th
purposes of summary judgment, the courts are directed to view
the facts in the light most favorable to the non-moving
party. Accordingly, the following facts relevant to the
instant Motion for Summary Judgment are either undisputed or
taken in the light most favorable to the non-moving
was born on October 10, 1962. (Doc. 33-1, p. 56:3-4). In
1987, he began his employment with FedEx, working as a
courier, which required him to load trucks and deliver
packages. (Doc. 33-1, pp. 63:5-7, 86:23 - 87:3, 87:7-18). He
worked at the RLI Station in Homewood, Alabama, from 1987
until 2015, the year of his termination. (Doc. 33-1, p.
chain of command at the RLI Station consisted of Operations
Managers who reported to a Senior Manager (doc. 33-2, pp.
15:21 - 16:20), who in turn reported to an off-site Managing
Director (see doc. 33-2, pp. 36:8 - 37:2)
(describing that decision not to terminate an employee lies
with the managing director, not with the senior manager).
During the relevant time period, McGehee's immediate
supervisors were Operations Managers Chuck McGhee
(“McGhee”) and Robin Cooper
(“Cooper”). Above McGhee and Cooper was Senior
Manager Jannette Maye (“Maye”) (doc. 33-1, pp.
74:12-20, 75:5-7; doc. 33-3, Declaration of Jannette Maye
¶ 3), and her supervisor was Howard Morgan, serving as
the Managing Director responsible for the RLI Station.
(See doc. 33-2, p. 75:13-15). According to McGehee,
he reported directly to all of his managers. (Doc. 33-1, p.
has developed policies delineating procedures and conduct
that employees are expected to adhere to. Specifically, FedEx
Policy 2-5, “Acceptable Conduct”
(“Acceptable Conduct Policy”), outlines the
conduct expectations of FedEx employees and defines what
constitutes misconduct. (Doc. 33-1, Bates Number 9-36). It is
impermissible for an employee to become insubordinate or
violate safety regulations cross-referenced in “The
People Manual, ” which is FedEx's employee
handbook. (Doc. 33-1, Bates Numbers 9-36 - 9-37). Under FedEx
Policy 4-48 Driving Qualifications,  employees in driving
positions may not drive with an invalid or suspended license.
Policy 4-48 states in relevant part:
State License/lnsurance Compliance.
Employees who operate Company vehicles on public or Company
property are responsible for the following:
1. All drivers are responsible for and must know and comply
with the CDL HME and driver's license and insurance
requirements of the states in which they reside.
2. All drivers must have valid CDL and HME/driver's
license in their possession at all time. A photocopy of their
driver's license is not valid.
5. All employees who drive as regular part of their job whose
CDL, HME or driver's license becomes invalid as defined
in this policy must also notify their manager the next
business day and before operating Company vehicle.
6. The employee whose license becomes invalid must not
operate Company vehicle. Management must consult with Safety,
HR, and Legal prior to allowing the employee to drive Company
(Doc. 33-1, Bates Number 9-74). Further, the same Policy defines
“Invalid License Status, ” to
include, “Expiration-If driver's
license has expired, the employee cannot drive a vehicle or
motorized conveyance on Company property or public roads
until the license is renewed/valid.” (Doc. 33-1, Bates
Number 9-74). FedEx considers “[d]riving a FedEx
Express vehicle on a license that is currently limited or was
limited in the past (as defined in the Invalid License Status
guideline of this policy). . . a serious violation of safety
regulations…, ” resulting in immediate
suspension pending an investigation. (Doc. 33-1, Bates Number
9-75). Further, “[a] manager may discover that an
employee is currently driving or drove in the past on limited
license (invalid License Status guideline). When this occurs
the employee is given at a minimum a Warning Letter and one
week unpaid suspension” (Doc. 33-1, Bates Number 9-75).
Human Resources advisor Jacqueline Fields testified that
FedEx personnel are “supposed to adhere to the policy
true to form, ” yet also testified that there is no
violation of the Policy if an employee drives with an expired
license that remains “valid” under State law.
(Depo. of Fields, doc. 36-1, p. 58).
a Warning Letter is required for a “Preventable Backing
Vehicle Accident” under FedEx Policy 8-90 Vehicle
Accidents/Occurrences. (Doc. 33-1, Bates Number 23-24).
issuing a disciplinary-action letter or deficiency
notification, an Operations Manager will “share”
the letter with the on-site Senior Manager. (Depo. of Fields,
doc. 39-1, p. 62:15-23). Such letters are “courtesy
copied” to the Senior Manager. (Depo. of Fields, doc.
39-1, pp. 62:15-23 through 63:1-4).
receiving a disciplinary action for conduct in violation of
the Acceptable Conduct Policy, an employee may utilize the
Guaranteed Fair Treatment Procedure (“GFTP”) to
challenge any received “disciplinary action, including
termination” under FedEx Policy 5-5 Guaranteed Fair
Treatment Procedure. (Doc. 39-1, Bates Number 9-20).
Acceptable Conduct Policy describes the consequences of
receiving multiple disciplinary actions. Specifically, the
Acceptable Conduct Policy provides the following provisions:
Recurrent Patterns. . . . Any time a third
discipline/deficiency notification of any type, i.e.,
Performance Reminder or Warning Letter, is entered . . ., an
alert “notify” will be sent to the employee's
senior manager and managing director and the matrix HR
Advisor/Representative. The “notify” will advise
that the employee has three notifications, and the
employee's history will be audited.
The receipt of three notifications of deficiency within a
12-month period normally results in termination. However an
employee's entire employment history should be reviewed.
. . .
Termination Option Exercised. . . .
Management is responsible for reviewing an employee's
disciplinary record and exercising judgment in determining
Discharge Approval. Two levels of management
and a matrix HR staff member must approve all terminations
based on misconduct when the individual holds a managing