United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
court has before it the January 31, 2018 motion for summary
judgment and the March 2, 2018 motion to strike filed by
Defendant Fairfield Southern Company (“FS”)
(Docs. 37, 44). Both motions have been fully briefed
(Docs. 38, 40, 43, 45, 46) and are now under submission. For
the reasons set forth below, both motions are due to be
30, 2016, Plaintiff Joseph Johnson filed a complaint against
Defendant FS stating two causes of action. (Doc. 1). Count
one alleges unlawful race discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”) and count two alleges a civil conspiracy.
(Id.). On August 15, 2016, Defendant moved to
dismiss count two of the complaint. (Doc. 7). Plaintiff
responded to this motion by stipulating to the dismissal of
his civil conspiracy claim with prejudice, and the court
dismissed this claim. (Docs. 12, 14).
moved for summary judgment on the remaining Title VII claim.
(Doc. 37). Defendant contends summary judgment is due to be
granted in favor of FS because (1) Plaintiff cannot establish
a prima facie case of race discrimination in his termination;
(2) FS acted for legitimate, nondiscriminatory reasons and
Plaintiff cannot show the reasons are a pretext for
intentional race discrimination; and (3) Plaintiff released
his claims against FS. (Id. at 2). Additionally,
Defendant contends Plaintiff cannot recover back pay or front
pay after August 15, 2015, because his position would have
been eliminated on that date. (Id.). Plaintiff filed
a brief and evidence in opposition to the motion (doc. 41)
and Defendant filed a reply brief (doc. 43).
its reply, Defendant also filed a motion to strike portions
of the two affidavits submitted by Plaintiff in opposition to
summary judgment. (Doc. 44). Plaintiff filed a response in
opposition to the motion to strike (doc 45) and Defendant
filed a reply (doc. 46). The court begins with the motion to
strike and then addresses the motion for summary judgment.
MOTION TO STRIKE
asks the court to strike portions of two affidavits of former
employees Anthony Olds and Dwight Smith. (Doc. 44). The
affidavits were submitted by Plaintiff in opposition to
summary judgment. (Doc. 42-1 (“Olds Aff.”) at
2-5; Doc. 42-3 (“Smith Aff.”) at 2-4). Defendant
contends the court should strike the affidavits in part
because they contain statements that are (1) conclusory and
lack foundation in that they are not based on personal
knowledge, (2) hearsay, and (3) irrelevant. (Id.).
The court finds that the motion to strike is due to be
district court has broad discretion in determining the
admissibility of evidence” on a motion for summary
judgment. Hetherington v. Wal-Mart, Inc., 511
Fed.Appx. 909, 911 (11th Cir. 2013). Under Federal Rule of Civil
Procedure 56(c)(4) “[a]n affidavit or declaration used
to support or oppose a motion 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.” Fed.R.Civ.P.
56(c)(4). “[C]onclusory allegations without specific
supporting facts have no probative value.” Leigh v.
Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.
court agrees with Defendant that the objected-to portions of
the affidavits are inadmissible. The statements in both
Olds' and Smith's affidavits regarding their
conclusions that widespread prejudice and/or discrimination
occurred at FS are conclusory and do not contain the
necessary specific supporting facts. Neither affiant
identifies the specific people with the alleged racial animus
but merely refers to “supervisors” in general.
Where some specifics are provided, the necessary context to
support the allegations is absent.
the court rejects Plaintiff's argument that the testimony
contested by Defendant is admissible as lay opinion evidence
under Federal Rule of Evidence 701. (Doc. 45 at 5). Federal
Rule of Evidence 701 allows a lay witness to testify in the
form of an opinion, provided such testimony “is limited
to” those opinions or inferences that are: “(a)
rationally based on the witness's perception; (b) helpful
to clearly understanding the witness's testimony or to
determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of
Rule 702.” Fed.R.Evid. 701. Although Plaintiff focuses
on the “witness's perception” requirement in
701(a), it is actually the “helpfulness”
requirement in 701(b) that is not met by the testimony at
issue. Subpart (b) is designed to “provide assurances
against the admission of opinions which would merely tell the
jury what result to reach.” United States v.
Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting
Fed.R.Evid. 701 Advisory Committee Note on 1972 Proposed
Rule); see also Lightfoot v. Union Carbide
Corp., 110 F.3d 898, 912 (2d Cir. 1997) (same).
context of employment discrimination cases, the Eleventh
Circuit has cautioned that “a discharged employee's
mere suspicion of . . . discrimination, unsupported by
personal knowledge of discrimination, will not constitute
[proof of] pretext.” Sturniolo v. Sheaffer, Eaton,
Inc., 15 F.3d 1023, 1026 (11th Cir.1994) (citing
Slaughter v. Allstate Insurance Co., 803 F.2d 857,
860 (5th Cir. 1986)). The Second Circuit explained this
principle as follows:
[I]n an employment discrimination action, Rule 701(b) bars
lay opinion testimony that amounts to a naked speculation
concerning the motivation for a defendant's adverse
employment decision. Witnesses are free to testify fully as
to their own observations of the defendant's interactions
with the plaintiff or with other employees, but “the
witness's opinion as to the defendant's [ultimate
motivations] will often not be helpful within the meaning of
Rule 701 because the jury will be in as good a position as
the witness to draw the inference as to whether or not the
defendant” was motivated by an impermissible animus.
Rea, 958 F.2d at 1216. . . . A jury can draw its own
conclusions “from observed events or communications
that can be adequately described” to it. . . . But [a
witness's] speculative lay opinion that [a
supervisor's conduct] is attributable to race, rather
than anything else, is not helpful . . . because it
“merely tells the jury what result to reach.”
Id. at 1215.
Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir.
objected-to opinion testimony of Olds and Smith does exactly
what Rule 701(b) attempts to prevent. The testimony relaying
the subjective opinions of Olds and Smith as to why certain
decisions were made are inadmissible. There are a multitude
of reasons why the actions could have been taken and Olds and
Smith may not testify as to the decision maker's ultimate
motivations. For the foregoing reasons, Defendant's
motion to strike is due to be granted.
MOTION FOR SUMMARY JUDGMENT
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c), summary 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
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
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 which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing there is a genuine
issue for trial. See Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See 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. See Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.
STATEMENT OF FACTS
owned by Transtar and operates a rail line within United
States Steel Corporation's Fairfield Works in Birmingham,
Alabama. (Doc. 39-1 (“Rutherford Decl.”) ¶
2; Doc. 38 at 3). The bargaining unit employees at FS are
represented by the United Steelworkers of America union and
the terms and conditions of their employment are governed by
a collective bargaining agreement. (Doc. 39-2 (“Johnson
Dep.”) at 82).
an African American, was hired on December 16, 2009, as a
helper trainee. (Id. at 81; Doc. 39-4 at 55).
Plaintiff was a union employee and his employment was
governed by the collective bargaining agreement. (Johnson
Dep. at 82). After approximately six months, Plaintiff became
a helper. (Id. at 88). Helpers work with train
operators in a two-man crew. (Id. at 89). The train
operator moves railcars around the Fairfield Works with a
remote control, and the helper directs the safe movement of
the rail cars, operates railroad switches, and secures
FS's rules and disciplinary process
of the inherent dangers of working in and around trains, FS
has a number of safety rules to help prevent accidents to
people and property. Cardinal Rules are directed at safety
and cover situations when a failure to follow a rule can
result in substantial risk of harm or person or property and
are identified as life threatening rules. (Id. at
90-91; Doc. 39-2 at 115-17; Doc. 39-6 (“Dalton
Dep.”) at 48). Operating Rules are rules, including
safety rules, specific to a facility. (Dalton Dep. at 48).
General rules are basic safety rules. (Id.).
Plaintiff admits he was trained on all safety rules. (Johnson
Dep. at 90-91).
follows a disciplinary process for violations of safety
rules, including grievance and arbitration procedures
dictated by the collective bargaining agreement. (Doc. 39-5
(“Weideman Dep.”) at 67-77; Doc. 39-5 at 58-59).
As relevant here, under the collective bargaining agreement,
an employee suspended for five days or more may have the
union request a preliminary hearing, commonly referred to as
a 9(b) hearing. (Id.; Doc. 39-7 (“Baginski
Dep.”) at 44). If the outcome of the hearing is
unsatisfactory to the employee, the union may file a
grievance, which can include another hearing, appeal and
arbitration. (Weideman Dep. at 70-77; Doc. 39-5 at 58-59;
Baginski Dep. at 44, 105).
July 19, 2011 accident
19, 2011, Plaintiff uncoupled a railcar from another train
and failed to secure the handbrake, as required. (Johnson
Dep. at 22, 28, 30). Instead, Plaintiff put air on the
railcars and then put the railcar into emergency.
(Id. at 93). Although Plaintiff's actions should
have kept the railcar in place, unbeknownst to Plaintiff, the
air brake pipe was broken and failed to prevent the railcar
from rolling. (Id. at 93-94, 119-20; Weideman Dep.
at 39-40; Doc. 39-4 at 48). As a result, the railcar rolled
over twenty feet until it hit another car. (Johnson Dep. at
95). There was no damage to the cars or injury to any person
as a result of the accident. (Doc. 42-3 (“Smith
Aff.”) at 2; Weideman Dep. at 117-18).
Olds, the train operator working with Johnson at the time of
the accident, called David Tarwater, the Superintendent of
Transportation, to inform him about the
accident. (Johnson Dep. at 95-96; Doc. 39-4
(“Tarwater Dep.”) at 11). When Tarwater arrived,
Johnson admitted he did not secure the handbrake as required.
(Johnson Dep. at 97-99). Tarwater directed Plaintiff and Olds
to submit to a drug test. (Id.). Plaintiff initially
refused to take the drug test, and Plaintiff and Tarwater got
into a “heated conversation” about it.
(Id. at 97-100). Plaintiff asked Tarwater why he had
to take a drug test when he heard that Joey Simmons, a white
helper, was not required to take a drug test only days before
when he allegedly failed to properly apply a hand brake.
(Id. at 71-72; 97-102). Tarwater refused to discuss
the situation regarding Simmons, and Plaintiff ultimately
submitted to the drug test and passed. (Id.).
The accident investigation
meeting was held shortly after the accident. From what the
court can glean from the record, Plaintiff, Tarwater,
Clarence Rutherford, the General Superintendent for FS, Tommy
Hosmer, a manager on duty at the time of the accident, and
David Weideman, the Director of Human Resources and Labor
Relations, attended the meeting. (Rutherford Decl. at 3;
Johnson Dep. at102-03; Tarwater Dep. at 101; Doc. 39-8
(“Hosmer Dep.”) at 16-19; Weideman Dep. at 9,
119-20). Plaintiff described the meeting as follows:
[T]hey asked me about the incident and what happened. I told
them what happened, that I didn't tie a hand
brake. And they told me it was required under the
rules, you had to take your drug test. And Clarence
Rutherford asked me did I want to come up there and talk to
the new what they call cubs, the new trainees about my
situation, incident what happened. And I asked him was I
going to get paid for it, and he told me no. And I told him I
wasn't going to do it unless I get paid for it. . . .
[T]hey were saying that - Tarwater said I laughed when he
asked me something. He basically asked me was - do you want
to get home safely to your family, and that sounded kinda
crazy coming from him because we had just got into a heated
conversation [about the drug test] . . . so I knew he
wasn't worried about my safety. So I kind of looked at
him and said, yeah, I want to get home safely to my family,
and they considered that as laughing,  which I know is
not a laughing matter. Of course I want to get home safe to
(Johnson Dep. at 104-05). When asked in his deposition if he
laughed in response to Tarwater's question, Plaintiff
stated, “No, I just made a huh noise like that, but
actually laughing, no I didn't.” (Id. at
testified Tarwater and Rutherford did not visibly react to
him making the noise. (Id.). Rutherford testified,
however, “Johnson's poor attitude about his safety
violation was very concerning, and I had never witnessed an
employee laugh and express no remorse for a Cardinal Rule
violation.” (Rutherford Decl. ¶ 7). Likewise,
Tarwater testified he was disappointed in Johnson's
“cavalier attitude” towards safety, especially
because he had personally been involved in fatalities in the
rail industry and safety is very serious. (Tarwater Dep. at
Rutherford testified he was “very disappointed”
when Johnson refused to talk to other employees about his
safety violation. (Rutherford Decl. ¶ 8). Rutherford
used the process to help prevent future accidents and as a
way to mitigate discipline. (Id.). He used the
process before Johnson's accident and after the
accident. (Id.). No. employee had ever
refused the request and Rutherford believed Johnson's
behavior showed he did not understand the severity of his
conduct. (Id.). Plaintiff admitted Rutherford
“got kind of mad when [he] said [he] wasn't going
to come talk to the trainees about my incident if [he]
wasn't going to get paid for it.” (Johnson Dep. at
Plaintiff's suspension, disciplinary meeting and
22, 2011, Tarwater issued Plaintiff a letter detailing the
findings of the investigation and Plaintiff's discipline.
(Doc. 39-2 at 123-24). The letter stated FS determined the
following rules were violated by Plaintiff's