United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's motion for
summary judgment (Doc. 37), Plaintiff's opposition
thereto (Doc. 46), and Defendant's reply (Doc. 47). For
the reasons explained below, the Court finds that Plaintiff
has not supported a prima facie case of racial
discrimination and also has not shown that Defendant's
legitimate, non-discriminatory, reason for terminating
Plaintiff was pretextual. Accordingly, summary judgment will
be granted in favor of Defendant.
Plaintiff in this case is a black male who alleges he was
discriminated against on the basis of his race by his
employer, Defendant AM/NS Calvert. (Doc. 9). Defendant
manufactures steel in the form of heavy coils that are then
transported to one of the storage areas, ST1, ST2, ST3, or
ST4, where they are evaluated for any defects before being
transported out. (Doc. 40-1, ¶¶ 3, 9). Plaintiff
was hired in April 2011 as an Operator and was promoted to
Packaging Coordinator in ST4 in 2013. (Doc. 41-2,
¶¶ 16, 17). Plaintiff understood from going through
orientation when he was hired that Defendant had in effect an
Equal Employment Opportunity Policy that prohibited
discrimination. (Doc. 39-1, p. 13; Doc. 41-1, pp. 20-21).
and Packaging Coordinators in ST4 manage a crew of Team
Members working under their supervision. (Doc. 40-1, ¶
9). A Coordinator's primary responsibility is
“vigilance of safety with Cranes and Team
Members.” (Doc. 40-1, ¶ 10; Doc. 40-2, p. 8). The
Coordinator's responsibilities include ensuring safety of
all Team Members, as well as evaluating the receiving coils
for any defects that violate customers' coil
specifications, packaging coils once that are confirmed in
specification, and transporting the packaged coils to the
required method of hauling. (Doc. 40-1, ¶ 9). A
Coordinator is responsible for ensuring the crew is adhering
to all Personal Protective Equipment (“PPE”)
requirements, including gloves, sleeves, eye protection and
other required items. (Doc. 40-1, ¶ 11). A Coordinator
is responsible for overseeing the crew's completion of
all required computer-based trainings (“CBTs”),
some of which pertain to safety awareness and PPE. (Doc.
40-1, ¶ 11). A Coordinator is to address and correct all
safety concerns the moment they come up and is responsible
for filling out “Yellow Near Miss cards if
necessary.” (Doc. 40-2, p. 8). Team Members are
required to fill out Near Miss cards whenever they see a
potential hazard - to help prevent future safety incidents
and to create an awareness by all Team Members in
safety-sensitive positions to be vigilant in noticing and
resolving potential hazards. (Doc. 40-1, ¶ 12). The
cards require the Team Member to identify the hazard and also
identify what steps the employee took to resolve the hazard.
(Doc. 40-1, ¶ 13). Plaintiff testified that Coordinators
were expected to complete two Near Miss cards per month and
Operators were to complete Near Miss cards too. (Doc. 45-2,
March 2015, Tim York became Team Manager of ST4. (Doc. 40-1,
¶ 2). As the Team Manager over ST4, York was familiar
with Plaintiff's job performance and the job performance
of other Packaging and Shipping Coordinators in that area.
(Doc. 40-1, ¶ 8). York obtained the approval of
Stephanie Davis, the Team Member Relations Specialist, prior
to disciplining employees. (Doc. 40-1, ¶ 18). York
reported to and worked closely with the Area Manager of ST4,
Nick Kirkland. (Doc. 40-1, ¶ 8). York was not required
to secure Kirkland's approval to discipline employees
with letters of reprimand or suspensions but was required to
obtain Kirkland's approval, as well as the approval of
Stephanie Davis and the HR Director, Dale Laidlaw, before
terminating an employee. (Doc. 40-1, ¶ 8; Doc. 41-1,
¶ 7; Doc. 41-3, p. 10).
April 6, 2015, a Team Member on Plaintiff's crew, Damien
Fountain, sustained a laceration due to failure to wear
proper PPE - gloves. (Doc.39-1, pp. 71-72; Doc. 40-1, ¶
20). York issued Plaintiff a letter of reprimand for the
incident because he had often noticed Plaintiff's failure
to reprimand his crew for failing to wear proper PPE and York
had to continually remind Plaintiff to tell his crew to wear
proper PPE. (Doc. 40-1, ¶ 21). Plaintiff admits that
York had come to him on occasion and said that he had seen
guys without their gloves on “or something to that
effect.” (Doc. 39-1, pp. 72-73). However, Plaintiff
does not feel it was fair to reprimand him because Plaintiff
was in another building when the incident happened, they had
just had their safety meeting for ST4, and Plaintiff had each
of the Team Members sign a form saying they had been
counseled that morning. (Doc. 39-1, pp. 71-74).
22, 2015, York issued Plaintiff a second letter of reprimand.
(Doc. 39-1, p. 75; Doc. 40-1, ¶ 23). The second letter
of reprimand was because Plaintiff was delinquent in
completing his computer-based training modules
(“CBTs”) - he was 53 days late completing one
module and was similarly delinquent for seven other CBTs.
(Doc. 40-1, ¶ 23). Plaintiff says he was overdue because
the computer that was available for him to complete the CBTs
was in a noisy area where he could not concentrate. (Doc.
39-1, p. 77). Plaintiff never asked if he could take the CBTs
somewhere else because he did not think York would listen to
him. (Doc. 39-1, p. 77). Plaintiff admits that it was
reasonable that he was expected to complete his trainings.
(Doc. 39-1, p. 78).
had observed other problems with Plaintiff's job
performance while York was Team Manager. York sent Plaintiff
numerous emails asking Plaintiff about incomplete, inaccurate
or missing reports, his failure to complete CBTs and other
duties and his failure to properly maintain his work area or
perform housekeeping duties on shift. (Doc. 39-1, pp. 45-55;
Doc. 40-1, ¶ 27). According to York, Plaintiff's
productivity as a Team Coordinator was substandard. (Doc.
40-1, ¶ 25). York created charts every month that
compared the productivity of the four shifts and for October
and November 2015 Plaintiff's shift was outperformed by
two of the other three shifts, for December 2015
Plaintiff's shift was outperformed by all three of the
other shifts, and for January 2016, Plaintiff's shift was
outperformed by one of the other shifts. (Doc. 40-1, ¶
25; Doc. 40-3, pp. 15-18). Plaintiff disagrees with
York's assessment of the production data. (Doc. 40-3, p.
6, ¶ 54).
October 1, 2015, York emailed Plaintiff complaining that
Plaintiff had failed to put an issue reporting form on
quarantined coils or log the quarantined coils in the
spreadsheet that morning, resulting in the quarantined coils
not being recorded in the computer system. (Doc. 39-1, pp.
78-79). Plaintiff asserts that the issue reporting form could
have gotten knocked off because they were double stacking
coils in the quarantine area and there were big fans that
could have blown it off. (Doc. 39-1, pp. 58-59, 81).
According to York, it was Plaintiff's responsibility to
place issue reporting forms on the coils and to check the
quarantine bay before the end of shift to confirm that no
coils were left without issue reporting forms for the next
shift. (Doc. 40-1, ¶ 30). York reports that he had
experienced similar issues with Plaintiff on September 28 and
September 29. (Doc. 40-1, ¶ 30). Josh Abel, a
Coordinator who would relieve Plaintiff's shift, brought
to York's attention multiple times that Plaintiff had
failed to properly label or move coils. (Doc. 40-1, ¶
32; Doc. 41-4, ¶ 19). In the Oct. 1 email, York notified
Plaintiff that he was going to draw up a Performance
Improvement Plan (“PIP”) for Plaintiff. (Doc.
39-1, p. 79).
decided to place Plaintiff on a Performance Improvement Plan
(“PIP”) after consulting with Ms. Davis. (Doc.
41-2, ¶ 20). Davis drafted the PIP memorandum which was
signed by Plaintiff on October 15, 2015, with York's
input. (Doc. 40-1, ¶ 34; Doc. 41-2. ¶ 22; Doc.
41-3, pp. 42-43, Doc. 39-3, pp. 19-20). A memorandum
addressed to Plaintiff and signed by Plaintiff on October 15,
2015 stated that the PIP is “a written set of
expectations designed to assist you in understanding your
performance expectations and how that relates to the overall
success of the organization.” (Doc. 39-3, p. 15). The
memorandum listed the following areas of performance
expectations that Plaintiff needed “to focus on to
ensure [his] success as a Shift Coordinator:”
■ Create an environment where Team members know that
standing around waiting is not acceptable. Also, encourage
them to communicate with the cranes to stock their areas.
■ Regardless of what is passed down, it is your
responsibility once your shift starts to make sure all
information is correct.
■ Above all safety is first and foremost. Kenard needs
to enforce this on his team. When a safety rule is broken,
progressive discipline must be administered.
■ This job requires multi tasking. Develop time
management skills in order for tasks to be completed as
■ Kenard needs to manage all aspects of this Team. He
needs to be more active in the overall state of the business
during his shift. He needs to spend more time on the mill
floor interacting and coaching other Team Members. (Manage By
Walking Around) He is expected to keep a weekly report that
documents this activity. Kenard needs to manage his
Team's CBT's, as well as his own to ensure
(Doc. 39-3, pp. 15-16). The memorandum stated that
Plaintiff's “[f]ailure to meet these performance
expectations may result in termination.” (Doc. 39-3, p.
16). The PIP memorandum also stated that they “would
meet formally every 4 weeks for 90 days to assess how you are
progressing towards these goals.” (Doc. 39-3, p. 16).
the 30-day period after Plaintiff's PIP was implemented,
York observed numerous performance issues by Plaintiff,
including: Plaintiff's failure to submit any Near Miss
cards, a serious quality failure on Plaintiff's shift,
Plaintiff's failure to follow York's instruction to
move a particular coil to quarantine during his shift,
Plaintiff's failure to send York a requested status
report, Plaintiff's failure to pack up a list of coils
during his shift as directed, Plaintiff's Team
Members' failure to properly communicate with the crane
operator, Plaintiff's Team Members were observed standing
around idly instead of attending to needed tasks and
Plaintiff's failure to complete his CBTs as directed.
(Doc. 40-1, ¶¶ 40-47). York and Davis met with
Plaintiff for the 30-day review of his PIP on November 17,
2015. (Doc. 40-1, ¶ 39). York prepared a spreadsheet
that listed the five areas the PIP stated he needed
improvement in and also included a few additional specific
performance issues to be addressed, including in relation to
the third listed performance area involving safety, that
Plaintiff “does not participate as often as he should
in the Near Miss Program.” (Doc. 39-3, pp. 18-20; Doc.
40-1, ¶ 39; (Doc. 41-2, ¶ 24). At the 30-day review
York told Plaintiff that he had not seen any improvement in
his performance in the areas identified in the PIP and in
fact, his performance was worse in some of the areas. (Doc.
40-1, ¶ 39; Doc. 41-2, ¶ 24). Plaintiff reports
that he “had a comment” for each of the
performance issues York identified. (Doc. 45-3, p. 40-41).
York asked Plaintiff how he could help Plaintiff improve, but
Plaintiff denied any assistance. (Doc. 40-1, ¶ 39; Doc.
41-2, ¶ 24).
and Davis met with Plaintiff for his 60-day review of the PIP
on December 17, 2015. (Doc. 40-1, ¶ 48). Prior to the
meeting York reports that he had become quite frustrated with
Plaintiff and his failure to improve. (Doc. 40-1, ¶ 48).
Plaintiff had still not submitted a single Near Miss card.
(Doc. 40-1, ¶ 48). York emailed Plaintiff numerous times
between his 30-day review and his 60-day review regarding
quality issues with coils Plaintiff was responsible for,
Plaintiff's failure to follow instructions or complete
tasks assigned, and his failure to accurately complete
reports and other necessary logs. (Doc. 40-1, ¶¶
49-54). Plaintiff had explanations for some of his failures,
but York found the explanations to be unsatisfactory excuses.
(Doc. 40-1, ¶¶ 52, 54). During the 60-day review,
York told Plaintiff he had seen no improvement in the
identified areas and specifically discussed Plaintiff's
failure to submit any Near Miss Cards over the course of his
PIP. (Doc. 40-1, ¶ 55). According to York and Davis,
Plaintiff responded that he did not think the Near Miss Card
program was worthwhile and that he had no interest or
intention of participating in it. (Doc. 39-4, pp. 80-81;
40-1, ¶ 55; Doc.41-2, ¶ 25). Plaintiff testified at
his deposition that he does not think the Near Miss cards
were worthwhile because “a lot of time, the problem
never gets fixed.” (Doc. 39-1, pp. 98-99). After
Plaintiff indicated he would not participate in the Near Miss