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Lewis v. United States Steel Corp.

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

December 13, 2019




         This case is before the court on Defendant United States Steel Corp.'s (“Defendant”) Motion for Summary Judgment. (Doc. # 22). The Motion has been fully briefed (see Docs. # 23, 26, 28) and is ripe for review. After careful review, because of the muddied nature of the Rule 56 record and for the reasons discussed below, Defendant's Motion (see Doc. # 22) is due to be denied.

         Plaintiff claims that Defendant intentionally discriminated against him based on his race (African-American) in violation of Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981.[1] (Doc. # 1). In particular, Plaintiff contends that Defendant terminated his employment because of his race and/or that race was a motivating factor that prompted Defendant to discharge him. In support, Plaintiff asserts that Defendant treated a similarly-situated Caucasian employee, Ray Stanford, more favorably than him, notwithstanding the fact that they were disciplined for violating the same two Cardinal Safety Rules (which are addressed in more detail below). Defendant argues that Plaintiff's claim necessarily fails because Plaintiff cannot make out a prima facie case of race discrimination, and, alternatively, there is no showing of pretext on the part of Defendant. (Doc. # 23 at 14-15).

         I. Factual Background[2]

         The court first addresses Plaintiff's employment history with Defendant, the incident at issue that led to his discharge, and his ultimate discharge. The court then turns to Plaintiff's claim of race discrimination, assessing relevant information about Ray Stanford-Plaintiff's proposed comparator.

         A. Plaintiff's Employment History

         Plaintiff is an African-American male who worked for United States Steel Corp. (“Defendant”) at the Fairfield Works pipe mill from August 20, 2000 to October 20, 2015.[3]While employed, Plaintiff was a member of the United Steelworkers Union (“Union”). (Id. at 26). Plaintiff's Union contract, known as the Basic Labor Agreement (“BLA”), contained a grievance and arbitration process, as well as information regarding a Civil Rights Committee that allowed members to file a civil rights complaint if they believed they were discriminated against. (Id. at 27-28, 70, 71; Doc # 24-2 at ¶ 8).

         Plaintiff began his employment with Defendant in an entry level position -- what Plaintiff terms a general laborer -- which was designated as a “box one” position. (Doc. # 24-5 at 67-68). A short time thereafter, Plaintiff was promoted to a “box two” position, which came with more responsibilities and job duties, such as materials handling and crane operations. (Id. at 68). Plaintiff first began working as a crane operator in 2001. (Id. at 92-93). In that position, Plaintiff worked structured shifts. For example, there was the A turn (or “shift”), where an employee worked from 11:00 p.m. to 7:00 a.m.; the B turn, from 7:00 a.m. to 3:00 p.m.; and the C turn, from 3:00 p.m. to 11:00 p.m. (Doc. # 24-1 at 26). Generally, an employee would not work the same shift week to week, and each shift had its own shift manager. (Id. at 28).

         Additionally, Plaintiff was required to attend safety training and receive tailored instruction. In 2001, when Plaintiff first began working as a crane operator, there was a system in place where union workers would train employees on crane operations before starting a job. (Id. at 83). However, when Plaintiff began operating a crane again in 2015[4] (see Id. at 93), he testified that he did not receive any training in such a manner, in part because Defendant had eliminated that system. (Id. at 83-84, 155-56). Plaintiff was also scheduled to attend a mandatory crane Refresher Class on August 27, 2015, but he did not show up. (Doc. # 24-1 at 211-12).

         Indeed, Plaintiff does not recall attending any overhead crane safety training in 2015 even though they were required.[5] (Id. at 97-98). He also testified that he was unaware of the then-applicable proper procedures for boarding and debearding a crane because he had not been trained on those procedures since 2001, and the procedures in 2001 were different from those in 2015. (Id. at 157). Defendant, however, contends that Plaintiff was “contacted” regarding crane safety training, energy control training, and Cardinal Safety Rules from January to March 2015. (Doc. # 27-1 at 3).

         As an employee, Plaintiff was required to abide by certain rules, policies, and procedures. There were specific rules, namely Cardinal Rules, that, if violated, could result in discharge. (Doc. # 24-5 at 71). Some of the Cardinal Rules include (1) wearing fall protection when boarding a crane, (2) following energy control lock-out/tag-out/tryout including hazardous energy control procedures, and (3) adhering to the procedures for boarding and deboarding cranes. (Id. at 75, 80, 81).

         With respect to these rules, the Rule 56 record demonstrates that throughout Plaintiff's employment, he had received approximately five written warnings for the violation of safety or other work rules: (1) on December 15, 2000, Plaintiff received a written warning for failing to wear gloves while handling materials; (2) on July 25, 2010, Plaintiff received a written warning for leaving work 1.25 hours early without notifying his shift manager; (3) on March 4, 2013, Plaintiff received a 5-day suspension subject to discharge for failing to report an incident; (4) on December 18, 2014, Plaintiff received a written warning for damage to company property; and (5) on December 18, 2014, Plaintiff received a written warning for unsatisfactory work. (Doc. # 24-6 at 12-17). However, only one of these violations (the March 4, 2013 warning for failure to report an incident) resulted in a five-day suspension subject to discharge. (Id. at 14).

         B. The August 29, 2015 Crane Incident

         On August 29, 2015, Plaintiff was working the B shift, which ended at 3:00 p.m. (Doc. # 24-5 at 104). During this shift, Plaintiff's shift manager was Jared Gibson, a Caucasian male. (Docs. # 24-1 at 27; 24-5 at 105). Plaintiff was operating Crane 109 when it suddenly broke down. (Doc, # 24-5 at 105). Plaintiff testified that he called Gibson to inform him that the crane had broken down, and Gibson said he would send maintenance to fix it. (Id.). Plaintiff does not recall Gibson telling him to stay with the crane until maintenance arrived.[6] Plaintiff waited from 2:30 p.m. to 3:00 p.m. for maintenance, but no one came. (Id. at 106). When Plaintiff's shift ended at 3:00 p.m., he deboarded the crane -- without notifying Gibson -- and left. (Id. at 106-07). Plaintiff testified that this was the protocol he remembered from when he first received his crane operation training in 2001. (Id. at 82, 92). However, as the Rule 56 record reflects, this was not the protocol in place when Plaintiff deboarded the crane on August 29, 2015. Shea Moses, a Caucasian male who is employed as the area manager, testified that the protocol requires the operator to stay in the crane and wait for another crane to push the broken crane to the bumper so the operator could safely exit. (Doc. # 24-1 at 67). However, because Plaintiff did not attend all of the required safety trainings, he claims he was unaware of this change in protocol. (Doc. # 24-5 at 97-98).

         As Plaintiff was leaving his shift, he passed Ray Stanford -- the employee who was taking over the next shift -- and informed him that the crane had malfunctioned, and that maintenance had not yet been up to fix it. (Id. at 107). Approximately two hours after Plaintiff left work, he received a call from Gibson who told him that he was not supposed to leave the crane. (Id. at 109). Then, an hour after that phone call, Plaintiff received another call telling him to come back to the facility. (Id.). Plaintiff complied and met his Union representative, Martin Edwards, at the facility. (Id. at 110). Plaintiff was approached by Chip Meyers (another Caucasian male who was employed as a shift manager), Moses, and others. (Id. at 111). Plaintiff told Meyers and Moses of the events that had taken place, and he also told them that he “didn't know about the harness or lock-out, ” and he just followed protocol from “previous practice.” (Id. at 114).

         Plaintiff testified that he went back to work two days later and resumed crane operations. (Id. at 120). However, Plaintiff was involved in another incident with a crane. (Id.; Doc. # 24-2 at 76). Plaintiff lost control of the crane he was operating, and it swung and hit a rail. (Doc. # 24-2 at 76). After this second incident, Plaintiff was brought to his supervisor's office, stayed there for three hours, was told to “clock out” (meaning his badge would be deactivated), and that they would let him know what would happen. (Id. at 120-21; Doc. # 24-7 at 31).

         Subsequently, on September 15, 2015, Defendant held a 9B fact-finding hearing[7] regarding the August 29, 2015 incident. (Doc. # 24-1 at 96-97, 189; Doc. # 27-1 at 2). This was the only time Defendant interviewed Plaintiff regarding the incident. (Doc. # 24-1, Moses Dep., at 165). As a result of the 9B hearing, six employees were disciplined. Four members of management -- Shea Moses, the area manager, Bill Dittrich, a labor relations supervisor, Steven Bauer, a manager of employee relations, and Pat Mullarkey, the plant manager for Fairfield Works (with input from others) -- determined the severity of discipline that each employee received (see Doc. # 24-2 at 100):

1. Jared Gibson, a Caucasian male who was employed as a shift manager, received a five-day suspension subject to discharge for violating numerous Cardinal Safety Rules, both in relation to the August 29, 2015 incident and another incident. (Doc. # 24-8 at 15). Gibson was discharged on September 10, 2015. (Id.).
2. Chip Meyers, a Caucasian male who was employed as a shift manager, received a five-day suspension subject to discharge for directing an employee to “go up to the crane that wasn't locked out” without fall protection. Meyers was subsequently discharged. (Doc. # 24-1 at 162).
3. Sam Kamau, an African-American male who was employed as a crane operator, received a five-day suspension not subject to discharge for unsafe operation of a crane. (Doc. # 24-1 at 73-74, 184). Kamau was not discharged.
4. Ed McLendon, an African-American male who was employed as the maintenance engineer, received a five-day suspension not subject to discharge for failing to lock out the crane rail.[8] (Doc. # 24-1 at 184-85). McLendon was not discharged.
5. Ray Stanford, a Caucasian male who was employed as a crane operator, received two five-day suspensions subject to discharge for violation of Cardinal Rules, failing to wear fall protection and failing to lock-out/tag-out the crane. (Doc. # 24-1 at 182). Stanford was not discharged.
6. Plaintiff, an African-American male who was employed as a crane operator, received two five-day suspensions subject to discharge for violation of Cardinal Rules, failing to wear fall protection and failing to lock-out/tag-out the crane. (Doc. # 24-7 at 48-49). Plaintiff was subsequently discharged.

         C. Plaintiff's Discharge

         Based on the facts uncovered at the 9B hearing, Plaintiff was formally terminated[9] from employment on October 20, 2015.[10] (Doc. # 24-5 at 151). Defendant determined he violated two Cardinal Rules: (1) failure to wear fall protection, and (2) failure to lock-out/tag-out the crane. (Doc. # 24-7 at 48-49). Dittrich was the “representative [who] issued the discipline against [Plaintiff] and then performed the initial investigation at the 9B hearing.” (Id. at 19). Dittrich testified that Steven Bauer discussed with him the discipline that should be issued. (Id. at 22-23). Both Dittrich and Bauer serve in the Labor Relations Department. (Doc. # 24-1 at 162-63). Bauer made the final decision to issue the discipline to Plaintiff, and Dittrich implemented the discharge the day following the 9B hearing. (Id. at 23). Dittrich testified that, in making the decision to initially suspend Plaintiff, he relied on the information he received during his discussions with Gibson and Moses and his recollection that Gibson told Plaintiff to stay in the crane and wait for maintenance. (Id. at 22; Doc. # 24-3 at 136). Dittrich also relied on the initial first report (the “root cause report”) from the safety department. (Id. at 22; Doc. # 24-3 at 136).

         Dittrich testified that, with respect to Plaintiff and Stanford, he had to decide whether to affirm, revoke, extend, modify, or convert each discipline into a discharge. (Doc. # 24-7 at 45-46). He stated that the decision depended heavily on the facts of the case and whether “he ha[d] the evidence to be able to have the discipline affirmed . . . all the way through arbitration.” (Id. at 46). Under the Union agreement, an employee cannot be discharged immediately. (Id. at 20). Rather, there is a process that must be followed when an employee is terminated. (Id.). And, in determining whether it would be appropriate to convert a suspension subject to discharge to an actual discharge, Dittrich testified that a lot depends on “the corporate policies with regard to [the] discipline, [and] the arbitral precedent with the regard to [the discipline].” (Id. at 47). Dittrich testified that a violation of a Cardinal Rule, which is a dischargeable violation, could be cause for discharge if “there were no evidentiary problems and [the employee] did violate the rule.” (Id.). In this instance, because he stated he found no evidentiary problems with Plaintiff's case, and, at least in Defendant's eyes, [11] Plaintiff admitted wrongdoing, Dittrich converted Plaintiff's suspension to discharge. (Id. at 49).

         The record evidence presents a question about whether Plaintiff was terminated from employment or resigned. Plaintiff testified that he received his discipline and then received notice that his discipline had been converted to discharge after the 9B hearing. (Doc. # 24-5 at 22-23). There is documentation contained in an excel spreadsheet that Plaintiff was “terminated” in 2015, rather than resigned. (Doc. # 24-2 at 40). Subsequently, Plaintiff spoke with his Union representatives, who then talked to Dittrich to confirm Plaintiff's discharge. (Doc. # 24-5 at 22-23). After speaking with his Union representatives, Plaintiff sent in a letter of resignation on October 26, 2015, notifying Defendant that his last “physical working day” was August 29, 2015, and did so because that would permit him to receive a distribution from his 401(k). (Id. at 33; Doc. # 27-1 at 1; Doc. # 24-2 at 57). If Plaintiff had not “resigned, ” he would not have been able to do so.

         Plaintiff did not file any further grievance or request arbitration because he believed, based upon his communications with the Union, [12] that he had already gone through the entire appeal process and his discharge was final. (Doc. # 24-5 at 24, 27). Specifically, Plaintiff testified:

After I received my letter for termination, . . . I called the union and they said they were going to set up another hearing. So when I went to the union, I think his name was Dietrich [sic] in Pittsburgh, had told him that I was terminated, that [there] was[] no need for another hearing. So they told - the union advised me, they said what you - I would still be considered employed for I think six months where I won't be able to get my - where I could still have insurance, but at the time I needed money to pay my bills. . . . After I talked to my union rep, they talked to Dietrich [sic] and he said I was terminated and then, yes, [I sent in a letter of resignation].

(Id. at 23).

         After his termination, Plaintiff began employment with U.S. Pipe. (Id. at 44). However, Plaintiff only worked there from October 12, 2015 to October 29, 2015. He left employment because he did not feel safe working there. (Id. at 44-49). After U.S. Pipe, Plaintiff sought other employment, but he was unsuccessful. It was not until April 2016 that he began working as a production team member with North America On-Site. (Id. at 51-54).

         D. Plaintiff's Comparator ...

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