Bullington v. Jefferson Southern Corporation

MOTION for Summary Judgment with Brief In Support

N.D. Ga.July 10, 2017

29867386 v1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION JOHN BULLINGTON, Plaintiff, v. JEFFERSON SOUTHERN CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 4:16-CV-00245- HLM-WEJ DEFENDANT JEFFERSON SOUTHERN CORPORATION’S MOTION FOR SUMMARY JUDGMENT COMES NOW, Defendant Jefferson Southern Corporation ("JSC" or "Defendant") and, pursuant to FED. R. CIV. P. 56 and Local Rule 56.1, hereby moves the Court for summary judgment in JSC’s favor as to each of Plaintiff's claims pending before the Court, on the grounds that there are no genuine issues of material fact and JSC is entitled to judgment as a matter of law. The undisputed evidence conclusively demonstrates Plaintiff cannot meet his burden of establishing claims for discrimination or retaliation under 42 U.S.C. § 1981, and JSC is therefore entitled to summary judgment on each of the counts pending before this Court. JSC's motion is supported by a statement of undisputed material Case 4:16-cv-00245-HLM-WEJ Document 63 Filed 07/10/17 Page 1 of 4 29867386 v1 2 facts, a memorandum of applicable law and facts, and evidentiary submissions filed contemporaneously herewith. WHEREFORE, Defendant Jefferson Southern Corporation respectfully requests this Court enter summary judgment in its favor and dismiss Plaintiff's claims with prejudice. Respectfully submitted this 10th day of July, 2017. By: s/ Jon M. Gumbel Jon M. Gumbel jgumbel@burr.com GA State Bar No. 315195 BURR & FORMAN LLP 171 Seventeenth Street NW, Suite 1100 Atlanta, Georgia 30363 Telephone: 404.685.4248 Attorney for Defendant Case 4:16-cv-00245-HLM-WEJ Document 63 Filed 07/10/17 Page 2 of 4 29867386 v1 3 CERTIFICATION OF COUNSEL I hereby certify that the foregoing DEFENDANT JEFFERSON SOUTHERN CORPORATION’S MOTION FOR SUMMARY JUDGMENT has been prepared in Times New Roman, 14 point font, one of the font and point selections approved by the Court in Local Rule 5.1(C). /s/ Jon M. Gumbel Jon M. Gumbel Georgia Bar No. jgumbel@burr.com Attorney for Defendant BURR & FORMAN LLP 171 Seventeenth Street, N.W. Suite 1100 Atlanta, Georgia 30363 Telephone: (404) 815-3000 Facsimile: (404) 817-3244 Case 4:16-cv-00245-HLM-WEJ Document 63 Filed 07/10/17 Page 3 of 4 29867386 v1 4 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document by Notice of Electronic Filing or, if the party served does not participate in Notice of Electronic Filing, by U.S. First Class Mail, hand delivery, overnight, fax or email on this 10th day of July, 2017: Amanda A. Farahany Barrett & Farahany, LLP 1100 Peachtree Street NE, Suite 500 Atlanta, GA 30309 s/ Jon M. Gumbel Jon M. Gumbel Georgia State Bar No. 315195 OF COUNSEL BURR & FORMAN LLP 171 Seventeenth Street NW, Suite 1100 Atlanta, Georgia 30363 Case 4:16-cv-00245-HLM-WEJ Document 63 Filed 07/10/17 Page 4 of 4 29985858 v1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION JOHN BULLINGTON, Plaintiff, v. JEFFERSON SOUTHERN CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 4:16-CV-00245- HLM-WEJ DEFENDANT JEFFERSON SOUTHERN CORPORATION'S MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT MOTION Defendant Jefferson Southern Corporation ("JSC" or "Defendant") submits this Memorandum in Support of its Motion for Summary Judgment filed simultaneously herewith and respectfully requests the dismissal with prejudice of all claims asserted by Plaintiff John Bullington ("Bullington" or "Plaintiff"). I. INTRODUCTION On or about August 11, 2016, Plaintiff Bullington, a former employee of JSC, filed his Complaint, alleging JSC violated 42 U.S.C. § 1981 by discriminating against him based on his race (Caucasian) and unlawfully retaliating against him. More specifically, Plaintiff alleges that: (1) he was discriminated against when JSC Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 1 of 40 26837163 v29985858 v1 2 chose an outside candidate to fill a vacant Safety Officer position rather than promote Plaintiff to that position; and (2) that his eventual discharge was in retaliation for his alleged complaint of reverse race discrimination. However, as shown by the uncontroverted evidence, including Plaintiff's admissions, Plaintiff's race and retaliation claims are subject to dismissal for the reasons specifically discussed below. In regards to his claim of reverse race discrimination, Plaintiff is unable to satisfy his burden to prove he was qualified for the promotion he sought, that similarly situated employees of a different race were treated more favorably or that JSC's selection of a more qualified candidate for the position he sought was pretext for race discrimination. Plaintiff is also unable to satisfy his burden of proof in regards to his claim of retaliatory discharge as he is unable to show he engaged in protected activity, a causal connection between any protected activity and his discharge or that he would not have been discharged but for any alleged protected activity. Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 2 of 40 26837163 v29985858 v1 3 II. SUMMARY OF UNDISPUTED FACTS1 JSC hired Plaintiff as a Training Coordinator on August 12, 2013. (SUMF at ¶ 4). Upon his hire, he received a copy of the JSC Associate Handbook, as well as the JSC Discrimination and Anti-Harassment Policy. (SUMF at ¶ 3). Plaintiff, like all other associates, was subject to JSC’s Workplace Violence Policy. (SUMF at ¶ 61). The Workplace Violence Policy explicitly prohibits “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress.” (Id.). Also, like all other JSC employees, Plaintiff was expected to work as part of a team. Effective teamwork and an even-tempered, composed disposition was critical to his role. In February 2016, JSC’s former Safety Officer2 resigned due to family circumstances. (SUMF at ¶ 40). At that time, JSC began recruiting, both internally and externally, for potential candidates to fill this Safety Officer position. (SUMF at ¶¶ 41, 67-69). Plaintiff submitted an application for the position. (SUMF at ¶¶ 1 This Section of the Memorandum is to assist the Court with a summary of the material undisputed facts. In regards to the more detailed undisputed facts, Defendant refers the Court to the actual Statement of Undisputed Material Facts (“SUMF”) submitted contemporaneously herewith and cited to throughout this Memorandum. 2 At that time, the Safety Officer position was called "Safety Assistant Manager." JSC has since changed the title of the position to "Safety Officer" but the responsibilities and rank of the position within the Company remain unchanged. (SUMF at ¶15). Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 3 of 40 26837163 v29985858 v1 4 40, 42). At that time, Plaintiff was still employed by JSC as the Training Coordinator and had been in that position for approximately 1 ½ years. (SUMF at ¶¶ 11-14). The Safety Officer had traditionally reported to Human Resources Manager, Demetria Strozier (African-American) and would continue to do so. (SUMF at ¶ 14). However, both Mrs. Strozier and Plant Manager Ray Wright (Caucasian) were responsible for making and did ultimately make the hiring decision for the vacant Safety Officer position. (SUMF at ¶¶ 13, 41, 67-70). Mrs. Strozier and Mr. Wright interviewed three outside candidates and in the end, hired Kristen Guin (African-American) for the position of Safety Officer. (SUMF at ¶¶ 67-70). Plaintiff was not chosen based upon his performance history and specifically, his failure to meet established job related goals as well as his lack of experience and qualifications for the Safety Officer promotion. (SUMF at ¶¶ 28- 39, 42, 45). As shown by her application and resume, Ms. Guin's experience and training in the area of "Safety Management" far exceeded that of Plaintiff's, particularly with regard to OSHA regulations and management. (SUMF at ¶¶ 19- 25; 71-74, 76-79). Even Plaintiff himself testified: (1) that there was always the chance that someone from the "outside world" was more qualified than him for the job; (2) that, absent additional training, he would not have been qualified for that Safety Officer position; and (3) that he had no previous experience as a primary Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 4 of 40 26837163 v29985858 v1 5 manager of OSHA or filing OSHA documentation on behalf of an employer and the like. (SUMF at ¶¶ 42-44). On February 15, 2016, Mrs. Strozier met with Plaintiff regarding his application for the Safety Officer opening. (SUMF at ¶ 42). Mrs. Strozier reported to Plaintiff that he did not have adequate safety experience or the training required for the position. (SUMF at ¶¶ 42-45). She also explained to him that as a Training Coordinator, his failure to meet performance goals in 2014 and 2015 disqualified him from promotion and hire into the Safety Officer position. (SUMF at ¶ 46). Plaintiff had received “below expectation” ratings in his performance evaluations administered by Mr. Wright, his supervisor, for both 2014 and 2015, largely due to his failure to meet specified, annual performance goals. (SUMF at ¶¶ 28-39, 42, 45). At no time during this meeting did Plaintiff voice any concerns regarding JSC’s hiring practices or any other alleged discrimination. (SUMF at ¶ 45). According to Plaintiff, his failure to meet goals was “the main topic of conversation at this meeting. (SUMF at ¶ 45). On February 25, 2016, approximately two weeks after Mrs. Strozier’s meeting with Plaintiff, Plaintiff approached Marcus Smith (African-American), Human Resources Coordinator, to complain about not being awarded the Safety Officer position. (SUMF at ¶ 47). In this meeting Plaintiff questioned Mr. Smith as to why Ms. Guin was hired for the Safety Officer position over him when she Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 5 of 40 26837163 v29985858 v1 6 did not have a four-year degree. (SUMF at ¶ 48). Plaintiff also accused Mrs. Strozier of not hiring Caucasians in the Human Resources Department. (Id.). Plaintiff admitted that he became agitated in this meeting, “probably raised his voice", may have used the words “f***,” “damn,” and “bullshit” to Mr. Smith. (SUMF at ¶¶ 49-50). Plaintiff also admitted that he probably accused Mr. Wright and Mrs. Strozier of sitting "on a pedestal and look[ing] down on everyone else.” (SUMF at ¶ 49). Plaintiff also admitted he “may have told Mr. Smith “[he] didn’t give a f*** anymore.” (Id.). According to Mr. Smith, Plaintiff used profanity, including the word “f***” multiple times, used other profanity, yelled, screamed and pounded on the desk during the meeting. (SUMF at ¶ 50). In his career at JSC, Mr. Smith had never witnessed the level of unprofessionalism displayed by Plaintiff in this meeting. (Id.). After this meeting, Mr. Smith immediately reported to Mrs. Strozier the nature of Plaintiff's discussions and behavior in the meeting. (SUMF at ¶ 53). Mrs. Strozier and Mr. Smith then immediately met with Mr. Wright to have Mr. Smith explain to Mr. Wright the nature and subject matter of his conversation with Plaintiff. (SUMF at ¶¶ 54-55). Mr. Wright decided that they needed to meet with Plaintiff to investigate his concerns and his belief that he should have been promoted into the Safety Officer position. (SUMF at ¶¶ 55-56). In this meeting, Mr. Wright asked Plaintiff about his concerns and allegations. However, Plaintiff Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 6 of 40 26837163 v29985858 v1 7 apologized to Mr. Smith for his behavior, said he had nothing negative to say and told management that he loved his job. (SUMF at ¶¶ 56-57). Following his initial meeting with Plaintiff, Mr. Smith believed that Plaintiff’s conduct presented a potential threat to employees at JSC. (SUMF at ¶ 60). Mr. Smith testified as follows: “I mean, the way he lashed out at the time, yes…. if somebody would go from that to – zero to a hundred with just me… you just don’t know what that person would do, right?” (Id.). Mrs. Strozier sent Mr. Wright a message at 2:45 a.m. that same night stating that she thought Plaintiff should be terminated because she felt uncomfortable and unsafe with Plaintiff continuing to work at JSC due to his “loose cannon” behavior and her fear that Plaintiff may be violent given his aggression to Mr. Smith. (SUMF at ¶ 61). Mrs. Strozier’s recommendation for termination was based on the fact that Plaintiff felt entitled to the promotion to Safety Officer despite his subpar performance, despite his lack of safety management knowledge, and in spite of being presented with the reasoning behind his denial of the promotion and the fact that Plaintiff engaged in an aggressive outburst toward Mr. Smith regardless, and then later denied having any issues with the promotion decision. (SUMF at ¶ 62). Mr. Wright agreed with this recommendation by Mrs. Strozier that Plaintiff’s conduct warranted termination. (SUMF at ¶ 63). Mr. Wright had authority to terminate – Mrs. Strozier did not have authority to termination on her Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 7 of 40 26837163 v29985858 v1 8 own. (Id.). Later that day, Mr. Wright met with Plaintiff and advised him that he was terminated for two reasons: (1) his violation of JSC’s Workplace Violence Policy which prohibits “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress;” and (2) that JSC could no longer trust in Plaintiff as the new hire trainer given his behavior and statements made to Mr. Smith in their meeting. (SUMF at ¶¶ 64-65). III. ARGUMENT AND CITATION OF AUTHORITY SUMMARY JUDGMENT STANDARD Summary judgment is not a disfavored procedural shortcut, Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), but mandated if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; see FED. R. CIV. P. 56(c). Substantive proof burdens apply at this stage as at trial, and an issue is "material" if it is "outcome-determinative." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). When, as here, the nonmovant has the burden of proof at trial, the movant need only point out the nonmovant's failure to support each element of each claim with substantial evidence. Celotex, 477 U.S. at 323, 325. Rule 56 "applies in job discrimination cases just as in other cases." Wilson v. B/E Aerospace, Inc., 376 F. 3d 1086 (11th Cir. 2004). Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 8 of 40 26837163 v29985858 v1 9 “A nonmoving party, opposing a motion for summary judgment supported by affidavits, cannot meet the burden of coming forth with relevant competent evidence by simply relying on legal conclusions or evidence which would be inadmissible at trial.” Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991); see also FED. R. CIV. P. 56(c) (1)(B), (c)(4). The evidence “cannot consist of conclusory allegations or legal conclusions.” Avirgan, 932 F.2d at 1577. Unsupported self-serving statements by the nonmovant are insufficient to avoid summary judgment. See Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714 (11th Cir.1984). For a dispute about a material fact to be “genuine,” the evidence must be such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A. PLAINTIFF'S CLAIM OF DENIAL OF PROMOTION BASED ON HIS RACE Claims of discrimination relying on circumstantial evidence are evaluated using the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Moss v. City of Atlanta Fire Department, No. 1:14-cv-1552-WSD, 2015 WL 9451060, at *4 (N.D. Ga. 2015); Maddox-Jones v. Bd. of Regents of Univ. Sys. of Ga., 448 Fed Appx. 17, 19 (11th Cir. 2011) (per curiam). Under the McDonnell Douglas framework, in relation to a denial of promotion, disparate treatment claim, a plaintiff establishes a prima facie case by Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 9 of 40 26837163 v29985858 v1 10 showing (1) he is a member of a protected class; (2) he was qualified for the employment position in question; (3) he applied for the employment position in question and was rejected; and (4) the employment position remained open or was filled by a person outside the protected class to which the Plaintiff belongs. See Jackson v. Cronic, No. 2:11-CV-0058-WCO-SSC, 2012 WL 12864368, at *13 (N.D. Ga. July 31, 2012). The second step of the McDonnell Douglas analysis requires a defendant to rebut a plaintiff's prima face case by producing a legitimate, nondiscriminatory reason for the alleged conduct. This burden is “exceedingly light.” Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994). Where a prima facie case is rebutted, a plaintiff has the opportunity to show defendant's stated reasons are pretexts for discrimination. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2002). A plaintiff must show “such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). Despite this burden-shifting framework, the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Wilson, 376 F.3d at 1088. Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 10 of 40 26837163 v29985858 v1 11 Defendant does not contest that Plaintiff is a member of a "protected class" under Section 1981. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) (analyzing reverse race discrimination claim under Section 1981). Also, Defendant does not contest that Plaintiff applied for the Safety Officer position and was not promoted in favor of hiring an African-American candidate. However, as clearly shown by the evidence, including Plaintiff's sworn admissions, Plaintiff was not qualified for the Safety Officer position and clearly not as qualified as Ms. Guin, the candidate chosen for the job. (SUMF at ¶¶ 7-9, 22-25, 28-46, 69-79). Thus, as shown below, Plaintiff is unable to prove his prima facie burden of proving that he was "qualified" for the Safety Officer position and based on the same facts and admissions by Plaintiff, Defendant clearly satisfies its "exceedingly light burden" of proof that it chose to hire Ms. Guin over the promotion of Mr. Bullington based on legitimate, nondiscriminatory reasons. Plaintiff was not qualified and was not as qualified as Ms. Guin based on: (1) Plaintiff's lack of experience in regards to the required duties and responsibilities of the Safety Officer position; and (2) due to his performance "track record" as a Training Coordinator for JSC. (SUMF at ¶¶ 7-9, 22-25, 28-46). Plaintiff applied for the Safety Officer position in January 2016 and on February 15, 2016, Mrs. Strozier held a meeting with Plaintiff to explain he was not chosen for the position because the Safety Officer position required more in- Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 11 of 40 26837163 v29985858 v1 12 depth knowledge of OSHA regulations, managing OSHA audits, and accident investigations, among other things, than that possessed by Plaintiff. (SUMF at ¶¶ 42-43). Mrs. Strozier also discussed Plaintiff’s failure to meet his assigned goals in his current position as Training Coordinator as the second reason why he would not be awarded the position. (SUMF at ¶¶ 45-46). As shown by the JSC job description for the Safety Officer job, as testified to by Mrs. Strozier and not materially contradicted by Plaintiff, the Safety Officer position required more in-depth knowledge of OSHA regulations, managing OSHA audits, and accident investigations, among other things, than that possessed by Plaintiff. (SUMF at ¶¶ 7-9, 22-25, 42-46), Ms. Guin also testified that her actual duties as Safety Officer for JSC focused on safety accident/incident investigation, the authoring of safety policy and procedures, the implementation of such policies and procedures, safety audits and inspections within the production departments, discussing safety concerns with JSC production associates, soliciting associate feedback regarding same and conducting training such as workplace violence training. (SUMF at ¶¶ 69-79). Prior to his hire by JSC as its Training Coordinator, Plaintiff was employed by seven different employers. (SUMF at ¶ 6). Each of those seven positions involved teaching automotive classes in various educational institutions. (Id.). Plaintiff’s safety training experience was limited to his teaching certain safety Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 12 of 40 26837163 v29985858 v1 13 related issues in his automotive tech classes. (SUMF at ¶ 7). Prior to working at JSC, Plaintiff had never worked in a manufacturing environment. (Id.). Plaintiff testified that the safety considerations for the machinery involved in automotive tech education is different than that of the machinery involved at JSC. (SUMF at ¶ 8). In his role a Training Coordinator, Plaintiff admittedly did not have: (1) principal responsibility for handling on-site accident investigations; (2) the responsibility of filling out OSHA reports for any on-site accidents; or (3) the responsibility for creating OSHA hazard communication plans for JSC. (SUMF at ¶¶ 22-25). Plaintiff has never designed or implemented an accident occurrence plan. (SUMF at ¶ 24). Plaintiff has never been responsible for representing any employer for purposes of an OSHA on-site investigation or audit. (Id.). Plaintiff admittedly had no previous training or managerial experience as to OSHA safety application in a manufacturing environment or filing OSHA documentation on behalf of an employer and the like. (SUMF at ¶ 24). On the other hand, it is uncontroverted that Ms. Guin possessed fairly extensive OSHA and safety management experience at the time she applied and was chosen for the position of JSC Safety Officer. (SUMF at ¶¶ 69-79). As the Safety Coordinator for Reworx, Ms. Guin's employer just before she was hired by JSC, Ms. Guin was responsible for the safety training of Reworx production employees which Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 13 of 40 26837163 v29985858 v1 14 included training as to the use of Personal Protective Equipment, respirators, workplace hazards associated with tools and machinery, OSHA blood born pathogens and OSHA hazard communications. (SUMF at ¶ 74). As shown by Ms. Guin's resume (which is not challenged by Plaintiff), at the time of her hire by JSC, Ms. Guin was responsible for ensuring that Reworx adhered to OSHA and EPA safety standards and regulations as well as the communication and implementation of changes in these laws to management and associates; inspections and evaluations of the workplace to ensure compliance with ISO, R2, OSHA and e- steward certifications, conducting job hazard analyses and safety risk assessments, the investigation and implementation of corrective measures, representing Reworx management for purposes of surveillance audits, tracking safety training for new and existing employees, coordinating and chairing monthly safety committee meetings, conducting audits and inspections for due diligence purposes, and the like. (SUMF at ¶¶ 73-74). Plaintiff can provide no evidence that he had this level of safety experience and in fact, admits outside candidates may have been more qualified for the position than him, that he would have had to have been trained by JSC in order to perform the duties of the Safety Officer position and that he had no previous experience as a manager of OSHA compliance or filing OSHA documentation on behalf of an employer. (SUMF at ¶¶ 19-25, 44). Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 14 of 40 26837163 v29985858 v1 15 Next, Plaintiff also admits to the evidence in support of the second reason he was not qualified for the Safety Officer position. (SUMF at ¶¶ 28-39). As a JSC Training Coordinator for the previous 1 ½ years, Plaintiff had not performed to a satisfactory level so as to convince Mrs. Strozier and Mr. Wright that he could satisfactorily perform the responsibilities associated with this higher level position and was deserving of the promotion. (SUMF at ¶ 42). Over the course of Plaintiff’s employment with JSC, he received two performance evaluations. (SUMF at ¶ 28). In 2014, as his supervisor, Mr. Wright (Caucasian) drafted and administered Plaintiff's first Performance Evaluation. (SUMF at ¶ 29). In 2015, Mr. Wright also administered Plaintiff's second and final Performance Evaluation. (SUMF at ¶ 35). Mrs. Strozier was not Plaintiff's supervisor during either of the evaluation periods and as such was not responsible for authoring either of Plaintiff's performance evaluations. (Id.). As part of the JSC performance evaluation process, Plaintiff had the opportunity to self-evaluate and his supervisor, Mr. Wright had the opportunity to provide his assessment of Plaintiff's performance on a scale of 1.0 to 4.0 with “1” representing “did not meet expectations” and “4” representing “exceeds expectations.” (SUMF at ¶ 30). Plaintiff received “below expectation” ratings in both of his performance evaluations for 2014 and 2015, largely due to his failure to meet specified, annual performance goals. (SUMF at ¶¶ 29-39). Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 15 of 40 26837163 v29985858 v1 16 As per his first of two performance evaluations in March 2014: (a) On a rating scale of 3 to 4, 3 being "meets expectations" and 4 being "exceeds expectations", Plaintiff evaluated his own previous performance at levels of only 3.0, 3.12 and 3.01, overall, just barely above the "below expectations" threshold. (SUMF at ¶¶ 31-32). (b) Plaintiff also testified that Mr. Wright (Caucasian), his immediate supervisor, discussed with him his failure to make any progress toward the assigned goal of building a defect sample board for JSC. In fact, Plaintiff testified that he had not even completed this "sample board" by the time of his application for promotion to the Safety Officer position and by the time of his eventual discharge in February 2016. (SUMF at ¶ 38). (c) Plaintiff also admits that Mr. Wright negatively evaluated him in regards to his failure to complete goals regarding the identification of areas of training improvement and the development of periodic review training for company associates. (SUMF at ¶ 32). As to his second and final performance evaluation administered by Mr. Wright in September, 2015: (a) Approximately just four months before Plaintiff applied for the Safety Officer position, through this evaluation, Mr. Wright (Caucasian) evaluated Plaintiff as "below expectations" in both categories of "competencies" and "overall." (SUMF at ¶¶ 35-36). (b) Mr. Wright negatively evaluated Plaintiff in regards to his failure to satisfy the goals: (i) of establishing countermeasures to safety issues; (ii) of planning and organization; and (iii) of setting up training days each month for each department. (SUMF at ¶ 36). As shown by the evidence above, Plaintiff clearly fails to satisfy the second requirement of his prima facie burden in that he cannot show that he was "qualified," let alone as qualified as Ms. Guin for the Safety Office position. This Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 16 of 40 26837163 v29985858 v1 17 same evidence clearly supports Defendant's "light burden" of showing a legitimate nondiscriminatory reason for hiring Ms. Guin and not promoting Plaintiff. Finally, Plaintiff's above admissions belie any attempt to prove these non-discriminatory reasons to be pretextual. Jackson, 2012 WL 12864368, at *15 ("In the context of a promotion, the Plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the officer who received the position he coveted… The employer is free to choose its own non-discriminatory selection criterion: [the Court] will not second guess defendant's decision to emphasize qualifications over length of service."). As held by this Court in Jackson v. Cronic, "where the defendants have articulated a legitimate nondiscriminatory reason for not promoting Plaintiff, Plaintiff must “come forward with evidence, including the previously produced evidence [regarding] the prima facie case sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." 2012 WL 12864368, at *14. The Court's “role at this juncture is to evaluate whether the Plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action so that a reasonable factfinder could find them unworthy of credence.” Id. "In making the required pretext showing, a plaintiff is not allowed to recast an employer's proffered Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 17 of 40 26837163 v29985858 v1 18 nondiscriminatory reasons or substitute his business judgment for that of the employer." Id.; See also EEOC v. Fannin Cty, Ga., No. 2:13-CV-225-RWS, 2015 WL 5725697, at *13 (N.D. Ga. Sept. 29, 2015). "Rather, provided that the proffered reason is one that might motivate a reasonable employer, the employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason." Id. Here, Defendant has proffered substantial evidence of two (2) legitimate, nondiscriminatory reasons for its choice to hire Ms. Guin over the promotion of Plaintiff: his relative lack of safety experience and his inability to satisfy previously assigned goals. (SUMF at ¶¶ 42-46). As to the latter and as shown above, Plaintiff does not even attempt to "quarrel" with Defendant's assessment that he had not performed in the past so as to justify a promotion and instead, he "admits" the material evidence supporting part of the decision at issue. He does so through his admissions that he never achieved such Training Coordinator goals as creating a defect board and the like as well as his own self-evaluation which teetered closely on the edge of a performance record below management's expectations. (SUMF at ¶¶ 29-39). Alone, this is enough to support Defendant's motion in regards to Plaintiff's promotion claim. Furthermore, Plaintiff's efforts to "quarrel" with Defendant's assessment of his qualifications for the promotion are immaterial. In this regard, Plaintiff merely Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 18 of 40 26837163 v29985858 v1 19 argues that (1) his familiarity with the JSC machinery as a Training Coordinator should have been more important to JSC than Ms. Guin's actual safety management experience; and (2) the fact that he had completed his college degree when Ms. Guin had not at the time of hire automatically elevated his qualifications over hers. (SUMF at ¶ 86). Plaintiff cannot dispute the uncontroverted evidence showing (1) Ms. Guin's extensive safety/OSHA experience as compared with Plaintiff's teaching experience; (2) Ms. Guin was nearing her college degree at the time of hire; and (3) JSC had hired at least one other Caucasian applicant in the past where a college degree was required and that candidate was approaching his degree at the time of hire. (SUMF at ¶¶ 22-25, 69-79, 87). As such, Plaintiff's quarreling in this regard is nothing more than his attempts to "recast" Defendant's nondiscriminatory reasons for hiring Ms. Guin and substitutions of his own business judgment for that of JSC's. Such is incompetent evidence by which to create a genuine issue of material fact as per the holding by this Court in Jackson and in Fannin Cty. “[W]hen a Plaintiff attempts to demonstrate pretext by contending that he was more qualified than the successful candidate, he must show that the disparities between the successful applicant's and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over Plaintiff." Jackson, 2012 WL Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 19 of 40 26837163 v29985858 v1 20 12864368, at *15. (internal citations omitted). "In the context of a promotion, the Plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the officer who received the position he coveted." Id. "Rather, a plaintiff must show not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by discriminatory animus." Id. "The employer is free to choose its own non-discriminatory selection criterion: [the Court] will not second guess defendant's decision to emphasize qualifications over length of service." Id. at *16. The same standard also applies with respect to JSC's emphasis of safety and OSHA experience over the fact that Ms. Guin had not quite yet earned her college degree at the time of hire. B. PLAINTIFF'S RETALIATION CLAIM Plaintiff's only remaining claim is that he was retaliated against when JSC discharged him because he allegedly complained he was discriminated against in regards to JSC's decision to hire Ms. Guin for the vacant Safety Officer position instead of promoting Plaintiff. Plaintiff's must first "establish a prima facie case of retaliation which “requires evidence of (1) statutorily protected conduct; (2) a materially adverse action; and (3) a causal connection between the protected conduct and the adverse action." Taylor v. Cardiovascular Specialists, P.C., 4 F. Supp. 3d 1374, 1377-1378 (N.D. Ga. 2014) (citing Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013)). "Establishing a prima facie case creates a Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 20 of 40 26837163 v29985858 v1 21 rebuttable presumption that the driving force behind the materially adverse action was an intent to retaliate." Id. at 1378. To rebut this presumption, Defendant may then present a legitimate, non-retaliatory reason for the adverse action. Id. If it does, Plaintiff must come forward with proof that the proffered reason is merely pretext. Id. (citing Brown v. Ala. Dep't of Transp., 597 F.3d 1160, 1181–82 (11th Cir.2010)).3 For these purposes, Defendant concedes the "material adverse action" requirement in that Plaintiff was discharged by Defendant on February 26, 2016 because of his unacceptable behavior at the February 25th meeting with Mr. Smith. (SUMF at ¶¶ 62-65). However, Plaintiff is unable to satisfy the protected activity and causal connection requirements of his burden. Plaintiff is unable to prove the "protected activity" component of his burden because: (1) his overly aggressive, unprofessional and derogatory actions and behavior during this meeting are "unprotected" under applicable law; and (2) the evidence, including his own testimony, shows he did not possess a good faith, objectively reasonable belief that he was the victim of unlawful discrimination. Plaintiff is unable to satisfy his "causal connection" burden because his admissions as to his aggressive and 3 The same legal standard applies to retaliation claims under both Title VII and § 1981. See Butler v. Ala. Dep't of Transp., 536 F.3d 1209, 1215 (11th Cir. 2008); Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008). Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 21 of 40 26837163 v29985858 v1 22 unprofessional behavior during the meeting in which he allegedly complained of race discrimination were the intervening nondiscriminatory cause of his discharge. Based on this same evidence, Plaintiff is unable to prove that Defendant's decision to discharge him based on his unacceptable behavior was somehow pretextual. A. The "activity" asserted by Plaintiff was unprotected under applicable legal principles. Mr. Smith testified that during his February 25th meeting with Plaintiff, Plaintiff used multiple forms of profanity, including the word “f***” multiple times, yelled, screamed and pounded on the desk. (SUMF at ¶¶ 49-50). More specifically, Mr. Smith stated that Plaintiff angrily and aggressively yelled, "I don't give a fuck, I'm the man for the damn job." (SUMF at ¶ 50). Mr. Smith also stated that when referring to his immediate manager, Mrs. Strozier (African-American) and the manager of the entire JSC facility, Mr. Wright (Caucasian), Plaintiff stated, "the plant manager and HR manager sit on a f***ing pedestal and look down on people as to say they are better than everyone, like they are f***ing God." (Id.). Mr. Smith also stated that Plaintiff said, “I don't care, what I say can be repeated back, I do not give a f*** anymore. I spoke to my wife and she has given me the OK to shoot the middle finger and say f*** it all." (Id.). Throughout his career with JSC, Mr. Smith had never witnessed the level of unprofessionalism displayed by Plaintiff in this meeting. (Id.). Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 22 of 40 26837163 v29985858 v1 23 Plaintiff did not deny the vast majority of these aggressive, unprofessional and insubordinate comments during his deposition and in fact admitted most. Specifically, Plaintiff: (1) admitted he possibly used the word f*** in the meeting; (2) admitted he may have used the word "damn"; (3) admitted that he possibly used the word b*lls**t during the meeting; (4) admitted that his voice was loud during the meeting; (5) admitted that he said something like "Mrs. Strozier and Mr. Wright sat on pedestals and looked down on everyone else"; (6) that he probably said he didn't care if Mr. Smith repeated what he was saying to others; (7) that he may have said, "I don't give an f*** anymore"; (8) that it was possible he told Mr. Smith his wife said it was OK to shoot the middle finger at everyone at JSC; and (9) that he apologized for this behavior to Mr. Smith. (SUMF at ¶¶48-52). Later that same day, Mr. Smith advised Mr. Wright and Mrs. Strozier of Plaintiff's behavior and language, and Mr. Wright, Mr. Smith and Mrs. Strozier held a meeting with Plaintiff to investigate his concerns and allegations. (SUMF at ¶¶53-57). Plaintiff apologized to Mr. Smith for his behavior; said he had nothing negative to say and told them that he loved his job. (SUMF at ¶ 56). Mr. Smith believed that Plaintiff’s conduct in the meeting with him presented a potential threat to employees at JSC. (SUMF at ¶ 60). Mr. Smith testified as follows: “I mean, the way he lashed out at the time, yes…. if somebody would go from that to Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 23 of 40 26837163 v29985858 v1 24 – zero to a hundred with just me… you just don’t know what that person would do, right?” (Id.). Ultimately, Mr. Wright approved Mrs. Strozier's recommendation that Plaintiff should be terminated as a result of his conduct displayed to Mr. Smith. (SUMF at ¶¶ 60-64). The following day, Mr. Wright held a meeting with Mr. Smith and Plaintiff in which he let Plaintiff know that he was terminated for two reasons. The first reason was violation of JSC’s Workplace Violence Policy which prohibits “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress.” The second reason for his termination was a business decision in that JSC could no longer trust in Plaintiff as the new hire trainer given his behavior and statements made to Mr. Smith in their meeting. (SUMF at ¶ 65). Plaintiff's admitted behavior and language remove any possible shroud of protection associated with his alleged complaint that he was not promoted due to his race. In Rollins v. Sate of Fla Dept of Law Enforcement the Eleventh Circuit held, "[I]t is well established that the protection afforded by the statute [704(a)] is not absolute. This court has repeatedly recognized that some otherwise protected conduct may be so disruptive or inappropriate as to fall outside the statute's protection.” 868 F. 2d 397, 400-401 (11th Cir. 1989) (citing Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1137 (5th Cir. Unit A Sept.1981), cert. Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 24 of 40 26837163 v29985858 v1 25 denied, 455 U.S. 100, 102 S.Ct. 1630,71 L.Ed.2d 866 (1982). "We have held that to qualify for the protection of the statute, the manner in which an employee expresses her opposition to an allegedly discriminatory employment practice must be reasonable." Rollins at 401. "This determination of reasonableness is made on a case by case basis by balancing the purpose of the statute and the need to protect individuals asserting their rights thereunder against an employer's legitimate demands for loyalty, cooperation and a generally productive work environment." Id. Specifically, the Rollins Court held that Ms. Rollins' complaints of discrimination fell outside the protections of Title VII even where Plaintiff had merely "earned the reputation as a disruptive complainer who antagonized her supervisors and colleagues and impaired the morale of her unit." Id.; See also, Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998) (quoting Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 230 (1st Cir. 1976)) (court “must also consider whether [oppositional] conduct was so disruptive, excessive, or ‘generally inimical to [the] employer's interests ... as to be beyond the protection’ of [the retaliation provision of the ADEA]”); O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir.1996) (quoting Silver v. KCA, Inc., 586 F.2d 138, 140 (9th Cir.1976)) (“An employee's opposition activity is protected only if it is ‘reasonable in view of the employer's interest in Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 25 of 40 26837163 v29985858 v1 26 maintaining a harmonious and efficient operation.’”); Pendleton v. Rumsfeld, 628 F.2d 102, 108 (D.C. Cir.1980) (“A question of retaliation is not raised by a removal for conduct inconsistent with [the employee's] duties, unless its use as a mere pretext is clear); Media Gen. Operations, Inc. v. NLRB, 560 F.3d 181, 187-88 (4th Cir. 2009) (the NLRB erred as a matter of law in concluding that the law protects an employee’s use of profanity regarding his employer, directed to his supervisors, during work hours and in the work place, in a setting physically and temporarily removed from the site of the ongoing collective bargaining negotiations. "[I]nsulting, obscene personal attacks by an employee against a supervisor need not be tolerated,” even when they occur during otherwise protected activity); EEOC GUIDELINES, vol. 2, § 8-II.B.3.a (“The manner in which an [employee] protests . . . must be reasonable.”). B. Plaintiff lacked a good faith, reasonable belief that the job decision of which he complained was based in discrimination. Employees such as Plaintiff who “seek protection under the opposition clause must have a ‘good faith reasonable belief’ that [their] employer was engaged in unlawful discrimination.” Taylor v. Cardiovascular Specialists, P.C., 4 F. Supp. 3d 1374, 1377-1378 (N.D. Ga. 2014) (citing Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999)). This means that Plaintiff must show that he “subjectively believed that [Defendant] engaged in unlawful discrimination Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 26 of 40 26837163 v29985858 v1 27 and that ‘[his] belief was objectively reasonable in light of the facts and record present.’” Id. at 1378. And while the offensive conduct need not be unlawful discrimination, it “must be close enough to support an objectively reasonable belief that it is.” Id. Whether the offensive conduct is “close enough” to an unlawful employment practice is “measured against existing substantive law” at that time. Id. Plaintiff's discharge on February 26, 2016 is his only plausible "materially adverse action which occurred after his alleged protected activity." Furthermore, Plaintiff's only complaint of race discrimination in support of his alleged "protected activity" is his claim that he was denied the promotion to Safety Officer because he is white. More specifically, Plaintiff testified that the "subject matter" of his February 25th meeting with Mr. Smith was his complaint that he should have been promoted into the Safety Officer position instead of JSC's hiring of Ms. Guin. (SUMF at ¶¶ 47-48). Specifically, he testified that his reason for meeting with Mr. Smith that day was because he did not get the promotion at issue. (Id.). Plaintiff testified that his complaint to Mr. Smith on February 25th was based on his belief that he was discriminated against because: (1) he believed he was more qualified than Ms. Guin for the Safety Officer position; and (2) the demographics of the Human Resources department at the time he voiced the above complaint. (SUMF at ¶¶ 47-48). As shown below, neither of these reasons support Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 27 of 40 26837163 v29985858 v1 28 a reasonable, good faith belief by Plaintiff that he was denied the promotion at issue based on his race. First, as discussed in more detail above, the "substantive law" associated with an employer's decision to determine whether a particular candidate is more or less qualified for an available position than other candidates holds, "when a Plaintiff attempts to demonstrate pretext by contending that he was more qualified than the successful candidate, he must show that the disparities between the successful applicant's and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over Plaintiff." Jackson, 2012 WL 12864368, at *15. "In the context of a promotion, the Plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the officer who received the position he coveted." Id. Here, in regards to Mrs. Strozier's and Mr. Wright’s decision that Ms. Guin was more qualified than Plaintiff for the Safety Officer position, Plaintiff testified: (1) he “[had] no knowledge of [Mrs. Strozier’s] hiring process”; (2) he did not know anything about the resumes of the candidates Mrs. Strozier reviewed for the position; (3) he did not know how many of the applicants for the position were African-American and how many were Caucasian; (4) he did not know how many African-American or Caucasian applicants were rejected by JSC because they were Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 28 of 40 26837163 v29985858 v1 29 not qualified; (5) the only external candidate for the Safety Officer position that Plaintiff was aware of was Kristen Guin; and (6) he did not know if Mrs. Strozier even knew of the applicants’ races at the time she reviewed their qualifications. (SUMF at ¶¶ 80-87). Plaintiff further admitted that as the individual who actually reviewed the applicants’ resumes, qualifications and interviews, Mrs. Strozier was in a better position than Plaintiff to determine who was most qualified for the job. (SUMF at ¶ 84). Finally, it is uncontroverted that Mr. Wright, the Caucasian Plant Manager approved all hiring decisions, including that of Ms. Guin. (SUMF at ¶ 85). As set out fully above, Mrs. Strozier and Mr. Wright exercised their sound business judgment to ultimately determine that Plaintiff was unqualified for the Safety Officer position because of his lack of safety management experience and his prior poor performance as training coordinator. Plaintiff's only ground for believing that Ms. Guin was not qualified for the position was that at the time of hire, she had not yet earned her bachelor's degree. (SUMF at ¶¶ 86-87). While Plaintiff did have a bachelors' degree at the time he applied for the position, his degree was in "educational technology studies." (SUMF at ¶ 5). Although Plaintiff was not aware of the status of Ms. Guin's college education at the time of his complaint to Mr. Smith, Ms. Guin testified that she was scheduled to receive her degree in business management in May 2017. (SUMF at ¶ 71). JSC's offer of the Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 29 of 40 26837163 v29985858 v1 30 Safety Officer position to Ms. Guin was made contingent on her earning of her degree and it is uncontradicted that JSC had previously made a degree-contingent offer to a Caucasian male, Vince Moore, who was employed as the Production Control Manager. (SUMF at ¶¶ 70-73). Plaintiff admitted that he did not know enough about Ms. Guin’s qualifications to know whether such warranted extending a degree-contingent offer. (SUMF at ¶ 87). In the end, the "substantive law" does not allow Plaintiff to supplant Defendant's discretion to determine the appropriate qualifications for the job and specifically, that Plaintiff's technology education degree was less important than Ms. Guin's safety management experience and pending business degree. Taylor, 4 F. Supp. at 1378. Next, Plaintiff testified that he based his complaint to Mr. Smith on his opinion that Mrs. Strozier only hired African American employees for the JSC Human Resources Department. As his lone basis for this belief, Plaintiff points to the fact that more African-Americans worked under Mrs. Strozier in the Human Resources department at the end of his employment than at the beginning. (SUMF at ¶¶ 88-89). More specifically, Plaintiff based this belief on only his claim that 2-3 positions in the HR department turned over from Caucasian HR employees to African-American HR employees during his employment with JSC. (Id.). However, Plaintiff admitted that none of these 2-3 Caucasian employees who at Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 30 of 40 26837163 v29985858 v1 31 one time worked in Human Resources under Mrs. Strozier were terminated by JSC, and instead, that they all voluntarily resigned. (SUMF at ¶¶ 90-91). Plaintiff has no knowledge of the identity of the applicants or the applicants’ qualifications considered, reviewed, or interviewed to fill the vacancies left by these 2-3 Caucasian employees who resigned. (Id.). Plaintiff is not aware of the hiring process utilized by Mrs. Strozier and Mr. Wright in selecting the replacements for these employees and he admits he had no basis for his belief that Mrs. Strozier based her hiring decisions on a preference for African American employees. (SUMF at ¶¶ 88-91). Plaintiff's complete lack of the requisite good faith reasonable belief that he was denied the job because of his race and, arguably even his lack of any meaningful subjective belief, is highlighted by his May 2016 letter to the Department of Labor sent after his alleged complaint and termination. (SUMF at ¶¶ 88-89). Referring to his February 25th alleged complaint to Mr. Smith, here, Bullington wrote: In the beginning, I accused my direct boss of not hiring white people. She did not hire me and I cannot prove that she hires based on race. Although, the fact is that there were white people working under her two and a half years ago and currently there are none, along with the fact that JSC has recently hired an African-American safety officer that does not currently have the 4 year degree that the position required. This may not be enough to prove discrimination, but it is enough to justify my inquiry. (Id.) (emphasis added). Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 31 of 40 26837163 v29985858 v1 32 The "substantive law" and Plaintiff's own statements belie Plaintiff's reasonable belief and even his subjective belief of discrimination. Specifically, the substantive law clearly holds that mere demographic imbalances within a workforce are insufficient to support liability. Here, Plaintiff did not even base his belief of discrimination forming the basis of his complaint to Mr. Smith on the demographics of the entire workforce, but instead on just 2-3 African-American employees hired into the HR Department over multiple years and for which he had no information regarding their qualifications or lack thereof for such positions. See E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1276 (11th Cir. 2000) (citing Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988) (wherein the Supreme Court made clear that Title VII liability could not be based solely on “bottom line” statistical imbalances in an employer's workforce and explainedthat it is “unrealistic to suppose that employers can eliminate, or discover and explain, the myriad of innocent causes that may lead to statistical imbalances in the composition of their workforces”); See also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088–89 (11th Cir. 2004) ("Wilson next erroneously cites statistical evidence of an alleged 'glass ceiling' as evidence of her prima facie case. She contends that, from May 1999 through July 2002, there were only two female vice presidents, and since 1995, only two females have been chosen for vice president out of 44 open positions. . . . Wilson asserts an individual claim of disparate Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 32 of 40 26837163 v29985858 v1 33 treatment regarding the denial of a promotion. The statistical evidence presented by Wilson does not have any probative value in establishing a prima facie case of disparate treatment. This statistical evidence is not even probative of pretext because Wilson has not provided any other relevant information, including the number of women who expressed interest in vice president positions.); See, e.g., Howard v. B.P. Oil Co., Inc., 32 F.3d 520, 524 (11th Cir.1994) (“Statistics without any analytical foundation are ‘virtually meaningless.’”); See also Taylor v. Teakdecking Sys., Inc., 571 F. App'x 767, 769 (11th Cir. 2014) ("A plaintiff cannot show disparate treatment by merely citing statistics. Without any analytical foundation, statistical evidence is 'virtually meaningless' and cannot be probative of pretext" and "[o]utside of [plaintiff's] conclusory and self-serving allegation that his performance met or exceeded expectations throughout his tenure, the only evidence he offered to support pretext was the disproportionate rate by which black employees were allegedly terminated during his tenure—approximately 17 out of 39 employees by his count.") (internal citations omitted); See also E.E.O.C. v. Fannin Cty., Ga., No. 2:13-CV-225-RWS, 2015 WL 5725697, at *21 (N.D. Ga. Sept. 29, 2015), appeal dismissed (Feb. 18, 2016) (finding that in an age discrimination case "the ages of the employees who were terminated, by themselves and without any analytical foundation, do not show that Defendant's articulated reason for conducting the layoffs or for selecting [plaintiffs] are Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 33 of 40 26837163 v29985858 v1 34 pretext"). As such, Plaintiff is unable - for a multitude of reasons - to satisfy the requirements of the good faith, reasonable belief component of his prima facie case of retaliation. C. Plaintiff cannot prove a causal connection between his alleged protected activity and his termination because his misconduct severs any potential connection. Plaintiff's admitted use of profanity, aggression and overall display of behavior in his meeting with Mr. Smith severs any causal connection between Plaintiff's alleged protected activity and his termination. (SUMF at ¶¶ 48-50). See Hankins v. AirTran Airways, Inc., 237 Fed. Appx. 513, 521 (11th Cir. 2007) (wherein the Court found that misconduct broke any causal connection between the protected expression and the termination and noting "close temporal proximity between two events, standing alone, is not a panacea, absent any other evidence that the employment decision was causally related to the protected activity"); Byrd v. Tyson Foods Inc., No. 5:10-CV-161 MTT, 2011 WL 3107345, at *3 (M.D. Ga. July 26, 2011) (termination resulting from plaintiff's sleeping on the job was an intervening act of misconduct severing any causal link); Dent v. Georgia Power Co., No. 1:10-CV-3401-RWS-JFK, 2012 WL 12896233, at *8 (N.D. Ga. July 9, 2012) ("This court has held that 'any inference of retaliatory intent otherwise created by a short lapse of time can be dispelled when intervening factors are established.'"); Wu v. Southeast-Atlantic Beverage Corp., 321 F. Supp. 2d 1317, Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 34 of 40 26837163 v29985858 v1 35 1337 (N.D. Ga. 2004); accord Spence v. Panasonic Copier Co., 46 F. Supp. 2d 1340, 1348 (N.D. Ga. 1999), aff'd, 204 F.3d 1122 (11th Cir. 1999) (“while a short lapse of time might raise an inference of discrimination, such an inference does not arise when intervening factors are established”)). D. Plaintiff cannot prove that he would not have been discharged but for his alleged protected activity or that Defendant's non-retaliatory reasons for discharging him were pretextual. Even if Plaintiff could prove his prima facie case of retaliation, Defendant meets its "exceedingly light" burden of rebutting same by proffering legitimate, non-retaliatory reasons for Plaintiff's discharge. Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994). As shown below, especially in light of his own sworn admissions, Plaintiff is unable to produce competent evidence showing that JSC's legitimate reasons for his discharge were pretextual. Separate and independent from Plaintiff's burden to show pretext, he must also prove, through competent evidence that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Taylor, 4 F. Supp. 3d at 1383 (N.D. Ga. 2014) (citing University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2571, 2533 (2013)). Here, regardless of whether the "but for" analysis is addressed at the "causation" stage or the pretext stage, as shown below, Plaintiff's burdens to prove pretext and to counter Defendant's "but for" defense fail for the same reasons. Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 35 of 40 26837163 v29985858 v1 36 Mrs. Strozier, Mr. Wright and the JSC president decided to discharge Plaintiff on February 26, 2016, because he was highly unprofessional, overly aggressive and disrespectful regarding his superiors during his meeting with Mr. Smith one day earlier. (SUMF at ¶¶ 60-65). Following his February 25th meeting with Plaintiff, Mr. Smith believed that Plaintiff’s conduct in the meeting with him presented a potential threat to employees at JSC. (SUMF at ¶ 60). Mrs. Strozier thought Plaintiff should be terminated because she felt uncomfortable and unsafe with Plaintiff continuing to work at JSC due to his “loose cannon” behavior and her fear that Plaintiff may be violent given his aggression toward Mr. Smith. (SUMF at ¶ 61). Mrs. Strozier’s recommendation for termination was based on the fact that Plaintiff felt entitled to the promotion to Safety Officer despite his previous subpar performance, despite his lack of safety management knowledge, and in spite of being presented with the reasoning behind the denial of the promotion, Plaintiff had an aggressive outburst to Mr. Smith and then later denied having any issues with his denial of the promotion or issues with JSC. (SUMF at ¶ 62). Mr. Wright agreed with this recommendation by Mrs. Strozier that Plaintiff’s conduct warranted termination. (SUMF at ¶ 63). Plaintiff's Termination Notice noted these legitimate, non-retaliatory reasons; that Plaintiff was offensive Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 36 of 40 26837163 v29985858 v1 37 and aggressive toward Mr. Smith and that management no longer trusted him as the "first face" of the Company training newly hired employees. (SUMF at ¶ 65). Plaintiff is not only unable to prove these reasons as pretextual, but he admitted under oath that his behavior during the February 25th meeting was aggressive, offensive, disrespectful and certainly capable of eliminating trust as to his responsibilities with JSC new hires. (SUMF at ¶ 49). Plaintiff further admitted that his behavior during this same February 25th meeting was at a minimum unprofessional and extremely derogatory toward his immediate supervisor and the Plant Manager. (Id.). Specifically, Plaintiff admitted he was loud, used multiple instances and forms of curse words (including F***), advised HR he didn't care about his job anymore and accused both of his immediate managers of "sitting on a pedestal." (Id.); Pendleton v. Rumsfeld, 628 F.2d 102, 108 (D.C. Cir. 1980) (“A question of retaliation is not raised by a removal for conduct inconsistent with [the employee's] duties, unless its use as a mere pretext is clear.”). Such admissions defeat any attempt by Plaintiff to show that Defendant' reasons for discharge were pretextual. Furthermore, even if Plaintiff is able to convince the Court through competent evidence that his complaint about the promotion constituted protected activity and such played some role in regards to his discharge, Plaintiff is unable to show that that his termination "would not have Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 37 of 40 26837163 v29985858 v1 38 occurred in the absence of the alleged wrongful action or actions of the employer.” Taylor, 4 F. Supp. 3d at 1383 (N.D. Ga. 2014). The evidence shows he would have been discharged regardless, due to his unacceptable conduct during the February 25th meeting. Due to Plaintiff’s inability to demonstrate that (1) Defendant’s proffered reasons for Plaintiff’s termination were pretext for race discrimination or (2) that Plaintiff would not have been terminated as a result of his conduct but for retaliation, Plaintiff’s retaliation claim fails as a matter of law. IV. CONCLUSION Based on the foregoing, the Court should grant summary judgment to JSC. Respectfully submitted this 10th day of July, 2017. /s/ Jon M. Gumbel Jon M. Gumbel Georgia Bar No. 315195 Attorney for Defendant BURR & FORMAN LLP 171 17th Street NW, Suite 1100 Atlanta, GA 30363 Telephone: (404) 815-3000, x4248 Facsimile: (404) 817-3244 Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 38 of 40 26837163 v29985858 v1 39 CERTIFICATION OF COUNSEL I hereby certify that the foregoing DEFENDANT JEFFERSON SOUTHERN CORPORATION'S MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT MOTION has been prepared in Times New Roman, 14 point font, one of the font and point selections approved by the Court in Local Rule 5.1(C). /s/ Jon M. Gumbel Jon M. Gumbel Georgia Bar No. 315195 jgumbel@burr.com Attorney for Defendant BURR & FORMAN LLP 171 Seventeenth Street, N.W. Suite 1100 Atlanta, Georgia 30363 Telephone: (404) 815-3000 Facsimile: (404) 817-3244 Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 39 of 40 26837163 v29985858 v1 40 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document by Notice of Electronic Filing or, if the party served does not participate in Notice of Electronic Filing, by U.S. First Class Mail, hand delivery, overnight, fax or email on this 10th day of July, 2017: Amanda A. Farahany Barrett & Farahany, LLP 1100 Peachtree Street NE, Suite 500 Atlanta, GA 30309 s/ Jon M. Gumbel Jon M. Gumbel Georgia State Bar No. 315195 OF COUNSEL BURR & FORMAN LLP 171 Seventeenth Street NW, Suite 1100 Atlanta, Georgia 30363 Case 4:16-cv-00245-HLM-WEJ Document 63-1 Filed 07/10/17 Page 40 of 40 29867729 v1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION JOHN BULLINGTON, Plaintiff, v. JEFFERSON SOUTHERN CORPORATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 4:16-CV-00245- HLM-WEJ DEFENDANT JEFFERSON SOUTHERN CORPORATION’S STATEMENT OF UNDISPUTED MATERIAL FACTS COMES NOW Defendant Jefferson Southern Corporation ("JSC"), pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1(B), who hereby respectfully submits it Statement of Undisputed Material Facts in support of its Motion for Summary Judgment in the above-styled action. Defendant maintains that all material facts supporting Defendant’s defenses to all of Plaintiff's claims are undisputed. I. Jefferson Southern Corporation 1. JSC is a Tier 1 supplier of frame parts for Honda automobiles and is located in Rockmart, Georgia. (Wright Depo. at 11:18-21, attached as Exhibit A). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 1 of 32 29867729 v1 2 2. Because of the manufacturing environment at JSC, safety is a top priority for JSC’s management and employees. (Bullington Depo. at 284:2-10, attached as Exhibit B). 3. At all times relevant, JSC has had in effect an Equal Employment Opportunity Policy and a Discrimination and Harassment Policy, which strictly prohibit any forms of discrimination or retaliation in all terms and conditions of employment, including, but not limited to, discrimination or retaliation based on race. (Ex. B at 128:4-129:4; Plaintiff’s Acknowledgment of Receipt of JSC Associate Handbook, Exhibit 5 to Bullington Deposition, attached as Exhibit C; JSC’s Associate Handbook, Exhibit 9 to Strozier Deposition, attached as Exhibit D; Plaintiff’s Acknowledgment of Receipt of JSC’s Discrimination and Harassment Policy, Attachment 1 to Smith Declaration, attached as Exhibit E). 4. Demetria Strozier (“Ms. Strozier”) (African-American) was the Human Resources Manager and Plaintiff’s supervisor from September 2015 until his termination. (Strozier Depo. at 10:12-17; 22:14-16, attached as Exhibit F). Ray Wright ("Mr. Wright") (Caucasian) was the Plant Manager and Plaintiff’s supervisor from the date of his hire on August 12, 2013 until September 2015. (Ex. A at 11:22-12:3; Ex. B at 51:2-23; Ex. F at 20:12-21). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 2 of 32 29867729 v1 3 II. Plaintiff John Bullington 5. Prior to his employment at JSC, Plaintiff’s employment history consisted of teaching technology education and automotive technology in various county school systems, teaching English in Japan, and working as a handyman. (Ex. B at 27:10-40:22). Plaintiff has a bachelor of science in educational technology studies. (Ex. B at 25:16-22). 6. From 1996 to August 2013, Plaintiff worked for seven different employers. (Ex. B at 41:10-20). Each of those seven positions involved teaching in an educational institution. (Ex. B at 41:21-34). 7. Plaintiff’s safety training experience was limited to his teaching safety related issues in his automotive tech classes. (Ex. B at 43:10-44:14). Prior to working at JSC, Plaintiff had never worked in a manufacturing environment before. (Ex. B 172:23-173:3). 8. The safety considerations for the machinery involved in automotive tech education are different than that of the machinery involved at JSC. (Ex. B at 45:8-20). 9. Plaintiff does not have training as to OSHA safety application in a manufacturing environment. (Ex. B at 27:5-9). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 3 of 32 29867729 v1 4 10. Plaintiff is currently employed by the Paulding County School System as an auto shop teacher. (Ex. B at 13:18-23). Plaintiff began working in this position in July 2016. (Ex. B at 13:24-14:8). III. Plaintiff’s Employment at JSC 11. Plaintiff was hired by JSC in August 2013 as Senior Training Coordinator. (Ex. B at 50:2-10). 12. At the time he applied for the Senior Training Coordinator position, Plaintiff felt he was qualified for the role due to his background in teaching. (Ex. B at 111:7-21). 13. When Plaintiff was first hired in August 2013, he reported to Plant Manager Ray Wright (Caucasian) as his direct supervisor. (Ex. B at 51:5-23; 112:18-113:5). In September 2015, Plaintiff began reporting to Human Resources Manager Demetria Strozier (African-American). (Ex. B at 51:2-4; 12-21; 113:14- 17; Ex. A at 17:18-18:9). 14. In August or September 2015, Mr. Wright made the decision to transition Plaintiff to come under the supervision of Mrs. Strozier so that both the Safety Officer and Senior Training Coordinator both reported to Mrs. Strozier in Human Resources. (Ex. A at 17:24-18:5; Ex. F at 22:14-23:13). Plaintiff’s job duties did not change when he made the transition to Mrs. Strozier’s supervision. (Ex. F at 28:1-9). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 4 of 32 29867729 v1 5 15. The Assistant Safety Manager job title was changed to Safety Officer in 2016 to reflect that the position is in charge of safety for the entire company but the position is not a management-level job.1 (Ex. B at 105:11-24; Ex. F at 42:5- 43:22; 48:1-16; Safety Officer Job Description, Exhibit 5 to Guin Deposition, attached as Exhibit G). Safety Officer and Assistant Safety Manager are the same job position with the same duties. (Ex. F at 42:5-43:22; 48:1-16). 16. During Plaintiff’s employment with JSC from May 2015 to February 2016, he applied for seven (7) different jobs outside of JSC. (Ex. B at 54:5-9; 55:2- 12). Plaintiff admitted that he likely applied for more teaching jobs prior to May 2015. (Ex. B at 57:14-24). Each of the jobs applied for during his employment at JSC were teaching jobs. (Ex. B at 51:24-54:9). Plaintiff admitted that he made these applications because “[t]eaching pays more, has more vacation” and because “I am vested in the Teacher Retirement System of Georgia. It makes sense for retirement for me to continue education if there is a good position out there.” (Ex. B at 55:2- 12). 17. Plaintiff admitted that his applications to teaching positions while employed at JSC had nothing to do with his supervisors or his opinions about anyone he reported to at JSC. (Ex. B at 61:20-25). Plaintiff was not looking to leave 1 For clarity's sake, JSC will refer to the position as Safety Officer throughout its Statement of Undisputed Material Facts. Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 5 of 32 29867729 v1 6 JSC because he was unhappy. (Ex. B at 197:21-24). Plaintiff did not think his supervisors were unfair. (Ex. B at 62:1-2). Plaintiff never communicated to Mr. Wright that he ever felt discriminated against at JSC. (Ex. A at 26:3-8). 18. Prior to the events leading to Plaintiff’s termination, Plaintiff never had any issues with Mr. Wright, Mrs. Strozier or Marcus Smith. (Ex. B at 60:10-18). Plaintiff “got along great” with Human Resources Coordinator Marcus Smith (African-American). (Ex. B at 60:17-18; Smith Depo. at 6:3-10, attached as Exhibit H). Mr. Smith reported to Mrs. Strozier in the Human Resources department and was responsible for recruiting and employee investigations, among other duties. (Ex. H at 7:6-15). 19. Plaintiff’s position as Senior Training Coordinator was not a managerial position, and Plaintiff did not supervise any JSC employees. (Ex. B at 113:6-13; Senior Training Coordinator Job Description, Exhibit 6 to Bullington Deposition, attached as Exhibit I). 20. In his role as Senior Training Coordinator, Plaintiff was responsible for conducting training sessions for newly hired associates as well as conducting all safety training and retraining for all associates. (Ex. B at 129:25-131:9; Ex. I). 21. Plaintiff trained the newly hired associates on safety, company and Human Resources policies, and quality control. (Ex. B at 131:10-24; 136:20- Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 6 of 32 29867729 v1 7 138:12; Ex. F at 132:23-134:8). For existing associates, Plaintiff provided retraining on safety, environmental and quality. (Ex. B at 135:10-136:19). 22. The large majority of Plaintiff’s training on safety matters to the associates was conducted via produced, purchased videotapes. (Ex. B at 138:19- 140:1; Ex. F at 132:23-134:8). According to Plaintiff, “it is probably 75 percent videotapes.” (Ex. B at 139:1). 23. While the previous Safety Officer, Courtney Pace, coordinated and approved Plaintiff’s training materials, it was not the Safety Officer's primary responsibility to train the associates on safety issues. (Ex. B at 147:13:22; Ex. F at 44:2-45:20; Ex. G). Plaintiff did not report to Mr. Pace. (Ex. F at 21:20-22). 24. In his role a Senior Training Coordinator, Plaintiff did not have principal responsibility for handling all safety at the site or handling on-site accident investigations. (Ex. B at 151:3-7; Ex. F at 132:24-133:4; Ex. I). Plaintiff did not have the responsibility of filling out OSHA reports on any on-site accident. (Ex. B at 151:22-24; Ex. I). Plaintiff did not have the responsibility of creating a hazard communication plan for JSC. (Ex. B at 153:2-10; Ex. I). Plaintiff has never designed or implemented an accident occurrence plan. (Ex. B at 154:19-22). Plaintiff has never been responsible for representing any employer for purposes of an OSHA on-site investigation or audit. (Ex. B at 154:23-155:1). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 7 of 32 29867729 v1 8 25. While Plaintiff may have assisted Courtney Pace, former Safety Officer, in these tasks, he never had principal responsibility over those tasks. (Ex. I; Ex. F at 46:6-47:14; 132:17-134:19). Plaintiff admitted that coordinating the training of employees is a different job than managing safety of the entire facility. (Ex. B at 160:15-19). IV. Plaintiff’s Performance Issues at JSC 26. In November 2013, Plaintiff was counseled by Mr. Wright and Mrs. Strozier for making negative comments about JSC to JSC’s sister company. (Ex. B at 164:8-170:16; 172:6-174:3; Ex. F at 115:9-120:3). Mr. Wright and Mrs. Strozier met with Plaintiff and counseled that he should not badmouth the company and that when he represents JSC outside the company, he should be a positive representative. (Ex. F at 151:4-152:2; Notes of 2013 Meeting with Plaintiff, Defense Exhibit 2 to Strozier Deposition, attached as Exhibit J). 27. In addition, after Plaintiff was terminated, Production Control Manager, Vince Moore, reported to Mrs. Strozier that Plaintiff often made negative comments about JSC to other employees. (Ex. F at 115:9-120:3). 28. Over the course of Plaintiff’s employment at JSC, he received two performance evaluations. (Ex. B at 175:11-15; Ex. A at 24:15-24; Plaintiff’s 2014 Performance Evaluation, Attachment 3 to Smith Declaration and Exhibit 7 to Bullington Deposition, attached as Exhibit K; Plaintiff’s 2015 Performance Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 8 of 32 29867729 v1 9 Evaluation, Attachment 4 to Smith Declaration and Exhibit 8 to Bullington Deposition, attached as Exhibit L). 29. In 2014, Plaintiff received his first Performance Evaluation. (Ex. K). Mr. Wright administered this evaluation. (Ex. A at 19:1-24:24; Ex. K). 30. In the evaluations, Plaintiff had the opportunity to self-evaluate and Mr. Wright, as his supervisor, had the opportunity to provide his assessment of his performance on a scale of 1.0 to 4.0 with “1” representing “did not meet expectations” and “4” representing “exceeds expectations.” (Ex. B at 176:8-177:2; Exs. K and L). 31. In his 2014 evaluation, Plaintiff self-evaluated his performance with an overall rating of “3.1” which was just barely over the “below expectations threshold. (Ex. K; Ex. B at 177:19-178:9). 32. Mr. Wright gave Plaintiff an overall rating of “2.54” in the 2014 evaluation which represents “below expectations.” (Ex. K). Plaintiff’s 2014 evaluation reflects that Plaintiff failed to make progress on the defect board that Mr. Wright directed Plaintiff to create for training purposes. (Ex. K; Ex. A at 19:18- 21:11; Ex. B at 179:12-180:23). It also reflects that Mr. Wright was not aware of any progress Plaintiff made to develop periodic review training for associates as he had been directed. (Ex. K; Ex. B at 182:14-183:2). Mr. Wright also directed Plaintiff to gain a better understanding of welding and stamping and to create Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 9 of 32 29867729 v1 10 refresher training for current employees. (Ex. K; Ex. B at 183:3-15). Mr. Wright also noted that he “question[s] John’s judgment at times” and notes back to the incident of negative comments made to JSC's sister company, JIC. (Ex. K). Mr. Wright noted “John needs to take more ownership of training schedules. It is not enough to send an email notifying of training needs, John must communicate verbally to the JSC team when training is required.” (Ex. K; Ex. B at 188:17- 190:25). 33. Plaintiff did not agree with the method of assessment of his performance because the performance goals “weren’t written for me. They were written for a production manager… I am a teacher. Base my goals on teaching, on learning, on something concrete that I can do, you know.” (Ex. B at 187:12-23; 192:14-193:10; 203:9-23). Plaintiff believed that the goals were not part of his job duties and were "additional items in addition to [my] base job." (Ex. B at 228:20- 229:9; Ex. A at 20:6-21:3). Plaintiff disagreed with Mr. Wright’s approach in that Plaintiff felt Mr. Wright should have been more positive. (Ex. B at 194:8-10). 34. While Plaintiff disagreed with some of Mr. Wright’s assessments, Plaintiff left the 2014 evaluation determined to “do better” and “figure out what the key was to being successful in a company life because it was very different from being successful in education.” (Ex. B at 194:20-195:6). Plaintiff agreed he would “become more visible with what [he] did.” (Ex. B at 195:3-6). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 10 of 32 29867729 v1 11 35. In 2015, Plaintiff received a second Performance Evaluation which was administered by Mr. Wright. (Ex. A at 19:1-24:24; Ex. B at 175:14-23; Ex. L). Mrs. Strozier sat in on the 2015 evaluation but was not Plaintiff’s supervisor at that time and was not responsible for his 2014 or 2015 evaluations which were authored by Mr. Wright. (Ex. F at 28:1-21; 87:4-24). 36. Mr. Wright gave Plaintiff a performance rating of “2.88” which represents “below expectations” in “competencies” and “overall” on his 2015 Performance Evaluation. (Ex. L; Ex. A at 18:19-25:13). Mr. Wright noted that he would like to see Plaintiff “work to develop countermeasures for issues before he brings them to management’s attention. Many times John communicates the issue but does not provide any feedback to fix the problem.” (Ex. L; Ex. B at 205:3-25). Mr. Wright noted that Plaintiff needed improvement in planning and organization and suggested that plaintiff establish monthly training days for each department to facilitate training. (Ex. L; Ex. B at 206:1-208:10). 37. In 2015, Plaintiff was given new goals. (Ex. A at 18:10-23:13; Ex. B 196:19-25; 199:19-200:14; 209:9-211:5; 214:25-215:-25; Ex. F at 83:16-85:19; 2015 Goals for Plaintiff, Exhibit 9 to Bullington Deposition, attached hereto as Exhibit M). Plaintiff was given the information and password required to access these goals assigned to him on the UltiPro system. (Ex. B at 199:19-200:14; 209:9- 211:5; 214:25-215:-25). Plaintiff knew he could request help logging into UltiPro if Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 11 of 32 29867729 v1 12 he encountered difficulty and had, in fact, requested help from Mrs. Strozier logging into UltiPro in the past. (Ex. B at 216:7-13). 38. Plaintiff failed to meet his assigned goal of becoming a certified crane trainer. (Ex. M; Ex. B at 212:22-213:25; 216:23-217:2). Plaintiff also failed to complete the goal of creating training follow up processes to interview new associates after two to three days on the floor. (Ex. M; Ex. B at 217:3-222:3). Likewise, Plaintiff failed to meet the assigned goal of creating a training module proposal in PLEX and UltiPro, JSC’s online systems. (Ex. M; Ex. B at 222:4-19; 224:2-225:17; Ex. A at 22:23-24:14). Plaintiff also failed to complete his goal from 2014 which was to create a visual defect board for welding and stamping and had not completed this goal even at the time he applied for the Safety Officer position in 2016. (Ex. M; Ex. B at 180:18-23; 225:18-228:19; Ex. A at 19:15-21:11; 24:8-24). 39. Plaintiff was not terminated or issued any formal write-ups as a result of his failure to meet goals as evaluated by Mr. Wright. (Ex. A at 20:16-22:6; Ex. B at 208:11-18; 228:20-229:24). Mr. Wright considered the negative performance review as his communication to Plaintiff that he needed to improve. (Ex. A at 20:16-22:6; 60:15-62:3). V. Plaintiff’s Application to the Safety Officer Position 40. In January 2016, current Safety Officer, Courtney Pace (African- American), submitted his voluntary resignation. (Ex. B at 230:3-14; Ex. F at 51:22- Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 12 of 32 29867729 v1 13 52:24). Plaintiff applied for the vacancy in the Safety Officer position. (Ex. B at 230:17-231:2). 41. JSC’s policy is to post a vacancy both internally and externally to recruit for a staff position. An internal applicant will be chosen for an open position if he or she meets the qualifications and skills required for that position and has a satisfactory performance record at JSC. (Ex. F at 30:9-33:11; 36:20-37:7). When recruiting externally for a position, JSC sometimes utilizes online job postings websites such as “Indeed.” (Ex. F at 39:4-23). 42. After he submitted his application, Mrs. Strozier held a meeting with Plaintiff on February 15, 2016 to discuss his application. (Ex. B at 247:13-24; Ex. F at 85:20-88:19). Mrs. Strozier told Plaintiff that he would not be awarded the Safety Officer position. (Ex. F at 76:23-77:12; Ex. B at 250:21-24). Mr. Wright agreed with the decision not to promote Plaintiff since he had failed to satisfactorily perform in his role as Senior Training Coordinator and because Plaintiff was not qualified for the Safety Officer position. (Ex. A at 29:25-30:4). 43. Mrs. Strozier explained in the meeting that the Safety Officer position required more in-depth knowledge of OSHA regulations, managing OSHA audits, and accident investigations, among other things, than that possessed by Plaintiff. Ex. F at 80:8-15; 132:17-134:8; Ex B at 249:1-14; 250:21-24). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 13 of 32 29867729 v1 14 44. Plaintiff admitted in his deposition (1) that there was always the chance that someone from the "outside world" was more qualified than him for the job; (2) that, absent additional training, he would not have been qualified for that Safety Officer position; and (3) that he had no previous experience as a primary manager of OSHA or filing OSHA documentation on behalf of an employer and the like. (Ex. B at 150:13-155:1; 232:9-20). 45. Mrs. Strozier also discussed Plaintiff’s failure to meet goals as a reason why he would not be awarded the position. (Ex. F at 82:25-88:16; Ex. A at 29:25- 31:2; Ex. B at 249:15-250:20). Mrs. Strozier also felt that Plaintiff did not have a strong level of rapport among the management team to move into the Safety Officer position. (Ex. F at 80:8-82:9). According to Plaintiff, his failure to meet goals was “the main topic of conversation.” (Ex. B at 219:4-9). At no time during this meeting did Plaintiff voice any concerns regarding JSC’s hiring practices or any other alleged discrimination. (Ex. F at 82:25-88:16). 46. Plaintiff was not disciplined for his failure to meet his performance goals aside from discussions and notations in his performance evaluations that he needed to improve, but the failure to meet goals precluded Mrs. Strozier and Mr. Wright from promoting Plaintiff into the more demanding Safety Officer position. (Ex. F at 87:4-88:12). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 14 of 32 29867729 v1 15 47. On February 25, 2016, approximately two weeks after Mrs. Strozier’s meeting with Plaintiff, Plaintiff approached Marcus Smith (African-American), Human Resources Coordinator and expressed his dissatisfaction at not being awarded the Safety Officer position. (Ex. B at 256:14-20; 256:7-18; 258:7-259:4; Ex. H at 27:16-35:8). 48. Plaintiff approached Mr. Smith at his desk, but Mr. Smith directed them into a conference room for the meeting when Plaintiff began speaking loudly and angrily. (Ex. B at 259:5-13; Ex. H at 28:9-19). In this meeting Plaintiff questioned Mr. Smith as to why was Ms. Guin hired into the Safety Officer position over him when she did not have a four-year degree. (Ex. B at 244:15-246:21; 260:5- 17; Ex. H at 34:23-35:8). Plaintiff also accused Mrs. Strozier of not hiring Caucasians in the Human Resources Department. (Ex. B at 267:16-24; Ex. H at 37:3-13). 49. Plaintiff admitted that he became agitated in this meeting and “probably raised his voice.” (Ex. B at 263:3; Ex. H at 30:8-18; 33:23-34:16; 37:18- 38:5-8; 42:25-43:4). Plaintiff testified that it was “possible” that he used the word “f***,” “damn,” “bullshit” in the meeting with Mr. Smith. (Ex. B at 260:24- 261:23). Plaintiff admitted that he “probably did say” that “Mr. Wright had Mrs. Strozier set on a pedestal and looked down on everyone else” and “may have said something to the effect of” telling Mr. Smith “[he] didn’t give a f*** anymore.” Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 15 of 32 29867729 v1 16 (Ex. B at 263:3-21). Plaintiff also admitted that it was “possible” he told Mr. Smith his wife said it was OK to shoot the middle finger to everyone at JSC. (Ex. B at 263:22-264:20). Plaintiff admitted that he “probably” did say to Mr. Smith that he did not care if he repeated what Plaintiff said in the meeting to others. (Ex. B at 263:6-13). 50. According to Mr. Smith, Plaintiff used profanity, including the word “f***” multiple times, used other profanity, yelled, screamed and pounded on the desk during the meeting with Mr. Smith. (Ex. H at 30:8-18; 33:23-34:16; 37:18- 38:5-8; 42:25-43:4; 76:21-77:22). More specifically, Mr. Smith stated that Plaintiff angrily and aggressively yelled, "I don't give a f***, I'm the man for the damn job." (Mr. Smith’s Statement to Department of Labor for Unemployment Compensation Appeal, Exhibit 11 to Smith Deposition, attached hereto as Exhibit N). Mr. Smith also stated that when referring to his immediate manager, Mrs. Strozier (African- American) and the manager of the entire JSC facility, Mr. Wright (Caucasian), Plaintiff stated, "the plant manager and HR manager sit on a f***ing pedestal and look down on people as to say they are better than everyone, like they are f***ing God." (Ex. N). Mr. Smith also stated that Plaintiff said, “I don't care, what I say can be repeated back, I do not give a f*** anymore. I spoke to my wife and she has given me the OK to shoot the middle finger and say f*** it all." (Ex. N). In his Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 16 of 32 29867729 v1 17 career at JSC, Mr. Smith had never witnessed the level of unprofessionalism as displayed by Plaintiff in this meeting. (Ex. H at 76:21-77:22) 51. Mr. Smith was offended by the accusation that Mrs. Strozier “only hired black people,” but he did not let his personal feelings impact or taint his communication with Plaintiff in the meeting or his investigation of Plaintiff’s allegations. (Ex. H at 38:14-40:16; 82:9-18). This statement also offended Mr. Smith because he interpreted that to mean that because he was hired by Mrs. Strozier into the JSC Human Resources Department and is African-American, he was unqualified to be employed in that role. (Smith Declaration, attached as Exhibit O, at ¶ 8). Finally, Mr. Smith also testified that he was offended because he knew Plaintiff had no knowledge of the qualifications of the African American employees hired into the HR Department or the processes used for vetting the candidates and choosing the most qualified candidate. (Ex. O at ¶ 8). 52. Plaintiff testified that Mr. Smith was “absolutely” qualified for his job and that he was smart, honest, and “a pleasure to be around.” (Ex. B at 257:12-258:6). 53. After this meeting, Mr. Smith immediately reported to Mrs. Strozier the contents of the discussions and Plaintiff’s behavior in the meeting. (Ex. H at 43:13-48:21). Mrs. Strozier entered the building during the last few minutes of Mr. Smith and Plaintiff’s meeting, and she heard Plaintiff yelling loudly and Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 17 of 32 29867729 v1 18 aggressively and heard him use profanity including “f***”. (Ex. F at 97:5-25; 101:3-102:24; 111:14-112:2). 54. Mr. Smith reported Plaintiff’s belief that he was more qualified than Ms. Guin and his allegations about Mrs. Strozier’s hiring practices to Mrs. Strozier. (Ex. H at 45:2-24). Mrs. Strozier decided immediately to find Mr. Wright, and Mr. Smith reported firsthand to Mr. Wright his conversation with Plaintiff. (Ex. F at 97:15-98:15; 123:11-126:6). 55. Mr. Wright, Mr. Smith and Mrs. Strozier met approximately thirty or forty-five minutes following Mr. Smith’s meeting with Mrs. Strozier. (Ex. H at 49:20-25; Ex. A at 31:3-32:25; 33:24-34:11). Mr. Smith reported again to Mr. Wright the contents of Plaintiff’s discussion and Plaintiff’s yelling, profanity and aggressive behavior in the meeting. (Ex. H a 54:1-55:14). Mr. Wright decided that they needed to meet with Plaintiff to investigate his concerns and his belief that he should have been promoted into the Safety Officer position. (Ex. H at 54:23-55:14; Ex. A at 31:3-32:25; Ex F at 94:11-97:4). 56. Later that same day, Mr. Wright, Mr. Smith and Mrs. Strozier held a meeting with Plaintiff to investigate his concerns and allegations. (Ex. B at 269:17- 274:6; Ex. H at 65:3-66:25; Ex. F 98:1-99:12; 102:10-103:21; 106:2-12). In this meeting, Mr. Wright led the meeting and asked Plaintiff about his complaints. (Ex. B 272:2-5; Ex. A at 57:8-60:7). In this meeting, Plaintiff apologized to Mr. Smith Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 18 of 32 29867729 v1 19 for his behavior and told management that he had nothing negative to say and he loved his job. (Ex. B at 271:15-17; Ex. A at 55:19-56:21; 41:23-42:3; 57:8-24; Ex. F at 111:14-112:15). 57. During this meeting, Mr. Wright explained to Plaintiff why he was not chosen for the Safety Officer position and explained that Mr. Wright approved of and signed off on all hiring decision. (Ex. A at 36:8-37:24; Ex. B at 269:17-274:6). Mr. Wright asked Plaintiff various safety questions that Ms. Guin satisfactorily answered in her interview, but Plaintiff was unable to provide answers. (Ex. A at 36:8-37:24). Mr. Wright explained to Plaintiff that the hiring of Ms. Guin was based on qualifications. (Ex. A at 36:15-37:18; 55:9-18; 57:8-24). 58. Plaintiff admitted he had no reason to doubt Mr. Wright’s involvement in the hiring process of and approval of Ms. Guin and that he had no knowledge of Mrs. Strozier’s hiring process. (Ex. B at 270:11-271:11; 272:25-274:6). 59. Plaintiff admitted that Mr. Wright and Mrs. Strozier would have known at the moment they made the decision to hire Ms. Guin whether that decision was based on race or not. (Ex. B at 273:6-15). According to Plaintiff, “I think that the moment you hire someone based on race if that is your intention that you know.” (Ex. B at 273:9-10). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 19 of 32 29867729 v1 20 VI. Plaintiff’s Termination 60. Following his initial meeting with Plaintiff, Mr. Smith believed that Plaintiff’s conduct in the meeting with him presented a potential threat to employees at JSC. (Ex. H at 50:16-51:5; 67:20-68:5). Mr. Smith testified as follows: “I mean, the way he lashed out at the time, yes…. if somebody would go from that to – zero to a hundred with just me… you just don’t know what that person would do, right?” (Ex. H at 50:23-51:5). 61. Later that night, Mrs. Strozier sent Mr. Wright a message at 2:45 a.m. stating that she thought Plaintiff should be terminated because she felt uncomfortable and unsafe with Plaintiff continuing to work at JSC due to his “loose cannon” behavior and her fear that Plaintiff may be violent given his aggression to Mr. Smith. (Ex. A at 42:20-43:10; Ex. F at 113:23-115:21; 126:7-129:15). Plaintiff, like all other associates, was subject to JSC’s Workplace Violence Policy. (Ex. D). The Workplace Violence Policy explicitly prohibits “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress.” (Ex. D). 62. Mrs. Strozier’s recommendation for termination was based on the fact that Plaintiff felt entitled to the promotion to Safety Officer despite his subpar performance, despite his lack of safety management knowledge, and in spite of being presented with the reasoning behind his denial of the promotion, Plaintiff had Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 20 of 32 29867729 v1 21 an aggressive outburst to Mr. Smith and then later denied any issues with the promotion or with JSC. (Ex. F at 114:116:15). 63. Mr. Wright agreed with this recommendation by Mrs. Strozier that Plaintiff’s conduct warranted termination. (Ex. A at 42:20-43:10). Mr. Wright had authority to terminate – Mrs. Strozier did not have authority to terminate on her own. (Ex. F at 113:23-114:9). 64. The next day, Mr. Wright discussed the circumstances with JSC’s President to obtain his approval for Plaintiff’s termination. The President approved of the decision to terminate Plaintiff. (Ex. A at 43:21-44:20; 45:10-16; Ex. F at 147:15-149:5). 65. Later that day, Mr. Wright held a meeting with Mr. Smith and Plaintiff in which he let Plaintiff know that he was terminated for two reasons. The first reason was violation of JSC’s Workplace Violence Policy which prohibits “[a]ggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress.” The second reason for his termination was a business decision in that JSC could no longer trust in Plaintiff as the new hire trainer given his behavior and statements made to Mr. Smith in their meeting. (Ex. A at 46:16-49:2; 52:25-54:9; Ex. H at 69:5-78:23; Ex. F at 137:13- 145:10; Termination Notice to Plaintiff, Attachment 5 to Smith Declaration, attached as Exhibit P; Separation Notice to Department of Labor, Exhibit 1 to Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 21 of 32 29867729 v1 22 Bullington Deposition, attached as Exhibit Q). Mrs. Strozier did not participate in this meeting. (Ex. A at 46:16-20). 66. Mr. Wright explained to Plaintiff that, while JSC does attempt to promote within, he was not guaranteed the Safety Officer position because he was not qualified and had not performed satisfactorily. (Ex. A at 46:16-49:2). Mr. Wright again went through the reasons as to why Plaintiff was not chosen for the position. (Ex. A at 46:16-49:2). VII. Decision to Hire Kristen Guin 67. In reaching the decision to hire Ms. Guin for the Safety Officer position, Mrs. Strozier considered a number of applicants from external candidates and two internal applications. (Ex. A at 27:21-31:2; Ex. F at 50:6-51:2; 58:6-59:16; 69:9-20; 73:23-75:3; 77:3-24). Mrs. Strozier met with both internal applicants, Corey Puckett and Plaintiff, to explain to them that they were not chosen for the position. (Ex. A at 29:5-31:2; Ex. F at 75:7-24; 77:3-78:2; 79:19-80:7). Mr. Puckett was hired as the Senior Training Coordinator following Plaintiff’s termination. (Ex. F at 75:7-22). 68. Mrs. Strozier interviewed three external candidates from Indeed for the Safety Officer position, including Ms. Guin. (Ex. F at 50:2-51:3; Ex. A at 27:21- 29:4). Mr. Wright sat in on a portion of each of the three interviews. (Ex. F at 67:12-24; 68:8-12; 72:7-73:10; Ex. A at 27:21-29:4). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 22 of 32 29867729 v1 23 69. After concluding her interviews and consideration of the candidates, Mrs. Strozier recommended Ms. Guin for the Safety Officer position, and Mr. Wright approved that recommendation. (Ex. A at 38:13-14; Ex. F at 72:7-73:10; 89:2-90:1). Mr. Wright had final approval on all hiring decisions, not Mrs. Strozier. (Ex. A at 38:13-14). 70. Mrs. Strozier and Mr. Wright decided to hire Ms. Guin for the Safety Officer position and made her offer contingent upon her continued progression toward completion of her four-year degree. (Ex. F at 129:16-130:3; 131:12-132:7). 71. At the time of her application, Ms. Guin was actively enrolled in Kennesaw State University and was on track to obtain her four-year degree in business management within one year, in May 2017. (Guin Depo. at 8:1-16; 54:21- 55:3, attached as Exhibit R). 72. This offer to Ms. Guin was not the first time that JSC made a degree- contingent offer to an applicant. In fact, in 2014, JSC hired Vince Moore, Caucasian male, as Production Control Manager and made his offer contingent on his continuing school and obtaining his four-year degree. (Ex. F at 116:24-118:3; 129:20-130:3; 131:12-132:7; Ex. H at 80:7-24). 73. Prior to being hired by JSC, Ms. Guin worked at a company called Reworx which is an electronics recycling facility. (Ex. R at 18:7-24:6; Guin Resume, Exhibit 7 to Guin Deposition, attached as Exhibit S). Reworx was certified Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 23 of 32 29867729 v1 24 in ISO 140001, ISO 18001 and ISO 9001. (Ex. R at 24:25-25:8). Ms. Guin began at Reworx in 2011 as an administrative assistant but in 2012 she became the Quality Environmental Health and Safety Manager. (Ex. R at 17:7-12; 27:15; 83:2-84:11). 74. At Reworx, Ms. Guin managed the quality and safety of machines such as a two to three-story shredder, large balers which crush plastic into small bales, industrial drills, hammers, conveyors, forklifts, large air compressors. (Ex. R at 31:4-33:13). Prior to working at JSC, Ms. Guin was familiar with lock-out-tag-out, and she implemented lock-out-tag-out procedures for the shredders and balers at Reworx. (Ex. R at 96:2-6; 157:15-158:6). Ms. Guin was responsible for safety training of all new employees which included training as to the use of Personal Protective Equipment, respirators, workplace hazards associated with tools and machinery, OSHA blood borne pathogens and OSHA hazard communications as well as periodic training and annual OSHA-required training. (Ex. R at 33:18-36:1). Ms. Guin received OSHA training at Georgia Tech in October 2014. (Ex. R at 8:24- 9:12; 49:35-50:17). 75. Ms. Guin learned about the opening for Safety Officer at JSC through the online jobsite, Indeed. (Ex. R at 42:18-43:2; Ex. F at 60:8-22). Ms. Guin’s first correspondence with anyone at JSC concerning the Safety Officer position was on February 1, 2016 in which Mrs. Strozier sent Ms. Guin a notice of the open Safety Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 24 of 32 29867729 v1 25 Officer position on Indeed. (Ex. R 45:1-4; 53:16-23; February 2016 emails, Exhibit 4 to Guin Deposition, attached as Exhibit T; Ex. F at 60:8-22). 76. In her interview with Mrs. Strozier and Mr. Wright, Ms. Guin explained that at Reworx she was responsible for writing policies and procedures for Reworx to obtain and maintain its certifications in R2, e-Stewards, ISO 140001, ISO 18001 and ISO 9001; explained her responsibility in audits and safety investigations; explained safety-related items that she implemented at Reworx; explained her responsibility for implementing and adhering to reporting and audit requirements for certifications; explained her involvement in accident investigations; and explained her interaction with employees, among other things. (Ex. R at 24:24-25-20; 66:6-67:19; 66:25-67:19; 165:5-19; Ex. F at 63:12-67:24). Mrs. Strozier called Ms. Guin on Monday, February 15 to offer Ms. Guin the position as Safety Officer, and Ms. Guin accepted over the phone. (Ex. F at 88:23- 90:1; Ex. R at 70:25-71:25). 77. Ms. Guin was seeking a new position because Reworx was in the process of closing and was laying off its employees. (Ex. R at 42:6-23; Ex. F at 135:16-136:1). Ms. Guin’s supervisor at Reworx knew she was looking for a new job, and Ms. Guin told him she had a phone interview for the Safety Officer position at JSC. (Ex. R at 46:16-20; 52:14-17; Ex. F at 135:16-136:1). Her supervisor attended church with an employee of JSC, Zach Edwards. (Ex. R at Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 25 of 32 29867729 v1 26 45:15-47:2). Her supervisor reached out to Mr. Edwards and highly recommended Ms. Guin for the open Safety Officer position; Mr. Edwards communicated this recommendation to Mrs. Strozier. (Ex. F at 135:16-137:12). 78. While Ms. Guin had experience on forklifts and aerial work platforms prior to working at JSC, Ms. Guin became crane, forklift and tugger certified after she was employed by JSC. (Ex. R at 161:12-163:10). Even if Ms. Guin had been forklift, crane or tugger certified upon her application to JSC, she would have been required to requalify the certification for JSC. (Ex. R at 174:5-175:8). 79. Ms. Guin testified that her duties as Safety Officer at JSC focused on safety accident/incident investigation, the authoring of safety policy and procedures, the implementation of such policies and procedures, safety audits and inspections within the production departments, discussing safety concerns with JSC production associates, soliciting associate feedback regarding same and conducting training such as workplace violence training. (Ex. R at 159:21-161:4). VIII. Plaintiff’s Claim of Race Discrimination and Retaliation 80. Plaintiff’s belief that he was discriminated against was based upon two factors: (1) his belief that he was more qualified than Ms. Guin for the Safety Officer position; and (2) demographics in the Human Resources department at the time he left JSC. (Ex. B at 268:4-23). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 26 of 32 29867729 v1 27 81. Plaintiff does not know how many resumes Mrs. Strozier reviewed in hiring for the Safety Officer position; he does not know how many of the applicants were African-American or how many were Caucasians; he does not know how many African-American or Caucasian applicants were rejected by Mrs. Strozier because they were not qualified; he does not know if Mrs. Strozier even knew of the applicants’ races at the time she reviewed their qualifications. (Ex. B at 239:12- 242:4; 244:13-246:21; 272:25-274:6). 82. Plaintiff admitted that he “[has] no knowledge of [Mrs. Strozier’s] hiring process.” (Ex. B at 274:2-6). 83. The only external candidate for the Safety Officer position that Plaintiff was aware of was Kristen Guin. (Ex. B at 242:2-4). 84. As the individual who actually reviewed the applicants’ resumes, qualifications and interviews, Plaintiff admitted that Mrs. Strozier was in a better position than Plaintiff to determine who was most qualified for the Safety Officer position. (Ex. B at 260:18-23; 244:13-246:21). 85. Mr. Wright signed off on all hiring decisions and, in particular, signed off on the decision to hire Ms. Guin. (Ex. B at 271:5-11; Ex. A at 38:8-14). 86. As set out fully above, Ms. Guin is fully qualified for the Safety Officer role. (Ex. B 244:13-246:21; Ex. F at 132:17-133:8). Plaintiff has no knowledge of Ms. Guin’s qualifications for the Safety Officer position, except that Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 27 of 32 29867729 v1 28 she did not have a four year degree at the time she was hired by JSC. (Ex. B 244:13-246:21). Plaintiff based his opinion that he was more qualified than Ms. Guin on the fact that she did not have a degree and on his familiarity with JSC’s machinery as Senior Training Coordinator. (Ex. B at 242:5-247:12; 252:20-255:10). 87. Plaintiff was not aware that JSC had previously made a degree- contingent offer to a Caucasian male, Vince Moore, who was hired as Production Control Manager. (Ex. B at 246:4-21; Ex. F at 129:16:130:3; 131:12-132:7). Plaintiff admitted that he did not know enough about Ms. Guin’s qualifications to know whether her qualifications warranted extending a degree-contingent offer. (Ex. B at 246:4-21). 88. Plaintiff also testified that he believes Mrs. Strozier did not hire Caucasians in the Human Resources Department, and as basis for this belief, Plaintiff points to the fact that 2-3 positions in the Human Resources Department turned over from Caucasian employees to African-American employees during his employment at JSC. (Ex. B at 123:1-127:4; 236:8-237:5; Plaintiff’s May 2016 Letter to Department of Labor, Exhibit 10 to Bullington Deposition, attached as Exhibit U hereto). Plaintiff admitted that his belief that Mrs. Strozier hired only African-Americans “was something I kind of thought of after the fact.” (Ex. B at 236:3-5). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 28 of 32 29867729 v1 29 89. In his May 2016 letter to the Department of Labor in regard to his Unemployment Compensation claim, Plaintiff writes, referring to his February 25th alleged complaint to Mr. Smith: In the beginning, I accused my direct boss of not hiring white people. She did not hire me and I cannot prove that she hires based on race. Although, the fact is that there were white people working under her two and a half years ago and currently there are none, along with the fact that JSC has recently hired an African-American safety officer that does not currently have the 4 year degree that the position required. This may not be enough to prove discrimination, but it is enough to justify my inquiry. (Ex. U). 90. Plaintiff admitted, to his knowledge, none of the Caucasian employees that worked in Human Resources under Mrs. Strozier were terminated. (Ex. B at 114:20-115:15; 115:22-116:23). John Beck (Caucasian) voluntarily resigned from JSC. (Ex. B at 114:20-115:15). Mr. Beck never told Plaintiff he was leaving due to his belief that Mrs. Strozier was discriminatory. (Ex. B at 114:20-115:15). Christie Warren (Caucasian) was a temporary employee in Human Resources who left voluntarily for another job. (Ex. B at 115:22-116:23). Plaintiff testified that he has “no earthly idea” why Sheila Bishop (African-American) left the employment of JSC. (Ex. B at 118:1-119:4). 91. Plaintiff has no knowledge of the identity of the applicants or the applicants’ qualifications considered, reviewed, or interviewed to fill the vacancies left by John Beck, Christie Warren, or Sheila Bishop. (Ex. B at 123:1-124:25). Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 29 of 32 29867729 v1 30 Plaintiff is not aware of the hiring process utilized by Mrs. Strozier in selecting the employees who filled those vacancies. (Ex. B at 274:2-6). Plaintiff admits that he had no basis for belief that Mrs. Strozier based her hiring on a preference for African-Americans rather than on her review and consideration of the applicants’ qualifications and skills. (Ex. B at 123:21-124:25; Ex. U). 92. Plaintiff testified that the first time he thought that Mrs. Strozier made racial hiring decisions was when he realized in the meeting with Mr. Smith that Ms. Guin did not have a four-year degree. (Ex. B at 237:6-238:2). 93. Plaintiff admitted that he did not believe Mrs. Strozier made racial hiring decisions at the time he applied for the Safety Officer position. (Ex. B at 238:3-239:11). Respectfully submitted this 10th day of July, 2017. By: s/ Jon M. Gumbel Jon M. Gumbel jgumbel@burr.com GA State Bar No. 315195 BURR & FORMAN LLP 171 Seventeenth Street NW, Suite 1100 Atlanta, Georgia 30363 Telephone: 404.685.4248 Attorney for Defendant Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 30 of 32 29867729 v1 31 CERTIFICATION OF COUNSEL I hereby certify that the foregoing DEFENDANT JEFFERSON SOUTHERN CORPORATION’S STATEMENT OF UNDISPUTED MATERIAL FACTS has been prepared in Times New Roman, 14 point font, one of the font and point selections approved by the Court in Local Rule 5.1(C). /s/ Jon M. Gumbel Jon M. Gumbel Georgia Bar No. jgumbel@burr.com Attorney for Defendant BURR & FORMAN LLP 171 Seventeenth Street, N.W. Suite 1100 Atlanta, Georgia 30363 Telephone: (404) 815-3000 Facsimile: (404) 817-3244 Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 31 of 32 29867729 v1 32 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document by Notice of Electronic Filing or, if the party served does not participate in Notice of Electronic Filing, by U.S. First Class Mail, hand delivery, overnight, fax or email on this 10th day of July, 2016: Amanda A. Farahany Barrett & Farahany, LLP 1100 Peachtree Street NE, Suite 500 Atlanta, GA 30309 s/ Jon M. Gumbel Jon M. Gumbel Georgia State Bar No. 315195 OF COUNSEL BURR & FORMAN LLP 171 Seventeenth Street NW, Suite 1100 Atlanta, Georgia 30363 Case 4:16-cv-00245-HLM-WEJ Document 63-2 Filed 07/10/17 Page 32 of 32