The opinion of the court was delivered by: Susan Webber Wright United States District Judge
This is a case of alleged employment discrimination on the basis of age and retaliation and is brought pursuant the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq. The matter is before the Court on motion of the defendant, Steel Related Technology ("SRT"), for summary judgment [doc.#25]. The plaintiff, Kent Andrews, has responded in opposition to SRT's motion, and SRT has filed a reply to plaintiff's response. Having carefully considered the matter, the Court finds that SRT's motion for summary judgment should be and hereby is granted.
Plaintiff began work for SRT in July 1998 as an assembly worker and was terminated from his employment on March 21, 2005. At the time of his termination, plaintiff was 55 years of age.
SRT states that during his approximately seven years with SRT, plaintiff's supervisors and SRT management cited plaintiff for disciplinary infractions on a number of occasions (which are set forth in SRT's statement of undisputed facts) and plaintiff admits that during the time he worked with the present management team and supervisors, he had nine disciplinary incidents. Def.'s St. of Undisp. Facts at ¶ 4; Pl.'s Resp. to Def.'s St. of Undisp. Facts at ¶ 4. One of these incidents resulted in plaintiff being suspended for three days in 1999 for insubordination when plaintiff did not follow his supervisor's directive to help train new employees, plaintiff admitting that he stated to his supervisor that he "didn't have time to train new employees." Another incident resulted in a three-day suspension in 2002 for complaining about job assignments, with plaintiff claiming his problem was with how the other shift was doing their work. Regardless, plaintiff states that these disciplinary incidents arose from less serious rule violations and, citing pages 19 and 20 of plant manager Mike Bruce's deposition, states that SRT's corrective action procedures for dealing with improper and unacceptable conduct were successful as applied to plaintiff. In fact, Bruce does not state that the corrective action procedures were successful as applied to plaintiff but states only that correcting improper and unacceptable conduct is the goal of the corrective action procedures.
In any case, the incidents leading up to plaintiff's termination from SRT occurred on Thursday, March 17, and Friday, March 18, 2005. Def.'s St. of Undisp. Facts at ¶ 28.*fn1 Plaintiff wanted to come in to work on Friday, March 18, his day off, to work overtime. In his deposition, plaintiff initially denied ever having any conversation with a supervisor about whether he would be allowed to work overtime on the 18th, but later admitted that he did in fact ask two supervisors whether he would be able to come into work. Specifically, plaintiff states he asked second shift supervisor, Don Field, about whether he would be able to come in but that Field "never got back to me." Plaintiff explained that he asked Field about working on his day off because when he got to work on Thursday, "the day shift was telling us they had cut the overtime out." After his job scope meeting on Thursday, March 17 -- the meeting in which employees get their assignments -- plaintiff asked another second shift supervisor, Don Atchley, whether he could come in and work the next day but that Atchley's response was, "Kent, no working on your day off." Plaintiff insists that no announcement was made at the meeting that overtime was no longer available (even though "the day shift was telling us they had cut the overtime out"). Plaintiff testified, however, that on that Thursday night, he told another employee, Jerry Moss, that he was planning on coming into work on Friday, even though he had been told not to do so, and that Moss told him, "I'll tell you what, if you come to work Friday morning they're going to fire you."
Despite being told not to come into work on Friday, plaintiff arrived at work on Friday sometime after 7:00 a.m. Plaintiff testified he showed up at work after Atchley told him he couldn't work on Friday, "Because I had did it before." After being initially told by first shift supervisor Dean Atkins that he could work, another first shift supervisor, Chris Sutton, interjected and explained that it would not be fair to let plaintiff work because other employees had previously been sent home as it was their days off as well. Plaintiff was then told by Atkins, "I can't let you work." Plaintiff testified he said "that's fine," and that at that point, "that's when Lamar Times was coming out of the break room. And I, and I knew Lamar Times was on the same crew that I was on, but he worked a different shift." Plaintiff testified that he turned to Atkins and asked, "well, what about Lamar Times?," explaining that Times was not supposed to be at work either. Plaintiff states Times then cussed him in front of Atkins and Sutton and stated he "ought to beat my ass" as plaintiff "just stood there and listened." Plaintiff states Atkins told Times to calm down and told both him and Times to "clock out and go home."
According to Atkins and not disputed by plaintiff, Times "clocked out immediately and left." Plaintiff, however, "went to the dressing room and then the locker room taking off my work boots and started out of the dressing room through the shop to the time clock." Plaintiff states he stopped and talked to another employee, Eddie Gentry, who asked plaintiff if he was going to work that day. Plaintiff answered "no," at which point Gentry asked plaintiff if they were going to let Times work. Plaintiff answered "no," explaining to Gentry that they were both being sent home.
A few minutes after plaintiff had been told to clock out and go home, Sutton observed plaintiff talking to Gentry. Plaintiff acknowledges that Sutton came over and told him he "had to leave again." Sutton explained that he had to tell plaintiff again to clock out and go home after he saw plaintiff "talking to some of the other guys." Sutton testified plaintiff was told a total of three times that he needed to leave. Plaintiff testified it was only twice, once by Atkins and once by Sutton, but acknowledges that Sutton told him, "you've been asked to leave and clock out and you're holding these guys up. They need to start work so you need to go ahead on and clock out and go home." Plaintiff states he said, "okay, fine."
Atkins, Sutton, and Atchley each completed Record of Disciplinary forms regarding the incident, as directed by SRT's Human Relations Manager, Malisa Luna. Atkins reported on the form that on Friday, plaintiff admitted that he had been informed the previous evening that all shifts could not work their scheduled days off, but came in to see if he could work anyway. Atkins explained that after plaintiff identified Times as being on his crew, the two began exchanging words and that he and Sutton stopped the verbal confrontation as they believed a physical confrontation was going to occur. Sutton described the same series of events and added that a few minutes after the confrontation, he was walking through the facility and saw plaintiff "talking to the guys on the floor" and explained to plaintiff that "he had been asked to clock out and go home once, and I didn't want to have to ask him again." Atchley, in turn, stated he informed all employees, including plaintiff, that no one would be able to work on their day off and that plaintiff understood.
Plaintiff testified that when he clocked in on Saturday for his scheduled shift, he was summoned to meet with Atchley and Henry Mays, an assistant superintendent, who informed plaintiff that plant manager Bruce did not want plaintiff at work until Monday morning. When Atchley told plaintiff he didn't know why Bruce did not want plaintiff at work until Monday morning, plaintiff told Atchley and Mays the "whole story" of the previous Friday morning and that he thought he was being suspended for two days because he came into work when he wasn't supposed to. At that point, plaintiff clocked out and went home.
The President and Chief Executive Officer of SRT, Michael Jacques, testified that on Friday evening he was informed by Field, Atchley, or both, of the incident on Friday morning. Jacques testified that he was concerned with plaintiff's "gross" insubordination on Friday morning when "he was asked to leave repeatedly ... [and] he didn't. When asked to leave, the other employee (Times) did." Jacques stated that after learning of the incident on Friday, he wanted to think about how to handle plaintiff over the weekend. Plaintiff's status at that point was "pending discharge," although Jacques explained, "I don't think I had it clear in my mind on Friday. I don't think I reached a decision."
On Monday morning, March 21, Jacques, Bruce, and Luna met "first thing" to discuss how to handle plaintiff's insubordination. Jacques stated they reviewed plaintiff's entire personnel file including the Disciplinary Action Forms related to the events the previous week. When asked what issues the three took up in connection with the termination of plaintiff, Jacques replied:
Well, there weren't any issues. Kent had removed any, I mean, I tend to try to look for gray area and try to act on behalf of the employee when I can. And he gave me no room to do anything on his behalf just because all of the actions were within his power not to do. I mean, coming in was the result of a bold move on his part and in my mind, he was attempting to undermine the credibility and the authority of my supervisors on the shift before. And then secondary to that, he undermined the credibility and authority of the supervisors that asked him to leave on day shift the morning of the eighteenth. And given that, had I allowed him to come back on the floor, my supervisors' ...