The opinion of the court was delivered by: James M. Moody United States District Judge
Pending is Defendant's motion for summary judgment. (Docket #20). Plaintiff has responded and Defendant has filed a reply. For the reasons set forth herein, Defendant's motion for summary judgment is denied.
Plaintiff worked for Alltel as an Operation Systems Programmer II from October 2003 until his termination on April 12, 2004. Plaintiff had worked for Alltell previously and was rehired in October 2003 by Rick Everhart when Plaintiff was 51 years of age. Plaintiff was 52 years of age at the time of his termination. Plaintiff worked in the Technical Support Group (TSG), specifically in the Microsoft Support Group (MSG). Plaintiff's supervisor was Rick Everhart. Everhart reported to Blake Lalli.
Alltel's Little Rock computers are housed at the Data Center located on the first floor of its facility on Rodney Parham Road in Little Rock. The MSG of which Plaintiff was a part is responsible for installation of the computer servers. Each server is supported by a set of rails that fit into a rack that is approximately seven feet tall. Each rack may hold several servers. The server is attached to the rails in a way that allows it to slide in and out of the rack as necessary. Cables are fed through channels on the back of the rack. The server is then "powered up," the term used for connecting the power cables from the server into the power strips and pressing a button. To rack, cable and power up a server takes about an hour. Typically, the person who racks the server is also the person who powers it up.
Only approximately twenty employees are allowed on the Data Center Operations (DCO) floor at will; all others must have approval before going on the floor, before taking any equipment there, and before racking and powering up a server. A "change control" is the approval necessary to perform activity on a specific piece of equipment on the DCO floor either physically or by remote. When accessing the DCO floor, employees must sign their names on a sign in sheet and list the change control number under which they are working. Unless otherwise approved, the window of time allowed for performing a DCO change control was between 12:01 a.m and 5:00 or 6:00a.m on Thursday or Sunday. Installation is performed at this time of day, outside normal business hours, to avoid possible interference with other servers that would cause disruption to the Alltel operation.
Plaintiff was given a change control that directed him to install a server at the allowed time after midnight. During the day, Plaintiff asked co-worker Kevin Morgan to help him with the installation during the day. Plaintiff and Morgan routinely worked as a team and Morgan agreed to help Plaintiff. Plaintiff also asked new employee, Chad Patterson, to accompany them so he could observe the process of racking a server. Plaintiff did not tell Morgan and Patterson that the installation was approved only for after midnight. Plaintiff gathered the rails and the server, placed them on a cart, and took them with the three men to the DCO floor. Plaintiff alleges that co-worker, Slim Helfrich, had asked Plaintiff that same morning to accompany him to the DCO floor and help him with a job. When, Plaintiff, Morgan and Patterson arrived at the DCO floor, Plaintiff led and signed his name, using Hilfrich's change number and work to be performed. Patterson and Morgan followed, signed their names, and wrote ditto marks under the information that Plaintiff had written. As Plaintiff and Morgan were installing the racks, Mike Bechtel approached them. Bechtel was a member of the DCO group that controlled the data center floor and one of the few employees with free access to the floor. Plaintiff told Bechtel that he and Morgan were installing rails for a server that was to be installed that night. Bechtel told Plaintiff and Morgan that they could rack the server, but it was not to be cabled or powered up until the evening hours. Later that afternoon, Bechtel saw that the server had been powered up.
Bechtel reported to Everhart that Plaintiff, Morgan and Patterson had been on the floor and racked and powered up a server during the day. Everhart reported the incident to Lalli. Upon receiving the information, Everhart and Lalli conducted an investigation. Everhart reviewed the DCO floor sign-in sheet and saw that Plaintiff had used someone else's change request. Everhart had an electronic search conducted and saw that the server had been powered up during the time Plaintiff was on the data center floor.
Everhart and Lalli interviewed the three men. Patterson said he had tagged along to observe an installation. Morgan said he thought the change had been approved because Plaintiff told him he had a change control and asked for help. Plaintiff admitted that he was not scheduled to perform the installation until after midnight. Plaintiff admitted that he had used someone else's change order number to gain access to the DCO floor. Plaintiff admitted that he had installed rails on the rack without authority. Plaintiff denied having powered up the server at the unapproved time, and said that he had powered it up the following morning. Plaintiff told Everhart and Lalli that he would take full responsibility for what had been done. Everhart and Lalli concluded that Plaintiff had been untruthful about the timing of the server power-up. As a result, Patterson received a verbal warning, Morgan was placed on one year's probation and Plaintiff's employment was terminated.
Plaintiff states that he was he was initially told that he was being terminated for servicing the equipment outside of a change order time and was not told that he was being fired for the reasons now given by Defendant. Plaintiff argues that Alltel acquiesced to other employees servicing equipment outside of change order times repeatedly and he thought it was acceptable. Further, Plaintiff states that he was truthful about this incident. Plaintiff complains that younger employees have done the same thing and received only warnings. Plaintiff also complains that he was yelled at frequently, treated disrespectfully, called names such as "Father Smurf" and using the adjective "old".
It is undisputed that Plaintiff filed a timely charge of discrimination and received his notice of right to sue on or about September 13, 2005. On November 18, 2005 Plaintiff filed suit alleging age discrimination. Plaintiff's original complaint was brought pursuant to Title VII and 42 U.S.C. §1983. However, Plaintiff was allowed to amend his complaint on March 6, 2007 correcting the scrivener's error. Plaintiff's amended complaint alleges that he was discharged from his employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. §623 et.seq. Accordingly, Defendant's arguments based upon Title VII and Section 1983 are moot. The Court finds that the amended complaint relates back to the filing of the original complaint, accordingly, Plaintiff's suit is timely. Defendant contends that summary judgment is proper at this time on Plaintiff's age discrimination claims.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because ...