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Plaintiffs v. Okefenoke Rural Electric Membership Corporation

United States District Court, M.D. Georgia, Brunswick Division

December 29, 2014

DEREK COLLINS and TONY SHEPPARD Plaintiffs,
v.
OKEFENOKE RURAL ELECTRIC MEMBERSHIP CORPORATION, Defendant.

ORDER

J. RANDAL HALL, District Judge.

This matter is now before the Court on Defendant Okefenoke Rural Electric Membership Corporation's ("OREMC") Motion for Summary Judgment. (Doc. 25.) Plaintiffs Derek Collins and Tony Sheppard assert that OREMC terminated them from their positions as foremen on the basis of their age in violation of the Age Discrimination in Employment Act ("AREA"), 29 U.S.C. § 621, et seq. For the reasons set forth below, the Court GRANTS OREMC's Motion for Summary Judgment,

I. BACKGROUND

As a preliminary matter, Plaintiffs have failed to respond appropriately to OREMC's Statement of Material Facts ("DSMF") (Doc. 27), which complicates this Court's and OREMC's tasks. Pursuant to Local Rule 56.1, "[e]ach statement of material fact shall be supported by a citation to the record." LR 56.1, SDGa. In only 5 of 32 denials did Plaintiffs make any reference to the record (see Pls.' Statement of Material Facts ("PSMF"), Doc. 45, ¶¶ 6, 26, 28, 29, 31), and despite appending factual argument to another 17 paragraphs of admissions, Plaintiffs only referenced the record two more times (see PSMF ¶¶ 3, 20). The Local Rules also mandate that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by a statement served by the opposing party." LR 56.1, SDGa (emphasis added). Here, Plaintiffs' filing is replete with extraneous and wholly unresponsive information. For instance, in paragraph 24, OREMC states, "On December 6, 2011 [Mr. Collins] was involved in another incident at Harriet's bluff where a live electrical line hit a work truck and the electrical charge passed through the truck and burned its tires." (Def.'s Statement of Material Facts ("DSMF"), Doc. 27, ¶ 24.) Plaintiffs respond "that incidents do occur when working with electrical power and that, fortunately, most of the time there are no injuries and no property damage. The fact that these incidents'... occur does not mean that anyone is negligent or at fault or casual about safety in any way." (PSMF ¶ 24.) In another example, Plaintiffs' counsel denies Royce Proctor's and Mr. Collins' own testimony that OREMC implemented new grounding procedures, but then adds argument that the new procedure was "more dangerous" and "a failed experiment" that has since been discontinued. (DSMF ¶¶ 28, 29; PSMF ¶¶ 28, 29.)

The purpose of discovery is for each party to be able to get all of its facts on the table. Summary judgment is then briefed based on that set of facts. The Statement of Material Facts essentially is a restatement of each party's position, but nevertheless a valuable tool in the face of a voluminous record, as is the case here. More importantly, it is required: after all, it is not the Court's duty to comb the record to find reasons to deny summary judgment. BFI Waste Sys. v. DeKalb Co., 303 F.Supp.2d 1335, 1342 (N.D.Ga. 2004) (citation omitted); see also Tomasini v. Mt. Sinai Med. Ctr. of Fla., Inc., 315 F.Supp.2d 1252, 1260 n.11 (S.D. Fla. 2004). Plaintiffs' deficient responses to clear and unobjectionable factual statements are troubling, and in so responding, Plaintiffs have done little to advance their case. Thus, for purposes of this motion - and especially the factual background herein recited - the Court accepts as true the facts contained in OREMC's Statement of Material Facts so long as they are supported by the evidence, do not make credibility determinations, and do not involve legal conclusions. E.E.O.C. v. Atlanta Gastroenterology Assocs., LLC, 2007 WL 602212, *3 n.2 (N.D.Ga., Feb. 16, 2007).

A. Mr. Collins' Employment & Disciplinary History

1. Summary

OREMC hired Mr. Collins as a meter reader in 1991, and he received promotions through the ranks in 1993, 1995, 1999, and the early 2000s. (DSMF ¶¶ 1, 2; PSMF ¶¶ 1, 2.) Six to eight years later, OREMC promoted Mr. Collins to foreman. (DSMF ¶ 3; PSMF ¶ 3.) As a foreman, Mr. Collins led a team of electrical workers that built power lines to houses and replaced existing lines. (DSMF ¶ 3; PSMF ¶ 3; Collins Dep., Doc. 29, at 26-29.) One of his primary duties was to maintain the safety of his crew. (DSMF ¶ 3; Collins Dep. at 28; Sheppard Dep., Doc. 30, Ex. 7 ("Job Description"), § III.A.13.) Indeed, Mr. Collins attended safety briefings daily while he was a foreman, and in 2011, he received and signed an acknowledgment for OREMC's safety manual. (DSMF ¶¶ 16, 17; PSMF ¶¶ 16, 17.)

OREMC notified Mr. Collins in March 2012 that his employment was being terminated for a safety violation. (DSMF ¶ 4; PSMF ¶ 4.) At that time, he was 41 years old. (DSMF ¶ 5; PSMF ¶ 5.) There were four individuals in Mr. Collins' chain of command at the time of his termination. Mr. Proctor, who is 52 years old, was the Supervisor of Construction for Kingsland and Mr. Collins' immediate supervisor throughout his tenure as a foreman. (DSMF ¶¶ 6, 7; PSMF ¶ 7; Collins Dep. at 29-30.) Danny Thornton was above' Mr. Proctor in the chain of command and is at least 20 years older than Mr. Collins. (DSMF ¶ 9; PSMF ¶ 9.) Travis Page, who is now 44, replaced Mr. Thornton as Operations Manager while Mr. Collins' termination was in progress. (DSMF ¶¶ 10, 13; PSMF ¶¶ 10.) John Middleton, who is 50, served as OREMC's General Manager. (DSMF ¶ 11.)

It appears that the majority of Mr. Collins' interaction with the management team was through Mr. Proctor, with whom he had an "amicable working relationship." (DSMF ¶ 14; PSMF ¶ 14.) Nevertheless, there was considerable tension between Mr. Collins and Mr. Proctor: "voices would be raised" and Mr. Collins complained to management about Mr. Proctor's supervision. (Id.) In January 2012, only months before Mr. Collins' termination, an incident occurred in which Mr. Proctor allegedly put his hands on Mr. Collins when he attempted to walk away from a heated discussion. (Id.; Collins Dep. at 33-35 & Ex. 8.)

2. Safety & Discipline

Four years before OREMC terminated Mr. Collins, Mr. Thornton issued Mr. Collins a Last Chance Agreement ("LCA"). (DSMF ¶ 18; Collins Dep. Ex. 3 ("Collins LCA").) On or about March 18, 2008, Mr. Collins directed certain employees to place updated inspection tags on equipment that, in fact, had not been tested recently. (Collins LCA at 1, ¶¶ 1-3.) Mr. Collins then lied to an inspector about the suspicious tags, but later admitted to being untruthful after being confronted with contradictory evidence from witnesses. (Id. ¶ 2.) Mr. Collins' LCA also cited him for openly criticizing members of management and creating a hostile "you're with them or us" work atmosphere. (Id. ¶ 4.) The LCA, which Mr. Collins ultimately signed, imposed a Suspension without pay and was effective for one year. (Id. at 3, ¶¶ 5, 9.)

In September 2011, OREMC documented an incident between Mr. Collins and Jimmy Spence. (Collins Dep., Ex. 4.) Apparently there was dispute as to which truck each party would use that day, and Mr. Collins - in front of other employees - "told Jimmy he could not take [the] truck" and "hollered at him that if he had a problem he could talk to Royce." (Id.) Although Mr. Collins contends he yelled merely so that he could be heard over the truck's diesel engine (Collins Dep. at 45, 97-98), a supervisor later advised Mr. Collins that the way he handled the situation was unacceptable and that "he was to treat all the men with respect at all times" (id., Ex. 4). In November 2011, Mr. Proctor documented another safety incident in which Mr. Collins failed to post road signs because they were on another foreman's truck. (Id. at 46-47, 96-98; Ex. 5.) On December 6, 2011, Mr. Collins' crew was involved in an incident at the Harriet's Bluff worksite where a live electrical line hit a work truck, passed its charge, and burned the truck's tires. (Id. Ex. 6; DSMF ¶ 24.) OREMC shut down the worksite for several months after this incident to try a new grounding procedure. (DSMF ¶ 25.) On January 6, 2012, Mr. Proctor cited Mr. Collins for his failure to wear a traffic vest, though Mr. Collins asserts he only temporarily removed the vest to take off or put on his jacket. (DSMF ¶ 26; Collins Dep. at 53.) A couple weeks later on January 18, 2012, OREMC issued Mr. Collins a suspension for a separate failure to properly install traffic control signs. (DSMF ¶ 27; Collins Dep., Exs. 7 & 8.) Mr. Collins contends that the mismatched signage was a simple mistake and that the suspension was a retaliatory attempt to cover up Mr. Proctor's own bad behavior, namely grabbing Mr. Collins during a disagreement. (Collins Dep., Ex. 8.)

Finally, on or about March 15, 2012, OREMC reopened the Harriet's Bluff worksite. (DSMF ¶ 28; PSMF ¶ 28.) That same day, a member of Mr. Collins' crew, Martin Andrew "Andy" Thomas, committed an error while maneuvering the bucket and contacted a 14, 000 volt live electrical wire, which caused a service disruption to 1, 400 customers. (DSMF ¶ 31; Page Dep., Doc. 31, at 32.) Moreover, the crew did not ground the bucket truck according to OREMC's policy and common procedure, instead barricading it with cones, and a police officer was on site to direct traffic. (DSMF ¶ 30; Collins Dep. at 62; Sheppard Dep., Ex. 10, ¶ 7.) Following this incident, OREMC interviewed all workers involved and conducted an investigation alongside union representatives. (DSMF ¶ 33; PSMF ¶ 33.) In the end, the investigation committee concluded that Mr. Collins, as the foreman on site, "failed to recognize all the associated hazards and to minimize [his crews'] exposure to th[o]se hazards." (Collins Dep. Ex. 10, at 8 ("Fact Sheet Contract Investigation").) Specifically, the committee pointed out that the energized line at issue could have been covered with rubber hoses or deenergized, or the truck itself could have been repositioned to give the bucket more clearance of the line. (Id.) Mr. Collins admits that he was the foreman on site that day, that the incident could have been life threatening, and that customers lost power as a result, but he denies that he committed any safety violation. (DSMF ¶¶ 34, 35; PSMF ¶ 35.) In response to this incident, Mr. Proctor, Mr. Page, and Mr. Middleton reviewed Mr. Collins' record and ultimately decided disciplinary action was necessary. (DSMF ¶¶ 36-39.) OREMC first suspended Mr. Collins pending further investigation, but Mr. Page subsequently issued a termination notice. (Collins Dep., Exs. 9 & 10.) Mr. Collins filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and received a Notice of Right to Sue. (Compl., Doc. 1, ¶ 11.)

B. Mr. Sheppard's Employment & Disciplinary History

1. Summary

OREMC hired Mr. Sheppard as a meter reader in 1987, and he received promotions through the ranks in 1991, 1993, and 1997. (DSMF ¶ 41; PSMF ¶ 41.) OREMC later promoted Mr. Sheppard to foreman. (Id.) Like Mr. Collins, one of Mr. Sheppard's primary duties was to maintain the safety of his crew. (DSMF ¶¶ 43-45; PSMF ¶¶ 43-45.) Also like Mr. Collins, Mr. Proctor and Mr. Thornton served as Mr. Sheppard's supervisors over the course of his career. (DSMF ¶ 42; PSMF ¶ 42.) It likewise appears that Mr. Sheppard experienced some tension with Mr. Proctor, as Mr. Sheppard was willing to "confront" him on behalf of other employees about safety and other job-related issues. (Sheppard pep, at 23-25.) Mr. Sheppard felt that Mr. Proctor "looked down on [the employees]" and that the employees respected him more than Mr. Proctor. (Id. at 23-24.)

OREMC notified Mr. Sheppard in early April 2012 that his employment was being terminated for safety issues and insubordination. (Sheppard Dep., Ex. 9.) At the time of his termination, he was 47 years old. (DSMF ¶ 65; PSMF ¶ 65.)

2. Safety & Discipline

Four years before OREMC terminated Mr. Sheppard, Mr. Thornton issued Mr. Sheppard a Last Chance Agreement ("LCA"). (DSMF ¶ 46; Sheppard Dep. Ex. 6 ("Sheppard LCA").) On or about March 18, 2008, Mr. Sheppard directed certain employees to place updated inspection tags on equipment that, in fact, had not been recently tested. (Sheppard LCA at 1, ¶¶ 1-3.) Unlike Mr. Collins, Mr. Sheppard admitted his misconduct during OREMC's initial investigation. (Id. ¶ 2.) Mr. Sheppard's LCA also cited him for openly criticizing members of management and creating a hostile "you're with them or us" work atmosphere. (Id. ¶ 4.) Mr. Sheppard denies he acted in this way. (DSMF ¶ 48; PSMF ¶ 48.) Mr. Sheppard ultimately signed the LCA, however, and OREMC imposed a suspension without pay. (Id. at 3, ¶¶ 5, 9.)

On December 6, 2011, Mr. Sheppard's crew was also involved in the incident at Harriet's Bluff whereby a live electrical line hit a work truck and burned the truck's tires. (DSMF ¶ 48; PSMF ¶ 48.) Steve Wynn, who reported to Mr. Sheppard, was the lineman in the bucket when "the tail [of a wire] [got] away from him, " "flopping over eight [feet] away" to a hot line. (Collins Dep. at 49-50.) Mr. Sheppard's crew was also involved in the second live contact incident at Harriet's Bluff on March 15, 2012. (DSMF ¶ 51; PSMF ¶ 51.) During the investigation of the second Harriet's Bluff incident, OREMC discovered that Mr. Sheppard conducted the safety "tailgate" with his crew at a nearby store instead of at the worksite such that details of the site's environment could not be assessed properly - for example, traffic conditions, "anything else specific to that geographic location, " etc. (Page Dep. at 24-29, 33.) OREMC also perceived Mr. Sheppard's explanation of the day's mishaps to be inconsistent with those of the other crew members present. (Page Dep. at 32-33, 58-62; Proctor Dep., Doc. 32, at 49-50; Sheppard Dep., Ex. 9 at 6, 9.) The management team ultimately decided that Mr. Sheppard either lied during the post-incident interviews or he had not paid attention to the work being done on the day of the incident such that he could offer a truthful answer at all. (Id.)

As with Mr. Collins, OREMC disciplined Mr. Sheppard following the March 2012 incident. (DSMF ¶ 50; PSMF ¶ 50.) Initially, OREMC imposed a suspension and instructed Mr. Sheppard to return to work on Friday, March 30, 2012. (DSMF ¶¶ 54, 55; PSMF ¶ 54.) Mr. Sheppard in turn responded that he would not return to work on Friday, but would wait until the following Monday. (DSMF ¶ 55; Proctor Dep. at 51-52; Sheppard Dep. at 57-58.) He wished to use one day of his eight accrued weeks of leave to enjoy his daughter's full spring break and believed the aforementioned statement to Mr. Proctor served as adequate notice under OREMC's practice of informally arranging leave with a direct supervisor. (Sheppard Dep. at 58-59; see also Middleton Dep., Doc. 35, at 38-39.) Mr. Proctor and Ronnie Crews, OREMC's head of human resources, reported Mr. Sheppard's response to Mr. Middleton. (Middleton Dep. at 38-40.) Mr. Crews was surprised that Mr. Sheppard would not return when told having just been reprimanded. (Crews Dep., Doc. 36, at 5-6, 44-45.) Mr. Sheppard did not report to work on March 30, 2012. (Sheppard Dep. at 57-58.) According to Mr. Middleton and Mr. Page, Mr. Sheppard would not have been fired had he returned to work as requested. (Middleton Dep. at 38, 70-72 ("[Mr. Sheppard] was terminated for insubordination for failure to ...


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