IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff ) CIVIL ACTION NO: 

) 2:06-0664-MHT

v. )

)

SANDERS LEAD COMPANY, INC. )

)

Defendant. )

PLAINTIFFS’ MEMORANDUM IN OPPOSITION 

TO DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

COMES NOW the Plaintiff in the above-styled matter and submits the

following brief in response to the Defendant's Motion for Summary Judgment.

I. INTRODUCTION

The Plaintiff, Maxie McNabb (hereinafter "Plaintiff" or "McNabb"), filed this

lawsuit alleging that the Defendant refused to rehire him after a work force reduction

because of his age and refused his application a second time in retaliation for his

filing a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”). At the time of these applications, McNabb was fifty-four

(54) years old. The Defendant, Sanders Lead Company, Inc. (hereinafter "Defendant

or Sanders Lead") denies the Plaintiff's allegations, however, the Defendant has

moved for Summary Judgment on claims of discriminatory discharge and retaliation.

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2

The Plaintiff is not claiming discriminatory discharge in this matter and would submit

that the Defendant has waived its right to contest Plaintiff's failure to rehire claim.

The Plaintiff’s claims in this case are discrimination on the basis of age in hiring and

retaliation. (See, Doc. #1, Pl.’s Compl. ¶6-21). 

II. FACTUAL ALLEGATIONS

A. Plaintiff Begins Work at Sanders Lead

McNabb was born on August 30, 1951 in Troy, Alabama. (Pl.’s Ex. 1,

McNabb Decl. ¶1). McNabb began working for Sanders Lead in September 1992 as

a Operator in the Casting/Alloy Department. (Pl.’s Ex. 1, McNabb Decl. ¶1). 

Sanders Lead Company, Incorporated is a lead acid battery recycle operation and

large scale secondary lead smelting operation located in Troy, Alabama. (Pl.’s Ex.

1, McNabb Decl. ¶2). It employs approximately four hundred employees. (Pl.’s Ex.

2, Business Report). The following people manage the day to day operations in the

Casting/Alloy Department: Bart Sanders, VP, Operations; Edgar Fannin, Department

Manager Casting and Alloy Department; Leon Bennett, Casting and Alloy

Supervisor, and Sam Kitchens, Personnel Manager. (Pl.’s Ex. 1, McNabb Decl. ¶2).

 McNabb's direct supervisor was Leon Bennett. (Id.). 

A Casting/Alloy Operator prepares and delivers molten lead or lead alloy to a

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1This work is extremely dangerous and difficult as the employee is required to

be able to lift between 75-100 lbs and work in temperatures that sometimes reach 120

degrees. Moreover, because of the fumes Casting/Alloy employees must wear

respirators and are required to take annual respirator fit tests, pulmonary function

tests, hearing tests, and blood lead levels tests. 

2McNabb last took such examinations on April 21, 2005 and October 12, 2005

and was deemed medically able to work in the Casting/Alloy Department. (Pl.’s Ex.

4, Physical Exam Reports). 

3

prepared mold to form a solid ingot possessing specific properties.1 (Pl.’s Ex. 3,

Casting/Alloy Job Description). To be able to work in Casting/Alloy, one must

submit to a medical examination and laboratory tests to determine if the employee has

some medical condition that would place them at an increased risk of impairment to

health from exposure to lead and/or arsenic.2

In October 1992, McNabb resigned his employment for a short period to enter

a drug and alcohol dependency program. (Pl’s Ex. 1, McNabb Decl. ¶4). After

successfully completing this program, McNabb reapplied with Sanders Lead and was

rehired into the same position in Casting/Alloy in November 1992. (Id.). After

returning to Sanders Lead in November 1992, except for a short stint, McNabb

worked mainly as a Casting/Alloy Operator. (Id.). McNabb had no other breaks in

employment until his lay-off in January 2006. (Pl.’s Ex. 1, McNabb Decl. ¶4). 

B. McNabb is Terminated After Fourteen Years With Sanders Lead

Sometime in October or November 2005, Sanders Lead announced that it was

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3The following documents which were produced by the Defendant support this

allegation: Defendant’s change in employment status form which gives reduction in

force as the only reason for separation; (Pl.’s Ex. 6, Sanders Letters), Defendant’s

response to Unemployment Compensation Division Form which states the reason for

separation as reorganization of company and reduction in force; (Pl.’s Ex. 7, Notice

of Claim and Request for Separation Information), Defendant’s statement of position

to the EEOC which states that McNabb was, “laid-off in January 2006 as part of a

company wide reduction in force which was done to reduce Company expenses; (Pl.’s

Ex. 8, EEOC Statement of Position). 

4

anticipating going through a company reorganization and work force reduction. (Pl.’s

Ex. 1, McNabb Decl. ¶5). At that time no one discussed with McNabb the prospects

of him being included in any reduction in force or lay-off, nor was he ever notified

that his production had fallen off. (Pl.’s Ex. 1, McNabb Decl. ¶5). Moreover,

McNabb had just received a raise in September 2005 and had received a satisfactory

job performance ratings for the year 2005, which was signed off on by his direct

supervisor, Leon Bennet, and department head, Edgar Fannin. (Pl.’s Ex. 1, McNabb

Decl. ¶5; Pl.'s Ex. 5,Annual Employee Evaluations).

On or about January 5, 2006, Sanders Lead informed McNabb that he had been

selected to be laid-off due to a reduction in force and a desire by Sanders Lead to

reduce expenses. (Pl.’s Ex. 1, McNabb Decl. ¶6). Before McNabb filed the instant

lawsuit, these were the only reasons he was given for being laid off and at no time

prior to the filing of this lawsuit was he notified that he was being laid-off because

of absenteeism, tardiness, low production, or discipline problems.3

 Indeed, McNabb

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5

had no disciplines in his work file for the preceding seven-months leading up to his

being laid-off and, as mentioned above, he had been rated as a satisfactory employee

for the year of 2005. (See, Def.'s Br. at 5). Moreover, on the "Employment

Recommendations" section of Sanders Lead's "Change of Employee Status" form,

McNabb's separation is termed a lay-off and the reason given is company

reorganization and reduction in work force. (Pl.’s Ex. 9, Change of Employment

Status). Furthermore, McNabb received the highest marks attainable on this form for

attendance, attitude, job knowledge, quality of work, production rate and ability to

get along with fellow workers. (Id.). 

Upon being informed that he was being laid off, McNabb expressed to Mr.

Fannin his desire to keep working, however, Fannin stated that McNabb should go

ahead and accept it. (Pl.’s Ex. 1, McNabb Decl. ¶6). Three other employees were laid

off with McNabb: Kenneth Bristow, Edward Meadows, and Jacquez C. Williams.

(Pl.'s Ex. 8, EEOC Position Statement). These employees were less experienced than

McNabb and did not possess his length of tenure in the Casting/Alloy Department.

(Pl.’s Ex. 1, McNabb Decl. ¶6). 

 After being laid-off, McNabb applied for unemployment compensation

which he received. (Pl.’s Ex. 1, McNabb Decl. ¶7; Pl.’s Ex. 7). On the State of

Alabama Unemployment Compensation Division"Notice of Claim and Request for

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6

Separation Information" form Sanders Lead reiterated what it had stated to McNabb

as the reason for his separation, which was that the company was going through a

reorganization and reduction in force. (Pl.’s Ex. 7). This was the only reason ever

given by Sanders Lead to the State of Alabama for McNabb’s separation. 

On or about March 7, 2006, Sanders Lead placed a help wanted advertisement

in a local Troy newspaper, the Troy Messenger. (Pl.’s Ex. 10, Job Advertisement).

This advertisement stated the following: “Sanders Lead Co. is taking applications for

all shifts in the Furnace Dept. and Casting & Alloy Dept. Applicants must be able to

lift 75-100 lbs & climb some heights. BC/BC insurance & 401-k. Starting pay $8.

Apply at Sanders Lead Co. Personnel Dept. 334-566-1563.” (Pl.’s Ex. 10, Job

Advertisement). This advertisement instructed applicants to apply by calling the

listed number. (Id.). During his career, McNabb had worked in both of these

departments, although the bulk of his experience was as a Casting/Alloy Operator.

((Pl.’s Ex. 1, McNabb Decl. ¶8). 

Upon reading this advertisement, McNabb immediately called Edgar Fannin

and requested his old job back. (Pl.’s Ex. 1, McNabb Decl. ¶9). During this call

McNabb informed Mr. Fannin that he had seen Sanders Lead’s advertisement

regarding openings in his old department. (Id.). Mr. Fannin’s reply was to tell

McNabb that the advertisement was not accurate and that Sanders Lead was not

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4McNabb's testimony directly disputes Fannin's contention that he was unaware

that McNabb had ever sought re-employment. (See, Fannin Aff. at ¶10). Moreover,

as an interested party, Fannin's Affidavit cannot be relied upon for purposes of

summary judgment except to the extent that it contains admissions against interest.

Thus, Sanders Lead's contention that it was never put on notice of McNabb's interest

in re-employment until May 24, 2006 is a disputed fact and precludes summary

judgment. 

5Sanders Lead placed help wanted ads in approximately three local newspapers.

(Pl.’s Ex. 12, Job Advertisements).

7

hiring. (Id.). Near the end of the conversation, McNabb reiterated his desire to return

to work.4

 (Id.). It had been past practice that if Mr. Fannin knew you wanted to work

he would hire you on the spot and then have you fill out a formal application later.

(Pl.’s Ex. 1, McNabb Decl. ¶6). McNabb's interest was also spurred by the fact that

around this same time he had spoken with Ed Meadows who had been laid-off with

him and had recently been re-hired. (Pl.’s Ex. 1, McNabb Decl. ¶6). Meadows was

born on November 26, 1981 and was at the time approximately twenty-five years old.

(Pl.’s Ex. 11, Employment Eligibility Verification). 

Sanders Lead advertised for workers to fill positions in its Casting/Alloy

Department all through the month of March 2006.5

 However, McNabb was never

contacted by Mr. Fannin or any other Sanders Lead official after he had made it

known that he was interested in re-employment. (Pl.’s Ex. 1, McNabb Decl. ¶9-10).

With full knowledge of McNabb's interest in work Sanders Lead hired the following

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6Employee roster produced by Sanders Lead in response to Plaintiff's First

Interrogatories and Request for Production of Documents. (Pl.’s Ex. 13, Sanders

Lead Employment Roster).

8

significantly younger employees into the Casting/Alloy Department:

Employee Name Department Date of Birth Date of Hire

Sandy A. Boswell Casting/Alloy 12/29/1984 4/21/2006

Robert E. Brundidge, Jr. Casting/Alloy 04/27/1977 05/05/2006

Cornelius Clark Casting/Alloy 06/23/1985 04/05/2006

Demond T. Collins Casting/Alloy 03/06/1974 03/30/2006

Alenda E. Dixon Casting/Alloy 11/04/1969 04/11/2006

Randolph E. Harley, II Casting/Alloy 11/03/1986 04/27/2006

Kaunta K. McGrew Casting/Alloy 02/07/1977 03/31/2006

Darrian Q. McNabb Casting/Alloy 08/06/1986 04/25/2006

Darius L. Sims Casting/Alloy 02/09/1987 04/15/2006

Frederick T. Snell Casting/Alloy 11/05/1979 03/10/20066

On March 31, 2006, McNabb filed a charge of discrimination with the Equal

Employment Opportunity Commission (EEOC) alleging that he had been

discriminated against on the basis of his age (54) in violation of the Age

Discrimination in Employment Act. (Pl.’s Ex. 14, EEOC Charge). On or about April

5, 2006, a Notice of Charge of Discrimination was mailed to Bart Sanders giving

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Sanders Lead until May 5, 2006 to provide a statement of position regarding

McNabb's allegations. (Pl.’s Ex. 15, Notice of Charge of Discrimination). Sanders

Lead provided such a statement on or about May 4, 2006. (Pl.’s Ex. 8, EEOC

Statement of Position). In its statement of position, Sanders Lead stated that McNabb

was laid-off as part of a "company wide reduction in force which was done to reduce

Company expenses." (Id.). Absent from this statement of position was any claim

that McNabb was let go for any other reason(s). 

On May 24, 2006, McNabb and Joe Owens visited Sanders Lead to pick up job

applications as it was common knowledge that Sanders Lead was continuing to hire

employees for the Casting/Alloy Department. (Pl.’s Ex. 1, McNabb Decl. ¶13; Pl.’s

Ex. 16, McNabb Aff.). McNabb and Owens first met with Anne Baker, a secretary,

who gave them applications to fill out and instructed them to return them that day

after lunch.(Pl.’s Ex. 1, McNabb Decl. ¶13-14). McNabb and Owens returned that

same day and submitted their applications to Sanders Lead. (Pl.’s Ex. 1, McNabb

Decl. ¶13-14). 

Upon returning, McNabb spoke directly with Personnel Manager Sam

Kitchens. (Pl.’s Ex. 1, McNabb Decl. ¶14). Mr. Kitchens informed McNabb that

there were openings in the Casting/Alloy Department and that he would get back to

Case 2:06-cv-00664-MHT-SRW Document 25 Filed 07/02/2007 Page 9 of 26
7McNabb's testimony directly disputes Kitchens's testimony which states that

there were no openings in the department at the time of McNabb's second application

for employment. (Compare Kitchens’s Aff. at 9 with McNabb’s Decl. at ¶14). Again,

the inference the Court must credit at this stage is the one most favorable to the

Plaintiff. 

10

him regarding within a couple of days regarding his application.7 (Id.). After this

meeting, McNabb never heard from Mr. Kitchens and Sanders Lead continued to hire

younger less qualified employees into the Casting/Alloy Department. (Pl.’s Ex. 13,

Sanders Lead Employment Roster). The following younger employees were hired

into the department after McNabb's second application:

Employee Name Department Date of Birth Date of Hire

Matthew D. Alexander Casting/Alloy 09/07/1978 06/16/2006

Robert D. Boykin Casting/Alloy 11/08/1984 10/24/2006

James B. Carlisle Casting/Alloy 07/20/1972 11/17/2006

Christopher Chambers Casting/Alloy 01/01/1979 09/22/2006

Tony L. Gamble, Jr. Casting/Alloy 11/23/1980 11/06/2006

Kenyata Gilbert Casting/Alloy 08/09/1986 05/26/2006

Tony D. Graham Casting/Alloy 08/25/1984 08/11/2006

Ledon A. Grice Casting/Alloy 02/29/1980 10/20/2006

Zane B. Hall Casting/Alloy 11/05/1986 10/20/2006

Jonas R. Hannah Casting/Alloy 03/29/1976 10/20/2006

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8Seven of these employees were hired within four weeks of McNabb's

application. Indeed, Kenyata Gilbert, a nineteen-year old at the time, was hired on

May 26, 2006, two days after McNabb submitted his application. This is in direct

contradiction to Kitchens's testimony that there were no openings when McNabb

applied the second time and as such precludes summary judgment. 

11

Lydell Harris Casting/Alloy 08/08/1976 09/01/2006

Jerrell T. Jackson Casting/Alloy 11/29/1968 06/09/2006

Jeremiah Jones Casting/Alloy 01/07/1967 09/01/2006

Trenton L. Jones Casting/Alloy 04/02/1974 09/05/2006

Joseph D. Lightfoot Casting/Alloy 07/20/1980 09/26/2006

Desmund T. McNabb Casting/Alloy 05/08/1988 08/04/2006

Eddie R. Meadows, Jr. Casting/Alloy 01/06/1984 07/27/2006

Terrance T. Pennington Casting/Alloy 04/23/1988 06/09/2006

Manach Pierre Casting/Alloy 01/12/1975 10/06/2006

Adrian S. Price Casting/Alloy 01/28/1977 10/27/2006

Elijah R. Rouse Casting/Alloy 05/23/1975 11/18/2006

Felix J. Solomon Casting/Alloy 08/09/1983 06/02/2006

Ricco L. Swanson Casting/Alloy 05/28/1982 07/22/2006

Mitchell T. Truitt Casting/Alloy 12/12/1976 06/23/2006

Astin R. Williams Casting/Alloy 08/27/1981 07/11/2006

Nichoulas O. Williams Casting/Alloy 06/24/1985 06/12/20068

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9McNabb would have been interested in this position if he had known about it.

12

The Defendant also advertised for applicants for a Welder/Maintenance Man

position for which McNabb was qualified. (Pl.’s Ex. 12, Job Advertisements).

However, even though the Defendant was aware of the Plaintiff’s interest in securing

a position with, he was not considered for this job either.9 On July 13, 2006, McNabb

filed a second charge of discrimination with the EEOC alleging that the company

retaliated against him for opposing discriminatory practices. (Pl.’s Ex. 17, EEOC

Charge). McNabb filed the instant action in federal court on July 25, 2006. (See,

Doc. #1, Compl.). 

III. ARGUMENT

A. Summary Judgment Standard

In Hinson v. Clinch County, 231 F.3d 821 (11th Cir. 2000), the Eleventh

Circuit set forth the applicable standard of review for summary judgment. 

“A court must draw all reasonable inferences in favor of the

nonmoving party, and it may not make credibility determinations or

weight the evidence.” * * * “[T]he court should give credence to the

‘evidence favoring the non-movant as well as that evidence supporting

the moving party that is uncontradicted and unimpeached, at least to the

extent that evidence comes from disinterested witnesses.’” Id. In other

words, we must consider the entire record, but “disregard all evidence

favorable to the moving party that the jury is not required to believe.”

Id. (citations omitted; quotations from Reeves v. Sanderson Plumbing, 530 U.S. 133

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10

 See also Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir. 2003)

(Courts “must ‘disregard all evidence favorable to the moving party that the jury is

not required to believe.’”); Sonnentheil v. Christian Moerlein Brewing Co., 172 U.S.

401, 408 (1899) (“[T]he mere fact that the witness is interested in the result of the suit

is deemed sufficient to require the credibility of his testimony to be submitted to the

jury as a question of fact.”); Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624-25

(1941) (discounting the value of affidavits of interested witnesses); Hibiscus Assoc.

Ltd. v. Board of Trustees, 50 F.3d 908, 921 (11th Cir. 1995) ( “court should not

generally grant a directed verdict based solely on the unfavorable testimony of an

interested witness, even if this evidence is uncontroverted”); J&H Auto Trim Co. v.

Bellefonte Ins. Co., 677 F.2d 1365, 1369 (11th Cir. 1982) ( “as an interested witness,

it is for the jury to evaluate the credibility of his testimony”); Falk v. C.I.R., 332 F.2d

922, 927 (5th Cir. 1964) (“words . . .spoken by interested parties [is] a factor which

any trier ordinarily can take into account”).

13

(2000).10

B. Plaintiff Has Established A Prima Facie Case Of Age Discrimination

The Defendant does not address the Plaintiff’s discriminatory failure to hire

claim in its brief, therefore, it has conceded any argument as to whether this claim

should proceed to trial because “the onus is upon the parties to formulate arguments”

to support their positions at summary judgment. Resolution Trust Corp. v. Dunmar

Corp., 43 F.3d 587, 599 (11th Cir. 1995). Even if this Court were to allow the

Defendant an opportunity to address the discriminatory failure to hire claim, there

is no doubt that the Plaintiff can establish his prima facie case of age discrimination.

1. The Prima Facie Case

To establish a prima facie case of discriminatory failure to hire under the

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14

federal anti-age discrimination statute, a plaintiff must show that (i) he is a member

of the protected group of persons between the ages of forty and seventy; (ii) he was

qualified for and applied for a position the employer was trying to fill; (iii) he was

denied the position; and (iv) others who were not members of the protected class (or

who were substantially younger than plaintiff) were hired, or the employer continued

to seek applicants with the plaintiff's qualifications. Underwood v. Perry County

Com'n, 431 F.3d 788, 794 (11th Cir.2005); Vessels v. Atlanta Independent School

System, 408 F.3d 763, 768 (11th Cir.2005);Damon v. Fleming Supermarkets of

Florida, Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). 

a. Plaintiff is a Member of a Protected Group 

The evidence satisfies each of the elements of a prima facie case. First, both

parties agree that McNabb was a member of the protected group because it is

undisputed that he was fifty-four at the time of the events that form the basis of the

instant lawsuit. 

b. Plaintiff was Qualified for the Position and 

Applied for it.

Second, the Plaintiff was qualified for and applied for positions that the

Defendant was trying to fill. Plaintiff’s evidence that he was qualified for the

Casting/Alloy Department is overwhelming: he had worked as a Casting/Alloy

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11As this Court has previously held, qualification for a particular job is assumed

when an employee has been in position for a significant period of time. Israel v.

Sonic-Montgomery FLM, Inc., 231 F.Supp. 1156, 1160 (M.D. Ala. 2002)(quoting

Crapp v. City of Miami, Beach, 242 F.3d 1017, 1020 (11th Cir. 2001)). 

12See “Change of Employee Status” form “Employment Recommendations”

section. (Pl.’s Ex. 9, Change of Employee Status form).

13See, Pl.’s Ex.1, McNabb Decl. ¶5 and Pl.’s Ex. 5, 2005 Performance

Evaluations.

15

Operator for approximately fourteen years11; he had been deemed medically able to

do his job by the Defendant’s own doctors; on its own employment separation form,

dated January 5, 2006, the Defendant rated Plaintiff eligible for rehire and he

received the highest marks attainable in the following areas: attendance, attitude, job

knowledge, quality of work, production rate, and ability to get along with fellow

workers12; the Defendant told Plaintiff, the EEOC, and the State of Alabama that the

Plaintiff had been laid off because of a reduction in force and a company

reorganization to save expenses; and he had received a raise in September 2005 and

satisfactory job performance ratings for that same year.13 Furthermore, the Defendant

concedes under oath that Plaintiff was qualified in its response to Plaintiff’s

Interrogatory No. 3:

Q. “Do you alleged or contend that Maxie McNabb was

unqualified to work in the Furnace Department and/or the

Casting & Alloy Department? If so, please state each and

every reason for your allegation.” 

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16

***

A. “As far as Defendant knows, Plaintiff was physically able to perform his

job duties.” (Pl.’s Ex. 18, Pl. First Interrogatories and Request for

Production of Documents at pg. 7 and Pl.’s Ex. 19, Defendant’s

Interrogatory Responses at pg. 2). 

Defendant never alleged to any organization or individual that Plaintiff was

unqualified for the position until it filed its Motion for Summary Judgment.

Likewise, it is equally undisputed that Plaintiff applied for a position in the

Casting/Alloy Department. After seeing an advertisement seeking workers for the

Defendant’s Casting/Alloy Department in the Troy Messenge on March 7, 2007,

Plaintiff called Edgar Fannin and requested he be rehired into his old position as a

Casting/Alloy Operator. Plaintiff’s applying in this manner is on all fours with the

manner of application set forth by the Defendant in the aforementioned

advertisement, which gave a number for prospective applicants interested in

employment to call. Nowhere on this advertisement did it state that prospective

applicants need fill out a formal application before being hired. Moreover, it was the

Defendant’s practice to let Fannin hire an applicant, who expressed an interest to

work, on the spot and then have he or she fill out a formal application later. (Pl.’s Ex.

1, Pl.’s Decl. ¶9). Therefore, it must be held that Plaintiff satisfies this prong of his

prima facie case.

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17

c. Plaintiff was Denied the Position

It is undisputed that Plaintiff was denied the position as he was never rehired

by the Defendant. Not only was Plaintiff not rehired, he was also given false

information regarding the availability of positions by Fannin. Plaintiff testifies that

Fannin told him that there were no openings in his old department and that the

advertisement was not accurate, however, this contention is belied by the fact that at

least ten significantly younger employees were hired into the Casting/Alloy

Department after Plaintiff’s first request to be put back to work. (See, Pl.’s Br. at pgs.

7-8, supra). Plaintiff satisfies this prong of his prima facie case.

d. The Defendant Hired Substantially Younger Employees

and Continued to Seek Other Applicants Who Were

Equally or Less Qualified than the Plaintiff

As mentioned in Section II(B) of this brief, the Defendant hired at least ten

significantly younger employees while rejecting the Plaintiff. Additionally, after

rejecting the Plaintiff’s application, the Defendant continued to advertise for

applicants for the Casting/Alloy Department by running advertisements in at least

three newspapers in the region. Plaintiff has now made out his prima facie case. 

After the Plaintiff establishes his prima facie case of age discrimination, the

burden now shifts to the Defendant to articulate a reason for the adverse employment

action. In this particular case the Defendant has articulated two reasons for all of its

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18

decisions regarding the Plaintiff: (1) the Plaintiff was not qualified for employment

due to discipline problems, poor work ethic and unsatisfactory production; and (2) it

was not hiring people in the casting and alloy department and therefore the Plaintiff

was not replaced by anyone outside of the protected group. (See Def.’s Br. at 12, 14,

16-18). Once the Defendant articulates a legitimate reason for the adverse

employment action, the burden shifts back to the Plaintiff to establish that the

Defendant's articulated reason is merely a pretext for age discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 804-805 (1973); Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 258 (1981). 

C. Defendant’s Articulated Reasons For Plaintiff’s Non-Selection Is

Disputed And May Be Found To Be False And Pretextual At Trial

Defendant’s articulated reasons for its actions toward the Plaintiff are directly

disputed by the Plaintiff’s testimony, by the Defendant’s own testimony given under

oath, and documents provided by the Defendant in response to Plaintiff’s Request for

Production of Documents. In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 147-154 (2000), the Supreme Court held that “a plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s asserted justification

is false, may permit the trier of fact to conclude that the employer unlawfully

discriminated.” Id. at 148. Summary judgment is improper where material facts and

inferences are in conflict, as here.

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14April and October 2005 physicals. 

19

1. Shifting Reasons for Not Hiring the Plaintiff

The fact that an employer has offered shifting or inconsistent post hoc

explanations for its employment decisions is probative of pretext. Bechtel Const. Co.

v. Secretary of Labor, 50 F.3d 926, 935 (11th Cir. 1995) (shifting explanations for it

actions evidence of pretext); Howard v. BP Oil Co., Inc., 32 F.3d 520, 526-527 (11th

Cir. 1994) (identification of inconsistencies in the defendant’s testimony is evidence

of pretext); E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001);

Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 647 (4th Cir. 2002).

Moreover, inconsistent reasons for taking a particular employment action allows for

a jury to question the employer’s credibility. E.E.O.C. v. Sears Roebuck & Co., 243

F.3d 846, 852-54 (4th Cir. 2001). Once credibility is damaged, the jury can infer

improper motivations on the part of the employer. Cleveland v. Home Shopping

Network, Inc., 369 F.3d 1189, 1194-95 (11th Cir. 2004). 

In the instant case, no mention is made of any problems with the Plaintiff’s

performance until Defendant’s Motion for Summary Judgment. Before that time, the

Defendant (1) had found the Plaintiff physically able to perform his job duties14, (2)

had rated the Plaintiff as a satisfactory employee for the work year 2005, (3) had

given the Plaintiff a raise, (4) had rated Plaintiff eligible for rehire and had given him

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15It should be noted that the Defendant has refused to turn over the personnel

files of possible comparators to the Plaintiff. The Defendant’s recalcitrance on this

point is the subject of a Motion to Compel, which was granted by this Court on July

2, 2007. 

20

the highest marks attainable in the following areas: attendance, attitude, job

knowledge, quality of work, production rate, and ability to get along with fellow

workers, (5) had informed the Plaintiff that he was being laid-off because of a

company reorganization and a desire to cut expenses, (6) gave this same rationale for

Plaintiff’s lay-off to the EEOC; (7) gave reorganization of company and reduction

in force as the reason for Plaintiff’s separation to the State of Alabama; and (8)

testified, under oath, in response to an interrogatory regarding whether Plaintiff was

qualified to work in Casting/Alloy, that “[a]s far as Defendant knows, Plaintiff was

physically able to perform his job duties.” 

In its brief, Defendant gives a totally different assessment of the Plaintiff’s

abilities and work record by citing to numerous write-ups in Plaintiff’s personnel

file.15 However, Plaintiff was last written up in May 2005, approximately seven

months before his lay-off. Moreover, Plaintiff was never terminated despite being

“written up” numerous times. On the other hand, Defendant has fired and rehired

younger employees with disciplinary problems. For example, the following

employees were fired for various rules infractions and rehired: 

Case 2:06-cv-00664-MHT-SRW Document 25 Filed 07/02/2007 Page 20 of 26
16D.O.B., D.O.T., and D.O.R. refer to date of birth, date of termination and date

of rehire, respectively. 

17Plaintiff was able to glean the following from the applications given to him

by Defendant in response to his request for production of documents: Williams was

terminated for missing too many days, Harley was terminated for smoking,

Brundidge’s reason for termination are unknown, Streeter was terminated on at least

two occasions for reasons unknown, Rayborn was terminated for reasons unknown

and Duncan was terminated for unknown reasons. As mentioned above, the Court

has granted the Plaintiff’s Motion to Compel production of the personnel files of

these individuals and others which may show additional evidence of individuals with

less than stellar work records who were terminated and then rehired.(Pl.’s Ex. 20,

Applications).

21

Employee D.O.B. D.O.T. D.O.R.16

Ed Meadows 11/26/1981 01/05/2006 03/2006

Nicholas O. Williams 06/24/1985 09/2005 06/12/2006

Randolph E. Harley 11/03/1986 11/2005 04/27/2006

Robert E. Brundidge, Jr. 04/27/1977 Unknown 05/05/2006

Bobby T. Streeter 01/12/1979 02/1999 03/2000

Timothy Rayborn 09/04/1978 02/2004 08/14/2006

Anthony L. Duncan 01/11/1971 11/2006 03/13/200617

Defendant’s assertion that the Plaintiff was not qualified is undercut by its own

admissions and its own documents, thus for these reasons alone summary judgment

is inappropriate. 

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2. The Defendant Continued to Hire Substantially

Younger Employees

Defendant characterizes the employees it hired instead of the Plaintiff as

“replacement employees for the employees who had left the company after the work

force reduction.” (See, Def. Br. at 14-15). However, the sentence preceding this one

in the Defendant’s brief states that, [t]here is no evidence that infers that Sanders

Lead was looking for replacement employees for the workers that were discharged

during the work force reduction.” (See, Def. Br. at 14). Defendant argues that there

is distinction between employees “discharged” during the work force reduction and

employees who had left the company after the work force reduction and that because

the Plaintiff was “discharged”, presumably for performance reasons, he is not eligible

for rehire. Defendant’s argument, however, is destroyed by its own documentation

and statements made before the Plaintiff filed the instant lawsuit which clearly show

that it classified the Plaintiff as an employee affected by a company reorganization

and work force reduction. Thus, the Plaintiff was not a “discharged” employee

ineligible for rehire, but, instead was an employee who had left the company after the

work force reduction. The Defendant submitted documents plainly stating this fact

to the Plaintiff, the EEOC and the State of Alabama. Therefore, the Plaintiff was

eligible for rehire and the Defendant should have considered his application. 

 Furthermore, as mentioned in Sections II(B) of this brief, the Defendant hired

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23

at least ten significantly younger employees while rejecting the Plaintiff’s application.

Tellingly, after rejecting the Plaintiff’s application, the Defendant continued to

advertise for applicants for the Casting/Alloy Department by running advertisements

in at least three newspapers in the region. Thus, it must be held that the Defendant’s

argument that the Plaintiff was not replaced by someone outside the protected group

is incredible and summary judgment is inappropriate.

D. Plaintiff’s Establishes a Claim of Retaliation

To establish a prima facie case of retaliation the Plaintiff must show that he (1)

engaged in statutorily protected conduct; (2) suffered an adverse employment action;

and (3), the adverse action was causally related to the protected expression.” Farley

v. Nationwide Mutual Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999). In its brief,

the Defendant concedes that the Plaintiff engaged in protected conduct by filing a

charge of discrimination with the EEOC and that he suffered an adverse employment

action by being denied employment a second time. (See, Def. Br. at 15-16). 

Defendant only contests the causative element of the Plaintiff’s prima facie case on

the basis that (1) it was not hiring at the time the Plaintiff applied and (2) even if it

were hiring Plaintiff’s past work performance would have precluded his selection.

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1. Plaintiff Establishes a Causal Link Between the Protected

Activity and the Adverse Employment Action

 The Eleventh Circuit has repeatedly interpreted the "causal link requirement"

broadly. See, Meeks v. Computer Assocs. Int'l., 15 F.3d 1013, 1021 (11th Cir. 1994);

EEOC v. Reichhold Chem., Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993). In Meeks

and Reichhold, the Court stated that "a plaintiff merely has to prove that the protected

activity and the negative employment action are not completely unrelated." Meeks,

15 F.3d at 1021 (emphasis added); Reichhold, 988 F.2d at 1571-72. The Eleventh

Circuit has further stated that: 

The causal link in the [retaliatory discharge] formula [is

not] the sort of logical connection that would justify a

prescription that the protected participation in fact

prompted the adverse action. . . . Rather, we construe the

"causal link" element to require merely that the plaintiff

establish that the protected activity and the adverse

action were not wholly unrelated. At a minimum, a

plaintiff must generally establish that the employer was

actually aware of the protected expression at the time it

took the adverse employment action. (internal cites

omitted).

Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 920 (11th Cir. 1993). 

The undisputed evidence shows that the Matthew D. Alexander, Kenyata

Gilbert, Jerrell T. Jackson, Terrance T. Pennington, Felix J. Solomon, Mitchell T.

Truitt, and Nichoulas O. Williams were all hired within two to twenty-eight days of

the Plaintiff’s second application. Moreover, the average age of these applicants a

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25

that time was twenty-four and one-half years (24.5). Furthermore, Kenyata Gilbert,

who was nineteen-years old at the time, was hired just two days after the Plaintiff

submitted his second application. Thus, Defendant’s allegation that it was not hiring

is simply not true, especially since it continued hiring individuals before and after it

knew of the Plaintiff’s interest. (Id.). With regard to the allegation that Plaintiff’s

past work performance was a bar to re-employment, as mentioned above there are

numerous disputed facts and inconsistencies regarding his work history and

performance which preclude summary judgment. Clearly, it must be held that

Plaintiff has made out a prima facie case of retaliation.

2. Pretext

Once a prima facie case has been established, the Defendant must proffer a

legitimate non-discriminatory reason for the adverse employment action. Farley v.

Nationwide Mutual Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999). Defendant’s

legitimate non-discriminatory reasons for not re-hiring the Plaintiff are the same as

the reasons it has put forth to rebut Plaintiff’s prima facie case. Plaintiff will not

rehash his prior arguments, but will say that Defendant’s reasons are equally

unavailing in this portion of the analysis. Therefore, it must be held that Defendant’s

refusal to rehire the Plaintiff is nothing more than a pretext for impermissible

discrimination and for these reasons summary judgment is due to be denied. 

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IV. CONCLUSION

For all the foregoing reasons, the Defendant is not entitled to Summary

Judgment and its motion should be denied in its entirety.

Respectfully submitted,

/s/Roderick T. Cooks

Attorney for the Plaintiff

OF COUNSEL:

WINSTON COOKS, LLC

The Penick Building

319-17th Street North

Birmingham, AL 35203

Tel: (205)502-0970

Fax: (205)251-0231

email: rcooks@winstoncooks.com

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document on all

persons listed below by CMF/Electronic Mail and/or U. S. Mail, postage prepaid and

addressed to them as follows:

Matthew M. Baker, Esq.

Cervera, Ralph & Reeves, LLC

P.O. Box 325

914 South Brundidge Street

Troy, Alabama 36081

(334) 566-0116

Done this the 2nd day of July, 2007.

s/Roderick T. Cooks

Of Counsel 

Case 2:06-cv-00664-MHT-SRW Document 25 Filed 07/02/2007 Page 26 of 26