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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAXIE MCNABB, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06cv664-MHT

)

SANDERS LEAD COMPANY, INC., )

)

Defendant. )

_____________________________________________________________________

DEFENDANT’S BRIEF IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT

_____________________________________________________________________

COMES NOW, Defendant Sanders Lead Company, Inc. (“Sanders Lead”),by and

through the undersigned counsel of record, and moves this Honorable Court to enter

summary judgment in Defendant’s favor pursuant to Rule 56 of the Federal Rules of Civil

Procedure. As grounds therefore, Sanders Lead submits the following Brief in Support of

its Motion for Summary Judgment. Sanders Lead alleges that no genuine issues of

material fact exist and Defendant is entitled to judgment as a matter of law. Accordingly,

Sanders Lead states as follows:

I. INTRODUCTION

In his complaint, Plaintiff, Maxie McNabb, attempts to bring claims against Sanders

Lead under “the Age Discrimination in Employment Act,” (ADEA) as amended, 29 U.S.C.

§ 621, et seq., 29 U.S.C. §§ 215 and 216, and 42 U.S.C. §2000e-3 (a) and a retaliation

claim for Sanders Lead allegedly not rehiring him months after he was discharged. As

shown below, however, Mr. McNabb cannot present the Court sufficient evidence to

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support his claims against Sanders Lead. Consequently, Sanders Lead is entitled to

summary judgment on each and every claim asserted against it by Mr. McNabb.

II STATEMENT OF FACTS

According to Plaintiff Maxie McNabb, he began working for Sanders Lead as a

laborer in the Casting and Alloy Department in August of 1992. See Plaintiff’s Complaint,

p. 2, ¶ 7. Mr. McNabb remained a laborer for most of his career at Sanders Lead with the

exception of a period of time in 1998 to 1999 when he worked in the laundry department.

See Exhibit 1 the Affidavit of Edgar Fannin, p. 1, ¶ 5. At no time during his employment,

was he ever under an employment contract. 

Over the course of his employment, Mr. McNabb received several disciplinary

warnings from his supervisors. On April 21, 1997, Mr. McNabb received a notice for

extending break periods. See attached exhibit 2. On May 17, 1997, Mr. McNabb received

a notice for an unexcused absence. See attached exhibit 2. On September 28, 1997, Mr.

McNabb received another notice for an unexcused absence. See attached exhibit 3. On

October 11 and October 22, Mr. McNabb received a notice for two other unexcused

absences. See attached exhibit 3. On March 4, 1998, he received a notice for failure to

see a required training film. See attached exhibit 4. On April 4, 1998, Mr. McNabb

received a notice improperly doing his job that included a remark about the seriousness

of this violation. See attached exhibit 5. On April 27, 1998, Mr. McNabb received a notice

for an unexcused absence. See attached exhibit 5. On June 29, 1998, Mr. McNabb

received a notice for an unexcused absence and was suspended for three days. See

attached exhibit 6. On August 24, 1998, he received a warning for loitering during working

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hours. See attached exhibit 6. On November 22, 1998, he received a warning for another

unexcused absence. See attached exhibit 7. On November 27, 1998, he received another

warning for an unexcused absence. See attached exhibit 8. On March 1, 1999 he

received a warning for leaving his assigned work station without permission. See attached

exhibit 9. On March 15, 1999 he received a warning for arriving late for his assigned shift.

See attached exhibit 9. On September 4, 1999, he received a warning for excessive

tardiness. See attached exhibit 7. On September 6, 1999, he received another warning

for excessive tardiness. See attached exhibit 8. On January 21, 2000, Mr. McNabb

received a notice for not calling in or coming in to work on the previous day. See attached

Exhibit 10. On March 24, 2000, Mr. McNabb received another notice for not calling in or

coming in to work on the previous day. See attached Exhibit 11. On June 18, 2000, Mr.

McNabb received yet another notice for not calling in or coming in to work. See attached

Exhibit 11. On November 27, 2000, he received a warning for tardiness. See attached

Exhibit 12. On December 28, 2000, he received another warning for an unexcused

absence. See attached Exhibit 12. On January 25, 2001 he received another warning for

an unexcused absence. See attached Exhibit 13. On March 27, 2001, Mr. McNabb

received a warning for insubordination and misconduct. See attached Exhibit 13. On

March 29, 2001, Mr. McNabb received another warning for insubordination and

misconduct. See attached Exhibit 14. On May 7, 2001, Mr. McNabb received another

notice for not calling in or coming in to work on the previous day. See attached Exhibit

14. On July 26, 2001, Mr. McNabb received a warning for being late to work. See

attached Exhibit 15. On August 4, 2001, Mr. McNabb received another warning for being

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late to work. See attached Exhibit 15. On March 7, 2002, he received another warning for

an unexcused absence. See attached Exhibit 16. On May 1, 2002, he received yet

another warning for an unexcused absence and was suspended for three days without pay.

See attached Exhibit 17. On May 31, 2002, Mr. McNabb received a warning for being late

to work. See attached Exhibit 18. On October 15, 2002, he received another warning for

an unexcused absence. See attached Exhibit 18. On November 19, 2002, Mr. McNabb

received a warning for being late to work. See attached Exhibit 19. On December 11,

2002, Mr. McNabb received a warning for smoking in the bathroom and was sent home.

See attached Exhibit 19. On November 19, 2002, Mr. McNabb received another warning

for being late to work. See attached Exhibit 20. On May 5, 2003, he received another

warning for an unexcused absence. See attached Exhibit 20. On May 15, 2003, Mr.

McNabb received a warning for failing to go for his six month arsenic physical. See

attached Exhibit 21. On May 18, 2003, Mr. McNabb received another warning for being

late to work. See attached Exhibit 21. On July 6, 2003, he received another warning for

an unexcused absence. See attached Exhibit 22. On August 22, 2003, Mr. McNabb

received a warning for an unexcused absence and falsification of documents. See

attached Exhibit 22. On September 25, 2003, he received another warning for an

unexcused absence. See attached exhibit 23. On November 15, 2003, Mr. McNabb

received a warning for not coming to work. See attached exhibit 24. On January 14, 2004,

he received another warning for an unexcused absence. See attached exhibit 24. On

February 8, 2004, Mr. McNabb received another warning for excessive tardiness. See

attached exhibit 25. On April 10, 2004, he received another warning for an unexcused

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absence. See attached exhibit 25. On May 13, 2004, he received yet another warning for

an unexcused absence. See attached exhibit 26. On June 7, 2004 Mr. McNabb received

another warning for unexcused absences on June 5 and June 6 of 2004. See attached

exhibit 26. On July 8, 2004, he received a warning for being late. See attached exhibit 27.

On July 18, 2004, Mr. McNabb received a notice for excessive absenteeism and was

suspended for three days without pay. See attached exhibit 28. On October 7, 2004 Mr.

McNabb received another notice for excessive absenteeism and was again suspended for

three days without pay. See attached exhibit 27. On March 1, 2005, he received a notice

for being absent without cause. A note concerning his bad attitude was made by Edgar

Fannin. See attached exhibit 29. On March 30, 2005, he received a notice for misconduct

and he was sent home. See attached exhibit 29. On May 2, 2005 Mr. McNabb received

a notice for poor workmanship and negligence that could lead to a work stoppage. Another

note was made regarding Mr. McNabb being a problem employee. See attached exhibit

30. In addition to the several warning notices given to Mr. McNabb, Edgar Fannin, the

departmnet head of casting and alloy, also held several discussions where he warned Mr.

McNabb his behavior, work ethic, attendance, insubordination, and tardiness. See Affidavit

of Edgar Fannin, p. 3, ¶ 12.

In January of 2006, management of Sanders Lead instituted a work force reduction

in order to reduce expenses. See Exhibit 31, Affidavit of Bart Sanders, p.1, ¶ 3. Employees

who had discipline problems, poor work ethic, and/or unsatisfactory production were looked

at first. See Affidavit of Bart Sanders, p.1, ¶ 4, and also Affidavit of Edgar Fannin, p.1, ¶

6. Mr. McNabb’s characteristics fit in all three categories and he was subsequently

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discharged. See Affidavit of Edgar Fannin, p. 1, ¶ 5. Prior to the reduction, Edgar Fannin,

Mr. McNabb’s supervisor, approached Mr. McNabb and discussed the situation with him.

Mr. McNabb was agreeable to the discharge due to the difficulty he had in performing the

job. See Affidavit of Edgar Fannin, p. 2, ¶ 7. Additionally, three other laborers in Mr.

McNabb’s department weredischarged. Of those employees, one was 19 and one was 21.

See Affidavit of Edgar Fannin, p. 2, ¶ 8.

Mr. McNabb states in his complaint that he was terminated because of his age,

simply because he claims he “always performed his duties and responsibilities in a

satisfactory manner.” See Plaintiff’s Complaint, p. 2, ¶ 7. Mr. McNabb does not have any

other evidence to support his claim he was terminated because of his age. On or about

March 31, 2006, Mr. McNabb filed a complaint for age discrimination with the EEOC. See

Plaintiff’s Complaint, p. 3, ¶ 11. That complaint was dismissed by the EEOC on June 6,

2006 as the EEOC was unable to conclude that the information obtained established any

violation of the statute. See attached Exhibit 32, EEOC Dismissal and Notice of Rights.

On May 24, 2006, Mr. McNabb visited Sam Kitchens, the personnel manager of

Sanders Lead, and discussed the possibility of coming back to work. See Exhibit 33,

Affidavit of Sam Kitchens, p. 2, ¶ 9. At that time, Sanders Lead was not hiring, and due

to Mr. McNabb’s previous work history, he would not likely have been hired even if Sanders

Lead was hiring. See Affidavit of Sam Kitchens, p. 2, ¶ 12, and also Affidavit of Edgar

Fannin, p. 2, ¶ 11. In Mr. McNabb’s complaint, he alleges that he “reapplied for a position

with Sanders Lead and was denied a position which [sic] Sanders Lead had represented

was open.” See Plaintiff’s Complaint, p. 4, ¶ 18. The representation Mr. McNabb is

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referring to is an advertisement placed in the Troy Messenger, Troy’s local newspaper, that

states Sanders Lead was seeking employees for the furnace department and the casting

and alloy department. That ad was placed March 10, 2006, two months and two weeks

prior to Mr. McNabb applying for a job. See Affidavit of Sam Kitchens, p. 2, ¶ 12. Mr.

McNabb does not have any other evidence to support his claim he was retaliated against

by Sanders Lead not rehiring him after he reapplied.

III STANDARD OF REVIEW

On a motion for summary judgment, the court must assess the proof in order to

determine whether there is a genuine need for a trial. See Mulhall v. Advance Security,

Inc., 19 F.3d 586, 590 (11th Cir. 1994). Summary Judgment is appropriate only if the

record shows that there is no genuine issue as to any material fact. See id.; Fed R. Civ.

P. 56(c). “Material facts are those that might affect the outcome of the suit under

governing law.” Id. “All justifiable inferences about the facts must be resolved in favor of

the non-movant.” Id. (citations omitted). “Where the record taken as a whole could not

lead a rationale trier of fact to find for the non-moving party, there is no “genuine issue for

trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting

First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

Rule 56(c) of the Federal Rules of Civil Procedure “mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Beck v. City of

Haleyville, Alabma, 127 F. Supp. 2d 1197, 1205 (N.D. Ala 2001)(quoting Celotex Corp. v.

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Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). “In such a

situation, there can be no genuine issue as to any material fact, since the complete failure

of proof concerning an essential element of the non-moving party’s case necessarily

renders all other facts immaterial.” Id.

IV ARGUMENT AGAINST PLAINTIFF’S AGE DISCRIMINATION CLAIM

The plaintiff in an ADEA case “bears the ultimate burden of proving by a

preponderance of the evidence that age was a determining factor in the employer’s

decision to dismiss him.” Zaben v. Air Product Chemicals, Inc., 129 F.3d 1453, 1457 (11th

Cir. 1997)(citing Clark v.Coats & Clark, Inc. 990 F.2d 1217, 1226 (11th Cir. 1993)). To

survive a motion for summary judgment, a plaintiff bringing an ADEA claim “must first

establish a prima facie case of age discrimination” either “by presenting direct evidence of

discriminatory intent, such as age-biased statements made by the decision-maker . . . [or]

by presenting circumstantial evidence which complies with the test set forth by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Id. (other

citations omitted).

If a plaintiff is successful in establishing a prima facie case, “the burden shifts to the

employer to articulate a legitimate nondiscriminatory reason for the plaintiff’s discharge.”

Id. (citing Clark, 990 F.2d at 1227). If the employer meets this burden of production, “the

burden shifts back to the plaintiff to ‘introduce significantly probative evidence showing that

the asserted reason is merely pretext for discrimination.’” Id. (quoting Clark, 990 F.2d at

1228).

In this case, Plaintiff has not presented any direct evidence of age discrimination.

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A. Because Mr. McNabb cannot establish a prima facie case of age

discrimination, Sanders Lead is entitled to summary judgment as a

matter of law.

To establish a prima facie case of age discrimination, a plaintiff must establish four

elements: (1) he was a member of the protected class; (2) he was qualified to do the job;

(3) he was discharged; and (4) he was replaced by someone outside of the protected

group. Zaben, 129 F.3d at 1457 (citing Castle v. Sangamo Weston. Inc., 837 F.2d 1550,

1558 (11th Cir. 1980)). Plaintiff’s case fails because he cannot establish the second and

fourth elements.

Sanders Lead stipulates that Mr. McNabb was a member of the protected group and

that he was discharged. However, Sanders Lead states that Mr. McNabb was no longer

qualified to do the job. At one time, Mr. McNabb was qualified to do the job. However,

over the years of his employment, Plaintiff developed discipline problems, poor work ethic,

and unsatisfactory production. See Affidavit of Edgar Fannin, p. 1, ¶ 5.

Even if Plaintiff was qualified to do the job, he still cannot establish a prima facie

case of age discrimination because he was not replaced by someone outside the protected

group. In fact, Mr. McNabb was not replaced at all. Mr. McNabb’s discharge was a result

of a work force reduction enforced by the plant manager. See Affidavit of Bart Sanders,

p.1, ¶ 5, and also p.2, ¶ 11.

B. Mr. McNabb cannot establish that Sanders Lead’s legitimate,

nondiscriminatory reason for his termination is pretextual.

Even assuming arguendo, that Plaintiff can establish a prima facie case of age

discrimination, his claim is still subject to dismissal on summary judgment because he has

no evidence that Sanders Lead’s legitimate nondiscriminatory reasons for its decision to

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terminate his employment are pretextual.

In order to survive summary judgment where, as here, the employer has proffered

a legitimate nondiscriminatory reason for discharge, Plaintiff “must create a genuine issue

of material fact as to whether the reasons advanced by [Sanders Lead] are pretextual.”

Holiness v. Moore-Handley, Inc., 114 F.Supp.2d 1176, 1182 (N.D. Ala. 1999)(citing Bogle

v. Orange County Bd. Of County Com’rs, 162 F.3d 653, 658 (11th Cir. 1998)). “In other

words, [Mr. McNabb] must provide sufficient evidence to allow a reasonable fact finder to

conclude that the proffered reasons were not actually the motivation for his discharge.” Id.

(citing Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) cert denied 522

U.S. 1045 (1998)). Mr. McNabb may do this : “(1) by showing that the legitimate

nondiscriminatory reasons should not be believed; or (2) by showing that, in light of all of

the evidence, discriminatory reasons more likely motivated the decision than the proffered

reasons.” Id. (citations omitted).

In evaluating an employer’s reason for terminating a plaintiff, courts note that

“establishing pretext is not merely demonstrating that the employer made a mistake [in its

assessment of an employee’s job performance or conduct], but that the employer did not

give an honest account of its behavior .” Id. (citation omitted). “[An] employer may fire an

employee for a good reason, a bad reason, a reason based on erroneous facts, or for no

reason at all, as long as its action is not for a discriminatory reason.” Holiness, 114

F.Supp.2d at 1183 (quoting Nix v. WLCY Radio/Rahll Communications, 738 F.2d 1181,

1187 (11th Cir. 1984)).

The fact that an employee disagrees with a decision is irrelevant because an

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employee’s “perception of himself . . . is not relevant. It is the perception of the decision

maker which is relevant.” Webb v. R&B Holding Company, Inc., 992 F.Supp. 1382, 1387

(S.D.Fla. 1998)(citing Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)). “The fact that

an employee disagrees with an employer’s evaluation of him does not prove pretext.” Id.

(citations omitted). Finally, “even if [a] [court agreed with [a plaintiff]” regarding his

behavior, courts do not “substitute [their] own business judgment for that of the employer.”

Id. (citing Alphin v. Sears Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991)).

1. Plaintiff has not presented sufficient evidence to dispute the basis for

Sanders Lead’s legitimate nondiscriminatory reasons for terminating

him.

In Holiness, supra, the plaintiff claimed that he had been terminated because of his

race in violation of Title VII of the Civil Rights Act 42 U.S.C. §2000e et seq. The

defendant-employer asserted that it terminated the plaintiff, in part, because of the

customer and co-worker complaints about the plaintiff. In support of his claim that the

proffered reason was pretextual, the plaintiff offered his own statement that “he called the

vendors with whom he dealt on a regular basis and they allegedly told him that they were

satisfied with him.” Id. at 1182. However the plaintiff failed to offer “substantial evidence

indicating that [the defendant] did not actually receive complaints about him or that [the

defendant] did not base its employment decision on such complaints . . .” Id. Instead, the

plaintiff merely submitted “his assertions of his own good performance . . . [which were]

insufficient to show that [the defendant’s] proffered reasons [were] pretextual.” Id. (citing

Holifiled v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997)). Accordingly, the court concluded

that summary judgment for the defendant-employer was appropriate. 

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Similarly, in Webb, supra, the employer asserted that it had discharged the plaintiff

based on her insubordination as demonstrated by several complaints the employer

received from customers and co-workers. Webb, 992 F.Supp. At 1387. The plaintiff did

not dispute that the complaints were made, but claimed that the underlying contentions of

the complaints, such as that she acted in a rude manner, were untrue. The court stated

that this was insufficient to establish pretext, because it was nothing more than the

“plaintiff’s perception of [herself]” which “is not relevant.” Id. Therefore summary judgment

was awarded to the employer. Id.

In this case Sanders Lead discharged Mr. McNabb as part of a work force reduction

for the following reasons: (1) discipline problems (2) poor work ethic and (3) unsatisfactory

production. See Affidavit of Edgar Fannin, p. 1, ¶ 5. Mr. McNabb has only offered a

statement in his complaint that “[he] always performed his duties and responsibilities in a

satisfactory manner.” See Plaintiff’s Complaint, p. 2, ¶ 7. That statement is nothing more

than “plaintiff’s perception of [himself]” which “is not relevant.” Webb, 992 F.Supp. At 1387.

Thus Mr. McNabb cannot dispute his discipline problems, his poor work ethic and his

unsatisfactory production and therefore has absolutely no evidence that Sanders Lead’s

legitimate nondiscriminatory reasons for his discharge were pretextual.

Sanders Lead has come forward with legitimate nondiscriminatory reasons for Mr.

McNabb’s discharge supported by sworn declarations. Mr. McNabb has no evidence to

dispute the facts contained in the declarations concerning the discipline problems, poor

work ethic and unsatisfactory production that led to his discharge. Accordingly, Mr.

McNabb has no evidence of pretext and summary judgment should be awarded in favor

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of Sanders Lead.

2. All of the evidence supports the fact that Sanders Lead’s decision to

discharge Mr. McNabb was based on legitimate nondiscriminatory

reasons.

Mr. McNabb has presented no relevant evidence to dispute the fact that he

developed discipline problems, poor work ethic and unsatisfactory production during his

employment at Sanders Lead. Mr. McNabb also cannot establish that in light of all the

evidence, discriminatory reasons more likely motivated the decision to discharge him than

Sanders Lead’s proffered reasons. Indeed, all of the evidence in this case firmly supports

Sanders Lead’s position. 

First, there has been no evidence presented that Sanders Lead ever made any

specific remarks or comments about Mr. McNabb’s age. Further, Mr. McNabb cannot

dispute the fact that Sanders Lead was aware he was over 40 years of age when they

hired him on September 8, 1992 and rehired him on November 16, 1992. Mr. McNabb’s

date of birth is August 30, 1951. See attached exhibit 34, Mr. McNabb’s Employment

Eligibility Verification Form. Mr. McNabb was hired on September 8, 1992 by Sanders

Lead. See attached exhibit 35. Mr. McNabb quit working at Sanders Lead on October 15,

1992. See attached exhibit 36. Sanders Lead rehired Mr. McNabb on November 16,

1992. See attached exhibit 37. Mr. McNabb was subsequently discharged in January

2006. At both times of hire, Mr. McNabb was 41 years of age. Mr. McNabb was

subsequently discharged in January 2006 by Bart Sanders, Sam Kitchens and Edgar

Fannin. The fact that Sanders Lead hired and fired Plaintiff with full knowledge of his status

as a member of the protected class cuts against any claim that age discrimination played

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a role in Mr. McNabb’s termination. See Kossow v. St. Thomas University Inc., 42

F.Supp.2d 1312, 1316 (S.D.Fla. 1999); see also Proud v. Stone, 945 F.2d 796,797 (4th Cir.

1991); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996); EEOC v. Our Lady of

Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir. 1996); Lowe v. J.B. Hunt Transport, Inc.,

963 F.2d 173, 174-175 (8th Cir. 1992); Bradley v. Harcourt Brace and Co., 104 F.3d 267,

270-71 (9th Cir. 1996). Additionally, Mr. McNabb was one of numerous employees at

Sanders Lead. Of those employees, several are over the age of 40 presently and at the

time they were hired, as Mr. McNabb was. See Affidavit of Sam Kitchens, p. 2, ¶ 11.

Further, in Mr. McNabb’s complaint, he states that “[u]pon information and belief,

Sanders Lead continued to hire younger less qualified applicants.” See Plaintiff’s

Complaint, p. 3, ¶ 13. There has been no evidence presented by the Plaintiff at any time

to support this contention. The only evidence presented of Sanders Lead attempting to

hire anyone, let alone a younger employee to replace Mr. McNabb, is a classified ad

placed in the local newspaper on March 10, 2006 that stated the company was hiring

employees for the furnace department and the casting and alloy department. As stated

previously, one element Mr. McNabb must prove in an ADEA action is that he was

replaced by someone outside of the protected group. Zaben, 129 F.3d at 1457 (citing

Castle v. Sangamo Weston. Inc., 837 F.2d 1550, 1558 (11th Cir. 1980)). The

advertisement only shows that Sanders Lead was looking to hire employees more than two

months after a work force reduction. There is no evidence that infers Sanders Lead was

looking for replacement employees for the workers that were discharged during the work

force reduction. Instead, Sanders Lead was looking for replacement employees for

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employees who had left the company after the work force reduction. See Affidavit of Bart

Sanders, p. 2, ¶ 11 and also see Affidavit of Sam Kitchens, p. 1, ¶ 8.

All of the facts in this case support Sanders Lead’s position that it terminated Mr.

McNabb for legitimate nondiscriminatory reasons. Plaintiff has no evidence that these

reasons were false or that the real reason was unlawful age discrimination. Accordingly,

Sanders Lead is entitled to a summary judgment as a matter of law.

V ARGUMENT AGAINST PLAINTIFF’S RETALIATION CLAIM

In order to establish a prima facie case for retaliation under Title VII, Mr. McNabb

must show: “that (1) [he] engaged in ... statutorily protected expression; (2) [he] suffered

an adverse employment action; and (3) there is a causal [connection] between the two

events.” Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 715 (11th

Cir.2002) (citation omitted). Once “a plaintiff makes out a prima facie case of retaliation,

the burden shifts to the defendant to produce legitimate reasons for the adverse

employment action.” Id. (citation omitted). “If the defendant does so, the plaintiff must show

that the reasons the defendant gave were pretextual.” Id.

In this case, Mr. McNabb has not presented sufficient evidence to establish a prima

facie case of retaliation.

A. Because Mr. McNabb cannot establish a prima facie case of retaliation,

Sanders Lead is entitled to summary judgment as a matter of law.

To establish a prima facie case of retaliation, a plaintiff must establish three

elements: (1) he engaged in statutorily protected expression; (2) he suffered adverse

employment action; and (3) there was a causal connection between the two. Shannon v.

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Bellsouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir.2002) (citation omitted).

Plaintiff’s case fails because he cannot establish the third element.

Sanders Lead stipulates that Mr. McNabb engaged in statutorily protected

expression and that not rehiring him in May of 2006 was an adverse employment action.

However, Mr. McNabb has not provided any evidence that there was any connection to the

two. At the time Mr. McNabb applied for a position, Sanders Lead was not hiring. Further,

even if Sanders Lead was hiring, it is unlikely that Mr. McNabb would have been

considered due to his past work performance which included discipline problems, poor

work ethic and unsatisfactory production. Accordingly, Mr. McNabb has no evidence of a

causal connection between his filing of a complaint with the EEOC and Sanders Lead not

rehiring him. Therefore, because Mr. McNabb cannot establish a prima facie case of

retaliation summary judgment should be awarded in favor of Sanders Lead.

B. Mr. McNabb cannot establish that Sanders Lead’s legitimate,

nondiscriminatory reason for not rehiring him is pretextual.

Again, even assuming arguendo, that Plaintiff can establish a prima facie case of

retaliation, his claim is still subject to dismissal on summary judgment because he has no

evidence that Sanders Lead’s legitimate nondiscriminatory reasons for its decision to not

rehire him are pretextual.

An employer need only produce a neutral reason for not rehiring a previously

terminated employee. Smith v. State of Georgia, 749 F.2d 683, 687 (11th Cir. 1985). Mr.

McNabb applied for employment at Sanders Lead on May 24, 2006. At that time, Sanders

Lead was not hiring people in the casting and alloy department. 

Additionally, Mr. McNabb was discharged in January of 2006 as part of a work force

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reduction mandated by the management of Sanders Lead. See Affidavit of Bart Sanders,

p. 2, ¶ 8 and also see Affidavit of Edgar Fannin, p. 1, ¶ 7. Sanders Lead discharged Mr.

McNabb as part of the work force reduction for the following reasons: (1) discipline

problems (2) poor work ethic and (3) unsatisfactory production. see Affidavit of Edgar

Fannin, p. 2, ¶ 7. Mr. McNabb has only offered a statement in his complaint that “[he]

always performed his duties and responsibilities in a satisfactory manner.” See Plaintiff’s

Complaint, p. 2, ¶ 7. That statement is nothing more than “plaintiff’s perception of [himself]”

which “is not relevant.” Webb v. R&B Holding Company, Inc., 992 F.Supp. 1382, 1387

(S.D.Fla. 1998)(citing Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)). Thus Mr.

McNabb cannot dispute that he had discipline problems, a poor work ethic and

unsatisfactory production towards the latter part of his employment at Sanders Lead. 

Those same reasons for Mr. McNabb’s discharge, together with the fact that

Sanders Lead was not hiring at the time Mr. McNabb applied for employment are the

reasons Mr. McNabb was not rehired. See Affidavit of Sam Kitchens, p. 2, ¶ 12 and also

see Affidavit of Edgar Fannin, p. 2, ¶ 11. Therefore, Mr. McNabb has absolutely no

evidence that Sanders Lead’s legitimate nondiscriminatory reasons for not rehiring him are

pretextual.

Sanders Lead has come forward with legitimate nondiscriminatory reasons for Mr.

McNabb’s not being rehired supported by sworn declarations. Mr. McNabb has no

evidence to dispute the facts contained in the declarations concerning the discipline

problems, poor work ethic and unsatisfactory production that led to his original discharge.

Further, Mr. McNabb has no evidence to dispute the fact contained in Sam Kitchens’

Case 2:06-cv-00664-MHT-SRW Document 10 Filed 05/25/2007 Page 17 of 20
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declaration that at the time Mr. McNabb sought to be rehired, Sanders Lead was not hiring

anyone. Accordingly, Mr. McNabb has no evidence of pretext and summary judgment

should be awarded in favor of Sanders Lead as to the retaliation claim.

C. All of the evidence supports the fact that Sanders Lead’s decision to

discharge Mr. McNabb was based on legitimate nondiscriminatory

reasons.

The only evidence Mr. McNabb has produced since the beginning of this case that

Sanders Lead was even hiring employees for the casting and alloy department is an

advertisement placed in the Troy Messenger, Troy’s local newspaper, that states Sanders

Lead was seeking employees for the furnace department and the casting and alloy

department. That ad was placed March 10, 2006, two months and two weeks prior to Mr.

McNabb applying for a job. See Affidavit of Sam Kitchens, p. 2, ¶ 9. As stated previously,

at the time Mr. McNabb applied for a position, Sanders Lead was not hiring. Further, even

if Sanders Lead was hiring, it is unlikely that Mr. McNabb would have been considered due

to his past work performance. See Affidavit of Edgar Fannin, p. 2, ¶ 11. Mr. McNabb does

not have any other evidence to support his claim he was retaliated against by Sanders

Lead not rehiring him after he reapplied.

Mr. McNabb has presented no relevant evidence to dispute the fact that he

developed discipline problems, poor work ethic and unsatisfactory production during his

employment at Sanders Lead. Mr. McNabb also cannot establish that in light of all the

evidence, discriminatory reasons more likely motivated the decision to not rehire him than

Sanders Lead’s proffered reasons. Indeed, all of the evidence in this case firmly supports

Sanders Lead’s position. 

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All of the facts in this case support Sanders Lead’s position that it did not rehire Mr.

McNabb for legitimate nondiscriminatory reasons. Plaintiff has no evidence that these

reasons were false or that the real reason was unlawful retaliation. Accordingly, Sanders

Lead is entitled to a summary judgment as a matter of law.

VI CONCLUSION

Based upon the foregoing, it is evident Mr. McNabb cannot carry his burden of

proving the essential elements to each and every cause of action asserted against Sanders

Lead in his Complaint. Therefore, Sanders Lead respectfully requests this Honorable

Court enter summary judgment in its favor as to all claims asserted against it by Mr.

McNabb.

WHEREFORE, ABOVE-PREMISES CONSIDERED, because Plaintiff cannot

present sufficient evidence to support his claims for age discrimination or retaliation,

Defendant respectfully requests this Honorable Court grant summary judgment as to each

and every claim asserted against Defendant by Plaintiff in this matter and that it dismiss

Plaintiff’s claims with prejudice.

Respectfully submitted this the 25th day of May, 2007.

s/ N.J. Cervera 

N.J. Cervera (CER001)

s/ Frank P. Ralph 

Frank P. Ralph (RAL002)

s/ Grady A. Reeves 

Grady A. Reeves (REE042)

s/ Matthew M. Baker 

Matthew M. Baker (BAK017)

Case 2:06-cv-00664-MHT-SRW Document 10 Filed 05/25/2007 Page 19 of 20
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OF COUNSEL:

CERVERA, RALPH, & REEVES, LLC

914 South Brundidge Street

P.O. Box 325

Troy, Alabama 36081

phone (334) 566-0116

fax (334) 566-4073

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document by placing the

same in the U.S. Mail, postage prepaid and properly addressed to:

Roderick T. Cooks, Esq.

WINSTON COOKS, LLC

The Penick Building

319 17th Street North

Birmingham, Alabama 35203

this the 25th day of May, 2007.

s/ N.J. Cervera 

OF COUNSEL

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