1

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

Roger Wright, §

§

Plaintiff, §

§

v. § Civil Action No.: 1:06 cv 647-WKW

§

Pemco World Air Services, Inc., §

§

Defendant. §

PLAINTIFF'S OPPOSITION TO DEFENDANT'S 

MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

I. THE SUMMARY JUDGMENT STANDARD 3

II. STATEMENT OF FACTS 4

III. FMLA 13

A. FMLA Intro 13

B. Interference 16

C. Retaliation 17

D. Pretext 20

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (TORT 

OF OUTRAGE)

23

V. ADEA 25

VI. ERISA 28

VII. CONCLUSION 28

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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

Roger Wright, §

§

Plaintiff, §

§

v. § Civil Action No.: 1:06 cv 647-WKW

§

Pemco World Air Services, Inc., §

§

Defendant. §

PLAINTIFF'S OPPOSITION TO DEFENDANT'S 

MOTION FOR SUMMARY JUDGMENT

Comes now, the Plaintiff, through counsel, and hereby opposes Defendant’s Motion for 

Summary Judgment on the grounds that there is a triable issue of fact with respect to whether the 

Defendant violated Plaintiff’s federally protected rights. 

I. THE SUMMARY JUDGMENT STANDARD

In determining whether there is a genuine issue of material fact the court must consider 

“whether the evidence presents a sufficient disagreement to require submission to a jury or 

whether it is so one-sided that one party must prevail as a matter of law.” Allen v. Tyson Foods, 

Inc., 121 F.3d 642, 646 (11th Cir. 1997) (internal citations and quotations omitted). 

Under summary judgment, the burden is on the moving party to establish the absence of a 

triable fact. It is not the law that whoever has the burden at trial must bear the burden in 

summary judgment. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Plaintiff 

has no burden to come forward whatsoever until the defendant shows that, with regard to 

material facts, there is no inference which can be drawn in the plaintiff’s favor. 

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If the defendant is able to make that showing, then non-moving party may “avail itself of 

all facts and justifiable inferences in the record taken as a whole. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Where the 

record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 

there is no genuine issue for trial.” Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th 

Cir. 1993). 

II. STATEMENT OF FACTS

1. In July 2005, while on federally protected Family and Medical Leave for back 

surgery, Roger Wright was first demoted and then terminated from his position as the Facilities 

Manager at Pemco. (Ex. B, termination ltr.; Ex. A, Wright dep. at 98:6-17, 107:5-8). At the 

time, he was 55 years old, had 16 years experience with Pemco and a clean record. (Ex. A, 

Wright dep. at 6:2-3). He was well thought of by his supervisor and co-workers (Ex. C, Ward 

Aff. ¶ at 3; Ex. D, Battcher Aff. at ¶ 5). The Defendant has not attempted to justify the demotion 

and termination based on the plaintiff’s work performance or record. 

2. Plaintiff was entitled to Family Medical Leave because Pemco employs more 

than 50 people; plaintiff had been there more than a year; plaintiff had a serious health condition 

for purposes of the Act and he gave all statutorily required notices to his employer concerning 

his need for leave. There is no dispute that both plaintiff’s supervisor, Dennis Johnson, and the 

Human Resources Department knew of and approved plaintiff’s medical leave. (Ex. D, Battcher 

Aff. at ¶ 2). For purposes of Summary Judgment, Defendant does not dispute the issues of 

Plaintiff’s eligibility for leave, the existence of a serious health condition or that Plaintiff gave 

appropriate notice. (Def. brief at 12-13).

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3. Defendant did not issue its required notices under 29 CFR 825.301(b)(1)(vii) 

which informs Plaintiff of his right to “restoration to the same or an equivalent job upon return 

from leave.” (Ex. A, Wright dep. at 117:21-23).

4. During 2005, Pemco was going through the pangs of reorganization due to the 

uncertainty of its contracts and labor agreement. Plaintiff does not dispute that many employees 

were laid off. (Ex. A, Wright dep. at 48:10-49:7). In early June 2005, there were three 

management employees in the facilities department: Henry Ward, the Director of Facilities; 

Roger Wright, Manager of Facilities and Richard Miller, Night Shift Supervisor of Facilities.

(Ex. A, Wright dep. at 69:12-19, 71:7-72:10). 

5. Ward’s affidavit indicates that, “In 2005, when Pemco began to cut back on its 

labor, I met with Ray Bennett, President of Pemco World Air Services, Inc., and Rich Godin 

about layoffs within my department. Bennett told me that they wanted to eliminate the Director 

of Facilities position and move me to the Manager’s position. I told them that I was about to 

retire anyway and I recommended that they leave Roger Wright as the Manager of Facilities and 

I would retire. Bennett agreed to that plan and I told Roger about that agreement. There was 

never, to my knowledge, any plan to eliminate the Manager of Facilities position.” (Ex. C, Ward 

Aff. at ¶4). See also, (Ex. A, Wright dep. at 69:12-19, 71:7-72:10).

The plan for reorganization of the Facilities Department prior to Plaintiff leaving for 

medical leave was that the Director of Facilities position would be eliminated, leaving Wright 

and Miller in place. (Ex. A, Wright dep. at 69:12-19, 71:7-72:10; Ex. C, Ward Aff. at ¶ 4). 

6. Ward did retire on June 10, 2005. Dennis Johnson, Vice President of Operations, 

then became plaintiff’s supervisor. (Def. brief at 3).

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7. In June 2005, Wright’s doctor told him that he must have surgery in order to 

avoid permanent spinal damage. Surgery was therefore scheduled for June 8, 2005. (Ex. A, 

Wright dep. at 74:13-75:13; Ex. E, Medical Records Dr. Bernard dated June 1st and 8th, 2005). 

Wright immediately informed management of the need for leave. (Ex. A, Wright dep. at 75:14-

77:3). Wright also informed Dennis Johnson, Vice President of Operations that he needed time 

off for surgery. (Ex. D, Johnson deposition at 143:25-144:6). 

8. In planning for the leave, Wright spoke with Johnson prior to the surgery about 

staffing his position and Johnson agreed to move Miller, the evening shift facilities supervisor, to 

temporarily cover for Wright. (Ex. A, Wright dep. at 76:3-15). On June 3, 2005, however, 

Johnson indicated that he had changed his mind and that he would instead bring in Clarke 

Briody, a younger individual with no experience in the facilities department to fill the job. (Ex. 

A, Wright dep. at 76:16-18, 81:6-12, 82:21-85:16). Johnson then asked Wright to train Briody 

for the position, which Wright did on June 6 and June 7, 2005. (Ex. A, Wright dep. at 81:3-

82:16). 

9. Wright’s qualifications and experience are summarized as follows:

• Wright’s date of birth is 11/28/49 (Ex. A, Wright dep. at 6:2-3);

• Wright worked for four years as an aircraft mechanic with Pemco’s predecessor, 

Hayes aircraft, from 1968 to 1972 (Ex. A, Wright dep. at 9:17-10:3). An aircraft 

mechanic is considered a production type of job;

• Wright returned to work for Pemco in 1989 as a plant mechanic in the Facilities 

Department and was quickly promoted to Supervisor of Facilities. (Ex. A, Wright 

dep. at 13:6-14:11); 

• In 1995, he was promoted again to Production Support Manager which was still in 

Facilities. (Ex. A, Wright dep. at 23:7-12). While working as Production Support 

Manager, there were no grievances filed against him and he had a good 

relationship with the workers he supervised. (Ex. A, Wright dep. at 26:1-6). 

• In the late 1990s, he was promoted to the position of the Manager of Facilities. 

(Ex. A, Wright dep. at 27:4-8). 

• Wright’s supervisor, Henry Ward stated in his affidavit, “In the years that I 

worked with Roger at Pemco, I considered him to be very capable, loyal and a 

hard worker. He was at the facility in storms when he should have been home. He 

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was very knowledgeable about upgrades, repairs and wiring in the facility. He

had a good attitude and work ethic, and came to work even when he had a great 

deal of back pain.” (Ex. C, Ward Aff. at¶ 3). 

10. Briody’s background and qualifications are:

• Briody’s date of birth is September 7, 1955 (Ex. F, Briody dep. at 88:8);

• Briody came to Pemco on July 8, 2003 (Ex. F, Briody dep. at 39:3-4); Prior to 

that, he worked twelve years at Lockheed in various capacities until he was laid 

off. (Ex. F, Briody dep. at 32:7-40:23);

• Briody never worked in facilities before and had not worked in Facilities at 

Pemco before moving into Wright’s position in June 2005. (Ex. F, Briody dep. at 

19:21-20: 1);

• Wright spent one day and part of another day with Briody before leaving for 

medical leave (Ex. F, Briody dep. at 54:17-21);

• On July 8, 2005 there was an announcement made that Briody was assuming the 

duties of Facilities Manager. Briody identified this as coinciding with the time 

that he permanently assumed the duties of Facilities Manager. (Ex. G., July 8, 

2005 memoranda; Ex. H, July 8, 2005 memoranda; Ex. F, Briody dep. at 76:25-

78:11).

• From the beginning of Briody’s time in Facilities, there was quite a bit to do. 

Johnson gave him projects and assignments. (Ex. F, Briody dep. at 14:15-17:12).

Briody was devoting all of his time to these projects and he was working in 

facilities full time. (Ex. F, Briody dep. at 19:7-11). There were other projects that 

followed and Briody consistently worked full time in facilities through 2005 and 

2006 and continues to be the Facilities Manager to the present. (Ex. F, Briody 

dep. at 4:2-4, 21:12-22:16, 53:9-54:16, 64:23-65:7).

• Once Briody moved to Facilities he was considered the Head of the Facilities 

Department. (Ex. F, Briody dep. at 66:17-67:3).

• His time spent in production over a two year period was limited to three to four 

days on two occasions. (Ex. F, Briody dep. at 22:12-23:10).

• When Briody moved to Facilities, Pemco hired another employee to fill Briody’s 

previous position as the Night Manager. (Ex. F, Briody dep. at 52:3-11).

11. Wright had surgery on June 8, 2005. The normal recovery time for this surgery is 

six to eight weeks. (Ex. A, Wright dep. at 103:3-6; Ex. E, Medical Records Dr. Bernard dated 

July 6, 2005 and August 10, 2005). At his four week follow up on July 6, 2005, Wright 

requested that he be allowed to go back to work and the doctor reluctantly agreed after they 

discussed Mr. Wright’s duties in management. (Ex. A, Wright dep. at 92:7-93:3. See also, Ex. E, 

Medical Records Dr. Bernard dated July 6, 2005 August 10, 2005). The doctor allowed Wright 

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to return to work effective July 11, 2005, but restricted him to six hour days. (Ex. A, Wright 

dep. at 93:9-11; Ex. E, Medical Records Dr. Bernard dated July 6, 2005). Wright phoned 

Johnson on July 6, 2005 and informed him that he would be back to work on Monday July 11, 

2005, but on restricted status. (Ex. A, Wright dep. at 94:5-14). Johnson told him to report to HR 

on Thursday, July 7th for a drug screen. (Ex. A, Wright dep. at 94:15-95:7). 

12. Wright reported to HR on July 7, 2005, but HR said that no drug screen was 

required. (Ex. A, Wright dep. Id). Instead, Johnson informed Wright that Briody was

permanently replacing him and that Wright would be demoted to a supervisory position with a 

pay cut. (Ex. A, Wright dep. at 97:20-98:10). Wright reluctantly accepted the lower position. 

(Ex. A, Wright dep. at 98:11-18). During this conversation on July 7, 2005, Wright also stated 

that since he would be on six hour days for the next two weeks and since he was not returning to 

his former job as a manager, he wanted to take the two weeks as suggested by his doctor to fully 

recover and come back to the supervisor’s position on full eight hour days. (Ex. A, Wright dep. 

at 98:14-17, 102:18-104:16). Johnson approved the leave and agreed tha t the return to work date 

would be Monday July 25, 2005. (Ex. A, Wright dep. at 98:18, 106:16-107:6). 

13. The next day, on July 8, 2005, two separate memoranda were sent by Dennis 

Johnson to all Pemco employees declaring that Clarke Briody would assume the position of 

Facilities Manager as of July 11, 2005. (Ex. G, July 8, 2005 memoranda; Ex. H, July 8, 2005 

memoranda; Ex. F, Briody deposition at 76:17-78:11). His deposition testimony also established 

him as the Head of the Facilities Department at this time. (Ex. F, Briody dep. at 64:23-65:2).

The effect of these employment decisions was that Wright would take a pay cut and be 

subordinate to Briody even though Briody had less experience in facilities and also less seniority.

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14. On July 14, 2005, while still on leave and without explanation, Wright was 

terminated. He received a call that day from HR informing him that he was on indefinite layoff, 

and he received a letter the next day stating the same. (Ex. A, Wright dep. at 107:5-12; Ex. B, 

termination letter). 

15. In its April 4, 2006, response to Wright’s EEOC charge, Pemco asserts through its 

attorney that Roger Wright’s position of Facilities Manager was “eliminated as part of the 

reduction-in-force.” (Ex. I, Defendant’s EEOC response). Similarly, Dennis Johnson’s 

declaration in support of Summary Judgment also avers that the Facilities Manager position was 

eliminated. (Def. Brief, Johnson Dec. Exhibit J). In its Motion for Summary Judgment, the 

Defendant states that the facilities duties were only “being covered by a production manager.” 

(Def. Brief at 14). 

The evidence, contemporaneous with the events in 2005, indicates that the Facilities 

Manager’s position was never eliminated at all:

a. From the time that Briody came into the Facilities department, he worked 

full time doing facilities work. (Ex. F, Briody Dep. at 4:2-4, 21:12-22:16, 

53:9-54:16, 64:23-65:7);

b. At the time that Johnson allegedly eliminated the Facilities Manager’s 

position, Johnson was giving Briody numerous facilities related projects to 

do. (Ex. J, slide presentation of facilities work done by Briody); (Ex. K, 

Johnson dep. at 7:16-9:4; Ex. L, email 3/22/06 detailing facility work done 

by Briody; Ex. K, Johnson dep. at 9:9-10:9). 

c. A memo dated July 8, 2005, one day after Wright’s demotion, declared 

that Briody to be the new Facilities Manager and Briody testified that this 

is when he permanently assumed the job. (Ex. G, July 8, 2005

memoranda; Ex. H, July 8, 2005 memoranda; Ex. F, Briody dep. at 76:25-

78:11).

d. Briody considered himself the Department Head and supervised Richard 

Miller and Ted Ball who were also rehired to work in facilities (Ex. F, 

Briody dep. at 66:17-73:3). 

e. After assuming the facilities position Briody’s production work was de 

minimis. His time spent in production over a two year period was limited 

to three to four days on two occasions. (Ex. F, Briody dep. at 22:12-

23:10).

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f. Briody is still serving as the Facilities Manager to this day. (Ex. F, Briody 

dep. at 4).

g. Three people worked in Facilities before Wright went on medical leave 

(Ward, Wright and Miller). Within a month of Wright’s termination, three 

people were again working in facilities: Briody, Miller and Ball. Briody 

recalled that Miller and Ball were rehired during the period of the lockout 

which defendant reports to be August 2005 (Ex. F, Briody dep. at 69:3-

24). Richard Miller was rehired on August 22, 2005. (Ex. N, Miller dep. 

at 31:21-22, 34:10-12). A computer printout produced by Pemco confirms 

this, noting “Date Start” as “22-AUG-2005.” (Ex. R, Miller Computer 

Record). An identical printout for Ted Ball shows his return date as 

August 9, 2005. (Ex. S, Ball Computer Record). 

h. According to Henry Ward, who was employed with Pemco for 43 years, 

Pemco’s business is cyclical and the company has often gone through 

periods of layoffs and rehiring. In all of his time at Hayes and Pemco, he 

could not recall a time when the Manager of Facilities position was 

eliminated. Because of the size of the department and the duties as to 

safety and security as well as the grounds, buildings and rolling stock of 

equipment, it was always necessary to have someone in charge of

Facilities. After the Director of Facilities position was eliminated, it 

would not have been feasible to also eliminate the Manager of Facilities 

position. (Ex. C, Ward Aff. at ¶ 5).

i. According to James Battcher, the Facilities Manager’s position is one that 

is not usually affected by layoffs. Because of the size of the facility, 

safety requirements, environmental issues, etc. there was always someone 

who needed to be in charge of the facility. Therefore, it would have been 

highly unusual to eliminate the Facilities Manager’s position completely, 

particularly with Director of Facilities position already being gone. (Ex. 

D, Battcher Aff. at ¶ 6). 

16. Finally, Dennis Johnson states now, in his declaration in support of Motion for 

Summary Judgment, that he would have reinstated the plaintiff if he had not received a letter 

from counsel indicating that Wright wanted a severance. (Ex. M, letter from counsel). Since 

there is nothing in the letter about not wishing to be reinstated, a more accurate inference from 

this fact is that Johnson decided not to reinstate the plaintiff after being notified by counsel of the 

FMLA and ADEA violations.

17. Within a few weeks following Wright’s termination, Richard Miller was

reinstated to his position as a supervisor in Facilities and Ted Ball was also moved into facilities.

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(Ex. D, Miller dep. at 38:8-23; Ex. O, Ball Dep. at 7:17-19). Around this time, Clarke Briody 

recalls, he was asked whether he would prefer to have Wright or Ted Ball back. (Ex. F, Briody 

dep. at 73:11-12). His response was that, although Ted is a “great guy,” Wright “knows where 

the bodies are buried.” (Ex. F, Briody dep. at 73:14-16, 74:12-14). As much as Briody liked 

Ted, his choice would have been for Roger Wright to return. (Ex. F, Briody dep. at 74:14-16).

18. With respect to the age discrimination claims, James Battcher, the Director if 

Human Resources for Pemco during this period in 2005, complained that Johnson was

prejudiced against older workers. His sworn statement presented to the EEOC reported the 

following:

• “During my tenure at Pemco, there was an ongoing discussion in manpower 

meetings and among upper management as to how to handle replacement of an 

aging work force. In the past, this had primarily been handled by natural attrition. 

• “In the last year [2005], there were numerous discussions among Pemco upper 

management including the President, Ray Bennett and Vice President of

Operations, Dennis Johnson, that the age of the current work force was a problem.

• “In supervising recruiting efforts, I passed several resumes to Dennis Johnson for 

supervisory positions where the applicants had retired from the military and 

Johnson rejected them because they were “too old.” He stated that he needed 

“younger people”. “Younger Blood” was common statement from this individual 

as well....”

• “Johnson told me several times that I should think about retiring and that someone 

my age should want to do something else. During a recruiting trip to Tampa, 

Florida in early May 2005, he made several comments to me about me retiring. 

He also stated several times about the average age level of our employees and that 

he needed younger workers and supervisors. He stated that he was tired of his 

workers moving too slow and not being able to work on several projects at one 

time due to being too old....”

• Over the summer of 2005, the company went through a period of mass layoffs. 

The union layoffs were by seniority, but the non-union layoffs were not by

seniority and included a high percentage of people over 50. I expressed my 

concern to Bennett, Johnson and others that the people being laid off seemed to be 

older individuals. Also, there were a number of older non-union individuals who 

were demoted and received cuts in pay. Nothing was done to correct this

situation.”

(Ex. P, Battcher EEOC statement). 

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Mr. Battcher’s attached affidavit further describes Johnson’s behavior, stating that

Johnson was irritated any time an employee could not work a full shift due to medical reasons. 

Johnson also made comments about “old farts” being too slow and not being able to do more 

than one thing at a time. (Ex. D, Battcher Aff.). 

19. The decision with regard to Wright’s employment was made entirely by Johnson. 

There is no evidence that any other person was involved in the decision concerning Wright.

20. The decision-making process regarding the layoffs at Pemco is vague and

unstructured. Doris Sewell, Vice President of legal and corporate affairs for Pemco’s holding 

group, is the only in-house counsel for Pemco. (Ex. Q, Sewell dep. at 12:21-13:9). According to 

Ms. Sewell, no direction was given by the board members regarding how layoffs were to occur, 

the number of people laid off, or whether to lay off anyone at all. (Ex. Q, Sewell dep. at 50:23-

51:11). No standards were established for how the layoffs were to be performed, and no layoff 

guidance training was provided by Ms. Sewell. (Ex. Q, Sewell dep. at 55:19-56:4).

21. Dennis Johnson similarly affirms that there was “no set formula” for layoffs, 

although he was the one who is in charge of layoffs. (Ex. K, Johnson dep. at 119:2, 135:6-14).

He did not perform any calculations as to the amount of money that would be saved by

performing a layoff, and he has no idea what—if any—cost savings per laid off employee Pemco 

realized, nor did he have anyone else make those calculations. (Ex. K, Johnson dep. at 119:12-

23). Furthermore, Johnson never consulted with legal counsel or with HR concerning the 

layoffs. (Ex. K, Johnson dep. at 152:10-153:12). To Jim Battcher, Johnson referred to the laying 

off the “dead wood”; there was no other standard for salaried, non-union employees than that.

(Ex. D, Battcher Affidavit ¶ 4).

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III. FMLA

A. FMLA Intro

The FMLA was specifically passed by Congress to give security to workers with serious 

health conditions. One of the enumerated findings of Congress was “there is inadequate job 

security for employees who have serious health conditions that prevent them from working for 

temporary periods.” 29 USCS § 2601(a)(4). It was therefore the stated purpose of the Act to lend 

federal protection to injured or ill employees and “entitle employees to take reasonable leave for 

medical reasons.” 29 USCS § 2601(b)(2).

The statute states specifically that, “an eligible employee shall be entitled to a total of 12 

workweeks of leave during any 12-month period ...[b]ecause of a serious health condition that 

makes the employee unable to perform the functions of the position of such employee. 29 USCS 

§ 2612(a)(1)(D). This includes the period of recovery following treatment for a serious health 

condition. See, 29 CFR 825.114(a)(2)(i) A serious health condition includes, “a period of 

incapacity (i.e. , inability to work, attend school or perform other regular daily activities due to 

the serious health condition, treatment therefor, or recovery therefrom”)(Emphasis added). 

The employee must give due notice of the need for leave, “except tha t if the date of the 

treatment requires leave to begin in less than 30 days, the employee shall provide such notice as 

is practicable. 29 USCS § 2612(e)(2)(B). Here, there is no dispute that the plaintiff gave timely 

notice of the need for leave. “Where the need for leave is unforeseeable, the employee need only 

provide [the] employer with notice sufficient to make the employer aware that [his] absence is 

due to a potentially qualifying FMLA reason. Gay v. Gilmore Paper Co., 125 F. 3d 1432, 1436 

(11th Cir. 1997). The employee need not even mention FMLA.” 

Bailey v. Miltope Corp., 2007 U.S. Dist. LEXIS 1760 (M. D. Ala. 2007). Additional FMLA 

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implementing regulations provide that "in all circumstances, it is the employer's responsibility to 

designate leave, paid or unpaid, as FMLA-qualifying, based on information provided by the 

employee." 29 C.F.R. § 825.208(a)(2) (1993). Gay v. Gilman Paper Co., 125 F.3d 1432, 1434 

(11th Cir. 1997). Further, the employer has a duty under 29 CFR 825.301 to notify the employee 

of his right to restoration of his job.

Even if the employee's notice is not timely, it does not alter plaintiff’s rights under the 

statute. Id. Here Pemco did not deny the leave when plaintiff requested to be off for surgery, nor 

did it deny the leave when the plaintiff requested an additional two weeks to fully recover. 

Therefore, Defendant has waived any objection to notice.

The statute also specifically allows an eligible employee “to substitute any of the accrued 

paid vacation leave, personal leave, or family leave of the employee for [unpaid] leave.” 29 

USCS § 2612(d)(2). It also provides that, “The rights established for employees under this Act or 

any amendment made by this Act shall not be diminished by any collective bargaining agreement 

or any employment benefit program or plan.” 29 USCS § 2652 (emphasis added). Therefore, the 

plaintiff’s request to use paid leave such as short term disability payments and accrued vacation 

does not affect his entitlement or his protected status under the Act.

At several points in defendant’s Motion for Summary Judgment defendant refers to 

medical certifications. Under 29 USCS § 2613, it is clear that medical certification is simply an 

option of the employer. It has no relevance to any issue in this case except to show that 

Defendant apparently did not doubt plaintiff’s explanation of the need for medical leave and that 

the employer did not bother with normal FMLA procedures. Employers are entitled to require 

that the need for leave be supported by the certification of a health care provider, 29 U.S.C. § 

2614(c)(3), but they must provide written notice regarding requirements for providing medical 

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certification and the consequences of failing to do so, 29 C.F.R. §§ 825.301(b), 825.305. Bailey 

v. Miltope Corp., 2007 U.S. Dist. LEXIS 1760, 17-18 (D. Ala. 2007). Again it has no affect here 

on plaintiff’s substantive rights since the employer never requested any medical certification.

The central issue in this case is that the FMLA requires the employer to restore the 

employee “to the position of employment held by the employee when the leave commenced”

or “to be restored to an equivalent position with equivalent employment benefits, pay, and other 

terms and conditions of employment.” 29 USCS § 2614(a)(1)-(2).

Further the Act states, “It shall be unlawful for any employer to interfere with, restrain, or 

deny the exercise of or the attempt to exercise, any right provided under this title [29 USCS §§ 

2611 et seq.]... It shall [also] be unlawful for any employer to discharge or in any other manner 

discriminate against any individual for opposing any practice made unlawful by this title [29 

USCS §§ 2611 et seq.]. 29 USCS § 2615.

Although Defendant seeks to divide the analysis into separate threads, in the unique facts 

of the present case, it is an artificial distinction since the failure to restore the plaintiff to his 

position following protected leave was both interference with an explicit right under the statute 

and also retaliation for taking the leave. Defendant’s decision not to reinstate the plaintiff 

following the letter from counsel informing them of the potential FMLA violations (Ex. M, July 

20, 2005 letter from counsel) is also evidence of retaliation against the Plaintiff, “for opposing 

any practice made unlawful by this title.”

The FMLA is a “remedial statute” and “as such should be construed broadly to effect its 

purposes.” Hodgens v. General Dynamics Corp., 144 F.3d 151, 164 (1st Cir. 1998) quoting 

Tcherepnin v. Knight, 389 U.S. 332, 336, 19 L. Ed. 2d 564, 88 S. Ct. 548 (1967)). 

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B. Interference

“To establish an interference claim, [the employee] must show: "(1) that he was entitled 

to FMLA leave, (2) that some adverse action by the employer interfered with his right to take 

FMLA leave, and (3) that the employer's action was related to the exercise or attempted exercise 

of his FMLA rights." Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1291 (10th Cir. 

2007). “To state a claim that his employer has interfered with a substantive FMLA right, a 

plaintiff need only demonstrate that he was entitled to but denied the right. He does not have to 

allege that his employer intended to deny the right; the employer's motives are irrelevant. 

Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1208 (11th Cir. 2001).

Once the plaintiff establishes that his rights under FMLA were interfered with, the burden 

shifts to the employer to show, “that an employee would not otherwise have been employed at 

the time reinstatement is requested 29 CFR 825.216. 

“If an employee is laid off during the course of taking FMLA leave and

employment is terminated...[a]n employer would have the burden of proving that 

an employee would have been laid off during the FMLA leave period and, 

therefore, would not be entitled to restoration.

(2) If a shift has been eliminated, or overtime has been decreased, an employee 

would not be entitled to return to work that shift or the original overtime hours 

upon restoration. However, if a position on, for example, a night shift has been 

filled by another employee, the employee is entitled to return to the same 

shift on which employed before taking FMLA leave.

29 CFR 825.216 (a)(1)-(2)(emphasis added).

Therefore, under the regulations, if the position or an equivalent was filled by another employee, 

the person taking leave is entitled to come back to that position or its equivalent. In other words, 

if the position is still there, then the employee is entitled to it even if it has been filled by 

someone else.

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In this case, there is ample evidence that the statute was violated by the defendant’s 

failure to restore the plaintiff to his former position, a position which existed at the time that he 

was ready to return to work and was simply filled by another, less experienced person. The 

evidence that supports the fact that the job title and duties were still there is set out in paragraph 

15 of the statement of facts. It is clear that the position was never eliminated, but rather exists to 

this day. 

Defendant also states that Plaintiff was laid off because he was not qualified to work on 

aircraft, but there is no evidence that this was the standard used to fill the position. When Briody 

stepped into the Facilities Department Johnson gave him facilities work to do not production

work. Two more employees, Ball and Miller were recalled during the lockout of August 2005 

because of the volume of facilities work to be done.

If Defendant was allowed to deny Plaintiff his federal rights, not based on qualities 

needed for the work at hand, but on the mere possibility that some other quality might some day 

be needed then the entire purpose of the Act would be subverted.

The hard evidence that existed at the time was that Briody was the new head of the 

Facilities Department and that Johnson was loading him up with Facilities work. There is no 

justification here for defendant’s failure to return the plaintiff to his position.

C. Retaliation

The FMLA also prohibits employers from discriminating against employees, “for

exercising or attempting to exercise the rights” under the Act. 29 U.S.C. § 2615; 29 C.F.R. § 

825.220(c). Analysis follows the McDonnell Douglas burden shifting procedure.

In order to establish a prima facie case of retaliatory discharge or retaliation using 

the McDonnell Douglas framework, a plaintiff must show that (1) she engaged in 

statutorily protected conduct; (2) she suffered an adverse employment action; and 

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(3) there is a causal connection between the protected conduct and the adverse 

employment action. See Parris v. Miami Herald Publ'g Co., 216 F.3d 1298, 1301 

(11th Cir.2000); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th

Cir.2000) (Title VII); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 

(11th Cir.1999) (ADA).

Brungart v. Bellsouth Telecommunications, Inc., 231 F. 3d 791, 798 (11th Cir. 2000).

Here there is no dispute that the plaintiff engaged in statutorily protected conduct. 

Plaintiff had a serious health condition which required surgery and there was a lengthy period of 

time necessary for plaintiff to recover from that surgery. There is also no dispute that plaintiff 

suffered an adverse employment action, was demoted and then terminated while he was still on 

leave. Defendant only questions the third issue in its brief: whether there is a triable issue on 

causation. 

“To establish the causal connection element, "a plaintiff need only show 'that the 

protected activity and the adverse action were not wholly unrelated.' " Clover v. 

Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir.1999) (quoting Simmons v. 

Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985)). In order to 

show the two things were not entirely unrelated, the plaintiff must generally show 

that the decision maker was aware of the protected conduct at the time of the 

adverse employment action. See Goldsmith v. City of Atmore, 996 F.2d 1155, 

1163 (11th Cir.1993); Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 

(11th Cir.1997).

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (emphasis added).

" ‘Plaintiff satisfies this element if he provides sufficient evidence that the decisionmaker became aware of the protected conduct, and that there was close temporal proximity 

between this awareness and the adverse employment action.’" Farley v. Nationwide Mut. Ins. 

Co., 197 F.3d 1322 (11th Cir. 1999).” Hill v. IGA Food Depot, 2006 U.S. Dist. LEXIS 80455 

(M. D. Ala. 2006); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000). “The 

prima facie burden is not onerous.” See, Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 

253 (U.S. 1981). No smoking gun memo is required. 

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Here, there is no question that Dennis Johnson, the decision maker, knew of the need for 

leave since plaintiff informed him directly that he would be gone and they discussed how to meet 

the needs of the position during plaintiff’s leave. Johnson also knew of the need for two more 

weeks in order for the plaintiff to fully recover. On both occasions Johnson approved the leave

himself. therefore the first element is satisfied in that Johnson was aware of the protected 

conduct.

With regard to establishing the close temporal proximity, the timing of each of the 

decisions concerning Wright’s employment was closely linked to his request for leave. 

First, there was a plan in place before Wright requested leave which would allow Ward to 

retire and Wright to assume his duties. This would have left two people in management 

positions in Facilities and would not have required anyone to be hired. There was also a plan for 

Richard Miller, to fill in for Wright during the leave period. When Plaintiff requested leave, 

both plans were altered. 

Second, when Wright notified Pemco of his intent to return to work, he was demoted the 

next day. The day after Wright’s demotion, July 8, 2005, Johnson issued a memo announcing 

that Briody was the new Facilities Manager, permanently replacing Wright. 

Four days after that, without explanation, Wright was notified that he was terminated. 

Defendant has never produced any evidence concerning any intervening event which would have 

prompted this change of plans.

Defendant claims that the letter from counsel (Ex. M) was the reason as to why Plaintiff 

was not reinstated. An inference in Plaintiff's favor, however, is that the lack of reinstatement 

was due to Plaintiff's opposition to violations of the Act stated out in the letter. Thus, when 

Plaintiff opposed the violations of the Act, he lost his chance at reinstatement.

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It would be a mistake to minimize the evidence of temporal proximity in evaluating 

causation here. Every time Plaintiff exercised his rights under the FMLA an employment action 

was taken against him. This by definition is the cause and effect required by statute.

D. Pretext

If the defendant is able to articulate a non-discriminatory reason for the conduct, the 

plaintiff is given the opportunity to show that there is an issue of fact with respect to pretext. 

The reason articulated by the employer is that plaintiff was just part of the mass layoffs going on 

at the time. (Def. Brief at 17). It is clear, however, that the mere fact of reduction in force (“a 

RIF”) cannot form the basis of summary judgment. 

“[A]n employer may not use its RIF/reorganization/improved-efficiency rationale as a 

pretext to mask actual discrimination or retaliation; the mere incantation of the mantra of

"efficiency" is not a talisman insulating an employer from liability for invidious discrimination.” 

Hodgens v. General Dynamics Corp., 144 F.3d 151, 166 (1st Cir. 1998).

“Because of the availability of seemingly neutral rationales under which an

employer can hide its discriminatory intent, and because of the difficulty of

accurately determining whether an employer's motive is legitimate or is a pretext 

for discrimination, there is reason to be concerned about the possibility that an 

employer could manipulate its decisions to purge employees it wanted to

eliminate. See Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)

(Subjective evaluations of performance "are more susceptible of abuse and 

more likely to mask pretext" than objective job qualifications.) (internal

quotation marks omitted). The law does not permit this. Even if an employer's 

actions and articulated reasons are facially neutral (e.g., a RIF), if in reality the 

employer acted for a prohibited reason (e.g., retaliation for exercising a protected 

right), then its asserted legitimate reason for the RIF and its ostensibly

nondiscriminatory selection criteria as to who gets RIFed cannot insulate it from 

liability. As Judge Posner wrote in the context of ADA disability discrimination, 

"[a] RIF is not an open sesame to discrimination against a disabled person. 

Even if the employer has a compelling reason wholly unrelated to the

disabilities of any of its employees to reduce the size of its work force, this 

does not entitle it to use the occasion as a convenient opportunity to get rid of 

its disabled workers." Matthews v. Commonwealth Edison Co., 128 F.3d

1194, 1195 (7th Cir. 1997) (citation omitted). Nor can it be an opportunity to 

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get rid of workers who exercise their FMLA right to take medical leave for 

serious medical conditions. See 29 U.S.C. § 2615(a).

This means that, plaintiff in a discrimination case makes out a prima facie case 

and the issue becomes whether the employer's stated nondiscriminatory reason is 

a pretext for discrimination, courts must be "particularly cautious" about granting 

the employer's motion for summary judgment. ...

The nonmoving plaintiff may demonstrate pretext either indirectly by showing 

that the employer's stated reasons for its adverse action were not credible, or 

directly by showing that that action was more likely motivated by a

discriminatory reason. [citation omitted] Thus, one way an employee may succeed 

is to show "such weaknesses, implausibilities, inconsistencies, incoherencies, or 

contradictions in the employer's proffered legitimate reasons for its action that a 

reasonable factfact finder could rationally find them unworthy of credence and 

[with or without additional evidence and inferences properly drawn therefrom] 

infer that the employer did not act for the asserted non-discriminatory reasons." 

Hilti, Inc., 108 F.3d at 1323 (internal quotation marks omitted); Weldon, 896 F.2d 

at 798 (courts should be sensitive to myriad of ways such an inference can be 

created). 

In addition, close temporal proximity between two events may give rise to an 

inference of causal connection. Thus, "protected conduct closely followed by

adverse action may justify an inference of retaliatory motive." Marx, 76 F.3d at 

329; see Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) ("A 

showing of discharge soon after the employee engages in an activity specifically 

protected by . . . Title VII . . . is indirect proof of a causal connection between the 

firing and the activity because it is strongly suggestive of retaliation....

In assessing discriminatory motive, a court may also consider other factors,

including "among other things, 'the historical background of the . . . decision'; 'the 

specific sequence of events leading up to the challenged decision'; 'departures 

from the normal procedural sequence'; . . . '[any] contemporary statements by

members of the decision making body,'" [citations omitted], and "substantive 

departures . . ., particularly if the factors usually considered important by the 

decision maker strongly favor a decision contrary to the one reached," ...In 

addition, "doubts about the fairness" of an employer's decision or an employer's 

"'misjudging'" of an employee's qualifications, while not necessarily dispositive, 

"'may be probative of whether the employer's reasons are pretexts for

discrimination.'" 

Hodgens v. General Dynamics Corp., 144 F.3d 151, 168-169 (1st Cir. 1998)

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Therefore, as the Hodgen’s case demonstrates, even where the RIF may seem wholly 

justified by business conditions, the real inquiry is whether, within the context of the RIF, the 

decision to terminate this particular employee violated federal law.

Based on the evidence in the record as a whole, the jury could readily find for the 

plaintiff on the issue of pretext based on the discrepancy between what the employer says it 

intended and what it actually did. Many of these issues have been discussed above.

Into this mix, the Court should consider the fact that there were no set standards for the 

lay off, no attempt at determining cost savings and although Johnson now says he did that based 

on production experience, Jim Battcher says it was based on trimming "dead wood." Johnson's 

actions at the time contradict his current position.

Defendant also maintains that they needed a “Production Manager.” There is no

evidence, however, which existed in 2005, that this was the case. The title of “Production 

Manager” was never used at the time and once Briody went into the Facilities Department his 

production work was minimal. 

Pretext is shown by pointing to "such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered legitimate reasons . . . that a

reasonable fact finder could find them unworthy of credence." ... (citations omitted). The trier 

of fact may infer the ultimate fact of discrimination from the falsity of the employer's

explanation. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S. Ct. 2097, 2108, 

147 L. Ed. 2d 105 (2000). In other words, the prima facie case, plus sufficient grounds for 

disbelieving the defendant's proffered reasons, may "demonstrate the existence of a genuine 

issue of fact ...” Hamilton v. Montgomery County Bd. of Educ., 122 F. Supp. 2d 1273, 1281 

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(M.D. Ala. 2000). For these reasons Defendant’s motion for Summary Judgment should be 

denied.

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (TORT OF

OUTRAGE)

The tort of outrage provides a remedy for “extreme and outrageous conduct.” To be 

actionable under the tort of outrage, the conduct must be “so outrageous in character and so 

extreme in degree as to be beyond all possible bounds of decency and be regarded as atrocious 

and utterly intolerable in a civilized society.” American Road Service Society v. Inmon, 394 So. 

2d 361, 365 (Alabama. 1980) (citing Restatement 2d of Torts 46, comment d., at 73[1965]; 

McIsaac v. WZEM-FM Corporation, 495 So. 2d 649 (1986). 

To recover under the tort of outrageous conduct in Alabama, a plaintiff must prove that: 

1) the defendant either intended to inflict emotional distress, or knew or should have known that 

emotional distress was likely to result from the conduct; 2) the defendant’s conduct was extreme 

and outrageous; and 3) the defendant’s conduct caused emotional distress so severe that no 

reasonable person could be expected to endure it. Portera v. Winn Dixie of Montgomery, Inc.,

996 F. Supp. 1418, 1434 (1998) quoting Jackson v. Alabama Power Co., 630 So.2d 439, 440 

(Ala. 1993).

It is not the law that the tort may only be invoked in one of the three situations set out in 

defendant’s brief, i.e. 1) wrongful conduct associated with burials; 2) coercion of insurance 

settlements; and 3) egregious sexual harassment. (Def. brief at 19 citing Potts v. Hayes, 771 So. 

2d 462 (Ala. 2000). 

The elements of the tort as set above are well established and if there is a triable issue of 

fact concerning these elements, then summary judgment should be denied. 

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The three situations do illustrate an important point as to when this tort becomes a jury 

issue. This tort is invoked when there is intentional conduct that wrongs a person who is in a 

particularly vulnerable situation such as a grief stricken family, a victim of insurance company 

tactics and, in employment cases, where the misconduct is done by someone who holds the 

employee’s livelihood in their hands. Intentional infliction of emotional distress is engaging in 

misconduct that is recklessly harmful and humiliating to a vulnerable person.

Here, taking the inferences in favor of the non-moving party in this case, the facts show 

that at the time the plaintiff was 55 years old and faced with the choice of having surgery or 

suffer permanent injury. He cannot stay at work. He informs everyone of his need for leave. He 

trains his replacement and he goes through surgery. He knows he needs to be back at work and 

gives notice of his intent to return even though it will be on limited duty. He is told to come in 

for a drug screen, but this is a ruse. No drug screen is required; instead he is demoted to a 

position he held a decade ago and must work under the supervision of a man who will be doing 

his former job. This is from a company that he has been loyal to and faithfully served for sixteen 

years. Swallowing all pride, he accepts the position because he knows that he would not be able 

to immediately find another position because of his physical limitation.

The new position requires more strenuous activity and so plaintiff asks to take two more 

weeks to fully recover from his surgery so that he can come back full strength. His request for 

additional leave is granted, but this too is a ruse because he is terminated just a few days later. 

Recklessly engaging in unlawful conduct against a vulnerable person is intentional infliction of 

emotional distress and a jury should therefore be able to decide this count.

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V. ADEA

 “[I]n unlawful termination claims under the ADEA this court has permitted plaintiffs to 

establish a prima facie case by showing that:(1) [he] was within the protected group; (2) [he] was 

discharged; (3) [the employer] sought to replace him with a younger person; and (4) he was 

replaced with a younger person outside the protected group. Marshall v. Goodyear Tire & 

Rubber Co., 554 F.2d 730, 735-36 (5th Cir.1977); see also Rosenfield v. Wellington Leisure 

Prods., Inc., 827 F.2d 1493, 1495 (11th Cir.1987); Pace, 701 F.2d at 1386 n. 7. Although this 

formulation of the McDonnell Douglas scheme does not require an employee who has held a 

position for some time to prove qualification, the employee must show that the employer 

specifically sought to replace him with someone younger.” Clark v. Coats & Clark, Inc., 990 

F.2d 1217, 1227 note 2 (11th Cir. 1993); Tuttle v. Metro. Gov't, 474 F.3d 307, 317 (6th Cir. 

2007).

The fact that plaintiff's replacement was also within the protected class does not preclude 

a finding of age discrimination. Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1530 

(11th Cir. 1985).

Defendant here has tried to make the argument that Briody did not really replace the 

plaintiff. Defendant states, “Although Briody had assumed the duties of the Facilities Manager 

position on July 11, 2005, and covered those duties throughout the rest of the month and into 

August, in part due to his aircraft qualifications, he did not permanently replace Plaintiff until 

after the lockout.” (Def. Brief at 23). This is clearly contradicted by Briody's testimony that he 

permanently assumed the duties of Facilities manager on July 11, 2005.

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From a practical standpoint, Briody was handling the duties of Facilities Manager from 

the time of the plaintiff’s medical leave on. There is no evidence contemporaneous with the 

events that this was a temporary situation. 

In Tuttle v. Metro. Gov't, 474 F.3d 307 (6th Cir. 2007), the defendant also argued that 

step four of the prima facie case requiring the plaintiff to show replacement by a younger 

individual could not be met where the replacement was temporary. The Court of Appeals 

disagreed, however, stating that the fourth element of the prima facie case in an age

discrimination case can be met even where the new hire has the title of "temporary" employee. In 

cases where the new hire takes on the plaintiff's former job responsibilities, merely designating 

the new hire "temporary" will not defeat the fourth element. Tuttle v. Metro. Gov't, 474 F.3d 307, 

318 (6th Cir. 2007).

Plaintiff here has satisfied this initial burden because at age 55 he was a member of a 

protected class, was well qualified for the position which he had been serving in for some years 

and was replaced by Clarke Briody, an individual who was younger than plaintiff and who did 

not have his experience and knowledge. 

Once the prima facie case is established, the burden shifts to the employer to articulate a 

legitimate nondiscriminatory reason for its adverse employment action. If the defendant

articulates such a reason, the plaintiff must demonstrate by a preponderance of the evidence that 

the defendant’s proffered reason was a pretext for age discrimination. The burden of proving 

pretext merges with the plaintiff's ultimate burden of proving that age was a determining factor 

in his discharge, and it can be met by showing that a discriminatory reason more likely than not 

motivated the employer's decision, or by discrediting the employer's proffered explanation.”

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Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993); Tuttle v. Metro. Gov't, 474 

F.3d 307, 317 (6th Cir. 2007).

Here, assuming that the employer has articulated a legitimate non-discriminatory reason, 

the plaintiff is also able to demonstrate pretext due to the evidence set out above. Additionally, 

James Battcher, Pemco’s Human Resource Director in 2005 has presented sworn testimony 

concerning Johnson’s prejudices against older individuals. See paragraph 18 of the Statement of 

Facts. The inferences that can be drawn from this evidence is that Wright’s termination was due 

to an impermissible prejudice against older individuals and the medical problems that are often 

associated with aging.

Such comments can be direct evidence of prejudice and for this reason summary

judgment is avoided. See, Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1530 

(11th Cir. 1985)(Court found direct evidence of discrimination in comments such as the hospital 

needed "new blood" and there was an intent to recruit younger doctors and nurses, and his 

comment on plaintiff's "advanced age"). Such evidence may also be considered in the pretext 

stage of the burden shifting analysis of circumstantial evidence.

Also, for the first time in this case, Johnson gives his sworn statement that he decided not 

to reinstate the plaintiff after he received a letter from plaintiff’s counsel opposing the violations 

of the FMLA and the ADEA. (Ex. N, letter from counsel; See also Johnson Declaration). Instead 

of investigating the alleged violations of federal law, Johnson made the determination not to 

reinstate the plaintiff. This is absolute evidence of unlawful retaliation for engaging in conduct 

which is protected by the statute. Plaintiff will seek an amendment to his complaint in order to 

bring count for retaliation under the ADEA.

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VI. ERISA

Section 510 of the Employment retirement Income Security Program (“ERISA”) makes it 

unlawful to discharge ... any beneficiary for exercising any right to which he is entitled under 

the provisions of an employee benefit plan ... or for the purpose of interfering with the

attainment of any right to which such participant may become entitled. 29 U.S.C. § 1140.

Plaintiff agrees that although his termination resulted in substantial loss of benefits 

through his ERISA pension plan, this ERISA claim is due to be dismissed.

VII. CONCLUSION

WHEREFORE, based on the evidence presented through deposition testimony and 

affidavits as set out above as well as considering the positions taken by the Defendant in its 

response to the EEOC charge and in its Motion for Summary Judgment, the Plaintiff respectfully 

submits that there are multiple issues of fact to be decided by the Jury in this matter and that the

Defendant has not and cannot meet the high burden required to deprive the Plaintiff of his right 

to a trial on the merits of his claims. Accordingly the Plaintiff respectfully requests this court 

deny the Motion for Summary Judgment filed by the Defendant.

Respectfully submitted,

_s/ Elizabeth B. Glasgow_____

Elizabeth B. Glasgow

ASB-8348- S58E

Attorney for Plaintiff

P.O. Box 2228

Dothan, Alabama 36302

(334) 793-2424

F. (334) 793-6624

eglasgow@fphw-law.com

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CERTIFICATE OF SERVICE

I hereby certify that on October 22, 2007, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing to the 

following: 

John Holmes, Esq. 

Maynard, Cooper & Gale, P.C.

1901 Sixth Avenue North, Suite 2400

Birmingham, AL 35203

__s/ Elizabeth B. Glasgow_____

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