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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 REPLY BRIEF TO PLAINTIFF’S MEMORANDUM IN OPPOSITION

TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

_____________________________________________________________________

COMES NOW, Defendant Sanders Lead Company, Inc. (“Defendant” and/or

“Sanders Lead”),by and through the undersigned counsel of record, and does hereby

respond to Plaintiff’s Memorandum in Opposition To Defendant’s Motion for Summary

Judgment. Accordingly, Sanders Lead states as follows:

I. CASE SUMMARY

Defendant filed a motion for summary judgment on May 25, 2007. (Doc. No. 9) A

brief and evidentiary submission accompanied the motion. (Doc. No. 10) On July 2, 2007,

Plaintiff Maxie McNabb (“Plaintiff”) submitted a memorandum brief in response. (Doc. No.

25). Then on July 3, 2007, Plaintiff filed his evidentiary submission to support his brief.

(Doc. No. 28). On July 23 and 24 of 2007, Plaintiff filed a supplemental response to

Defendant’s summary judgment brief (Doc. No. 33) and a supplemental evidentiary

submission. (Doc. No. 34). Defendant now submits this response to Plaintiff’s responses

and evidentiary submissions. 

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It should be noted that the Plaintiff re-applied for his job on the afternoon of May

24, 2006. The Plaintiff had met that morning with an EEOC investigator who advised

the Plaintiff that he had no claim and that he should re-apply for his old job. See

attached Exhibit 1.

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II. 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. Plaintiff

is attempting to prove that he was discriminated against by the Defendant for failing to

rehire him because of his age and/or as retaliation for him filing an EEOC complaint. Mr.

McNabb has not and can not present the Court with sufficient evidence to support any

claims against Sanders Lead. Consequently, Sanders Lead is entitled to summary

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

On January 5, 2006 the Plaintiff was discharged from Sander Lead Co., Inc as part

of a work force reduction. He did eventually apply for his old job back.1

 However, at the

time he applied, there was not any openings. Additionally, at the time of his discharge, it

was noted by his supervisor that he was not eligible to be rehired in the Casting and Alloy

Department. Therefore, even if there were openings, the Plaintiff would not have been

eligible to be considered. 

Plaintiff has not offered any evidence, direct or otherwise, that he was discriminated

against or retaliated against because of his age while he was employed, when he was

discharged, or when he reapplied for his old job. Therefore, each and every claim Plaintiff

has made should be dismissed.

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III. ARGUMENT AGAINST AGE DISCRIMINATION

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 his response, Plaintiff attempts to argue that Defendant failed to address the

Plaintiff’s failure to hire claim in Defendant’s brief. This is not the case as the legitimate

non-discriminatory reasons for Defendant not re-hiring the Plaintiff after he applied were

adequately addressed throughout the brief.

Sanders Lead did not rehire the Plaintiff at the time he applied because (1) there

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were no positions available when he applied on May 24, 2006, (2) his job performance was

inadequate at the time he left and (3) he was not eligible to be rehired as shown on his

discharge papers. See Attached Exhibit 2. Any of the above reasons are sufficient, nondiscriminatory reasons for not rehiring the Plaintiff. 

At the time of his discharge, it was noted by his supervisor that he was not eligible

to be rehired in the Casting and Alloy Department. See Attached Exhibit 2. That was

because of the problems Mr. McNabb had incurred while working in the Casting and Alloy

Department, including the fact that he became dizzy, did not know where he was and was

unable to perform his job which led to a dangerous situation less than a week before he

was discharged. See Exhibit 3 the Affidavit of Leon Bennett, p. 1, ¶ 6 and also Exhibit 4,

an excerpt from the Deposition of Maxie McNabb, p. 46, ¶ 20 to p.47 ¶19. This fact

supports Defendant’s claim that he was not qualified for the position and is a legitimate

non-discriminatory reason for not rehiring the Plaintiff. Therefore, Plaintiff is unable to

prove a prima facie case of age discrimination or retaliation and even if he could, Sanders

Lead has a legitimate non-discriminatory reason for not re-hiring him, thus shifting the

burden back to the Plaintiff to prove that the legitimate non-discriminatory reason offered

is pretextual. 

As Plaintiff states on page 16 of his reply brief, “it is equally undisputed that Plaintiff

applied for a position in the Casting/Alloy Department.” Plaintiff goes on to say that “he

requested to be rehired into his old position as a Casting/Alloy Operator.” See Plaintiff’s

Memorandum in Opposition to Defendant’s Motion for Summary Judgment, p. 16. It is

undisputed that Plaintiff was seeking to get his old job back and it is clear that he was not

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eligible to be rehired for his old job. See Attached Exhibit 4.

This Court has held on numerous occasions that 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.” Abel v. Dubberly, 210 F.3d

1334, 1339 n.5 (11th Cir 2000) (per curiam)(quoting Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)). The same rationale should apply

to hiring. Here, the Plaintiff was ineligible to be rehired. Even if that ineligibility is based

on a bad reason or erroneous facts, he is still ineligible. However, that ineligibility was

based on a good reason, namely that the Plaintiff’s poor workmanship led to a dangerous

situation wherein he blacked out at his station where he was handling hot, molten material.

Such an occurrence could lead to complete devastation and even the loss of lives. Such

a situation cannot be tolerated or accepted and the management of Sanders Lead are

unable to risk such occurrence from ever happening again due to the potential

consequences. See Exhibit 3 the Affidavit of Leon Bennett, p.2, ¶ 7. 

Therefore, the Plaintiff is unable to show that the proffered reasons for the

Defendant not rehiring him were pretextual and his claim of age discrimination is due to

be dismissed. 

IV. PLAINTIFF IS UNABLE TO SHOW THAT SIMILARLY SITUATED PERSONS 

OUTSIDE HIS PROTECTED CLASS WERE TREATED MORE FAVORABLY.

Even if the Court believes the Defendant’s proffered reasons for not rehiring the

plaintiff were pretextual, the Plaintiff’s claims are due to be dismissed because he is not

even able to prove a prima facie case of age discrimination. 

As discussed above, the fact that the Plaintiff blacked out causing a potentially lethal

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situation is proof enough that he was unqualified to work in that position. Yet, another

essential element needed to prove age discrimination is to show that similarly situated

persons outside of Plaintiff’s protected class received more favorable treatment. To satisfy

this element of the prima facie case of age discrimination, the Plaintiff must show that a

proposed comparator was “similarly situated in all relevant respects.” Holifield v. Reno,

115 F.3d 1555, 1562 (11th Cir. 1997). Despite his efforts, Plaintiff is unable to prove that

such an event occurred. 

Plaintiff attempted to show in his Second Supplemental Evidentiary Submissions

that employees Edward Meadows and Randolph Harley were similarly situated employees.

However, no evidence has been presented by the Plaintiff that these employees were not

eligible to be rehired as the Plaintiff was. Absent proof thereof, the Plaintiff is unable to

meet his burden of establishing a prima facie case of discrimination.

A similarly situated employee in this instance would be an employee discharged that

was not eligible to be rehired at his former position. Mr. McNabb was discharged and a

notation was made that he was ineligible to be rehired to fill his same position. See

attached Exhibit 2. Plaintiff has presented no evidence that suggests that anybody that the

Defendant rehired after discharging them was ineligible to be rehired, as the Plaintiff was.

Therefore, Plaintiff is unable to satisfy the elements necessary to establish a prima facie

case of discrimination.

V. ARGUMENT AGAINST RETALIATION

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

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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. The reasons that Sanders Lead did not retaliate and for Mr.

McNabb not being hired are the same as above. Sanders Lead did not rehire the Plaintiff

at the time he applied because (1) there were no positions open when he applied on May

24, (2) his job performance was inadequate at the time he left and (3) he was not eligible

to be rehired as shown on his discharge papers.

Plaintiff consistently states he made two applications for employment. He states

that his first application was made orally over the phone in a conversation with Edgar

Fannin in early March. This oral application is whole heartedly disputed by Sanders Lead

as Mr. Fannin does not recall any such conversation. However, even if such a

conversation took place, there could be no retaliation proven as the alleged conversation

took place several weeks before the Plaintiff filed his claim with the EEOC. Plaintiff filed

his EEOC claim on March 31, 2006. See attached exhibit 5, Plaintiff’s EEOC claim.

Plaintiff states that the alleged conversation took place in early March of 2006. See

Attached Exhibit 4, Deposition of Maxie McNabb, p. 51, ¶ 1-15 and also p. 54, ¶ 9-15 .

Therefore, no such retaliation could have taken place as to this alleged application.

On May 24, 2006, Plaintiff applied for his old job in the Casting and Alloy

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Department. At that time all positions had been filled. In his reply brief, Plaintiff states that

an employee, namely Kenyatta Gilbert, was hired two days after the Plaintiff submitted his

second application. This is an untrue statement. The date of May 26, 2006 is when

Kenyatta Gilbert started his employment with Sanders Lead. He was actually hired on May

22 or 23, before Mr. McNabb even applied. See Exhibit 3 the Affidavit of Sam Kitchens,

p. 1, ¶ 6

Viewing all of the evidence in the most favorable light of Mr. McNabb still does not

defeat the fact that Mr. McNabb was not eligible to be rehired for his job as is clearly stated

in his discharge paperwork. Regardless of job openings, job qualifications, or even job

applications, Mr. McNabb simply was not eligible to be rehired at the direction of his

supervisor, Leon Bennett. The reason for him not being eligible could not have been

retaliatory because such determination was made on January 6, 2006, many months

before any EEOC claim was filed and served against Sanders Lead. 

VI. CONCLUSION

Plaintiff is unable to prove that Defendant’s decision to not rehire the Plaintiff to his

old job was age discrimination, nor can he prove that the decision was retaliatory in nature.

The only evidence in existence shows that the Plaintiff did have problems performing his

job duties and as a result was selected to be part of the work force reduction. The

evidence shows at the time of his discharge, the Plaintiff’s supervisor stated that the

Plaintiff was not eligible to be rehired at his same job. The evidence shows that the

Plaintiff did apply for his old job and was not rehired. There is no evidence of

discrimination and no evidence of retaliation as the decision to not rehire the Plaintiff was

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made well before he filed any complaint with the EEOC. 

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 23rd day of August, 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)

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

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CERTIFICATE OF SERVICE

I hereby certify that I have this date electronically filed the foregoing with the Clerk

of Court using the CM/ECF system and served a copy of same by CM/ECF on this the 23rd

day of August, 2007:

Roderick T. Cooks, Esq.

WINSTON COOKS, LLC

The Penick Building

319 17th Street North

Birmingham, Alabama 35203

s/ N.J. Cervera 

OF COUNSEL

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