IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RANDY JONES, ) 

)

Plaintiff, )

 ) CIV. ACT. NO. 2:06cv780-ID

v. )

)

ALABAMA POWER COMPANY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

 In this lawsuit, Plaintiff Randy Jones (“Jones”), a Caucasian male, alleges that

Defendant Alabama Power Company (“Alabama Power”) terminated his employment

based upon his race and refused to rehire him in retaliation for complaining of

discrimination to the Equal Employment Opportunity Commission (“EEOC”). Jones

brings his claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2000e-17 (“Title VII”), and 42 U.S.C. § 1981 (“§ 1981”). 

Before the court is Alabama Power’s motion for summary judgment. (Doc. No.

11.) The motion is accompanied by a memorandum of law and evidence. (Doc. Nos.

12-13.) Jones filed a memorandum of law and evidence in opposition to Alabama

Power’s motion. (Doc. Nos. 21-22, 25.) Alabama Power filed a reply. (Doc. No. 23). 

After careful consideration of the arguments of counsel, the relevant law, and the record

as a whole, the court finds that Alabama Power’s motion is due to be granted. 

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 1 of 21
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II. JURISDICTION AND VENUE

The court properly exercises subject matter jurisdiction over this action, pursuant

to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343 (civil rights

jurisdiction). Personal jurisdiction and venue are adequately pleaded and not contested.

III. STANDARD OF REVIEW

A court considering a motion for summary judgment must construe the evidence

and make factual inferences in the light most favorable to the nonmoving party. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S. H. Kress & Co., 398

U.S. 144, 157 (1970). At the summary judgment juncture, the court does not “weigh the

evidence and determine the truth of the matter,” but solely “determine[s] whether there is

a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)

(citations omitted). 

Summary judgment is entered only if it is shown “that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). The moving party “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex, 477 U.S. at 323. The movant can meet this burden by presenting

evidence showing that there is no dispute of material fact or by showing that the nonCase 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 2 of 21
 The facts are presented in the light most favorable to Jones. 1

3

moving party has failed to present evidence in support of some element of its case on

which it bears the ultimate burden of proof. Id. at 322-23, 325. The burden then shifts to

the nonmoving party, which “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Summary judgment will not be entered unless the

record taken as a whole could not lead a rational trier of fact to find for the nonmoving

party. See id. at 587.

IV. FACTS1

Jones, a Caucasian male, had worked for Alabama Power for more than two

decades when he was fired on September 27, 2005. For the majority of his tenure, Jones

was a local operations lineman. The circumstances which resulted in Jones’ termination

are set out at length in the parties’ submissions. Distilled to their essence, the material

facts surrounding Jones’ discharge are as follows.

In September 2005, during Alabama Power’s investigation of an unrelated

complaint lodged against Jones, Alabama Power discovered that in the summer of 2005

Jones had reconnected the electric services of an Alabama Power customer without

authorization. At the time, the customer was employed by Jones who operated a lawn

care business on the side. As a result, the customer did not have to pay the $50.00

reconnection fee or the $85.00 deposit. 

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Alabama Power conducted an investigation of the accusation against Jones, as

detailed in Alabama Power’s memorandum of law and accompanying evidence. (See

Def. Mem. of Law at 6-9); (Investigative Report (Def. Ex. 16).) The investigative report

contains, among other things, a statement from the customer who provided the following

information: 

This past summer . . ., we had our power cut off and a red seal put on the

meter at our house. I asked [Jones] for a loan but he actually turned our

power back on and changed the color of the seal. He told me he saved me

$135.00 so I don’t need to tell anyone he had done that. He was afraid he

would loose [sic] his job.

(Investigative Report at 7.) During the investigation, Jones admitted that he improperly

reconnected the electric services of his then employee. Jones gave the following

statement:

In May 2005 [customer] called me to tell me that [his] power had been

disconnected. I called Lucious Cobbs [an Alabama Power meter reader]

and he confirmed that it had been. I told Lucious I would get their power

back on. I do not recall discussing Lucious’ paperwork with him. I think I

asked Lucious how much money [the customer] needed. I took [the

customer] a check and he was able to pay his bill with that. I did reconnect

[his] power and seal the box with my [gray] seal. I cannot recall if I told

[customer] and his wife that I had saved them $135.00. I do realize that I

reconnected power without the direction of the business office and I know I

should not have done that. I was trying to help one of my employees. 

(Id. at 11); (see also Pl. Dep. at 97 (Ex. 1 to Doc. No. 13).) As explained by Alabama

Power, when power is disconnected, a red seal is placed on the meter. A gray seal is used

in other instances, such as when power is restored after disconnection. (Def. Mem. of

Law at 6 (citing Ingram Dep. at 71).) 

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 4 of 21
 Strangely, the name of the policy which led to the demise of Jones’ job is called 2

the “Non-Punitive Discipline Policy” (hereafter also “policy”).

 On a positive note, Jones received a Top Performer Award in 2004. (Pl. Mem. 3

at 2.)

5

Greg Clemons (“Clemons”), a supervisor in Jones’ chain of command and a

Caucasian male, reviewed the investigative report, talked to Jones’ direct supervisor,

decided that Jones’ misconduct violated company policy, and fired Jones. (Clemons Dep.

at 7, 11, 18-19, 22, 59 (Ex. 2 to Doc. No. 13).) Specifically, Clemons determined that,

when Jones reconnected the customer’s meter and restored electric services without

company authorization, he “tampered with a meter and electric service,” an offense

punishable by immediate termination, as set out in Alabama Power’s discipline policy.2

(Id. at 22-23, 33).) 

That policy provides three levels of disciplinary action prior to termination. In

some instances, however, the policy authorizes immediate termination “when an

employee commits an infraction so serious that progression through the formal levels of

discipline is not warranted.” (Def. Ex. 9.) Jones is familiar with Alabama Power’s levels

of discipline; he received a third level discipline in 2001 and again in 2002. (Pl. Dep. 3

at 70-71, 76-79, 82 (Def. Ex. 1 to Doc. No. 13)); (Defs. Exs. 11-13).) In particular, as

documented in a company memorandum to all employees, dated May 1, 2000, Alabama

Power “clarified the guidelines for two policies.” (Def. Ex. 10.) Of relevance, Alabama

Power “clarified the reasons for discharge” in its Non-Punitive Discipline Policy by

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adding “a non-inclusive list of actions that will result in immediate discharge,” including

“[t]ampering with an electric service account or meter.” (Id.)

Emphasizing the seriousness of tampering with a meter, Alabama Power also

submits an undated memorandum from Alabama Power’s then executive vice president. 

In that memorandum, he explains that “[t]he number of thefts of electric service/current

has been increasing at an alarming rate throughout the electric industry.” (Id.) He further

warns that any employee 

found to be receiving or assisting others in receiving electric service by any

type of unauthorized use, diversion, or reconnection or found to have

tampered with or bypassed or assisted others in tampering or bypassing the

Company’s electric meters or wires so that such meters do not register the

correct amount of electricity used will be subject to discharge. 

(Id.) 

Jones admits that he reconnected the customer’s electric services “without securing

a work order before doing so,” but he denies that his misconduct constituted tampering

with a meter. (Compl. ¶ 7); (see also Pl. Mem. of Law at 4 (conceding that Jones

reconnected the meter “without a work order, a violation of company policy”); (Pl. Dep.

at 90, 105.) He also contends that Lucious Cobbs (“Cobbs”), an African-American male,

committed an “offense[] of equal or greater seriousness,” but was not fired. (Pl. Mem. of

Law at 7); (Compl. ¶ 7.) A discussion of the facts surrounding Cobbs’ infraction, thus, is

helpful. 

Cobbs, an Alabama Power meter reader, disconnected the electric services of the

customer at issue and wrote the work order directing disconnection and requiring an

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 6 of 21
 The deposit amount required to restore power after a disconnection varies 4

depending on, among other things, the customer’s credit and payment history. (Clemons

Dep. at 28, 36.)

7

$85.00 deposit for restoration of services. After he cut off the electric services, Cobbs 4

says that Jones called him and said that he “would go back and reconnect [the power] and

take care of the entire bill.” (Cobbs Dep. at 23-29 (Pl. Ex. 6 to Doc. No. 22).) Cobbs,

thus, erased the meter reading on the work order to prevent the business office from

sending a lineman to reconnect the meter after the account balance was paid. (Id.

at 28-29.) 

By erasing the meter reading on the order, Cobbs altered company documents. 

(Weaver Dep. at 20-23, 66 (Pl. Ex. 4 to Doc. No. 22).) As a consequence, his supervisor,

Terry Weaver (“Weaver”), placed Cobbs on “third level discipline” for a period of

eighteen months. (Def. Ex. 31.) The third level is the most serious level of discipline

short of termination. (Def. Ex. 9.) It is authorized when either “an employee does not

meet a commitment to improve during the period of a Second Level Notice, or when a

single infraction is serious enough to warrant this level of discipline.” (Def. Ex. 9.) If

any performance problems arise during the time period that the third level discipline is in

effect, “discharge will be recommended.” (Id.)

Weaver determined that, although Cobbs had committed a single infraction, his

conduct was sufficiently serious to warrant a third level discipline. Weaver explained

that he made his disciplinary decision after he interviewed Cobbs, reviewed other

investigative information provided to him and assessed the “circumstances.” (Weaver

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Dep. at 10-13, 18-19, 61.) He examined whether Cobbs had obtained “any kind of

personal benefit or gain” by altering the document and whether Cobbs “had a relationship

or an awareness or an association with the individual’s account that had been

reconnected.” (Id.) These inquiries were answered in the negative and, thus, weighed in

Cobbs’ favor. (Id. at 61-62, 65-66.) Weaver also “took into consideration [Cobbs’]

previous [positive] job performance.” (Id. at 61, 65-66); (Cobbs Dep. at 34 (Pl. Ex. 6

to Doc. No. 22).) 

After his termination, Jones sent two unverified letters to the EEOC complaining

that Alabama Power fired him on the basis of his race. (Def. Exs. 23, 27.) The letters are

dated March 20, 2006, and April 7, 2006. (Id.) On June 5, 2006, the EEOC mailed Jones

a notice of right to sue. (Def. Ex. 30.) 

In July 2006, Jones completed an online profile on the careers website of Southern

Company Services (“Southern Company”), which is Alabama Power’s parent company. 

Jones selected “Technician/Occupational - Lineman” as the field of jobs in which he

would be interested in applying. As explained by J Robert Sunderland (“Sunderland”),

Southern Company’s talent acquisition operations team leader, when an individual creates

an online profile and selects a job field of interest, he is not applying for a specific

position, but rather is ensuring that he will receive notification via e-mail if a job within

the field he has selected becomes available. After notification of an opening, the

individual then can complete and submit an application online. Sunderland confirms that,

while Jones created an online profile, he has not applied for a vacant position within

Alabama Power or Southern Company since his termination in September 2005. 

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 8 of 21
 The court notes that, approximately eleven months after Jones filed this lawsuit, 5

on July 25, 2007, Jones filed an “amended verified charge” with the EEOC, outlining in

further detail his wrongful termination claim against Alabama Power. The “amended

verified charge” is signed by Jones “under penalty of perjury[.]” (Pl. Ex. 21 (Doc. No.

Ex. to Doc. No. 22.) 

9

(Sunderland Aff. & Ex. C attached thereto (Def. Ex. 32).) Sunderland also explains that,

if Jones had applied for a job, the position for which he submitted an application would

be listed on his “job submissions candidate tab” on the careers website. (Sunderland Aff.

¶ 5.) 

Seeking relief for Alabama Power’s alleged transgressions, on August 30, 2006,

Jones filed the instant lawsuit pursuant to Title VII and § 1981. In Count I of his two- 5

count complaint, Jones alleges a wrongful termination claim. In Count II, Jones avers

that he “reapplied for employment” with Alabama Power, but Alabama Power refused to

rehire him in retaliation for complaining of discrimination to the EEOC. (Compl. ¶ 12.) 

Jones requests a declaratory judgment, a permanent injunction, “back-pay (plus interest),

compensatory and punitive damages, reinstatement, or in lieu of reinstatement[,] front

pay[,]” costs and attorney’s fees. (Id. at 4.)

V. DISCUSSION

Jones concedes that this is not a direct evidence case. (See Pl. Mem. of Law at 6

(Doc. No. 21).) Consequently, his Title VII/§ 1981 discrimination and retaliation claims

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 9 of 21
 “The McDonnell Douglas scheme for the allocation of burdens and the order of 6

presentation of proof also applies in § 1981 cases involving discriminatory treatment in

employment situations.” Turnes v. AmSouth Bank, 36 F.3d 1057, 1060 (11 Cir. 1994). th

In Adams v. Cobb County School District, the Eleventh Circuit noted that “‘whether the

elements of Title VII and § 1981 retaliation claims are the same is an open question in

this Circuit.’” No. 06-15103, 2007 WL 1720430, *4 n.6 (11 Cir. June 15, 2007) th

(quoting Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1120 n.10 (11 Cir. 2001)). As th

in Adams, however, because the parties have not raised this “open question,” the court

assumes without deciding that the elements of a Title VII retaliation claim also apply to a

§ 1981 retaliation claim. See id. The court, thus, considers the discrimination and

retaliation claims – and the proof relating to them – under the Title VII burden-shifting

framework. 

10

are governed by the familiar McDonnell Douglas burden-shifting framework.6

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the first McDonnell

Douglas phase, the employee must produce evidence sufficient to make out a prima facie

case, thus giving rise to a presumption that the employer unlawfully discriminated or

retaliated against him in taking the alleged adverse employment action. See St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

Next, the employer must rebut this presumption by producing evidence that the

negative employment action was motivated instead by a legitimate, nondiscriminatory or

non-retaliatory reason. Id. at 509. The employer’s “burden is one of production, not

persuasion; ‘it can involve no credibility assessment.’” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Ctr., 509 U.S. at 509). 

Finally, to avoid summary judgment, the plaintiff must respond with evidence, which

may include previously produced evidence establishing a prima facie case, which would

allow a reasonable jury to conclude that the reasons given by the employer were not the

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 10 of 21
11

real reasons for the adverse employment decision. See Combs v. Plantation Patterns, 106

F.3d 1519, 1528 (11 Cir. 1997); see also Reeves, 530 U.S. at 143. “The result of this th

three step dance is that the burden is always on plaintiff to show that defendant’s action is

discriminatory.” Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11 Cir. 2005) th

(per curiam).

A. Wrongful Termination (Count I)

Alabama Power argues that Jones cannot establish a prima facie case of racial

discrimination. Alternatively, Alabama Power contends that Jones cannot rebut the

legitimate, nondiscriminatory reason for terminating him. 

Attacking Jones’ prima facie case, Alabama Power asserts that Jones has not

demonstrated that he was treated less favorably than similarly-situated employees who

are not Caucasian. Jones disagrees, asserting that Cobbs is a proper comparator. 

Alternatively, Jones argues that, even absent evidence that Alabama Power treated a

similarly-situated employee of another race more favorably, he has demonstrated a prima

facie case of discrimination because he has “put forth substantial evidence” that his

admitted misconduct does not equate the terminable offense of tampering with a meter. 

(Pl. Mem. of Law at 8 (Doc. No. 21) (citing Jones v. Gerwens (“Gerwens”), 874 F.2d

1534 (11 Cir. 1989).) th

The Eleventh Circuit’s opinion in Jones v. Bessemer Carraway Medical Center

(“Bessemer”) readily disposes of Jones’ second argument. There, the plaintiff called the

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12

court’s attention to the same language in Gerwens upon which Jones relies. 137 F.3d

1306, 1311 n.6 (11 Cir.), modified on other grounds on denial of reh’rg, 151 F.3d 1321 th

(11 Cir. 1998). The Bessemer court explained that the discourse in Gerwens about “‘did th

not violate the work rule’” was dictum. Id. The court held that Gerwens requires a

plaintiff who alleges racial bias in discipline stemming from work rule violations to

demonstrate not two, but three, prima facie elements: (1) that he is a member of a

protected class; (2) that he “has engaged – either (a) disputedly or (b) admittedly – in

misconduct similar to persons outside the protected class”; and (3) “that similarly

situated, nonminority employees (that is, persons outside the protected class) received

more favorable treatment.” Id. The Bessemer court 

stress[ed] that, under the [Gerwens] formulation, no plaintiff can make out

a prima facie case by showing just that she belongs to a protected class and

that she did not violate her employer’s work rule. The plaintiff must also

point to someone similarly situated (but outside the protected class) who

disputed a violation of the rule and who was, in fact, treated better.

Id. 

Based upon the clear command of Bessemer, this court rejects Jones’

interpretation of Gerwens. Jones cannot establish a prima facie case simply by denying

that he violated the work rule at issue.

Turning to the similarly-situated requirement of the Bessemer prima facie case,

Jones bears the burden of demonstrating that he was treated differently than Cobbs. To

carry this burden, Jones must show that Cobbs was “similarly situated in all relevant

respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11 Cir. 1997). Although Cobbs th

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 12 of 21
 In Burke-Fowler v. Orange County, Florida, the Eleventh Circuit observed that a 7

prior panel “called into question” the “nearly identical” requirement. 447 F.3d 1319,

1323 n.2 (11 Cir. 2006) (citing Alexander v. Fulton County, 207 F.3d 1303, 1334 (11 th th

Cir. 2000)). The Eleventh Circuit in Burke-Fowler, however, noted that it was “bound to

follow Maniccia’s ‘nearly identical’ standard rather than the standard articulated in

Alexander because when a later panel decision contradicts an earlier one, the earlier panel

decision controls.” Id. (citing Walker v. Mortham, 158 F.3d 1177, 1188-89 (11 Cir.

th

1998)); see also Eggleston v. Bieluch, 203 Fed. Appx. 257, n.5 (11 Cir. 2006) (holding th

that Burke clarified the “confusion in the law of this circuit about the degree of similarity

necessary for a valid comparator”). Herein, the court has applied the “nearly identical”

standard, but notes that its findings would be the same even under the less stringent

standard set forth in Alexander, supra. 

13

need not be “identically situated” to Jones, id., the “quantity and quality of the

comparator’s misconduct [must] be nearly identical to prevent courts from

second-guessing employers’ reasonable decisions and confusing apples with oranges.”7

Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11 Cir. 1999); see also Silvera v. Orange th

County Sch. Bd., 244 F.3d 1253, 1259 (11 Cir. 2001). For purposes of the prima facie th

showing, “[t]he most important factors in the disciplinary context are the nature of the

offenses committed and the nature of the punishments imposed.” Maniccia, 171 F.3d

at 1368. Moreover, although not always dispositive, failure to show a common

supervisor can be a strong factor against a finding that employees are similarly situated. 

See Anderson v. WBMG-42, 253 F.3d 561, 566 (11 Cir. 2001); Silvera, 244 F.3d th

at 1261 n.5 (noting that “differences in treatment by different supervisors or decision

makers can seldom be the basis for a viable claim of discrimination”) (citing, among other

decisions, Gerwens, 874 F.2d at 1541); Chapman v. AI Trans., 229 F.3d 1012, 1031 n.21

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 13 of 21
Cobbs was a meter reader; Jones was a local operations lineman. 

8

14

(11 Cir. 2000) (“Different decision-makers are entitled to be concerned about different th

things.”).

Moreover, in conducting the comparator analysis, a court must remain mindful that

“Title VII does not take away an employer’s right to interpret its rules as it chooses, and

to make determinations as it sees fit under those rules[.]” Silvera, 244 F.3d at 1369

(internal quotations omitted). For this reason, the employer’s perception as to the

severity of the employee’s conduct is relevant in determining whether the employee and

the comparator are similarly situated in all relevant respects. See Nix v. WLCY

Radio/Rahall Communications, 738 F.2d 1181, 1186 (11 Cir. 1984) (explaining that if th

an employer applies a rule differently to people it believes are differently situated, no

discriminatory intent has been shown). When the plaintiff and the proposed comparator

are not similarly situated, the employer’s decision to impose different punishment on

each does not raise an inference of illegal discrimination. See Lathem v. Dep’t of

Children & Youth Servs., 172 F.3d 786, 793 (11 Cir. 1999). th

As stated, Jones points to Cobbs whose discipline fell short of termination. For

the reasons to follow, however, the court finds that Jones and Cobbs are not similarly

situated in all relevant respects.

 By virtue of their different jobs, Jones and Cobbs were under different

supervisory regimes. Weaver made the decision to discipline Cobbs. Clemons made the 8

decision to terminate Jones. (Clemons Dep. at 11, 18, 64-66, 75); (Weaver Dep. at 10.) 

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15

Alabama Power has submitted evidence that Clemons was not in Cobbs’ supervisory

chain of command and did not have any influence or say regarding the discipline imposed

against Cobbs. (Clemons Dep. at 39, 64, 66, 75.) Similarly, Weaver had no involvement

in or “control over” the decision to terminate Jones. (Weaver Dep. at 13-18.) Jones

presents no evidence to the contrary. Different decisionmakers, thus, made the

disciplinary decisions at issue.

Although Jones’ and Cobbs’ misconduct arose from the same incident, the court

finds that there are factual differences, both actual and perceived, in the roles Jones and

Cobbs played in the incident. Jones reconnected a meter without company authorization;

Cobbs altered a meter reading on a work order directing disconnection of a customer’s

electric services for non-payment. Clemons viewed the circumstances surrounding Jones’

conduct as warranting termination. Weaver also perceived Cobbs’ infraction to be

“serious enough” to bypass the first two levels in Alabama Power’s three-level

disciplinary progression. Weaver, though, did not consider termination as required

because Cobbs did not receive any personal benefit from altering the meter reading on the

work order, did not have a personal relationship with the customer and had no significant

performance problems. (Weaver Dep. at 18-19, 61-62, 65-66); (Doc. No. 9.) 

While Weaver was not involved in the decision to terminate Jones, it is notable

that the mitigating facts Weaver considered distinguish Cobbs’ conduct from Jones’

conduct. The investigative report upon which Clemons relied in terminating Jones

reveals that Jones knew the customer at issue, wanted to help that customer and, in fact,

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 15 of 21
It also is noteworthy that Clemons and Jones are both Caucasian, yet another 9

factor which weakens Jones’ argument of discrimination. See Moore v. Ala. Dep’t of

Corr., 137 Fed. Appx. 235, 239 n.4 (11 Cir. 2005) (“Where decision-makers are also th

members of a protected class, the plaintiff faces a greater burden.”) (citing Elrod v. Sears,

Roebuck & Co., 939 F.2d 1466, 1467 (11 Cir. 1991)). th

16

saved the customer money owed to Alabama Power by reconnecting the customer’s

electric services without authorization. At the same time, it can be inferred that, because

the customer had requested a loan from Jones to pay the delinquent account, Jones

averted having to lend the customer the entire balance. (Investigative Report at 7, 11.)

The investigative report further indicates that Jones had received a prior third level

discipline in 2002. (Id. at 12.)

While Jones says in conclusory fashion that Cobbs “engaged in far more serious

conduct” than Jones, (Pl. Mem. of Law at 9), he has not demonstrated that Weaver’s and

Clemons’ differing perceptions of the severity of their subordinates’ conduct give rise to

an inference of discrimination. He fails to cite any evidence indicating that Weaver did

not have discretion to choose a third level discipline in lieu of termination as a sanction

for Cobbs’ misconduct. (See, e.g., Weaver Dep. at 22.) Jones also has not pointed to any

non-Caucasian employee who under circumstances similar to his was not terminated after

reconnecting a meter without company authorization. 

9

In sum, the court finds that the fact that different supervisors made the disciplinary

decisions based upon their independent assessment of the severity of the dissimilar

misconduct sufficiently explains the disparity in discipline, thereby preventing an

inference of discrimination. Jones has not raised a genuine issue of material fact that the

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17

relevant decisionmaker who reviewed the accusation against him meted out a punishment

against Jones for racial reasons. Jones, therefore, fails to establish a prima facie case of

discrimination.

Assuming though that Jones had established a prima facie case, the court finds that

Alabama Power has “clearly set forth, through the introduction of admissible evidence” a

legitimate, nondiscriminatory reason for Jones’ termination. Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 255 (1981). Namely, Clemons believed that the

circumstances under which Jones reconnected a customer’s meter without an order

qualified as tampering with a meter, in violation of a specific company policy which

warranted termination. (Def. Mem. of Law at 10, citing Def. Ex. 10 and Clemons Dep.

at 22, 33)); Nix, 738 F.2d at 1187 (holding an employee may be fired “for good reason,

bad reason, reason based on erroneous facts, or no reason at all, so long as its action is

not for a discriminatory reason”). 

In this case, the pretext inquiry focuses on Clemons’ perception of the facts

available to him at the time of the decision, rather than on Jones’ beliefs, Holifield, 115

F.3d at 1565, and on whether Clemons honestly believed that those facts violated the

stated work rule. Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1220 (10 Cir. 2007) (“A th

pretext argument requires the court to ‘examine the facts as they appear to the person

making the decision,’ to determine whether the employer ‘honestly believed those reasons

and acted in good faith upon those beliefs.’”) (citation omitted). Jones cannot show

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18

pretext merely by “quarreling with the wisdom” of his employer’s reason. Chapman, 229

F.3d at 1030. 

Jones does not dispute that he “reconnected [a customer’s] meter without a work

order, a violation of company policy.” (Pl. Mem. of Law at 4 (citing Pl. Dep. at 105).)

He also does not dispute that Alabama Power’s Non-Punitive Discipline Policy provides

that “[t]ampering with an electric service account or meter” is an offense that “will result

in immediate termination.” (Def. Ex. 10.) Rather, Jones argues that his misconduct does

not equate “tampering with a meter” and that, while his conduct “violated company

policy,” Alabama Power “cannot fire him for this violation.” (Pl. Mem. of Law at 8.)

Having carefully considered the evidence upon which Jones relies to show pretext

(see id.) and Alabama Power’s rebuttal (see Def. Reply at 5-8), the court finds that Jones

has not submitted any competent evidence that Alabama Power interpreted or applied its

policy forbidding tampering with a meter in inconsistent ways or that Clemons’ belief

that the policy applied to Jones’ conduct was not honest. See, e.g., Dawson v. Henry

County Police Dep’t, 238 Fed. Appx. 545, at **3 (11 Cir. 2007) (holding that plaintiff

th

failed to raise a triable pretext issue because he merely “questioned whether his

employment acts constituted violations of work rules and state law as claimed by

[employer],” but “introduced no evidence to show that [employer] had no real belief that

his acts were improper and merited the discipline imposed”). In the end, at best, Jones

disagrees with Alabama Power’s application of the policy to his conduct. Absent any

evidence that Alabama Power selectively enforced its policy in a racially discriminatory

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 18 of 21
 Section 1981 “prohibits an employer from retaliating against its employee as a 10

response to the employee’s complaint of race-based discrimination.” Adams, 2007 WL

1720430, at *4 n.6. Title VII’s anti-retaliation provision, codified at 42 U.S.C.

§ 2000e-3, “forbids employer actions that ‘discriminate against’ an employee (or job

applicant) because he has ‘opposed’ a practice that Title VII forbids or has ‘made a

charge . . . in’ a Title VII ‘investigation, proceeding, or hearing.’” Burlington Northern &

Santa Fe Ry. v. White, ___ U.S. ___, ___ 126 S.Ct 2405, 2416 (2006) (quoting 42 U.S.C.

§ 2000e-3).

19

manner, the court will not and cannot “second-guess the wisdom of an employer’s

decisions[.]” Alexander, 207 F.3d at 1341. The court, therefore, finds that Jones has

failed to show a genuine issue of material fact regarding pretext. Accordingly, Alabama

Power’s motion for summary judgment on Jones’ wrongful termination claim is due to be

granted.

B. Retaliation (Count II)

Jones also brings a retaliation claim under Title VII and § 1981, alleging that

Alabama Power took an adverse employment action against him by not rehiring him in

retaliation for exercising his statutory right to complain to the EEOC about race

discrimination. (Pl. Mem. of Law at 14 (Doc. No. 21).) 10

To establish a prima facie case of retaliation, a plaintiff must show (1) that he

engaged in statutorily protected activity, (2) that he suffered an adverse employment

action and (3) that the adverse employment action was causally related to the protected

activity. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454 (11 Cir. 1998). In th

this case, element two is at issue. 

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 19 of 21
20

Alabama Power asserts that Jones’ retaliation claim fails for the simple reason

that, after terminating Jones, Alabama Power has not posted a job opening for which he

applied; therefore, Alabama Power argues that it has not taken any action against Jones,

much less an adverse action. (Def. Mem. of Law at 24 (Doc. No. 12)); (Def. Reply at 8.)

(Doc. No. 23).) For the reasons to follow, the court agrees with Alabama Power. 

The court finds instructive the First Circuit’s guidance in Velez v. Janssen Ortho,

LLC, 467 F.3d 802 (1 Cir. 2006). In Velez, the court stated, st

In the retaliatory failure-to-hire context, the specifics of the job application

or applications that underlie a claim of failure-to-hire usually relate most

naturally to the adverse employment action prong of such a claim. Put most

simply, in the absence of a job application, there cannot be a failure-to-hire.

Id. at 807. Relying on precedents from other circuits, the First Circuit held that, in a

retaliatory failure-to-hire case, to demonstrate an adverse employment action, a plaintiff

must demonstrate that (1) he or she “applied for a particular position (2) which was

vacant and (3) for which [he or] she was qualified” and further that (4) he or she “was not

hired for that position.” Id.

Pursuant to Velez, the issue is whether Jones has demonstrated that he applied for

an open position. He has not. Alabama Power submits an affidavit from Sunderland

which establishes that the document upon which Jones relies to show that he has not been

rehired merely indicates that Jones created a job profile and uploaded his resume on

Southern Company’s careers website. (Sunderland Aff. (Def. Ex. 32)); (Pl. Mem of Law

at 14 (relying on Pl. Ex. 16).) As explained by Sunderland, when Jones created this

online profile, Jones did not apply for a particular job, but merely ensured that he would

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 20 of 21
 Alabama Power also argues that it is entitled to summary judgment on Jones’ 11

Title VII claims because Jones did not timely verify his EEOC charge. (Def. Mem.

of Law at 12-14); 29 C.F.R. § 1601.9 (2007) (providing that a charge “shall be in writing

and signed and shall be verified”). Based upon the findings herein, the court need not,

and declines, to reach this issue. 

21

receive notification via e-mail of any job opening which satisfied the criteria he had

selected. Sunderland states explicitly that Jones has not applied for any position with

Alabama Power or its parent company. (See Sunderland Aff. (Def. Ex. 32).) 

Sunderland’s affidavit is unrefuted. 

Because Jones never applied for any vacant position, it is impossible to infer that

his application was rejected. Absent any evidence that Jones suffered an adverse

employment action, his retaliation claim fails. Summary judgment, therefore, is due to be

entered in favor of Alabama Power on Jones’ retaliation claim.11

VI. ORDER

Accordingly, it is CONSIDERED and ORDERED that Alabama Power’s motion

for summary judgment be and the same is hereby GRANTED. 

A final judgment shall be entered separately.

Done this 14 day of November, 2007. th

 /s/ Ira DeMent 

SENIOR UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00780-ID-TFM Document 28 Filed 11/14/07 Page 21 of 21