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EDMONDSON vs. OLD DOMINION FREIGHT LINE, INC. Plaintiff’s Opposition To Defendant’s Motion For Summary Judgment Jimmy Lee Edmondson files his opposition to Defendant, Old Dominion Freight Line. Inc.’s Motion for Summary Judgment [FOOTNOTE 1]and in support would show there exists genuine issues of dispute for the trier of fact to determine as to numerous material facts with regard to his claims for Federal civil rights violations arising under Title VII of the Civil Rights Act of 1964, (as amended)(42 U.S.C. � 2000e et seq.); and pendent claims arising under state law, including but not limited to, the Florida Civil Rights Act of 1992, (Section 760.01 et. seq., Florida Statutes)(1995), and as such, Defendant’s Motion as a matter of law should be denied. I. SUMMARY JUDGMENT STANDARDS Rule 56(c) of the Federal Rules of Civil Procedure provides that “[t]he judgment sought shall he rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” What is “material” for purposes of a motion for summary judgment is a legal element of the claim as determined by substantive law governing the case, such that its presence or absence may affect the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S.242, 248 (l986). In addition, an issue of fact is “genuine” for purposes of a motion for summary judgment if the record taken as a whole could lead rational triers of fact to find for the non-moving party. Tipton v. Bergrohr, 965 F.2d 994 (11th Cir. 1992). In analyzing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and make all factual inferences in favor of that party. Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993). See also, United States v. Diebold. 369 U.S. 654 (1962); Early v. Champion International Corp., 907 F.2d 1077, 1080; (11th Cir. 1990); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453. 1454 (11th Cir. 1998). In addition, the non-moving party must set forth-specific facts showing that there is a genuine issue as to material fact for trial. Muck v. United States, 3 F.3d l378 (10th Cir. 1993), and Garcia-Paz v. Swift Textiles, 873 F. Supp. 547 (D.C. Kan. l995). The inquiry is not whether there is literally no evidence for the non-moving party; but instead, whether or not there is evidence upon which a jury could properly proceed to base a verdict for that party. Anderson, 477 U.S. at 251-2. However. “[t]he grant of summary judgment, though appropriate when evidence of discriminatory intent is totally lacking, is generally unsuitable… [where the] plaintiff has established a prima facie case because of the ‘elusive factual question’ of intentional discrimination. ” Hairstonat 921 (citing, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248. 256, 101 S.Ct. 1089. 1095, 67 L.Ed.2d 207(1981). Finally, the court must avoid weighing conflicting evidence or making credibility determinations. Welch v. Celotex Corp., 951 F.2d l235, 1237 (11th Cir. l992). Miranda v. B & B Cash Grocery Store, Ine.,975 F.2d 1518, 1534 (11th Cir. 1992) (“If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment.”) in keeping with this Circuit’s precedent and the weight of other authority, summary judgment for defendants would be improper if based solely on the establishment prong of the prima facie case. Mulhall v. Advance Security, Inc.19 F.3d 586, (11th Cir. 1994). Because this is a summary judgment motion, the plaintiff only needs to raise a genuine issue of material fact that the reason was a pretext; he does not need to actually prove it. Hairston, 9 F.3d at 921. Edmondson’s evidence clears this hurdle. Any reading to prior case dicta to the effect that the plaintiff needs to prove pretext at the summary judgment stage is incorrect. Maddow v. Proctor and Gamble, 107 F.3d 846 (11th Cir. 1997). In conclusion, as explained below, the there are numerous issues of material facts. and, thus. Defendant’s Motion for Summary Judgment should be denied. II. PLAINTIFF HAS COMPLIED WITH REQUIREMENTS FOR THE BRINGING OF THE A CLAIM UNDER FSA � 760 Edmondson has exhausted the administrative remedies under F.S.A. � 760.01 et seq. Edmondson filed his administrative charge with the Broward County Human Rights Division (hereinafter referred to as HRD). When plaintiff filed his charge, he made it imminently clear of his intent to raise the joint claim of Title VII and F.S.A. 760.01 et seq [FOOTNOTE 2]. (See affidavit and charge of discrimination.) Even though a box was not checked regarding the dual filing with the Florida Commission on Human Relations, (hereinafter referred to as FCHR), HRD followed its own policy and sent courtesy copies of the charges to FCHR for filing. ( Seeletter from Battle.) The filing with the FCHR was done in April 1996. well within the administrative time frame for filing a charge of discrimination prescribed by F.S.A. � 760.11(1). Once HRD submitted a copy of the charge of discrimination, to the Florida Commission. Edmondson complied with his statutory obligation to file with the FCHR within 365 days of the alleged violations. As such, defendant’s motion for summary judgment on this issue should be denied. Weaveris not applicable The defense rests heavily on Weaver v. Florida Power & Light, 1996 WL 479117 (S.D. Fla. 1996) in its argument. Weaveris not a published decision and its weight on this court is only persuasive, not binding. Nevertheless, Weaveris not applicable to the instant case because (1) HRD submitted a copy of Edmondson’s charge to FCHR; and (2) Edmondson clearly states in the body of the charge he is seeking remedies under Title VII and the Florida Civil Rights Act. Unlike the situation in Weaver, in the instant case HRD followed its standard policy, by submitting copies of Edmondson’s dual filed charges of discrimination to FCHR. Additionally. Edmondson. unlike Weaver. clearly indicated his intent to pursue his remedies under F.S.A. � 760.01 et. seq. by including it in paragraph three under the particulars. ( Seeexhibit M attached to defendant’s motion for summary judgment.) Edmondson’s charge clearly cites to “a violation of Section 704(a) of Title VII of the Civil Rights Act of 1964. as amended, the Florida Human Rights Act (Chapter 760), and Article II. Section 1(a)(1) of the Broward County Human Rights Act.” ( Seeexhibit M. paragraph 3 under ‘Particulars’ attached to defendant’s motion for summary judgment). Since Edmondson has not failed to exhaust his administrative remedies by filing with the Florida Commission, defendant’s motion for summary judgment on this issue must be denied as a matter of law. Edmondson ‘s claims are not barred by the statute of limitations Edmondson’s federal lawsuit for violations of both Title VII and the Florida Human Rights Act. F.S.A. � 760.01 et. seq. was timely filed pursuant to the work-sharing agreements. and the issuance of the right to sue by EEOC. ( Seeworksharing agreements and right to sue attached as exhibit L to defendant’s motion for summary judgment) The worksharing agreement between EEOC and the FCHR provides that EEOC will do the investigating for all Title VII charges on behalf of FCHR and other charges dual filed with EEOC. It is inconceivable in light of the enormous backlog at FCHR, that there exists a situation where FCHR would split a charge and specifically keep the portion of a charge dealing the F.S.A. � 760.01 et seq for itself to investigate. The worksharing agreement does not provide for this. Similarly, the work share agreement between EEOC and HRD provides that HRD will investigate on behalf of EEOC. ( Seeattached worksharing agreements) In the instant case, EEOC assumed responsibility for the investigation and HRD, pursuant to the agreements, performed the investigation. The EEOC/FCHR agreement states “[n]ormally once an agency begins an investigation, it resolves the charge.” ( SeeFCHR/EEOC agreement, pg ii, part II(C)) In order to bring suit a plaintiff must first obtain a right to sue. See42 U.S.C. � 2000e-5(f)(1). According to the worksharing agreement, when a charge is filed with both the EEOC and a state or local agency. and the state or local agency commences the investigation, a notice of right to sue cannot be issued until 240 days after the charge was filed. ( See, 10/4/96 letter from Bonstedt). In the instant case, HRD began an investigation on behalf of both EEOC and the FCHR pursuant to its work-share agreement with EEOC. The Florida Human Rights Act of 1992 was passed with the intent of securing for all individuals within Florida the freedom from discrimination and providing a vehicle for the aggrieved individual to obtain relief from the discrimination. See, generally, F.S.A. � 760.01(2). The Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes and stated in this section and the special purposes of the particular provision involved. F.S.A. � 760.01(3)(emphasis added). In the event that any other agency of the state or of any other unit of government of the state has jurisdiction of the subject matter of any complaint filed with the commission and has legal authority to investigate the complaint, the Commission may refer such complaint to such agency for an investigation. Referral of such a complaint by the commission shall not constitute agency action. … The referral of a complaint by the commission to a local agency does not divest the commission’s jurisdiction over the complaint. F.S.A. � 760.11(2). The statute continues in addressing situations where the commission does not do the investigating itself, but rather another agency does the investigating. F.S.A. � 760.11(3) provides in pertinent part “Except as provided in subsection (2) This is exactly the situation here. Another agency, HRD, had the authority to investigate, and indeed, did commence an investigation of the charges of discrimination. [FOOTNOTE 3]HRD’s Investigation was conducted, and following that investigation, EEOC issued a right to sue letter and the instant suit was timely filed. After receiving Edmondson’s complaint, FCHR did not make a determination as to whether or not reasonable cause existed to believe that some kind of discriminatory conduct had occurred within 180 days. Rather, FCHR followed the procedures outlined in the work-share agreements and HRD performed the investigation on behalf of FCHR. The investigation performed by HRD pursuant to the work-sharing agreement with EEOC included an investigation into the violations of F.S.A. � 760. The statute is unclear as to situations when an investigation has been commenced and the aggrieved person decides to wait for the investigation to conclude when the time frame goes beyond 180 days. F.S.A. � 760. 11(3) provides in part In the event that the Commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the Commission determined there was reasonable cause. The statute clearly states a party may file suit within that time frame, there is no requirement that a person has to forgo the investigation and proceed directly to suit. Had the intent been for the aggrieved person to immediately proceed to subsection (4), then instead of the usage of “may”. the statute would have clearly stated “shall” as it does in other subsections. Indeed, it makes no sense to think that a statute intended to thwart litigation would mandate a lawsuit where the aggrieved party has no objection to allowing the investigation to go forward. “The referral of, a complaint by the commission to a local agency does not divest the commission’s jurisdiction over the complaint.” See, F.S.A. � 760.11(2). Although the statute requires administrative appeal upon a “no cause” finding [FOOTNOTE 4], the statute also requires the agency to advise the aggrieved person of his remedies. [FOOTNOTE 5]At no time has Edmondson received notification by the commission of his remedies. If Edmondson is required to continue to wait, and not proceed under the issued right to sue letter by EEOC for the violations of the Florida Civil Rights Act of 1992. then the issuance of the right to sue letter has been deceptive in that by giving Edmondson the “right to sue”, Edmondson has relied to his detriment. Further, defendant waived any right to administrative proceedings by defending this action rather than requesting abatement from this court and motion for referral to the Department of Administrative Hearings. Since Edmondson state law claims are not barred by the statute of limitations. defendant’s motion for summary judgment on this issued should be denied. Milanois not applicable Defendant’s reliance on Milano v. Moldmaster, 703 So.2d 1093 (4th D.C.A. 1997) is misplaced. In Milano, the plaintiff filed her charge with the Florida Commission on human Relations, and not with EEOC or HRD. Milanodid not deal with the situation where another agency was conducting an investigation. As previously discussed, Edmondson filed with EEOC, HRD and. HRD following it’s own procedures submitted copies of the charges to FCHR. Following the submission of the charges to FCHR, HRD then began the investigation. In the instant case, Edmondson properly and timely filed his charge with FCHR. HRD investigated the charges of discrimination. The 180-day period within which the FCHR had to issue a determination was abated due to the investigation conducted by HRD. SeeF.S.A. � 760.11(2) and (3). Prior to the issuance of a determination, and following the EEOC guidelines. Edmondson timely requested a right to sue letter pursuant to 42 U.S.C. � 2000e-5(f)(1). ( Seeletter dated December 13, 1996). On .January 8. 1997, HRD issued it’s findings. Edmondson was prohibited to file suit at this time until the issuance of a right to sue. See42 U.S.C. � 2000e-5(f)(1). On January 21, 1997 Edmondson’s counsel contacted EEOC regarding HRD’s findings and the previously requested right to sue. ( SeeEEOC notes of telephone conversation dated 1/21/97). On February 20, 1997, following the guidelines established by EEOC and outlined in HRD’s Notice of Dismissal, Edmondson timely made a request for a substantial weight review of HRD’s findings. ( Seeletter dated February 20, 1997) Rather than conducting a substantial weight review or appeal, EEOC adopted the findings of HRD and issued a right to sue which specifically stated Edmondson had 90 days within which to file suit or forever waive that right. ( Seeright to sue attached as exhibit L to defendant’s motion for summary judgment) Because this action was timely filed with this court for the Title VII and F.S.A � 760.01 et. seq. violations, defendant’s motion for summary judgement on this issued should be denied. III. THE FEDERAL COMPLAINT’S ALLEGATIONS ARE REASONABLY RELATED TO THE UNDERLYING CHARGES OF DISCRIMINATION A plaintiff’s judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Mulhall v. Advance security, Inc.19 F.3d 586. 589 n. 8 (11th Cir. 1994), cert. denied ___ U.S. ____, 115 S.Ct. 298. 130 L.Ed.2d 212 (1994), citing, Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) (Title VII complaint may encompass discrimination like or related to allegations contained in the EEOC charge and growing out of such allegations during the pendency of the case before the Commission.) (emphasis added). In Mulhall, the plaintiff brought claims of unequal pay and failure to promote. “Mulhall’s EEOC complaint and the resulting investigation would not trigger an inquiry in to defendants’ promotion practices. Accordingly, plaintiff’s promotion claims were correctly barred.” Id. at 589, n.8, citing, See also, King v. Seaboard Coast Line R. Co., 538 F .2d 581. 583 (4th Cir. 1976): Johnson v. Richmond County, 507 F. Supp. 993, 995 (S.D.Ga.). aff’d in part, 732 F.2d 942 (11th Cir. 1984): King v. Georgia Power Co., 295 F.Supp. 943. 947 (N.D.Ga. 1968). The allegations contained in Edmondson’s federal complaint are reasonably related to the underlying charges of discrimination filed with HRD, FCHR and EEOC. Edmondson’s allegations in the charge of discrimination specify he was a victim of retaliation. The reasons for the retaliation are related to the discrimination itself. In the instant case. Edmondson engaged in a protected activity of reporting racist and sexually offensive remarks and behavior by the terminal manager after receiving complaints from subordinates. which he in turn investigated. ( SeeEdmondson affidavit). The racist and sexually offensive remarks and behavior by the terminal manager grow out of and are related to the reasons why Edmondson suffered retaliation and was ultimately terminated. F.S.A. � 760. 11(1) provides a charge of discrimination “shall contain a short and plain statement of the facts describing the violation and the relief sought.” F.S.A. � 760.01 et seq. requires pleading of ultimate facts only. The purpose behind F.S.A. � 760.11(1) is to put a defendant on notice, and the investigating agency has right to seek additional details. HRD’s notes show that all the issues contained in Edmondson’s complaint were subject to the HRD investigation and defendant had actual notice of all issues, and responded to same. ( SeeHRD typed fact-finding notes. defendant’s supplemental position letter dated July 12 .1996). Defendant’s assertions that plaintiff’s complaint raises allegations, which are not reasonably related to the underlying charges of discrimination raised before EEOC, HRD and the FCHR. are inaccurate. The reasons behind the retaliation are reasonable to the charge. When Edmondson filled out the charges of discrimination, he was required to provide accompanying affidavits and intake questionnaires. The intake questionnaire clearly states he reported sexual harassment by the terminal manager and was terminated shortly thereafter. [FOOTNOTE 6]All allegations contained in Edmondson’s federal complaint are reasonably related to the allegations contained in the EEOC charge. The allegations contained in the amended complaint regarding (1) the sexual harassment of female employees by Roellig; (2) discriminatory behavior toward minority employees by Roellig: and (3) Old Dominion’s failure to investigate or otherwise take remedial action were all investigated as part of the EEOC charge by HRD. All of these allegations are reasonably related to the allegations of retaliation contained in the EEOC charge and grew out of such allegations during the pendency of the case before the HRD and EEOC and Commission.). Seegenerally, Muihall v. Advanced Security, supra. Following Edmondson’s report to Freeman, he was retaliated against which included, but was not limited to his termination within 72 hours after the report was made. It is reasonable to expect the underlying reasons for the retaliation to grow out of the charge of discrimination and be a part of the EEOC investigation. This was what occurred during the HRD investigation, and indeed, the defendant addressed these issues in its supplemental response, and through testimony of its witnesses. [FOOTNOTE 7] In investigating plaintiff’s charge, HRD investigated the issues of Roellig’s discriminatory conduct toward minority employees, his sexual harassment of female employees and Old Dominion’s failure to investigate or take remedial action. As such. defendant’s motion on this issue should be denied. IV. PLAINTIFF HAS PRESENTED EVIDENCE TO ESTABLISH A VIOLATION UNDER TITLE VII AND FCRH PRIMA FACIE CASE STANDARDS In order to establish a prima facie case of retaliation under 42 U.S.C. � 2000e- 3(a). a plaintiff must show that (1) he engaged in a statutorily protected expression; (2) he suffered an adverse emplacement action; and (3) the adverse action was causally related to the protected expression. See, e.g. Weaver v’. Case Gallardo. 922 F.2d 15 , 1524 (11th Cir. 1991). To establish the causal relation element of his prima facie case of retaliation, Edmondson need only show ” that the protected activity and the adverse action are not wholly unrelated.” Meeks v. Computer Associates Intern., 15 F.3d 1013, 1021 (II Cir. 1994) (quoting EEOC v’. Reichhold Chem., Inc. 988 F.2d 1571-72 (11th Cir. 1993). Edmondson has done that by presenting evidence that the defendant knew of his allegations against Roellig � done through Freeman; and a series of adverse employment actions commenced almost immediately leading up to his termination within 72 hours later. See, e.g. Donnellon v. Fruehauf Corp., 794 F.2d 598. 601 (11th Cir. 1986) (“The short period of time [(one month)] between the filing of the discrimination complaint and the … [adverse employment action] belies any assertion by the defendant that the plaintiff failed to prove causation.”) The 11th Circuit in Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998) joined the majority of the circuits which had addressed the issue of whether actions other than discharge are covered by Title VII’s anti-retaliation provision. The court held “Title VII’s protection against retaliatory discrimination extends to adverse actions which fall short of ultimate employment decisions.” Id at 1456. The court cited with approval Wyatt v. City of Boston, 25 F.3d 13 (1st Cir. 1994), where it was held actions other than discharge are covered by Title VII’s anti-retaliation provision and listed as examples, “employer actions such as demotions, disadvantageous transfers or assignments, refusals to promote. unwarranted negative job evaluations and toleration of harassment by other employees. 14 at 1456. quoting Wyattat 15-16. Applying the foregoing case law to the facts in the instant case, Edmondson has satisfied all three elements of the prima facie case regarding his protected activity of reporting the allegations concerning Roellig to Freeman and the pre-textual discharge within 72 hours. The defendant in its motion for summary judgment has conceded that plaintiff has already satisfied the first two elements. ( SeeDefendant’s motion for summary judgment, page 15.) Edmondson did not face any disciplinary action prior to Freeman’s arrival in February 1996. Roellig has testified he did not have any complaints about Edmondson’s job performance. ( SeeRoellig depo at 130:17-19). There are no write-ups or warnings contained in Edmondson’s personnel file regarding his performance as city sales manager. Further Edmondson never was given any type of indication that he was not doing his job or that his performance was below company standards. ( SeeEdmondson affidavit). Not until after Edmondson reported Roellig’s discriminatory behavior toward minorities and his sexual offensive behaviors did Edmondson face any adverse employment actions. The first of these actions was a trumped up report concerning his sales calls with Freeman. Edmondson’s sales calls with Freeman On the first sales call, Edmondson readily concedes he did not have a particular guide-book on his person, but rather it was in the car. Edmondson had all of the materials that were expected of him with him. (Edmondson depo at 43:24; 44:22-23). The guide that was requested by the customer was a non-standard item that required a brief trip to the car to retrieve. Freeman had no complaints about Edmondson’s performance during the second call. ( SeeFreeman depo at 52:2-4). And Freeman concedes that it is just supposition Edmondson did not make a third appointment and he did not blame Edmondson for this call. ( SeeFreeman depo at 54:4-7; 53:18). Everyone can have a bad day according to Freeman and he also conceded that it was extremely possible Edmondson had a bad day. Even topnotch salesmen have bad days. ( SeeFreeman depo at 167-168). Nevertheless. Edmondson’s performance was not so terrible in Freeman’s view to warrant a mention in the telephone conversation with Gantt later that evening when Freeman relayed the events of the day pertaining to Roellig. Rather. Freeman did not report anything about Edmondson’s sales performance. Sec Freeman depo at 61:3-5). If Edmondson was so bad with his sales calls that it warranted termination, one would think Freeman would have reported this information to Gantt when he was speaking to him on Tuesday evening. It never happened. During the course of the sales calls with Freeman, Edmondson did not receive any negative feedback until after he informed Freeman of Roellig’s discriminatory actions. Shortly after Edmondson made his report ‘to Freemen, Freeman subjected him to immediate retaliation by the unwarranted job evaluation to Gantt. Gantt’s reaction to allegations against Roellig On February 7. 1996, the next day following Edmondson’s report to Freeman, Gantt contacted his old acquaintance Roellig and informed him of the allegations. ( SeeRoellig depo at 19:22; Gantt affidavit attached to defendant’s motion for summary judgment.). Roellig denied the allegations and Gantt did nothing further. (SeeGantt affidavit; Gantt statement of 8/6/96). At no time did Gantt ever contact Edmondson for additional information. OLD DOMINION’S VIOLATIONS OF ITS OWN POLICIES NO WRITTEN WRITE-UPS FOR POOR PERFORMANCE It is Old Dominion’s policy to inform an individual whether or not they are not performing their job. ( SeeFreeman depo at 24:7-11). The terminal manager would give an employee a formal 30-day written notice if that employee was not following or complying with the company procedures. (Id.) It is also the policy of Old Dominion to require written performance reviews of all the employees with sales people being provided monthly and daily reviews. It is Old Dominion’s policy to warn a salesperson who has low sales, low sales growth, or low productivity prior to terminating that employee. ( SeeMcCarthy depo at 21:20-24). If a salesperson was written up for something. such as a lack of revenue or any other type or job performance, that written review is put in the employee’s file. (Freeman depo at 26:3-6: 27:13-14: 28:2-6). In violation of Old Dominion’s policy. Edmondson never received any warnings regarding his performance, his sales, sales growth or productivity. ( SeeEdmondson affidavit). In fact, Roellig, the harasser and terminal manager, did not have any complaints regarding Edmondson’s job performance. ( SeeRoellig depo at 130:17-19). Indeed. Roellig depended upon Edmondson to assist him in operations. [FOOTNOTE 8]( SeeRoellig depo at ) More to the point, during Edmondson’s tenure as city sales manager, not a single warning or write-up concerning his job performance, revenue or customer performance exists. FAILURE TO FOLLOW PROCEDURES FOR INVESTIGATING SEXUAL HARASSMENT COMPLAINTS The evidence is uncontroverted that when Old Dominion received Edmondson’s allegations of sexual harassment and discriminatory conduct concerning Roellig, Old Dominion did not take them seriously. ( SeeMcCarty depo at 30:3-4). General counsel for Defendant testified that according to the sexual harassment general investigation guidelines, there is an investigation by the area-vice president and the general counsel into the allegations. They “will talk to the person who has made the complaint or allegation. ask whether or not that person wants us to talk to other people. We will talk to those people. We will talk to the person who is accused of doing something. And then reach a conclusion.” ( SeeMcCarty depo at 9:23-10:6). The harasser or alleged harasser will be the first person contacted when he is told there is and problem and that individual needs to leave or take off a period of time while Old Dominion conducts an investigation. ( SeeMcCarty depo at 10:13-18). In violation of defendant’s own policy of first contacting the general counsel, Gantt contacted his long-time “acquaintance” Roellig the next morning regarding the allegations. SeeFreeman depo at 33:4-12; Gantt affidavit: Roellig depo at 19:22). Gantt’s investigation into the sexual harassment did not go any further. ( SeeGantt statement dated 8/6/96). In fact, from the beginning of February until May 1996, Old Dominion did nothing in regards to the allegations against Jerry Roellig. ( SeeMcCarty depo at 33:9-14). Some three months later, long after Edmondson was terminated for reporting the allegations, a fact known to Maturah, the victim of Roellig’s sexual harassment. Gantt finally contacted Maturah to learn her version of what had occurred. Throughout the course of the EEOC investigation, Gantt has repeatedly claimed Maturah denied the sexual harassment. ( SeeGantt statement dated 8/6/96, pg. 2) but he completely ignored and misled EEOC by not revealing on June 12, 1996 Maturah confirmed the harassment arid her fears of Roellig. ( SeeMaturah memo). FAILURE TO UNIFORMLY CALCULATE DAILY SALES FIGURES When Edmondson was promoted to City Sales Manager. Randy Heavner briefly trained him. During approximately three days of training, Heavner instructed Edmondson to prepare additional computer documents relating to the performance and production of each sales person at the terminal. Edmondson was also instructed on how to compute the daily sales average for the sales representatives. At no time was Edmondson ever instructed to deduct the national accounts from sales representatives’ total sales in computing the sales average. ( SeeEdmondson affidavit). When Freeman calculated the January 1996 figures for Edmondson’s sales, which was the basis for determining Edmondson’s productivity, he deducted the national sales accounts from Edmondson’s sales figures to compute the daily average. ( SeeFreeman depo at 108-115. Edmondson ODFL 1/31/96 summary). Interestingly enough, Freeman claimed in deposition he deducted the national accounts from the January 1996 figures for Schachel and Ponce but, in reviewing the figures and performing the same calculations as outlined by Freeman, it is clear he did not deduct the national accounts from either Schachel or Ponce. [FOOTNOTE 9]( SeeSchachel and Ponce ODFL dated 1/31/96; 7/12/96 position statement of defendant. page 3). This same erroneous data was knowingly provided to HRD during its investigation of Edmondson’s EEOC and FCHR charges of discrimination. ( See7/12/96 letter. page 3). FAILURE TO BE PROPERLY INFORMED Freeman never pulled Edmondson’s personnel file prior to reaching the decision to terminate him. ( SeeFreeman depo at 147:19-22). Freeman never pulled to records to learn Edmondson had been required to give up some of his accounts to Ponce during the second half of 1995. ( SeeFreeman depo at 42:21-25). Roellig, as terminal manager, with the responsibility for the revenue and service of the Miami terminal, never pulled Edmondson’s file to learn if he had given up accounts to Ponce. ( SeeRoellig depo at 130:11-13). There is no question that Edmondson’s revenue was negatively affected by this particular event. ( SeeFreeman depo at 43:1-4; Roellig depo at 130:14-16). Defendant’s general counsel failed to be properly informed of all the facts and circumstances regarding Edmondson employment when he was consulted regarding Edmondson’s termination. He acknowledged he didn’t pull Edmondson’s employee file: wasn’t aware Edmondson had previously won sales awards for performance; wasn’t aware Edmondson frequently drove truck for Old Dominion, something that was not in the job description for a city sales manager: wasn’t aware of whether driving a truck would have an effect on the sales representative’s revenue: and the Edmondson had recently been required to give up a number of his accounts to another sales representative, something that had a negative impact on his revenue. ( SeeMcCarty depo at 39:22-24: 40:4-20: Freeman depo at 42:21-25: 43:1-4: Roellig depo at 130:14-16). McCarty was not even informed that Ponce had previously confirmed Edmondson’s reports to Freeman regarding Roellig’s discriminatory behavior. ( SeePonce depo at 7-8; 28.31-32). None of this information was ever conveyed to the Congdon when he was also consulted regarding Edmondson’s termination. Indeed, as chairman of the board and CEO. Condgon was not only left in the dark regarding these facts, but he was not even told about Edmondson’s reporting of Roellig’s discriminatory behavior. ( Seeaffidavit of McCarty attached as exhibit H to defendant’s motion for summary judgment) DISPUTE AS TO WHOM MADE THE DECISION TO TERMINATE EDMONDSON The evidence is in dispute as to whom the actual decision-maker was regarding Edmondson’s termination. First, the termination papers speak for itself with Jerry Roellig’s signature. Second, Gantt’s affidavit states he was the sole decision-maker [FOOTNOTE 10]. ( SeeGantt affidavit attached to defendant’s motion as exhibit A). Congdon testified the decision-makers were Gantt and Freeman. ( See, Congdon depo at 31: 22-24). McCarty testified the prior to Edmondson’s termination, Freeman and Gantt was discussed it with him. (McCarty depo at 25:6-16). Freeman has provided two conflicting responses regarding the actual decision-maker: first, testifying he made the decision and later testifying it was Gantt. ( SeeHRD notes, page 3; Freeman depo at 147:16-18). Irrespective of who made the final decision, Freeman, Gantt, McCarty, and Roellig all had input in the decision to terminate Edmondson and each had prior knowledge to the allegations against Roellig by Edmondson. DEFENDANT’S REASONS FOR DISCHARGE Plaintiff concedes defendant has articulated non-retaliatory motives for discharging him. But poor revenue and customer performance are a pre-text for the real reasons behind Edmondson’s termination – retaliation for his reporting of Roellig’s discriminatory behavior. Defendant now tries to argue Edmondson was terminated for a variety of reasons, among which are, being unprofessional, unprepared, poor customer service, his attire, failure to attend a computer training session, his lack of being effective during sales calls, and refusal to follow the company entertainment policy. None of this is true. In fact, the official reason given by the man who terminated Edmondson, despite what all of the other witnesses and documents say, is “lack of performance”. ( SeeRoellig depo at 109:2-31. Edmondson’s professional, his preparedness and attire had nothing to do with his termination. (Id at 128:9-19). DEFENDANT’S CLAIM OF NO PRETEXT IS FALSE Defendant claims there is no evidence of pretext for the following reasons: 1) another employee was discharged at the same time for the same reason; 2) the decision- maker was supposedly not the subject of the Edmondson’s complaint; and, 3) the subject of the Edmondson’s complaint pressed for Edmondson to be demoted. Defendant is in error as will be shown below. Pat Ponce. the other employee who was terminated also complained to Freeman regarding Roellig’s discriminatory behavior on February 7, 1996. ( SeePonce depo at 7, 8.28.31-32). POOR CUSTOMER SERVICE In Edmondson’s previous nine years, he did not ever receive any written reprimand for failure to perform, or produce in the area of sales. ( SeeEdmondson affidavit). He was never counseled regarding his ability with the clients. ( Id) There were no counseling complaints or warnings given at any time. Edmondson regularly wore a jacket and tie to work. There was never any complaint regarding how he was dressed. The notes Freeman alleges he took contemporaneously on the day he spent with Edmondson make no mention of Edmondson being improperly attired. If this was such a big deal, then surely Freeman would have made a note. Defendant relies heavily on Freeman’s notes he alleges he made during his sales calls with each salesman. Ponce, Schachel and Edmondson all dispute Freeman’s statements he took notes during his sales calls with each of them and the content of the notes. ( SeePonce depo at 17:18-21: Schachel depo at Edmondson depo at 56:6-9). It is a issue for the for the trier of fact to determine. CUSTOMER CALLS Edmondson routinely made customer calls with his sales force. On the day he spent with Freeman making calls, during the first call, Edmondson had all the materials that were expected of him. A request for a non-standard item required a brief trip to the vehicle were it was located. Edmondson was successful in getting this client to agree Co come back and utilize Old Dominion’s services again despite previous problems. Freeman had no complaints regarding Edmondson’s performance on the second call. ( SeeFreeman depo at 52:2-4). Regarding the third call, it’s pure supposition on Freeman’s part that an appointment had not been made. ( SeeFreeman depo at 54:4-7). Freeman conceded that it can happen where a customer has something come up and can not meet with the salesperson at the scheduled time. There were many customer service problems at the Miami terminal due to operational deficiencies. The primary reason revenue decreased at the Miami terminal was service. ( SeeSchachel depo at 84:19-85-6). However, Edmondson had no operational responsibilities and thus was not responsible for these deficiencies. ( SeeEdmondson affidavit). COMPANY ENTERTAINMENT POLICY At no time did Edmondson refuse to comply with the company’s entertainment policy. He did, however, question the ethics. During the meeting where the entertainment policy was discussed. Edmondson looked at his two sales representatives. Schachel and Pence, and stated. “Please remember, we are not buying freight.” ( SeeEdmondson depo at 47:7-9). Edmondson’s statement regarding his refusal to buy freight happens to be the company policy as stated by its chairman of the board and chief executive officer Earl Congdon. ( SeeCongdon depo at 29:24.) The January 1996. [FOOTNOTE 11]records reveal Edmondson entertained and exceeded the company directives: he had eighteen lunches and three outside entertainment events. ( SeeJanuary 1996 summary). The company policy only requires four lunches and two outside entertainment events per month. ( SeeFreeman depo at 66:13-15). Roellig never pulled the expense accounts of the sales representatives to know if they did or not meet the company quota. (Roellig depo at 101). This issue was never broached at the time of termination. THE ALLEGED THURSDAY AFTERNOON COMPUTER TRAINING SESSION There was no scheduled computer training session on Thursday. (Schachel depo at 74:8: and Ponce depo at 14:4-7: Edmondson depo at 49:14-25). Freeman returned to the terminal early Thursday afternoon for a closed door meeting with Roellig. (Schachel depo at 75:23-76:2: 112-3-9). By this time, Gantt had already informed Roellig of the allegations made by Edmondson against him. ( SeeGantt affidavit attached as exhibit A to defendant’s motion for summary judgement.) Roellig was incensed during that meeting. ( SeeSchachel depo at 115:6-8). Following his customary practice, Ponce returned that afternoon to do paperwork around 4. ( SeePonce depo 14:8-11; Schachel depo at 75:19- 22. Ponce was not required to be in the terminal at that afternoon. ( SeePonce depo at 14) Assuming arguendo that a training session was taking place, Edmondson did not get notice of the meeting until after he returned home after putting in a nine-(9) hour day. The meeting was an impromptu. Again, if this was such an issue, it was never raised at the time of termination. POOR SALES GROWTH IS A PRETEXT Edmondson’s sales met the company’s guidelines, in fact they were above the break even point. As previously discussed, if Edmondson’s sales had fallen off, it was only because he was required to turn over a large number of his accounts to a new salesperson. Ponce. Roellig and Freeman both admit that turning over sales accounts will have a negative impact on Edmondson’s daily sales. If Edmondson’s sales were deficient, it was only because the company insisted he perform tasks, which interfered with his sales: such as assisting in operations until a operations manager was found; and driving truck on numerous occasions. Additionally, Edmondson’s sales performance was the only one with national accounts subtracted in order to make his numbers on the surface appear low. National accounts were not removed from either Ponce or Schachel’s daily figures. DECISION-MAKER AND DECISION TO TERMINATE A PRETEXT The employment records indicate that the subject of the complaint, Roellig, was responsible for the termination and decision regarding whether or not Edmondson was eligible for rehire. ( SeeExhibit J to defendant’s motion for summary judgment and rehired form). The decision to terminate Edmondson was made by Greg Gantt and Marty Freeman. ( SeeCongdon depo, 31, line 22-24.) Gantt was an old acquaintance of Roellig, and Old Dominion needed Roellig to turn the Miami terminal around and increase revenues. ( SeeRoellig depo at ). ROELLIG PRESSED FOR DEMOTION This is a pretext because Roellig was involved in at least one meeting where Edmondson’s termination was discussed. The mere failure of Roellig to participate in decision isn’t dispositive if the company believed that it was important to keep Roellig and wanted to eliminate disgruntled employees. The fact that Roellig’s signature is on the termination papers raises a question of fact as to the actual person requesting Edmondson’s termination. V. CONCLUSION A confidential report of discrimination was betrayed within twenty-four hours. Within forty-eight hours after learning of Edmondson allegations, early on Friday. February 9. 1995 before 8:30 a.m. Roellig berates Edmondson over the telephone for speaking with Freeman about the problems in the terminal. Roellig makes sure Edmondson is aware that he knows of the allegations and ends the conversation with, “By the way. I don’t date black girls.” ( SeeEdmondson depo at; Edmondson affidavit.) Despite confirmation by two employees, Defendant never bothered to investigate allegations before terminating plaintiff other than a simple denial from Roellig; no effort made to question any other witness. Even if plaintiff was having a bad day when he went on the sales calls with Freeman, after nine years of continuous employment without a single reprimand, it is incomprehensible that defendant would not afford him any counseling. And as further evidence of a pretext, the method of establishing lack of sales is contradicted by standard operating procedure. Assuming that the defendant was in financial distress and that the defendant felt that Roellig was the best person to reverse the business downturn, that does not justify the defendant’s actions in the way it retaliated against Edmondson. Wherefore, for all of the foregoing reasons, Jimmy Lee Edmondson requests that this Court deny Defendant’s Motion for Summary Judgment and award him reasonable attorneys fees, costs and any and all further relief as this Court deems just and proper. ::::FOOTNOTES:::: FN1It should be noted that defendant’s motion is not dispositive of all issues contained in this lawsuit and the granting of this motion will not dismiss this case. As such, defendant’s motion should properly be named a motion for partial summary judgment. FN2. Both worksharing agreements between the agencies contain the same language regarding the duties of the intake clerk in ascertaining whether or not the charging party has already filed with another agency. “As part of the intake duties, investigators are to verify with the charging parties if they had tiled a charge of discrimination with other agencies prior to filing the charge.” ( SeeEEOC/FCHR agreement at page II, Section 11(C). SeeEEOC/HRD agreement at page 11. Section 11(C). In the instant case, Edmondson made it clear to the intake officer of his desire to be able to pursue the remedies afforded him under F.S.A. � 760.01 et seq. ( SeeEdmondson affidavit.) FN3Plaintiff is not suggesting by this argument that the investigation conducted by HRD was a thorough one, or that there were not problems in HRD’s investigation and conclusions. FN4F.S.A. � 760.11(7) provides “[i]f the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under 120.569 and 120.57, but any request must he made within 35 days of the date of determination FN5F.S.A. � 760.11(3) provides in “When the commission determines whether or not there is reasonable cause. the commission shall promptly notify the aggrieved person and the respondent of the reasonable cause determination, the date of such determination, and the options available under this section.” FN6It is the policy of HRD to have charging parties fill out intake questionnaires and from there type up the charges of discrimination. The intake questionnaire is filled out in Edmondson’s handwriting. He did not type the charging documents, rather it was done by the intake clerk at HRD. FN7Joel McCarty. general counsel for Old Dominion, represented defendant throughout the HRD investigation. Old Dominion addressed all of these issues during the HRD investigation and in it’s written correspondence with HRD and through its witnesses, for example Greg Gantt. Defendant has been on notice of all issues and cannot claim surprise. All issues addressed during the investigation are contained in his litigation. No new issues have been added. FN8An operations manager was not hired until December 26. 1995. See HRD notes. FN9According to Freeman’s testimony, the SML total, subtract the national accounts is then divided by the number of working days per month. January 1996 contained 22 working days. Using this formula and as diagramed on the last page of Edmondson’s ODL, $136,507.14 subtract out the national accounts equals an adjusted total of $102.046 which is then divided by 22 working days for a daily average of $4638. When applied to Ponce and Schachal’s figures. it becomes clear the national accounts were not subtracted in comparison to Edmondson. Using the reverse formula of daily average X 22 working days = adjusted total for the month provides Schachel with $118.107 and Ponce with $74250. Schachel’s unadjusted total is $118. 107.51 and Ponce’s unadjusted total is $74262.86. For an accurate comparison, Edmondson’s daily average should be $6204. FN10Plaintiff attempted to depose Gantt was informed Gantt was unavailable for deposition prior to the close FN11Plaintiff is only using the data from January 1996 since it was this month’s figures that defendant used in deciding to terminate him. � 2001 Juritas.com. All Rights Reserved

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