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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Case No. 98cv6149 EDMONDSON vs. OLD DOMINION FREIGHT LINE, INC. Old Dominion’s Reply To Plaintiff’s Opposition To Motion For Summary Judgment Old Dominion Freight Line, Inc. (hereafter “Old Dominion”) offers the following Reply to the Plaintiff’s Opposition to Old Dominion’s Motion for Summary Judgment. I. ARGUMENT Within a footnote contained in the Plaintiff’s Brief in Opposition, the Plaintiff cryptically asserts that “it should be noted that Defendant’s Motion is not dispositive of all issues contained in the 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.” (Opposition, p. 1). Old Dominion cannot fathom how the Plaintiff can make such a baseless assertion. On its face, the Amended Complaint asserts only claims of discrimination arising under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992. Although in the introductory paragraph the Amended Complaint also references other “pendant claims arising under state law,” neither of the two counts contained in that Complaint specifically plead or even vaguely allege any such other pendant state law claims. Accordingly, if the Plaintiff’s argument that Old Dominion’s Motion for Summary Judgment is not dispositive of all issues because it does not address the so-called other “pendant state law claims,” that argument must be viewed as utterly frivolous. While it is true that the Amended Complaint attempts to raise claims of sexual harassment of female employees (including Diane Maturah) by Miami Terminal Manager Jerry Roellig, discriminatory behavior toward minority employees by Roellig, and Old Dominion’s failure to investigate or otherwise take remedial action in response to said harassment in discriminatory behavior, Old Dominion squarely addressed such claims in its Motion for Summary Judgment. (Motion, pp. 12-13). In addition to the fact that the Plaintiff has failed to exhaust his administrative remedies regarding these extraneous allegations, the Plaintiff has absolutely no standing in this case to assert violations of Title VII and the FCRA and to seek damages for himself under those statutes for alleged discriminatory conduct against other employees. The principle of legal standing embodies the notion that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). This standing requirement was recently applied by the Fourth Circuit Court of Appeals in Childress v. City of Richmond, 134 F.3d 1205 (4th Cir. 1998). In that case, white male police officers alleged that their white male superiors made disparaging comments about black and female co-workers, thus subjecting these co-workers to a hostile work environment in violation of Title VII. The plaintiff’s also alleged that they were retaliated against in violation of Title VII for having registered internal opposition to this alleged discriminatory conduct towards their co-workers. However, the Fourth Circuit affirmed the district court’s decision dismissing the Title VII hostile environment claim on the grounds that the complaining officers did not have standing under Title VII to bring an action for discrimination directed at others. Childress, 134 F.3d at 1207. The rationale for this decision was succinctly stated as follows: I would interpret the term “person aggrieved” in Title VII so as to incorporate the prudential rule against third party standing. Thus, in my view, in order to qualify as a “person aggrieved” authorized to bring a Title VII action, a plaintiff must be a member of the class of direct victims of conduct prohibited by Title VII, that is, the plaintiff must assert his own statutory rights and allege that he, not someone else, has been “discriminate[d] against ….” It follows that, because the white male plaintiff’s in the present case assert only the rights of third parties to be free from race or sex based discrimination in the workplace, they have not stated a cause of action under Title VII. Childress, 134 F.3d at 1209 (Luttig, J., concurring). See also, Patee v. Pacific Northwest Bell Telephone Co., 803 F.2d 476, 478-79 (9 Cir. 1986) (holding that male employees lack standing under Title VII to assert claim of their female co-workers to be free from discrimination based on their sex). For the reasons set forth in Childress, the Plaintiff clearly lacks standing to pursue any claims of civil rights violations concerning alleged discriminatory conduct towards any employee other than the Plaintiff himself The only issue before this Court is whether Old Dominion retaliated against the Plaintiff for having made a report of alleged inappropriate conduct. Old Dominion’s Motion for Summary Judgment thoroughly addresses this issue, and is therefore completely dispositive of all matters contained in this lawsuit. [FOOTNOTE 1] As to the Plaintiff’s claim of retaliation, the Brief in Opposition focuses considerably upon the Plaintiff’s personal job performance and conduct as the Miami Terminal Sales Manager. Yet, the Plaintiff fails to respond to Old Dominion’s argument, and the over-whelming case authority, that the Plaintiff’s self-serving testimony regarding his qualifications or performance is irrelevant and, therefore, inadmissible as to the issue of whether the Plaintiff satisfied Old Dominion’s expectations (Motion for Summary Judgment, p. 17). More importantly, the Plaintiff’s argument misses the point regarding the reason for his discharge. As the Motion for Summary Judgment demonstrates, the decision to discharge the Plaintiff was at its core based upon low revenue growth at the Miami terminal during 1995 and early 1996 and the failure of the terminal sales staff to successfully penetrate the Miami market (Motion for Summary Judgment, pp. 17-18). Again, the following evidence is either undisputed or uncontroverted: a. The Plaintiff served in the capacity of City Sales Manager since May 26, 1995 (Exhibit “D” to Motion for Summary Judgment). b. In addition to engaging in sales activities, a city sales manager is responsible for supervising sales representatives and is accountable for the productivity of those representatives (MF 102, 107, 128-29; JE 29,103) (Exhibit “A” to Motion for Summary Judgment). c. The productivity of any city sales manager is gauged by the terminal revenues generated through the sales activities of the sales manager and sales representatives (JE 79) (Exhibit “A” to Motion for Summary Judgment). d. In January of 1996, Old Dominion’s Southern Area Vice President, Greg Gantt, chose to visit the Miami terminal because the terminal had exhibited slow revenue growth during the previous year. During that visit, Gantt discovered that a substantial amount of the terminal’s business was derived from national accounts, rather than from customers based in the Miami area. Gantt believed that the terminal sales staff had been unsuccessful in penetrating the Miami sales market, given Gantt’s previous experience in the area and knowledge of its enormous sales potential (Exhibit “A” to Motion for Summary Judgment). e. During meetings with the sales staff, including the Plaintiff, Gantt specifically spoke of his concerns about the terminal’s revenues (JE 28) (Exhibit “A” to Motion for Summary Judgment). f. As of the time that Gantt visited the Miami terminal, the Plaintiff had responsibility for the sale and solicitation of freight at the Miami terminal (JE 29). g. After Gantt’s visit to the Miami terminal, he instructed Old Dominion’s Director of Sales, Marty Freeman, to conduct a visit to the terminal and evaluate the sales staff, assess causes of the lack of the revenue growth, and make a recommendation as to whether the sales staff should be retained or replaced (Exhibit “A” to Motion for Summary Judgment) (MY 37, 172). h. During Freeman’s visit, he observed the performance of the Plaintiff and sales representatives Pat Ponce and Robert Satchel. Freeman found the performance of both Plaintiff and Ponce to be unprofessional and unsatisfactory. The Plaintiff admits that he had a responsibility to train the sales representatives under his supervision, and that he has no reason to doubt Freeman’s documented observations of Ponce’s poor performance (Exhibits “F” and “G” to Motion for Summary Judgment) (JE 70). i. Upon his return to Old Dominion’s corporate offices in High Point, North Carolina, Freeman met with Gantt to discuss his evaluation of the Miami terminal sales staff. Freeman shared his observations about Plaintiff’s and Ponce’s lack of professionalism and effectiveness (Exhibit “A” to Motion for Summary Judgment) (ME 83-85). j. In view of the unsatisfactory growth of revenues at the Miami terminal, for which the Plaintiff was responsible, Gantt decided to discharge the Plaintiff and Ponce effective February 9, 1996. Before carrying out that decision, both Gantt and Freeman consulted with Old Dominion’s General Counsel, Joel McCarty. They also discussed the matter with the Chief Executive Officer, Earl Congdon, who concurred with Gantt’s decision (Exhibits “A”, “H”, and “I” to Motion for Summary Judgment). k. During 1995, attainment of the Miami terminal’s revenue quotas reached only 83%. While the Company’s total revenues increased 18.1% from 1995 to 1996, the Miami terminal’s revenues declined .5% during that same time period (Exhibits “A” and “E” to Motion for Summary Judgment). l. The Plaintiff admits that it was reasonable for Old Dominion to want to penetrate the Miami sales market, and also to staff its sales team with individuals who could accomplish that objective. The Plaintiff also admits that both Gantt and Freeman were responsible to Old Dominion for taking action to ensure that the Company was profitable, and to do what was necessary to increase revenues (JE 84-85, 88-89, 95). Based upon the foregoing facts, which the Plaintiff has either admitted or cannot dispute, it is clear that the Miami terminal experienced poor revenue performance under the Plaintiff’s management, that Old Dominion was concerned about that poor performance, and that the Plaintiff, as terminal Sales Manager, was ultimately responsible and accountable for that performance. The decision to discharge the Plaintiff was thus based purely upon business judgment and discretion, as General Counsel Joel McCarty testified: … I think based on the information that Mr. Gantt had gathered while he was in Miami, based on the evaluation of Mr. Freeman, … I think the conclusion was that the situation in Miami and the sales force was so broke, if you will, that the only way that it could be changed to make that terminal into a more efficient terminal would be to change the sales force, specifically Mr. Edmonson and Mr. Ponce. There was no way to rectify the situation other than that. That is what they did. (JM 67). Again, as noted in the Motion for Summary Judgment, the fact that the Plaintiff now takes issue with Old Dominion’s evaluation of his performance (as a salesman) does not prove that the reason for his discharge was pretextual. Webb v. R&B Holding Co,. Inc., 992 F. Supp. 1382, 1387 (S.D. Fla. 1998). What is ultimately fatal to his case, however, is that the Plaintiff has offered no evidence to challenge or contradict the facts listed above regarding the terminal’s poor revenue performance. Accordingly, Old Dominion’s reason for the Plaintiff’s discharge remains completely unrebutted. [FOOTNOTE 2] Perhaps in an effort to demonstrate pretext, the Plaintiff argues in the Brief in Opposition that Old Dominion failed to follows its procedures for investigating the Plaintiffs report to Freeman that Roellig had allegedly engaged in inappropriate conduct towards the Plaintiff’s co-employees (Opposition, p. 13). For the reasons set forth above regarding the Plaintiff’s lack of standing, this argument is nothing but a red herring. The manner in which Old Dominion applied its policies regarding investigating the Plaintiff’s report of alleged discriminatory conduct is irrelevant. The only issue in this case is whether the Plaintiff’s discharge was in retaliation for the Plaintiff having made the report itself. Again, the Plaintiff has presented absolutely no evidence to either prove or generate an issue of fact that Old Dominion’s decision to discharge the Plaintiff was a pretext for discrimination. In a further but unsupported effort to show pretext, the Plaintiff attempts to claim that Roellig was a decision maker regarding the Plaintiff’s discharge. Of course, the Plaintiff has pointed to no evidence in the record which indicates that Roellig was involved in the decision making process. However, the affidavits of Gantt, McCarty, and Congdon, as well as the deposition testimony of Freeman, McCarty, Congdon, and Roellig, all affirm that Gantt made the discharge decision upon conferring with Freeman, McCarty, and Congdon (Jm 43; JR 113; EC 31). Moreover, the uncontroverted evidence proves that Roellig’s involvement was limited only to communicating the discharge decision to the Plaintiff. (Exhibits “A”, “J”, and “K” to Motion for Summary Judgment) (JR 113). The Plaintiff’s statement in the Brief in Opposition that “the fact that Roellig’s signature is on the termination papers raises a question of fact as to the actual person requesting Edmonson’s termination” is conclusory and utterly false. The Plaintiff fails to put forth more than “the mere existence of a scintilla of evidence” in order to show a genuine issue of fact necessary to defeat the Motion for Summary Judgment. Wheatley v. Baptist Hospital of Miami, Inc., 16 F. Supp.2d 1356, 1359 (S.D. Fla. 1998). [FOOTNOTE 3] Finally, Old Dominion contends that the Brief in Opposition fails to adequately demonstrate how the FCRA claim survives the statute of limitations contained in Fla. Stat. � 760.11, and the interpretation of that statute of limitation by the District Court of Appeals of Florida, Fourth District, in Milan v. Moldmaster. Inc., 703 S.0. 2d 1093 (1997). Old Dominion submits that Milan is dispositive of the Plaintiff’s FCRA claim. Also, as to the argument that the Plaintiff properly filed his charge of discrimination with the Florida Commission on Human Relations (FCHR), the Brief in Opposition fails to reference any evidence in the record that the FCHR actually received Plaintiff’s charge. The Plaintiff has only made reference to a letter from the Broward County Human Rights Division indicating the policy of that agency to “submit copies of dual filed charges of discrimination to the [FCHR]. (Opposition, Exhibit “A”). As explained in the Motion for Summary Judgment, this Court has interpreted the FCRA to mean that the “filing” of a charge means “actual receipt” of the charge by the FCI-IR. Weaver v. Florida Power & Light, 1996 WL 479117 (S.D. Fla. 1996) (Exhibit “R” to Motion for Summary Judgment). Because the Plaintiff has failed to demonstrate that the FCHR ever received his charge of discrimination which was filed with the Broward County Human Rights Division, his FCRA claim is procedurally barred for failure to exhaust administrative remedies. II. CONCLUSION For all of the foregoing reasons, Old Dominion contends that the Plaintiff has failed to present any evidence which creates a genuine issue of material fact regarding the reason for his discharge. Accordingly, Old Dominion again requests that the Court grant this Motion for Summary Judgment, and award to Old Dominion its reasonable attorney’s fees, cost, and any other form of relief which the court deems just and proper. ::::FOOTNOTES::: FN1The Plaintiff’s continued references in his Amended Complaint and Brief in Opposition to the alleged discriminatory conduct of Jerry Roellig is obviously an attempt to confuse the real issue in this case and to manufacture an issue of fact. However, and as indicated above, any allegations regarding Roellig’s conduct are simply not material to this lawsuit. The Plaintiffs argument that Roellig’s alleged discriminatory behavior “grow out of and are related to the reasons why Edmonson suffered retaliation and was ultimately terminated” is based upon circular logic (Opposition, p. 8). This case has nothing to do with whether the alleged discriminatory conduct towards co-workers occurred; rather, it concerns only whether the Plaintiff was discharged in retaliation for having reported such alleged conduct. Nevertheless, it must be stressed that the Broward County Human Rights Division investigated and issued a “no cause” determination regarding the charge filed by the supposed target of Roellig’s alleged conduct, Diane Maturah (Exhibit “L” to Motion for Summary Judgment). FN2In consideration of the foregoing, the Plaintiff’s attempt to argue in his Brief in Opposition that he performed satisfactorily during his sales calls with Freeman, that he complied with Old Dominion’s entertainment policy, and that national accounts should not have been deducted from his monthly sales figures are irrelevant. Again, the Old Dominion’s focus was not upon the Plaintiff’s personal sales performance during the week prior to his discharge, but rather the Plaintiff’s accountability, as terminal Sales Manager, for the poor revenue performance of the Miami terminal and its sales staff. Likewise, the Plaintiff’s argument that he never received any warnings regarding “his performance, his sales, sales growth or productivity” is irrelevant. (Opposition, p. 13). The Plaintiff admits that he was advised by Gantt, in January of 1996, that Gantt was concerned about the unsatisfactory revenue growth at the Miami terminal (YE 28). FN3The Plaintiff also contends that Old Dominion has advanced the argument that no evidence of pretext exists because Roellig pressed for the Plaintiff to be demoted rather than discharged. (Opposition, p. 16-17). However, the Motion for Summary Judgment articulated no such argument. Nevertheless, the Plaintiff’s argument on this point is without merit, since it would be illogical for Roellig to have pressed for a demotion if, as the Plaintiff contends, Roellig was a decision maker regarding the Plaintiff’s discharge and desired to get rid of him for having filed a report of harassment (Opposition, p. 19-20). Although Roellig (upon learning that Gantt had decided to discharge the Plaintiff) suggested that the Plaintiff instead be demoted, Gantt rejected that suggestion (JR 113). Signature:LORI A. BROWN MCGUIRE, WOODS, BATTLE & BOOTHE LLP 3700 NationsBank Plaza Charlotte 28280 � 2001 Juritas.com. All Rights Reserved

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