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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. Memorandum In Support Of Old Dominion’s Motion For Summary Judgment I. STATEMENT OF THE CASE The Complaint was filed with this Court on February 10, 1998. Because the allegations contained in the Complaint were insufficiently plead, this Court dismissed the case, sua sponte, on March 24, 1998, and ordered the Plaintiff to file an Amended Complaint consistent with Rule 10(b) of the Federal Rules of Civil Procedure. The Amended Complaint was filed on April 29, 1998. Old Dominion Freight Line, Inc. (hereafter “Old Dominion”) filed a timely Answer on May 7, 1998. The Amended Complaint specifically alleges that the Plaintiff, while an employee of Old Dominion, complained to management that a co-worker had been sexually harassed by one of Old Dominion’s terminal managers. The Amended Complaint further asserts inter alia that the Plaintiff was discharged in retaliation for having reported this alleged harassment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. � 2000e, et seq, and the Florida Civil Rights Act of 1992, Fla. Stat. � 768.01, et seq. Written discovery has been exchanged by the parties, and the depositions of the Plaintiff and other current and former employees of Old Dominion have been taken. Pursuant to the scheduling order issued by this Court on June 5, 1998, the discovery period is due to expire on February 2, 1999. II. STATEMENT OF THE FACTS Old Dominion is incorporated under the laws of the Common wealth of Virginia and maintains its principal place of business in High Point, North Carolina (See Affidavit of Greg Gantt, Exhibit “A”). Old Dominion is a trucking company which engages in the interstate and intrastate transportation of general commodity freight (Exhibit “A”). It operates a number of trucking terminals throughout the United States, including the terminal located in Miami, Florida (Exhibit “A”). In addition to serving as distribution centers for the shipping and receiving of freight, the terminals also provide offices from which Old Dominion conducts its sales activities at the local level (Exhibit “A”). At each of its trucking terminals, Old Dominion employs one or more sales representatives who are responsible for calling upon Old Dominion’s existing customers, entertaining those customers, soliciting new customers, and otherwise marketing Old Dominion’s services (Exhibits “A” and “B”). Some terminals also employ “City Sales Managers” who, in addition to engaging in such sales activities, are also responsible for supervising the sales representatives at a given terminal (Exhibits “A” and “C”). [FOOTNOTE 1](MF 102, 107; JE 29, 103). [FOOTNOTE 2]The City Sales Manager is also responsible for training the sales representatives under his supervision and is likewise accountable for the productivity of those representatives (Exhibit “A”)(MF 128-29). Ultimately, the productivity of any City Sales Manager or Sales Representative is gauged by the terminal revenues generated through the sales activities of those employees (Exhibit “A”) (JE 79). Low revenues can constitute grounds for the immediate discharge of a sales employee (MF 25). On or about January 1, 1996, Greg Gantt became vice president for Old Dominion’s Southern Area which included the Miami terminal (Exhibit “A”). Gantt had already served for approximately one year as vice president of the Central Area. He also had extensive knowledge of the Miami sales market based upon his service as a terminal manager and later Southern Regional Vice President with another trucking company, Carolina Freight Carriers, from 1979 to 1994 (Exhibit “A”). At the time of Gantt’s assignment to Old Dominion’s Southern Area, the Company’s Director of Sales was Marty Freeman (MF 6). Freeman also had significant prior experience with the Company as a Central Area Sales Director (MF 6). The City Sales Manager of the Miami terminal as of January, 1996 was the Plaintiff (Exhibit “A”). [FOOTNOTE 3] Upon his assignment to the Southern Area, Gantt initiated on-site visits to the terminals in order to assess their operations and sales performance (Exhibit “A”). The Miami terminal was among the first which Gantt chose to visit, mainly because that terminal had exhibited slow revenue growth during the previous year (Exhibit “A”). [FOOTNOTE 4]During the 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 (Exhibit “A”). He was particularly concerned by the terminal sales staff’s failure to penetrate the Miami market in a more significant way, given his previous experience in the area and knowledge of its enormous sales potential (Exhibit “A”). During meetings with the sales staff, including the Plaintiff, Gantt specifically spoke of his concerns about the terminal’s revenues (Exhibit “A”) (JE 28). [FOOTNOTE 5] Upon returning to the corporate headquarters in North Carolina, Gantt met with Freeman to discuss his concerns about the Miami terminal and his belief that the lack of revenue was being caused by poor performance on the part of the terminal’s sales staff (Exhibit “A”) (MF 36-37). Gantt instructed Freeman to visit the terminal personally, evaluate the sales staff, assess causes for the lack of revenue growth, and make a recommendation as to whether the sales staff should be retained or replaced (Exhibit “A”) (MF 37, 172). The Miami terminal sales staff was notified of Freeman’s visit at least one week ahead of time (MF 34-35; JE 31-32; PP 9). Freeman arrived at the terminal on or about February 5, 1996, at which time he conducted a sales meeting that was attended by the Plaintiff and sales representatives Pat Ponce and Robert Schachel (MF 37; JE 36). During this meeting, Freeman discussed among other things the importance of entertaining customers, and that the staff’s failure to satisfy Old Dominion’s quota regarding business lunches and other related activities could explain in part the terminal’s low revenues (MF 66). [FOOTNOTE 6]In response, the Plaintiff defiantly stated “I will not buy anyone’s business.” (MF 66). [FOOTNOTE 7] On the second day of Freeman’s visit, he made sales calls with the Plaintiff (MF 46-47; JE 37). However, even though he had been given advance notice that Freeman would be present during these sales calls, the Plaintiff demonstrated an appalling lack of preparation and professionalism (MF 50-53) (Exhibit “A”). During the first sales call, the customer requested written sales material which the Plaintiff had not brought into the meeting (MF 50; JE 44-46). During a subsequent sales call, the customer refused to meet with the Plaintiff and Freeman because the Plaintiff had failed to make an appointment in advance (MF 53, 56). [FOOTNOTE 8] It was either between or after these sales calls that the Plaintiff stated to Freeman that the Miami Terminal Manager, Jerry Roellig, had allegedly engaged in inappropriate conduct toward one of the female employees at the terminal (MF 57; JE 56). Freeman responded that he would report these allegations to Greg Gantt for investigation (MF 58). Freeman also suggested to the Plaintiff that the female employee in question should also report the matter directly to either Gantt or Old Dominion’s General Counsel, Joel McCarty (MF 58). Freeman documented his observations of the Plaintiff’s performance, as well as the Plaintiff’s report of the alleged inappropriate conduct (Exhibit “F”). After attending sales calls with the Plaintiff, Freeman called Gantt to report the Plaintiff’s allegations of inappropriate conduct (MF 60-61) (Exhibit “A”). Gantt responded that he would investigate those allegations (MF 87) (Exhibit “A”). During the following two days, Freeman made sales calls with Miami terminal sales representatives Pat Ponce and Robert Schachel (MF 61, 74; PP 15-16; RS 68). Although he found Schachel’s performance to be generally acceptable (Exhibit “G”), he observed that Ponce lacked negotiating skills (MF 83-84)(Exhibit “G”). Ponce also had not properly prepared customer revenue reports and, therefore, was not well informed as to the amount of revenue that his customers were generating on a monthly basis (Exhibit “G”). Moreover, Freeman discovered that Ponce had very limited knowledge regarding operation of the Company’s computer system which the sales staff was required to utilize (Exhibit “G”) (MF 68). The Plaintiff admits that he had a responsibility to train the sales representatives under his supervision, and that he has no reason to doubt the accuracy of the notes attached as Exhibit “G” which were created by Freeman to document his observations of Ponce’s performance (JE 70). On the afternoon following sales calls with Schachel, Freeman returned to the Miami terminal for a scheduled meeting with the sales staff regarding the computers (MF 75). This meeting had been announced the first day of Freeman’s visit. Although Schachel and Ponce were present, the Plaintiff failed to report to the terminal (MF 75-76; RS 113-15). When Roellig paged the Plaintiff to find out why the Plaintiff was not present for the meeting, the Plaintiff responded that he was at home changing clothes to go bowling (MF 76; JE 51-52). [FOOTNOTE 9] Upon returning to Old Dominion’s corporate offices in High Point, North Carolina, on February 9, 1996, Freeman met with Gantt to discuss his evaluation of the Miami terminal sales staff (Exhibit “A”). Freeman shared his observations about the Plaintiff’s lack of professionalism, preparedness, and effectiveness during sales calls earlier in the week (Exhibit “A”)(MF 83-85). Freeman also described his similar observations regarding Ponce’s performance (Exhibit “A”) (MF 83-85). In view of the Plaintiff’s and Ponce’s poor performance during these sales calls, and given the Plaintiff’s responsibility as City Sales Manager to ensure that representatives under his supervision are adequately trained and that all of them attain desired levels of revenue for the terminal, Freeman advised Gantt of his opinion that the Plaintiff was not a qualified sales person (MF 91) (Exhibit “A”). Based upon the unsatisfactory growth of revenues at the Miami terminal, and also the poor performance of both the Plaintiff and Ponce as reflected by Freeman’s evaluations, Gantt decided to discharge the Plaintiff and Ponce effective February 9, 1996 (Exhibit “A”). Before carrying out that decision, however, both Gantt and Freeman consulted with Old Dominion’s General Counsel, Joel McCarty. They also jointly called the Chief Executive Officer, Earl Congdon (Exhibits “A”, “H”, and “I”). After discussing the matter, both McCarty and Congdon concurred with Gantt’s decision (Exhibits “A”, “H”, and “I”). Accordingly, on that same date Gantt called Roellig and instructed him to immediately advise the Plaintiff and Ponce of the decision (Exhibits “A” “J” and “K”). Roellig, however, was not in any way involved in making this discharge decision (Exhibit “A”). After the Plaintiff’s discharge, Gantt and McCarty conducted an investigation of the allegations raised by the Plaintiff on behalf of Diane Maturah; however, that investigation did not reveal that any such wrongful conduct ever occurred (Exhibit “A”). [FOOTNOTE 10]Although Maturah later filed with the Broward County Human Rights Division and Equal Employment Opportunity Commission a charge of discrimination against Old Dominion, that charge was ultimately dismissed by both of those agencies (Exhibit “L”). On April 17, 1996, the Plaintiff filed with the Broward County Human Rights Division and the Equal Employment Opportunity Commission a charge of retaliation against Old Dominion (Exhibit “M”). The Broward County agency investigated that charge and ultimately determined that there was no reasonable cause to believe that discrimination had occurred (Exhibit “N”). On January 8, 1997, the Plaintiff was issued a letter by the Broward County agency advising the Plaintiff that he had the right to appeal that agency’s decision (Exhibit “O”). The Plaintiff did not pursue that appeal, and the Broward County agency issued a Dismissal of the Plaintiff’s charge on February 10, 1997 (Exhibit “P”). On November 12, 1997, the Equal Employment Opportunity Commission also issued a dismissal of the Plaintiff’s charge, indicating that it had adopted the findings of the Broward County Human Rights Division (Exhibit “Q”). The evidence is uncontraverted that revenue growth at the Miami terminal increased dramatically following the discharge of the Plaintiff and Ponce. Although the attainment of the terminal’s revenue quotas during the first six months of 1995 reached an average of only 82%, revenue attainment was increased by an average of 27% during the first six months of 1996 (Exhibits “A” and “E”). Also, while actual revenues at the terminal decreased by .5% from 1995 to 1996, those revenues increased 7.7% from 1996 to 1997 (Exhibits “A” and “E”). III. APPLICABLE LEGAL STANDARD Summary Judgment is proper when: …the pleadings, depositions, answers to interrogatories, the admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986). Once the moving party has satisfied its burden under Rule 56, the Plaintiff may not rest upon unsupported or conclusory allegations. See Fed. R. Civ. P. 56(e). The Plaintiff must 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. Anderson, 477 U.S. at 252. See also Wheatley v. Baptist Hospital of Miami. Inc., 16 F. Supp. 2d 1356, 1459 (S,D. Fla. 1998). “If the evidence is merely colorable or is not significantly probative, summary judgment is proper.” Wheatley, 16 F. Supp. 2d at 1359. Finally, Rule 56(c) mandates that the entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. IV. ARGUMENT A. PLAINTIFF’S CLAIMS ARE PROCEDURALLY BARRED. 1. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AS TO FCRA CLAIM. The Florida Civil Rights Act (FCRA) provides as follows regarding administrative and civil remedies. Any person aggrieved by a violation of �� 760.01 — 760.10 may file a complaint with the [Florida Commission on Human Relations] within 365 days of the alleged violation, naming the employer,… and describing the violation…. Fla. Stat.� 760.11(1). Thus, in order to assert a violation of the FCRA, a plaintiff must exhaust his administrative remedies under that statute by first filing a charge of discrimination with the Florida Commission on Human Relations (FCHR). See, e.g., Blount v, Sterling Healthcare Group, Inc., 934 F. Supp. 1365, 1370 (S.D, Fla. 1996); Williams v, Eckerd Family Youth Alternative, 908 F. Supp. 908, 910 (M.D. Fla. 1995). Moreover, “dual” filing of a charge of discrimination with the Equal Employment Opportunity Commission and Broward County Human Rights Division does not satisfy the filing requirement of the FCRA �760.11. Weaver v. Florida Power & Light, 1996 W.L. 479 117 (S.D. Fla. 1996). [FOOTNOTE 11] In Weaver, the plaintiff argued that because she dual filed her charge of discrimination with the Broward County Human Rights Division (BCHRD) and the EEOC, and because a work sharing agreement existed between the EEOC and FCHR, her charge therefore had also been filed with the FCHR. However, the United States District Court for the Southern District of Florida disagreed. First, interpreting the FCRA’s requirement that a charge be filed with the FCHR, the court found that “filing” means “actual receipt” of the charge by the FCHR. Weaver’s charge form only indicated that it had been filed with the BCHRD and EEOC. Weaver also failed to check the box on the form which stated, “I want this charge filed with both the EEOC and the state or local agency, if any.” Second, the court found that the existence of a work sharing agreement between the EEOC and FCHR did not excuse the plaintiff from her statutory obligation to file her charge with the FCHR. Accordingly, the court dismissed the plaintiffs FCRA claim on the grounds that she had failed to exhaust her administrative remedies under that statute. The facts in the instant case are strikingly similar to those presented in Weaver. As noted above, the plaintiff dual filed his charge of discrimination with the BCHRD and the EEOC on April 17, 1996 (Exhibit “M”). The plaintiff did not indicate anywhere on its face that he wanted the charge filed with the FCHR, and he likewise failed to check the box at the bottom of the charge regarding filing “with both the EEOC and the state or local agency, if any” (Exhibit “M”). Because the Plaintiff has clearly failed to file a charge of discrimination with the FCHR, he has failed to exhaust his administrative remedies under the FCRA. Consequently, his claim under that statute must be dismissed as a matter of law. 2. THE PLAINTIFF’S FCRA CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS. Even assuming, arguendo, that the Plaintiff had filed a charge with the FCHR, such charge would be subject to the following provisions under the FCRA: Within 180 days of the filing of the Complaint, the Commission shall determine if there is reasonable cause to believe that discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992. Fla. Stat.� 760.11(3). 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. Fla. Stat.� 760.11(8). In the event that the Commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either: (a) bring a civil action against the person named in the complaint in any court of competent jurisdiction; or (b) request an administrative hearing under �� 120.569 and 120.57. Fla. Stat.� 760.11(4). A civil action brought under this section shall be commenced no later than one year after the date of determination of reasonable cause by the Commission. Fla. Stat.� 760.11(5). Significantly, the District Court of Appeals of Florida, Fourth District, applied these statutory provisions in Milano v. MoldMaster. Inc., 703 S.O.2d 1093 (1997). In that case, the plaintiff filed a complaint with the FCHR on April 8, 1994, and the FCHR failed to issue a cause determination within 180 days following that date. More than one year after the expiration of the 180 day period, the plaintiff filed a civil action against her employer. Affirming the trial court’s dismissal of the action, the Fourth District held that “the one year limitation on filing a civil action began to run at the expiration of the 180 day period in which the Commission was to make a reasonable cause determination.” Milano, 703 S.O.2d at 1094. Accord, Digiro v. Pall Arrow Power Corp., 19 F. Supp. 2d 1304 (M.D. Fla. 1998) (dismissing plaintiff’s FCRA claim as untimely where plaintiff failed to commence FCRA claim within one year after the 180 day time period contained in Fla. Stat. � 760.11). In the instant case, and again assuming that the Plaintiff had properly filed his charge with the FCHR, said charge effectively would have been filed on April 17, 1996 (Exhibit “M”). The 180 day period within which the FCHR had to issue a determination would therefore have expired on or about October 14, 1996 — allowing the Plaintiff up to approximately October 14, 1997 in which to commence his civil action. Because that action was not filed with this Court until February 10, 1998, the Plaintiff’s claim under the FCRA is barred by the above-referenced statute of limitations. 3. THE PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES AS TO ALL DISCRIMINATORY CONDUCT NOT ALLEGED IN THE CHARGE. As noted above, the timely filing of an FCHR charge is a prerequisite to a civil action based upon the FCRA. Similarly, courts have held that the timely filing of an EEOC charge is a prerequisite to a civil action based upon Title VII, and a plaintiff who fails to file such a timely charge is precluded from bringing a civil action because of a failure to exhaust his administrative remedies. Lorance v. AT&T Technologies, Inc., 490U.S. 900, 903 n. 2 (1989). Moreover, if a complaint raises allegations which are not reasonably related to the underlying charge raised before the EEOC, then the Plaintiff is precluded from asserting those allegations in a civil action. See, e.g., Mulhall v. Advance Security. Inc., 19 F.3d 586, 589 n. 8 (11th Cir. 1994). In the instant case, the Plaintiff’s charge filed with the EEOC and Broward County Human Rights Division alleged only retaliation in violation of Title VII, the FCRA, and Broward County Human Rights Act (Exhibit “M”). In his Complaint, however, the Plaintiff also alleges other forms of discriminatory conduct for which he claims an entitlement to damages. Specifically, and in addition to the allegation of retaliation against the Plaintiff, the Complaint contains the following allegations: (1) sexual harassment of female employees, including Diane Maturah, by Terminal Manager Jerry Roellig; (2) discriminatory behavior toward minority employees by Roellig; and (3) Old Dominion’s failure to investigate or otherwise take remedial action in response to said harassment and discriminatory behavior. Even assuming that the Plaintiff somehow has standing before this Court to assert violations of federal and state employment statutes and to seek damages for himself under those statutes, for alleged discriminatory conduct against other employees (and Old Dominion fails to see how the Plaintiff could have such standing), clearly the additional allegations contained in the Complaint are in no way reasonably related to the single allegation of retaliation contained in the charge of discrimination. [FOOTNOTE 12]In investigating the Plaintiff’s charge, the only issue before the EEOC and BCHRD was whether Old Dominion discharged the Plaintiff in retaliation for his having reported allegations of harassment of Maturah by Roellig. For the foregoing reasons, Old Dominion contends that the Plaintiff failed to exhaust his administrative remedies regarding allegations of discrimination towards any Old Dominion employee other than himself. Accordingly, any claim of discrimination under Title VII or the FCRA regarding said allegations should be barred as a matter of law. B. THE PLAINTIFF HAS PRESENTED NO EVIDENCE OF RETALIATION TO ESTABLISH A VIOLATION UNDER TITLE VII OR THE FCRA. Intentional discrimination can be proved by either direct or circumstantial evidence. Direct evidence is evidence that, if believed, “establishes discriminatory intent without inference or presumption.” Clark v. Coates & Clark, 990 F.2d 1217, 1226 (11th Cir. 1993). “Only the most blatant remarks whose intent could only be to discriminate constitute direct evidence.” Clark, 990 F.2d at 1226. Since the Plaintiff in the present case presents no direct evidence of retaliation, he must rely upon circumstantial evidence. In dealing with circumstantial evidence in retaliation cases, it is appropriate to apply the burden shifting analysis established by the Supreme Court in McDonnell-Douglas v. Greene, 411 U.S. 792 (1973). See, e.g., Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993). Furthermore, the Eleventh Circuit has held that “decisions construing Title VII are applicable when considering claims under the Florida Civil Rights Act, because the Florida Act was patterned after Title VII.” Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). A prima facie case of retaliation under Title VII must include a showing “(1) that there was a statutorily protected participation; (2) that an adverse employment action occurred; and (3) that there was a causal link between the participation and the adverse employment action.” Wheatley v. Baptist Hospital of Miami, Inc., 16 F. Supp. 2d 1356, 1362 (S.D. Fla. 1998) (quoting Bigge v. Albertsons. Inc., 894 F.2d 1497, 1501 (11th Cir. 1990). Once a prima facie case is established, the burden then shifts to the defendant employer to come forward with legitimate non-discriminatory reasons for its actions. See, e.g., Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). If the employer does so, the presumption of retaliation is rebutted and drops from the case. At the summary judgment stage, the burden then shifts back to the plaintiff to raise a genuine factual issue “as to whether the defendant’s proffered reason is a pretextual ruse to mask a retaliatory action.” Wheatley, 16 F. Supp. 2d at 1360 (quoting Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 1997). “To survive a motion for summary judgment, the plaintiff must demonstrate ‘such weaknesses, implausabilities, inconsistencies, incoherentcies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence.’” Wheatley, 16 F. Supp. 2d at 1360 (quoting Combs v. Plantation Patterns, 160 F.3d 1519, 1538 (11th Cir. 1997)). Applying the foregoing case law to the facts in the instant case, Old Dominion first contends that the Plaintiff has failed to satisfy the third element of the prima facie case regarding a “causal connection” between his protected activity (i.e. his report of allegations of improper conduct to Marty Freeman) and his subsequent discharge due to poor performance. The evidence is uncontraverted that the decision-maker regarding the Plaintiff’s discharge, Greg Gantt, had developed serious concerns about the revenue performance of the Miami terminal and its sales staff, including the Plaintiff, well before the Plaintiff made his report. Indeed, it was because of these concerns that Gantt sent Freeman to Miami to evaluate the sales staff in order that a decision could be made as to whether the Plaintiff and other members of that staff should be retained or replaced. It was not until Freeman actually made that visit to the terminal and had begun to see for himself the Plaintiff’s poor performance and lack of professionalism that the Plaintiff conveniently made the report. It should also be noted that when Gantt made the discharge decision several days after that report, one of the individuals involved in that decision, CEO Earl Congdon, had no knowledge of the report. Under these circumstances, and given the uncontraverted evidence that the revenue performance of the Miami terminal had been called into question before the Plaintiff spoke to Freeman, it is clear that the Plaintiff has failed to show a relationship between his protected activity and the adverse employment action. However, even assuming arguendo that the Plaintiff has established a prima facie case, Old Dominion has presented abundant evidence of a legitimate reason for its decision to discharge the Plaintiff and, therefore, has rebutted any inference created by that prima facie case. Old Dominion’s evidence may be summarized as follows: (1) the uncontraverted evidence indicates that revenue growth at the Miami terminal was poor during 1995; (2) Gantt was aware of this slow revenue growth, as well as the Miami sales staff’s failure to successfully penetrate the Miami sales market, when he visited the terminal in January of 1996; (3) after visiting the terminal, Gantt immediately instructed Freeman to personally evaluate the Miami sales staff in order to determine whether members of that staff, including the Plaintiff, should be retained or replaced; (4) upon Freeman’s visit to the Miami terminal, he saw that the Plaintiff was unprofessional and unprepared during sales calls, had failed to comply with the Company’s policy regarding entertaining customers, and that he expressed dissent regarding that policy during a sales meeting with Freeman; and (5) the Plaintiff refused to report to the terminal for a sales meeting with Freeman and the rest of the sales staff, and instead chose to engage in an activity (i.e. bowling) which he admitted was neither sponsored by Old Dominion nor involved the entertainment of customers. Upon his return from the Miami terminal, Freeman shared his observations regarding the Plaintiff’s poor performance with Gantt and confirmed Gantt’s conclusion, which was made in mid-January of 1996, that the terminal’s poor revenue growth was indeed due to the poor performance of the Miami sales staff. Accordingly, because the Plaintiff as City Sales Manager was ultimately responsible for the performance of that staff and the terminal’s revenues, and because the Plaintiff’s individual performance was considered unsatisfactory, Old Dominion chose to discharge the Plaintiff on February 9, 1996. The evidence described above, which is either undisputed or uncontraverted, clearly supports Old Dominion’s decision, and likewise demonstrates that such decision was both legitimate and non-discriminatory. Accordingly, pursuant to controlling case law, the burden shifts to the Plaintiff to demonstrate that Old Dominion’s reasons are pretextual. Old Dominion contends that the Plaintiff has produced absolutely no such evidence of pretext. First, the Plaintiff may well attempt to argue that his performance as a salesman was, at all times, satisfactory; however, any such testimony as to the Plaintiff’s qualifications or performance is irrelevant and, therefore, inadmissible as to the issue of whether the Plaintiff satisfied Old Dominion’s expectations. See, e.g., Webb v. R&B Holding Co. Inc., 992 F. Supp. 1382, 1387 (S.D. Fla. 1998) (citing Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)). “The fact that an employee disagrees with an employer’s evaluation of him does not prove pretext.” Webb, 992 V. Supp. at 1387 (quoting Billet v. Cigna Corp., 940 F.2d 812, 825 (3rd Cir. 1991)). Moreover, even if this Court agreed with the Plaintiff that his performance was not unsatisfactory, Title VII does not give the Court the power to substitute its own business judgment for that of the employer. Id. at 1387 (citing Alphin v. Sears. Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir. 1991) (holding that “this court does not sit as a super personnel department that re-examines an entity’s business decisions”). Based upon Freeman’s evaluation of the Plaintiff’s performance, and given Gantt’s own prior knowledge of the terminal’s lack of revenue growth, it was reasonable for Gantt to conclude that the Plaintiff’s performance was unsatisfactory. The fact that the Plaintiff believed that his performance was satisfactory does not make Old Dominion’s reason for terminating him pretextual. See Webb, 992 F. Supp. at 1387. Second, it must be stressed that even if the Plaintiff’s individual revenues and performance did satisfy Old Dominion’s expectations, the decision to discharge the Plaintiff was at its core based upon low revenue growth at the Miami terminal during 1995 and early 1996. The Plaintiff has presented absolutely no evidence in this case, and indeed no such evidence exists, to show that the revenues generated by the Miami terminal were satisfactory or that they met Old Dominion’s expectations. It is also undisputed that the Plaintiff, as City Sales Manager, was responsible for the terminal’s revenues, and that sales employees are ultimately evaluated in terms of the revenue which they produce. The Plaintiff also 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 (JE 84-85). Further, the Plaintiff 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 88-89, 95). Based upon these admissions, as well as the uncontraverted evidence regarding the poor revenue performance of the Miami terminal, it is clear that the Plaintiff has failed to rebut Old Dominion’s reasons for discharging him. Under these circumstances, no question of pretext arises. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287-88 (11th Cir. 1997) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1534-35 (11th Cir. 1997)). Finally, Old Dominion would invite the Court’s attention to the fact that the Company also discharged Miami terminal Sales Representative Pat Ponce for poor performance. This decision was based upon the same factors which led to Old Dominion’s decision to discharge the Plaintiff. Indeed, both decisions were made and carried out on the same date. Moreover, even though Ponce attempted to assert during his deposition that he and Freeman discussed the allegations of inappropriate conduct earlier raised by the Plaintiff, there is absolutely no evidence in the record to demonstrate that Ponce ever made a complaint to anyone prior to his discharge, or that Gantt, McCarty, or Congdon were ever aware that Ponce had any knowledge of the alleged misconduct or the Plaintiff’s report of it to Freeman. Because Ponce engaged in no protected activity, the Plaintiff cannot argue that Ponce’s discharge was retaliatory. The fact that Ponce and the Plaintiff were discharged for similar reasons thus provides strong evidence that the Plaintiff’s discharge was not pretextual, and that no inference of retaliation based upon the timing of that discharge arises under the circumstances of this case. See, e.g., Stewart, 117 F.3d at 1287. V. CONCLUSION For all of the foregoing reasons, Old Dominion requests that the Court grant this Motion for Summary Judgment and award to Old Dominion its reasonable attorney’s fees, costs, and any other form of relief that the Court deems just and proper. ::::FOOTNOTES:::: FN1A copy of the job description for the city sales manager position is attached as Exhibit “C”. It was in effect at the time the Plaintiff occupied that position (JE 100-101; MF 104). FN2Numbers within parenthesis preceded by the letters “JE”, “MF”, “PP”, and “RS”, refer to pages of the depositions of Jimmy Edmonson, Marty Freeman, Pat Ponce, and Robert Schachel, respectively. Portions of those depositions are attached hereto as Exhibit “S”. FN3The Plaintiff had served in the capacity of City Sales Manager since May 26, 1995. He was hired by Old Dominion as a Sales Representative on June 16, 1987 (Exhibit “D”). FN4The attainment of the Miami terminal’s revenue quotas during 1995 reached only 83% (MF 118-20)(Exhibit “E”). Also, 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”). FN5The Plaintiff admits that, as Area Vice President, Gantt was responsible for the revenue performance of the Miami terminal, and that he has no reason to doubt that Gantt was interested in increasing that terminal’s revenues (JE 31). The Plaintiff further admits that he was responsible for selling and soliciting freight at the time of Gantt’s visit (JE 29). ‘ FN6Old Dominion’s sales training manual specifies that sales staff must engage in a minimum of four planned customer lunches per week, and two outside entertainment per month. (Exhibit”B”). FN7Although the Plaintiff denies stating that he refused to buy anyone’s business, he admits that in response to Freeman’s request that the sales staff “beef up” its entertainment of customers, the Plaintiff responded “We are not buying freight.” (JE 47). FN8The Plaintiff now claims that he does not recall being turned away by the customer (JE 56). FN9The Plaintiff at first attempted to argue during his deposition that bowling was a company sponsored sales event; however, the Plaintiff ultimately admitted that Old Dominion had not sponsored any such activity since the summer of 1995, and that the Plaintiff had not arranged for any customers to bowl with him on the evening in question (JE 53-55). This was merely the Plaintiff’s personal recreation. FN10When she was interviewed by Gantt during his investigation, Maturah denied that she had any allegations against Roellig (Exhibit “A”). FN11A copy of this decision is attached hereto as Exhibit “R”. FN12Old Dominion would submit that the Plaintiff is attempting to litigate in this action those claims which were contained in the EEOC charge filed against Old Dominion by Diane Maturah on April 22, 1997 (Exhibit “L”). The Broward County Human Rights Division also investigated Maturah’s charge and issued a “no cause” determination on June 6, 1997 (Exhibit “L”), Maturah failed to seek an administrative appeal. Thereafter, the EEOC issued a right to sue upon request on October 1, 1997 (Exhibit “L”), but Maturah chose not to pursue a lawsuit against Old Dominion. It should also be noted that the attorney representing the Plaintiff in this action also represented Maturah with regard to her charge of discrimination (Exhibit “L”). � 2001 Juritas.com. All Rights Reserved

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