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Glover v. Southwest Airlines Co.

United States District Court, D. South Carolina, Charleston Division

June 28, 2019

Grady Glover, Plaintiff,
v.
Southwest Airlines, Co., Defendant.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. McDONALD UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the defendant's motion for summary judgment (doc. 22). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

         PROCEDURAL HISTORY

         The plaintiff, who is represented by counsel, filed a complaint in state court on February 5, 2018, alleging causes of action for disability discrimination in violation of the Americans with Disabilities Act (“ADA”); (2) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (3) retaliation for protected activity, in violation of the ADA and the ADEA; and (4) hostile work environment based on disability and age, in violation of the ADA and the ADEA (doc. 1-1 at 5-23). The matter was removed by the defendant to federal court on March 16, 2018, based on federal question jurisdiction (doc. 1). The defendant filed the instant motion for summary judgment on January 14, 2019 (doc. 22). After requesting and receiving extensions of time, the plaintiff filed a response in opposition to the motion on February 13, 2019 (doc. 33). The defendant then filed a reply on February 20, 2019 (doc. 35).

         FACTS PRESENTED

         The plaintiff, who was born on January 15, 1958, first began working for the defendant when he was 19 years old and worked for several years in the Ramp Department until 1999, when he quit (doc. 22-2, pl. dep. 12-13, 18-19). In 2002, he sought employment again with the defendant and accepted the role of Operations Supervisor in Hartford, Connecticut (id. 20-21). The following year, the plaintiff began reporting to Doug Currie, who had accepted the position of Station Manager in Hartford (id. 24). By 2007, Currie had been promoted to Regional Director with responsibility for Hartford (among other stations), and he called the plaintiff to ask him to fill the Station Manager position in Hartford (id. 24-25). The plaintiff accepted the Station Manager position and served in that role through 2010 (id. 25). During this period of time (2003-2010), the plaintiff and Currie had a good working relationship; the plaintiff never had any problems with Currie (id. 27).

         In January 2011, the plaintiff was offered and accepted the role of Station Manager in Charleston, South Carolina (doc. 22-2, pl. dep. 25, 32). As in Hartford, the plaintiff was in charge of the station - he was the highest on-site authority in Charleston for the defendant (id. 28, 43). He was responsible for managing all three departments: Ramp, Customer Service, and Operations, and managed anywhere from 44 to 47 employees, including supervisors who reported to him (id. 46, 137). In 2014, the plaintiff began reporting to Currie again, and from 2014 through 2016, they had a good working relationship; the plaintiff testified that he had no problems with Currie during this time (id. 58, 203-204). The plaintiff received positive performance evaluations from Currie for the years 2014, 2015, and 2016, having most recently received an “outstanding” rating for his performance between February 1, 2016, and January 31, 2017 (id. 58-63; doc. 33-5).

         Throughout his employment, the plaintiff received copies of and had an opportunity to review the defendant's policy concerning harassment and discrimination, and he was comfortable raising any issues to the Employee Relations department (doc. 22-2, pl. dep. 41, 50-52; doc. 22-4 at 3). He also understood, as outlined in the Station Manager job description, that he was expected to “Live the Southwest Way” by demonstrating:

Warrior Spirit - Work Hard, desire to be the best, be courageous, display a sense of urgency, persevere, innovate.
Servant's Heart - Follow The Golden Rule, adhere to the Basic Principles, treat others with respect, put others first, be egalitarian, demonstrate proactive Customer Service, embrace the SWA Family.

(Doc. 22-4 at 4; doc. 22-2, pl. dep. 53-54). As a leader, he also knew additional responsibilities and expectations were placed on him and that he was expected to develop people, which included knowing his people, communicating consistently, and providing timely, candid feedback; to build great teams; and to think strategically (doc. 22-2, pl. dep. 54-57; doc. 22-4 at 4).

         On February 1, 2017, the plaintiff was approached by a supervisor regarding “an overtime issue that needed to be covered in [O]perations” (doc. 22-2, pl. dep. 67-68). The plaintiff told the supervisor to call Danielle Chapman, an Operations Agent, to see if she could come in, but to make sure that she knew she did not have to come in since she was on vacation (id. 68). The plaintiff testified that the defendant's contract with the union does not allow him to give mandatory overtime to an agent out on a vacation day (id.). Chapman testified that the first supervisor who called her told her that it was mandatory overtime, but when she questioned this since she was on vacation, the first supervisor said she would call her back (doc. 33-10, Chapman dep. 9). When a second supervisor called her, he told Chapman that he could not make her come in, and it would be voluntary overtime (id. 10). Chapman testified that she “was under the assumption” that it was mandatory overtime, since that is what the first supervisor had stated (id.). Chapman worked the overtime (doc. 22-2, pl. dep. 68). Her time was initially recorded as mandatory overtime (paying double time), or “MOT, ” but the plaintiff instructed the supervisor to change it to voluntary overtime (paying time and a half), or “VOT, ” because Chapman came in voluntarily and was not, therefore, supposed to be paid double time (id. 69-70; doc. 22-4 at 6). The plaintiff did not speak with Chapman or instruct anyone else to speak with her prior to telling the supervisor to change her pay from double time to time and a half (doc. 22-2, pl. dep. 71).

         On February 21, 2017, Chapman raised an issue with the plaintiff about not being paid double time, stating that she did not understand that she was not going to be paid double time (doc. 22-2, pl. dep. 68). The plaintiff agreed to pay her double time (id.). Chapman was advised by her Union Representative, Ryan Wagener, to put the agreement regarding her pay in writing (doc. 33-10, Chapman dep. 10-11). According to the plaintiff, it was a common practice for Wagener “to go back behind something and try to stir it up”; however, the plaintiff did not have a more contentious relationship with Wagener than he did with other union representatives (doc. 22-2, pl. dep. 82-84).

         Chapman summarized what had happened with regard to the overtime issue in an email, which she sent to the plaintiff on February 22, 2017 (doc. 22-4 at 6-8). The plaintiff testified that he “was a little frustrated” with Chapman's email because he “had already taken care of the problem” (doc. 22-2, pl. dep. 77). The plaintiff responded in an email the next morning, stating in relevant part:

         Danielle,

I do not understand why you feel it is necessary to send this to me in writhing [sic]. I have already told you that we will take care of this pay. However, since you have decided that you must put this in writing I must now set the record straight .....If there is any lack of communication here, it is on your part. I love having you hear [sic] Danielle, but I do not expect this kind of attitude from such a new employee, and I do not understand why you felt it was necessary to put this in writing after you were told it would be taken care of. . . . We are not obligated to pay you MOT, but we have decided to pay you MOT based on your lack of understanding of what VOT is. . . . I am [] copying my Director on this since our folks have an open line to call him with these kinds of issues.
Sincerely,
Grady E. Glover

(Doc. 22-4 at 6) (emphasis in original). When asked if he could see how his email could be perceived as aggressive or critical, the plaintiff testified that he sent it at a time when he “was a little upset” and that, upon reading it later, he probably should not have sent it (doc. 22-2, pl. dep. 124).

         That same day, on February 23, 2017, Wagener sent an email to Currie and Currie's boss, Steve Goldberg, expressing concern over the plaintiff's email and other “issues with [the plaintiff] over the last couple of years” (doc. 22-4 at 9). He requested a meeting with them to discuss the issues further (id.; doc. 22-2, pl. dep. 88-90). Currie thanked Wagener for reaching out and told him he would be in touch with him the following week (doc. 22-4 at 9). Currie did not discuss Wagener's email with the plaintiff (doc. 22-2, pl. dep. 90).

         The plaintiff testified in his deposition that on March 8, 2017, he was informed by two supervisors that Chapman was refusing mandatory overtime (doc. 22-2, pl. dep. 90; see doc. 33-4 at 19). While the plaintiff typically would not get involved in these sorts of issues, he “felt it was necessary” to speak with her because he was concerned “she didn't realize what she was doing . . . that she could be issued discipline for refusing mandatory overtime” (doc. 22-2, pl. dep. 90-91). The plaintiff approached Chapman in the Operations office; once Wagener got there, they stepped in together, and the plaintiff shut the door (id. 92). Chapman was at the filing cabinet when the plaintiff said, “I need to speak to you about the mandatory overtime” (id. 93). Chapman walked by the plaintiff and said “I can hear you, ” and then she sat down at the desk with her back to the plaintiff (id.). The plaintiff thought Chapman's behavior was inappropriate, and he “asked her to turn around and look at [him] while [he] was talking to her” (id. 93, 106). Chapman repeated that she could hear him just fine, to which he again asked her to turn around and stated that he “was giving her a direct work order to turn around and look at [him], and that if she didn't look at [him] so [he] could have this conversation with her that it would be considered insubordination and [he] would have to pull her badges and send her home” (id. 106). Wagener then asked Chapman to turn around, which she did, and they were able to have the conversation that the plaintiff intended to have with her (id. 93-94, 106). At this point, the plaintiff realized Chapman was upset and “saw a tear come down her eye” (id. 107). The plaintiff asked Chapman if she was refusing the mandatory overtime, and Chapman stated that nobody had told her what the overtime assignment was, so how could she refuse it? (id. 94, 107). The plaintiff told Chapman that he was telling her right then what the mandatory overtime was and asked her if she was telling him that she would not work it (id. 94, 108). Chapman responded that she was going to refuse it. The plaintiff informed Chapman and Wagener they would have to have a “fact-finding”[1] and left (id. 94, 108).

         Chapman testified in her deposition that during this incident the plaintiff was standing over her and yelling at her, and Wagener stepped in between them (doc. 22-5, Chapman dep. 18-19). She testified that she had recently been in a car accident and could not “move [her] neck and back in certain ways, ” and after the meeting with the plaintiff, she left work and went straight to the doctor (id.).

         Later on March 8, 2017, Chapman filed a complaint against the plaintiff, alleging that he had created a hostile work environment and retaliated against her for her February email about the overtime issue (doc. 22-4 at 20-21.) Specifically, she reported that the plaintiff's treatment of her caused her to feel threatened, scared, targeted, and harassed (id.). The following day, Chapman forwarded her complaint to Denise Gutierrez, Employee Relations Senior Investigator. Gutierrez forwarded the email to Mike Holcomb, Human Resources Business Partner for the Region, and recommended that Holcomb speak with Chapman and the plaintiff about the issue (id. at 19-21; doc. 22-2, pl. dep. 132).

         On March 9, 2017, the plaintiff contacted Vance R. Foster, the Manager of Labor Relations, to find out what level of discipline was appropriate for Chapman to receive for her attitude when he discussed the mandatory overtime with her the previous day (doc. 22-1, pl. dep. 126). Based on the plaintiff's email, Foster replied that he agreed Chapman deserved discipline, and he told the plaintiff to call him (doc. 22-4 at 29). The plaintiff sent Currie an email “keeping [him] in the loop” and letting him know that he had discussed the incident with Foster who agreed that a warning letter should be issued to Chapman for her conduct/attitude on March 8th (doc. 33-14 at 8). He also stated that he would be holding a fact-finding with Chapman on March 13th regarding her refusal of mandatory overtime. Currie replied, “Thanks” (id.). The plaintiff drafted and prepared a letter of warning with input from Foster (id. at 10-14).

         Rebecca Melissa Pitstick, a Ramp Agent who worked daily with the plaintiff, testified that a few days after the incident between the plaintiff and Chapman, she overheard Wagener state that “he was going to get rid of [the plaintiff]” (doc. 33-9, Pitstick dep. 7-11).

         A fact-finding was held on March 13, 2017, to discuss Chapman's refusal of mandatory overtime (doc. 22-2, pl. dep. 94-96). The plaintiff testified that they were not doing a fact-finding on Chapman's attitude, as he had already drafted a letter of warning for her attitude (id. 95-96, 113). Chapman had also had a weight and balance error that was discovered in an audit, and the plaintiff had already drafted a letter of instruction for that error (id.). At the fact-finding, the plaintiff presented Chapman with the letter of warning for her overall attitude toward him on March 8, 2017 (doc. 22-2, pl. dep. 116; doc. 22-4 at 14-15). Chapman did not sign the letter of warning; rather, she wrote: “I do not agree with the statements written.” Later that day, she filed a formal grievance asking that it be removed from her file (doc. 22-4 at 16-18). The plaintiff testified that he was not aware she filed a grievance (doc. 22-2, pl. dep. 130). The fact-finding concluded with a heated exchange between the plaintiff and Wagener with regard to Wagener's claim that the plaintiff yelled at Chapman on March 8, 2017, and the plaintiff's claim that he did not (id. 120).[2] The plaintiff told Wagener, “you know that's a lie, ” and Wagener “started swearing and going off” (id.). An unsigned summary of the fact-finding that was apparently created by attendee Emily Stevens states that Wagener “was very unprofessional with his language and yelling at the end of the meeting, ” and the plaintiff “never raised his voice or yelled during the whole meeting” (doc. 33-14 at 20).

         On March 16, 2017, Currie traveled to the Charleston Station to investigate the March 8th incident between the plaintiff and Chapman (doc. 22-2, pl. dep. 134, 141-42; doc. 33-14 at 3). Currie first met with Chapman and Wagener; his meeting with them lasted most of the day (doc. 22-2, pl. dep. 135-36). Afterwards, the plaintiff drove Currie to his hotel, and Currie conveyed to the plaintiff Chapman's and Wagener's version of the events on March 8th (id. 137-38). The plaintiff told Currie that their version was not what happened, and Currie told the plaintiff, “Well, their perception is their reality” (id. 138). The plaintiff took this to mean that Currie's mind was made up, and “he was going to take their word on it” (id. 138). When the plaintiff asked Currie what he thought the problem was, Currie stated that he thought the problem was due to a “generational gap” (id. 139, 224, 226, 243).[3] The plaintiff understood Currie's comment as telling him that he “had lost touch with the younger generation because [he was] too old” (id. 139). The plaintiff recalled attending training classes on “discussing the different generational gaps . . . trying to recognize what a different generation believes or how they - how they relate to the workforce” (id. 223-24). Currie also told the plaintiff that, as the Station Manager, he needed to rise above and de-escalate the situation (id. 140). Currie did not indicate that he was there to determine whether any disciplinary action against the plaintiff was warranted (id. 140-41; doc. 22-3, Currie dep. 48). Their conversation in the car concluded with an agreement to discuss the matter further (doc. 22-2, pl. dep. 140).

         On March 17, 2017, the plaintiff informed Currie via email that he was going to have a supervisor issue Chapman the results of the fact-finding for refusing mandatory overtime (doc. 22-2, pl. dep. 147-48; doc. 22-4 at 39). Currie responded that a “discussion log”[4] was justified for refusing mandatory overtime, but “the letter of warning for her not making eye contact” was not (doc. 22-4 at 39). After the plaintiff sought confirmation, Currie reiterated in a followup email that he was instructing the plaintiff to remove the letter of warning from Chapman's file (id.). The plaintiff did not notify Chapman that the letter was removed (doc. 22-2, pl. dep. 151-52). He testified that he was waiting to see either Wagener or Chapman to let them know (id. 152-53).

         The plaintiff stated in his affidavit submitted with his response in opposition to the motion for summary judgment that, on March 21, 2017, Labor Relations completed an investigation into Chapman's complaints about him and determined that he “did nothing wrong” (doc. 33 at 13, 17, 28) (citing doc. 33-2, pl. aff. ¶ 17).[5]

         From March 29-30, 2017, the plaintiff was in the hospital for evaluation for chest/ abdominal symptoms, with a return to date of April 3, 2017 (doc. 33-15).

         Currie testified that he felt the plaintiff “wasn't understanding the severity of the situation with [Chapman] that could have been handled more appropriately” (doc. 22-3, Currie dep. 56). Currie asked the plaintiff to come to Houston to meet with him face-to-face, so he could “emphasize that point” (id.; doc. 22-2, pl. dep. 154). Prior to their meeting, the plaintiff drafted a three-page letter to Currie, dated April 6th, with 25 pages of attachments, which he planned to present to Currie at the meeting in Houston (doc. 22-2, pl. dep. 160, 165-66; doc. 33-14 at 2-4). In the letter, the plaintiff outlined the ways in which he disagreed with Currie's management and overall handling of the Chapman issue, stating that Currie “undermined [his] authority in the station, ” “blew this so out of proportion, ” and “muddied the waters and made this a complicated mess” (doc. 33-14 at 2-4). The plaintiff stated in the letter that he felt Currie's statement that the issue was “generational” was hurtful and discriminatory as he took it to mean that Currie thought he was “too old to relate to the younger generation, and that this is why the break down occurred” (id. at 3). The plaintiff also stated that making him fly to Houston left him “in a threatened state, to imagine the worst” (id.). He stated that it caused him “great anxiety” and put him in the hospital (id.). He stated that requiring him to go to Houston “was a bullying tactic that violates the Companies [sic] Bullying and Hazing Policy” (id.). The plaintiff concluded by stating: “I do not know how this is to be fixed, but I do know that I didn't create this mess and I am powerless to realign the situation to regain peace and harmony. Only you can fix it” (id. at 4).

         The plaintiff and Currie met in Houston on April 6, 2017 (doc. 22-2, pl. dep. 160). While the plaintiff decided not to give the letter to Currie, he testified that he discussed with Currie nearly everything written in the letter during their meeting (see, e.g., Id. 160, 162, 239-40). The plaintiff testified that the only thing he did not discuss with Currie that was in the letter was “out of fear, . . . the age discrimination part” (id. 240). Currie stressed to the plaintiff the importance of winning Chapman and Wagener's trust and taking the high road to get past the situation (id. 164-65). Currie instructed the plaintiff to sit down and meet with Chapman and Wagener, and the plaintiff testified that was what he had planned to do (id. 169). The plaintiff testified that he understood that he needed to go back and “make this right with Danielle and Ryan” (id.). Because Currie “told [him] there would not be any discipline issued” to him, the plaintiff did not give Currie the letter he had prepared (id. 166, 169). Currie testified that he already informed Chapman that the letter of warning was going to be removed from her file (doc. 33-3, Currie dep. 60).

         Currie called the plaintiff on April 19, 2017, to ask him if he had met with Chapman (doc. 22-2, pl. dep. 177). The plaintiff understood from that conversation that Currie was upset that he had not yet spoken with Chapman, and Currie indicated that he should speak to her as soon as possible (id. 187). The plaintiff sent Currie an email explaining that, given his schedule and Chapman's, the only opportunity he had to speak with her was on April 11th, but he missed that opportunity (doc. 22-4 at 46). Later that day, the plaintiff met with Chapman (doc. 22-2, pl. dep. 177). He told Chapman that Currie had planned to come to Charleston but was unable to do so, so Currie asked the plaintiff to sit down with her and talk to her about what they were going to do with the letter (id. 179).

         On April 20, 2017, Currie sent the plaintiff an email asking him whether he had at any time between returning from Houston and April 19th communicated to Chapman that he intended to speak to her. The plaintiff replied that he had not because the only time he saw her was on April 11th, but he did not want to bring up the issue then because they were in a room full of people (doc. 22-4 at 47).

         On Friday, May 5, 2017, Currie emailed the plaintiff a letter of expectation based upon the plaintiff's failure to “defuse an emotional situation” between himself and Chapman in March, and his subsequent failure to “communicate [his] intentions to speak with [Chapman] until April 20th, ” despite Currie's “directive to return to Charleston and meet with the ops agent” (doc. 22-2, pl. dep. 66-67; doc. 22-4 at 23, 25). Currie also noted that when the plaintiff ultimately met with Chapman, he prefaced the conversation by stating that Currie directed him to have the conversation (doc. 22-4 at 25). Currie stated that the plaintiff failed “to display emotional intelligence, make Employees [sic] concerns a priority, promptly address issues, and take ownership and responsibility when speaking with Employees” (id.). The letter stated that “[a]ny future incidents of this nature will result in disciplinary action up to, and including, termination” (id.). The plaintiff responded to Currie that he needed to speak with him the following Monday, May 8th (id. at 23).

         On May 8th, the plaintiff sent Currie an email, copying Toni Hamilton in Employee Relations, stating that it was 5:00 p.m., and he had not heard from Currie to discuss the letter of expectation, and the pressure Currie was putting on him was affecting his health and blood pressure (doc. 22-4 at 23). The plaintiff stated that he was left with no choice but to report Currie's behavior to Employee Relations in hopes they would “stop the harassment, bullying, and retaliation” (id.). The plaintiff stated that he was attaching the April 6th letter that he had not given to Currie earlier because he believed that they had “reached an understanding of what happened between” the plaintiff and Chapman and “that no discipline would be issued” (id.).[6] The plaintiff returned the letter of expectation to Currie on the same date with a notation on it that he signed “under duress” and was reporting Currie's behavior to Employee Relations (id. at 25).

         The plaintiff was out of work on May 11-12, 2017, for medical reasons (doc. 33-15).

         After review, Employee Relations determined that there was nothing in the plaintiff's complaint (i.e. April 6th letter) that raised a protected issue, and Hamilton relayed the findings to the plaintiff on May 22, 2017 (doc. 22-2, pl. dep. 207-209; doc. 22-4 at 55-56). Specifically, Hamilton informed the plaintiff that she did not find Currie's generational gap comment to be age discrimination because “generational gaps are something [the defendant] train[s] on” (doc. 22-2, pl. dep. 241-42).

         Chris Johnson, Currie's supervisor and the Senior Director for Ground Operations, reviewed the plaintiff's concerns about Currie's behavior, as outlined throughout the April 6th letter (doc. 22-6, Johnson dep. 19-21). Johnson testified that he was aware of what had been going on at the Charleston Station, as he had spoken with both Chapman and Currie after Chapman lodged her complaint against the plaintiff (id. 20, 24). Johnson reviewed the entire situation again and spoke with Currie, Goldberg[7], Holcomb, Hamilton, and the plaintiff (id. 19, 24, 30-31).

         In an email to Hamilton in Employee Relations on May 16, 2017, Currie stated that he had reviewed the situation with Johnson and Goldberg and “determined that our best course of action was to separate with [the plaintiff]” based on “his ability to lead the station and insubordination” (doc. 33-3, Currie dep. 72-74). Currie testified that the defendant does not “take terminating managers lightly, and there was a lot of deliberation and conversation . . . [a]nd so we ultimately took a lot of time to come to that ...


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