J. Gwin v. Bfi Waste Serv. Llc., Civil Action No. 10-AR-0227-S.

• Decision Date: 16 April 2010
• Docket Number: Civil Action No. 10-AR-0227-S.
• Citation: 718 F.Supp.2d 1326
• Parties: Thomas J. GWIN, Plaintiff, v. BFI WASTE SERVICES, LLC, d/b/a Allied Waste Services of Birmingham, Defendant.
• Court: U.S. District Court — Northern District of Alabama

718 F.Supp.2d 1326

Thomas J. GWIN, Plaintiff,

v.BFI WASTE SERVICES, LLC, d/b/a Allied Waste Services of Birmingham, Defendant.

Civil Action No. 10-AR-0227-S.

United States District Court, N.D. Alabama,Southern Division.

April 16, 2010.

Kenneth Lee Cleveland, Cleveland & Cleveland PC, Ralph E. Coleman, Sr., Ralph E. Coleman PC, Birmingham, AL, for Plaintiff.

David T. Wiley, Rhonda S. Nabors, Jackson Lewis LLP, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

WILLIAM M. ACKER, JR., District Judge.

The complaint of Thomas J. Gwin (“Gwin”), against his former employer, BFI Waste Services, LLC, d/b/a Allied Waste Services of Birmingham (“BFI”), invokes both Title VII (42 U.S.C. § 2000e, et seq.), and the Age Discrimination in Employment Act (“ADEA”) (29 U.S.C. § 621, et seq.). Gwin claims that he was discharged because of his being in two protected groups, first, members of the white race, and second, persons over forty years of age. BFI's motion to dismiss, now under consideration, points out that Gwin's claim, as reflected in the Equal Employment Opportunity Commission (“EEOC”) file, cites “age” as the motivating factor for BFI's decision, and does not contain a specific charge of “race” discrimination. BFI seeks a dismissal of the Title VII aspect because the prerequisite of submission of such a charge to the EEOC has not been met; and in defense of the ADEA claim, BFI points out that this court in Culver v. Birmingham Bd. of Educ., 646 F.Supp.2d 1270 (N.D.Ala.2009), has interpreted Gross v. FBL Financial Services, Inc., ---U.S. ----, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), to prevent an employee who complains under ADEA for an adverse employer action from claiming any other basis for the adverse action.

Gwin denies the accuracy and completeness of the EEOC file, and claims, to the contrary, that he vehemently insisted on pursuing his “race” claim and has never given it up. Because BFI's defense of “failure to exhaust the EEOC administrative remedy” is critical to Gwin's “race” claim, the court ordered an evidentiary hearing on the issue. Both parties agreed that this threshold dispute should be resolved by the court. If the court had been wise, it would have sua sponte impaneled an advisory jury.

Not unsurprisingly, the evidence offered by the two parties is, in some respects, the same, and in other respects is contradictory. Gwin testified as his only witness, but also offered portions of the EEOC file, plus a document identical to the charge document contained in the EEOC file, except with Gwin's initials beside the box designated “race”, and containing two virtually merging signatures. The charge document in the official EEOC file contains an “x” only in the box entitled “age”, but describes Gwin as “White”, as well as age “56.”

After Gwin rested his case, BFI offered, and the court received, the entire EEOC file, which did not contain what Gwin describes as his “amended charge”. BFI offered the testimony of a single witness, Lashaunda Love (“Love”), the EEOC investigator who interviewed Gwin on October 20, 2009, and who was the only EEOC employee who evaluated Gwin's claim, and who recommended its denial. Although the written evidence has been placed under seal at the request of the parties, it is necessary for the court to refer to the documentary evidence. To the extent the documents are employed in this opinion, the seal is LIFTED.

There are several items of evidence that cause the court to believe, and to find, that Gwin filed with the EEOC a claim of “race” discrimination adequate to pass the exhaustion test and to allow him to proceed in this court with his Title VII claim. Not necessarily in the order of their importance, but in chronological order, these items of evidence are:

(1) On October 20, 2009, Gwin came to the EEOC alone to complain about his termination by BFI on June 23, 2009. On the Intake Questionnaire that he completed at the front desk of the EEOC office in Birmingham, Alabama, Gwin, in his own handwriting, furnished the following information to the EEOC:

(a) Employer, BFI's business is “waste removal”.

(b) BFI's Human Resources Director is Ronda Besher[sic], whose telephone number is (205) 923-1650.

(c) Gwin's job title is “swing driver”.

(d) Gwin's immediate supervisor is “Sam Freeman, front-loader supervisor (Eric Cole)”.

(e) In response to the question “What is the reason (basis) for your claim of employment discrimination?”, Gwin checked both the box for “age” and the box for “race”.

(f) In response to the question “What happened to you that you believe was discriminatory?”, Gwin responded, “Fired by supervisor Eric Cole”.

(g) In response to the question “Name and title of person responsible”, Gwin replied “Sam Freeman (driver supervisor)”.

(h) In the space following the word “action”, Gwin wrote “took a statement from a new employee Shepherd Johnson which were hit and miss truths. Shepherd Johnson; said he was ofended[sic] by a story [indecipherable] employee (Steve Bradbury) told about and[sic] AfricanAmerican[sic] who once worked at job site (another driver). He Steve Bradbury, quoted the words of the oldder[sic] employee. I seen[sic] the look on Mr. Johnson[sic] face said it was proper to use the “N”-word in the quote!! And for this I was fired? ?”

(I) Gwin listed the following witnesses to the incident:

James S. Bradbury, Mechanic

Bill Strickland, Driver

Shepherd Johnson, Driver

(2) After reading the Intake Questionnaire, Love, the investigator, formally interviewed Gwin. Her subsequent typewritten Record of Interview reads as follows:

Charging Party (CP) visited the office of the U.S. Equal Employment Opportunity Commission, 1130 22nd Street South, Suite 2000, Birmingham, Alabama, on October 20, 2009, to file a charge of discrimination. CP alleges he was discriminated against because of his age, 56, in violation of the Age Discrimination in Employment Act of 1967, as amended.

CP is a White Male, 56 years of age, who worked for Allied Waste Steel (AWS) in Birmingham, Alabama. CP was hired on or about January 1983 as a Swing Driver. CP was discharged on June 23, 2009, for using a racial slur.

On June 16, 2009, CP stated Steve Bradbery, Bill Strickland, Sheppard Johnson, and he was[sic] having a discussion. Mr. Bradberry is a mechanic who is 60 years of age. Mr. Strickland is a swing driver, age unknown. Mr. Johnson is a new employee hired as a driver who is 38 years of age.

CP stated Mr. Bradberry repeated a story previously told by a former employee of AWS. CP stated Mr. Bradberry repeated the work “nigger” that was used by the former employee. CP stated Mr. Johnson's demeanor indicated that the comment was offensive but Mr. Johnson did not say it was offensive. CP stated that he provided clarification by saying that the use of the word “nigger” is acceptable since Mr. Bradberry repeated the words of someone else. CP further stated Mr. Johnson reported the incident to a member of management. CP stated he was confronted by a member of management regarding the use of the racial slur. CP stated he denies calling anyone out their name [sic] but admits it was okay to use the racial slur in the aforementioned context. CP stated he was aware of company policy regarding the use of such language. CP contends he did nothing wrong.

CP stated he and Mr. Bradberry were terminated for using a racial slur, in violation of company policy.

CP stated he believes in the past a Black male who is also over the age of forty made a racial slur to a white female but he was not discharge [sic]. CP was given the opportunity to amend his charge and add race during the intake process but declined and requested to keep his charge as an age discrimination charge only.

CP was advised that it appears unlikely that any further investigation would disclose a violation of the law EEOC administers. CP was advised that if the charge is dismissed he will be issued a Notice of Right to Sue and that the Commission will consider this matter closed. CP was advised that the Notice gives him the opportunity to pursue his case in federal district court. CP was advised that if he decide [sic] to pursue his case in federal court, he must do so within 90 days from the date of his receipt of the Notice of Right to Sue if he so desires. CP stated he did not have additional information to provide.

Legal concurred with the no cause determination.

How long after the interview the Record of Interview was prepared by Love is not reflected in the record, but it obviously was typed after Love had reached her conclusion to recommend a “no cause determination”, and after “legal” had “concurred”. At the end of the interview with Gwin, and obviously before the Record of Interview was prepared. Love, employing the EEOC form entitled “Charge of Discrimination”, listed the name of Gwin's employer as “AWS of Birmingham 802” (where the number 802 came from is anybody's guess), with phone number “(205) 923-1650”, and placed an “x” only in the box beside the word “age”. She did not check the box beside the word “race”. In the space entitled “the particulars are”, she typed:

I am a White male, and over the age of forty. I was employed by the above named employer for 26 years. On June 23, 2009, I was discharged for condoning the use of a racial slur made by my co-worker.

I am unaware of any other employee who used a racial slur and was not discharged. Another white employee who is also a member of the protected age group was also discharged for using a racial slur.

I believe I was discriminated against because of my age, 56, in violation of the Age Discrimination in Employment Act of 1967, as amended.

(3) The EEOC records reflect that the original charge, as drafted by “CR/TIU on 10-20-2009”, was “returned from legal on 10-21-2009”.

(4) The EEOC records also reflect that “respondent's company representative” was Rhonda Brazil (“Brazil”) with telephone number (205) 923-1650. On October 26, 2009, the EEOC...