Nida v. Echols, 1:97-CV-350A-JEC.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Writing for the CourtCarnes
Citation31 F.Supp.2d 1358
PartiesRonald NIDA, et al., Plaintiffs, v. Charlene ECHOLS, et al., Defendants.
Docket NumberNo. 1:97-CV-350A-JEC.,1:97-CV-350A-JEC.
Decision Date15 September 1998
31 F.Supp.2d 1358
Ronald NIDA, et al., Plaintiffs,
Charlene ECHOLS, et al., Defendants.
No. 1:97-CV-350A-JEC.
United States District Court, N.D. Georgia, Atlanta Division.
September 15, 1998.

Page 1359


Page 1360

David R. Sweat, Sweat & Giese, Athens, CA, Susan Marie Pearce Tate, Office of Susan P. Tate, Athens, GA, for Plaintiffs.

Steven Thomas Breaux, Ruth H. Fife, BellSouth Telecommunications, Inc., Atlanta, GA, for Defendants.


CARNES, District Judge.

This case is presently before the Court on defendants S. Cleve Ray, Charlene Echols and BellSouth Telecommunications, Inc.'s (hereinafter "BellSouth") Motion for Summary Judgment [12] and Motion to Strike the Expert Affidavit of Roger A. Roemmich [16]. After reviewing the record and the arguments of the parties, the Court concludes that defendants' Motion for Summary Judgment [12] should be GRANTED IN PART AND DENIED IN PART and Motion

Page 1361

to Strike the Expert Affidavit of Roger A. Roemmich [16] should be GRANTED.


In August of 1995, plaintiffs in this case, Ruth Cummings, Norman Conner, John Linster and Ronald Nida, were all employees of defendant BellSouth, and were all over 40 years old. Conner had worked for BellSouth since May 12, 1969, Cummings since July 13, 1974, Linster since November 1, 1976 and Nida since August 13, 1973. (See Defs.' Statement of Material Facts [12] at ¶ 24.) On August 30, 1995, each plaintiff was fired for "misconduct and dishonesty including misrepresenting work schedules and falsification of records." (Id. at ¶ 22.)

In March and April of 1995, plaintiffs Conner, Linster and Nida worked as specialists in BellSouth's Network Management Center (hereinafter "the Center"). (Id. at ¶ 5.) As specialists, plaintiffs reported to Cleve Ray, the manager of the Center. (Id. at ¶ 2.) Ray had the responsibility of running the Center on a day-to-day basis. (Id.) Ray's supervisor was Charlene Echols, a director for BellSouth, who in turn reported to William Stacy, a regional general manager at the time in question. (Id.)

When Ray first began to manage the Center it did not operate on a 24-hour basis because BellSouth did not employ enough people to cover such a schedule. (Id. at ¶ 6.) When the Center was not operating on a 24-hour basis, specialists worked a four-day week, ten hours per day. (Id.) Over time, the Center added employees and began to operate on a twenty-four hour basis. (Id.)

In 1995 the Center was operating on a 24-hour basis. (Id.) While on such a schedule, specialists worked either of three separate eight-hour shifts, denominated as the day, evening and night shifts. (Id.) Ordinarily, the day shift ran from 8:00 a.m. to 4:00 p.m., the evening shift ran from 4:00 p.m. to 12:00 a.m., and the night shift ran from 12:00 a.m. to 8:00 a.m. (Id. at ¶ 4.) Each specialist routinely worked a five-day week, eight hours per day.1 (Id. at ¶ 6.)

At the beginning of 1995, there were four specialists covering the evening shift at the Center. At some point prior to March of 1995, the evening shift lost one employee and only plaintiffs Conner, Linster and Nida were left to cover the five-day evening shift. These three individuals did not want to work a five day week. Instead, they desired to work a four-day, ten-hour shift schedule, as they had done in the past. (See, e.g., Nida Dep. at 143.) Plaintiffs allege that Ray was aware that they were working this altered schedule and that he acquiesced in this arrangement around the beginning of April. (See Linster Dep. at 99-100; Nida Dep. at 112; Conner Dep. at 94.)

Defendants vigorously deny that Ray gave plaintiffs permission to work anything other than a five-day schedule. Rather, defendants allege that Ray denied plaintiffs' request to work a four-day schedule and that plaintiffs then conspired among themselves to work a four-day schedule and hide that fact from Ray. (See Defs.' Statement of Material Facts [12] at ¶ 10-11.) Indeed, defendants submit signed statements from each of the plaintiffs in which plaintiffs signed as true and correct the fact that they had changed their schedule to a four-day schedule without Ray's permission. (Id. at ¶ 11-12.)

In May of 1995, plaintiff Linster transferred to another work group and was replaced by plaintiff Cummings. (See Defs.' Statement of Material Facts [12] at ¶ 5.) When Cummings went to the evening shift, Conner and Nida explained to her that they were working a four-day week and that they had Ray's permission to work this schedule. (See Cummings Dep. at 29-31.)

In July of 1995, BellSouth's ombudsman line2 received a call complaining that plaintiff Nida was not at the Center when he was scheduled to work. (See Defs.' Statement of Material Facts [12] at ¶ 8.) Specifically, the complainant alleged that Nida was flying his airplane when he was supposed to be at work. (See Fielder Dep. at 9.) Gary Fielder,

Page 1362

a manager in BellSouth's security department, responded to the ombudsman complaint and spoke with Nida on July 20, 1995. (See Defs.' Statement of Material Facts [12] at ¶ 8.) This conversation, along with Fielder's independent investigation, caused Fielder to come to the conclusion that the complaint concerning Nida was unsubstantiated. (Id.) During the course of this investigation, however, Nida made a statement that caused Fielder concern. Nida, in an apparent attempt to defend himself, told Fielder that "three co-workers had done the same thing he had done, that they were scheduled a five-day week and were working a four-day week." (Fielder Dep. at 12; see also Defs.' Statement of Material Facts [12] at ¶ 9.)

The sequence of events that followed this revelation and the investigation to which it led is not entirely clear. Apparently, Ray was informed of Nida's statement, passed this information on to Echols (see Ray Dep. at 29), and then Echols requested that Fielder investigate whether plaintiffs were working their posted schedule. (See Defs.' Mot. for Summ. J. [12] at Ex. 2, Ray Aff. ¶ 9.) Fielder then spoke with each of the plaintiffs on July 26, and with Ray, concerning plaintiffs' schedule. (See Fielder Dep. at 13, 22-24.) Ray informed Fielder that he had not given plaintiffs permission to work anything other than a five-day week (see Fielder Dep. at 22), and each plaintiff signed as true and correct a statement written by Fielder which stated that the four plaintiffs had worked a four-day schedule without permission from Ray.3 (See Fielder Dep. at Exs. 1, 2, 3, 4.)

Plaintiffs now claim that they had Ray's tacit permission to work a four-day week and that their schedule was not hidden from him. (See, e.g., Nida Dep. at 136-37 ("We didn't hide it [their four-day schedule] from him, sir. We told him that we had our own schedule."); see also supra, at 1361.) Plaintiffs Linster and Nida state that they signed the statements prepared by Fielder because he told them that it would be in their best interests to do so. (See Linster Dep. at 91; Nida Dep. at 126.) Plaintiff Conner states that he signed the statement because he "was not worried about the document" as BellSouth had always treated its employees fairly. (See Conner Dep. at 105.) Plaintiff Cummings affirmed the accuracy of her statement at her deposition, but her statement expressed her belief that Nida and Conner had obtained permission from Ray to work a four-day week. (See Cummings Dep. at 87; see also n. 4.)

At the same time that Fielder was conducting his investigation, it appears that Ray also independently investigated plaintiffs.4

Page 1363

After looking into the matter, Ray discussed the investigation with his immediate supervisor, Echols. (See Ray Dep. at 29-30.) Ray and Echols jointly came to the conclusion that the appropriate punishment for plaintiffs' actions should be time off without pay. (See Ray Dep. at 35.)

Echols then initiated discussions with Stacy, her immediate supervisor, concerning plaintiffs' punishment. (See Echols Dep. at 32.) Based on the information Stacy was given by Echols, together with Fielder's investigative report, including plaintiffs' signed statements, Stacy decided that the appropriate action to take was to terminate plaintiffs' employment with BellSouth. (See Stacy Dep. at 6.) The basis of Stacy's decision was "that the employees had deliberately altered their schedule from the original schedule posted by their supervisor and agreed to, and by doing that, had left a rather critical center only partially covered at certain points in time." (Stacy Dep. at 7.)

Though the meetings between plaintiffs and Fielder occurred on July 26, 1995, plaintiffs continued to work, without further questioning, until August 30, 1995.5 On August 30, both Echols and Ray met individually with each plaintiff and informed them that they were being discharged for "misconduct and dishonesty including misrepresenting work schedules and falsification of records." (Defs.' Statement of Material Facts [12] at ¶ 22.) Plaintiffs were essentially told, without warning, to clean out their desks. (See Echols Dep. at 91.)

Based on these actions, plaintiffs filed their complaint. Plaintiffs seek to impose liability upon defendants BellSouth, Echols and Ray through five separate causes of action. They are (1) age discrimination in violation of the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. § 621 et seq.; (2) discrimination in violation of the Employee Retirement Income Security Act (hereinafter "ERISA"), 29 U.S.C. § 1140 et seq.; (3) defamation; (4) breach of an implied contract; and (5) promissory estoppel. (See Compl. [1] at ¶¶ 42-51.) Defendants now move for summary judgment on each of plaintiffs' claims.


I. Summary Judgment Standard

Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary...

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