# Scales v. TMS International LLC

> District Court, N.D. Alabama · August 5, 2020

URL: https://www.frixlaw.com/law-library/cases/9989623

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** August 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9989623

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

JASON SCALES, )
)
Plaintiff,
)
v. ) 7:18-cv-01652-LSC
TMS INTERNATIONAL, LLC, )
)
Defendant. )

MEMORANDUM OF OPINION AND ORDER
I. Introduction
Plaintiff Jason Scales (“Scales”), an African-American, brought this action
against his former employer, TMS International, LLC (“TMS”), alleging race
discrimination, retaliation, and hostile work environment in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and
discriminatory discharge because of his race. On May 13, 2020, this Court entered
a Memorandum of Opinion and Order (docs. 46 & 47) (hereinafter “the summary
judgment order”) granting TMS’s motion for summary judgment as to the hostile
work environment claim but denying the motion as to the remaining claims.
Presently before the Court is TMS’s Partial Motion to Reconsider the summary
judgment order. (Doc. 49.) The motion has been fully briefed and is ripe for
decision. For the reasons stated below, TMS’s motion is due to be denied.

II. Discussion
A. Similarly Situated Comparators

TMS moves for reconsideration of the Court’s denial of summary judgment
because it claims that Scales failed to establish a prima facie case for wrongful
termination. Specifically, TMS takes issue with the Court’s conclusion that Scales

had sufficiently demonstrated that he was treated less favorably than similarly
situated individuals outside his protected class. According to TMS, Scales’s
proffered comparators are not similarly situated “in all material respects.” See

Lewis v. City of Union City, 918 F.3d 1213, 1226 (11th Cir. 2019) (en banc). As the
Court explained in its summary judgment order, “a valid comparison will turn not
on formal labels, but rather on substantive likenesses,” with the precise similarity

“to be worked out on a case-by-case basis.” Id. at 1227–28. The Eleventh
Circuit’s “guideposts” for this analysis provide that a similarly situated
comparator “will have engaged in the same basic conduct (or misconduct) as the

plaintiff”; “will have been subject to the same employment policy”; “will
ordinarily (although not invariably) have been under the jurisdiction of the same
supervisor”; and “will share the plaintiff’s employment or disciplinary history.”
Id. at 1227–28 (emphases added).

In concluding that Scales and Humphries were similarly situated, the Court
explained that, “according to the record, Burkey was supervisor to both Scales and

Humphries, and Burkey administered and was involved with the discipline for both
employees concerning their respective uses of the racial slur.” (Doc. 46 at 14.)
TMS insists that Humphries and Scales were not similarly situated because it

claims John Carroll (“Carroll”) alone made the decision to fire Scales, while Joe
Burkey (“Burkey”) alone made the decision to suspend Humphries. But as Scales
points out, this argument relies in part on disputed facts, which must be construed

in favor of Scales.
TMS also argues that Humphries and Scales engaged in materially different
misconduct, thereby foreclosing the conclusion that they are similarly situated. In

support of this argument, TMS cites two post-Lewis Eleventh Circuit cases, Knox
v. Roper Pump Co., 957 F.3d 1237 (11th Cir. 2020), and Hartwell v. Spencer, 792 F.
App’x 687 (11th Cir. 2019). Both are distinguishable from the present case.

In Knox, the African-American plaintiff got into a violent altercation outside
of work with his adult daughter, another employee of the defendant. The
defendant suspended the plaintiff without pay and told him he could keep his job if
he completed anger management classes while on unpaid leave. The plaintiff
proffered three white comparators who he alleged were treated less harshly. The

first comparator was Ingram, a white employee who was not disciplined after a
domestic violence incident with his wife, a non-employee. The other comparators

were Warner and Cruce, also white employees who got into a violent altercation
with one another at work. Warner and Cruce were terminated but then rehired out
of business necessity, and they were permitted to work while attending anger

management classes. The Eleventh Circuit concluded that Ingram was not
similarly situated to the plaintiff in all material respects: “although he was involved
in a domestic violence incident outside work, the altercation did not involve one of

[defendant’s] employees.” Id. at 1247. The court reached the same conclusion as
to Warner and Cruce but for different reasons. It reasoned that “[t]he facts of
[Warner’s and Cruce’s] immediate termination and subsequent rehiring out of

necessity undermine [plaintiff’s] claim both that they had been treated less
harshly—indeed, they were both immediately fired—and that they were similarly
situated in all material respects.” Id. at 1248.

In Hartwell, the plaintiff firefighter, a black male, was fired due to chronic
tardiness. The plaintiff’s proffered comparator was a white firefighter who was
also frequently late but was not fired. The court concluded that the comparator
was different in two material respects. Hartwell, 792 F. App’x at 694. First, the
comparator worked on a different shift and had a different immediate supervisor.

“This difference [was] especially significant here, where [plaintiff] claims that his
immediate supervisor . . . was the discriminatory actor.” Id. Second, the evidence

showed that the comparator was late to work “much less frequently” than the
plaintiff. Id. Testimony established that the plaintiff was late “almost every shift”
and substantially more than any other firefighter, including the comparator. Id.

Additionally, the comparator’s timeliness improved after he was counseled about
his tardiness. Accordingly, because the comparator had a different supervisor and
his conduct was “significantly less egregious than [plaintiff’s],” he was not

similarly situated in all material respects. Id.
Neither of these cases suggest to the Court that it erred in concluding that
Scales and Humphries were similarly situated. Both Scales and Humphries

allegedly engaged in the same basic misconduct. Both allegedly used the “n” word
while at work. And TMS does not mention that Humphries used the “n” word a
second time after management told him it was offensive. Viewing the facts and all

reasonable inferences in Scales’s favor, this Court cannot conclude that
Humphries’s use of the “n” word was “significantly less egregious” than Scales’s.
B. Pretext
TMS also argues that summary judgment is due to be granted because, based

on Steven Drexler’s expert report, no reasonable jury could conclude that Carroll
lacked a good faith belief that Scales wrote the note at the time of his termination.

Because all versions of the Drexler’s report contained a statement that Scales’s
handwriting sample was inconsistent with the note, Scales insists that a reasonable
jury could disbelieve TMS’s claim that they relied on it to terminate him. Scales

also points to evidence that, after Scales was terminated, Carroll told Billy Brown, a
TMS supervisor, that he did not believe Scales wrote the note. (Doc. 32-3 at 2, Aff.
of Billy Brown.) Although Scales raises this specific argument for the first time, the

affidavit was part of Scales’s evidentiary submission attached to his response brief
in opposition to TMS’s motion for summary judgment. Accordingly, the Court
finds it appropriate to consider such evidence in deciding the motion to reconsider.

As the Court explained in its summary judgment order:
[A] reasonable jury could disbelieve TMS’s explanation that it
terminated Scales because of Drexler’s expert opinion because all
versions of the written opinion contained language exonerating Scales,
i.e., the statement that Scales’s handwriting sample was inconsistent
with the note. Although the report also contains statements
inculpating Scales, the existence of conflicting statements implies that
one of them is incorrect. Additionally, although Drexler testified that
he also verbally told Burkey that Scales wrote the note, neither Burkey
nor Carroll testified that they relied only on Drexler’s verbal report or
that they did not read the written versions in reaching the decision to
terminate Scales.

(Doc. 46 at 17 (footnote omitted).) Nor did Burkey or Carroll testify that they
noticed the conflicting statements in Drexler’s written report but believed that the
language exonerating Scales was likely a typo.
Moreover, Billy Brown’s affidavit is additional evidence that would allow a

reasonable jury to disbelieve TMS’s proffered reason for terminating Scales. TMS
argues that the affidavit “does not state when that alleged conversation took place
and, therefore, is not evidence as to Carroll’s state of mind at the time of Scales’s

termination.” (Doc. 54 at 4.) From context, it is reasonable to infer that the
alleged conversation took place after Scales was terminated. But the timing does
not foreclose the possibility that Carroll’s alleged statement was reflective of his

state of mind at the time of Scales’s termination. If, as Billy Brown claims, Carroll
stated that he did not believe Scales wrote the note after Scales was terminated, it is
reasonable to infer that Carroll also held such a belief before Scales was terminated.

Accordingly, Scales proffered sufficient evidence of pretext to survive summary
judgment, and TMS’s motion to reconsider is due to be denied.
III. Conclusion

For the reasons stated above, TMS’s motion to reconsider is hereby
DENIED.
DONE and ORDERED on August 5, 2020.

L. Scott G
United States Distct Judge
199335

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989623. Public record. Not legal advice.