Fleenor v. Warrior Met Coal Mining LLC

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

JEFFREY L. FLEENOR, )

)

Plaintiff, )

)

v. ) Case No. 7:18-cv-817-GMB

)

WARRIOR MET COAL MINING, )

LLC, et al., )

)

Defendants. )

MEMORANDUM OPINION

Pending before the court is the Motion for Summary Judgment (Doc. 29) filed

by Defendants Warrior Met Coal Mining, LLC; Warrior Met Coal Intermediate

Holdco, LLC; and Warrior Met Coal, Inc. (collectively, the “defendants”). Plaintiff

Jeffrey L. Fleenor has filed a response to the motion (Doc. 38), and the defendants

have filed a reply brief in support. Doc. 40. Fleenor also has filed a Motion to Strike

(Doc. 36) and Motion for Leave to File Sur-Reply or Alternatively Motion to Strike

(Doc. 41). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the

jurisdiction of a United States Magistrate Judge. After careful consideration of the

parties’ submissions and the applicable law, and for the reasons that follow, the court

concludes that the Motion for Summary Judgment is due to be granted in part and

denied in part, and that the other pending motions are moot.

I. JURISDICTION AND VENUE

The court has jurisdiction over the claims in this lawsuit pursuant to 28 U.S.C.

§ 1331. The parties do not contest personal jurisdiction, nor do they contest that

venue is proper in the Northern District of Alabama. The court finds adequate

allegations to support the propriety of both.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Warrior Met Coal Mining, LLC (“WMC”) produces and exports

metallurgical coal. Doc. 30 at 4. WMC is a wholly-owned subsidiary of Warrior

Met Coal Intermediate Holdco, LLC (“WMC Holdco”), which is a holding company

wholly owned by Warrior Met Coal, Inc. (“WMC, Inc.”). On March 8, 2016, WMC

hired Fleenor, who was 64 at the time he filed suit, as a shift foreman at Mine No. 4

in Brookwood, Alabama. Doc. 38-2 at 2–3. Fleenor began working in underground

mining in 1974 and had approximately 42 years of mining experience when WMC

hired him. Doc. 38-2 at 2.

As a shift foreman, Fleenor organized and managed each day’s shifts,

including those for WMC’s longwall section, belt crews, and locomotive crews.

Doc. 31-1 at 22. The shift foreman position “is the first line of management

overseeing underground operations.” Doc. 30 at 4–5. If Fleenor delayed “lining up”

the employees for a shift, these delays harmed production and forced WMC to pay

overtime to any employees who were not relieved on time by their replacements.

Doc. 31-1 at 22–23. Delays also could cause safety issues if they contributed to

employees who were fatigued on the job. Doc. 31-1 at 22.

Mine Manager Brian Frederickson testified that Phillip O’Rear, who was

Fleenor’s direct supervisor, Doc. 31-1 at 25, counseled Fleenor for failing to start a

longwall shift on time around December 2016. Doc. 31-2 at 14–15. Frederickson

recalled that Fleenor did not start the shift at all. Doc. 31-2 at 15. O’Rear, who

submitted a declaration, did not testify to this occurrence.1 See generally Doc. 31-

13. According to Frederickson, Fleenor told O’Rear that he did not believe he had

the necessary manpower to start the shift. Doc. 31-2 at 15. However, Frederickson

believed that Fleenor had enough people. Doc. 31-2 at 15. Frederickson advised

Fleenor that he should timely start all longwall shifts in the future. Doc. 31-2 at 16.

According to Fleenor, this conversation never occurred and no one ever mentioned

this shift to him, either at the time or later. Doc. 38-2 at 4. There is no

contemporaneous documentation of this incident, and according to Frederickson

“the only one that can attest to it is Phillip [O’Rear].” Doc. 31-2 at 17.

Frederickson testified that several weeks later, in January 2017, Fleenor again

failed to start a longwall shift on time. Doc. 31-2 at 17. Frederickson explained that

Keith Shalvey, the Deputy Mine Manager, counseled Fleenor on this occasion.

1 Frederickson suggested in his deposition that counsel should “ask Phillip O’Rear” about this

occurrence, Doc. 31-2 at 14 & 15, but no deposition of O’Rear is in the record before the court.

Doc. 31-2 at 18. While he does not know what Shalvey told Fleenor “word for

word,” Frederickson believes that Shalvey “basically” informed Fleenor that this

was his second late shift start and that he needed to follow instructions.2 Doc. 31-2

at 18. Fleenor again contends that this conversation did not occur, Doc. 38-2 at 4,

and the incident was not documented in writing. Doc. 31-2 at 18.

In late February or early March of 2017, Frederickson contends that Fleenor

failed to start a third longwall shift on time. Doc. 31-2 at 19. Frederickson spoke

with Fleenor to advise him to start his shifts on time, and Frederickson also told him

that he should not need oversight to comply. Doc. 31-2 at 19. Fleenor said that the

shift was delayed because of a damaged mine chute. Doc. 31-2 at 19. Specifically,

he claimed that a hole in the chute was leaking a “massive amount of coal.” Doc.

38-2 at 5. Frederickson disagreed that the hole in the chute necessarily delayed the

shift, maintaining that Fleenor could have proceeded safely by “station[ing]

someone there to shovel what accumulations [of coal] would have spilled.” Doc. 31-

2 at 19. Fleenor contends that he did not have the manpower necessary to shovel the

leaking coal back onto the conveyor belt. Doc. 38-2 at 5. Additionally, while Fleenor

inspected the conveyor belts in advance of the shift, a worker already had begun to

repaire the hole. Doc. 38-2 at 5. Fleenor stated that Frederickson, who never saw

the hole, nevertheless told Fleenor that he “made the right call” by completing the

2 There is no testimony from Shalvey in the record.

repair before the shift. Doc. 38-2 at 5.

In October 2017, after a six-month absence due to an on-the-job injury,

Frederickson told Fleenor that “his shift was not starting on time.” Doc. 31-2 at 20.

Frederickson again counseled Fleenor, who explained that the delay was caused by

his inability to recognize certain people on his shift because of employee turnover

that occurred during his absence. Doc. 31-2 at 21. Fleenor vowed to become familiar

with his new employees so that he could get his shifts started on time. Doc. 31-2 at

21. Fleenor testified that O’Rear had given him with an incorrect shift roster,

causing “a lot of confusion.” Doc. 38-2 at 6. He explained that the delay also related

to an inoperable mine elevator, which “caused major issues in getting the workers

underground in a timely manner.” Doc. 38-2 at 6. Even so, the next day, O’Rear

told Fleenor that he “did a great job starting the shift in a timely manner” and did

“much better” than two other shifts that day. Doc. 38-2 at 6.

However, about a week and a half later in mid-October, Fleenor failed to start

another shift on time according to Frederickson. Fleenor explained that he still was

struggling to get to know his new employees. Doc. 31-2 at 22–23. Fleenor also

maintains that, during this time, the primary mine elevator remained inoperable.

Doc. 38-2 at 6–7. He claims that no one counseled him about this incident, which

was “obviously not [his] fault.” Doc. 38-2 at 7. According to Frederickson, several

WMC employees, including members of the longwall crew, complained in late

October 2017 to management that it took significantly more time to perform routine

maintenance on Fleenor’s shifts than on the shifts of other foremen. Doc. 31-2 at

23–24. Frederickson said that these complaints ultimately convinced him to meet

with O’Rear and Darin Arnold to discuss a demotion for Fleenor. Doc. 31-2 at 24.

According to Fleenor, the incident leading to these complaints occurred because the

“belt crew” did not timely replace rollers on a conveyor belt in the last week of

October 2017. Doc. 38-2 at 7. As with all other maintenance, Fleenor could not start

the shift until the rollers were changed. Doc. 38-2 at 7. Fleenor states that no one

confronted him about this incident or “claimed that [he] did anything wrong.”

Doc. 38-2 at 7.

WMC maintains that Fleenor initially resisted its methods and struggled to

adjust to its expectations, insisting on “doing things the way he had done them in the

past for his previous employer, Jim Walter Resources.” Docs. 30 at 8–9 & 31-13

at 1. O’Rear also heard that Fleenor opposed a request to complete a functional

capacity examination following his leave of absence, a standard requirement for all

WMC employees. Doc. 31-13 at 2. Fleenor maintains that he was not required to

take an examination, only told that he might have to do so if ordered by a doctor.

Doc. 38-2 at 7. According to Arnold, the Deputy Mine Manager and O’Rear’s direct

supervisor, other managers observed that Fleenor appeared “lost” and particularly

struggled when assistant shift foreman Vince Netherly was not able to assist him.

Doc. 31-14 at 3.

After a discussion with O’Rear and Arnold, Frederickson decided to demote

Fleenor from mine foreman to outby foreman. Doc. 31-2 at 25. While Frederickson

consulted O’Rear and Arnold, he made the decision alone. Doc. 31-2 at 27.

Frederickson testified that he made this decision based on the overall performance

of Fleenor’s shifts and his inability to improve after various conversations and

counseling sessions. Doc. 31-2 at 25–26. On October 31, 2017, Frederickson met in

his office with Fleenor and Human Resources Manager Sherry Sterling. Docs. 31-1

at 42–43 & 31-2 at 28. Frederickson told Fleenor that he was being demoted to

outby foreman because of performance issues. Doc. 31-1 at 43. Specifically,

Frederickson says that he told Fleenor he was demoted because he had “been having

issues getting [his] shift started on time, with repairs being made to the belt line not

going well.” Doc. 31-2 at 28.

According to Sterling, Frederickson told Fleenor that he “couldn’t get his shift

started on time” and that “there had been other situations where [Frederickson]

specifically told [Fleenor] to do something and [Fleenor] didn’t do it and

[Frederickson] had gotten complaints from other employees.” Doc. 31-3 at 14.

Fleenor expressed concern that the demotion would result in a significant pay

decrease. Doc. 31-1 at 43. Frederickson told Fleenor that he was not being fired and

that he still brought value to WMC, but that he would better serve the company as

an outby foreman. Doc. 31-2 at 28. Fleenor responded that he would not accept a

demotion. Doc. 31-1 at 43. Frederickson explained that he could either accept the

demotion or quit. Doc. 31-2 at 28.

The parties disagree about what happened next. Frederickson testified that

Fleenor walked out of the room and began to yell in the hallway. Doc. 31-2 at 29.

After three to four minutes, Sterling asked Frederickson to help him calm Fleenor.

Doc. 31-2 at 29. About five minutes after that, Frederickson told Fleenor that he

needed to leave the property. Doc. 31-2 at 29. At that point, Fleenor got angrier and

told Frederickson, “That’s your problem––you don’t respect anybody here.” Doc.

31-2 at 29. As Fleenor continued to “ramble at the mouth,” Frederickson reiterated

that he needed to “get the hell off the property.” Doc. 31-2 at 29. Frederickson

testified that he asked Fleenor if he was quitting, and Fleenor responded, “I guess

my lawyer will let you know that.” Doc. 31-2 at 28.

Fleenor testified that he walked out of the room after Frederickson told him

that he could either accept the demotion or quit. Doc. 31-1 at 44. When Sterling

asked him if he was resigning, he replied “absolutely not,” but also told her that he

was going to talk to his attorney. Doc. 31-1 at 44. She then asked Fleenor for his

rescuer device.3 Doc. 31-1 at 44. Sterling testified that Fleenor “went back to the

3 A rescuer device is a “portable oxygen source that provides breathable air when the

[underground] environment lacks oxygen or is contaminated with toxic gases.” Doc. 38-2 at 8. All

bath house area and got all of his belongings and . . . handed me his rescuer.” Doc.

31-3 at 14. According to Fleenor, Sterling took the rescuer device from him and,

when a manager takes a rescuer device “in the coal business, [it] means that the

miner no longer works for the company and is fired.” Doc. 38-2 at 8. When Fleenor

walked back into the hallway to gather his belongings, Frederickson walked out and

told him to “get the hell off the company property.” Doc. 31-1 at 44. Fleenor replied

that he was trying to gather his belongings and “just trying to be cool,” but left once

Frederickson commanded him to leave the property. Doc. 31-1 at 44. Fleenor

maintains that he never resigned and never told any WMC employee that he

resigned. Doc. 38-2 at 8. Rather, he claims that he was terminated. Doc. 38-2 at 8.

Fleenor maintains that he was not responsible for the delays in starting the

longwall shifts. According to Fleenor, the delays occurred on Sundays, which were

reserved for mine maintenance. Doc. 38-2 at 3. Production shifts could begin only

after all maintenance had been completed. Doc. 38-2 at 3. Fleenor states that it is

the maintenance workers’ responsibility to complete their work and then notify the

foreman when it is finished. Doc. 38-2 at 3.

Frederickson testified that he “rotated the shift foremen all around [on a

monthly] basis” after Fleenor’s employment ended. Doc. 31-2 at 29. He believes

miners “must have them on at all time[s] while working underground.” Doc. 38-2 at 8. Sterling

denies asking for Fleenor’s rescuer device. Doc. 31-3 at 14.

Chris Smith “possibly”4 filled in, along with Perry Scarborough, Chris Gable, and

Gilbert Saba. Doc. 31-2 at 29. He estimates that Scarborough was in his “late 40s,

approximately 50,” Gable was “[p]robably mid-40s,” and Saba was in his “early- to

mid-50s.” Doc. 31-2 at 29–30. Chris Smith was 33. Doc. 38-3.

III. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute of material fact is genuine only if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.

The moving party “always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, which it believes demonstrate the absence of a genuine

[dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotation marks omitted). In responding to a properly supported motion

4 Although this is the only evidence in the record reflecting Smith’s utilization as a backfill for

Fleenor, in briefing the defendants do not dispute that Smith served as one of Fleenor’s

replacements, as discussed below.

for summary judgment, the nonmoving party “must do more than simply show that

there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the nonmovant

must “go beyond the pleadings” and submit admissible evidence demonstrating

“specific facts showing that there is a genuine [dispute] for trial.” Celotex, 477 U.S.

at 324 (internal quotation marks omitted). If the evidence is “merely colorable, or

is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249 (citations omitted).

When a district court considers a motion for summary judgment, it “must view

all the evidence and all factual inferences reasonably drawn from the evidence in the

light most favorable to the nonmoving party, and must resolve all reasonable doubts

about the facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d

1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The

court’s role is not to “weigh the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

“If a reasonable fact finder evaluating the evidence could draw more than one

inference from the facts, and if that inference introduces a genuine issue of material

fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Ed.

for Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted).

Importantly, if the nonmovant “fails to adduce evidence which would be sufficient

. . . to support a jury finding for [the nonmovant], summary judgment may be

granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370

(11th Cir. 1997) (citation omitted).

IV. DISCUSSION

In his Amended Complaint, Fleenor asserts claims under the Age

Discrimination in Employment Act (“ADEA”) and Alabama Age Discrimination in

Employment Act (“AADEA”). Doc. 10 at 5–8. Fleenor also brings state-law claims

for wrongful termination and negligent hiring, training, supervision, or retention.

Doc. 1 at 8–11. The defendants argue that summary judgment is due to be granted

on all of Fleenor’s claims.

A. Wrongful Termination

In his response to the motion for summary judgment, Fleenor advanced no

argument in support of his wrongful termination claim. A plaintiff abandons any

claims he fails to address in a response to a properly-supported motion for summary

judgment. Brackin v. Anson, 585 F. App’x 991, 994–95 (11th Cir. 2014); see also

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[T]he

onus is on the parties to formulate arguments; grounds alleged in the complaint but

not relied upon in summary judgment are deemed abandoned.”). Accordingly, the

defendants are due summary judgment on this claim.5

B. Age Discrimination

With respect to Fleenor’s age discrimination claims, the defendants argue that

Fleenor has not satisfied his burden to demonstrate a prima facie case of age

discrimination and that, even if he had, the defendants prevail at the burden-shifting

stage. Fleenor contends both that he has successfully established a prima facie age

discrimination case and that he has demonstrated that WMC’s stated reasons for its

decision are a pretext for discrimination.

The ADEA and AADEA prohibit employers from discriminating against

employees because of their age.6 29 U.S.C. § 623(a)(1); Ala. Code § 25-1-21.

A plaintiff may prove an age discrimination claim by direct or circumstantial

evidence. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).

Where, as here, an age discrimination claim is based on circumstantial evidence,

5 In response to the motion for summary judgment, Fleenor also filed a motion to strike, arguing

that certain evidence relied upon by the defendants in their motion is irrelevant. See generally Doc.

36. Because the court will sift through the evidence in the record and decline to consider legally

irrelevant evidence on its own accord, this motion is moot. Additionally, Fleenor has filed a

Motion for Leave to File Sur-Reply or Alternatively Motion to Strike (Doc. 41), arguing that the

defendants have advanced arguments in their reply brief that did not appear in their initial brief.

Wile the court generally agrees with the premise of the motion, it has addressed these arguments

in the discussion below and therefore finds this motion to be moot.

6 Courts analyze claims under the ADEA and AADEA using the same analytical framework. King

v. CVS Caremark Corp., 2 F. Supp. 3d 1252, 1258 (N.D. Ala. 2014). While it is “not clear whether

a plaintiff may simultaneously pursue claims under the AADEA and ADEA,” Collier v. Harland

Clarke Corp., 379 F. Supp. 3d 1191, 1202 n.8 (N.D. Ala. 2019), the defendants have moved for

summary judgment on both claims jointly on substantive grounds and have not argued that the

claims are duplicative or that Fleenor’s AADEA claim is due for dismissal for any other reason.

See Doc. 30 at 13 n.4.

courts employ the well-worn burden-shifting framework first established by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id.

That framework first requires a plaintiff to establish a prima facie case of

employment discrimination by showing that he (1) is between the ages of 40 and 70;

(2) was subjected to an adverse employment action; (3) was replaced by a

substantially younger person, or a substantially younger person was treated more

favorably; and (4) was qualified for the position for which he was rejected. Id. If he

does so, this creates a presumption of discrimination. Id. The burden then shifts to

the employer to rebut this presumption by offering evidence of “a legitimate,

nondiscriminatory reason for the adverse employment action.” Id. If the employer

does so, the burden shifts back to the plaintiff to “show that the employer’s stated

reason is a pretext for discrimination.” Id.

1. Prima Facie Case

It is undisputed that Fleenor is between the age of 40 and 70 and suffered an

adverse employment action.7 Thus, the two elements at issue are whether Fleenor

was qualified for the mine foreman position and whether he was replaced by a

substantially younger employee. Nevertheless, the defendants raised all of their

7 The parties disagree over how Fleenor’s employment ended––with WMC claiming that he quit

and Fleenor contending that WMC fired him. This distinction is immaterial to Fleenor’s prima

facie case because WMC admits that it did make the decision to demote Fleenor, which is an

adverse employment action. See, e.g., Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)

(including demotion as one form of an adverse employment action).

arguments in opposition to Fleenor’s prima facie case for the first time in their reply

brief, and “[a]rguments not properly presented in a party’s initial brief or raised for

the first time in a reply brief are deemed waived.” Egidi v. Mukamai, 571 F.3d 1156,

1163 (11th Cir. 2009).

The only argument against Fleenor’s prima facie case that is properly before

the court is the claim that “there is no evidence that any employee in particular

directly replaced” Fleenor. Doc. 30 at 17. This statement is not supported by any

controlling case law requiring Fleenor to demonstrate that he was “directly replaced”

by a single substantially younger individual. Frederickson’s testimony suggests that

WMC employed four people as mine foremen after Fleenor’s employment ended––

Chris Smith, Chris Gable, Perry Scarborough, and Gilbert Saba. Doc. 31-2 at 29.

This court is not familiar with any requirement in the law that a plaintiff be replaced

by just one substantially younger individual, and the defendants have not offered any

such authority. The record reflects that Fleenor was not replaced by any one

individual because WMC rotated foremen in and out of different shifts on a monthly

basis in his absence. Doc. 31-2 at 29. While the record may be scant on this issue,

the defendants have not directed the court to any evidence rebutting Frederickson’s

testimony.

It is nevertheless Fleenor’s duty to establish a prima facie case of age

discrimination, so the court must examine the record evidence to determine whether

he has done so. “In assessing a plaintiff’s qualification for a position, we examine

his skills and background.” Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1299

(11th Cir. 2015). Fleenor had 44 years of mining experience and testified that he

regularly received praise for his performance at work, including from Frederickson,

WMC’s Chief Operating Officer (“COO”) Jack Richardson, and other employees.

Doc. 31-1 at 9, 20, 42 & 47. For example, Chris Thielen, a Deputy Mine Manager,

told Fleenor that he hated to see that he was leaving because he was “such a good

employee,” and James Jones stated that he would be in “seventh heaven” if he had

“30 people as good as” Fleenor.8 Doc. 31-1 at 9. On another occasion, Jones called

him “the best man on the property” and said he wished “everybody cared as much

about the mines as [Fleeonor] did.” Doc. 31-1 at 20. The son of COO Jack

Richardson, Chase Richardson, told Fleenor after his injury that Jack was “glad

you’re back” after Fleenor said that there were “two” who did not want him back

(referring to Frederickson and O’Rear). Doc. 31-1 at 42. Fleenor testified that he

had “top notch” personnel evaluations and that “not one soul” was happy about his

departure. Doc. 31-1 at 47.

Additionally, Fleenor could perform a wide variety of tasks and positions at

the mine. He had experience as a longwall shear operator, headgate operator, and

8 Fleenor did not know Jones’ exact position, stating that Jones “was something over the prep

plant.” Doc. 31-1 at 9.

longwall mechanic, among other mining positions. Doc. 31-1 at 15. He was able to

“run every piece of equipment underground and outside except for a bulldozer.”

Doc. 31-1 at 15. According to Fleenor, his shift regularly outperformed the day’s

other two shifts. Doc. 31-1 at 22. While some of these statements may be self-

serving, this alone does not discount their relevance at the summary judgment stage.

Liebman, 808 F.3d at 1299. Accordingly, Fleenor has successfully demonstrated

that he was qualified for his position for the purposes of his prima facie case.

Fleenor also has satisfied his burden to demonstrate that he was replaced by a

substantially younger employee. The record reflects that Fleenor was replaced at

the longwall shift foreman position by a combination of Chris Smith, Perry

Scarborough, Chris Gable, and Gilbert Saba. Doc. 31-1 at 55 & 31-2 at 29; Doc. 38-

3. WMC admits that, at a minimum, Chris Smith was “among several individuals”

who replaced Fleenor. Doc. 30 at 17. Smith was 33 when Fleenor left, while

Frederickson estimates that Gable was in his mid-40s, Scarborough was in his late-

40s, and Saba was in his early- to mid-50s. Doc. 38-3; Doc. 31-2 at 29–30. The

defendants argue that three of the four replacements were in Fleenor’s protected age

group and therefore cannot be considered substantially younger than him. But this

is a mischaracterization of the law. “The fact that one person in the protected class

has lost out to another person in the protected class is . . . irrelevant, so long as he

has lost out because of his age.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S.

308, 312 (1996). Seven years, which is the smallest approximated difference

between Fleenor and his oldest replacement, generally qualifies as “substantially

younger” under the ADEA. See, e.g., Liebman, 808 F.3d at 1299 (holding that a

seven-year difference “qualifies as substantially younger” and gathering cases

holding that differences as small as three years met the “substantially younger”

threshold). Thus, Fleenor has successfully demonstrated that he was replaced by

someone substantially younger. Fleenor has made out a prima facie case of age

discrimination.

2. McDonnell Douglas Burden-Shifting

At the first stage of the McDonnell Douglas burden-shifting framework, the

burden is on the defendants to come forth with evidence of “a legitimate,

nondiscriminatory reason for the adverse employment action.” Kragor, 702 F.3d at

1308. This is a burden of production, not persuasion, and the defendants need not

persuade the court that they were actually motivated by the nondiscriminatory

reason. Id. “It is sufficient if the defendant’s evidence raises a genuine issue of fact

as to whether it discriminated against the plaintiff.” Id. (internal quotation marks

omitted). WMC has put forth demonstrable evidence that it did not believe Fleenor

was meeting performance metrics as a shift foreman. Specifically, Fleenor’s

supervisors testified to five occasions on which he failed to start a shift on time.

Additionally, supervisors observed that Fleenor appeared “lost” without his assistant

foreman and heard complaints from employees on his shifts about maintenance

delays. Frederickson cited these performance issues as the reason for his decision

to demote Fleenor and place him in a less demanding role. Fleenor casts doubt on

the veracity of this testimony, claiming that he was not counseled about the majority

of these alleged incidents. Indeed, there is no contemporaneous documentation in

the record of the purported delays or the counseling sessions Frederickson identified.

But, at this stage, the defendants need only proffer a legitimate reason for the

decision. They have done so.

Fleenor thus has the opportunity to demonstrate that WMC’s stated reason for

its decision “is a pretext for discrimination.” Kragor, 702 F.3d at 1308.9 He can do

so “either directly by persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 256 (1981). “In other words, the plaintiff has the opportunity to come

forward with evidence . . . sufficient to permit a reasonable factfinder to conclude

that the reasons given by the employer were not the real reasons for the adverse

employment decision.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th

9 Courts frequently describe the burden as shifting back to the plaintiff at the pretext stage, “but it

is more accurate to say that once the employer offers evidence of a legitimate, nondiscriminatory

reason for the adverse action, the McDonnell Douglas framework––with its presumptions and

burdens––disappears, and the sole remaining issue is discrimination vel non.” Kragor, 702 F.3d at

1308 n.1 (internal quotation marks omitted and alterations adopted).

Cir. 1997). “If a plaintiff produces sufficient evidence that the employer’s proffered

reason is merely pretextual, that evidence may sometimes be enough to preclude

summary judgment in favor of the employer.” Kragor, 702 F.3d at 1309. “The

opportunity provided to a plaintiff to show pretext is simply an opportunity to

present evidence from which the trier of fact can find unlawful discrimination.” Id.

at 1308 n.1.

To demonstrate pretext, Fleenor makes two primary arguments: (1) that he

was confronted about only two discrete performance issues, and (2) that

Frederickson made several comments about his age, including one just weeks before

the end of his employment. Fleenor contends that he was confronted on only one of

the five alleged instances of late-starting shifts and on one other occasion––the case

of the damaged coal chute.

“When a plaintiff chooses to attack the veracity of the employer’s proffered

reason, the inquiry is limited to whether the employer gave an honest explanation of

its behavior.” Kragor, 702 F.3d at 1310–11 (internal quotation marks omitted).

Where multiple inferences can be drawn from a set of facts, “reasonable inferences

are to be drawn in favor of the party opposing summary judgment.” Id. at 1311.

Summary judgment may be precluded where a plaintiff “cast[s] sufficient doubt on

[the employer’s] proffered nondiscriminatory reasons to permit a reasonable

factfinder to conclude that [its] proffered legitimate reasons were not what actually

motivated its conduct.” Combs, 106 F.3d at 1538.

Fleenor claims that Frederickson made “approximately six remarks” about his

age in the last year of his employment. Doc. 38 at 25; see also Doc. 31-1 at 11. On

one occasion, when discussing a misunderstanding among WMC workers about

Fleenor’s job status while he was on an injury-related leave of absence, Frederickson

asked, “How old are you, again?” Doc. 31-1 at 11. Fleenor replied, “You know

exactly how old I am,” and explained that he was 63 years old and would turn 64

during the next month. Doc. 31-1 at 11. Frederickson offered that “maybe you just

need to go ahead and move on,” to which Fleenor replied that he planned to work

until he was 66. Doc. 31-1 at 11. Fleenor does not remember the other dates on

which Frederickson asked him about his age, but testified that the first occurred soon

after Frederickson joined WMC. Doc. 31-1 at 39. Fleenor did not remember specific

details of the other occasions Frederickson inquired about his age. Doc. 31-1 at 40.

Fleenor also testified that in 2016 he said to O’Rear, “Well, I guess I’m the oldest

man on the property, now.” O’Rear replied, “I can tell you one thing, I don’t think

that’s a good thing.” Doc. 31-1 at 28.

The court concludes that Fleenor has submitted sufficient evidence to create

a triable issue of fact as to whether his purported performance issues were a pretext

for age discrimination. According to Fleenor, he was confronted about performance

issues only twice. The discrepancy between WMC’s record evidence of five

performance issues, none of which were documented contemporaneously, and the

two addressed at the meeting regarding Fleenor’s demotion cast some doubt on

WMC’s proffered reason for Fleenor’s demotion and could lead a reasonable juror

to conclude that WMC is not providing an “honest explanation of its behavior.”

Elrod v. Sears, Robuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); see also

Menefee v. Sanders Lead Co., Inc., 786 F. App’x 963, 966–67 (11th Cir. 2019)

(“When an employer asserts that it fired the plaintiff for poor performance . . . [the

employee] must demonstrate that the employer did not believe that his performance

was lacking, and merely used that claim as a cover for discriminating against him

based on his age.”). Indeed, the only two performance issues Fleenor remembers

are the same two issues discussed at the meeting among Fleenor, Frederickson, and

Sterling. See Doc. 31-1 at 43.

Compounding this doubt are the six age-related comments Fleenor contends

Frederickson made, including one in early October 2017, just a few weeks before

the demotion meeting. In Damon v. Fleming Supermarkets of Florida,

Incorporated, 196 F.3d 1354, 1362 (11th Cir. 1999), a supervisor responsible for the

plaintiff’s termination told the plaintiff’s younger successor that he wanted

“aggressive, young men” to be promoted. The court found that this remark was

“highly suggestive circumstantial evidence from which a jury could infer

discriminatory animus” because it could show “probative evidence of the state of

mind of the decision-maker at the time” of the plaintiff’s termination. Id. The

comment also suggested that the decision maker “had an ageist preference for young

managers.” Id. “Given the substance, context, and timing” of the comment, if

credited, the court determined that it was “a significant piece of circumstantial

evidence.” Id. On the other hand, stray remarks “isolated and unrelated to the

challenged employment decision . . . are not direct evidence of discrimination,”

though they may “contribute to a circumstantial case for pretext.” Rojas v. Florida,

285 F.3d 1339, 1342 (11th Cir. 2002) (emphasis omitted).

Here, Fleenor has testified that Frederickson––his direct supervisor and the

man who made the decision to demote him––asked him for the sixth time about his

age just a few weeks before demoting him. According to Fleenor, when he told

Frederickson his age, Frederickson told him that it could be time for him to “move

on.” The court concludes that, like the comment in Damon, this comment, if

credited, could demonstrate Frederickson’s preference for a younger employee and

be probative of his state of mind immediately before he decided to demote Fleenor.

Moreover, if a jury believes Fleenor’s testimony, Frederickson’s comment could be

characterized as more than a stray remark since it was the sixth time Frederickson

had discussed Fleenor’s age in approximately a year and a half. The court finds that

this evidence, combined with Fleenor’s age and the age of his replacements, could

lead a rational trier of fact to infer discriminatory animus from WMC’s decision and

determine that its proffered reason for the decision to demote Fleenor is mere pretext

for age discrimination. Fleenor’s age discrimination claims survive summary

judgment.

C. Negligent Hiring

To establish a claim for negligent or wanton hiring, training, retention, or

supervision, a plaintiff must prove that the allegedly incompetent employee

“engage[d] in tortious conduct.” Williams v. United Launch All., LLC, 286 F. Supp.

3d 1293, 1311 (N.D. Ala. 2018). “The underlying wrongful conduct must constitute

a common-law, Alabama tort, not a federal cause of action such as Title VII.” Id.

(internal quotation marks omitted). Without an underlying state-law tort, a negligent

hiring, training, retention, or supervision claim fails. Id.

As this and other courts in this district have held, “the Alabama statutory cause

of action for age discrimination [is] not Alabama common law.” E.g., Shackelford

v. Publix Super Markets, Inc., 2014 WL 5148461, at *16 (N.D. Ala. Oct. 14, 2014);

see also Gibbons v. CVS Health Corp., 2019 WL 4014834, at *9 (N.D. Ala. Aug.

26, 2019) (holding, where a plaintiff alleged that the employer was “on notice” of

an employee’s allegedly discriminatory conduct, that the plaintiff could not rely on

his age discrimination claim as a basis for a negligent or wanton hiring, training,

supervision, or retention claim). Accordingly, Fleenor’s claim for negligent or

wanton hiring, training, supervision, or retention fails as a matter of law.

D. Enterprise Liability

Having found that material disputes of fact prevent summary judgment on at

least some of Fleenor’s claims relating to his employment with WMC, the court must

address the extent to which any entity other than WMC could be liable for those

claims. Fleenor argues that both WMC, Inc. and WMC Holdco have liability

exposure for WMC’s conduct. WMC, Inc. owns WMC Holdco, which operates as

a holding company for various subsidiaries, including WMC. Doc. 30 at 29; see also

Doc. 38-6 at 46.

By statute only an employer can be held liable under the ADEA. E.g., Hendon

v. Kamtek, Inc., 117 F. Supp. 3d 1325, 1328 (N.D. Ala. 2015). An employer is

defined as “a person engaged in an industry affecting commerce who has twenty or

more employees for each working day in each of twenty or more calendar weeks in

the current or preceding calendar year.” 29 U.S.C. § 630(b). But the Eleventh Circuit

has “identified three circumstances in which it is appropriate to aggregate multiple

entities for the purposes” of determining the responsible parties in an employment

discrimination context. Lyes v. City of Riveria Beach, Fla., 166 F.3d 1332, 1341

(11th Cir. 1999). The only one of the three circumstances applicable to the facts at

hand is the “integrated enterprise” test, where multiple entities are “highly integrated

with respect to ownership and operations.” Id. (internal quotation marks omitted).

To determine whether two entities can be considered joint employers for liability

purposes, courts consider the following factors: “(1) interrelation of operations,

(2) centralized control of labor relations, (3) common management, and (4) common

ownership or financial control.” McKenzie v. Davenport-Harris Funeral Home, 834

F.2d 930, 933 (11th Cir. 1987). The term “employer” must be given a “liberal

construction.” Id.

To be considered an integrated enterprise, the entities must be “‘highly

integrated with respect to ownership and operations.’” Id. (quoting Fike v. Gold Kist,

Inc., 514 F. Supp. 722, 726 (N.D. Ala. 1981)). No one factor is controlling, and not

every factor must be present. Lyes, 166 F.3d at 1341. A “crucial element” of this

examination is whether the entities “exhibit centralized control of labor relations,

including tasks such as handling job applications, approving personnel status reports,

and exercising veto power over major employment decisions.” Parker v. Columbia

Pic. Indus., 204 F.3d 326, 341 (2nd Cir. 2000) (internal quotation marks omitted).

Indeed, the required showing has been described as “evidence of control suggesting

a significant departure from the ordinary relationship between a parent and its

subsidiary . . . to permit an inference that the parent corporation was a final decision-

maker in its subsidiary’s employment decisions.” Lusk v. Foxmeyer Health Corp.,

129 F.3d 773, 778 (5th Cir. 1997).

Although initially adopted by the National Labor Relations Board to

determine whether separate corporate entities should be consolidated, Bruce v. S&H

Riggers and Erectors, Incorporated, 732 F. Supp. 1172, 1175 (N.D. Ga. 1990),

courts have applied the integrated enterprise test in the employment discrimination

context to determine whether “separate entities should be treated as a single,

integrated enterprise when determining whether a plaintiff’s ‘employer’ comes

within the coverage of Title VII [of the Civil Rights Act of 1964].” Lyes, 166 F.3d

at 1341. Moreover, “given the common language and purposes of” Title VII and the

ADEA, courts apply the single enterprise test to age discrimination cases. E.g.,

Bruce, 732 F. Supp. at 1175; Lusk, 129 at 777 (applying the integrated enterprise test

“[t]o determine whether a parent corporation and its subsidiary may be regarded as

a ‘single employer’ under the ADEA”).

WMC asserts that Fleenor has submitted no evidence that the three entities

are interrelated such that they can be considered a joint employer. The court

disagrees, and finds that there is a question of material fact as to the level of

interrelation between WMC and WMC, Inc. WMC, Inc. describes itself as a

“holding company” with no operations or assets of its own other than “direct

ownership of 100% of the equity interests of” WMC Holdco, “through which [it]

indirectly hold[s its] operating subsidiaries,” including WMC. Doc. 38-6 at 46; see

also Doc. 38-6 at 60 (listing WMC as one of WMC, Inc.’s “administrative

headquarters and production facilities”); Doc. 38-7 at 68. Thus, there is evidence in

the record that the three entities share common ownership and financial control to

the extent that WMC is wholly owned by WMC Holdco, which is wholly owned by

WMC, Inc.

This shared ownership is the only meaningful record evidence of WMC

Holdco’s relationship to the other two entities. There is no other evidence bearing

on WMC Holdco’s operations, and thus nothing before the court even suggesting

that any of the other McKenzie factors are satisfied by the relationship between

WMC Holdco and WMC. Instead, the record before the court, including WMC,

Inc.’s annual report excerpted above, reveals that WMC Holdco is a shell existing

solely for passive ownership of WMC, Inc.’s operating subsidiaries. See Doc. 38-6

at 46. The parties have not identified any evidence establishing, for example, that

WMC Holdco has its own employees or carries on any operations independent of its

subsidiaries. Fleenor therefore has not directed the court to any evidence other than

common ownership from which it could conclude that the relationship between

WMC and WMC Holdco satisfies any aspect of the integrated enterprise test—and

common ownership alone is insufficient to create a triable issue of fact. See Shiflett

v. Shores Holding Co., Inc., 601 F. App’x 28, 30–31 (2nd Cir. 2015) (granting

summary judgment for a holding company where common ownership was “the only

factor of the [integrated enterprise] test weighing” in the plaintiff’s favor).

Accordingly, WMC Holdco is due to be dismissed as a defendant.

Turning back to WMC, Inc., Fleenor has pointed the court to evidence tending

to show at least some level of common management structure and operational

interrelation between this entity and WMC. First, there are employees working at

the WMC mines who either are employed by WMC, Inc. or directly report to WMC,

Inc. employees. For example, Jack Richardson (Frederickson’s direct supervisor)

serves as the COO of WMC, Inc. Docs. 31-2 at 32 & 38-6 at 140. O’Rear (Fleenor’s

direct supervisor) reports to WMC, Inc. Chief Executive Officer (“CEO”) Walt

Scheller. And Sherry Sterling’s supervisor in human resources reports to Kelly Gant

(WMC, Inc.’s Chief Administrative Officer and Secretary), who reports to Scheller.

Doc. 31-3 at 9–10 & 19. Second, in addition to this apparent blending of the WMC

and WMC, Inc. management structures, the employees who were deposed in this

case did not differentiate between the entities. In fact, while the parties assume in

briefing that Frederickson, O’Rear, and Sterling are employed by WMC, they have

not identified any direct evidence in the record supporting this assumption.

Frederickson testified that he “work[s] for Warrior Met Coal” and admitted that he

does not know the difference between WMC, WMC Holdco, and WMC, Inc.

Doc. 31-2 at 32. Similarly, O’Rear’s declaration states simply that he is “employed

by Warrior Met Coal.” Doc. 31-13 at 1. And Sterling testified that she does not

know which entity hired her, stating, “Warrior Met Coal, that’s the only name that I

know.” Doc. 31-3 at 9. When asked if she viewed WMC and WMC, Inc. as the same

company, she replied, “I just know it as Warrior Met Coal.” Doc. 31-3 at 10. This

testimony muddies the water and the parties have not directed the court to any

documentation clearing up even the simple question of which entity employs these

individuals. As a result of this uncertainty and the known commonality in the

management structure, the court must conclude that there is significant evidence in

the record of some degree of interrelated operations and management between WMC

and WMC, Inc.

There is limited evidence in the record regarding how, specifically,

employment decisions are made, and it is therefore unclear whether there is

centralized control of labor relations. Nevertheless, Frederickson testified that he

did not have to “run any decisions by” Jack Richardson, and instead would “keep

him informed on certain things.” Doc. 31-2 at 32. He did not communicate his

decision to demote Fleenor to Richardson. Doc. 31-2 at 32. Moreover, Sterling

testified that she and Frederickson interviewed both hourly and salaried employees

and made the hiring decisions.10 Doc. 31-3 at 21. Thus, this evidence suggests that

WMC made its own personnel decisions without input from WMC, Inc., cutting

against a finding of integration.

However, as Fleenor points out, WMC, Inc. describes WMC’s mines as its

own in its 2017 and 2018 annual reports. See, e.g., Doc. 38-6 at 18 (stating that

10 When asked to identify the entity that “pays the salaries for the employees at the Number 4

mine,” however, Sterling generically identified “Warrior Met Coal,” again without specifying

whether this is a reference to WMC or WMC, Inc. Doc. 31-1 at 20.

WMC, Inc. is “a large scale, low-cost U.S.-based producer and exporter of premium

met coal operating two highly productive underground mines in Alabama, Mine No.

4 and Mine No. 7”). WMC, Inc.’s annual reports also describe miners working in

WMC mines as WMC, Inc. employees. See, e.g., Doc. 38-6 at 29 (“As of December

31, 2017, we had 1,354 employees, of whom 957 were hourly employees and 397

were salaried employees . . . .”). WMC employees are subject to WMC, Inc.’s

Employee Handbook. Doc. 31-3 at 20; see also Doc. 38-8. And the Central Mining

Office that WMC, Inc. CEO Walt Scheller manages and where his office is located,

also houses the WMC employees’ personnel files and the employees who conduct

background investigations on prospective WMC employees. Doc. 31-3 at 14 &

20–22.

The defendants do little to counter Fleenor’s evidentiary basis for the

integrated enterprise test. They maintain that there is no evidence indicating that

WMC, Inc. made personnel decisions or that Frederickson worked “for or on behalf

of either parent company,” Doc. 30 at 30, but the defendants all but abandoned their

enterprise liability arguments in their reply brief by failing to respond specifically to

Fleenor’s contentions. Doc. 40 at 16 n.8. Ultimately the court concludes that

Fleenor’s evidence on the McKenzie factors raises a genuine issue of material fact.

McKenzie, 834 F.2d at 933. Here, as in McKenzie, there is demonstrable evidence

of “common ownership, and, to some extent, common management.” Id. The court

therefore finds that the defendants have not carried their burden of coming forth with

sufficient evidence to resolve all factual disputes as to whether WMC, Inc. may be

exposed to liability under the integrated enterprise doctrine. See, e.g., Parker, 204

F.3d at 341 (finding that genuine “factual issues remain[ed] for trial’ where the

plaintiff introduced evidence, including disability forms and payroll forms listing

the defendant as his employer).

To be sure, on this record the court does not find that WMC and WMC, Inc.

are, in fact, an integrated enterprise. Fleenor’s burden to convince the jury of WMC,

Inc.’s liability will be a heavy one, as “[t]he doctrine of limited liability creates a

strong presumption that a parent corporation is not the employer of its subsidiary’s

employees.” Lusk, 129 F.3d at 778. Rather, the court’s conclusion is merely that

Fleenor has pointed to sufficient evidence in the record that, when viewed in the

light most favorable to Fleenor, indicates that the defendants have failed to meet

their burden to demonstrate beyond any genuine dispute of material fact that WMC,

Inc. is not liable for the claims against WMC. Summary judgment for WMC, Inc.

is due to be denied.

DONE and ORDERED on August 28, 2020.

UNITED STATES MAGISTRATE JUDGE

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