Stinson v. United States Steel Corporation

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

VERN STINSON, )

)

Plaintiff, ) Civil Action Number

v. ) 2:19-cv-1396-AKK

)

UNITED STATES STEEL )

CORPORATION, )

)

Defendant. )

MEMORANDUM OPINION

Vern Stinson filed this lawsuit against United States Steel Corporation, his

former employer, alleging race discrimination and retaliation in violation of 42

U.S.C. §§ 2000e et seq., as amended by the Civil Rights Act of 1991 (“Title VII”)

and 42 U.S.C. § 1981. Doc. 1. U.S. Steel moves for summary judgment on all

claims, contending that (1) the discrimination claims fail because Stinson cannot

identify a similarly-situated comparator, (2) the retaliation claims fail because

Stinson cannot show a causal connection between his protected activity and any

adverse event, (3) Stinson cannot show its proffered reasons for its actions are

pretextual, and (4) Stinson failed to show it subjected him to a hostile work

environment. Docs. 21; 22. For the reasons discussed below, except for the race

discrimination claims related to the discipline for failure to properly report an

absence and the discharge, and the race discrimination and retaliation claims related

to the October 2017 discipline, the motion is due to be denied.

I.

Summary judgment is proper “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. “Rule 56[] mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears

the initial burden of proving the absence of a genuine issue of material fact. Id. at

323. The burden then shifts to the nonmoving party, who is required to “go beyond

the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation

and internal quotation marks omitted). A dispute is genuine “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On summary judgment motions, the court must construe the evidence and all

reasonable inferences arising from it in the light most favorable to the non-moving

party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). See also Anderson,

477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s

favor when sufficient competent evidence supports the non-moving party’s version

of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir.

2002) (a court is not required to resolve disputes in the non-moving party’s favor

when that party’s version of events is supported by insufficient evidence). However,

“mere conclusions and unsupported factual allegations are legally insufficient to

defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th

Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,

1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the

opposing party’s position will not suffice; there must be enough of a showing that

the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577

(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

II.

A.

Stinson, an African-American man, worked at U.S. Steel’s pipe mill in

Fairfield, Alabama from 2012 until his discharge in June 2018. Doc. 23-1 at 11, 13.

Stinson began working as a utility technician and then worked as threader inspector

in the mill’s finishing area or department. Id. at 12-13. During the relevant time,

Chris Cone, a Caucasian man, was Stinson’s supervisor and an operation shift

manager in the finishing area, doc. 23-3 at 11-12; Shea Moses, a Caucasian man,

was the area manager, doc. 23-6 at 6, 10; Micah Aplin, a Caucasian man, was the

process manager in the finishing area, doc. 23-5 at 10; and Pat Thomas, a Caucasian

man, was U.S. Steel’s department manager for labor relations, doc. 23-4 at 11.

U.S. Steel did not maintain a written progressive discipline policy during the

relevant period. Instead, according to Thomas, U.S. Steel and the union agreed in

practice to utilize a disciplinary process consisting of a written warning; one, three,

and five-day suspensions; and discharge. Doc. 23-4 at 15-17. However, some

infractions, including violations of cardinal safety rules, bypass the earlier steps and

always result in a five-day suspension subject to discharge. Id. at 16. Under the

practice in place, if a supervisor determines that an employee’s conduct requires

discipline, the supervisor notifies labor relations by completing an activity report

describing the alleged infraction. Docs. 23-3 at 16; 23-4 at 14-15, 24-25. Thomas

then decides what level of discipline is appropriate, prepares the written discipline

form, and sends the form to the employee’s supervisor, who gives it to the employee.

Docs. 23-3 at 16-17; 23-4 at 15, 24-26.

Employees receiving a five-day suspension subject to discharge have a right

to an informal 9(b) hearing during which U.S. Steel outlines its reasons and the

employee and union can respond and explain why they do not believe the suspension

is justified. Doc. 23-4 at 13-14. Thereafter, Thomas makes a final decision to either

affirm the discipline or alter or remove the discipline. See docs. 23-4 at 14, 32; 23-

5 at 16-17. If the employee is not satisfied with the final decision, he or she can file

a grievance with the union, which may then proceed to a second-step hearing and

ultimately arbitration. Doc. 23-4 at 14.

B.

In October 2017, Cone sent Stinson home early for allegedly sleeping and

being out of his assigned work area. Docs. 23-1 at 23, 26; 23-3 at 34, 38-40, 76. In

light of this alleged conduct, Cone sent an activity report to Thomas, which resulted

in Stinson receiving two five-day suspensions subject to discharge. Docs. 23-1 at

27; 23-2 at 39-40; 23-3 at 33, 76. According to Stinson, when Cone gave him the

discipline forms, Cone pushed him hard in the back as he was leaving Cone’s office.

Doc. 23-1 at 33-34. Stinson reported the incident, which Cone denied. Docs. 23-1

at 35-36; 23-3; at 27-28, 42-43. Approximately three weeks later, U.S. Steel held a

9(b) hearing on Stinson’s discipline, and Thomas removed one of the suspensions.1

Doc. 23-2 at 39-40.

C.

Stinson reported to work late on December 20, 2017. Docs. 23-2 at 37; 23-3

at 79. The next day Aplin sent activity reports to Thomas, reporting that Stinson had

been tardy twenty times since June 29, and Aplin requested that Thomas discipline

Stinson. Docs. 23-3 at 78-79; 23-5 at 13; 23-4 at 30. Two days later, Thomas issued

1 The written discipline reflecting both suspensions remained in Stinson’s personnel file. See doc.

23-2 at 39-40. And, although Stinson was suspended for five days, he actually worked and was

paid for those days. Doc. 23-1 at 28.

three five-day suspensions to Stinson for “excessive tardiness,” failure to report that

he would be tardy on December 20, and failing to work as scheduled that day. Docs.

23-2 at 37-38; 27-2 at 7-9.

According to Stinson, U.S. Steel improperly considered him tardy at times

when he reported timely to work. In particular, he testified that although U.S. Steel

considered an employee tardy only if he clocked in less than four minutes before his

shift started, U.S. Steel counted him tardy on days he clocked in seven or eight

minutes before his shift began.2 See doc. 23-1 at 39-40. Stinson also contends that

U.S. Steel did not discipline Steven Montgomery, a white employee, who was tardy

on numerous occasions. Docs. 23-1 at 40; 23-2 at 38. Based on the alleged

discriminatory treatment, Stinson filed an EEOC charge on January 2, 2018,

challenging the discipline he received, as well as the October 2017 discipline and

pushing incident. Docs. 23-1 at 5, 18; 23-2 at 37-38. The EEOC sent a notice of the

2 No written policy regarding exists. See docs. 23-3 at 15-16; 23-4 at 16; 23-5 at 16. The lack of

a policy has resulted in varying descriptions of the informal policy in place. Thomas testified that

an employee is counted as tardy if she clocked in less than six minutes before the start of her shift,

but that her supervisor should confirm she was not on the job either by visual confirmation or by

a report from the employee the incoming employee would replace. Doc. 23-4 at 34-36. Aplin did

not know about that rule, and he testified that U.S. Steel considered an employee tardy if he did

not swipe in the gate by the start of his shift and that “there was no rule that said that if [an]

employee was not at his machine [by his start time] that [he] was considered [] tardy.” Doc. 23-5

at 14-15. Cone also testified that an employee was considered tardy if he clocked in past his

scheduled start time, and that at one time U.S. Steel had a policy to consider an employee tardy if

he clocked in less than six minutes before his shift started. Doc. 23-3 at 13-15.

charge to U.S. Steel two days later, doc. 27-4 at 22, 26, which Thomas received,

docs. 23-4 at 39-40; 27-4 at 23.

U.S. Steel held a 9(b) hearing for the tardiness discipline in early January.

Doc. 23-4 at 32. During settlement discussions with Stinson’s union representatives

afterwards, Thomas offered to remove two of the three disciplines if Stinson

dismissed his EEOC charge. Docs. 23-2 at 46; 23-4 at 36, 60-61. Stinson rejected

the offer, and Raymond League, a union representative, told Stinson to “be careful

because anything [he] did would be used against [him][.]” Doc. 23-2 at 46. Thomas

later decided to remove Stinson’s discipline for excessive tardiness, and issued

revised discipline notices affirming the two suspensions for tardiness and failing to

work as scheduled on December 20, 2017.3 Doc. 23-4 at 32, 105-07.

D.

Stinson missed work on March 11, 2018 because he was sick, “in a lot of

pain,” and had to receive intravenous hydration in an emergency room. Docs. 23-1

at 43; 27-2 at 12. U.S. Steel received notice about the absence from Stinson’s wife

two and a half hours after the start of Stinson’s scheduled shift. Docs. 27-2 at 11;

23-4 at 46. Stinson returned to work on March 13 with a note from an emergency

room physician releasing him to work on March 16. Docs. 23-1 at 42-43; 27-2 at

3 Although Thomas affirmed the written discipline that reflected Stinson’s suspension for five days

subject to discharge, doc. 27-2 at 7-9, U.S. Steel allowed Stinson to work during those five days,

doc. 23-1 at 38. Even so, the written discipline remained in Stinson’s file. See id.

12. In keeping with U.S. Steel’s policy, he provided the signed release to his

supervisor. See doc. 23-1 at 42-43. According to Stinson, he should not have

received any discipline because of the medical release and his inability to call in

from the hospital due to his condition.4 See id. at 43.

In the interim, before Stinson returned to work, Cone informed Aplin about

the March 11 absence, and Aplin instructed Cone to complete an activity report to

notify Thomas about the absence and failure to timely call in. Docs. 23-3 at 45, 80;

27-2 at 11. Based on that report, Thomas issued a five-day suspension subject to

discharge for Stinson’s failure to report off properly. Doc. 23-4 at 45-46, 104. U.S.

Steel did not rescind the discipline when Stinson returned to work the next day and

presented the medical release. See doc. 23-4 at 104.

At the 9(b) hearing a few weeks later, Stinson explained that he woke up

violently ill with vomiting and diarrhea on the day in question, was incoherent, and

had to go to the hospital, and that he asked his wife to report off for him while he

4 Under U.S. Steel policy, when an employee is unable to work due to illness, he should call to

report off, or have someone call on his behalf, at least one hour before the start of his shift if he

was scheduled to work a day shift, or at least two hours before the start of his shift for night shifts.

Docs. 23-4 at 48; 23-6 at 23. An employee may be subject to “suspension preliminary to

discharge” for an absence without notice, “except in case of sickness or cause beyond the

employee’s control of a nature that prevents his/her giving notice.” Doc. 27-4 at 19. In other

words, U.S. Steel may consider an employee’s extenuating circumstances, such as illness, when

deciding whether to discipline an employee. See docs. 23-4 at 50; 23-6 at 23-24. And, generally

when an employee is absent without prior notice and returns to work with a medical excuse, a

supervisor prepares an activity report regarding the incident, and labor relations decides whether

to discipline the employee. See docs. 23-3 at 46; 23-5 at 19; 23-6 at 24.

was in the hospital. Docs. 23-4 at 46-49; 27-4 at 32-33. Stinson also explained that

his wife had a problem calling in and had to ask him for help. Docs. 23-4 at 49; 27-

4 at 32. Following the hearing, despite having the medical excuse, Thomas affirmed

the discipline for improper call-off because Stinson did not remember when he woke

up, and Thomas viewed vomiting and diarrhea as common illnesses that generally

do not prevent employees from calling in to report their absences. Docs. 23-4 at 46,

49-50, 64, 103; 27-3 at 4. Finally, although Thomas affirmed the five-day

suspension, U.S. Steel allowed Stinson to work and paid him for those five days.

Doc. 23-1 at 44.

E.

On May 31, 2018, Stinson worked as a thread inspector for the number six

threader in the pipe mill, which is a type of machine that threads the end of pipes.

Doc. 23-1 at 48-49. The threader machines work in pairs, with two employees

working on an even-numbered machine and another employee working on an odd-

numbered machine,5 so that pipes are threaded at both ends as they pass through the

machines. Docs. 23-1 at 48; 23-8 at 9. Also, the threaders do not operate

simultaneously. For example, the number six threader first threads one end of a pipe,

5 The even-number threaders have both a threader operator and a threader inspector working on

one end of the pipe, while the odd-numbered threaders have one operator who operates the machine

and also inspects the pipe. See doc. 23-8 at 9.

then the pipe rolls down a table by gravity to the number five threader where the

operator threads the opposite end of the pipe. See doc. 23-1 at 48.

The thread inspectors inspect the thread on approximately every tenth pipe for

quality control, and the inspectors at each end of a pipe coordinate with one another

to control movement of the pipes through two sets of pin stops operated by human-

machine interface (“HMI”) touch screens. Docs. 23-1 at 48; 23-8 at 9-10. When the

inspector for the number six threader finishes inspecting a pipe, he makes eye contact

with the inspector/operator for the number five machine, who then pushes a button

on a touch screen to lower the first set of pin stops to allow the pipe to roll down to

inspection station where it is stopped by the second set of pin stops. Docs. 23-1 at

48; 23-8 at 10. Typically, the inspector/operator on the odd-numbered threaders is

the person who releases the pin stops because that person works alone on the

machine, while the inspector on the even-numbered threaders has an operator who

works with him. Docs. 23-1 at 48-49; 23-8 at 10. But, the inspector on the even-

numbered threaders also has the capability to lower the pins by pressing the

machine’s touch screen. Docs. 23-7 at 12; 23-8 at 9; 23-10 at 20.

On the day at issue, Michael Thurman worked as the number six threader

operator, Marcus Harris had the number five threader/inspector assignment, and

Stinson worked as the number six inspector. Docs. 23-1 at 47; 23-8 at 8-9. Near the

end of the shift, Stinson and Harris experienced problems with the HMI screens

locking up or freezing so they could not move the pins, and Harris had to restart the

number five HMI screen after calling an electronics operator for advice. Docs. 23-

1 at 50; 23-5 at 48; 23-7 at 16, 40; 23-8 at 15-16. Approximately twenty minutes

later, a “near miss” incident occurred when a pipe rolled down and hit another pipe

at the number five threader. Docs. 23-5 at 48, 79; 23-8 at 10; 23-10 at 12.

Specifically, Harris lowered the first set of pin stops to allow a pipe to roll down to

the second set of pin stops for inspection, and he then raised the first set of pin stops

before inspecting the pipe. Docs. 23-8 at 10; 23-7 at 40. As Harris applied a sizing

wheel to inspect the pipe, the first set of pins lowered again, and another pipe rolled

down and struck the pipe Harris was inspecting. Doc. 23-8 at 10-11. Harris then

stepped back, looked up, and saw Stinson turning around towards the pipe with his

sizing wheel in his hands. Docs. 23-8 at 11-12; 23-9 at 10. Harris did not see Stinson

press the HMI screen to lower the pin stops, but assumed Stinson did so. Doc. 23-8

at 12.

According to Stinson, immediately before the near-miss incident, he had his

back to the pipe while he calibrated his gauges on his inspection table. Doc. 23-1 at

51. He then picked up a forty- to fifty-pound sizing wheel to perform an inspection,

and was turning back just as the two pipes collided. Id. Stinson denies pushing the

HMI screen to lower the pin stops before the incident, and maintains that he was

about four feet away from the screen. Id.at 51-52.

Thurman, the number six operator, corroborates Stinson’s account. Thurman,

who was cleaning his work area, did not see what caused the first set of pin stops to

lower or see either Stinson or Harris press their HMI screens. Doc. 23-7 at 13, 15.

Thurman looked up when he heard the collision, and he saw Stinson holding the

sizing wheel with both hands as he turned towards the pipes. Id. at 14-15. Thurman

does not believe that Stinson could have pressed the HMI screen to lower the first

set of pin stops and then pick up the sizing wheel before the pipes collided. Id. at

23-24.

The plant manager, Dave Brown, and John Wilson, a manager of safety and

industrial hygiene, witnessed the incident from a catwalk above the plant floor from

where they were watching Harris work. Docs. 23-9 at 10-11; 23-10 at 11-12. Brown

took pictures immediately before and after the incident that show the second pipe

rolling towards the pipe Harris was inspecting and Harris stepping back after the

incident and pressing the HMI screen. Docs. 23-5 at 80-81; 23-10 at 12-13. But,

neither Brown nor Wilson saw what caused the near miss, or Stinson’s actions

immediately before the incident. Docs. 23-9 at 10-12, 14; 23-10 at 14.

Wilson and Brown were alarmed by the incident because of the potential for

injury to Harris, and they ordered work to stop so they could meet with Stinson,

Harris, and Thurman. See docs. 23-1 at 52; 23-8 at 12; 23-9 at 10; 23-10 at 12, 15.

At the meeting, Wilson and Brown stated that they were “not out to get anybody”

and would not discipline anyone for the incident, but wanted to know what transpired

from an accident prevention point of view.6 Docs. 23-1 at 53; 23-7 at 15; 23-8 at

12-13; 23-9 at 13; 23-10 at 16. In response, Harris denied lowering the pin stops,

and Wilson and Brown, who saw Harris working at the time of the incident, had no

reason to doubt Harris. See doc. 23-9 at 13. Stinson stated that he did not press the

HMI screen to lower the pin stops, had his back turned at the time, and did not see

who let the pin stops down. Docs. 23-1 at 53; 23-5 at 79; 23-9 at 13. For his part,

Thurman also stated that he did not see what happened, and he was not working in

an area where he could have pressed the screen. Docs. 23-4 at 54; 23-9 at 13. And,

in response to Wilson and Brown’s request for written statements, Stinson wrote that

he “had [his] back to the pipe,” docs. 23-1 at 53; 23-7 at 39; Thurman stated that he

“didn’t see what happen[ed],” 23-7 at 41; and Harris wrote that he “assumed the

inspecting operator on #6 machine[, i.e., Stinson,] let the pin stop down[,]” but that

“the screen locked up earlier . . . [so he was] not sure if the screen failed,” doc. 23-7

at 40.

As part of their investigation, Wilson and Brown asked Aplin to determine if

someone had pressed a button on the HMI screens by reviewing the “IBA” data

6 Brown testified that he did not believe the safety incident itself was a terminable offense, but that

not being truthful in a safety investigation would be a terminable offense. Doc. 23-10 at 19.

recorded by the threader machines or HMI screens.7 See docs. 23-5 at 19-21; 23-9

at 13. After examining the IBA data, Aplin concluded that Stinson pressed a button

on the HMI screen for the number six threader to lower the pin stops immediately

before the near-miss incident. See doc. 23-5 at 22, 44. However, Aplin admitted

that he could not determine if a malfunction occurred on the HMI screen by

examining the IBA data because that information was contained in “level 2” data

that he could not access. Id. at 24-26, 37-39, 45. Aplin also acknowledged that the

HMI screen for the number 5 threader malfunctioned shortly before the incident, and

that the malfunction was not reflected in the IBA data. See id. at 24-26. But, Aplin

ruled out a similar malfunction as the cause of the incident because he did not see

any inconsistencies in the operating signals in the IBA data. Id. at 47.

The day after the near miss, based on Aplin’s investigation, U.S. Steel issued

two five-day suspensions subject to discharge to Stinson for a safety violation and

providing false information in an investigation. Docs. 23-4 at 52; 23-5 at 23; 27-2

at 13-14. At the 9(b) hearing, Aplin testified and offered evidence about his

investigation of the IBA data, but he presented data for only a fifteen-second time

span before the incident. Docs. 23-4 at 53-54; 23-5 at 23-24. Kevin Key, a union

7 The IBA data tracks a binary code from a threader’s HMI screen, and the data shows a high signal

when the HMI button is pressed and a low signal when the button is released. See doc. 23-5 at 20,

23-24.

representative with an electronics background, challenged Aplin’s conclusions and

testified that it was not possible to definitively say whether someone had pressed a

button on the HMI screen based on the IBA data. See doc. 23-4 at 54-55. Ultimately,

Thomas decided to credit Aplin’s conclusions based on his assessment that Aplin

presented data to support his conclusions whereas Key presented “theories or

explanations[.]” Id. at 55. Following the hearing, Thomas converted Stinson’s

suspension to a discharge. Docs. 23-4 at 55; 27-2 at 13-14; 27-4 at 45.

Stinson filed a grievance. See docs. 23-2 at 48-49; 27-4 at 42. The day before

the second-step hearing, a union representative informed Stinson that U.S. Steel had

offered him a last-chance agreement allowing Stinson to return to work in exchange

for dismissing his EEOC charge. Docs. 23-2 at 46; 23-4 at 58-59. Stinson rejected

the offer, and at the second-step hearing, the union presented information regarding

a subsequent incident a few days after the near miss in which the HMI screens and

pin stops for the number 5 and number 6 threaders malfunctioned.8 See doc. 23-5 at

8 The employees operating the number 5 and number 6 threaders reported that the pin stops moved

erratically, and they had to reboot the system. Doc. 23-5 at 26-27. Aplin investigated that incident

to see if it may have bearing on the earlier near-miss incident, and by looking at the IPA data, he

found that the button on the number 5 HMI screen was locked in the up or high position for several

minutes, as if an operator was holding the button down to lower the pin stops, which caused the

pin stops to stay in the lowered position. Docs. 23-5 at 26-28; 27-4 at 45. According to Aplin, the

pin stops involved in this incident were the second set of stops, which were not the same set as

those involved in the earlier incident, and he also testified that the IPA data from the two incidents

were materially different. See doc. 23-5 at 27, 29-30, 45. Based on the data, Aplin concluded that

the malfunction from this later incident could not have caused the earlier near-miss incident. See

doc. 23-5 at 29-30. But, Aplin could not determine the cause of the later incident from the IPA

data, and U.S. Steel replaced the number 5 HMI screen after that incident. Doc. 23-5 at 27-29.

26; 27-4 at 42, 45. U.S. Steel challenged the relevance of the incident, and Aplin

testified that the two incidents “were patently different and unrelated.” Doc. 27-4 at

45. Following the second-step hearing, Thomas affirmed Stinson’s discharge. Docs.

23-2 at 46; 27-4 at 48. Stinson appealed, and a neutral arbitrator upheld the

discharge. Doc. 23-2 at 48-61. Stinson then filed a second EEOC charge, id. at 45-

47, and eventually this lawsuit.

III.

Stinson asserts claims against U.S. Steel for race discrimination (Counts I and

II) and retaliation (Counts III and IV) in violation of Title VII and 42 U.S.C. § 1981.9

Doc. 1. The court addresses the parties’ contentions related to these claims in turn.

A.

Stinson contends that U.S. Steel discriminated against him because of his race

when it disciplined him in December 2017 for allegedly reporting to work late,

failing to work as scheduled, and for excessive tardiness.10 Doc. 1 at 9-11; see also

doc. 26 at 24 n.18. Because Stinson relies on circumstantial evidence of

discrimination, he may prove his claims using the burden-shifting framework

9 “Title VII and § 1981 ‘have the same requirements of proof and use the same analytical

framework.’” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1256-57 (11th Cir. 2012)

(quotation omitted).

10 Stinson withdrew his race discrimination claims based on the March 2018 and May 2018

disciplinary actions, doc. 26 at 24 n.18, and those claims will be dismissed with prejudice. Stinson

also contends that he never asserted discrimination claims based on the October 2017 disciplinary

action, id. at 7 n.3 and 24 n.18, and U.S. Steel’s motion is moot as to those purported claims.

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas

Dep’t. of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Kragor v. Takeda

Pharm. America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (citation omitted).

Under that familiar framework, Stinson bears the initial burden of establishing a

prima facie case by showing he is a “qualified member of a protected class and was

subjected to an adverse employment action in contrast to similarly situated

employees outside [his] protected class.” Alvarez v. Royal Atl. Developers, Inc., 610

F.3d 1253, 1264 (11th Cir. 2010) (citation omitted). If Stinson satisfies this burden,

the burden shifts to U.S. Steel to produce a legitimate, non-discriminatory reason for

the challenged action. Id. (citation omitted). If U.S. Steel produces such a reason,

“the presumption of discrimination . . . drops from the case,” Combs v. Plantation

Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (citation omitted), and the burden

shifts to Stinson to prove that U.S. Steel’s proffered reason is pretext for its actual,

discriminatory purposes, Alvarez, 610 F.3d at 1264 (citation omitted).

Still, “‘establishing the elements of the McDonnell Douglas framework is not,

and never was intended to be, the sine qua non for a plaintiff to survive a summary

judgment motion in an employment discrimination case.’” Lewis v. City of Union

city, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019) (quoting Smith v. Lockheed-

Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). And, “‘the plaintiff will

always survive summary judgment if he or she presents circumstantial evidence that

creates a triable issue concerning the employer’s discriminatory intent.’” Id.

(alteration in original omitted). “A triable issue of fact exists if the record, viewed

in a light most favorable to the plaintiff, presents ‘a convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.’” Lockheed-Martin Corp., 644 F.3d at 1328 (quotation

omitted).

1.

U.S. Steel contends that Stinson cannot identify a similarly-situated employee

outside his protected class that U.S. Steel treated more favorably and, therefore,

cannot establish a prima facie case. Doc. 22 at 19-20. The relevant analysis requires

Stinson to show that he and his alleged comparator “are ‘similarly situated in all

material respects.’” Lewis, 918 F.3d at 1224. Courts must apply this standard “on

a case-by-case basis, in the context of the individual circumstances” of the case,

considering, among other things, whether the plaintiff and comparators “engaged in

the same basic conduct,” “have been subject to the same employment policy,

guideline, or rule,” and share similar employment or disciplinary histories. Id. at

1227-28 (citations omitted). In addition, courts must be mindful that “a valid

comparison will turn not on formal labels, but rather on substantive likenesses.” Id.

at 1228. This requires that “a plaintiff and [his] comparators must be sufficiently

similar, in an objective sense, that they ‘cannot reasonably be distinguished.’” Id.

Consistent with Lewis, the court now turns to whether the alleged comparator

is similarly situated to Stinson. According to U.S. Steel, Stinson’s attendance record

reflects twenty-six tardies between January 1 and December 21, 2017, docs. 27-4 at

28; 27-2 at 9; see also doc. 23-3 at 78, while Steven Montgomery had twelve, doc.

27-4 at 30-31, and therefore the two are not similarly situated. But, Stinson testified

that U.S. Steel considered him tardy when he was not actually tardy, doc. 23-1 at 40,

and if the evidence is viewed in the light most favorable to him, he had a record

comparable to Montgomery’s. In particular, Stinson believed that U.S. Steel had a

policy that did not consider an employee tardy if he clocked in at least four minutes

before the start of his shift. Doc. 23-1 at 40. For their part, Stinson’s supervisor and

manager testified that employees are considered tardy only if they clock in after their

scheduled start time, see docs. 23-5 at 14-15; 23-3 at 14-15, which is actually more

lenient than Stinson’s version. And, Stinson contends that, contrary to the policy he

believed U.S. Steel had, U.S. Steel counted him tardy on occasions when he clocked

in six to eight minutes before the start of his shift. Doc. 23-1 at 40. Indeed, the

records before the court do not show that Stinson was in fact tardy. For example,

U.S. Steel contends that its gate swipe-in records show that Stinson “swiped into the

gate after his shift had already begun” for each of his twenty-six tardies. Doc. 22 at

7 n.4. But, the exhibits U.S. Steel cites do not reflect the specific time when Stinson

actually swiped into the gate, and instead only indicate the amount of time, in tenths

of an hour, that Stinson was tardy. See doc. 23-4 at 42-43; 27-4 at 28-29; 23-5 at 15.

And, Thomas testified that the tardies contained in the attendance records are based

on a code entered by a manager. Doc. 23-4 at 42.

The dispute regarding U.S. Steel’s tardy policy coupled with Stinson’s

testimony and attendance record create a question of fact regarding whether U.S.

Steel properly counted Stinson tardy on each of the twenty-six instances. Thus, a

question of fact exists on whether Stinson and Montgomery engaged in the same

basic conduct. Moreover, the attendance records show that Stinson was more than

thirty minutes tardy on only two occasions in 2017, compared to Montgomery’s

eight. See doc. 27-4 at 28-30.

U.S. Steel also contends that Stinson and Montgomery are not similarly

situated because of a prior warning it issued to Stinson.11 Doc. 22 at 21. Moses

testified that he warned Stinson in October 2017 that his “tardiness was out of

control” and that Stinson needed to work on his attendance issues. Doc. 23-6 at 34,

36; see also doc. 23-4 at 31. But, Stinson disputes receiving this warning, see doc.

23-1 at 30, and U.S. Steel offered no evidence that it documented this warning, see

doc. 22. Accordingly, a question of fact exists on this issue as well.

11 U.S. Steel further contends that there is no evidence to suggest that Montgomery failed to

properly report off. Doc. 22 at 21. However, this contention is cast into doubt by Montgomery’s

time record, which notes that the reason for his twelve tardies was “undetermined.” Doc. 27-4 at

30-31.

To close, U.S. Steel does not dispute that Montgomery and Stinson held

similar positions, or that it subjected them to the same employment policies and

rules. See doc. 22. In light of the factual disputes regarding whether they engaged

in similar misconduct and whether U.S. Steel had warned Stinson previously, the

court cannot find on this record that Stinson is not similarly situated to Montgomery.

See Lewis, 918 F.3d at 1227-28. Therefore, U.S. Steel has not shown that Stinson

cannot establish a prima facie case as a matter of law.

2.

U.S. Steel argues alternatively that Stinson cannot show that its proffered

reasons for disciplining Stinson, i.e. violating company policy and workplace rules

by repeatedly being tardy, are pretextual. See doc. 22 at 24-25. Because the

articulated reason is sufficient for U.S. Steel to meet its light burden to produce a

legitimate, nondiscriminatory reason, see Walker v. NationsBank of Florida, N.A.,

53 F.3d 1548, 1556 (11th Cir. 1995) (citing Perryman v. Johnson Prod. Co., Inc.,

698 F.2d 1138, 1142 (11th Cir. 1983)), the burden shifts to Stinson to show pretext.

Stinson can do so by: “(i) casting sufficient doubt on [U.S. Steel’s] proffered

nondiscriminatory reasons to permit a reasonable fact finder to conclude that [U.S.

Steel’s] proffered reasons were not what actually motivated its conduct, (ii) showing

that [U.S. Steel’s] articulated reason is false and that the false reason hid

discrimination, or (iii) establishing that [U.S. Steel] has failed to clearly articulate

and follow its formal policies.” Lewis, 934 F.3d at 1186. And, when an employer’s

proffered reason is based on a violation of work rules, as in this case, an employee

can also show pretext by “submit[ting] evidence (1) that she did not violate the cited

work rule, or (2) that, if she did violate the rule, other employees outside the

protected class, who engaged in similar acts, were not similarly treated.” Damon v.

Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir. 1999) (citation

omitted).

Here, Stinson contends that U.S. Steel’s proffered reasons are pretextual based

on evidence that U.S. Steel had no set rules or standards related to discipline for

tardiness and that U.S. Steel did not discipline Montgomery for tardiness. Doc. 26

at 32-33. Indeed, the record establishes that U.S. Steel did not have standard rules

or policies and supervisors gave differing accounts on when an employee is

considered tardy. See docs. 23-3 at 13-16; 23-4 at 34-36; 23-5 at 14-16. In addition,

Stinson’s testimony and his and Montgomery’s attendance records create a material

dispute regarding whether Stinson violated the tardy policy each of the times U.S.

Steel counted him tardy, and whether U.S. Steel treated Montgomery more

favorably. See docs. 23-1 at 39-40; 27-4 at 28-30. Based on this record, Stinson has

met his burden to show pretext and survive summary judgment.

* * *

In conclusion, Stinson has abandoned his discrimination claims based on the

March 2018 discipline for failing to properly report off while he was in the

emergency room and his discharge, see doc. 26 at 24 n.18, and U.S. Steel is entitled

to summary judgment on those claims. However, because Stinson has shown

questions of fact regarding whether Montgomery is a similarly-situated comparator

and whether U.S. Steel’s proffered reason for disciplining Stinson for tardiness is

pretextual, Stinson’s discrimination claims based on the disciplines for tardiness will

proceed to trial.

B.

Stinson contends also that U.S. Steel retaliated against him by discipling him

in December 2017 and March 2018, discharging him in June 2018, and subjecting

him to a hostile work environment.12 Doc. 1 at 11-14; see also doc. 25 at 26, n.21.

Stinson may prove his claims with either direct or circumstantial evidence of

retaliatory intent. See Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d

1261, 1270-71 (11th Cir. 2017). Stinson contends that he presented direct evidence

that his December 2017 discipline and his June 2018 discharge were retaliatory, doc.

12 Stinson clarifies that he did not assert any retaliation claims based on the October 2017

discipline, doc. 26 at 26 n.21, and U.S. Steel’s motion is moot as to those purported claims.

26 at 27-28, a contention U.S. Steel disputes. Therefore, the court begins with the

direct evidence contention before moving on to the circumstantial case.

1.

Direct evidence is “‘evidence, which if believed, proves the existence of a fact

in issue without inference or presumption.’” Merritt v. Dillard Paper Co., 120 F.3d

1181, 1189 (11th Cir. 1997) (quotation omitted). “For that reason, ‘only the most

blatant remarks, whose intent could mean nothing other than to discriminate [or

retaliate] on the basis of some impermissible factor constitute direct evidence of

discrimination [or retaliation].” Jones, 854 F.3d at 1270 (quotation omitted). The

Eleventh Circuit “has found direct evidence where ‘actions or statements of an

employer reflect a [] retaliatory attitude correlating to the [] retaliation complained

of by the employee.’” Merritt, 120 F.3d at 1189 (quotation omitted). “Evidence

that is subject to more than one interpretation does not constitute direct evidence.”

Marria v. C.R. England, Inc., 679 F. App’x 844, (11th Cir. 2017) (citing Harris v.

Shelby Cnty. Bd. of Educ., 99 F.3d 1078, 1083 n.2 (11th Cir. 1996)). If a plaintiff

“presents direct evidence that, if believed by the jury, would be sufficient to win at

trial, summary judgment is not appropriate even where the [employer] presents

conflicting evidence.’” Merritt, 120 F.3d at 1189 (quoting Mize v. Jefferson City

Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)).

As direct evidence of retaliatory intent Stinson asserts that: (1) in late January

2018, a union representative informed Stinson that Thomas offered to rescind two

of the tardiness disciplinary actions if Stinson agreed to dismiss his EEOC charge,

and when Stinson refused the offer, the representative told him “to be careful

because anything [he] did would be used against [him] . . . ,” doc. 23-2 at 46; and

(2) six days after Stinson’s discharge, a union representative informed Stinson that

U.S. Steel “offered to let [Stinson] keep [his] job only if [he] signed a Last Chance

Agreement in which . . . [Stinson] would have to dismiss and waive [his] pending

EEOC charge and claims of discrimination,” id. But, U.S. Steel purportedly made

those statements relating to Stinson’s EEOC charge after issuing the initial decisions

at issue. See doc. 27-2 at 7-9, 13-14. Thus, they do not provide direct evidence that

the initial decisions to discipline or discharge Stinson were retaliatory. Additionally,

the statements were offers to settle all issues relating to Stinson’s discipline and

discharge, and, ordinarily, “settlement offers cannot be retaliation.” Chapter 7

Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1259 n.8 (11th Cir. 2012).13

Moreover, Stinson did not cite any evidence to suggest that U.S. Steel had any

obligation to remove the disciplines issued or to rehire him. See doc. 26. Therefore,

13 In Chapter 7 Trustee v. Gate Gourmet, Inc., the Eleventh Circuit found that Gate Gourmet’s

offer to give the plaintiff a light-duty job in exchange for her dropping her EEOC charge could

show retaliatory intent. But, the Court noted that the plaintiff was entitled to a light-duty job under

Gate Gourmet’s policy, and that Gate Gourmet withheld that benefit from the plaintiff solely

because of her EEOC charge. 683 F.3d at 1259 n.8.

the statements made during settlement discussions are not direct evidence of

retaliation.

2.

To establish a prima facie case of retaliation using circumstantial evidence,

Stinson must show “that he engaged in statutorily protected activity, he suffered a

materially adverse action, and there was some causal relation between the two

events.” Butler v. Alabama Dep’t of Transp., 536 F.3d 1209, 1213 (11th Cir. 2008)

(quotation omitted). Satisfying the causation element requires Stinson to prove that

but for U.S. Steel’s desire to retaliate, he would not have suffered the adverse

employment actions. See Booth v. Pasco Cnty., 757 F.3d 1198, 1207 (11th Cir.

2014) (citing Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 363

(2013)). He can prove this through “sufficient evidence that the decision-maker

became aware of the protected conduct, and that there was a close temporal

proximity between this awareness and the adverse action.” Shotz v. City of

Plantation, Fla., 344 F.3d 1161, 1180 n.30 (11th Cir. 2003) (citation and alteration

in original omitted). If Stinson establishes a prima facie case, then the burden shifts

to U.S. Steel to produce a legitimate reason for its action. Gogel v. Kia Motors Mfg.

of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (citation omitted). Then, if U.S.

Steel satisfies that light burden, Stinson must show that the proffered reason is

pretext for retaliation. Id. He can do this by demonstrating “‘such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could find

them unworthy of credence.’” Id. at 1136 (quoting Jackson v. Ala. State Tenure

Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005)). Finally, when “‘the proffered

reason is one that might motivate a reasonable employer, and employee must meet

that reason head on and rebut it.’” Id. (quotation omitted).

a.

According to U.S. Steel, Stinson cannot show a causal connection between

his protected activity and any of the three adverse actions and, therefore, cannot

establish a prima facie case. Doc. 22 at 27-29. In particular, U.S. Steel argues that

Stinson cannot establish causation based on his failure to produce any evidence that

Cone and Aplin, who allegedly initiated the discipline and discharge, had knowledge

of his EEOC charge. Docs. 22 at 27-29; 29 at 6-8. But, even though Cone and Aplin

may have initiated the adverse actions by completing the initial activity reports, see

docs. 23-3 at 16, 78-79; 23-4 at 14-15, 24-25, 30; 23-5 at 13, the undisputed record

establishes that Thomas made the ultimate decisions at issue, see docs. 23-3 at 16-

17; 23-4 at 15, 24-26, 50, 55; 27-2 at 7-9. Thus, notice hinges on what Thomas

knew. See Hurlbert, 439 F.3d at 1298. And relevant here, Thomas had the requisite

notice for each of the challenged actions.

First, as to the three five-day suspensions subject to discharge related to

Stinson’s tardiness, while U.S. Steel is correct that it issued the initial notices

approximately a week before Stinson filed his EEOC charge, docs. 27-2 at 7-9; 27-

3 at 2-3, U.S. Steel overlooks that the decision on the disciplines were not yet final.

Rather, the process called for a hearing, which occurred after U.S. Steel received the

EEOC charge. See docs. 23-4 at 13-14, 39-40; 27-4 at 22-25. Moreover, Thomas

allegedly injected the EEOC charge into the discipline process by offering to rescind

two of the disciplines if Stinson dismissed his EEOC charge. See docs. 23-2 at 46;

23-4 at 36, 60-61. He subsequently removed one after Stinson refused to dismiss

the EEOC charge, and he affirmed the other two. Docs. 23-2 at 46; 23-4 at 105-07.

On this record, an issue of fact exists regarding whether Thomas decided to uphold

the December 22 disciplines in retaliation for the EEOC charge.

Second, Thomas issued the initial discipline to Stinson for improperly

reporting his absence approximately two months after he learned of Stinson’s EEOC

charge. See docs. 27-2 at 10. “Close temporal proximity between protected conduct

and an adverse employment action is generally ‘sufficient circumstantial evidence

to create a genuine issue of material fact of a causal connection.’” Hurlbert v. St.

Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (quoting

Brungart, 231 F.3d at 799). “But mere temporal proximity, without more, must be

‘very close.’” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (quotation omitted). While the Eleventh Circuit has found in an unpublished

opinion that a two-month gap between the protected activity and the adverse action

is insufficient by itself to show a causal connection, Williams v. Waste Management,

Inc., 411 F. App’x 226, 230 (11th Cir. 2011), here Stinson has offered more than

just temporal proximity to show causation. Again, Thomas injected the EEOC

charge in discussions about whether to uphold the December 2017 disciplines, and

affirmed two disciplines after Stinson refused to dismiss the charge. See doc. 23-2

at 46. That evidence provides some circumstantial evidence of retaliatory intent that

is sufficient to show causation between the EEOC charge and the discipline for the

absence.

Finally, Thomas also had knowledge of Stinson’s EEOC charge when U.S.

Steel suspended Stinson subject to discharge for his alleged actions relating to the

near-miss incident,14 and later decided to discharge Stinson following a 9(b) hearing.

Docs. 23-4 at 11, 39-40, 52, 55; 23-5 at 23; 27-2 at 13-14; 27-4 at 26, 45. Thomas

also injected the charge into the process by again purportedly asking Stinson to

dismiss the charge in exchange for reinstatement. Docs. 23-2 at 46; 23-4 at 58-59.

To close, based on this record, which includes Thomas mentioning or

considering the EEOC charge in his determination on how to resolve Stinson’s

14 Although Andrew Stanley, an employee in labor relations, issued the written discipline notice

to Stinson, Thomas testified that he discussed the discipline with Stanley. See doc. 23-4 at 52.

various challenges to the disciplines in question, Stinson has shown the necessary

causal link to satisfy a prima facie case.

b.

U.S. Steel argues in the alternative that Stinson cannot show its proffered

reasons for its actions are pretextual. See doc. 22 at 25-29. For the reasons discussed

below, the court finds questions of fact exist on this issue.

(1)

U.S. Steel contends that it disciplined Stinson for tardiness and failing to

properly report off in violation of its policies and workplace rules, doc. 22 at 25,

which are indeed legitimate, non-retaliatory reasons to discipline an employee. But,

“an employer’s deviation from its own standard procedures may serve as evidence

of pretext.” Hurlbert, 439 F.3d at 1299 (citations omitted). And, as discussed above,

a question of fact exists regarding whether Stinson violated U.S. Steel’s tardy policy

on each of the charged occasions. See Section III(A)(2), supra. Stinson also

presented evidence suggesting he did not violate policies relating to absences on the

day he went to the emergency room. The policy provides that an employee may not

be subject to discipline for failing to properly report off if an illness is of a nature

that prevents him from giving notice. See doc. 27-4 at 19. Stinson’s illness qualifies

when the evidence is viewed in the light most favorable to him. In addition, Thomas

did not take any steps to verify whether a problem may have prevented Stinson’s

wife from reporting his absence earlier, as Stinson claimed, even though Thomas

had purportedly done so in the past with similar reports from other employees. See

doc. 23-4 at 49. Moreover, the close temporal proximity between Stinson’s EEOC

charge and Thomas’s decisions to affirm the disciplines for tardiness and issue

discipline for improperly reporting off is at least some evidence of pretext. See

Hurlbert, 439 F.3d at 1298. All of this evidence, coupled with Thomas’s attempt

to have Stinson dismiss his EEOC charge, is sufficient to create a question of fact

regarding whether U.S. Steel’s reasons for disciplining Stinson for tardiness and

failing to properly report off are pretext for retaliation.

(2)

Next, U.S. Steel asserts that it discharged Stinson for a safety violation and

false statement relating to the near-miss incident. Doc. 22 at 25-26. And, U.S. Steel

contends that Stinson cannot show its reasons are pretextual, especially because a

neutral arbitrator upheld the discharge. Id. To support that contention, U.S. Steel

correctly notes that when an “‘employer’s [] investigation . . . produces contradictory

accounts of significant historical events, the employer can lawfully make a choice

between the conflicting versions—that is, to accept one as true and to reject one as

fictitious—at least, as long as the choice is an honest choice.’” Gogel, 967 F.3d at

1148 (quoting E.E.O.C. v. Total Sys. Servs., 221 F.3d 1171, 1176 (11th Cir. 2000)).

But here, the record contains evidence that, when viewed in the light most favorable

to Stinson, raises a question of fact regarding whether Thomas’s decision to credit

Aplin’s version of events over Stinson’s was an “honest choice.”

There are multiple reasons that undermine Aplin’s and U.S. Steel’s

investigation. To begin, the record shows that Aplin only examined the IBA data to

investigate the near-miss incident even though a malfunction occurred with the

number 5 HMI screen approximately twenty minutes before the incident, which

would not be reflected in the data, and Aplin presented IBA data for only the fifteen

seconds prior to the incident at the 9(b) hearing. Doc. 23-5 at 24-26, 37-39, 45.

Next, Aplin admitted that he saw no indication in the IBA data that Harris pushed a

button on the number 5 HMI screen immediately after the incident even though

Harris testified that he did so and Brown photographed Harris pressing the screen.

See docs. 23-5 at 45-46; 23-10 at 13, 15. In addition, U.S. Steel did not acknowledge

Thurman’s testimony that Stinson was holding his sizing gauge at the time of the

incident and would not have had time to press the HMI screen to lower the pins and

then pick up the gauge before the pipes collided. See doc. 23-7 at 23-24; see also

docs. 22; 29. All of these reasons, and the injection of the EEOC charge into the

decision on whether to uphold the discharge, raise an issue of fact on the purported

“honest choice.” Therefore, viewing all of this evidence in the light most favorable

to Stinson, the court finds that questions of fact exist regarding whether U.S. Steel’s

proffered reasons for discharging Stinson are pretext for its actual, retaliatory intent.

* * *

To summarize, questions of material fact exist regarding whether Stinson can

show a causal connection between his EEOC charge and the adverse events at issue,

and whether U.S. Steel’s proffered reasons for its action are pretextual. Thus, U.S.

Steel is not entitled to summary judgment on Stinson’s retaliation claims based on

his discharge and disciplines for tardiness and failing to properly report off.

3.

Stinson asserts that U.S. Steel also retaliated against him by subjecting him to

a hostile work environment. Doc. 1 at 12-13. As the Eleventh Circuit recently

explained, the standard for a retaliatory hostile work environment claim is less

stringent than the one used for typical hostile work environment claims based on a

protected characteristic.15 Babb v. Sec’y, Dept. of Veterans Affairs, 992 F.3d 1193,

1205-07 (11th Cir. 2021); Monaghan v. Worldpay US, Inc., 955 F.3d 855, 861-62

(11th Cir. 2020) (per curium). And, to establish such a claim, Stinson must only

show that the harassment he suffered “‘well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.’” Monaghan, 955

F.3d at 861 (quoting Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008)).

15 To establish a hostile work environment claim arising from harassment based on a protected

characteristic, a plaintiff must show that the harassment was “‘sufficiently severe or pervasive to

alter the terms and conditions of the [plaintiff’s] employment and create an abusive working

environment.’” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).

Here, Stinson presented evidence that after he filed his EEOC charge, U.S.

Steel: (1) affirmed two five-day suspensions for tardiness, (2) issued a five-day

suspension subject to discharge for failing to call off properly, and affirmed the

discipline even though Stinson testified that his illness prevented him from calling

in and his wife encountered trouble when she tried to call in for him, and

(3) discharged Stinson following the near-miss incident. While U.S. Steel may be

correct that these incidents do not rise to the level of severe or pervasive harassment,

see doc. 22 at 30-31, the issue here is whether the alleged harassment might have

dissuaded a reasonable employee from making a charge of discrimination. See

Babb, 992 F.3d at 1196. U.S. Steel does not address this issue, see doc. 22, and

consequently its motion on this claim fails also.

IV.

U.S. Steel’s motion is due to granted on the discrimination claims based on

Stinson’s March 2018 discipline for failing to properly report off and June 2018

discharge, and the motion is moot as to Stinson’s purported discrimination and

retaliation claims based on the October 2017 discipline. However, questions of

material fact preclude summary judgment on the discrimination claims based on

Stinson’s discipline for tardiness, and the retaliation claims based on Stinson’s

disciplines for tardiness and failing to properly report off and his June 2018

discharge. And, U.S. Steel did not meet its burden on the retaliatory hostile work

environment claim. Those claims will proceed to trial.

DONE the 27th day of September, 2021.

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

35