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Bogan v. Mtd Consumer Group, Inc.

United States District Court, N.D. Mississippi

November 2, 2016

SHEANETER J. BOGAN PLAINTIFF
v.
MTD CONSUMER GROUP, INC. DEFENDANT

          Jim Waide, MS Rachel Pierce Waide, Ron L. Woodruff, Attorneys for Plaintiff.

          Robin Banck Taylor, Timothy W. Lindsay, Blythe K. Lollar, MS Attorneys for Defendant.

          PRETRIAL ORDER

          SHARION AYCOCK UNITED STATES DISTRICT JUDGE.

         1. Choose [by a √ mark] one of the following paragraphs, as is appropriate to the action: If a pretrial conference was held

         A pretrial conference was held as follows:

Dated: November 2, 2016 Time: 10:30 am
United States Courthouse at: Aberdeen, Mississippi
Before the following judicial officer: Magistrate Judge David Sanders

         The final pretrial conference having been dispensed with by the judicial officer, the parties have conferred and agree upon the following terms of this pretrial order:

         2. The following counsel appeared:

         a. For the Plaintiff:

Name Ron L. Woodruff

Postal and Email Addresses Waide & Associates, P.A. 332N. Spring Street P. O. Box 1357 Tupelo, MS 38802 rlw@waidelaw.com

Telephone No. (662)-842-7324

         b. For the Defendant:

Name Robin B. Taylor Timothy W. Lindsay Blythe Lollar

Postal and Email Addresses 207 West Jackson Street Suite 200 Ridgeland, MS 39157 robin.taylor@ogletreedeakins.com tim.lindsay@ogletreedeakins.com blythe.lollar@ogletreedeakins.com

Telephone No. 601-360-8444

         3. The pleadings are amended to conform to this pretrial order.

         4. The following claims (including claims stated in the complaint, counterclaims, crossclaims, third-party claims, etc.) have been filed:

a. Plaintiff's claim under Title VII for race discrimination; and b. Plaintiff's claim under Title VII for gender discrimination.
c. Plaintiff's claim under Title VII for gender and race discrimination.

         5. The basis for this court's jurisdiction is:

This Court has federal question jurisdiction under 42 U.S.C. 2000e-2, 28 U.S.C. § 1331 and civil rights jurisdiction under 28 U.S.C. § 1343, for a cause of action arising under Title VII and the Civil Rights Act of 1964.

         6. The following jurisdictional question(s) remain(s) [If none, enter “None”]: None 7. The following motions remain pending [If none, enter “None”] [Note: Pending motions not noted here may be deemed moot]:

         8. The parties accept the following concise summaries of the ultimate facts as claimed by:

         a. Plaintiff:

         On January 6, 1992, Sheaneter Bogan, black female, was hired by MTD to work as a general assembly employee at its Verona, Mississippi facility.

         In 2010, after receiving her tool and die degree, Bogan applied to work in the tool and die department as a machinist. In January 2011, MTD hired Gary Johnson to work in the tool and die department as a machinist. Bogan was upset because they hired an outside candidate, a young male with whom she had graduated tool and die school, instead of herself, who had worked for MTD for around nineteen (19) years.

         On May 19, 2011, Bogan was promoted to the tool and die department as a second shift CNC operator. There was only one other female working in the tool and die department as machinist out of around twenty-four (24) employees, Micky Bowers, who was white. There were only around four black persons - Barry Ledbetter, Gary Johnson, Bruce Enos and Orlando Marion. However, there were no other black females working in the tool and die department other than Bogan. Bogan's supervisors testified that they did not have any problem with her work performance, and she showed up to work on time.

         In the tool and die department, each week employees work a series of four shifts, totaling ten-and-a-half hours each, which includes a thirty (30) minute unpaid lunch break. Bogan clocked in at the beginning of the shift, and clocked out at the end. Employees did not sign in or out when they took their lunch breaks. Further, employees could leave the plant during their lunch break and were not required to sign out, or sign back in, when they left or returned to the plant. During an employee's lunch break, the employee could use that time any way he/she wanted to use it.

         Bogan was told from the time she began work in the tool and die department that they operate by different rules than the rest of the plant. It was the custom and practice of the tool and die department that lunch breaks were longer than thirty (30) minutes. In fact, Bogan's lunch break could be anytime between 11:00 am until 12:00 pm. The lead man on the shift would take the long lunch breaks with everyone else, so Bogan knew she was doing nothing wrong.

         While working for MTD, Bogan was also working on her degree in social work. MTD worked around Bogan's class schedule for the Fall 2012 semester.

         On January 15, 2013, Bogan was called to a meeting with her supervisors, Doug Grant and Ron Bateman, to discuss her schedule. At the meeting, Bogan was told that her schedule would be from 5:00 a.m. until 3:30 p.m.

         For the Spring semester Bogan had originally signed up for two classes. However, after she was informed that MTD would no longer accommodate her school schedule for the second class, Bogan dropped that class. The class Bogan did not drop met two days a week, Tuesday and Thursday, between 10:30 a.m. and 11:45 a.m. Bogan only attended the class sparingly.

         Bogan did not clock out the few times she was able to attend the 10:30 a.m. class, because she would only attend the class during her lunch break, and would not be gone for more than the forty-five (45) minutes allowed for lunch. Bogan never asked for permission to attend the 10:30 a.m. class, because she knew she did not have to do so, it was her lunch hour.

         MTD became aware that Bogan was attending classes at the Tupelo Campus of Ole Miss, so it conducted an investigation and terminated Bogan. MTD claims it fired Bogan for leaving the facility while on the clock attending a class. After being terminated, Bogan was replaced by a white male, John Trammel.

         b. Defendant:

         This case involves MTD's termination of Bogan's employment after she admitted leaving the plant during working hours without permission, despite having been given a final warning to adhere to her work schedule just months before. Even though Bogan admits she had been informed that she could not leave work during her assigned shift to attend college courses, Bogan admits she did so. Bogan appealed her termination to the Employee Peer Review Board. After weighing evidence and testimony, this committee of her peers upheld the termination decision.

         As background, MTD employed Bogan as a Wire EDM Operator in the Tool & Die department at its Verona, Mississippi on an at-will basis. In May 2011, Bogan applied for and MTD selected her to be a CNC Operator in the Tool & Die Department on the second (night) shift. In March 2012, MTD acquired a wire EDM machine and Bogan bid for this position and was selected. Bogan moved to the first (day) shift from March 2012 to her termination. The first shift schedule is 5:00 a.m. until 3:30 p.m. and Bogan's lunch was from 11:00 a.m. to 11:30 a.m.

         At the time that Bogan bid for the Wire EDM Operator position, she was taking Social Work classes at the University of Mississippi. In December 2012, Doug Grant met with Bogan and informed her she could not attend classes during her work day. Bogan was informed that she could finish the fall 2012 semester, but could not continue this arrangement in the spring. At this same time, Grant counseled Bogan to adhere to her schedule of 5:00 a.m. to 3:30 p.m. Shortly thereafter, Grant sent an e-mail advising all employees not to be at work unscheduled and not to work alone due to safety concerns.

         Bogan does not dispute these facts. Nevertheless, on January 5, 2013, Bogan chose to disregard the instructions and warnings she was given and came to work on a Saturday and worked 15 hours. Therefore, on January 15, 2013, Grant and Bateman met with Bogan to discuss her work schedule. During this meeting, both Grant and Bateman reiterated that Bogan could not attend classes during her work day. During this meeting Bogan again received employee counselling, was coached, and signed a document acknowledging that her shift time was from 5:00 a.m. to 3:30 p.m. and that any deviation from these hours would need prior approval.

         At the conclusion of the meeting Bogan was told to go home because it was past her shift end time. Bogan agrees there was no question in her mind that she would be held to her regular schedule at MTD after she received her final warning. Despite having just acknowledged that she was not allowed to work outside of her scheduled shift, Bogan did not leave but instead returned to work and did not leave until 7:00 p.m. As a result of her refusal to comply with Grant and Bateman's immediate and clear instruction, Bogan was given a “final warning notice” for work schedule deviation.

         Bogan disagreed with the final warning and appealed to the Employee Peer Review Board (“EPRB”). The EPRB operates independently of MTD management and has complete discretion to either affirm or overturn an MTD management employment disciplinary decision. The EPRB is a board made up of four hourly and one salaried employees randomly drawn from a volunteer group of trained and qualified board members.

         Even though Bogan had been informed that she could not attend classes during the work day and had been disciplined for deviating from her work schedule, Bogan continued to leave the MTD facility, without authorization and during the work day, to attend classes After a thorough investigation, MTD terminated Bogan's employment on April 25, 2013. Again, Bogan appealed to the EPRB. On April 30, 2013, the EPRB heard Bogan's appeal. After hearing all of the testimony and weighing all the evidence, the EPRB which on this occasion included four African-American women and one male who had been randomly selected, voted by secret ballot to uphold the termination.

         9. a. The following facts are established by the pleadings, by stipulation, or by admission:

         1. MTD employed Bogan as a Wire EDM Operator in its Tool & Die department at its Verona, Mississippi location prior to her termination in April 2013.

         b. The contested issues of fact are as follows:

1. Whether Plaintiff was treated any differently than similarly situated white employees under nearly identical situations.
2. Whether Plaintiff was treated any differently than similarly situated male employees under nearly identical situations.
3. Whether Plaintiff can identify similarly situated employees who were treated differently under nearly identical circumstances.
4. Whether Defendant possessed a legitimate, non-discriminatory reason for its decision to terminate Plaintiff.
5. Whether Defendant discriminated against Plaintiff because of her race.
6. Whether Defendant discriminated against Plaintiff because of her gender.
7. Whether Plaintiff can satisfy her prima facie case because MTD did not hire someone outside of the protected class to replace her, but instead her former job duties were added to those of an existing employee in the Tool & Die Department - John Tramel (Caucasian).
8. Whether Plaintiff has suffered or is entitled to any damages.
9. Whether Plaintiff reasonable or diligently attempted to mitigate her damages, if any.
10. What damages, if any, Plaintiff is entitled to receive.
11. Mixed questions of law and fact.
12. Whether Defendant discriminated against Plaintiff because she is a black female in terminating her.

         c. The contested issues of ...


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