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Muller v. Mississippi Power Co.

United States District Court, S.D. Mississippi, Southern Division

May 1, 2019




         BEFORE THE COURT is the [88] Motion for Summary Judgment filed by the defendant, Mississippi Power Company, as well as the [92] Motion to Strike Exhibit M and the [100] Motion to Strike Third Declaration of Wendy Fayard filed by the plaintiff, Mark Muller, in this employment discrimination case. The parties have fully briefed the Motions. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that Mississippi Power's Motion for Summary Judgment should be granted, and Muller's Motions to Strike are moot.


         In 1982, the plaintiff, Mark Muller, began working for Mississippi Power at Plant Watson in Gulfport, Mississippi. In October 2016, Mississippi Power transferred Muller to Plant Daniel in Moss Point, Mississippi, where he served as the team leader for Crew E. Muller claims that his supervisor, Hardy Wheeless, and another team leader, Charles “Skipper” Smith, treated two females on Crew E - Wendy Fayard and Preschia Cumbest -unfairly due to their gender. He cites four incidents in support of this claim. First, before Muller had begun working at Plant Daniel, Wheeless removed Wendy Fayard from the substitute team leader position because Wheeless believed Fayard had abused Mississippi Power's sick leave policy. Second, Wheeless tried to stop Fayard from working her shift when she arrived wearing a protective boot until she provided documentation of her medical restrictions from her physician. Third, in another incident that occurred before Muller worked at Plant Daniel, Preschia Cumbest and some male members of Crew E were disciplined due to a 2016 spill that occurred during their shift, but Skipper Smith's crew was not disciplined for another spill. Finally, after Smith questioned the competence of Cumbest during the June 2017 pre-consistency meeting[1], Wheeless required Cumbest to perform a walk-down[2] to test her abilities.

         After the June 2017 pre-consistency meeting, Muller told Cumbest that she was going to be required to perform a walk-down, and she correctly guessed that Smith was the person who had questioned her abilities during the meeting. Cumbest became upset and told her father, who worked in another part of the plant, that Smith had singled her out during a pre-consistency meeting. Wheeless met with Cumbest and her father in an attempt to calm them down. He then confronted Muller because discussions held at pre-consistency meetings are confidential. (Def.'s Mot. Ex. C, at 109-11, 117, ECF No. 88-3.) According to Wheeless, Muller admitted to discussing the pre-consistency meeting with all of Crew E. (Id. at 146.) Wheeless also claims that Muller became loud and disrespectful when Wheeless confronted Muller about the breach of confidentiality, so Wheeless sent Muller home for the day. (Id. at 118, 146-47.) Wheeless claims that Muller did not make any allegations of gender discrimination during this conversation. (Id. at 150.)

         When Muller returned to work on July 11, 2017, Wheeless met with him and issued a Report of Disciplinary Action (RODA) suspending Muller for one day without pay for breach of confidentiality as well as facilitating “ongoing discussion regarding disagreement with” discipline issued to Crew E regarding the spill in 2016. (Def.'s Mot. Ex. 4 to Ex. C, ECF No. 88-3). Wheeless attempted to read the RODA to Muller, but Wheeless claims Muller repeatedly interrupted him. (Def.'s Mot. Ex. C, at 140-41, ECF No. 88-3.)

         After receiving the RODA from Wheeless, Muller approached Nik Budney, the plant manager. Budney claims that Muller threw the RODA on his desk and began shouting that Wheeless and Smith were the problem and should be fired. Muller also informed Budney that Wheeless and Smith were requiring a walk-down and that Cumbest was not the problem. (Def.'s Mot. Ex. H, at 10-12, ECF No. 88-8.) Muller then walked out and slammed the door to Budney's office. (Id.) Budney claims that it was difficult to follow what Muller was saying, but Muller did not tell him about any gender discrimination. (Id. at 10-12, 47.) Muller admits that he discussed the pre-consistency meeting with Cumbest, but he denies that he breached confidentiality or acted angry or disrespectful in his meetings with Wheeless and Budney. (Def.'s Mot. Ex. A, at 134, 136, 139, ECF No. 88-1.)

         Muller next went to Mississippi Power's Corporate Concerns[3] office in Gulfport, Mississippi, where he met with Frank Dawson, Brigham Young, and Vicki Pierce and told them his concerns about the way Cumbest and Fayard were treated. (Id. at 110-11.) Pierce perceived Muller's concerns to involve possible gender discrimination, but Dawson did not. Young's testimony regarding this meeting has not been provided to the Court.

         Pierce also contacted the plant's human resources representative, Ginger Lehman, and asked her whether human resources was getting ready to terminate Muller. (Def.'s Mot. Ex. R at 23, ECF No. 88-18.) Due to this conversation, Lehman assumed that Muller had filed a claim, but she did not know the details of the claim. (Id.) Lehman then told Wheeless that Muller had filed some form of complaint with Employee Concerns. (Id. at 24.)

         Pierce, Young, and Dawson called Employee Relations[4] Coordinator Jennifer Krohn to inform her of Muller's accusations and the punishment imposed on him. (Pl.'s Mot. Ex. 7, at 45-46, ECF No. 90-7.) Pierce also notified Mississippi Power's Vice President of Generation Allen Reaves of Muller's gender discrimination allegations. (Id. at 34, 41.)

         Pierce wrote the following notes concerning her conversations with Lehman, Krohn, and Reaves:

Apparently, Ginger [Lehman] called Allen [Reaves] or [Hardy Wheeless], so now they want to terminate [Mark Muller]. [Jennifer Krohn] told them not to do that. Allen [Reaves] finally called me back. He was short and aggravated. Said he had a whiner down here and 250 up there that need a job, and this guy needs to be fired. I said we have four people saying four different things. And now we also have a concern about two women being targeted. . . . Are they retaliating against this guy for coming to us because now they are suspending him until Monday without pay[?] What happened from yesterday to today, that warrants a suspension until Monday[?]

(Id. at 45-46.) Pierce explained that she did not know for certain that Lehman had called Reaves or Hardy Wheeless; she was just assuming that Lehman had done so.

         She further explained:

My concern was that the day before Mr. Muller said he was being suspended, and then we find out that he's going to be terminated. So I was worried that somebody had communicated out of school[, ] and this might be a case of retaliation. We confirmed that there had not been any communication between people. That was my concern.

(Id. at 40.) She could not recall who the four people were who were saying four different things, but it may have been Muller, Reaves, Lehman, and Krohn. (Id. at 46-47.)

         Dawson investigated Muller's claims by interviewing Kim Washington, a member of the plant leadership team who was present at the meetings Muller referenced. (Pl.'s Mot. Ex. 10, at 32, ECF No. 90-10.) Washington stated that she had not seen any unjust or unwarranted actions taken against Cumbest or Fayard. (Id.) Dawson also reviewed the employee evaluations concerning Muller's team. (Id. at 28.) He did not interview Cumbest or Fayard. (Id. at 32.) After he concluded his investigation, he met with Pierce and Shelly Rice[5] to discuss his findings, and they determined that there was no evidence of unfair treatment that would justify interviewing Fayard and Cumbest. (Id. at 34.) They decided that if either Cumbest or Fayard came forward with a specific allegation, an investigation would be conducted. (Id. at 37.)

         On July 18, 2017, Employee Relations Manager Norman Collins sent an email to Reaves that contained Muller's vacation balance, the date on which Muller began working for Mississippi Power, and Muller's birth date, including a notation that Muller would turn 62 in September. (Pl.'s Resp. Ex. 14, ECF No. 90-14.) Reaves replied that Muller had taken a lot of vacation time, and Collins responded, “Typical of a lot of the folks at the plants. I really think he's been unhappy with the move and has been thinking retirement for a while.” (Id.)

         When Collins was asked about this email exchange at his deposition, he testified, “[W]hen it is determined that this person needs to be separated from the company, we look at the easiest way for - that we can do that to ease the pain of the employee.” (Def.'s Mot. Ex. Q, at 36, ECF No. 88-17.) Collins explained that he wanted Reaves to know that Muller was close to his sixty-second birthday and the amount of vacation time available, so that they could make Muller an offer if he chose to resign in lieu of termination. (Id. at 36-37.) Reaves elaborated that “the question was could we bridge him to age 62 with vacation or grant him additional vacation to carry him to some retirement date.” (Def.'s Mot. Ex. E, at 58, ECF No. 88-5.) Reaves testified that he ...

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