Trainer v. Supreme Beverage Company, Inc.

Filing 38

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 1/10/13. (KGE, )

FILED
2013 Jan-10 PM 02:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALLEN TRAINER,
Plaintiff,
v.
SUPREME BEVERAGE COMPANY,
INC.,
Defendant.

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CIVIL ACTION NO.
2:11-cv-00057-WMA

MEMORANDUM OPINION
As will hereinafter become apparent, the above-styled case
bears little similarity to Collins v. Supreme Beverage Co., Inc.,
CV 11-0058-AR, a case in which this court recently denied the
motion of defendant Supreme Beverage Company, Inc’s (“SBC”) for
summary judgment.

The only real similarity between the two cases

is that the plaintiffs in both cases are black and are former SBC
employees who complain of racial discrimination.
Before the court in the above-styled case is SBC’s motion for
summary judgment, as it did in CV 11-0058-AR, seeking dismissal of
the action.

(Doc. 24).

Plaintiff Allen Trainer (“Trainer”), a

black male, claims that SBC violated 42 U.S.C. § 1981 (“§ 1981")
and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”), and retaliated against him in violation of
Title VII.

Trainer includes “cookie cutter” state law claims for

intentional infliction of emotional distress and negligent hiring,
supervision, training, and negligent

retention.

For the reasons

set forth below, SBC’s motion for summary judgment will be granted.
On October 1, 2012, this court entered an order granting SBC’s
motion to strike portions of Trainer’s response filed in opposition
to SBC’s motion for summary judgment.

(Doc. 37).

Trainer did not

oppose SBC’s said motion to strike, which was clearly due to be
granted.

For Rule 56 purposes, the court will only consider the

portions of Trainer’s brief that have not been stricken and that
are supported by admissible evidence.
BACKGROUND1
SBC, located in Birmingham, Alabama, is a wholesale beverage
distributor that sells beverages, primarily beer and Red Bull, to
restaurants and retail outlets.

In June 2006, Trainer interviewed

for a job at SBC with Mike Windham (“Windham”), SBC’s Operations
Manager, and James Collins (“Collins”), SBC’s Delivery Manager.
Windham is white.

Collins is black.

plaintiff in CV 11-0058-AR.

Collins was and is the

On June 5, 2006, SBC hired Trainer as

a back-up driver at the rate of $525.00 per week.
SBC,

Trainer

reported

to

Windham

and

While working at

Collins.

During

his

employment, Trainer’s job changed, and he became a side-bay driver
and then later a bulk delivery driver.

Trainer asked Windham to be

moved to a bulk delivery position, and Windham moved him to that
position.

On November 30, 2006, Windham approved a merit increase

1

Based on the procedural posture of this case, all facts and
their reasonable inferences are viewed in the light most
favorable to Trainer.
2

for Trainer from $525.00 per week to $550.00 per week.
Reprimand, Suspension, and Termination
On the evening of December 4, 2006, Trainer celebrated too
much at his birthday party.

The next day, Trainer called Windham

and told him that he was not going to be able to come to work.
Trainer contends that he did not tell Windham why he was not coming
to work.
him a

On December 11, 2006 Windham met with Trainer and gave

written

reprimand

that

stated:

“Allen

Trainer

said

he

celebrated his birthday too much and could not come to work because
be celebrated too much.”
absence.

Windham did not treat this an excused

Trainer has offered no evidence of a policy by SBC to

give an employee an excused absence on his birthday.
On May 25, 2007, one of Trainer’s customers cut several cases
of beer from its order.

Trainer left the excess beer at the

customer’s store and told the SBC salesperson on the account to
pick it up.

Trainer says he believed that the excess was the

salesperson’s fault.

Collins told Trainer that he needed to go

back and get the excess beer or that his paycheck would be docked
for the value of the beer he left at the store.

Trainer went back

to the store, picked up the beer, and brought it back to SBC.

He

then left work without delivering product to the remainder of his
route.

According to Trainer, he did not have time to complete his

deliveries because he had to pick up his son from school.
25,

2007,

Windham

suspended

Trainer

3

for

three

On May

days

for

“insubordination” and “substandard work quality” based on this
incident.
On the morning of June 8, 2007, Buster Tate (“Tate”), SBC’s
Warehouse Manager, filled in for Collins, counting out deliveries
and dispatching delivery trucks.
is black.

Tate, like Trainer and Collins,

Trainer complained to Tate that not all of the product

on his delivery truck was for his regular stops.

There is some

dispute as to the subsequent events, but it is undisputed that
Trainer and Tate exchanged words.

Their exchange culminated in

Tate’s reporting to Windham that Trainer was refusing to deliver
his load.

Tate then asked another employee, Joe Winborn, to take

Trainer’s route that day.
When Tate reported Trainer to Windham for refusing to deliver
his load, Windham asked Tate what he should do.

Tate told Windham

that they “might as well just let [Trainer] go.”
terminated that same day, June 8, 2007.

Trainer contends that he

was not given a reason for his termination.
Trainer was

terminated

for

“violation

Trainer was

SBC asserts that

of policies/procedures”

because he failed to do his job.
Trainer’s Complaints of Racial Discrimination and Retaliation
Trainer testified that he complained to his supervisor, Mike
Windham (“Windham”), in December 2006 about race discrimination and
that unfair loads and routes were assigned to the black drivers.
He further testified that on June 1, 2007, he submitted a written

4

complaint regarding discrimination that he had been subjected to
while working at SBC.
Although of little relevance, before working at SBC, Trainer
worked

at

Adams

Produce,

Williams, and Cox Pools.

Piggly

Wiggly,

United

Trophy,

Tom

Trainer filed a law suit against Piggly

Wiggly for wrongful termination, and filed a law suit against Cox
Pools for discrimination.
DISCUSSION
I.

Race Discrimination Claims2

Disparate Treatment
Trainer contends that he, as well as other black drivers, were
treated less favorably than white drivers.

Specifically, he

asserts that he and other black drivers (1) received harder loads
and delivery routes than white drivers; (2) were reprimanded for
not coming to work while white employees were not reprimanded; (3)
were required to provided documentation for absences while white
employees were not; (4) were disciplined for failing to deliver
their loads while white drivers returned undelivered product and
were not disciplined; and (5) that black drivers that were robbed
were required to pay the stolen money back while white drivers were
not.
2

Trainer initially asserted claims for both racial
harassment and discrimination. Because Trainer has failed to
address the racial harassment claim in his brief, it is deemed
abandoned. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587,
599 (11th Cir. 1995).
5

To establish a prima facie case of race discrimination under
Title VII3 Trainer must show (1) that he belongs to a racial
minority, (2) that he was subjected to adverse job action, (3) that
SBC

treated

similarly

situated

employees

outside

of

his

classification more favorably, and (4) that he was qualified to do
the job.

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.
Ct. 1817, 1824 (1973)).
There is no dispute that Trainer belongs to a protected froup
under Title VII and § 1981 and that he was reprimanded, suspended,
and terminated.

Trainer, however, has presented no evidence that

any of these actions was based on his race or manifested a policy
of disparate treatment of blacks.

Without any evidence of such

disparate treatment, Trainer’s claim for racial discrimination must
fail.
Delivery Loads and Routes
Trainer contends that he and other black drivers were assigned
“worse” loads and delivery routes than white drivers.

Trainer has

presented no evidence whatsoever to support this claim.

To the

contrary, it is undisputed that Trainer worked on a bulk delivery

3

Title VII and § 1981 race discrimination claims are
analyzed using the same analytical framework. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Therefore, the court will explicitly address the Title VII claim
with the understanding that the analysis applies to the § 1981
claim as well.
6

route, which he admits is “easier” than other routes. He explained
that the worse routes are those in areas where the driver is likely
to be robbed.

It is undisputed that white drivers also had routes

in these “bad” neighborhoods and had been robbed and that Trainer
was never robbed while working for SBC.
Reprimanded for Absenteeism
Trainer also contends that he was reprimanded for not coming
to work while white employees would be absent from work without
consequence.

Trainer, however, admits that he has no personal

knowledge of why other employees were absent or whether or not they
were reprimanded for their absenteeism.
evidence to support this contention.

Trainer has offered no

In fact, it is undisputed

that two white employees, James Thornton (“Thornton”) and Chris
Phelps (“Phelps”), were both disciplined, and that Phelps was
ultimately terminated for his absenteeism.
Required Documentation for Absenteeism
Trainer contends that he was required to provide documentation
for his absences while white employees were not.

Again, Trainer

admits that he has no personal knowledge of other employees being
required to provide documentation for absences.
Failure to Deliver Loads
Trainer also contends that he was disciplined for failing to
deliver his load, but SBC did not discipline white employees who
returned undelivered product.

Again, Trainer admits he has no
7

personal knowledge upon which to base this assertion. Furthermore,
it is undisputed that Thornton, a white employee, was terminated
precisely for failing to deliver his assigned load.
Black Drivers Who Were Robbed Were Required to Pay the
Money Back
Trainer next contends that SBC required black drivers who were
robbed to reimburse the company, but did not require white drivers
to do the same.

There is no evidence to support this assertion.

Furthermore, it is undisputed that SBC required both Freddie
Gaines, a black driver, and Thornton, a white driver, to reimburse
SBC after having been robbed.
Discriminatory Termination
Trainer next contends that he was discharged because of his
race.

In the absence of direct evidence of discrimination, a

plaintiff depending upon circumstantial evidence under Title VII
and § 1981, as Trainer does here, must rely on the burden-shifting
framework set forth in Texas Department of Community Affairs v.
Burdine and McDonald Douglas Corp. v. Green.

450 U.S. 248, 101 S.

Ct. 1089 (1981); 411 U.S. 792, 93 S. Ct. 1817 (1973).

To prevail

on a claim of discriminatory termination, Trainer must show that
“(1) he is a member of protected class; (2) he was qualified for
the position; (3) he suffered an adverse employment action; and (4)
he was replaced by a person outside his protected class or was
treated less favorably than a similarly situated individual outside
of his protected class.” Maynard v. Bd. of Regents, 342 F.2d 1281,
8

1289 (11th Cir. 2003).
SBC does not dispute that Trainer has satisfied the first
three elements of his discriminatory termination claim.

Instead,

SBC points out that Trainer has failed to show that he was he was
not replaced by someone outside of his protected class and because
he cannot show that any similarly situated person outside of his
protected class engaged in substantially the same conduct, but was
not terminated.
It is undisputed that Trainer was replaced by a black driver.
See Hawkins v. CeCo Corp., 883 F.2d 977, 984 (11th Cir. 1989)
(“Because [the plaintiff] did not meet the fourth requirement of
showing he was replaced by a white, he failed to establish a prima
facie case.”); see also Coleman v. Braniff Airways, Inc., 664 F.2d
1282 (5th Cir. 1982).

Neither has Trainer shown that a similarly

situated employee outside of his protected class received more
favorable treatment.

Specifically, Trainer has failed to present

any evidence that a white employee got into an argument with his
manager and refused to deliver his load and was not terminated.

In

fact, it is undisputed that Thornton, the white employee whom
Trainer contends was treated differently, was terminated by SBC for
failure to deliver his load.

See Jones v. Bessemer Caraway Med.

Ctr., 137 F.3d 1306, 1311 (11th Cir. 1998) (“If a plaintiff fails
to identify similarly situated, non-minority employees who were
treated more favorably, [his] case must fail because the burden is

9

on [him] to establish [his] prima facie case.”).
failed

to

establish

a

prima

facie

case

for

Trainer has
discriminatory

discharge.
Even assuming that Trainer could establish a prima facie case
of discriminatory discharge, his claim fails because SBC has
articulated legitimate, non-discriminatory reasons for Trainer’s
discharge, and Trainer has failed to produce any evidence to
suggest that SBC’s reasons are a mere pretext.

SBC has provided

legitimate, non-discriminatory reasons for Trainer’s termination,
namely, insubordination and violation of company policies, both of
which are legitimate, non-discriminatory reasons to terminate an
employee.

See Ferrell v. Masland Carpets, Inc., 97 F. Supp. 2d

1114 (S.D. Ala. 2000) (citing Damon v. Fleming Supermarkets of
Fla., 196 F.3d 1354, 1361 (11th Cir. 1991)).

SBC took the advice

given it on June 8, 2007 by Trainer’s fellow employee, who is
black.

Trainer has offered no evidence that SBC’s proffered

reasons were a pretext for discriminatory conduct.
II.
Title

Retaliation
VII

prohibits

retaliation

against

an

employee

(1)

“because he has opposed” discrimination prohibited by Title VII
(the “opposition clause”) or (2) “because he has made a charge,
testified,

assisted

investigation,

or

participated

proceeding,

“participation clause”).

or

hearing”

in

any

under

42 U.S.C. § 2000e-3(a).
10

manner
Title

in

VII

an
(the

Retaliation is

a distinct claim, and a plaintiff is not required to prove an
underlying claim of a discriminatory act against him in order for
the retaliation claim to succeed. Sullivan v. Nat’l R.R. Passenger
Corp., 170 F.3d 1056, 1059 (11th Cir. 1999).
To establish a case of retaliation under Title VII, Trainer
must

show

that:

“(1)

he

engaged

in

a

statutorily

protected

activity; (2) he suffered an adverse employment action; and (3) he
established a causal link between the protected activity and the
adverse action.”

Sharpe v. Global Sec. Int’l, 766 F. Supp. 2d

1272, 1300 (S.D. Ala. 2011) (quoting Bryant v. Jones, 575 F.3d
1281, 1307-08 (11th Cir. 2009)). Once Trainer has established a
prima facie case of retaliation, “the burden shifts to [SBC] to
rebut

the

presumption

of

retaliation

by

reasons for the adverse employment action.”

producing

legitimate

Id. (quoting Raney v.

Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th Cir. 1997)).
If SBC offers legitimate reasons for the adverse employment action,
the presumption of retaliation disappears. Id. (citing Raney, 120
F.3d at 1196).

Trainer is then required to show that SBC’s

proffered reasons for taking the adverse employment action were a
pretext for the prohibited retaliatory conduct.

Id. (citing

Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)).
The parties agree that Trainer has satisfied the first two
elements of a prima facie case of retaliation, namely, that he
engaged in a statutorily protected expression and that he suffered
11

an adverse employment action.

Specifically, SBC does not dispute

that Trainer’s December 2006 complaints to Windham and his June 1,
2007 letter were protected activities and that he suffered an
adverse

employment

terminated.

actions

when

he

was

suspended

and

later

The parties disagree, however, as to whether there is

a causal connection between Trainer’s complaints and his subsequent
suspension and termination.
Before the court discusses the causation question as to the
suspension or the termination, the court notes that Trainer’s
retaliation claim based on his December 11, 2006 reprimand for his
absence on December 5, 2006 is barred as untimely.

To make a claim

related to any retaliation that arguably occurred on December 11,
2006, Trainer was required to file his EEOC charge within 180 days,
a period that ended on June 9, 2007.

See Rizo v. State of Ala.

Dept. of Human Res., No. 06-13261, 2007 WL 278587 at *2 (11th Cir.
Jan. 31, 2007) (citing 29 C.F.R. § 1626.7(a)).
file his EEOC charge until August 29, 2007.

Trainer did not

Any claim based on the

reprimand must be dismissed because of Trainer’s non-exhaustion of
his EEOC remedy.
The causal connection element of a retaliation claim is
interpreted broadly and only requires that the plaintiff prove that
“the protected activity and the negative employment action are not
completely unrelated.”

Goldsmith v. Bagby Elevator Co., Inc., 513

F.3d 1261, 1278 (11th Cir. 2008) (quoting Olmsted v. Taco Bell

12

Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)).

Causation may be

inferred by a close temporal proximity between the protected
expression and the adverse employment action.

Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

But, to be

effectual mere temporal proximity, without more, must be “very
close.” Byrne v. Ala. Alcoholic Beverage Control Bd., 635 F. Supp.
2d 1281, 1298 (M.D. Ala. 2009) (citing Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508 (2001) (per curium)).
Specifically, the Eleventh Circuit has explained that “[i]f there
is a delay of more than three months between the two events, then
the temporal proximity is not close enough, and the plaintiff must
offer some other evidence tending to show causation.” Henderson v.
FedEx Express, 442 Fed. Appx. 502, 506 (11th Cir. 2011) (citing
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007)).
More than five months elapsed between Trainer’s December 2006
complaints to Windham and his suspension for failing to complete
his deliveries on May 25, 2007 (and even longer between the said
complaints and his termination).

This gap is too long to permit an

inference of causal connection.

See Henderson v. FedEx Express,

442 Fed. Appx. 502, 506 (11th Cir. 2011) (“If there is a delay of
more than three months between the two events, then the temporal
proximity is not close enough, and the plaintiff must offer some
other evidence tending to show causation.”).
13

The temporal gap between Trainer’s June 1, 2007 written
complaint and his termination on June 8, 2007 is “very close” and
would make out a jury question if believed and if not interrupted
by

Trainer’s

conduct

on

June

8,

2007,

the

very

day

of

his

termination. However, Trainer has offered no evidence to establish
that the termination decisionmakers, Windham and Tate, were aware
at the time he was terminated that Trainer had made a written
complaint of discrimination on June 1, 2007.

Without such proof,

Trainer’s June 1, 2007 letter cannot be used as a triggering date.
Even if it is presumed that Windham and Tate were aware of
Trainer’s letter, Trainer’s earlier conduct on June 8, 2007 in
refusing to make his deliveries breaks any possible causal link
between his earlier complaints and his termination. See Henderson,
442 Fed. Appx. at 506 (“Intervening acts of misconduct can break
any causal link between the protected conduct and the adverse
employment action.”).
“A Convincing Mosaic of Circumstantial Evidence”
In the “conclusion” section of Trainer’s brief, he argues that
his case is just “one piece of the puzzle of race discrimination
and retaliation occurring at SBC.”

He is apparently trying to

connect himself to plaintiffs in other cases brought against SBC in
this court, such as CV 11-0058-AR.

He says: “[t]his is precisely

the ‘convincing mosaic of circumstantial evidence that would allow
a jury to infer intentional discrimination by the decision’ (and in
14

this case retaliation as well) as allowed by Smith v. LockheedMartin Corporation, 644 F.3d 1321 (11th Cir. 2011).” Trainer falls
well short of the standard established in Lockheed-Martin.
Like the plaintiffs in Brown v. Berg Spiral Pipe Corp. and
Hossain v. Steadman, Trainer is a “few tiles short of a mosaic, let
alone a convincing one.”

Case No. 10-237-CG-B, 2011 WL 3610646

(S.D. Ala. Aug. 17, 2011); 855 F. Supp. 2d 1307, 1316 (S.D. Ala.
2012) (quote from Hossain).

In Brown the court explained the

Eleventh Circuit’s holding in Lockheed-Martin:
[A} plaintiff could survive summary judgment despite the
fact that he could not point to a comparator, because the
plaintiff produced a significant evidentiary record
(“convincing mosaic”) that Lockheed-Martin had considered
the plaintiff’s race in their decision to terminate him.
This evidence included (i) a spreadsheet which listed
employees by name and race; (ii) a documented history of
inconsistent treatment of white and African-American
employees; and (iii) a television news expose covering
racial tension and workplace violence at Lockheed-Martin.
Brown, 2011 WL 3610646 at *15.
mosaic in this case.

Trainer has put together no such

This court cannot take judicial notice of

other SBC cases that may or may not provide evidence relevant to
Trainer’s claims.
III. State Law Claims
Trainer’s

supplemental

claims

for

negligent

hiring,

supervision, training, and negligent retention are due to be
dismissed because he has not presented any evidence to establish

15

the

necessary

underlying

tort

that

Alabama

law

requires

for

pursuing them. Under Alabama law, “[a] party alleging negligent or
wanton hiring, supervision, training, and retention must prove the
underlying wrongful conduct of employees.”

Thornton v. Flavor

House Prods., Inc., Case No. 1:07-cv-712-WKW, 2008 WL 5328492, at
*19 (M.D. Ala. Dec. 19, 2008) (citing Voyager Ins. Cos. v. Whitson,
867 So.

2d

1065

(Ala.

2003)).

Additionally,

the

underlying

wrongful conduct must be a “‘common-law, Alabama tort’ committed by
the employee, not [] a federal cause of action such as Title VII.”
Ellis v. Advanced Tech. Servs., Case No. 3:10-cv-555-WHA, 2010 WL
3526169, at *2 (M.D. Ala. Sept. 3, 2010) (quoting Thrasher v. Ivan
Leonard Chevrolet, Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala.
2002)).
The only state law claim that Trainer has asserted that is not
otherwise precluded is his claim for intentional infliction of
emotional distress.

Because such a claim is frowned upon in

Alabama requires egregious conduct beyond what Trainer alleges,
and because Trainer has not addressed any such claim in his brief,
it is either deemed abandoned or must be dismissed for lack of
colorable merit. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 599 (11th Cir. 1995).
Trainer

cannot

maintain

Without an underlying tort claim,
his

claims

for

negligent

hiring,

supervision, training, and negligent retention, and his termination
after his argument with Tate was not so outrageous as to be
16

actionable.
CONCLUSION
For the foregoing reasons, SBC’s motion for summary judgment
will be granted.

A separate order will be entered effectuating

this opinion.
DONE this 10th day of January, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

17