Mitchell v. Evergreen Transport
MEMORANDUM OPINION AND ORDER For the reasons stated within, Evergreen's motion for summary judgment, 32 , is DENIED. Signed by Judge Abdul K Kallon on 11/15/2013. (PSM)
2013 Nov-15 AM 10:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Civil Action Number
MEMORANDUM OPINION AND ORDER
Eric Mitchell, who is African American, claims his former employer, Evergreen
Transport, LLC (“Evergreen”), discriminated against him based on his race and
discharged him in retaliation for complaining about discrimination, in violation of
Title VII of the Civil Rights Acts of 1964 (“Title VII”), and 42 U.S.C. § 1981.
Evergreen moved for summary judgment, doc. 32, contending that Mitchell cannot
establish a prima facie case of discrimination or retaliation, or, alternatively, cannot
demonstrate that the proffered reason for his termination is pretextual.1 The motion
is fully briefed, docs. 33, 37, and 38, and for the reasons stated below, is DENIED.
Evergreen also moved to strike Paragraph 4 of Mitchell's declaration, doc. 39, which
states, “About the memo John Dykes wrote about me reporting to him that William Miller yelled
at me ‘N----- Please,’ I have to say I do not remember that. I will say that, if I went into the office
and reported it to John, then it happened.” Doc. 36-3, ¶ 4. In light of Mitchell’s admission that he
does not have personal knowledge of Miller’s racial slur, the motion to strike Paragraph 4 is
GRANTED. See Fed. R. Civ. P. (c)(4) (“An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge.”).
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I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, 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.” “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). 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 about a material fact 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). The court must
construe the evidence and all reasonable inferences arising from it in the light most
favorable to the non-moving party. Id. 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)).
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II. FACTUAL BACKGROUND2
Evergreen hired Mitchell as a driver in July, 2011. Doc. 34-1 at 8–9. Mitchell
worked the night shift from 6:00 p.m. to 6:00 a.m., hauling lime from Evergreen’s
terminal in Calera, Alabama, to U.S. Steel in Fairfield, Alabama. Id. at 11. Evergreen
discharged Mitchell on October 4, 2011. Id. at 9.
During his employment, Mitchell experienced several racial slurs. The first
occurred a month after his hiring, when Randy Cox (“Cox”), another driver, referred
to Mitchell as the “N” word. Id. at 21–22. Sometime later, Cox again called Mitchell
the “N” word. Id. at 21. Mitchell reported Cox to Safety Supervisor John Dykes
(“Dykes”). Id. at 23. Later that month, William Miller (“Miller”), another driver for
Evergreen, yelled “N----- PLEASE” at Mitchell after a verbal altercation regarding
preloading trailers. Doc. 34-3 at 14. Mitchell also reported Miller to Dykes, who, in
turn, reported the incident to the Director of Safety and Compliance, Randy Watson
(“Watson”), and the Human Resources Manager, Sharon Cook (“Cook”). Id.; docs.
These are the “facts” for summary judgment purposes only and may not be the actual
facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir.
1994). The court has gleaned these facts from the parties’ individual submissions of facts
claimed to be undisputed, their respective responses to those submissions, and the court’s own
examination of the evidentiary record. Finally, all reasonable doubts about the facts have been
resolved in favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281
F.3d 1220, 1224 (11th Cir. 2002).
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34-5 at 5–6; 34-3 at 8; 36-2 at 3.3
In late August or early September 2011, about two weeks after their verbal
altercation, Mitchell and Miller engaged in a physical altercation. Doc. 34-1 at 23.
The incident started after both arrived at the plant to load lime. After loading his
trailer, Mitchell left his truck at the loading station and went into an office to retrieve
paperwork. Id.; Doc. 34-3 at 4. When Mitchell returned, he discovered that someone
had moved his truck. Doc. 34-1 at 23. As a result, Mitchell asked Miller if he moved
the truck, which prompted Miller to respond, “F you and your truck.” Id. Apparently
feeling that he needed to do more than curse, Miller jumped off the steps of his truck
and chest bumped Mitchell, causing both men to grab each other and tussle. Id. At the
end of their skirmish, the two men visited the dispatcher, who told them to return to
work and promised to sort out the issue the next morning. Id. at 24–25. However,
Evergreen waited a few days to address the incident. Id. at 25. In the interim, the
situation escalated. For example, Miller tailgated Mitchell one night while the two
traveled back to the plant from U.S. Steel. Id. at 27. That same night, as Mitchell
There is some confusion over who called Mitchell the “N” word. Mitchell indicates that
Cox used the racial slur twice, and that no one else at Evergreen directed such language at him.
Doc. 34-1 at 23. However, in reporting an incident to Dykes, Mitchell alleged that Miller called
him the “N” word as well. Doc. 34-3 at 14. Although Mitchell’s declaration regarding this
occurrence was stricken, see supra note 1, there is sufficient evidence in the record from which a
reasonable jury could conclude that Miller yelled a racial slur at Mitchell. See Anderson, 477
U.S. at 248 (it is not the court’s duty to weigh the evidence). Taken in a light most favorable to
Mitchell, Cox called Mitchell a racial slur twice, and Miller called him a racial slur once.
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unhooked his trailer, Miller tried to hit him with his truck. Id. 25–26. Mitchell
reported both incidents to the dispatcher. Id. 26–27.
On September 2, 2011, Watson conducted a counseling session to discuss the
altercations between Mitchell, Miller, and Cox. Docs. 34-3 at 6; 34-1 at 87. Because
each party denied the allegations against him and had no witnesses to support their
respective contentions, Watson was unable to make any determinations. Doc. 34-3
at 5–6. Nonetheless, Watson issued each driver a final warning and purportedly told
Mitchell that he did not believe any of his allegations.4 Docs. 34-1 at 54; 34-3 at 6.
On October 3, 2011, Ronnie Kent (“Kent”), Vice President of Operations,
received a notice that Mitchell and Miller failed to follow dispatch orders regarding
preloading trailers. Docs. 34-2 at 11, 27. As part of their duties, Evergreen required
each driver to preload his trailer at the end of each shift. Id. at 9–10. This entails
loading the trailer with lime at the Lhoise lime manufacturing plant, driving it half a
mile to Evergreen’s terminal, and leaving it there before leaving for the day. Docs.
34-1 at 15; 34-2 at 12. Mitchell contends that he simply objected to preloading a
particular trailer that he believed carried too much weight for him to legally transport,
and that he complied with the dispatcher’s instruction for him to preload a different
Watson claims that he told all three drivers, “It’s obvious that one or more of you are
lying to me.” Doc. 34-3 at 6.
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trailer. Doc. 34-1 at 18, 50. In any event, the next day, Kent initiated a counseling
session by conference call to discuss these issues with Mitchell, and discharged
Mitchell when Mitchell purportedly stated that “he would not [preload] . . . [a]ny
trailers.” Docs. 34-2 at 11, 13; 34-1 at 32. Allegedly, Kent also told Mitchell that he
did not believe Mitchell’s complaints of discrimination.5 Id. at 52. Kent discharged
Miller the next morning for also refusing to preload trailers. Doc. 34-2 at 16.
Mitchell maintains that discriminatory and retaliatory animus motivated his
discharge. See docs. 1, 9, 30, and 31. Since Title VII and § 1981 claims “have the
same requirements of proof and use the same analytical framework, [the court] shall
explicitly address [Mitchell’s] Title VII claim[s] with the understanding that the
analysis applies to the § 1981 claim[s] as well.” Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1330 (11th Cir. 1998). In that respect, because Mitchell is relying
exclusively on circumstantial evidence, the burden of proof is ordinarily governed by
the McDonnell Douglas framework. Id. at 1331 (discrimination); Pennington v. City
of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (retaliation). The McDonnell
It is unclear whether Kent actually said this because Mitchell contradicts himself several
times during his deposition testimony. See doc. 34-1 at 32, 52, 54. There is evidence that
Mitchell attempted to bring up his discrimination complaints during his termination meeting, but
was quickly informed that the meeting was to discuss his performance issues. Docs. 36-2 at 5;
34-4 at 4–5.
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Douglas framework first “requires the plaintiff to create an inference of
discrimination [or retaliation] through [his] prima facie case.” Springer v. Convergys
Customer Management Group, Inc., 509 F.3d 1344, 1347 (11th Cir. 2007) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Once a plaintiff
establishes a prima facie case, the burden shifts to the employer to articulate a
legitimate, non-discriminatory or non-retaliatory reason for its actions. McDonnell
Douglas, 411 U.S. at 802; Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the employer meets this burden, the plaintiff must show that the proffered
reasons were pretextual. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
The parties spend multiple pages arguing whether Mitchell can establish a
prima facie case since he does not offer an appropriate comparator. See docs. 33 at
15–16; 37 at 7–9; 38 at 2–5. The court does not have to resolve whether Jones v.
Gerwens, 874 F.2d 1534 (11th Cir. 1989), as Mitchell contends, or Jones v. Bessemer
Carraway Medical Center, 137 F.3d 1306 (11th Cir. 1998), superseded in part, 151
F.3d 1321 (11th Cir. 1998) (denial of rehearing), as Evergreen contends, is
dispositive of the issue because “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.
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Accordingly, the plaintiff’s failure to produce a comparator does not necessarily
doom the plaintiff’s case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328
(11th Cir. 2011) (emphasis added). Instead, where, as here, the plaintiff “presents
circumstantial evidence that creates a triable issue concerning the employer’s
discriminatory intent”—the essential element of a claim for discrimination—“the
plaintiff will always survive summary judgment.” Lockheed-Martin, 644 F.3d at
1328. And indeed, “a triable issue of fact exists if the record, viewed in the 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.’” Id.
(quoting Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th Cir. 2011)).
Mitchell creates the “triable issue concerning the employer’s discriminatory
intent” in light of his testimony that Randy Watson told him shortly before the
discharge that Watson did not believe his complaints of discrimination and
harassment—a fact Watson disputes, and a similar statement which Kent may or may
not have repeated while discharging Mitchell—and evidence that Mitchell only
declined to preload a specific trailer he felt was too heavy and not all trailers, as the
decisionmaker Kent contends. Whether Mitchell had the right to reject a load for
safety reasons—presumably he did since the dispatcher simply assigned him another
load—is irrelevant at this juncture since Kent claims he discharged Mitchell
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purportedly for stating “he would not [preload] . . . [a]ny trailers.” Doc. 34-2 at 13.
This dispute regarding what actually happened and the possibility that Evergreen
empowered its drivers to reject loads for safety reasons, coupled with the alleged
comments by Watson and Kent that they did not believe Mitchell’s reports of
discrimination, are sufficient at this juncture to create a triable issue concerning
Evergreen’s discriminatory intent.
To make a prima facie case of retaliation, Mitchell “must present evidence that:
(1) he engaged in statutorily protected conduct; (2) he was adversely affected by an
employment decision; and (3) there was a causal connection between the statutorily
protected conduct and the adverse employment decision.” Drago v. Jenne, 453 F.3d
1301, 1307 (11th Cir. 2006). The issue here is whether Mitchell engaged in statutorily
protected conduct. To demonstrate that he engaged in a protected activity under the
opposition clause,6 Mitchell “must show that he ‘had a good faith, reasonable belief
that the employer was engaged in unlawful employment practices.’” Weeks v. Harden
Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir. 2002) (quoting Little v. United Tech.,
“Title VII’s retaliation provisions do protect certain kinds of activity. Under the
opposition clause, an employer may not retaliate against an employee because the employee ‘has
opposed any practice made an unlawful employment practice by this subchapter.’” E.E.O.C. v.
Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (quoting 42 U.S.C. § 2000e–3
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Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)). “It . . . is not enough
for a plaintiff to allege that his belief in this regard was honest and bona fide; the
allegations and record must also indicate that the belief, though perhaps mistaken,
was objectively reasonable.” Little, 103 F.3d at 960.
Mitchell engaged in statutorily protected conduct
Evergreen argues that it is not objectively reasonable to believe Mitchell’s
complaints were protected because the complaints only involved a co-worker’s use
of a racial slur twice in a single day. Doc. 33 at 22–24. This contention overlooks that
Mitchell contends that he reported two different co-workers, Cox and Miller, for
directing racial epithets at him on three separate occasions. Docs. 34-1 at 21–22; 34-3
at 14. Moreover, Mitchell also reported Miller for harassing him by moving his
trailer, chest-bumping him, trying to run him over, and tailgating him on the highway.
Under these facts, it was reasonable for Mitchell to believe that Miller and Cox
harbored racial animus against him in light of the racial slurs directed at him, and that
the harassment was therefore based on race. Further, it was objectively reasonable for
Mitchell to believe that these incidents, occurring within a two month period, and
which included some physically threatening situations, constituted unlawful racial
harassment. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012)
(quotation marks and citations omitted) (alterations in original) (“[W]hen the
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workplace is permeated with [racially] discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment, Title VII is violated.”).
Accordingly, Mitchell’s complaints regarding Cox and Miller are protected by the
opposition clause of Title VII’s anti-retaliation provisions.
Mitchell has established pretext
Evergreen’s alternate contention, i.e., that it has a legitimate, non-retaliatory
reason for discharging Mitchell, also falls short at this juncture because of a factual
discrepancy regarding the basis for the discharge. As stated previously, Mitchell
maintains that he rejected a single assignment because of safety concerns, that
Evergreen simply assigned him another trailer to preload, and that he actually
performed his job duties that night. Again, whether Mitchell had the right to reject a
trailer for safety reasons is a matter the court does not have to address at this juncture
in light of Kent’s testimony that he discharged Mitchell because Mitchell “said he
would not [preload] . . . [a]ny trailers.” Doc. 34-2 at 13. Moreover, while Evergreen
may indeed be within its right to discharge Mitchell for rejecting an assignment even
for safety reasons, where, as here, a decisionmaker articulates a reason for discharge
that is inconsistent with the actual events, it makes this matter best suited for a jury
since it will involve credibility determinations.
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For the aforementioned reasons, Evergreen’s motion for summary judgment,
doc. 32, is DENIED.
DONE, this 15th day of November, 2013.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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