Robinson v. Con-Way Freight Inc

Filing 23

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/25/2014. (PSM)

FILED
2014 Sep-25 AM 08:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NATHAN L. ROBINSON,
Plaintiff,
v.
CON-WAY FREIGHT, INC.,
Defendant.

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Case No.: 2:13-cv-73-AKK

MEMORANDUM OPINION
Nathan L. Robinson filed this lawsuit against his former employer Con-way
Freight, Inc. (“Con-way”), alleging that Con-way discriminated against him in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
(“Title VII”), and § 1981 of the Civil Rights Act of 1866 (“§ 1981”) when it
discharged him in response to an alleged threat Robinson made against a coworker. Doc. 1. Before the court is Con-way’s motion for summary judgment,
which is fully briefed and ripe for review. Docs. 15–17, 19–21. For the reasons set
out fully below, Con-way’s motion is due to be granted.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper
“if the pleadings, the discovery and disclosure materials on file, and any affidavits
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show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “Rule 56(c)
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 BACKGROUND
A. Con-way’s Policies
Con-way has various policies that address work place conduct. Relevant to
this case, under the conduct policy, fighting or horseplay, including “physically or
verbally attacking another person; or engaging in other disorderly conduct or
verbal abuse which, although innocently done, may result in injury or insult to
another; or causing or contributing to disruption of the workplace,” is
“unacceptable” and may subject an employee to discipline including termination.
Doc. 17-2 at 22. Con-way is “committed to providing a safe, violence-free
workplace,” and has “adopted a No Threats or Violence in the Workplace Policy”
that “strictly prohibits employees . . . on Company property . . . from behaving in a
violent or threatening manner.” Id. at 28. With respect to discipline, Con-way does
not follow a rigid disciplinary system, noting that
[i]t is impossible to predict or list every situation that will require
some form of corrective action or even termination. Each case involves its
own particular facts and circumstances, and in every case the company must
take the action that it considers appropriate. Such actions might include oral
warnings, incident reports, written letters of instruction, disqualification
from assignment, suspension or termination of employment.
Id. at 24. Importantly, “the disciplinary process may be initiated at any step
depending on the seriousness of the offense and the appropriateness of the imposed
disciplinary action.” Id.

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B. Robinson’s employment history
Con-way re-hired Robinson as a supplemental driver/sales representative in
May 2002, and subsequently promoted him to a regular position. 1 Doc. 17-1 at 4-5;
17-5 at 4. During his employment, Robinson received multiple disciplinary actions,
including two verbal counseling sessions and twenty-five letters of instruction.
Doc. 17-2 at 35–77. Six of the letters of instruction were for performance
violations, and the rest were for conduct or policy infractions. Id. at 45, 47, 48, 49,
54, 68, 73. The only performance evaluation in the record is from 2007. In it,
Robinson received a satisfactory evaluation, which described him as “a good
worker,” and awarded him scores of 4 (higher range) or 5 (outstanding) in all seven
categories except dependability, in which he received a 2 (lower range). Doc. 20-4
at 2–5. The 2007 evaluation also indicated that Robinson’s evaluations from the
previous three years had ranged from average to satisfactory. Id. The next year, in
2008, Robinson was involved in “horseplay” with another employee that escalated
to insults about each other’s wives, but ended “before it became more than
word[s].” Doc. 17-4 at 18. Apparently, Con-way took no corrective action.

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Robinson worked for Con-way in 1999 in the same position, but resigned after sixteen days for
personal reasons. Docs. 17-1 at 4; 17-5 at 4.
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C. The incident leading to Robinson’s discharge
In September 2011, an employee reported to Timothy Grant, Service Center
Manager, that Michael Thomas verbally assaulted him, and that Thomas was also
involved in an altercation with Robinson in April 2011. Docs. 17-3 at 6; 17-1 at 64.
An investigation ensued that involved Grant meeting with Thomas and Robinson
to obtain statements about the incident. Doc. 17-3 at 7. For his part, Robinson said
the incident started when Thomas jokingly asked Robinson where his “girl” was,
and that when Robinson quipped back that she was “probably with the same person
that’s with [Thomas’s],” Thomas became upset and approached Robinson with a
Leatherman tool, which prompted Tim White to intervene and instruct them to
return to work. Doc. 17-1 at 65, 66. According to Thomas and White, Robinson
and Thomas made threatening gestures when they jumped off of their forklifts and
approached each other, causing Thomas to feel threatened and pull out the
Leatherman tool. Id. at 7-8, 9; docs. 17-2 at 78; 17-4 at 12–13; 17-5 at 15–16, 18.
Grant forwarded the results of his investigation to Jerry McGlown, a Human
Resources Generalist, who instructed Grant to place Robinson and Thomas out of
service. Docs. 17-3 at 11; 17-4 at 5. Thereafter, McGlown forwarded Grant’s notes
to the Human Resources Department with a recommendation that Con-way
discharge Robinson and Thomas. Doc. 17-5 at 6. Human Resources accepted the
recommendation and discharged both men. Id.at 4, 6; doc. 17-1 at 69.
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Robinson appealed the decision to the Employee Termination Review Board
(“ETRB”), which consists of three members of executive management. Docs. 17-2
at 79; 17-5 at 7. According to McGlown, who listened in to the telephone hearing,
Robinson “refused to admit that he engaged in any wrongdoing,” “attempted to
minimize the altercation between him[self] and Mr. Thomas,” and “failed to
express any remorse for his actions.” Id. at 7–8. The failure to admit fault or to
express remorse, as well as an employee’s disciplinary history, are factors the
ETRB considers in deciding whether to overturn a discharge: “In determining
whether to uphold a termination decision, the ETRB considers several factors,
including the circumstances surrounding the termination, the employee’s
disciplinary record, the employee’s admission of misconduct and the employee’s
remorsefulness for his actions.” Id. at 7. In Robinson’s case, the ETRB upheld the
discharge decision. Id. at 8. This lawsuit ensued.
III. ANALYSIS
Title VII and § 1981 claims “have the same requirements of proof and use
the same analytical framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998). Therefore, the court “explicitly address[es] the Title VII
claim with the understanding that the analysis applies to the § 1981 claim as well.”
Id. Generally, “[a] plaintiff may prove a claim of intentional discrimination
through direct evidence, circumstantial evidence, or through statistical proof.”
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Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008). Where, as here, a
plaintiff offers only circumstantial evidence, the court evaluates the sufficiency of
his claim through the burden shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). Under this framework, the
plaintiff bears the initial burden of establishing a prima facie case. McDonnell
Douglas, 411 U.S. at 802. “The successful assertion of a prima facie case then
creates a rebuttable presumption that the employer unlawfully discriminated
against the plaintiff.” Rioux, 520 F.3d at 1275 (internal quotation marks and
citations omitted). The burden then shifts to the employer to produce evidence that
it had a legitimate non-discriminatory reason for the challenged action. Id. If the
employer satisfies its burden, the burden shifts back to the plaintiff to “show that
the proffered reason really is a pretext for unlawful discrimination.” Id. (internal
quotation marks and citations omitted).
Con-way contends that Robinson’s prima facie case fails because Robinson
cannot establish that he was qualified for his position or that Con-way treated him
less favorably than similarly situated employees outside of his protected class.
Alternatively, Con-way asserts that it is due to prevail because Robinson cannot
establish that Con-way’s articulated reason for the discharge is pretextual. The
court will discuss Con-way’s contentions below.

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A. Robinson was qualified for his position
To establish that he was qualified for his position, Robinson must present
evidence that he “satisfied [Con-way’s] objective qualifications.” Vessells v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2002) (citation omitted). A
Title VII “‘plaintiff’s burden in proving a prima facie case is light.’” Davis v. Town
of Lake Park, Fla., 245 F.3d 1232, 1246 (11th Cir. 2001) (quoting Turlington v.
Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998)). The only evidence
in the record that speaks to Robinson’s job performance is his 2007 employee
review, which describes him as “a good worker,” awarded him largely aboveaverage scores, and indicated that his three previous annual evaluations classified
him as an average to above-average worker. Doc. 20-4 at 2–5. In the absence of
any evidence to the contrary concerning Robinson’s performance, the 2007 review
is sufficient to present a prima facie case that Robinson was qualified for his
position.
Con-way contends that Robinson was not qualified for his position because
of his extensive disciplinary record. 2 Doc. 16 at 18–19. Robinson was certainly not
an outstanding employee. In fact, his record is replete with disciplinary actions.
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Con-way cites Baker v. Sears Roebuck & Co. for the proposition that “where a [p]laintiff repeatedly fails to meet
the employer’s performance expectations over an extended period of time, she [is] not qualified for her job and
therefore cannot establish a prima facie case of discrimination.” Doc. 16 at 18 (citing 903 F.2d 1515, 1520–21).
Baker is distinguishable from the present matter for two reasons. First, in Baker, the defendant was dissatisfied with
the plaintiff’s ability to perform her job duties; here, Con-way largely took issue which what it characterizes as
misconduct on Robinson’s part. Second, in Baker, the plaintiff’s long-established failure to meet performance
expectations was the direct cause of the defendant’s decision to take adverse employment action against her; Conway initiated discharge proceedings against Robinson because of the altercation between Robinson and Thomas.

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However, despite this extensive record, there is no evidence that Con-way ever
initiated any action to discharge Robinson prior to the incident at issue here. Put
simply, Robinson’s continued employment belies Con-way’s contention that
Robinson was not qualified for the position he held. See Ruiz v. Cnty. of Rockland,
609 F.3d 486, 492 (2d Cir. 2010) (quoting Owens v. N.Y. City Hous. Auth., 934
F.2d 405, 409 (2d Cir. 1991) (noting that “there is a distinction between
unsatisfactory job performance and misconduct . . . ‘misconduct may certainly
provide a legitimate and non-discriminatory reason to terminate an employee,’ but
that issue is distinct from ‘the issue of minimal qualifications to perform a job’”).
B. Con-way did not treat Robinson less favorably than similarly situated
employees
Con-way challenges Robinson’s prima facie case next by asserting that
Robinson cannot establish that it treated him less favorably than similarly situated
employees. Doc. 16 at 23. When, as here, a plaintiff relies on circumstantial
evidence to prove his discrimination claims, the comparators the plaintiff cites
“must be nearly identical to the plaintiff to prevent courts from second-guessing a
reasonable decision by the employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1091 (11th Cir. 2004).
As alleged comparators, Robinson identifies David Brassfield, Bernie
Brown, Shawn Skellet, Erica Davis, Kim Thompson, and Mike Blevins. Doc. 19 at
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10–14. However, only one of these individuals—Brassfield—engaged in any
conduct remotely similar to Robinson’s. The rest of the individuals engaged in
infractions that are simply not “nearly identical” to Robinson’s. Specifically,
Robinson contends that Con-way (1) failed to discharge Brown for stating he was
not going to be “worked like one of these push button [niggers],” 3 doc. 17-1 at 57;
(2) failed to discharge Skellet for allowing his six-year old son to sit in a fork lift in
violation of company policy 4, doc. 17-1 at 90–91; (3) failed to discharge Davis and
Thompson for stealing time, docs. 17-1 at 80; 17-3 at 16-17; and (4) failed to
discharge Blevins for testing positive for alcohol, docs. 17-1; 17-3 at 21.
Unfortunately for Robinson, although this alleged conduct constitutes serious
infractions and should be addressed by employers, these individuals are not proper
comparators because their infractions are not “nearly identical” to Robinson’s
threats of violence, and consequently, the court cannot consider them as examples
of disparate treatment. As the case law has instructed repeatedly, the infractions
must be “nearly identical” to prevent the court from “second-guess[ing Con-way’s]

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Robinson admits that he did not hear Brown make the purported comment and that he is relying on hearsay relayed
to him by Drayton Davis, a Con-way driver. Id. Unfortunately for Robinson, “Rule [56(c)(4)] of the Federal Rules
of Civil Procedure requires that ‘affidavits’ that support or oppose summary judgment motions ‘shall be made on
personal knowledge, [and] shall set forth such facts as would be admissible in evidence.’ This rule also applies to
testimony given on deposition.” Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). The absence of direct
knowledge on Robinson’s part or evidence to show that his account of Davis’ statements will fall under one of the
hearsay exceptions precludes the court from considering it—even if the alleged conduct were “nearly identical” to
Robinson’s threat of violence.
4
Even viewing the facts in a light most favorable to Robinson, the record fails to support Robinson’s claim because
he admits that he does not know if Con-way disciplined Skellet in response to Robinson’s allegations. Doc. 17-1 at
91. Without more, this conjecture and speculation is insufficient to defeat summary judgment. Ellis, 432 F.3d at
1326.

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reasonable decisions and confus[ing] apples and oranges.” Burke-Fowler v.
Orange Cnty., Fla, 447 F.3d 1319, 1323 (11th Cir. 2006) (citations omitted). To
find fault with Con-way’s purported failure to discipline these employees would
result in the court acting as a super-personnel board and imposing its views on
purported best human resources practices on Con-way—in direct contravention of
the case law. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th
Cir. 2010) (citing Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000))
(“[Courts] do not sit as a ‘super-personnel department,’ and it is not [their] role to
second-guess the wisdom of an employer’s business decisions—indeed the wisdom
of them is irrelevant—as long as those decisions were not made with a
discriminatory motive.”); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th
Cir. 1997) (“[F]ederal courts do not sit to second-guess the business judgment of
employers.”).
The court turns its attention now to Brassfield, who is the only comparator
Robinsons cites that made a threat of violence. Con-way discharged Brassfield
“[o]n March 1, 2008 . . . for violat[ing] . . . company policy. Specifically, Mr.
Brassfield told another employee, who was his relative, that if he had a gun and did
not believe in God, he would kill management.” Doc. 17-5 at 8. Brassfield
successfully appealed his discharge to the ETRB, docs. 17-1 at 73; 17-3 at 15, and
his reinstatement is the basis for Robinson’s contention of disparate treatment.
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Unfortunately for Robinson, Brassfield is not a proper comparator because, unlike
Robinson, Brassfield admitted during his ETRB hearing that he made the threat
and apologized. Doc. 17-5 at 9. In light of his admission and apology, and based
also on Brassfield’s employment history—he had received only one letter of
instruction during his nineteen years of employment— the ETRB reinstated
Brassfield. Id. at 8. In contrast, Robinson never acknowledged his conduct or
expressed remorse, id. at 7, and had at least twenty-five letters of instruction during
his nine-year tenure, see doc. 17-2 at 35–77. Because the ETRB considers “the
employee’s disciplinary record, the employee’s admission of misconduct and the
employee’s remorsefulness for his actions,” doc. 17-5 at 7, “in determining
whether to uphold a termination decision,” id.,—all of which weigh against
Robinson, the court simply cannot find that Robinson is similarly situated to
Brassfield, or that Con-way treated him less favorably than Brassfield when it
denied his appeal. See Wilson, 376 F.3d at 1092 (11th Cir. 2004) (quoting Lee v.
GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)) (“The role of [courts] ‘is to
prevent unlawful hiring practices, not to act as a super personnel department and
second-guess employers’ business judgments.’”)
In short, Robinson has failed to establish a prima facie case because he
cannot show that Con-way treated him less favorably than similarly situated

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employees outside of his protected class. Therefore, Con-way’s motion for
summary judgment is due to be granted.
C . Robinson points to no evidence from which a fact-finder could determine that
he was discriminated against due to his race.
Alternatively, even if Robinson can make a prima facie case, summary
judgment is still warranted because Con-way proffered a legitimate nondiscriminatory reason for it’s the discharge, i.e. Robinson’s perceived threat of
violence, which Robinson failed to rebut. Robinson “must meet the reason head on
and rebut it, and [ ] cannot succeed by simply quarreling with the wisdom of [Conway’s proffered] reason.” Chapman, 229 F.3d at 1030 (citations omitted). Because
the evidence establishes that Con-way acted reasonably in concluding after its
investigation that Robinson threatened Thomas and because the individuals
Robinson identified are not proper comparators, Robinson cannot show that Conway’s articulated reason for his discharge is pretextual. Ultimately, “an employer
can fire an employee for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory
reason.” See Nix v. WLCY Radio/Rahall Comm’s, 738 F.2d 1181, 1187 (11th Cir.
1984); Wallace v. SMC Pnuematics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997)
(listing perceived threats of violence as a non-actionable reason under Title VII).
While Robinson may think his discharge was unfair, under the circumstances here,
Con-way acted as a prudent employer by addressing a threat in the workplace,
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immediately taking Robinson (and Thomas) out of service, and conducting an
investigation to provide the necessary measures to protect employees. See Kelley v.
Worley, 29 F. Supp. 2d 1304, 1313 (M.D. Ala. 1998) (“Under the common law, an
employer has a duty to supply the employee with a reasonably safe place to
work.”) (citation omitted). Therefore, the court cannot draw an inference of
discriminatory animus, and, Robinson’s discrimination claim must fail.
IV. CONCLUSION
Con-way’s motion for summary judgment is due to be granted in light of
Robinson’s failure to establish a prima facie case or to rebut Con-way’s articulated
reason for discharging him. The court will dismiss this case by separate order.
DONE the 25th day of September, 2014.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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