Jackson v. Double Back Transportation

Filing 54

Order entering summary judgment in favor of Defendant Doubleback Transportation, LLC and against Plaintiff Ronald Jackson. The pretrial conference - currently set for June 13, 2019 - is CANCELLED. Signed by Chief Judge Kristi K. DuBose on 06/05/2019. (Copy of Order mailed to Plaintiff on 06/06/2019) (nah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RONALD JACKSON,
Plaintiff,
v.
DOUBLEBACK TRANSPORTATION,
Defendant.

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CIVIL ACTION: 1:17-00386-KD-B

ORDER ENTERING SUMMARY JUDGMENT IN DEFENDANT’S FAVOR
In an Order dated May 6, 2019, this Court notified pro se Plaintiff Ronald Jackson that,
based on the evidence submitted during his motion for summary judgment, it believed this case
merited sue sponte summary judgment in favor of Defendant Doubleback Transportation, LLC.1
(Doc. 52). Doubleback did not move for summary judgment. However, Federal Rule of Civil
Procedure 56(f)(1) permits the Court to grant summary judgment for a nonmovant.2 Rule 56(f)(1)
serves as a convenient method by which courts may dispose of a case without proceeding to an
“unnecessary trial[,]” 10A Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE &
PROCEDURE § 2720.1 (4th ed. 2008), so long as it provides “notice and a reasonable time to
respond[.]” FED. R. CIV. P. 56(f). The May 6 Order provided the requisite notice. (See Doc. 52 at
16). And importantly, in this case, all claims “have been fully developed in the evidentiary record
. . . .”3 Artistic Ent., Inc. v. City of Warner Robins, 331 F.3d 1196, 1202 (11th Cir. 2003). Jackson
therefore had the opportunity to develop and marshal the evidence necessary to support and sustain
his claims.

1 The

Court is mindful that “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
2 See Jones v. Fulton Cty., Ga., 446 F. App’x 187, 189 (11th Cir. 2011) (“[A] district court has the power to enter
summary judgment sua sponte.”).
3 Pursuant to the Rule 16(b) Scheduling Order, the discovery completion deadline was February 15, 2019.

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The May 6 Order outlined elements of Jackson’s claims that a plaintiff in the Eleventh
Circuit must satisfy in order to withstand summary judgment. Moreover, the May 6 Order gave
Jackson three weeks within which to supplement the record and persuade the Court—already
familiar with the facts of this case—that its belief was in error. Unpersuaded, the Court now sua
sponte grants summary judgment in Doubleback’s favor.
I.

PROCEDURAL BACKGROUND
The Court provided a more complete procedural background in the May 6 Order. For

present purposes, the Court provides the following background. Jackson filed an amended
complaint after the Court afforded him the opportunity. (Doc. 34). As amended, the complaint
alleged the following claims:
a. Workplace Discrimination on the Basis of Race
b. Hostile Work Environment on the Basis of Race and in Retaliation
c. Retaliation
d. Failure to Adequately Train
See (Doc. 42 at 1 (“The Plaintiff is pursuing claims against Double Back Transportation for hostile
work environment, termination/discharge in regards to same or similiar [sic] under Section 1981
and Title VII and failure to adequately train.”); see also Doc. 34-1 at 7 (“The [n]egative appraisal
occu[r]red after protected activity on April 11, 2017, Plaintiff was subjected to adverse activity.”)).
Jackson then filed a motion for judgment on the pleadings. (Doc. 42). The Court converted
his motion into a motion for summary judgment because it implicated factual issues. The Court
afforded Jackson time within which to supplement his motion and entered a briefing schedule for
a response to Jackson’s motion for summary judgment. (Docs. 43 & 44). Thereafter, the Court
issued an order notifying Jackson that, having reviewed the evidence, the Court believed summary

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judgment may be due to Doubleback, a nonmovant. Jackson has now responded in a 20-page brief,
to which 67 pages of exhibits were attached. See (Doc. 53).
II.

STANDARD OF REVIEW
“The court shall grant summary judgment 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.” FED. R.
CIV. P. 56(a). A factual dispute 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). A fact is “material” if it “might affect the outcome of the suit under the governing
[substantive] law.” Id. “In reviewing whether the nonmoving party has met its burden, the court
must stop short of weighing the evidence and making credibility determinations of the truth of the
matter . . . the evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998–999 (11th Cir. 1992)
(internal citations and quotations omitted).
III.

MATERIAL FACTS
Doubleback hired Jackson as a part-time driver in January 2017. (Doc. 49-1 at 1). During

his employment, Jackson worked on an as-needed basis. (Id.). Becky Pilkington, who served
during the relevant period as Doubleback’s general manager, gave Jackson verbal reprimands.
(Id.).
In a span of three days in April, Pilkington received three unrelated complaints about
Jackson. (Id.). In response to these complaints, he was given a written reprimand. (Id.; doc. 49-2)
The three incidents initially listed on the written reprimand were: (1) 4/11/17: Tailgate left open
on a truck; (2) 4/13/17: Jackson took the wrong trailer; and (3) 4/14/17: Anonymous call that
Jackson was driving recklessly. (Doc. 49-2). The second incident was stricken from the reprimand.

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(Id.). The reprimand indicated that any other incidents that required disciplinary action would
result in suspension of employment. (Doc. 42-3). Jackson refused to sign the written reprimand—
twice. (Doc. 49-1 at 1). According to Pilkington, Jackson’s demeanor changed after he received a
written reprimand. (Id.). He arrived late, ineffectively communicated, and walked off the job on
May 22, following an incident (“the May 22 incident”). (Id.).
The May 22 incident revolved around Jackson’s allegations that a truck, Truck 57, was
unsafe to drive due to the truck shaking. (Doc. 49-3). According to Pilkington, Jackson claimed
that Truck 57 was unsafe because the front shook and its cruise control did not work properly.
(Doc. 49-1 at 2). Jackson had driven Truck 57 on the previous three days, and had not reported
any issues with the truck during those days. (Id.).
Pilkington asked Doubleback’s Safety Manager, Daron Bolen, to address the problems.
(Doc. 49-3 at 1). An inspection revealed that the front tire had uneven tread, which would have
caused the shaking. (Id.). The tire was replaced, the truck was test driven, and it was determined
to be safe. (Id.). Bolen also determined that the defective cruise control did not render the vehicle
inoperable pursuant to the Department of Transportation’s requirements. (Id.). Although Jackson
was informed that the truck was fixed, he refused to drive it. (Id.).4 Another driver replaced him,
and the replacement driver drove Truck 57 without incident. (Id.).
Jackson did not report for work on May 24, 2017. Jackson called in sick an hour after he
was scheduled to arrive. As a result of the incidents described in the written reprimand, subsequent
workplace conduct, Jackson walking off the job following the May 22 incident, and his refusal to

4 Jackson

states in his motion that he was told by another employee that the truck was in danger of catching on fire.
However, Jackson’s statement as to what another employee stated is inadmissible hearsay.

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drive Truck 57, Pilkington determined that Jackson’s employment should be terminated. (Doc. 491 at 2). Doubleback terminated Jackson in a written letter dated May 24, 2017. (Doc. 49-1 at 10).5
Jackson dated an EEOC Charge of Discrimination (EEOC Charge No. 846-2017-21475)
as April 23, 2017. (Doc. 42-4 at 1).6 On his Charge, he checked race as the basis upon which
Doubleback discriminated against him. (Id.). The alleged discrimination is based on the receipt of
the written reprimand dated April 19, 2017. The EEOC dated this Charge as received on May 23,
2017. (Id.). On June 20, 2017, the EEOC issued a right to sue letter on the first charge of
discrimination (EEOC Charge No. 846-2017-21475). (Doc. 42-6). In the letter, the EEOC notified
Jackson that it was unable to conclude that the information obtained established violations of the
statutes. (Id.).
Jackson filed a second EEOC Charge which alleged that between May 3 and May 24, 2017,
Doubleback engaged in retaliation and discrimination against him. See (Doc. 34-10 (Notice of
Charge of Discrimination) (EEOC Charge No. 425-2017-00656); Doc. 16 at 9). On June 29, 2017,
the EEOC issued a right to sue letter on this charge. (Id. at 10).
IV.

DISCUSSION
A. Workplace Discrimination and Hostile Work Environment
Jackson’s response centers primarily on two alleged incidents, other than his termination,

wherein he feels he encountered unlawful discrimination. The first involves the use of a company
vehicle. Jackson contends that he was “banned” from using the vehicle while a white employee
(Blake Sheffield) was allowed to use the vehicle. (Doc. 53 at 8, ¶ 22). The next incident involves
an employee named Clara Powell. Jackson contends that she was allowed to submit her paperwork
late, although he was not allowed to do so. (Doc. 53 at 9, ¶ 6).

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received the letter on May 26, 2017. (Doc. 42 at 5).
Jackson’s second charge he alleges that he filed his first charge on or about May 23, 2017. (Doc. 16 at 9).

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Neither incident rises to level of a Title VII claim of discrimination because Jackson has
failed to show how they affected his working conditions. “[N]ot all conduct by an employer
negatively affecting an employee constitutes adverse employment action.” Davis v. Town of Lake
Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001). To constitute an adverse employment action and
therefore support a Title VII discrimination claim, “an employee must show a serious and material
change in the terms, conditions, or privileges of employment.” Id. at 1239. Neither the deprival of
use of the employee vehicle nor the requirement that Jackson timely submit his paperwork satisfies
that standard. The claims therefore fail as a matter of law. See Collado v. United Parcel Service,
Co., 419 F.3d 1143, 1150 (11th Cir. 2005) (“[I]f a plaintiff fails to establish a prima facie case, the
defendant is entitled to judgment as a matter of law . . . .”). Moreover, neither of these incidents
formed the basis of the reprimands Jackson received, nor are they the bases for his termination.
Nor were these incidents, even considered along with the incidents detailed in the written
reprimand, sufficiently severe or pervasive to alter the terms and conditions of employment and
create a discriminatorily hostile working environment. Accordingly, as a matter of law Jackson
cannot show a hostile work environment based on his race.
Ultimately, Jackson was fired based on the reprimands he received and his refusal to drive
a truck that he deemed unsafe. Jackson offers no evidence (or, for that matter, argument) that his
termination was based on his race. Indeed, the reasons for his termination become clearer in his
response to the Court’s May 6 Order: Jackson specifically acknowledges that “the reason for [his]
termination has always been addressed for raising safety concerns about truck #57.” (Doc. 53 at
5). Jackson takes issue with whether the reprimands were justified, but agrees that he was fired
because he would not drive a truck he considered dangerous. (Doc. 53 at 5 (“Plaintiff has never

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alleged that his termination was for two different reasons; the reason for my termination has always
been addressed for raising safety concerns about truck #57.”)).
Jackson has contended, in an ongoing administrative proceeding before the Department of
Labor, that Doubleback violated the Surface Transportation Assistance Act (“STAA”) when it
terminated Jackson because he refused to drive what he considered an unsafe truck. See (Doc. 5314 at 1–3 (letter from an Occupational Safety and Health Administration’s (“OSHA”) Regional
Supervisory Investigator describing Jackson’s allegations under the STAA)). It is this Court’s
understanding—based on Jackson’s representations and attached exhibits—that the administrative
proceeding is ongoing. However, in Jackson’s response, he attempts to graft the issue implicated
in those proceedings onto this cause of action.
The STAA prohibits the discharge of an employee who “refuses to operate a vehicle
because . . . the operation violates a regulation, standard, or order of the United States related to
commercial motor vehicle safety, health, or security . . . .” 49 U.S.C. § 31105(a)(1)(B)(i). “An
employee who alleges that he was discharged in violation of the anti-retaliation provision in the
STAA can file a complaint with [OSHA.]” Yusim v. Dept. of Lab., 645 Fed. Appx. 967, 968 (11th
Cir. 2016). And a district court may conduct a de novo review of such a complaint only if the
Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint
and if the delay is not due to the employee’s bad faith. 49 U.S.C. § 31105(c). See Rose v. Anderson
Hay and Grain Co., 2010 WL 3211948, at *1 (E.D. Wash. Aug. 6, 2010) (“Congress granted
district courts subject-matter jurisdiction in 49 U.S.C. § 31105 only in cases in which the Secretary
of Labor fails to issue a final decision within 210 days after the filing of the complaint with the
Secretary of Labor and the delay is not due to the employee's bad faith.”). In this case, Jackson’s
STAA complaint was filed, according to the Secretary of Labor’s Notice, on August 23, 2017.

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(Doc. 53-14 at 1). Jackson filed this action in federal court on August 25, 2017, much sooner than
210 days after filing the OSHA complaint. The Secretary of Labor issued its findings in a letter
dated August 29, 2018, more than 210 days after filing of the complaint. Even if the Secretary’s
delay ultimately gave rise to this Court’s jurisdiction over Jackson’s STAA claims, Jackson’s
amended complaint did not allege, as a cause of action, that he was discriminated against pursuant
to STAA. In fact, he explicitly invoked two entirely different provisions. (Doc. 35 (Jackson’s
Amended Complaint) at 1 (“Plaintiff now represents he is pursuing claims against Double Back
Transportation [sic] for hostile work environment and discrimination on the basis of race in regards
to same or similar under Section 1981 and Title VII.”) (emphasis added)).
Moreover, Jackson is continuing to litigate his claim before the Secretary of Labor.
Accordingly, this Court is without jurisdiction to address his claims as they relate to retaliation the
STAA prohibits.
B. Retaliation
42 U.S.C. § 2000e-3 prohibits employers from “discriminat[ing] against any of [its]
employees or applicants for employment . . . because he has opposed any practice made an
unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42
U.S.C. § 2000e-3(a). As explained in the May 6 Order, Jackson has failed to show he engaged in
any protected activity, other than the filing of an EEOC complaint on May 23, 2017. This activity
occurred after all of the incidents that Jackson labels retaliatory. Accordingly, Jackson is unable
to establish a prima facie case of retaliation.
C. Failure to Train

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Jackson repeats his failure to train claim in his response. See (Doc. 53 at 16–17).
Specifically, he argues that the lack of training was discriminatory. He further urges the Court to
consider the fact that Doubleback took adverse employment action prior to training him and
providing him with “written warning[s] and counseling sessions[.]” (Doc. 53 at 17, ¶ d). As the Court
explained in the May 6 Order, however, neither of his theories for failure to train rises to the level
actionable under employment discrimination law. In fact, the Fifth Circuit has explicitly held that
“a refusal to train is not an adverse employment action under Title VII.” Hollimon v. Potter, 365
Fed. Appx. 546, 549 (5th Cir. 2010) (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398,
406–07 (5th Cir. 1999)). Although Jackson claims that Doubleback’s failure to produce
documentation of training sessions and internal policies entitles him to now rebut the reasons for
the allegedly adverse employment action as pretextual, Jackson must first meet his prima facie
burden. Because failure to train is not an adverse employment action, he has not done so. Even
assuming Jackson’s failure to train claim did constitute impermissible conduct under Title VII,
Jackson has not alleged others outside his protected class received training and were therefore
treated more favorably, as this Court previously noted in the May 6 Order. See (Doc. 53 at 13).
V.

CONCLUSION
For the reasons set forth both in this Order and the May 6 Order, the Court finds that

summary judgment is due to be entered in Doubleback’s favor. In accordance with the foregoing,
summary judgment is entered in favor of Defendant Doubleback Transportation, LLC and against
Plaintiff Ronald Jackson. Judgment pursuant Federal Rule of Civil Procedure 58 will issue
separately. The pretrial conference—currently set for June 13, 2019—is CANCELLED.
The Clerk is directed to forward a copy of this Order to Jackson.

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DONE the 5th day of June 2019.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE

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