Gallo v. Dillard's Inc
ORDER denying as moot 32 Motion to Compel by Dillard's Inc; granting 34 Motion for Summary Judgment by Dillard's Inc. Signed by Judge D. P. Marshall Jr. on 1/9/2012. (mcz)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Dillard's moves for summary judgment, Document No. 34. First, as a
threshold matter, Dillard's says Gallo's claims fail because they hinge on
discrimination based on national origin- not race. Second, Dillard's says that
even if this kind of discrimination were cognizable under § 1981, Gallo has
failed to make a prima facie case. Third, Dillard's argues that Gallo has not
offered any evidence that the company's legitimate, nondiscriminatory
reasons for its actions are pretextual. This three-layer argument applies to all
three of Gallo's claims: failure to hire, wrongful termination, and hostile work
environment. Gallo has abandoned his hostile-work-environment claim.
Document No. 40, at
4. The Court therefore dismisses it. It is unclear
whether Gallo still maintains his wrongful-termination claim. The Court will
therefore analyze it.
National origin vs. Race. "Section 1981 does not authorize
discrimination claims based on national origin." Torgerson v. City ofRochester,
643 F.3d 1031, 1053 (8th Cir. 2011). Gallo does not contest this law. Instead,
he attempts to conflate race and national origin. Although Arkansas law
prohibits discrimination in employment on the basis of national origin, which
is defined to include ancestry, ARK. CODE ANN.§§ 16-123-107(a) & -102(6),
there is a clear distinction between the two types of claims under federal law.
Torgerson, 643 F.3d at 1031.
Gallo's testimony makes clear that his claims are based solely on
national origin and that Brown, manager of Dillard's aviation department,
had no reason to know Gallo was Hispanic before Gallo revealed he was from
Colombia. Gallo even told the EEOC that he believes he was not hired
because of his national origin. While Gallo did mention in his deposition that
his Hispanic race was tied to his national origin, Gallo agreed that, "what
tipped the scales was the fact that he was from Columbia, and Jim Brown had
a bad experience with a Colombian pilot."
All these facts are conclusive. Because national origin is not included
under§ 1981, all of Gallo's claims fail at the threshold. The Court nonetheless
will address Gallo's two remaining claims on the merits as alternative
2. Wrongful Termination. Gallo acknowledges that he was a contract
pilot, flying for Dillard's on an as-needed basis. He was not an employee.
His wrongful termination claim is based on Dillard's no longer using his
services. There is, as Dillard's correctly notes, no Eighth Circuit case holding
that an independent contractor with no contract term can sue under 28 U.S.C.
§ 1981. And Gallo cited no such authority.
a. No prima facie case. Even if Gallo's claim as an independent
contractor was cognizable under§ 1981, he still has not made out a prima facie
case of wrongful termination. His claim amounts to a bare allegation that
Dillard's stopped using him as a contract pilot because he is Hispanic.
Wortham v. American Family Insurance Group, 385 F.3d 1139, 1141 (8th Cir.
To make a prima facie case of wrongful discharge based on racial
discrimination, Gallo must show that the discharge occurred in circumstances
which give rise to an inference of unlawful discrimination. Johnson v. AT&T
Corp.,422F.3d 756,761 (8th Cir. 2005). Gallo presents no evidence that Brown
stopped using him in February 2010 because he was Hispanic. To the
contrary, Brown's actions imply that Brown offered him the contract job after
learning he was from Colombia and gave him extra training opportunities.
That Brown decided one month later that Gallo's services were no longer
needed raises u a strong inference that discrimination was not a motivating
factor." Arraleh v. County of Ramsey, 461 F.3d 967, 976 (8th Cir. 2006).
b. No evidence of pretext. Dillard's says that it stopped using Gallo as
a contract pilot because the quality of his performance was unacceptable.
Dillard's chief Lear pilot, one Merrill, who flew some test flights with Gallo,
recommended against contracting with him based solely on his observations
of Gallo's mistakes in the cockpit.
In response, Gallo says, based on certain comments, that Merrill had
racial animus toward him. Gallo attributes the following statements to
Merrill: telling him to talk less on the radio; referring to hip-hop as" your kind
of music"; and asking when he was u going to make an honest woman" of his
girlfriend. These statements, standing alone or in combination with all of
Gallo's evidence, do not support a claim of racial discrimination. Arraleh, 461
F.3d at 975. Gallo has therefore not raised any factual issues to rebut Dillard's
legitimate, nondiscriminatory reason for firing him.
3. Failure to Hire. Gallo alleges that Dillard's discriminated against
him both when he initially interviewed and when it made the decision to hire
Jeremy Henry in March 2010. Gallo says he should have initially been hired
as an employee, rather than as a contract pilot. He also claims that he should
have been hired for the position that became available in March 2010, even
though Brown had determined his performance was unacceptable in February
As to the Henry hiring, Gallo must show that he was
differently than similarly situated persons who are not members of the
protected class." Bennett v. Nucor Corp., 656 F .3d 802, 819 (8th Cir. 2011). This
is a rigorous test. Ibid. It requires that Henry be u similarly situated in all
relevant respects before [Gallo] can introduce evidence comparing [himself]
to [Henry]." Ibid. Henry's situation differs from Gallo's in two important
ways. First, Henry applied in March, when Dillard's had an opening. Gallo
applied in January, when no positions were available. Second, by the time the
position opened in March, Brown had already decided that Gallo did not
demonstrate the skill level necessary to become a Dillard's employee. Gallo
was never even in the running for the position Hemy filled, based on his past
a. No prima facie case. Gallo establishes a prima facie 'failure to hire'
case "when he proves that (1) he is a member of a protected class; (2) he was
qualified for the position for which the employer was accepting applications;
(3) he was denied the position; and (4) the employer hired someone from
outside the protected class." Arraleh, 461 F.3d at 975. Even if the Court
assumes that Gallo is Hispanic, he has not carried his burden on elements
two, three, and four.
Gallo produced no evidence that Dillard's was accepting applications
for an employee pilot position at the time he interviewed or during the time
he worked as a contract pilot for Dillard's. Brown's testimony corroborates
that there was no employee position available until after Dillard's stopped
using Gallo's services. Neither Gallo nor a non-Hispanic person could have
been offered or denied a position that did not exist. It is true that a spot did
become available about a month after Dillard's stopped using Gallo. But
Dillard's would not have considered Gallo then anyway based on his earlier
b. No evidence of pretext. Even if Gallo could make a prima facie case,
Dillard's offers two legitimate, nondiscriminatory reasons for not hiring him
as an employee pilot. First, there was no employee position available when
Second, Gallo had already been eliminated from
consideration for the position that became available two months after he
interviewed. Brown decided that he lacked the requisite skill to pilot the
That a Dillard's pilot told Gallo that the company had an employee
position open in January is irrelevant to the analysis here because that person
had no authority to make hiring decisions. Brown was the only person with
that authority. Gallo concedes as much. Dillard's decision to hire Gallo on
contract also does not imply that an employee position was available when
Gallo's attempts to rebut Dillard's reason for not hiring him in March
are also unavailing. He raises no issues of fact regarding Dillard's legitimate
explanation that his skill level was unacceptable. Gallo admits that Merrill
told him on at least one occasion that he had technique problems. Brown had
good cause for concern when Merrill reported that Gallo uhad problems with
taxiing the airplane, the nose steering . . . and was a little rough on the
controls." He also told Brown that Gallo aligned with the wrong runway and
made a hard landing. Although Gallo contests whether Merrill's evaluation
of his performance was fair, he has not presented evidence to support his
claim that Brown's decision was based on racial animus.
Dillard's motion for summary judgment, Document No. 34, is granted.
All of Gallo's claims are dismissed with prejudice. Dillard's motion to compel
and to extend the discovery deadline, Document No. 32, is denied as moot.
D.P. Marshall Jr. ,,
United States District Judge
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