KPOTUFE v. J.B. HUNT TRANSPORT, INC.
Filing
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ORDER granting Defendant's 27 Motion for Summary Judgment (S.O.). Signed by Judge Richard L. Young on 12/6/2011. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KOAMI RENEE KPOTUFE,
Plaintiff,
vs.
J.B. HUNT TRANSPORT, INC.,
Defendant.
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1:10-cv-0539-RLY-MJD
ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Rene Koami Masko1 (“Plaintiff”), of West African descent, alleges that
defendant, J.B. Hunt Transport, Inc. (“JBH”), recruited him for a position as a truck
driver and promised him a job as a local driver in Indianapolis. He alleges that, during an
orientation in Louisville, Kentucky, JBH reneged on its promise, gave the local job to
Robert Cowger (“Cowger”), a Caucasian American, and hired Plaintiff in an over-theroad truck driving position. His Complaint asserts claims for race and national origin
discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq., and state law claims for breach of contract, promissory estoppel,
negligent supervision, and respondeat superior liability. JBH now moves for summary
judgment. For the reasons set forth below, the court GRANTS the motion.
1
This case was filed by the plaintiff in the name of “Koami Renee Kpotufe.” Kpotufe
changed his name to “Rene Koami Masko.”
1
I.
Background
JBH is a transport company, and employs approximately 15,000 employees
nationwide. (Affidavit of Wesley Griffin (“Griffin Aff.”) ¶ 5). Because the company
experiences a continuous turnover among its drivers, JBH constantly seeks new drivers.
(Id.). JBH’s drivers are at-will employees that operate locally, regionally, and over-theroad2 (“OTR”). (Id. ¶ 4; Defendant’s Ex. L).
In February 2008, Plaintiff, a native of Togo, West Africa, was employed by a
temporary employment agency, Adecco, and was assigned by Adecco to Roche
Diagnostics (“Roche”) as a Quality Control Agent and Machine Operator. (Deposition of
Rene Koami Masko (“Plaintiff Dep.”) at 32). During this time frame, Plaintiff contacted
JBH for a possible position as a driver. (Griffin Aff. ¶ 6). On February 28, 2008, JBH
scheduler, Johnny Sandoval (“Sandoval”), answered Plaintiff’s message by sending him
an email saying that “we have all the arrangements in place for your orientation next
week.” (Defendant’s Ex. C; Plaintiff Dep. at 22). Plaintiff called back, and explained to
Sandoval that he was a former nationwide truck driver, but that he needed to be home
every day due to his wife’s health condition. (Plaintiff Dep. at 18-19). Sandoval replied
that a local position was available in the Indianapolis area. (Id. at 19-20). Plaintiff filled
out the appropriate forms, and was scheduled for orientation in Louisville, Kentucky,
beginning March 3, 2008. JBH hired Plaintiff the following day. (Defendant’s Ex. D).
2
Generally, “local” means intra-city, “regional” means inter-city, and “over-the-road”
mean interstate. (Affidavit of Dennis Walser (“Walser Aff.”) ¶ 14).
2
On March 5, 2008, the last day of orientation, Plaintiff signed a “Jurisdiction
Statement” accepting a position with JBH as an “over-the-road” driver. (Defendant’s Ex.
E). Plaintiff called dispatcher, Steve Bell (“Bell”), after completing his orientation for his
assignment. Bell told Plaintiff that the position as a local driver had been given to
Cowger, a Caucasian applicant. (Plaintiff Dep. at 42, 45). Plaintiff explained that he was
the only applicant for the local position, and that he was designated as a “local dedicated
first seat” driver. (Id. at 42-43, 46; Affidavit of Rene Koami Masko (“Plaintiff Aff.”) ¶
7). Bell told Plaintiff that Cowger, who was in Plaintiff’s orientation class, called first,
and since that was the only local position available, Plaintiff would have to accept another
position. (Plaintiff Dep. at 46). Plaintiff then called Sandoval, who informed Plaintiff
that he did not “know what happened.” (Id. at 47). Plaintiff terminated his employment
on March 6, 2008, because he was dissatisfied with the hours. (Defendant’s Ex. D;
Plaintiff Dep. at 56).
At some point (the record is not clear), Plaintiff spoke to project manager, Dennis
Walser (“Walser”), who encouraged Plaintiff to take a regional job out of Chicago
because the route would take him through Indianapolis on a regular basis. (Walser Aff. ¶
10). Walser informed Plaintiff that the regional position was temporary, and that a local
position would be available in approximately two weeks. (Plaintiff Dep. at 49-50). On
April 21, 2008, Plaintiff accepted the position as a regional driver out of Chicago.
(Defendant’s Ex. D; Plaintiff Dep. at 50-51).
On June 20, 2008, JBH approved a six-week leave for Plaintiff to visit his ailing
3
mother in Africa even though he was not eligible for leave under company policies.
(Defendant’s Ex. D; Plaintiff Dep. at 58-59). Plaintiff voluntarily did not return from that
leave on July 17, 2008, although the company told him that it would leave the return date
open for another two weeks until July 31, 2008. (Defendant’s Ex. D; Defendant’s Ex. G;
Plaintiff Dep. at 60-61). Plaintiff declined that invitation because a local position was not
available for him. (Plaintiff Dep. at 61).
II.
Summary Judgment Standard
Summary judgment is appropriate if the record “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). The moving party bears the burden of informing the court of the
basis for its motion and demonstrating the “absence of evidence on an essential element
of the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325
(1986). Once the movant has met that burden, the nonmoving party “must point to
evidence in the record ‘that would reasonably permit the finder of fact to find in h[is]
favor on a material question.’” Cliff v. Bd. of Sch. Comm’rs of City of Indianapolis, 42
F.3d 403, 408 (7th Cir. 1994) (quoting Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920
(7th Cir. 1994)). If the non-moving party fails to make this showing, then the moving
party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323; Cliff, 42 F.3d at
409.
III.
Discussion
A.
Race and National Origin Discrimination
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Plaintiff alleges that JBH impermissibly passed him over for the local driving
position because of his race and national origin. Plaintiff presents no direct evidence of
failure-to-hire discrimination; therefore, he proceeds under the indirect method of proof.
A Title VII plaintiff may show that he is the victim of race and/or national origin by
establishing a prima facie case of unlawful discrimination. This requires the plaintiff to
show that: (1) he is a member of a protected class; (2) he applied for an available
position; (3) he was qualified for the position for which he applied; and (4) another
person, not in the protected class, was offered the position or the position remained open.
Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002). Once a plaintiff establishes a
prima facie case, an inference of discrimination arises. Id. The burden of production then
shifts to the defendant-employer to produce a legitimate, nondiscriminatory reason for the
adverse employment action. Id. If the defendant-employer carries this burden, the
plaintiff must show “that the reason proffered by the employer was mere pretext, an
explanation designed to obscure the unlawful discriminatory employment action.” Id.
(quoting Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir. 1996)).
JBH contends that Plaintiff cannot establish the second element of his prima facie
case because, after Plaintiff completed orientation, the job he sought was not available.
Plaintiff maintains that he was promised the local driver position, and that he was the only
prospective driver at the orientation up for that position. Plaintiff’s testimony undermines
his argument:
Q:
So you called Steve Bell?
5
A:
Uh-huh.
Q:
And he told you he had already given –
*
Q:
*
*
Uh-huh. And I told him that no. I said, “No. I just finished the orientation
too.”
*
A:
*
– the local route to Robert Cowger?
*
A:
*
*
*
– we finished at the same time, but he ran first to the phone and called. I
don’t know what happened. We finish at the same time. So I told him, “So
what else?” They said, “Well, they have other position available . . . .”
(Plaintiff Dep. at 45-46). This evidence leads to the reasonable inference that Plaintiff did
not get the local driver position because Cowger called first. Accordingly, Plaintiff fails
to establish the second element of his prima facie case because the job he sought was not
available. Although the court’s analysis could end at this point, the court will discuss the
issue of pretext.
In a failure-to-hire case, a plaintiff is required to show that the employer’s reason
for choosing one candidate over the other is not true, but is, in essence, a cover for
unlawful discrimination. Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000). The
inquiry turns on whether the employer truly believed the reason advanced. Id. (affirming
summary judgment on pretext because no “rational trier of fact could infer that [the
employer’s] proffered reason for failing to promote [plaintiff] was a lie or had no basis in
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fact”).
In support of his pretext argument, Plaintiff relies, in part, on the EEOC’s
Determination that there is “reasonable cause to believe that [JBH] violated Title VII . . .
with regard to [Plaintiff’s] national origin.” A public record of this type may be
admissible under the public records exception to the hearsay rule, which provides, in
relevant part:
Records, reports, statements or data compilations, in any form, of public
offices or agencies, setting forth . . . (C) in civil actions and proceedings . . .
factual findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other circumstances
indicate a lack of trustworthiness.
FED. R. EVID. 803(8).
The only source of information in support of the EEOC’s Determination is the
EEOC investigator’s Memo which recounts an interview with Scott Stephenson
(“Stephenson”), who attended the driver orientation in Louisville with Plaintiff. (See
Defendant’s Ex. M). Stephenson allegedly told the investigator that Plaintiff said he had
been promised a local job, that a class roster identified Plaintiff with a local job, and that
Plaintiff was the only person in the class who identified himself with a local job until the
end of the orientation, when another individual was switched into the job, and Plaintiff
was switched into the over-the-road job. (Id). Plaintiff seeks to have the Memo
considered by this court (although it was designated by JBH) as evidence that
corroborates the Plaintiff’s side of the story; however, the Memo is not signed, and is not
accompanied by the investigator’s sworn affidavit. The investigator did not interview
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Bell, Walser, or Cowger.
The court finds the EEOC’s determination and the investigator’s memo are not
admissible. The EEOC’s determination provides no reasoning for its finding of
reasonable cause to believe that discrimination occurred, and the only source of
information for the EEOC’s determination – the EEOC investigator’s Memo – is not
authenticated, reflects an inadequate investigation, and lacks an indicia of trustworthiness.
Indeed, the Memo provides only one individual’s account of what he observed, and some
of his observations are based on what he was told by Plaintiff. The EEOC’s
Determination, therefore, is one-sided, and fails to include any explanation by JBH for its
alleged discriminatory decision.
Plaintiff’s only other argument in support of pretext rests on the claim that JBH
promised him a local position, and ultimately gave the position to Cowger. The only
reasonable inference to be drawn from these facts is that JBH made a promise to Plaintiff
and breached it. It is Plaintiff’s burden on summary judgment to present evidence of
JBH’s intentional discrimination, not evidence of a breach of promise.
Moreover, JBH’s actions are inconsistent with a finding of intentional race or
national origin discrimination. First, Plaintiff acknowledges that other African American
individuals at the orientation in Louisville were awarded the jobs that had been targeted
for them after orientation – all except for him. (Plaintiff Dep. at 72-73). Second, there is
no record evidence that Bell, who spoke to the applicants by telephone after the
orientation ended, knew the race of either Plaintiff or Cowger at the time Cowger called.
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Absent knowledge of Plaintiff’s race or national origin, Bell could not have selected
Cowger over Plaintiff on an unlawful basis. See Hedberg v. Indiana Bell Tel. Co., 47
F.3d 928, 932-34 (7th Cir. 1995) (employer could not discriminate on basis of disability
of which it was not aware); Batteast Constr. Co. v. Henry Cnty. Bd. of Comm’rs, 194
F.Supp.2d 828, 835 (S.D. Ind. 2002) (county could not discriminate on basis of race
absent knowledge of contractor’s race). Third, Walser, who knew Plaintiff was of
African descent, offered him a regional job out of Chicago so that he could be home two
or three days a week. In addition, Walser offered to try to find Plaintiff a local job in the
interim. (Id. at 64-65). Lastly, JBH offered him a six-week leave of absence to visit his
mother in Africa, even though he was not eligible for leave under the company policies.
(Plaintiff Dep. at 58-59; Defendant’s Ex. G).
For the reasons set forth above, the court finds that Plaintiff failed to establish that
JBH’s reasons for failing to award him the local driver position were a mere pretext for
discrimination. JBH’s motion for summary judgment on Plaintiff’s race and national
origin discrimination claims is therefore GRANTED.
B.
State Law Claims
The court exercises supplemental jurisdiction over the Plaintiff’s state law claims
pursuant to 28 U.S.C. § 1367(a), because the state law claims are based on the same
general set of facts as Plaintiff’s claims. The court begins its discussion with Plaintiff’s
breach of contract claim.
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1.
Breach of Contract
Plaintiff contends that JBH employees, including Sandoval and a man named
Robert, promised him a job as a local driver, and breached the promise to him when it
failed to offer him a local job. JBH drivers are at-will employees, meaning the
relationship is terminable at the will of either party, with or without cause. Orr v.
Westminster, 689 N.E.2d 712, 717 (Ind. 1997). The Indiana Supreme Court has identified
three circumstances under which the presumption of at-will employment may be rebutted.
First, if the employee gives adequate independent consideration for an employment
contract for a definite term, the employer may terminate the employee for good cause. Id.
at 718 (citing Romack v. Pub. Serv. Co., 511 N.E.2d 1024, 1026 (Ind. 1987)). Second, if
the public policy exception to the at-will doctrine applies. Id. Third, if the employee
establishes the elements of a promissory estoppel claim, and the employee asserts the
doctrine with particularity. Id.
Plaintiff contends that he gave adequate independent consideration to convert his
at-will employment contract to one requiring good cause for discharge. Adequate
independent consideration is established when, for example, “(1) the employer is aware
that the employee had a former job with assured permanency . . . and (2) [the employee]
was only accepting the new job upon receiving assurances the new employer could
guarantee similar permanency.” Id. at 175-76 (quoting Wior v. Anchor Indus., Inc., 669
N.E.2d 172, 175-76 (Ind. 1996)).
Here, Plaintiff did not leave a position with assured permanency. Prior to taking
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the job with JBH, Plaintiff worked for a temporary employment agency, Adecco, and was
assigned to Roche. Plaintiff admitted that he was not a permanent employee of Roche
and received no benefits from Roche. (Plaintiff Dep. at 32). Plaintiff, moreover, does not
claim that JBH promised him permanent employment, thus inducing him to leave Adecco.
To the contrary, he acknowledged that he knew what “at will” employment was and that
JBH’s offer of employment was at-will. (Id. at 27-29). The facts of record establish, at
most, that Plaintiff left his position at Roche to accept another position at JBH. This,
standing alone, does not establish adequate independent consideration sufficient to rebut
Indiana’s at-will doctrine. Orr, 689 N.E.2d at 718 (“Generally, simply surrendering
another job or moving to another location to accept a new position which the employee
sought, standing alone, does not constitute adequate independent consideration.”) (citing
Wior, 699 N.E.2d at 175-76 (Ind. 1996)).
Plaintiff also contends that the doctrine of promissory estoppel applies. The
elements of the claim are: “(1) a promise by the promisor; (2) made with the expectation
that the promisee will rely thereon; (3) which induces reasonable reliance by the
promisee; (4) of a definite and substantial nature; and (5) injustice can be avoided only by
enforcement of the promise.” Hinkel v. Sataria Distrib. & Packaging, Inc., 920 N.E.2d
766, 771 (Ind. Ct. App. 2010) (citing Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001)).
As discussed previously, Plaintiff did not detrimentally rely on the promise of permanent
employment. Rather, Plaintiff left his temporary position at Roche for the chance at a
more lucrative position at JBH. Plaintiff fails to rebut the presumption of at-will
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employment under the theory of promissory estoppel. Accordingly, Defendant’s motion
for summary judgment on Plaintiff’s breach of contract claim is GRANTED.
2.
Negligent Supervision and Respondeat Superior
A claim of negligent supervision accrues “when an employee ‘steps beyond the
recognized scope of his employment to commit a tortious injury upon a third party.’” Bd.
of Sch. Comm’rs v. Pettigrew, 851 N.E.2d 326, 332 (Ind. Ct. App. 2006) (quoting Tindall
v. Enderle, 320 N.E.2d 764, 768 (Ind. Ct. App. 1974)). Plaintiff alleges, and JBH
concedes, that its employees were acting within the course and scope of their employment
at all relevant times. Thus, Plaintiff cannot establish an essential element of the claim.
Moreover, the claim is duplicative of Plaintiff’s claim for respondeat superior liability.
Id.
The doctrine of respondeat superior is a theory for placing liability on an employer
for the wrongful acts of its employees committed in the course and scope of their
employment. Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind.
1997). As noted by Plaintiff, this claim is dependent on the viability of Plaintiff’s breach
of contract claim. Because that claim is dismissed, so too must this claim be dismissed.
Defendant’s motion for summary judgment on Plaintiff’s claims for negligent supervision
and respondeat superior liability is therefore GRANTED.
IV.
Conclusion
For the reasons stated above, the court GRANTS Defendant’s motion for
summary judgment (Docket # 27).
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SO ORDERED this 6th day of December 2011.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Electronic Copies to:
Lester H. Cohen
DEFUR VORAN LLP
lhcohen@charter.net
Swaray Edward Conteh
contehlaw@att.net
Shawn A. Neal
DE FUR, VORAN, HANLEY, RADCLIFF & REED, LLP
sneal@defur.com
Scott E. Shockley
DEFUR VORAN LLP
sshockley@defur.com
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