Ragland v. BM2 Freight Services, Inc.

Filing 41

MEMORANDUM OPINION & ORDER: that defendant's motion for summary judgment 32 be, and is hereby, GRANTED. A separate judgment shallenter concurrently herewith. Signed by Judge William O. Bertelsman on 11/22/2019.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO.: 2:18-CV-22 (WOB-CJS)
JASON RAGLAND
VS.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

BM2 FREIGHT SERVICES, INC.

DEFENDANT

This matter is before the Court on the motion for summary

judgment by defendant BM2 Freight Services, Inc. (“BM2”). (Doc.
32).
The Court heard oral argument on this motion on Friday, August
23, 2019, and thereafter took the matter under submission. (Doc.
40).
After further study, the Court now issues the following
Memorandum Opinion and Order.
Factual and Procedural Background
Plaintiff Jason Ragland (“Ragland”) served in the United
States Marine Corps from 1999 to 2004, and from 2005 to 2008 he
worked for the U.S. Department of State’s Bureau of Diplomatic
Security and served in combat duty in Iraq. (Doc. 26-4).
2008

to

approximately

procurement business.

2012,

Ragland

operated

(Id.; Ragland Depo. at 19-22).

a

From

military

When Ragland moved back to Cincinnati, Ohio, he told a friend
who operated a freight business that he was interested in working
in

the

freight

logistics

field.

(Ragland

Depo.

at

18-19).

Ragland, however, had no experience in that field, and his friend’s
company did not provide training, so the friend referred Ragland
to BM2.

(Id.) BM2 is a full-service brokerage company that

operates throughout the United States and Canada, which was started
in 2008. BM2 is owned by Kevin Ball, Matthew Mason, and Jeffrey
Mason. (Ball Depo. at 7-8, 21).
Ragland provided BM2 with his resume that listed his military
service and experience as a security contractor.
at 12-13).

(Ragland Depo.

Ball testified that Ragland’s military experience “got

him in the door” and was one reason they hired Ragland because BM2
was hoping to secure Department of Defense and other government
business.

(Ball Depo. at 75, 203).

Ragland began at BM2 as an assistant to obtain on-the-job
training, and he then progressed to an account executive. (Ragland
Depo. 32-34).

In 2014 or 2015, Ragland was promoted to senior

account executive and he became one of BM2’s top salespeople.
(Ragland Depo. 45-47; Ball Dep. 61-62; M. Mason Dep. 6).
In January 2016, BM2 hired Scott Klever (“Klever”), who became
Ragland’s

supervisor

and

BM2’s

Vice-President

of

Business

Development. (M. Mason Dep. 6; Ball Dep. 53; Klever Depo. 5-6).
After he was hired, Klever raised Ragland’s pay and that of another
2

leading salesperson, Jess Meloche.

(Ragland Depo. at 151). Around

the same time, company management decided to have four team “leads”
and chose Ragland as one of them.

(M. Mason Dep. 6).

Ragland testified that he does not have PTSD as a result of
his military service, and that he never told or hinted to anyone
at BM2 that he had PTSD.

(Ragland Depo. at 118).

However, he

testified that several co-workers at BM2 asked him if he had PTSD
or had killed anyone.

(Ragland Depo. 118-119, 121-).

Ragland

testified that he told them that such questions were “weird” or
“awkward.”
Klever once asked Ragland about his combat experience in Iraq
while the two men were driving to Michigan for a business meeting.
Ragland testified that he found this “awkward” and probably told
Klever that he did not have PTSD.

(Ragland Depo. 119-121).

Ragland did not recall that Klever asked any further questions or
that the subject ever came up again between them.
Ragland testified that Ball once asked him about his combat
experience on a business trip to Washington, D.C., but he could
not recall if Ball asked him if he had PTSD.
126-127).

(Ragland Depo. at

Neither Jeff Mason nor Matthew Mason ever asked Ragland

if he had PTSD.

(Id.).

On March 21, 2016, Ball sent Ragland an email asking him if
he had put in a bid on a government account that BM2 had assigned
to him.

(Doc. 30-10).

Ragland responded that he had not, and
3

Ball asked him why. An exchange followed in which Ragland implied
that Ball did not understand government contracts; Ball explained
that if Ragland was not going to try to develop the business, Ball
could reassign it:
I just want to make sure whoever has the account is
spending the necessary time & effort to do what it
takes to earn freight.
If you want more time on the account, just let me
know. But it does BM2 no good to have that account
sit dormant while no one works on it. So if you are
not going to do it, I need to give it to someone
else who will.
(Doc. 30-10 at 2).
Ragland responded:
Do you think I’m not doing it right? I spend months
getting everything in order, finding the right
people, building rate matrixes, and learning the
different systems that the government uses.
I feel like I’m getting accused of not doing my job
because I didn’t bid on one RFP in 3.5 years.
I understand that you guys are frustrated with the
market, but I have always done my job and I have
done a great job at it as it has allowed BM2 to
grow tremendously.
Sorry, but I feel like I’m getting attacked.
(Doc. 30-10 at 1).
Ball responded:
In no way are you getting attacked. You are taking
this way too personally and getting defensive.
Nothing in anything I wrote was personal in nature.
I didn’t question your ability, I didn’t say
anything about you in any way. I was asking about

4

an account. That is very concerning that you would
get so defensive about this.
I don’t know why you think I am not allowed to
question you and how you do things. Whether you
are a million dollar broker or just starting out,
as your boss and the owner of this company, it is
well within my boundaries to question how an
account is being run.
In fact the real problem
would be if I didn’t take a good hard look at every
aspect of the business and see how it can improve.
I do that with every aspect of the business. In
this case I bring up an account that hasn’t
generated a dollar’s worth of revenue in 3 years
and it makes you upset? Why shouldn’t I question
it?
You were handpicked for that account.
Of
course I am going to question where the failure
lies with that account! You have obviously been
very successful with the APL account, so that tells
me you are a very capable broker. That makes it
even more puzzling on why the government freight
hasn’t taken off.
Bottom line is you do have to answer to me. Just
the way it works. I leave you alone and largely
let you do your thing because you are a profitable
broker.
But I have every right to question the
status of an account that I personally put in your
hands.
(Id.).
Ball testified that he did not like the fact that Ragland was
ignoring an account that Ball had given him, and he also felt that
Ragland’s

attitude

when

inappropriately defensive.

questioned

by

management

was

(Ball Depo. 75-78

Around the same time, BM2 management decided that they had
become lax about enforcing the 8:00 a.m. start time for employees
and that it sent the wrong message.

On March 29, 2016, Ball sent

out an email stating that all employees were required to start
5

work strictly at 8:00 AM.

(Ball Depo. 64-65; Doc. 30-8).

Later

that day, the Human Resources Manager followed up with an email to
all employees which stated, in part:
Good morning TeamAs previously discussed in Kevin’s email, as of
tomorrow, 3/30/16, our 8:00 start time will be
strongly enforced. We will be monitoring arrival
times and issuing written warnings to anyone who is
not here by 8:00.
(Doc. 30-11 at 3).
Ragland immediately emailed Matthew Mason and told him he
felt this was a form of “micromanaging” and that because of his
sales performance, he did not “want to be categorized with everyone
else.”

(Id.; Ragland Dep. at 65-66, 76).

The next day, Ball sent

out a very stern email noting that the 8:00 start time policy had
been “met with some discord” but that it was “non-negotiable”
regardless of any employee’s “numbers” or “position.”

(Doc. 30-

9).
Ragland also had a dispute with management about one of his
potential “tagged” sales prospects that management gave to another
broker because they believed that Ragland was not doing enough to
solicit the prospect’s business. (M. Mason Dep. 10-13; Ball Dep.
40-41). Matthew Mason testified that Ragland questioned Mason’s
integrity while discussing the incident, and that the discussion
became so heated that Mason called Ball into the room to defuse
the situation. (M. Mason Dep. 16-18).
6

Ragland testified that such

“an incident” like that “could have happened,” but he denies that
he questioned Mason’s ethics or that Ball was called into the room.
(Ragland Depo. at 78-84).
In May, after terminating an account executive named Tyler
Reed, BM2 had to reassign his accounts. Ragland testified that
Klever and Matthew Mason met with the account executives and told
them that Reed’s accounts would be divided among the four team
leaders and then to the rest of the company.

(Ragland Depo. at

86-87). Ragland testified, however, that BM2 was not obligated to
assign the accounts to him or any other team leader.

(Ragland

Depo. at 87).
On May 16, 2016, Klever began reassigning Reed’s accounts to
other executives.

Ragland testified that he saw Klever assigning

accounts to others “all day” and that, by 5:00 p.m. when Klever
had not yet assigned him any of the accounts, Ragland texted him
to see what customers he would be getting.

(Ragland Depo. 87-88).

By that time, Ragland had printed out a list of Reed’s accounts.
When Ragland found Klever, he asked him which of Reed’s
accounts he would be getting. Klever and Ragland went into Ball’s
office, which was empty, and Klever explained to Ragland which
accounts he was being assigned. (Ragland Depo. at 88-90). Unhappy
with this information, Ragland took the piece of paper showing
Reed’s accounts, crumbled it, threw it into a trash can and stated,
“I don’t know why I keep getting treated like shit.” (Ragland Dep.
7

89-91; Meloche Dep. 39-40).

He then left Ball’s office, went back

to his desk to get his keys and wallet, and then left.

(Ragland

Depo. at 94).
The next morning, Klever told Matthew Mason about the incident
and that he felt that Ragland had been very disrespectful to Klever
as his supervisor.

(M. Mason Depo. at 24; (Meloche Dep. 42).

Klever then went to speak to Ragland. Klever told Ragland to “look
me in the eye like a man,” and reprimanded him. (Ragland Dep. 100101; Klever Dep. 14-15; Meloche Dep. 43-44).

Ragland then went

into Matthew Mason’s office and told Mason that he was going to
work from home because “I can’t work for somebody that’s going to
talk to me that way.”

(Ragland Depo. at 105; M. Mason Dep. 21).

Mason testified that he did not ask Ragland what had happened
because he did not want to deal with more “drama” and “negativity.”
(Id.).
On his way home, Ragland — who testified that “his adrenaline
was going” — called Jeff Mason, who was on his way to work, and
told him what happened.

(Ragland Depo. at 109-110)

Jeff Mason

testified that Ragland told him that Matthew Mason and Klever
“didn’t know what they were doing.” (J. Mason Dep. 9-10).
When Jeff Mason arrived at the office, he, Ball, and Matthew
Mason convened.

They discussed what they believed was a pattern

of negative behavior by Ragland. (J. Mason Dep. 10-15; Ball Dep.
72-73). Matthew Mason testified:
8

We talked about the – terminating him. You know, this
was another –- another incident, another – another
dramatic negative thing towards our culture, and it was
kind of like the straw that broke the camel’s back.
We’re like, you know, “Enough is enough. We can’t keep
doing the same stuff,” you know, and we decided to
terminate him.
. . .
Well, we had talked about it, you know, a lot that
morning, but we had hired some consultants previously
when we were – we were talking about the culture of the
company and how negative employees can vastly impact the
culture of the company negatively.
And we had had
conversations about Jason in our weekly meetings that I
referenced earlier, about his negativity and his
incidents and how it was not a good thing for our
company’s culture.
(M. Mason Dep. 22, 26).
Similarly, Ball testified:
After that, we had a conversation on how to — what needed
to happen.
Again, you know, as before, Mr. Ragland
wasn’t terminated for one thing.
I think that last
incident was proverbially the straw that broke the
camel’s back, and — and, you know, this employee is —
and the way they operate and how they treated superiors
as well as co-workers and the method in which they
express displeasure was running counter to the culture
of the organization that we were trying to foster and
build.
. . .
And the environment had gotten too toxic.
Jason’s
malcontentment, I guess, if that’s a word, just — you
know, his level of discontent with the office, the
owners, how we were doing things and his displeasure was
running counter to, again, what we were trying to — to
do.
(Ball Depo. at 87-89).

9

Management decided to terminate Ragland’s employment. Ball
had tried to reach Ragland via text, and Ragland called him back.
Ball told Ragland he was being terminated.

(M. Mason Dep. 22-27;

Ball Depo. at 97-99; Ragland Depo. 111-113).

Ragland was not

allowed to return to collect his effects in person, but BM2 mailed
them to him.
Ragland filed suit in this Court on February 12, 2018, (Doc.
1), alleging two claims: (1) Veteran Discrimination pursuant to
the Uniformed Services Employment and Reemployment Rights Act of
1994

(“USERRA”),

38

U.S.C.

§

4311,

and

(2)

Disability

Discrimination pursuant to the Americans with Disabilities Act of
1990, as amended, (“ADA”), 42 U.S.C. § 12101, and KRS Chapter 344.
Analysis
A. Veteran Discrimination
“USERRA

was

enacted

to

prohibit

discrimination

individuals because of their military service.”

Bobo v. United

Parcel Serv., 665 F.3d 741, 754 (6th Cir. 2012).
prohibits

employers

from,

as

relevant

here,

against

The statute

terminating

an

individual’s employment on the basis of their military status.

38

U.S.C. § 4311(a).
The USERRA discrimination analysis is a two-step process.
Hickle v. Am. Multi-Cinema, Inc., 927 F.3d 945, 952 (6th Cir. 2019)
(citation omitted).

“The plaintiff must first make out a prima

facie case of discrimination by showing, by a preponderance of the
10

evidence, that his protected status was a substantial or motivating
factor in the adverse employment action.”

Id. (citation and

internal quotation marks omitted).
“Discriminatory motivation may be inferred from a variety of
considerations, including proximity in time between the employee’s
military

activity

and

the

adverse

employment

action,

inconsistencies between the employer’s conduct and the proffered
reason for its actions, the employer’s expressed hostility toward
military

members

together

with

knowledge

of

the

employee’s

military activity, and disparate treatment of certain employees
compared to other employees with similar work records or offenses.”
Bobo, 665 F.3d at 754.
If

the

plaintiff

establishes

a

prima

facie

case

of

discrimination, “the employer then has the opportunity to come
forward with evidence to show, by a preponderance of the evidence,
that the employer would have taken the adverse action anyway, for
a valid reason.”

Hickle, 927 F.3d at 952 (citation omitted).

In support of his USERRA claims, Ragland argues that Meloche,
a non-veteran, was similarly situated to him, engaged in similar
behavior towards management, and yet was not terminated.
at 9-17).

(Doc. 35

He also relies on his assertion that he was perceived

to have PTSD.

(Ragland Depo. at 141).

The Court has reviewed the record carefully and concludes
that the record simply does not contain evidence from which a
11

reasonable jury could conclude that Ragland’s military service was
a “substantial or motivating factor in the adverse employment
action.”

Hickle, 927 F.3d at 952 (citation omitted).

First, there is no proximate connection between Ragland’s
military activity and his termination.

Ragland’s military service

ended in 2008, four years before BM2 hired him and eight years
before

it

terminated

his

employment.

BM2

not

only

knew

of

Ragland’s service at the time it hired him, but the undisputed
evidence is that the company considered it a positive factor. Ball
testified that it “got Ragland in the door,” and that his military
service was particularly attractive because they were hoping to
secure government contracts and felt that Ragland’s background
gave him vital experience in that area.
Second, the same management team that hired Ragland made the
decision

to

dispositive,

end

his

common

employment.
sense

dictates

suggestion of discriminatory animus.

While
that

this
it

factor

is

not

undermines

any

As Ball testified:

I think it would be pretty silly to hire somebody
because they’re a veteran and then fire them
because they’re a veteran. The veteran status is
what got him in the door.
We’ve hired several
veterans over the years. I have great respect for
— for veterans and — and their work ethic. It had
nothing — you know, Jason being a veteran is the
one thing I really admire about him. We let him go
because it wasn’t a cultural fit.
(Ball Depo. at 203).

12

With respect to Jess Meloche, the sole alleged comparator,
Ragland argues that Meloche engaged in “shouting matches” with BM2
management,

once

stormed

out

of

a

contentious

meeting,

and

commented to Matthew Mason that he was being “screwed” by a new
compensation structure.

Thus, Ragland argues, this is evidence of

disparate treatment that satisfies the prima facie case.
Ragland bears the burden of showing that Meloche’s conduct
was comparable to his own.

Escher v. BWXT-12, LLC, 627 F.3d 1020,

1029 (6th Cir. 2010) (citation omitted).

The Sixth Circuit

recently addressed the analysis of whether two employees engaged
in acts of “comparable seriousness” for purposes of the “similarly
situated” analysis in a disparate treatment claim.

See Johnson v.

Ohio Dep’t of Public Safety, — F.3d —, No. 18-4181, 2019 WL
5938095, at *3 (6th Cir. Nov. 13, 2019).

The Court explained:

When it comes to comparable seriousness, it is the
particular conduct of the [employees], not broad
generalizations, that counts. Drawn at too high a
level of generality, the “comparable seriousness”
test becomes meaningless. True, stitches and openheart surgery are both medical procedures.
But
that does not mean they are of “comparable
seriousness.”
Id. (emphasis added).
At a high level of generality, Meloche’s conduct might seem
similar to Ragland’s.

However, the testimony from BM2 management

is consistent — despite Ragland’s assertion to the contrary — that
the company was trying to generate a positive culture and that

13

Ragland displayed a pattern of negativity that ran counter to that
effort.

Ball testified that Meloche differed in this respect:
Q.
All right. Has Mr. Meloche ever raised his
voice in closed-door meetings with you or the []
Masons?
A.
Raised voice, maybe.
Not – not a specific
incident. I mean he can be animated, but, again,
Mr. Meloche is also a culture champion for us and
– and he also – you know, he can disagree with
things and – keep it professional and still – still
provide a beacon of leadership and culture, and
that’s why he’s still there.

(Ball Depo. at 131-132).
Ragland’s reliance on the questions about his service and
whether he had PTSD is also unavailing.

First, as noted above,

most of these questions were from co-workers who had no role in
management’s

decision

to

terminate

Ragland’s

employment.

Similarly, Ragland had only a single conversation with both Ball
and Klever, and neither of the Masons ever discussed Ragland’s
service with him or asked any service-related questions.

And

Ragland cites no evidence that connects any question about his
service to the termination decision.
This record thus stands in stark contrast to cases where
decisionmakers express anti-military animus or distaste for an
employee’s service history or obligations.

See, e.g., Hickle v.

Am. Multi-Cinema, Inc., 927 F.3d 945, 952-954 (6th Cir. 2019);

14

Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 755-56 (6th Cir.
2012).
In

sum,

the

record

is

devoid

of

any

evidence

that

BM2

management harbored any anti-military animus towards Ragland.
Ragland thus has not shown that his veteran status was a factor,
much less a substantial or motivating factor, in BM2’s decision to
terminate his employment.

The Court will thus grant BM2’s motion

for summary judgment on this claim.
B. Disability Discrimination1
Title

I

of

the

ADA

prohibits

covered

employers

from

discharging an employee because the employee is disabled, because
the employee has a record of being disabled, or because the
employer regards the employee as disabled.

Babb v. Maryville

Anesthesiologists P.C., — F.3d —, No. 19-5148, 2019 WL 5778336, at
*7

(6th

Cir.

Nov.

6,

2019)

(citing

42

U.S.C.

§§

12102(1),

12112(a)).
Ragland’s disability discrimination claim is premised on the
theory that BM2 “regarded” him as suffering from PTSD and that it
terminated him on that basis.
A

plaintiff

may

make

out

a

“regarded

as”

ADA

claim

by

establishing that he was discharged because of “an actual or
perceived

physical

or

mental

impairment

whether

or

not

the

The parties agree that the analysis of Ragland’s claims under
the ADA and the KCRA are the same. (Doc. 35 at 17 n.8.).
1

15

impairment limits or is perceived to limit a major life activity.”
Id. at *7-8 (quoting 42 U.S.C. § 12102(3)(A)). The plaintiff bears
the burden of proving that the perceived disability was a “butfor” cause of his termination.

Id. at *8.

Ragland, devoting only two pages of his response brief to his
ADA claim, relies primarily on the fact that some employees asked
him if he had PTSD and that BM2 informed him of the termination
over the phone and did not allow him to return to the office to
collect his belongings.
Again, the Court has reviewed the record carefully and finds
that it contains no evidence from which a reasonable jury could
find in Ragland’s favor on this claim.
Ragland testified that he does not have PTSD, and when asked
about it by co-workers he made that clear.
123).

He

offers

no

evidence

that,

(Ragland Depo. at 8,
after

these

arguably

inappropriately personal inquiries, any BM2 employee acted in such
a way that would suggest they regarded Ragland as suffering from
PTSD.

And other than a single conversation with Ball and Klever,

these questions came from co-workers who were not involved in any
way with Ragland’s termination. And neither Jeff Mason nor Matthew
Mason ever asked Ragland about PTSD.

(Ragland Depo. at 12, 126-

27).).
Further, Ragland cites no evidence that either Klever or Ball
thought Ragland had PTSD.

In fact, Ball testified that he never
16

heard anyone at BM2 suggest that Ragland had PTSD.
125).

And

Ball

testified

that

he

informed

(Ball Depo. at
Ragland

of

his

termination when he did simply because they were already on the
phone.

(Ball Depo. at 122).

In sum, Ragland’s theory of his ADA claim presumes a combatveteran stereotype where the record contains no evidence that any
of the decisionmakers in question subscribed to such a view.

Therefore, having heard the parties, and the Court being
advised,
IT IS ORDERED that defendant’s motion for summary judgment
(Doc. 32) be, and is hereby, GRANTED.
enter concurrently herewith.

This 22nd day of November 2019.

17

A separate judgment shall