Coleman v. Miller Enterprises, LLC

Filing 32

ORDER granting in part and denying in part Defendant's 26 Motion for Summary Judgment. The Court grants the motion as to Plaintiff's Title VII claim and Section 1981 claim, but it denies the motion as to Plaintiff's FLSA claim. Signed by District Judge Keith Starrett on October 6, 2011 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

AARON COLEMAN

PLAINTIFF

v.

CIVIL ACTION NO. 2:10-CV-296-KS-MTP

MILLER ENTERPRISES, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants in part and denies in part Defendant’s
Motion for Summary Judgment [26]. The Court grants the motion with respect to Plaintiff’s Title
VII and Section 1981 claims, but it denies the motion as to Plaintiff’s FLSA claim.
I. BACKGROUND
Plaintiff began work as a laborer for Defendant on February 25, 2009. On March 1, 2010,
Defendant terminated Plaintiff’s employment. Plaintiff alleges that Defendant terminated him
because of his race. Defendant claims that it terminated Plaintiff because he damaged a customer’s
fence while operating Defendant’s skid steer machine, failed to report the accident, and later lied
about it.
Plaintiff subsequently filed his Complaint, alleging violations of 42 U.S.C. § 1981, Title
VII,1 and the Fair Labor Standards Act (“FLSA”).2 Defendant filed its Motion for Summary
Judgment [26], which the Court now addresses.3

1

42 U.S.C. § 2000e, et seq.

2

29 U.S.C. § 201, et seq.

3

Plaintiff also filed a Motion to Strike [17] Defendant’s designation of William J. Cutler
Jr. as an expert witness. The Court does not presently address that motion, as the Court need not

II. STANDARD OF REVIEW
Rule 56 provides that “[t]he 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); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627
F.3d 134, 138 (5th Cir. 2010). “Where the burden of production at trial ultimately rests on the
nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record
for the nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010)
(punctuation omitted). The nonmovant “must come forward with specific facts showing that there
is a genuine issue for trial.” Id. (punctuation omitted). “An issue is material if its resolution could
affect the outcome of the action.” Sierra Club, Inc., 627 F.3d at 138. “An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.” Cuadra, 626
F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the evidence. Deville
v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists,
“the court must view the facts and the inference to be drawn therefrom in the light most favorable
to the nonmoving party.” Sierra Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations
and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue for trial.”
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
III. DISCUSSION
A.

Title VII

consider Cutler’s report or testimony in addressing Defendant’s motion for summary judgment.
2

Plaintiff conceded his Title VII claim. Accordingly, the Court grants Defendant’s Motion
for Summary Judgment with respect to it.
B.

42 U.S.C. § 1981
Claims of intentional racial discrimination in employment – whether brought under 42

U.S.C. § 1981 or Title VII – are analyzed “under the same rubric of analysis.” Raggs v. Miss. Power
& Light Co., 278 F.3d 463, 468 (5th Cir. 2002). The Court analyzes such claims under the
McDonnell Douglas burden-shifting framework. Id. (citing McDonnell Douglas v. Green, 411 U.S.
792, 802 n. 13, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). In the first step of the analysis, Plaintiff
must establish a prima facie case of discrimination Id. Plaintiff can establish a prima facie case by
providing evidence (1) that he is a member of a protected class; (2) that he was qualified for his
position; (3) that he was subject to an adverse employment action; and (4) that similarly situated
individuals of another race were treated more favorably. Lee v. Kan. City S. Ry. Co., 574 F.3d 253,
259 (5th Cir. 2009); Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007); Okoye v. Univ.
of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
It is undisputed that Plaintiff presented sufficient evidence to demonstrate the first three
prongs of the prima facie case, but Defendant argues that Plaintiff, an African-American man, failed
to provide evidence that Caucasian men similarly situated to him were treated more favorably than
he was. “In work-rule violation cases, a Title VII plaintiff may establish a prima facie case by
showing either that he did not violate the rule or that, if he did, white employees who engaged in
similar acts were not punished similarly.” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th
Cir. 1995). Plaintiff testified by affidavit that he did not strike the fence with the skid steer machine.
Therefore, he has presented sufficient evidence to create a genuine dispute as to whether he

3

committed the work-rule violation for which Defendants claims to have fired him. Accordingly, he
made out a prima facie case of discrimination.
Consequently, the burden shifts to Defendant, which must produce a legitimate,
nondiscriminatory reason for the adverse employment action at issue. Okoye, 245 F.3d at 513.
Defendant’s burden is merely one of production – not persuasion; it involves “no credibility
assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147
L. Ed. 2d 105 (2000). If Defendant produces a legitimate, nondiscriminatory reason for the adverse
employment action, the “mandatory inference of discrimination” created by Plaintiff’s prima facie
case vanishes. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).
Defendant presented evidence that its employee conduct and work rules explicitly forbid
“[n]egligence or improper conduct leading to damage of employer-owned or customer-owned
property,” and that it required employees to report any such damage to equipment or customerowned property. Defendant also presented evidence that Plaintiff was the only employee who
operated the skid steer on the day the damage to the fence occurred, and that he nonetheless denied
that he caused the damage. Plaintiff’s supervisor, David Morris, concluded that Plaintiff was lying,
and Defendant’s owner, Russell Miller, ordered that Plaintiff be immediately terminated. This is
sufficient to meet Defendant’s burden of production. Mayberry, 55 F.3d at 1091. Therefore, the
burden shifts back to Plaintiff, who must rebut Defendant’s legitimate, nondiscriminatory reason by
proving that “(1) the . . . reason is not true, but is instead a pretext for discrimination (pretext
alternative); or (2) the . . . reason, while true, is only one of the reasons for its conduct, and another
motivating factor is [his] protected characteristic (mixed motive alternative).” Black v. Pan Am
Labs., L.L.C., 646 F.3d 254, 259 (5th Cir. 2011).

4

First, Plaintiff claims that two other employees operated the skid steer on the day the damage
occurred, and he testified as much via affidavit. He further testified that he did not strike the fence
with the skid steer. Plaintiff argues that this creates a factual dispute as to whether he committed the
infractions which Defendant claims formed the basis of its decision to terminate his employment.
However, “[t]he question is not whether an employer made an erroneous decision; it is whether the
decision was made with discriminatory motive.” Mayberry, 55 F.3d at 1091. The Fifth Circuit has
held:
The existence of competing evidence about the objective correctness of a fact
underlying a defendant’s proffered explanation does not in itself make reasonable an
inference that the defendant was not truly motivated by its proffered justification. .
. .[E]ven an incorrect belief that an employee’s performance is inadequate constitutes
a legitimate, non-discriminatory reason. We do not try in court the validity of good
faith beliefs as to an employee’s competence. Motive is the issue.
Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991); see also LeMaire v. Louisiana, 480
F.3d 383, 391 (5th Cir. 2007); Bryant v. Compass Group USA, Inc., 413 F.3d 471, 478 (5th Cir.
2005). Phrased more succinctly: “Simply disputing the underlying facts of an employer’s decision
is not sufficient to create an issue of pretext.” LeMaire, 480 F.3d at 391. Accordingly, Plaintiff’s
testimony that he did not commit the work-rule violation which Defendant claims he committed is
insufficient to rebut Defendant’s legitimate, nondiscriminatory reason for termination.
Next, Plaintiff offered his own testimony that two Caucasian employees – Chris Speed and
Brandon Miller – damaged equipment and/or customer-owned property while on the job and failed
to report it. Plaintiff testified that Defendant did not terminate either of them. A plaintiff may
establish pretext “either through evidence of disparate treatment or by showing that the employer’s
proffered explanation . . . is not the real reason for the adverse employment action.” Laxton v. Gap,
Inc., 333 F.3d 572, 578 (5th Cir. 2003) (punctuation omitted). If a plaintiff tries to show pretext by
5

evidence of disparate treatment – as Plaintiff has done – he must “compare his treatment to that of
nearly identical, similarly situated individuals.” Bryant, 413 F.3d at 478. In other words, Plaintiff
must show that Defendant gave more favorable treatment to an employee of a different race under
“nearly identical” circumstances. Id.
The two Caucasian employees whom Plaintiff claims received more favorable treatment than
he did were not “similarly situated” with him. First, Defendant presented affidavit testimony from
its owner, Russell Miller, that the two Caucasian employees referred to by Plaintiff did not lie about
their incidents, whereas Defendant believed that Plaintiff was lying about his actions. Regardless
of whether Defendant’s assessment of Plaintiff’s honesty is correct,4 it creates a substantial
difference between his situation and theirs.
Next, Defendant presented evidence that Plaintiff has a history of troublesome behavior at
work. According to Defendant’s affidavits, Plaintiff previously damaged company property, and he
received verbal warnings. In January 2010, Plaintiff received a written reprimand for failing to
perform his job duties and attempting to assert authority over employees of equal rank. Rather than
terminate Plaintiff’s employment, Defendant allowed Plaintiff to transfer to a different work crew,
and Defendant advised Plaintiff that “this was his last chance and any other problems would lead
to his termination.” Plaintiff has not presented any evidence to dispute this account of his
employment history. Furthermore, he has not presented any evidence that the two Caucasian
employees to whom he compares himself have similarly checkered work histories. Accordingly, the
Court finds that Plaintiff failed to provide evidence that “nearly identical, similarly situated

4

Even Defendant’s incorrect assessment of Plaintiff’s honesty would constitute a
legitimate, nondiscriminatory reason. LeMaire, 480 F.3d at 391; Bryant, 413 F.3d at 478; Little,
924 F.2d at 97.
6

individuals” of a different race were treated more favorably than he was. Bryant, 413 F.3d at 478.
Therefore, Plaintiff failed to present evidence rebutting Defendant’s legitimate,
nondiscriminatory reason for his termination, and the Court grants Defendant’s Motion for Summary
Judgment as to Plaintiff’s Section 1981 claim.
C.

Fair Labor Standards Act
In its Motion for Summary Judgment, Defendant first argues that Plaintiff is not covered by

the FLSA because it is not engaged in interstate commerce or in the production of goods for
interstate commerce. “The FLSA covers employees who are ‘engaged in commerce or in the
production of goods for commerce.’” Williams v. Henegan, 595 F.3d 610, 619 (5th Cir. 2010)
(quoting 29 U.S.C. §§ 206(a), 207(a)(1)). The FLSA defines an “[e]nterprise engaged in commerce
or in the production of goods for commerce” as an enterprise that “has employees handling, selling,
or otherwise working on goods or materials that have been moved in or produced for commerce by
any person,” and “whose annual gross volume of sales made or business done is not less than
$500,000 (exclusive of excise taxes at the retail level that are separately staed).” 29 U.S.C. §
203(s)(1)(A).
It is undisputed that Defendant’s annual gross volume of business is equal to or greater than
$500,000.00. Furthermore, Plaintiff presented his own affidavit testimony that he handled and
worked with numerous materials and tools that were made outside of Mississippi and brought here
through interstate commerce. No other evidence regarding the origin of the materials and tools
Plaintiff handled during his work for Defendant is currently before the Court. Accordingly, the Court
finds that Plaintiff is subject to the FLSA. See Brennan v. Hatton, 474 F.2d 9, 12 (5th Cir. 1973)
(where parts used by plaintiff were manufactured outside of his state and moved there in commerce,

7

plaintiff was covered by FLSA).
Defendant also argues that it was not required to compensate Plaintiff for time spent riding
to different work sites in company vehicles. The Portal-to-Portal Act provides:
[N]o employer shall be subject to any liability or punishment under the Fair Labor
Standards Act . . . on account of the failure of such employer to pay an employee
minimum wages, or to pay an employee overtime compensation, for or on account
of any of the following activities of such employee . . . –
(1) walking, riding, or traveling to and from the actual place of performance
of the principal activity or activities which such employee is employed to
perform, and
(2) activities which are preliminary to or postliminary to said principal
activity or activities, which occur either prior to the time on any particular
workday at which such employee commences or subsequent to the time on
any particular workday at which he ceases, such principal activity or
activities. For purposes of this subsection, the use of an employer’s vehicle
for travel by an employee and activities performed by an employee which are
incidental to the use of such vehicle for commuting shall not be considered
part of the employee’s principal activities if the use of such vehicle for travel
is within the normal commuting area for the employer’s business or
establishment and the use of the employer’s vehicle is subject to an
agreement on the part of the employer and the employee or representative of
such employee.
29 U.S.C. §254(a). In summary, “employees are entitled to compensation for travel time that is a
principal activity of the employee.” Vega ex rel. Trevino v. Gasper, 36 F.3d 417, 424 (5th Cir.
1994). The Department of Labor’s regulations provide more specific instructions:
Time spent by an employee in travel as part of his principal activity, such as travel
from job site to job site during the workday, must be counted as hours worked.
Where an employee is required to report at a meeting place to receive instructions
or to perform other work there, or to pick up and to carry tools, the travel from the
designated place to the work place is part of the day’s work, and must be counted as
hours worked regardless of the contract, custom, or practice. If an employee
normally finishes his work on the premises at 5 p.m. and is sent to another job which
he finishes at 8 p.m. and is required to return to his employer’s premises arriving at
9 p.m., all of the time is working time. However, if the employee goes home instead
of returning to his employer’s premises, the travel after 8 p.m. is home-to-work
8

travel and is not hours worked.
29 C.F.R. § 785.38 (2011) (emphasis added).
In the present case, it is undisputed that Plaintiff – like Defendant’s other employees –
arrived each day at Defendant’s office, where all the employees would ride in Defendant’s trucks
to the work site. Plaintiff presented evidence, in the form of his own affidavit testimony, that he
arrived at Defendant’s office early each day to fuel up the work trucks and start them when it was
cold. Plaintiff also testified that Defendant’s owner would occasionally require him to perform other
tasks to prepare for the day’s work. Accordingly, Plaintiff has presented sufficient evidence to create
a genuine dispute of material fact as to whether the time spent in travel each day was part of his
principal activity and, therefore, compensable. See Vega, 36 F.3d at 424-25 (finding that plaintiffs’
travel time to and from work was not compensable because they performed no work prior to riding
to the work site).
Therefore, the Court denies Defendant’s Motion for Summary Judgment as to Plaintiff’s
FLSA claims.
IV. CONCLUSION
For the reasons stated above, the Court grants in part and denies in part Defendant’s
Motion for Summary Judgment [26]. The Court grants the motion as to Plaintiff’s Title VII claim
and Section 1981 claim, but it denies the motion as to Plaintiff’s FLSA claim.
SO ORDERED AND ADJUDGED this 6th day of October, 2011.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

9