Garland v. Danville Public Works Sanitation Dept.

Filing 37

MEMORANDUM OPINION. Signed by Judge Jackson L. Kiser on 2/5/16. (ham)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
ANDREW L. GARLAND,
Plaintiff,
v.
CITY OF DANVILLE, VIRGINIA,
Defendant.

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Case No. 4:15-cv-00012
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge

Plaintiff Andrew L. Garland filed this action against the defendant, the City of Danville,
Virginia, on April 7, 2015. On November 14, 2015, the City moved for summary judgment on
all of Plaintiff’s claims. [ECF No. 25.] The matter was fully briefed by the parties, and I heard
oral argument on the Motion on January 14, 2016. The matter is now ripe for decision. For the
reasons stated herein, I will grant the City’s Motion for Summary Judgment.
I.

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
Plaintiff Andrew Garland (“Plaintiff”), who is African-American, began working for the

City of Danville (“the City”), Sanitation Division, around 2003. Plaintiff was employed as a
Sanitation Operator II, and his job consisted of refuse and recyclable collection on City-owned
trucks. In late 2003, Plaintiff was one of the City’s “most trained operators.” (Aff. of Wallace
Wyatt ¶ 14, Nov. 12, 2015 [ECF No. 26-3].) The Sanitation Division consisted of six refuse
drivers and two spare drivers for a total of eight drivers, seven of whom were African-American.
Plaintiff’s immediate supervisor was Wallace Wyatt, a General Supervisor in the
Sanitation Division of the Department of Public Works. (Wyatt Aff. ¶¶ 1, 4.) During the
relevant period, Wyatt’s supervisor was Christopher Goss, Division Director for Sanitation (Aff.
of Christopher Goss ¶¶ 1 & 4, Nov. 13, 2015 [ECF No. 26-6]), and Goss’s supervisor was

Richard Drazenovich, Director of the Department of Public Works (id. ¶ 4; Aff. of Richard
Drazenovich ¶ 1, Nov. 13, 2015 [ECF No. 26-5]).
According to Wyatt, on March 30, 2012, Plaintiff caused damage to a property owner’s
yard by “creating ruts in the yard.” (Wyatt Aff. ¶ 28.) Plaintiff was apparently attempting to
turn around in the owner’s yard. (Drazenovich Aff. ¶ 35.) Drazenovich asserts that Plaintiff did
not report this incident (id.), and Plaintiff has not denied that allegation.
On August 16, 2012, “Plaintiff failed to retract the dump arm [on his truck] and struck a
private citizen’s vehicle, causing significant damage.” (Id. ¶ 36.) Plaintiff has not denied that
allegation.
On August 19, 2013, “while collecting refuse, [] Plaintiff hit the wrong switch, opening
the tailgate and dumping trash into the street.” (Id. ¶ 37.) Other personnel were called from their
locations to assist in cleaning up the trash. (Id.) Plaintiff has not denied that allegation.
On May 7, 2013, Plaintiff “failed to maintain proper control of his vehicle as he
attempted to make a turn and drove off the shoulder, damaging a property owner’s grass and
nearly reach[ing] a steep embankment.” (Id. ¶ 38.) Plaintiff has not denied that allegation.
On December 9, 2013, Plaintiff was written up and drug tested “for dragging a leaf loader
across the parking lot. [He] received this treatment even though [he] told Wyatt [he] had
followed the proper procedure and made sure that the leaf loader was properly hitched, but
before [he] was able to leave the parking lot[,] an inmate unhitched the leaf loader without
[Plaintiff’s] knowledge.” (Aff. of Andrew Garland ¶ 13, Dec. 9, 2015 [ECF No. 31-1].)
According to Goss, “[a]lthough [] Plaintiff claimed that an inmate driving with him
sabotaged the equipment, it is the driver’s responsibility to be aware of an inmate’s actions at all
times, and for ‘pre-tripping’ the vehicle prior to operation, which includes verifying that the hitch

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is properly connected.” (Goss Aff. ¶ 11.) Wyatt does not mention the inmate Plaintiff was
supervising, but stated he “concluded that, as the driver, it was [] Plaintiff’s responsibility to
check all equipment for proper attachment before he drives the truck.” (Wyatt Aff. ¶ 19.)
Plaintiff was initially suspended for five days without pay, but Drazenovich reduced Plaintiff’s
suspension to two days without pay.

(Drazenovich Aff. ¶ 21.)

The Accident Review

Committee1 reviewed Plaintiff’s punishment and determined that the accident was preventable.
(Id.) Plaintiff was advised, in writing, that this incident was his “last chance” and that future acts
of carelessness would result in termination. (Wyatt Aff. ¶ 19.)
Plaintiff filed a grievance regarding his punishment on January 17, 2014. (Pl.’s Mem. in
Opp. to Def.’s Mot. for Summ. J. (hereinafter “Pl.’s Mem.) Ex. D [ECF No. 31-4].) Plaintiff
contended that Scott Hilton, a white employee, “had the same incident and was NOT CHarged!!
[sic]” (Id.) According to Plaintiff, Hilton had an incident in 2013:
[Hilton] was attempting to disconnect a vacuum and pulled
forward. As a result, a pin on the ring wedged and the motor pool
had to come out to the site to repair the equipment. Hilton was not
written up or drug tested because Wyatt classified this incident as
equipment malfunction.
(Garland Aff. ¶ 14.) According to Wyatt, “[t]his specific type of equipment malfunction is not
unheard of.” (Wyatt Aff. ¶ 26.) Wyatt stated that there was “nothing Hilton could have done
[that] would have prevented this incident.” (Id.) Hilton was not punished for the incident.
Drazenovich stated, “This incident was not the result of Hilton failing to properly inspect the

1

The Accident Review Committee is comprised of Drazenovich, “Barry Doebert, Administration
Division Director, the Senior Administrative Assistant and Administrative Assistant. Any Division
Director that has an employee with an accident is invited to attend the meeting. The Committee meets
periodically and the purpose of the Committee is to review each accident within the department to assess
the cause, whether it could have been prevented, whether additional training and education is warranted
for employees to decrease occurrences [,] and whether any changes in protocol or institution of new
protocol is necessary to prevent accidents in the future.” (Drazenovich Aff. ¶ 8.)

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equipment or carelessness but rather due to the malfunction of the clamp.” (Drazenovich Aff. ¶
30.)
Plaintiff also asserts that an incident involving another white driver, Sam Crumpton,
highlights the differing treatment between black and white drivers. On January 29, 2014,
Plaintiff was riding with Crumpton during emergency snow removal.

Crumpton “was

attempting to drive up a hill when the truck stopped pulling.” (Garland Aff. ¶ 15.) Plaintiff and
another passenger advised Crumpton to put the truck in neutral, but Crumpton put the truck in
reverse. (Id.) As a result, the truck “jackknifed and damaged the truck’s jack.” (Id.) Plaintiff
asserts that the incident happened twice that day, but Crumpton never reported the incident. (Id.
¶¶ 15–16.) Nevertheless, Crumpton’s supervisor’s found out about the incident, but Crumpton
was not drug-tested or punished. Additionally, Plaintiff claims Wyatt did not file an accident
report (as required) until Plaintiff reported the incident to Human Resources. (Id. ¶ 20.)
Crumpton’s supervisors disagree with Plaintiff’s version of the facts.2 They contend that
Crumpton’s truck merely slid back while ascending a hill. (See Drazenovich Aff. ¶ 23.) They
contend that Crumpton did report this incident to Wyatt (id. ¶ 25; Wyatt Aff. ¶ 23), but that
Crumpton was not drug-tested because of extenuating circumstances (the weather and the lack of
personnel to cover for him while he was taken to be drug-tested) (Wyatt Aff. ¶ 24).
On February 28, 2014, Plaintiff backed Truck 239 into a service welder truck.
(Drazenovich Aff. ¶ 39.) According to Drazenovich:
A co-worker witnessed the accident and there was evidence of
damage which matched the two vehicles. [] Plaintiff was
witnessed parking Truck 239 and walking away after the incident.
[] Plaintiff was the only person to drive Truck 239 that day and the
2

Regarding Plaintiff’s December 9, 2013, incident and Crumpton’s January 29, 2014, incident, I accept
Plaintiff’s version of the facts. Not only am I required to do so on a motion for summary judgment, but
Plaintiff is the only fact witness who was present for these events and, thus, is the only witness with direct
knowledge of the facts.

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welder truck was parked at that location for only a short period of
time that afternoon. [] Plaintiff failed to report the accident, left
the scene and, when questioned, denied that it had occurred.
(Drazenovich Aff. ¶ 39.) Plaintiff was suspended for three days, without pay. He did not grieve
the discipline and has not denied these allegations in this proceeding.
On April 22, 2014, Goss was monitoring the GPS locations of the vehicles when he
noticed Truck 219—the truck Plaintiff was driving that day—off its route. (Goss Aff. ¶ 20.)
Goss called Plaintiff on the radio and told Plaintiff to see him before he left for the day. The two
spoke for thirty to forty minutes, and Plaintiff told Goss that he was picking up trash for a citizen
who had failed to put her trash out on the scheduled pick-up day. (Id. ¶ 21.) Goss advised
Plaintiff that he did not have the authority to make such a decision. (Id.)
Goss also discovered that, when Plaintiff “drove down Tom Fork Road, he drove across
Cane Creek Bridge which has a weight limit of eight (8) tons.” (Id. ¶ 22.) When Plaintiff drove
across Cane Creek Bridge, his truck weighed 39,740 pounds, or 19.87 tons, meaning the truck
weighed over twice the bridge’s posted weight limit.

(Id.)

As a result of his actions,

Drazenovich alerted the Virginia Department of Transportation and scheduled an emergency
review of the bridge’s structural integrity. (Drazenovich Aff. ¶ 40.) Plaintiff has not denied
these allegations.
The next day, Plaintiff was advised by letter that he was suspended without pay and
would be terminated thereafter. (Id.) On April 28 Plaintiff elected to take early retirement,
effective May 1. (Id. ¶ 41.)
Plaintiff filed a Charge of Discrimination with the EEOC on August 22, 2014. On the
Notice of Charge of Discrimination sent to the City, only “Race” is noted as a “Circumstance[]
of Alleged Discrimination.” (Def.’s Mem. in Supp. of Mot. for Summ. J. Ex. A [ECF No. 26-

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1].) On the Charge of Discrimination, Plaintiff alleged discrimination based on “Race” and
“Retaliation.” Plaintiff described the alleged discrimination as follows:
1.
I was hired on April 4, 2001. On December 9, 2013, I was
formally disciplined and drug tested following an accident with a
spare side loader truck. I was given a five-day suspension that was
later reduced to two days. Other White employees engaged in
similar conduct and received no discipline. For example, a White
co-worker drove a truck that slid down a hill in the snow and
jackknifed. This employee did not report it and tried to fix the
broken jack himself before he finally admitted to the accident later
in the afternoon. Still, he was not disciplined or drug tested. I
filed a grievance. I believe that Wallace Wyatt, Supervisor, treated
me unfairly because I am Black. I was terminated on April 24,
2014. I was told that I was suspended and terminated because I
failed to monitor my truck properly and violated safety procedures.
3.
I believe I was discriminated against because of my race,
Black, in violation of Title VII of the Civil Rights Act of 1964, as
amended.
(Id.) Plaintiff received a Right to Sue notice on January 7, 2015. [ECF No. 2-1.] Plaintiff filed
a pro se Complaint in this court on April 7, 2015, and an Amended Complaint (with the aid of
counsel) on July 30, 2015. [ECF No. 20.] The City filed its Motion for Summary Judgment on
November 14, 2015. [ECF No. 25.] Plaintiff filed a brief in opposition on December 9 [ECF
No. 31], and the City replied on January 7, 2016 [ECF No. 32]. I heard oral arguments on
January 14, 2016.
II.

STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine dispute of material fact and

the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); George & Co. LLC
v. Imagination Entertainment Ltd., 575 F.3d 383, 392 (4th Cir. 2009). A genuine dispute of
material fact exists “[w]here the record taken as a whole could . . . lead a rational trier of fact to
find for the nonmoving party.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (internal quotation
marks and citing reference omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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(1986). A genuine dispute cannot be created where there is only a scintilla of evidence favoring
the nonmovant; rather, the Court must look to the quantum of proof applicable to the claim to
determine whether a genuine dispute exists.

Scott v. Harris, 550 U.S. 372, 380 (2007);

Anderson, 477 U.S. at 249−50, 254. A fact is material where it might affect the outcome of the
case in light of the controlling law. Anderson, 477 U.S. at 248. On a motion for summary
judgment, the facts are taken in the light most favorable to the non-moving party insofar as there
is a genuine dispute about those facts. Scott, 550 U.S. at 380. At this stage, however, the
Court’s role is not to weigh the evidence, but simply to determine whether a genuine dispute
exists making it appropriate for the case to proceed to trial. Anderson, 477 U.S. at 249. It has
been noted that “summary judgment is particularly appropriate . . . [w]here the unresolved issues
are primarily legal rather than factual” in nature. Koehn v. Indian Hills Cmty. Coll., 371 F.3d
394, 396 (8th Cir. 2004).
III.

DISCUSSION
Plaintiff raises several theories of recovery in his attempt to state a claim for race

discrimination contrary to Title VII, but they all fail.
Plaintiff primary allegation is that he was disciplined more harshly than his white coworkers for similar conduct. The typical model of proof for discrimination—the prima facie
model outlined in McDonnell Douglas Corp. v. Green—is “less useful” in the context of
allegations of discriminatory discipline. Moore v. City of Charlotte,754 F.2d 1100, 1105 (4th
Cir. 1985). “The most important variables in the disciplinary context, and the most likely
sources of different but nondiscriminatory treatment, are the nature of the offenses committed
and the nature of the punishments imposed.”

Id.

Thus, a plaintiff carries his burden of

establishing a prima facie case of discriminatory discipline by showing: “(1) that [the] plaintiff

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engaged in prohibited conduct similar to that of a person of another race, color, sex, religion, or
national origin, and (2) that disciplinary measures enforced against the plaintiff were more severe
than those enforced against the other person.” Id. at 1105–06.
Like the model in McDonnell Douglas, however, the burden of production shifts once the
prima facie case is established. Once the plaintiff establishes the elements of discriminatory
discipline, the burden shifts to the employer to establish a legitimate, non-discriminatory reason
for the differing discipline. See id. at 1106. The Fourth Circuit has cautioned:
The defendant may not discharge its burden by merely restating the
offense for which the plaintiff was disciplined; plaintiff must
already have known this information in order to make a prima
facie case. Defendant’s burden is designed to focus the contested
issues at trial and to ensure the production of evidence available
only to the defendant, such as insight into the discretionary factors
underlying defendant’s decision to discipline two individuals
differently.
Id. “If the defendant fulfills this obligation, the plaintiff must rebut the proffered explanation
and meet the ultimate burden of proving intentional discrimination.” Id. (citing Tx. Dep’t of
Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
In the present case, Plaintiff contends that his December 9, 2013, offense—failing to pretrip his vehicle, resulting in him pulling a leaf-loader across the parking lot—is similar to
incidents involving Sam Crumpton and Scott Hilton. He contends his punishment—a two-day
suspension—was more severe. Assuming, for the sake of argument, that he is correct that his
incident is comparable to Crumpton’s and Hilton’s, the City counters that Plaintiff’s prior
disciplinary record justifies the differing disciplinary measures.3 Plaintiff concedes the City has

3

Plaintiff’s argument that the City’s affidavits may not be considered is unavailing. By the express terms
of the notarial statement included on the City’s affidavits, the statements were given under oath. Under
Virginia law, a notary may administer such oaths. See Va. Code Ann. 47.1-12(ii) (2015). Thus, the
affidavits are properly sworn and may be considered. Accord Drager v. Bridgeview Bank, Case No. 1:10-

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offered a legitimate, non-discriminatory reason for the difference. (Pl.’s Mem. pg. 12 (“Plaintiff
believes that the Defendant can articulate a non-discriminatory reason for the difference in
disciplinary measures.”).) The burden is therefore on Plaintiff to show that the City’s rationale is
nothing more than a pretext for discrimination. He has failed to do so.
There is no serious dispute that Plaintiff has a long record of disciplinary infractions
during his employment with the City. In the evidence presented to the court, Plaintiff does not
dispute any of the allegations of carelessness, save for the December 9th incident.

The

unrebutted claims include:





Causing damage to a property owner’s yard on March 30, 2012 (Wyatt Aff. ¶ 28);
Failing to retract the dump arm on his truck and striking a private citizen’s vehicle on
August 16, 2012 (Drazenovich Aff. ¶ 36);
Mistakenly opening the tailgate of his truck and dumping trash into the street on August
19, 2013 (id. ¶ 37); and
Failing to maintain control of his vehicle, damaging a property owner’s grass and nearly
reaching an embankment on May 7, 2013 (id. ¶ 38).

Tellingly, Plaintiff does not dispute that any of these events occurred and does not dispute the
City’s version of these events.
Plaintiff has not offered any evidence to show that his disciplinary record has been
misrepresented, and he has not offered any evidence to show how his disciplinary record
compares to that of Sam Crumpton or Scott Hilton. There is no way for the court to compare the
disciplinary records of Plaintiff and his comparators to determine if the City’s explanation is
worthy of credence. Thus, Plaintiff has failed to carry his burden to show that the City’s
admittedly non-discriminatory rationale is a pretext for discrimination. See also Gilbert v. PennWheeling Closure Corp., 917 F. Supp. 1119, 1126 (N.D.W. Va. 1996) (“This Court finds that as
a matter of law, the use of discretion in termination is not equivalent to discrimination.”); Pope v.
cv-7585, 2011 WL 2415244, at *4 n.4 (N.D. Ill. June 13, 2011) (rejecting argument similar to Plaintiff’s
because the affidavit in question stated that it was “subscribed and sworn” before the notary).

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City of Hickory, 541 F. Supp. 872, 878–79 (W.D.N.C. 1981), aff’d, 69 F.2d 20 (4th Cir. 1982)
(holding that subjective standards in disciplinary matters are appropriate—and do not rise to
discrimination—if the standards are “applied within reasonable bounds of traditional
management discretion”).
Plaintiff argues that Anthony Williamson’s testimony that Plaintiff was treated “unfairly”
and the fact that Plaintiff believes he was the target of unfair write-ups serves to rebut the City’s
rationale. First, Anthony Williamson’s opinion is a conclusory one devoid of factual support.
Second, it does nothing to rebut the seriousness of Plaintiff’s disciplinary record. In the same
vein, Plaintiff may believe that he was the subject of unfair write-ups, but he has not disputed
any of the City’s evidence regarding his disciplinary record. It is not enough to merely argue
that the City should not be believed; the argument must have factual support. Plaintiff has not
provided it.4
Plaintiff also argues that the City’ treatment of Richard Jackson establishes that its
purported rationale for disciplining Plaintiff differently is a pretext for discrimination. Jackson
stated that, after a verbal altercation in which Hilton told Jackson to “kiss his ass” and Jackson
told Hilton he would “hurt him,” Jackson was disciplined but Hilton was not. (Aff. of Richard
Jackson ¶ 5, Dec. 9, 2015 [ECF No. 31-7].) The Record lacks any evidence, however, to
establish who decided to punish Jackson or to show that Jackson even worked in the same
department as Plaintiff or Hilton. These basic facts are necessary to draw any corollary between
the environment in which Plaintiff claims he suffered discrimination and Jackson’s instance of

4

Plaintiff contends that he may be able to marshal more evidence for his claim through additional
discovery. (See Pl.’s Mem. pg. 13.) The Federal Rules of Civil Procedure set forth a procedure for
avoiding summary judgment when more discovery is needed. See Fed. R. Civ. P. 56(d). Because
Plaintiff has failed to show that additional facts are unavailable to him, he cannot avoid judgment because
he has not justified his opposition.

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disparate treatment. Without some evidentiary support to tie Jackson’s incident to Plaintiff’s
workplace, Plaintiff has failed to show how Jackson’s incident is relevant to these proceedings.
Plaintiff’s next allegation of discrimination is his claim that he was wrongfully
terminated in violation of Title VII. In order to succeed on a claim of discriminatory discharge,
Plaintiff must show: “(1) membership in a protected class; (2) satisfactory job performance;
(3) adverse employment action; and (4) different treatment from similarly situated employees
outside the protected class.” Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
aff’d, 132 S. Ct. 1327 (2012) (citing White v. BFI Servs., LLC, 375 F.3d 288, 295 (4th Cir.
2004)). If Plaintiff can establish the prima facie elements, “[t]he burden then must shift to the
employer to articulate some legitimate, nondiscriminatory reason” for its action. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The employer’s burden is one of production,
not persuasion. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
Once the employer offers a legitimate rationale for its actions, the burden shifts back to Plaintiff
to prove that the rationale offered is but a pretext for discrimination. See St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 510 (1993) (stating that, once an employer succeeds in carrying its
burden of production, “the McDonnell Douglas framework—with its presumptions and
burdens—is no longer relevant. . . . The defendant’s ‘production’ (whatever its persuasive effect)
having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has
proven ‘that the defendant intentionally discriminated against [him]’ because of his race.”
(quoting Burdine, 450 U.S. at 253)).
There is no serious dispute that Plaintiff satisfies the first and third prongs.5 What is also
clear, however, is that Plaintiff has not satisfied the third prong—namely, there is ample
5

The City fleetingly argues that Plaintiff was not “terminated” because he took early retirement, but the
City made it clear to Plaintiff that it intended to terminate his employment on a date certain. A reprimand

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evidence to show that Plaintiff was not performing his job satisfactorily at the time of his
termination.
As stated above, prior to the December 2013 incident, Plaintiff had a slew of mishaps on
his Record that he does not dispute. Although he disagrees—and has offered evidence—that the
December 2013 incident was not the result of his carelessness, the remainder of his disciplinary
record establishes that he was not performing to his employer’s legitimate expectations. In
addition to those incidents recounted supra, Plaintiff had other incidents of carelessness.6 These
include:



On February 28, 2014, Plaintiff backed into a service welder truck, did not report it, and
expressly denied his involvement in the incident (Drazenovich ¶ 39); and
On April 22, 2014, Plaintiff drove over a bridge with a posted weight limit of eight tons
while driving a truck weighing over nineteen tons. He was outside his route at the time
performing an unauthorized pick-up, and his carelessness violated state law and required
an emergency VDOT review of the bridge’s structural integrity. (See Goss Aff. ¶ 20;
Drazenovich Aff. ¶ 40.)

Plaintiff does not dispute these facts at all.
Based on Plaintiff’s undisputed disciplinary record (which excludes the December 2013
incident), no reasonable juror could conclude that Plaintiff was performing his job to his
employer’s legitimate expectations. He had repeatedly caused damage to private property,
caused damage to public property, and compromised the structural integrity of a public bridge in
a manner that endangered his life, his coworkers’ lives, and the lives of the general public. For
this reason, he has failed to put forth sufficient evidence to establish that he was performing his

that is tied to future termination can be an adverse employment action. See Nichols v. Harford Cnty. Bd.
of Educ., 189 F. Supp. 2d 325, 342 (D. Md. 2002). Accord Bauer v. Holder, 25 F. Supp. 3d 842, 853–54
(E.D. Va. 2014) (holding that a resignation was an adverse employment action because it was coerced and
“did not constitute a voluntary resignation”).
6
These additional allegations of carelessness were not considered during review of Plaintiff’s
discriminatory discipline claim because they occurred after the December 2013 incident for which
Plaintiff was disciplined. Thus, the City could not consider them when determining what discipline to
impose on Plaintiff for the December 2013 incident.

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job satisfactorily at the time of his termination, and summary judgment should be entered for the
City. Accord Pettiford v. N.C. Dep’t of Health & Human Servs., 228 F. Supp. 2d 677, 690
(M.D.N.C. 2002) (holding that the plaintiff had not adequately countered her employer’s
evidence regarding her poor job performance); Gilbert v. Penn-Wheeling Closure Corp., 917 F.
Supp. 1119, 1126 (N.D.W. Va. 1996) (noting that the plaintiff admitted his performance had
deteriorated and did not dispute disciplinary action taken against him).
Plaintiff’s next claim—unfair employment practices—is probably best understood as one
of disparate treatment in violation of Title VII.

Plaintiff claims that Farmer—a white

employee—was treated better than the other African-American drivers. Under Title VII:
[A] plaintiff may establish a prima facie case of disparate treatment
by direct or circumstantial evidence. To prove a Title VII violation
by circumstantial evidence, [Plaintiff] may proceed under the
three-step scheme of McDonnell Douglas Corp. v. Green. First,
[Plaintiff] must make a prima facie case of disparate treatment by
showing that (1) he is a member of a protected class; (2) he
suffered adverse employment action; (3) he was meeting his
employer’s legitimate expectations; and (4) similarly situated
employees outside his class received more favorable treatment.
Popo v. Giant Foods, LLC, 675 F. Supp. 2d 583, 589 (D. Md. 2009) (internal citations omitted).
Insofar as Plaintiff is proceeding under a “circumstantial evidence” theory, his claim fails for the
reasons mentioned above (his failure to show that he was meeting his employer’s legitimate
expectations).
Moreover, Plaintiff has failed to marshal evidence to show that the disparate treatment
did, in fact, occur. Plaintiff claims that, at some point in 2013,7 he was forced to drive Truck 208
to accommodate Farmer, a white driver. (See Compl. ¶¶ 12, 17–20.) Plaintiff’s records show,
however, that no such switch was mandated. Plaintiff’s records establish that, on the date in
7

Plaintiff’s affidavit does not state the date. In his Amended Complaint, Plaintiff states that the switch
was mandated on December 6, 2013.

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question, Plaintiff was assigned a rear-loading truck and did, in fact, driver a rear-loading truck.8
(See Wyatt Aff. Exs. C-1 & C-2.) Thus, his only evidence of disparate treatment is simply not
supported by the evidentiary record. The City is entitled to judgment as a matter of law.9
IV.

CONCLUSION
Plaintiff’s disciplinary record is his downfall. By failing to dispute any of the numerous

write-ups in his disciplinary file (with the exception of the December 9, 2013 incident), he has
failed to show that he was meeting his employer’s legitimate expectations. The City also asserts
that Plaintiff’s disciplinary record was more severe than his proposed comparators, a fact which
Plaintiff does not dispute.

As such, he has failed to rebut the City’s legitimate, non-

discriminatory reason for his more severe punishment. On the basis of his disciplinary record,
all of Plaintiff’s discrimination claims fail.
The clerk is directed to forward a copy of this Memorandum Opinion and accompanying
Order to all counsel of record.
Entered this 5th day of February, 2016.

s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE

8

Truck 208 is a side-loading truck.

9

At oral argument, Plaintiff withdrew his claim of retaliation, so that claim will be dismissed as well.

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