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Small v. Cemex Southeast, LLC

United States District Court, M.D. Georgia, Macon Division

March 26, 2015



C. ASHLEY ROYAL, District Judge.

Plaintiff Oscar Small ("Plaintiff" or "Small") brings this employment discrimination action contending that Defendants, Cemex Southeast, LLC ("Cemex"), and Robert Stamback ("Stamback") (collectively "Defendants")[1], terminated him based on his race in violation of 42 U.S.C. § 1981. Before the Court is Defendants' Motion for Summary Judgment [Doc. 25]. After fully considering the matter, the Court finds genuine issues of material fact exist as to whether Defendants terminated Plaintiff in violation of 18 U.S.C. § 1981, and therefore Defendants' Motion for Summary Judgment [Doc. 25] is DENIED.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted "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."[2] A genuine issue of material fact only exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."[3] Thus, summary judgment must be granted if there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving party or, in other words, if reasonable minds could not differ as to the verdict.[4] When ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the party opposing the motion.[5]

The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" and that entitle it to a judgment as a matter of law.[6] If the moving party discharges this burden, the burden then shifts to the nonmoving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact.[7] This evidence must consist of more than mere conclusory allegations or legal conclusions.[8]


Plaintiff Oscar Small, an African-American male, was employed by Defendant Cemex, a cement manufacturing company, in its Clinchfield facility. Cemex's Clinchfield facility uses a machine called a "reclaimer" to mine limestone rock. Thereafter the stone is ground into a powder, and baked in an industrial kiln. The baked stone, known as clinker stone, is the main ingredient in Cemex's cement product. Plaintiff began working at Cemex's Clinchfield plant as a laborer in 1995.

During the course of his employment, Plaintiff became part of the maintenance staff and held the position of a Repairman/Journeyman. As part of his duties, he repaired various machines and equipment at the plant. One of the machines that he regularly repaired was the reclaimer. The reclaimer is repaired, on average, at least once per week. The reclaimer is a large and complex machine that digs into a pile of rocks that is approximately 30-40 feet high at 180-200 feet wide. The reclaimer's purpose is to gather stones and rocks from large piles mined from the site's quarry and then load the stones onto a conveyor belt; the rocks are then transported to the plant for processing of the rock into clinker stone.

The reclaimer is made up of several subparts. One of the subparts is called the "main chain." The main chain moves a series of metal buckets that pick up rocks from the pile and carries them to the conveyor belt. The main chain is a large metal chain, 250 feet from end to end and a total length of 550 feet. It is similar to a large bicycle chain and moves about 50 feet per minute towards the rock. Serious bodily injury, dismemberment, and perhaps even death would result if the main chain were activated and not locked out while an individual was performing maintenance on it.

Another subpart of the reclaimer is the "travel." The travel is a set of grooved metal wheels similar to those found on railroad cars that run along a metal bar just like a train rolls along on a track. The travel moves the rest of the reclaimer left and right as the reclaimer digs into a pile of rocks. The maximum speed of the travel is 1 mile per day. Working on the travel also poses a risk of serious injury if it is not locked out because the entire reclaimer could move and knock a repairman over.[10]

In 2011, following a series of preventable mining accidents, the Mine Safety Health Administration ("MSHA") began heavily enforcing lockout/tagout policy violations. "Lockout/tagout" refers to safety procedures used in the maintenance process to ensure that machines are properly shut off, de-energized, and incapable of operation before maintenance or repair is completed. Before beginning maintenance on equipment that has electric power or that may move or rotate during operation, locks must be placed on power sources or "breakers" and/or at other locations to ensure the equipment remains inoperable until maintenance is complete. Each maintenance employee is issued an individual lock with the employee's lock number so that others may identify who the lock belongs to during maintenance. When multiple employees are working on a piece of equipment, they use a "group lock" on the breaker for that area and attach their individual locks to it. Lockout procedures are intended to prevent injuries, and even deaths.

In 2011, Cemex instituted a "zero-tolerance" policy for safety violations in compliance with the regulations propagated by the MSHA. Lockout/tagout procedure violations were specifically highlighted as a violation of the zero-tolerance policy. All employees, including Plaintiff, received training on the zero-tolerance policy. Under the zero-tolerance policy "the failure to properly apply Lockout/Tagout procedure to equipment" is a "Class A-Imminent Danger" violation, which could lead to "severe disciplinary action up to and including discharge on the first occurrence."[11] Class A-Imminent Danger violations are "so egregious from a safety perspective in the opinion of management that it creates Imminent Danger. Imminent Danger violations could reasonably place an employee in immediate danger of serious bodily injury or death from one potential event."[12] Under Cemex's "Lockout/Tagout Procedures, " employees who are working on the reclaimer are required to lock out the following breakers:

1. Reclaimer Chain Drive [the "main chain"]
2. Reclaimer travel drive - Side A
3. Reclaimer travel drive ...

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