Kenner v. Meadowbrook Meat Company, Inc.

          FINAL REPORT AND RECOMMENDATION

          WALTER E. JOHNSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Eddie Kenner, filed this action alleging that his former employer, Meadowbrook Meat Company, Inc. (“MBM”), discriminated against him on the basis of his race (black) and retaliated against him after he complained about a co-worker's racist language, both in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (See generally Compl. [1].)^[1]

         This matter is now before the Court on MBM's Motion for Summary Judgment [51], which seeks dismissal of plaintiff's discrimination and retaliation claims. In Plaintiff's Memorandum in Support of his Response to Defendant's Motion for Summary Judgment [57], plaintiff argues that his race discrimination claim should survive summary judgment, but he fails to address defendant's arguments regarding his retaliation claim. Given this failure to respond to defendant's arguments, the Court finds that plaintiff has abandoned his Title VII retaliation claim. See Road Sprinkler Fitters Local Union 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (claims alleged in a complaint but not pursued in a responsive memorandum are abandoned). Thus, summary judgment should be entered against plaintiff on the Title VII retaliation claim.

         With regard to the remaining Title VII race discrimination claim, the undersigned REPORTS that that there are no disputed issues of material fact requiring a trial, and therefore RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED. (11th Cir. 1994), the undersigned's recommendation regarding the Title VII claims applies to any Section 1981 claim that could have been pursued.

         I. STATEMENT OF FACTS

         The Court draws the material facts largely from the parties' submissions. In support of its Motion for Summary Judgment, MBM as movant filed a Statement of Material Facts as to Which There Is no Genuine Issue to be Tried (“DSMF”) [51-2]. See N.D.Ga. Civ. R. 56.1B. (1). As required by Local Rule 56.1B. (2)a, plaintiff submitted a response. See Pl.'s Resp. to Def.'s Stat. of Mat. Facts (“R-DSMF”) [57-1]. Unfortunately, plaintiff's response does not state whether he admits or denies any of defendant's proposed facts. The Court has been forced to compare each of defendant's proposed facts with each of plaintiff's responses and use its best judgment to determine whether plaintiff admitted or denied a proposed fact. Defendant has had to do the same. See Def.'s Resp. and Objs. to Pl.'s Stat. of Alleged Mat. Facts and Gen. Issues that Must be Tried [65] (hereafter “Def.'s Resp. & Objs.”).^[2]

         Under the Local Rules, the non-moving party may file a statement of additional facts which the respondent contends are material and present a genuine issue for trial. See N.D.Ga. Civ. R. 56.1B. (2)b. Although the Local Rules require this statement of additional facts to be “separate” (id.), plaintiff placed his additional proposed facts in R-DSMF. Given that plaintiff combined his responses to defendant's proposed facts with his proposed additional facts, it has been difficult for the Court to determine which statements in R-DSMF are responsive to DSMF and which are additional facts.^[3] Defendant filed a detailed challenge to these proposed additional facts. (See Def.'s Resp. & Objs.)

         This Court uses the proposed facts and responses as follows. When a party admits a proposed fact, the Court accepts it as undisputed for purposes of this Motion and cites only the proposed fact. When a party admits a proposed fact in part, the Court includes the undisputed part. When a party denies a proposed fact in whole or in part, the Court reviews the record and determines whether a fact dispute exists. If the denial is without merit, and the record citation supports the proposed fact, the Court deems it admitted. The Court sometimes modifies a proposed fact per a more accurate account found in the other party's response or in the record cited. The Court further excludes proposed facts that are immaterial, duplicative, or unsupported by the record cited. Inclusion of a proposed fact to which an objection has been asserted means that the Court has overruled the objection. Finally, the Court includes facts drawn from its own review of the record. See Fed.R.Civ.P. 56(c)(3).

         A. MBM's Business, Plaintiff's Hiring, and the Reporting Structure

         MBM is a subsidiary of the McLane Company, Inc., which is a supply chain services company distributing food products to restaurants, convenience stores, mass merchants, military installations, and other businesses across the United States. (DSMF ¶ 2.) MBM hired Mr. Kenner as a Driver Representative (i.e., a tractor-trailer driver) on or around July 15, 2013, at its Distribution Center (“D.C.”) in Newnan, Georgia. (Id. ¶ 1.)

         At all relevant times, plaintiff reported to Transportation Supervisors, including Steve Spradlin, who in turn reported to Transportation Manager Stephen Davies throughout the bulk of plaintiff's employment. (DSMF ¶ 3.) David Bayne is the Distribution Center Manager of MBM's Newnan, Georgia facility, and has held that position since about November 2012; all employees in the Newnan D.C. ultimately report to him. (Id. ¶ 4.) Carla Davis has been employed by Defendant at its Newnan, Georgia facility since 2012, and has held the position of Transportation Clerk, Customer Service Representative and Router/Dispatcher; she has never held a supervisory position. (Id. ¶ 5.)^[4]

         B. MBM's Handbook, Policies, and DOT Rules

         At all relevant times, MBM has maintained an employee handbook which includes an equal employment opportunity policy, a no harassment policy, as well as rules that Driver Representatives and other employees are required to follow. (DSMF ¶ 6.)^[5] Plaintiff and all Driver Representatives (“drivers”) employed by Defendant were required to comply with MBM policy and regulations promulgated by the federal Department of Transportation (“DOT”) regarding permissible driving time, hours of service, record keeping, accident reporting, and other matters. (Id. ¶ 7.)^[6] An MBM driver's failure to comply with MBM policies, many of which reinforce federal DOT rules and regulations, is cause for the driver to be disciplined or discharged. (Id. ¶ 8.)^[7] At all times relevant to this case, MBM drivers were required to record their hours of service on paper drivers' daily logs (“logs”), which the drivers completed by hand and turned in upon their return to the Newnan facility following a trip (which might be a multi-day trip). (Id. ¶ 9.)^[8]

         C. Work of Transportation Clerks

         Transportation clerks employed at the Newnan facility perform clerical functions supporting the drivers' work, including, but not limited to, scanning the drivers' daily logs into the “J.J. Keller” system, following up on reports generated by the J.J. Keller system, preparing other reports and paperwork relating to deliveries and pick-ups, entering payroll data, communicating with customers, and communicating with the Company's drivers regarding routes and trip-related paperwork, etc. (DSMF ¶ 10.)^[9] Drivers employed at the Newnan facility regularly got annoyed with the transportation clerks and have accused them of favoritism or other unfair treatment relating to issues such as payroll, route scheduling and equipment assignments; complaints such as these were made every single day, regardless of the race of the drivers involved. (Id. ¶ 11.)^[10]

         D. Plaintiff Reports Ms. Davis's Inappropriate Remark

         During July 2014, plaintiff overheard Transportation Clerk Carla Davis tell someone to whom she was speaking by telephone, “The problem around here is they hired too many [n ----- s].” Plaintiff reported this comment to Transportation Supervisor Spradlin, who reported it to Transportation Manager Davies, who reported it to D.C. Manager Bayne. (DSMF ¶ 12.)^[11] Plaintiff does not dispute the preceding proposed fact (see R-DSMF ¶ 12), but adds over one page of additional facts (supported by a string cite), all of which are either immaterial, ^[12]not supported by the record cited, ^[13] or not based on the deponent's personal knowledge.^[14] Thus, the Court deems DSMF ¶ 12 admitted.

         Although Ms. Davis denied using a racial slur or making any kind of race-related statement when confronted, Mr. Bayne reviewed MBM's harassment and non-discrimination policies with her and informed her that violation of those policies would lead to discipline or discharge. (DSMF ¶ 15.)^[15] MBM provided sworn statements from two African-American employees at the Newnan D.C. who complained about Ms. Davis being harsh, rude, or condescending, but they made clear that she did not treat them differently because of their race; nevertheless, Ms. Davis was counseled about the way she interacted with drivers and other employees. (Id. ¶ 17, as modified per record cited.)^[16] MBM takes complaints of alleged harassment very seriously, and in fact discharged a Caucasian warehouse employee in April 2014 for making a statement which included the “n” word to African-American employees. (Id. ¶ 18.)^[17]

         E. Issues with Plaintiff's DOT Logs

         Plaintiff was very familiar with the procedure for completing paper logs, and understood that drivers in his position who are subject to DOT regulations are required to be familiar with and to comply with them, to maintain accurate records, and to refuse to engage in activity that would cause them to be in violation of them. (DSMF ¶ 19.)^[18]

         During September 2014, Mr. Bayne began investigating plaintiff's logs after he was asked about plaintiff's failure to log a short trip between one location where he dropped off a trailer and a second location where he picked up a trailer to haul back to the Newnan facility. (DSMF ¶ 20.) Plaintiff does not dispute the preceding fact, but adds that Mr. Bayne informed him that he (Bayne) would check and confirm what the logging procedure was for putting in a trip that was two miles from where plaintiff had stopped to where he made a pick up. (R- DSMF ¶ 20, sentence 1.) He adds that the logs reflect fifteen-minute time slots. (Id., sentence 2.)^[19]

         When Mr. Bayne reviewed plaintiff's logs, he saw that the short trip referenced above had been omitted, and he saw another discrepancy, which prompted him to review additional logs submitted by plaintiff for August 2014. (DSMF ¶ 21.) Plaintiff does not dispute the preceding fact; thus, the Court deems it admitted. However, plaintiff makes numerous additional factual assertions in R-DSMF ¶¶ 21(a) through 21(d), which the Court addresses below.

         Most of the statements in R-DSMF ¶ 21(a) are argumentative and not in compliance with Local Rule 56.1 because they presume cause and effect without providing any evidentiary support. For example, plaintiff claims that he was subjected to two drug tests during this time period, and implies that this was retaliatory because drug tests are “supposed to be random.” (Id.) However, the inference plaintiff asks the Court to draw is in conflict with his deposition, wherein he testified that the drug tests could have been random. (Kenner Dep. [53-1], at 221.) In other words, plaintiff has no evidence that his selection for a drug test had anything to do with his report that Ms. Davis had used a racial slur.

         In R-DSMF ¶ 21(b), plaintiff makes reference to a “Violations Summary Report, ” which he claims shows critical DOT violations for Caucasian drivers Michael Freeman (three violations), Chris Eubanks (two violations), John Erickson (four violations), and Joseph Troutt (two violations) and for himself (two violations). Because plaintiff lost his job, he apparently wants the Court to infer that this document reflects disparate discipline. The evidentiary support for R-DSMF ¶ 21(b) is plaintiff's Exhibit 3 ([57-2], at 6-10). However, plaintiff failed to authenticate Exhibit 3. See Fed.R.Evid. 901. “[I]n order for a document to be considered on a motion for summary judgment, it must be authenticated by an affidavit that meets the requirements of Rule 56(e) of the Federal Rules of Civil Procedure, or otherwise authenticated pursuant to the Federal Rules of Evidence.” Roman v. Metro. Atlanta Rapid Transit Auth., No. 1:06-CV-1465-CCH, 2008 WL 11320187, at *2 (N.D.Ga. June 27, 2008); see also Williams v. Eckerd Family Youth Alternative, 908 F.Supp. 908, 911 (M.D. Fla. 1995) (“This Court recognizes that for a document to be considered in support of or in opposition to a motion for summary judgment, it must be authenticated by an affidavit that meets the requirements of the summary judgment rule.”). Plaintiff has provided no such affidavit, and his counsel's explanation of the document supporting R-DSMF ¶ 21(b) is insufficient.^[20] Thus, the Court cannot consider plaintiff's Exhibit 3 and any arguments he makes based upon it.

         In R-DSMF ¶ 21(c), plaintiff cites to his Exhibits 5 ([57-2], at 14) and 6 ([57-2], at 15-16), which reflect an employee coaching form and a second written warning, respectively, issued by MBM to John Erickson (Caucasian). Plaintiff does not explain why he cites these documents, but presumably he believes they reflect disparate discipline. However, these two documents suffer from the same defect as plaintiff's Exhibit 3 discussed supra-they have not been authenticated. Thus, this Court cannot consider them.^[21]

         Finally, in R-DSMF ¶ 21(d), plaintiff claims that Michael Freeman had numerous issues with his logs. Again, however, plaintiff has no admissible evidence to support this claim because he did not authenticate Exhibits 7, 8, and 9, which he references in R-DSMF ¶ 21(d). Therefore, the Court cannot consider this proposed additional fact or the documents that he claims support it. (The Court addresses Mr. Freeman's situation, infra.)

         Turning back to plaintiff's logs, the record shows that Mr. Bayne's investigation of plaintiff's August 2014 logs revealed multiple discrepancies, which were determined by management-including MBM's Director of Logistics Buck Abel, who was responsible for DOT compliance-to be gross, intentional falsifications of company records warranting termination of employment. (DSMF ¶ 22.) Plaintiff disputes the above proposed fact, but he cites no record evidence in R-DSMF ¶ 22 to support his argumentative response.^[22] Therefore, the Court must deem DSMF ¶ 22 admitted.

         Plaintiff acknowledged that the documents in Exhibit 12 to his deposition are daily driver's logs that he prepared in the course of his duties as a driver for MBM, but he denied for the first time at his deposition that some of the handwriting on those logs is his. (DSMF ¶ 23.) Plaintiff does not dispute the preceding proposed fact. (See R-DSMF ¶ 23.) He adds that he noted some differences between Exhibit 12 and Exhibit 13, which were logs produced by the EEOC in response to a FOIA request. Plaintiff further adds that he did not see his original logs until his deposition, and that he testified he did not recognize some handwriting on a few pages of Exhibit 12. (R-DSMF ¶ 23.) Defendant agrees that the Court can consider all of these additional facts (see Def.'s Resp. & Objs. ¶ 23), but asserts, and the Court agrees, that plaintiff's failure to examine his original logs until his deposition and his inability to recognize certain markings on a few pages of Exhibit 12 is not material.^[23]

         Mr. Bayne's investigation showed that plaintiff had on multiple occasions falsified his logs by showing that he had travelled more miles than would be possible given DOT and MBM drive-time restrictions and the top speed of MBM tractors (the engines of which were governed to prohibit travel over certain speeds), as well as by indicating that he had gone into the tractor's sleeper berth in one location and come out in another (thus not recording the time to travel between the two locations). (DSMF ¶ 24.) Plaintiff does not dispute the preceding proposed fact (see R-DSMF ¶ 24), but adds a paragraph of additional facts which are not supported by a record citation.^[24] Thus, the Court deems DSMF ¶ 24 admitted.

         Buck Abel, then MBM's Director of Logistics, who also determined that plaintiff's logs had been falsified and that his gross violations of MBM policy and DOT regulations warranted discharge, was unaware at the time of plaintiff's race or of any complaint that he had made relating to racial slurs or other perceived discrimination or retaliation. (DSMF ¶ 25.) Plaintiff does not dispute the preceding fact, but makes numerous assertions which are immaterial, argumentative, not supported by the record cited, or supported by unauthenticated, inadmissible exhibits. (See R-DSMF ¶ 25.) Therefore, the Court deems DSMF ¶ 25 admitted.

         F. Plaintiff& ...