United States District Court, N.D. Georgia, Atlanta Division
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.
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