MAX O. COGBURN, Jr., District Judge.
Plaintiff is a former employee of defendant who worked at defendant's distribution center in Shelby, North Carolina. Initially hired in July 2005, plaintiff began work for defendant as a loader in the shipping area of the center. In 2007, plaintiff was transferred to the position of unloader/processor in the distribution assembly department. This job required plaintiff to unload tractor-trailers and process the unloaded merchandise. While in this position, plaintiff, who is African-American, was supervised by three Caucasian supervisors. On July 1, 2012, plaintiff requested transfer to the staple-stock area as a power equipment driver and such request was granted. Plaintiff was then supervised by Derrick Coffey, who was also Caucasian.
Defendant has presented evidence, which is not disputed, that at the time of his hire and throughout his employment, plaintiff was provided with information concerning defendant's workplace policies concerning ethics, performance tracking, discrimination and harassment prevention, and open communications. Under these policies, an employee may be disciplined or terminated for any violation of company policy. Throughout his employment, plaintiff received satisfactory performance appraisals and positive recognition for his work. Detracting from such positive appraisals of his actual work, however, plaintiff developed a history of counseling and discipline for being outside of his assigned work area without permission and socializing with other employees, which defendant's policies provided was a misuse of company time. Further, such policies specifically provide for immediate discharge for gross misconduct and that dishonesty or compromised integrity amounts to gross misconduct. Plaintiff admitted during discovery that his job duties required him to act with integrity.
In sum, defendant has presented uncontroverted evidence that, despite being proficient at his work, plaintiff would repeatedly violate company policy by leaving his assigned work area to socialize with other employees. Defendant considered this not just an abandonment of his own post, but a misuse of company time of both plaintiff and the other employee(s) with whom he would socialize. One month after receiving a written warning for similar conduct, the issue came to a head on July 16, 2012, when one of defendant's area managers, Billy Dover, who is Caucasian, again observed plaintiff socializing outside his assigned work area, an offense for which plaintiff had twice before received written discipline. Upon confronting plaintiff about such issue, plaintiff told Dover that he was not misusing company time because he was off-the-clock. Dover admonished plaintiff that if he was off-the-clock, he should not be in the work area and should not be interrupting employees who were still on the clock. After such encounter, Dover pulled plaintiff's time records and concluded that plaintiff was actually on-the-clock during the time period plaintiff stated he was off-the-clock. Dover reported his findings to defendant's Human Resources Manager, Bob Apple, who is also Caucasian, who opened an investigation.
In conducting such investigation, Apple reviewed statements from supervisors, time clock records, and recent written disciplinary actions for similar underlying issues concerning plaintiff socializing outside assigned work area. Based on such investigation, Apple concluded that Dover's finding that plaintiff's statement about being off-the-clock when he was actually on-the-clock was supported, showing a lack of integrity by plaintiff. He also concluded that plaintiff's motivation for being dishonest was avoidance of further discipline for misuse of company time.
Prior to taking any disciplinary action, however, Apple afforded plaintiff an opportunity to respond by providing his own written statement as to what occurred on July 16, 2012. While plaintiff did not therein admit to being dishonest, he admitted that he left his work area to have a personal discussion with a female employee, and that he went directly to the closest time clock in the DA area to clock-out immediately after speaking to Dover. In his July 28, 2012, response, plaintiff also made counter allegations in the response, contending that he believed the incident was a "black and white issue," that white associates were not disciplined for abusing company time, that Dover threatened him during the July 16 discussion, and that a fellow female employee had harassed him.
Apple commenced a separate, simultaneous investigation of plaintiff's counterclaims, collecting statements from the employees involved. He also considered plaintiff's allegations of disparate treatment by reviewing disciplinary records from other employees in the past 12 months for similar misconduct, misuse of company assets. Based on such investigation, Apple concluded that plaintiff's counterclaims were unsupported. He identified seven Caucasian employees who had been held accountable for misuse of company assets, including three Caucasian employees who had actually worked with plaintiff. Apple also determined that plaintiff's claims of threats from Dover and harassment by a female co-worker could not be substantiated. Apple concluded that none of the evidence obtained during the investigation of plaintiff's counterclaims provided reason to reverse the decision made in the parallel investigation to terminate plaintiff's employment.
With the concurrence of defendant's then assistant general manager at such facility, Dave Byrum (Caucasian), Apple terminated plaintiff's employment with defendant on August 4, 2012, for "Gross Misconduct-Integrity." The reason given for termination on the exit interview form was that plaintiff had told a manager that "he was off the clock," and that the "[m]anager checked time log to identify that Mark was not off the clock when he was told."
Based on such discipline and termination, plaintiff has asserted claims of: (1) race-based disparate discipline based on a disciplinary action dated June 11, 2012); (2) race-based discharge; and (3) retaliatory discharge.
Defendant has moved for summary judgment, contending that no genuine material issues of fact remain for trial and that it is entitled to judgment as a matter of law. Rule 56(a), Federal Rules of Civil Procedure, provides:
Fed.R.Civ.P. 56(a). The rule goes on to provide procedures for plaintiff to use in responding to a Motion for Summary Judgment:
Fed.R.Civ.P. 56(c). On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the non-moving party has the burden of persuasion to establish that there is a genuine issue for trial.
By reviewing substantive law, the court may determine what matters constitute material facts.
In determining whether a genuine issue of material fact exists, the admissible evidence of the non-moving party must be believed and all justifiable inferences must be drawn in his or her favor.
The court has first considered plaintiff's claim that he was unlawfully subjected to disparate discipline due to his race based on the June 11, 2012, disciplinary action that resulted in a written warning. To establish a prima facie case of racial discrimination in the enforcement of employee disciplinary measures under Title VII, the plaintiff must show: (1) that he is a member of a class protected by Title VII, (2) that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class, and (3) that the disciplinary measures enforced against him were more severe than those enforced against those other, unprotected employees.
The facts underlying this claim are not disputed. On June 11, 2012, the conveyor line at the dock where plaintiff was unloading trucks and processing merchandise was down for several hours. Rather than discuss with his supervisor where he should work while the conveyor was being repaired, plaintiff left his assigned work area to socialize with another employee, despite having been verbally counseled by Dover the day before about being out of his assigned work area and socializing on-the-clock. As a result of such conduct, plaintiff's supervisors decided that plaintiff's pattern of misconduct warranted a written action for "misuse of company assets." In response, plaintiff told his managers that he did not believe that he was doing anything wrong and that he planned to work wherever he felt he was most productive.
First, to be actionable under Title VII, the purportedly disparate disciplinary action must amount to an adverse employment action. It is well-settled that "[m]ere criticisms of an employee's job performance — written or oral — that do not lead to tangible job consequences will rarely form a permissible predicate for a Title VII suit."
Second, plaintiff has not come forward with any evidence that the disciplinary measures enforced against him were more severe than those enforced against other similarly situated employees outside of his protected classification. Instead, plaintiff has relied exclusively on speculation and conjecture in his Response, Surreply, and Affidavit. Close review of all the evidence produced indicates that not only is there is no support for a claim of disparate discipline, the evidence is antithetical to such a claim as it shows that defendant disciplined white employees for similar misconduct in an identical manner and, at times, in a harsher manner for misuse of company time. As to the four comparator's plaintiff has pointed to, plaintiff admits that they worked in different areas and were supervised by different decision makers, which does not make them true comparators.
Finding that no genuine issue of material fact remains for trial, the court will grant summary judgment and dismiss this claim.
Plaintiff next contends that he was not discharged because he lied, but because he is an African-American. As plaintiff has presented no direct evidence of racial discrimination, plaintiff must establish a prima facie case of discrimination under the burden-shifting analysis set out in
A prima facie case of wrongful termination requires the plaintiff to come forward with evidence upon which a reasonable jury could find that:
Here, plaintiff has not presented evidence that he was performing his job at a level which met his employer's legitimate expectations. While there is no question that plaintiff routinely received positive performance appraisals as to the performance of the technical aspects of his work, defendant has come forward with uncontroverted evidence that despite repeated admonitions both verbal and written, plaintiff simply refused to follow company policies concerning being absent from an assigned work area and socializing with other employees, which defendant's policies classify as misuse of company time. Such failure to comply with company policy is well documented over a number of years and culminated when defendant perceived that plaintiff lied in order to avoid further disciplinary action for another violation of the same policy.
As Title VII is not a general workplace-fairness law and this court does not sit as a "super-personnel department,"
The court has also considered whether there is evidence that could demonstrate circumstances that would create an inference of unlawful discrimination based on race. To make such a showing, it is plaintiff's burden to come forward with evidence that defendant retained a similarly-situated employee outside of his protected classification under similar circumstances.
Finally, even if plaintiff had been able to make out a prima facie case, defendant has come forward with a legitimate, non-discriminatory reason for terminating plaintiff's employment, to wit, gross misconduct by misrepresenting to Dover that he was off-the-clock. In response, plaintiff has not come forward with any evidence that the proffered reason for termination was a mere pretext for racial discrimination. Independent review of the evidence of record reveals that, beyond plaintiff's own speculation and unsupported conclusions, no evidence of pretext or evidence upon which an inference of pretext could arise exists.
Finding that no genuine issue of material fact remains for trial, the court will grant summary judgment and dismiss this claim.
In his final claim, plaintiff contends that he was discharged for raising concerns as to race-based disparities in discipline in his July 28, 2012, written response to Human Resources, wherein plaintiff claimed, among other matters, that there was a "black-white issue."
To make a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a protected activity; (2) his employer acted adversely against him; and (3) the protected activity was causally connected to the employer's adverse action.
Plaintiff has not shown that "but for" raising the "black-white issue" or other issues touching on race in his July 28 Response he would have been retained by defendant. Indeed, the evidence of record indicates that defendant separated the issue of plaintiff's misconduct from the allegations of racial discrimination and conducted separate, simultaneous investigations. It appears that no action was taken against plaintiff for engaging in protected activity, that the protected activity resulted in an appropriate investigation of those claims, and that the conclusion of such investigation was simply that plaintiff's claims could not be substantiated.
While plaintiff has shown close-temporal proximity of the protected activity (July 28) to the complained-of disciplinary action (August 4),
Finding that no genuine issue of material fact remains for trial, the court will grant summary judgment and dismiss this claim.
The Clerk of Court shall enter a Judgment consistent with this Order.
