ABDUL K. KALLON, District Judge.
Nathan L. Robinson filed this lawsuit against his former employer Con-way Freight, Inc. ("Con-way"), alleging that Con-way discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and § 1981 of the Civil Rights Act of 1866 ("§ 1981") when it discharged him in response to an alleged threat Robinson made against a co-worker. Doc. 1. Before the court is Con-way's motion for summary judgment, which is fully briefed and ripe for review. Docs. 15-17, 19-21. For the reasons set out fully below, Con-way's motion is due to be granted.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Id. However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Con-way has various policies that address work place conduct. Relevant to this case, under the conduct policy, fighting or horseplay, including "physically or verbally attacking another person; or engaging in other disorderly conduct or verbal abuse which, although innocently done, may result in injury or insult to another; or causing or contributing to disruption of the workplace," is "unacceptable" and may subject an employee to discipline including termination. Doc. 17-2 at 22. Con-way is "committed to providing a safe, violence-free workplace," and has "adopted a No Threats or Violence in the Workplace Policy" that "strictly prohibits employees . . . on Company property . . . from behaving in a violent or threatening manner." Id. at 28. With respect to discipline, Con-way does not follow a rigid disciplinary system, noting that
Id. at 24. Importantly, "the disciplinary process may be initiated at any step depending on the seriousness of the offense and the appropriateness of the imposed disciplinary action." Id.
Con-way re-hired Robinson as a supplemental driver/sales representative in May 2002, and subsequently promoted him to a regular position.
In September 2011, an employee reported to Timothy Grant, Service Center Manager, that Michael Thomas verbally assaulted him, and that Thomas was also involved in an altercation with Robinson in April 2011. Docs. 17-3 at 6; 17-1 at 64. An investigation ensued that involved Grant meeting with Thomas and Robinson to obtain statements about the incident. Doc. 17-3 at 7. For his part, Robinson said the incident started when Thomas jokingly asked Robinson where his "girl" was, and that when Robinson quipped back that she was "probably with the same person that's with [Thomas's]," Thomas became upset and approached Robinson with a Leatherman tool, which prompted Tim White to intervene and instruct them to return to work. Doc. 17-1 at 65, 66. According to Thomas and White, Robinson and Thomas made threatening gestures when they jumped off of their forklifts and approached each other, causing Thomas to feel threatened and pull out the Leatherman tool. Id. at 7-8, 9; docs. 17-2 at 78; 17-4 at 12-13; 17-5 at 15-16, 18.
Grant forwarded the results of his investigation to Jerry McGlown, a Human Resources Generalist, who instructed Grant to place Robinson and Thomas out of service. Docs. 17-3 at 11; 17-4 at 5. Thereafter, McGlown forwarded Grant's notes to the Human Resources Department with a recommendation that Con-way discharge Robinson and Thomas. Doc. 17-5 at 6. Human Resources accepted the recommendation and discharged both men. Id.at 4, 6; doc. 17-1 at 69.
Robinson appealed the decision to the Employee Termination Review Board ("ETRB"), which consists of three members of executive management. Docs. 17-2 at 79; 17-5 at 7. According to McGlown, who listened in to the telephone hearing, Robinson "refused to admit that he engaged in any wrongdoing," "attempted to minimize the altercation between him[self] and Mr. Thomas," and "failed to express any remorse for his actions." Id. at 7-8. The failure to admit fault or to express remorse, as well as an employee's disciplinary history, are factors the ETRB considers in deciding whether to overturn a discharge: "In determining whether to uphold a termination decision, the ETRB considers several factors, including the circumstances surrounding the termination, the employee's disciplinary record, the employee's admission of misconduct and the employee's remorsefulness for his actions." Id. at 7. In Robinson's case, the ETRB upheld the discharge decision. Id. at 8. This lawsuit ensued.
Title VII and § 1981 claims "have the same requirements of proof and use the same analytical framework." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Therefore, the court "explicitly address[es] the Title VII claim with the understanding that the analysis applies to the § 1981 claim as well." Id. Generally, "[a] plaintiff may prove a claim of intentional discrimination through direct evidence, circumstantial evidence, or through statistical proof." Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008). Where, as here, a plaintiff offers only circumstantial evidence, the court evaluates the sufficiency of his claim through the burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case. McDonnell Douglas, 411 U.S. at 802. "The successful assertion of a prima facie case then creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff." Rioux, 520 F.3d at 1275 (internal quotation marks and citations omitted). The burden then shifts to the employer to produce evidence that it had a legitimate non-discriminatory reason for the challenged action. Id. If the employer satisfies its burden, the burden shifts back to the plaintiff to "show that the proffered reason really is a pretext for unlawful discrimination." Id. (internal quotation marks and citations omitted).
Con-way contends that Robinson's prima facie case fails because Robinson cannot establish that he was qualified for his position or that Con-way treated him less favorably than similarly situated employees outside of his protected class. Alternatively, Con-way asserts that it is due to prevail because Robinson cannot establish that Con-way's articulated reason for the discharge is pretextual. The court will discuss Con-way's contentions below.
To establish that he was qualified for his position, Robinson must present evidence that he "satisfied [Con-way's] objective qualifications." Vessells v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2002) (citation omitted). A Title VII "`plaintiff's burden in proving a prima facie case is light.'" Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1246 (11th Cir. 2001) (quoting Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998)). The only evidence in the record that speaks to Robinson's job performance is his 2007 employee review, which describes him as "a good worker," awarded him largely above-average scores, and indicated that his three previous annual evaluations classified him as an average to above-average worker. Doc. 20-4 at 2-5. In the absence of any evidence to the contrary concerning Robinson's performance, the 2007 review is sufficient to present a prima facie case that Robinson was qualified for his position.
Con-way contends that Robinson was not qualified for his position because of his extensive disciplinary record.
Con-way challenges Robinson's prima facie case next by asserting that Robinson cannot establish that it treated him less favorably than similarly situated employees. Doc. 16 at 23. When, as here, a plaintiff relies on circumstantial evidence to prove his discrimination claims, the comparators the plaintiff cites "must be nearly identical to the plaintiff to prevent courts from second-guessing a reasonable decision by the employer." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).
As alleged comparators, Robinson identifies David Brassfield, Bernie Brown, Shawn Skellet, Erica Davis, Kim Thompson, and Mike Blevins. Doc. 19 at 10-14. However, only one of these individuals—Brassfield—engaged in any conduct remotely similar to Robinson's. The rest of the individuals engaged in infractions that are simply not "nearly identical" to Robinson's. Specifically, Robinson contends that Con-way (1) failed to discharge Brown for stating he was not going to be "worked like one of these push button [niggers],"
The court turns its attention now to Brassfield, who is the only comparator Robinsons cites that made a threat of violence. Con-way discharged Brassfield "[o]n March 1, 2008 . . . for violat[ing] . . . company policy. Specifically, Mr. Brassfield told another employee, who was his relative, that if he had a gun and did not believe in God, he would kill management." Doc. 17-5 at 8. Brassfield successfully appealed his discharge to the ETRB, docs. 17-1 at 73; 17-3 at 15, and his reinstatement is the basis for Robinson's contention of disparate treatment. Unfortunately for Robinson, Brassfield is not a proper comparator because, unlike Robinson, Brassfield admitted during his ETRB hearing that he made the threat and apologized. Doc. 17-5 at 9. In light of his admission and apology, and based also on Brassfield's employment history—he had received only one letter of instruction during his nineteen years of employment— the ETRB reinstated Brassfield. Id. at 8. In contrast, Robinson never acknowledged his conduct or expressed remorse, id. at 7, and had at least twenty-five letters of instruction during his nine-year tenure, see doc. 17-2 at 35-77. Because the ETRB considers "the employee's disciplinary record, the employee's admission of misconduct and the employee's remorsefulness for his actions," doc. 17-5 at 7, "in determining whether to uphold a termination decision," id.,—all of which weigh against Robinson, the court simply cannot find that Robinson is similarly situated to Brassfield, or that Con-way treated him less favorably than Brassfield when it denied his appeal. See Wilson, 376 F.3d at 1092 (11th Cir. 2004) (quoting Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)) ("The role of [courts] `is to prevent unlawful hiring practices, not to act as a super personnel department and second-guess employers' business judgments.'")
In short, Robinson has failed to establish a prima facie case because he cannot show that Con-way treated him less favorably than similarly situated employees outside of his protected class. Therefore, Con-way's motion for summary judgment is due to be granted.
Alternatively, even if Robinson can make a prima facie case, summary judgment is still warranted because Con-way proffered a legitimate non-discriminatory reason for it's the discharge, i.e. Robinson's perceived threat of violence, which Robinson failed to rebut. Robinson "must meet the reason head on and rebut it, and [] cannot succeed by simply quarreling with the wisdom of [Con-way's proffered] reason." Chapman, 229 F.3d at 1030 (citations omitted). Because the evidence establishes that Con-way acted reasonably in concluding after its investigation that Robinson threatened Thomas and because the individuals Robinson identified are not proper comparators, Robinson cannot show that Con-way's articulated reason for his discharge is pretextual. Ultimately, "an employer can fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." See Nix v. WLCY Radio/Rahall Comm's, 738 F.2d 1181, 1187 (11th Cir. 1984); Wallace v. SMC Pnuematics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997) (listing perceived threats of violence as a non-actionable reason under Title VII). While Robinson may think his discharge was unfair, under the circumstances here, Con-way acted as a prudent employer by addressing a threat in the workplace, immediately taking Robinson (and Thomas) out of service, and conducting an investigation to provide the necessary measures to protect employees. See Kelley v. Worley, 29 F.Supp.2d 1304, 1313 (M.D. Ala. 1998) ("Under the common law, an employer has a duty to supply the employee with a reasonably safe place to work.") (citation omitted). Therefore, the court cannot draw an inference of discriminatory animus, and, Robinson's discrimination claim must fail.
Con-way's motion for summary judgment is due to be granted in light of Robinson's failure to establish a prima facie case or to rebut Con-way's articulated reason for discharging him. The court will dismiss this case by separate order.
