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Jones v. Mill

United States District Court, N.D. Alabama, Western Division

November 6, 2017

CHRISTOPHER JONES, et al., Plaintiffs,
v.
SCOTT DAVIS CHIP MILL, et al., Defendants.

          MEMORANDUM OPINION

          T. MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE.

         Pending before the court are multiple motions for summary judgment. (Docs. 69, 74, and 76). The motions have been fully briefed, and the parties have consented to dispositive jurisdiction by a United States magistrate judge in accordance with 28 U.S.C. § 636(c). Accordingly, the undersigned enters the following Memorandum Opinion.

         I. PROCEDURAL HISTORY

         Plaintiffs Kenneth Jackson (“Jackson”) and Christopher Jones (“Jones”) (together “plaintiffs”) filed the original Complaint in this action on April 21, 2015, and named as defendants Scott Davis Chip Mill (“the Chip Mill”), Brett Davis (“Davis”), McMillan Trucking, Mike McMillan (“McMillan”), and Jamie Brasher (“Brasher”). (Doc. 1). Defendants Davis and the Chip Mill filed a Motion to Dismiss (doc. 6), which was followed by a Motion to Dismiss filed by defendants Brasher, McMillan, and McMillan Trucking (doc. 9). On June 24, 2015, the plaintiffs moved to file an Amended Complaint. The motion was granted, and the plaintiffs filed an Amended Complaint on July 2, 2015. (Doc. 24). Due to the filing of the Amended Complaint, the previous Motions to Dismiss were denied as moot. (Doc. 25).

         The parties consented to dispositive jurisdiction by a magistrate judge on July 7, 2015. (Doc. 26). The court filed an Initial Order in the case on the following day. (Doc. 27). On July 16, 2015, Motions to Dismiss were filed by defendant Brasher (doc. 28) and defendants McMillan and McMillan Trucking (doc. 30). On the same day, defendants Davis and the Chip Mill filed an Answer to the Amended Complaint.[1] (Doc. 31). The court entered an order granting in part and denying in part the Motions to Dismiss (docs. 28, 30), but allowing the plaintiffs to file a Second Amended Complaint “to supply any additional factual or missing allegations necessary to state claims in this action.” (Doc. 42, p. 37). The plaintiffs filed a Second Amended Complaint on February 4, 2016. (Doc. 45). The court entered a Memorandum Opinion and Order determining that the following claims remain pending:

• As to defendants Davis and the Chip Mill: Count One - Race Discrimination in Contract under 42 U.S.C. § 1981; Count Two - Civil Conspiracy; Count Three - Racketeering; Count Four - Violation of Civil Rights under 42 U.S.C. § 1982; Count Five - Conspiracy to Deprive the Plaintiffs of Civil Rights under 42 U.S.C. § 1985; Count Six - Unjust Enrichment; and Count Seven - Fraud and Deceit.
• As to defendants McMillan and McMillan Trucking: Count One - Race Discrimination in Contract under 42 U.S.C. § 1981; Count Two - Civil Conspiracy; and Count Three - Racketeering.
• As to defendant Brasher - Count One - Race Discrimination in Contract under 42 U.S.C. § 1981; Count Two - Civil Conspiracy; Count Three - Racketeering; and Count Six - Unjust Enrichment only as to plaintiff Jackson. (Doc. 56, pp. 17-18).

         Following entry of the court's order, defendants Davis and the Chip Mill filed a Motion to Dismiss Counts IV through VII (doc. 57), which the court denied. (Doc. 58). Defendant Brasher filed an Answer to the Second Amended Complaint on July 13, 2016. (Doc. 59). Defendants McMillan and McMillan Trucking filed an Answer to the Second Amended Complaint on July 21, 2016, followed by an Amended Answer on August 4, 2016. (Docs. 61, 64). Defendants Davis and the Chip Mill filed an Answer to the Second Amended Complaint on August 4, 2016. (Doc. 63).

         After the parties notified the court of their willingness to engage in mediation, the court, on December 1, 2016, ordered the parties to proceed with mediation through a mediator of their choice. (Doc. 66). Mediation proved unsuccessful, however, and defendants Davis and the Chip Mill filed a Motion for Summary Judgment on December 19, 2016. (Doc. 69). The court held a telephone conference with the parties and set a schedule for the filing and briefing of motions for summary judgment by the other parties. Defendant Brasher filed a Motion for Summary Judgment on January 13, 2017. (Doc. 74). Defendants McMillan and McMillan Trucking filed a Motion for Summary Judgment on January 18, 2017. (Doc. 76). The plaintiffs filed a Response in opposition to the pending Motions for Summary Judgment on February 8, 2017. (Doc. 79). The plaintiffs' Response was met with Motions to Strike by defendants Brasher (doc. 81) and McMillan and McMillan Trucking (doc. 80) and motions to join those Motions to Strike by defendants Davis and the Chip Mill (docs. 84, 85). Reply briefs were filed by defendant Brasher (doc. 82) and defendants McMillan and McMillan Trucking (doc. 83) on February 22, 2017. Defendants Davis and the Chip Mill did not file a reply brief.

         II. SUMMARY JUDGMENT STANDARD

         Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “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.” Fed.R.Civ.P. 56(a). The party asking for summary judgment “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.” Celotex Corp. v. Catrett, 47 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23. There is no requirement, however, “that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.” Id. at 323.

         Once the moving party has met its burden, Rule 56 “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions of file, ' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (quoting former Fed.R.Civ.P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324. “[T]he plain language of 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.” Id. at 322.

         After the plaintiff has properly responded to a proper motion for summary judgment, the court “shall” grant the motion if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. “[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. His guide is the same standard necessary to direct a verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52; see also Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n. 11 (1983).

         However, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The evidence supporting a claim must be “substantial, ” Marcus v. St. Paul Fire and Marine Ins. Co., 651 F.2d 379 (5th Cir., Unit B, 1981); a mere scintilla of evidence is not enough to create a genuine issue of fact. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004); Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249-50 (11th Cir. 2004). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must “view the evidence presented through the prism of the substantive evidentiary burden, ” so there must be sufficient evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communications, Inc., 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir. 1988).

         III. FACTS

         For purposes of summary judgment the courts are directed to view the facts in the light most favorable to the non-moving party. However, in the instant case, portions of the non-moving plaintiffs' Statement of Facts have been stricken and will not be considered in this Memorandum Opinion. (See doc. 90). Accordingly, the following facts are relevant to the instant Motions for Summary Judgment.

         Plaintiffs Jones and Jackson, during the relevant period, worked in the trucking business in the state of Alabama. Plaintiffs are African American. Jones is the owner and operator of Jones Trucking in Perry County, Alabama, and Jackson is the owner and operator of Jackson Transportation, LLC, in Wilcox County, Alabama.

         Defendant Davis is the owner and operator of the defendant Chip Mill, an incorporated entity in Bibb County, Alabama. Defendant McMillan is the owner and operator of defendant McMillan Trucking, also an incorporated entity in Bibb County, Alabama. Defendant Brasher, during the relevant time period, was an employee of McMillan Trucking.

         During the relevant time period, the Chip Mill did not have an employee on staff to assign loads for drivers to haul. Although Brasher was not an employee of the Chip Mill, he was given the responsibility by Scott Davis, the previous owner of the Chip Mill, to assign particular loads of wood chips from the Chip Mill to trucking companies and drivers. After Scott Davis's death, (Brett) Davis took over the Chip Mill. He began having daily discussions with Brasher to discuss loads and to make sure the loading and hauling process ran smoothly. Brasher and the Chip Mill had a policy of placing trucking companies and drivers on a “cut off” list for the week when there were not enough loads to assign to everyone.

         Drivers began receiving loads from the Chip Mill to haul to Beaumont, Texas (“Texas”), in April of 2014, with virtually no limit imposed by the Chip Mill on the number of loads to Texas. During July and August of 2014, most of Jones's and Jackson's trucking business involved hauling wood chips from the Chip Mill to Texas. Jones hauled loads from the Chip Mill under Jones Trucking, a sole proprietorship, while Jackson hauled loads assigned to his company, Jackson Transportation, LLC.[2] McMillan Trucking was hauling wood chips from the Chip Mill to local destination; McMillan Trucking, however, did not haul to Texas.

         When the number of loads to Texas began to decrease, Brasher began asking African American drivers to pay him $100 per load. Trucking companies and drivers who paid would receive preference on loads to Texas; in contrast, drivers who did not pay would receive loads to Texas only after paying drivers received their loads and if loads remained to be assigned. Jackson described the first time that Brasher asked him to pay:

When I got into the office that morning, the scale house, [Brasher] said KJ. That's what he always says. How many loads you going to need this week? I said I got three trucks running. He said ten? Okay. That is going to be a hundred dollars a load, just like that. I laughed at him. I laughed. I said a hundred dollars a load. Punching the numbers, punching the computer. He goes no, no, no, I'm serious, I'm serious, I'm serious.
I said you serious, a hundred dollars a load? He said yeah. He said yeah. Brett said that it's okay for me to do this. . . I said when did this start? He said well, it started a while ago, but this Texas is going to be a hundred dollars a load if you are going to run, that's what it is going to be. If you want hundred dollars - if you want ten loads, it's going to be a thousand dollars.

(Doc. 75-2, p. 103, ll. 22-23 - p. 104, ll. 1-20).

         Jones recalls Brasher saying “that we was [sic] going to have start paying. We was [sic] going to have to - well, we was [sic] going to have to start paying a hundred dollars a load going to Texas. . . . [meaning] the drivers.” (Doc. 75-6, p. 75, ll. 1-7). Anderson states that Brasher called him on his phone and said that “the majority of loads [were] already taken . . . . And if you wanted the load, it was going to be a hundred dollars and how many loads do you want?” (Doc. 75-12, p. 16, ll. 1-5). In all, approximately seven truckers or trucking entities, operated by both African Americans and white, paid Brasher $100 per load to secure continued preference on loads to Texas.[3] Brasher asked for payment only from African American truckers. Although he would accept payment or trade from white truckers, he did not ask for payment from them.[4] At least some African American drivers voluntarily approached Brasher and offered to pay $100 per load.[5]

         Though Brasher benefitted from the policy, the idea originated with Davis when Brasher asked to go on Davis' “payroll.” (Doc. 75-7, p. 23 ll. 1-23 - p. 24 ll. 1-24). Davis suggested to Brasher the idea of brokering loads; according to Brasher, Davis asked him if he had “ever thought about brokering the loads out.” (Doc. 75-7, p. 23, ll. 20-21). Jones videotaped Brasher admitting that Davis had given him the idea to ask for the $100-per-load payment. Brasher, however, was not a licensed broker, so he considered the $100 per load “no more than a tip.” (Doc. 79-3, p. 69, ll. 1-23 - p. 70 ll. 1-11). Previously, Brasher would receive tips when he saved a load to haul over the weekend for a driver who had issues during the week which prevented that driver from hauling. He would receive, at most, a few tips of $10 to $20 per year. Davis, McMillan, and McMillan Trucking never received any proceeds from the $100-per-load payments that Brasher received. In fact, McMillan was not aware of the scheme, even though some of his drivers heard about Brasher's scheme.

         After learning of the $100-per-load scheme and that Davis was aware of Brasher's actions, the plaintiffs, along with Donald Anderson, another African American trucker, met with Davis at the Sawmeal Restaurant to discuss the matter (“the meeting”). When the plaintiffs spoke to Davis about ending the $100-per-load scheme, Davis indicated to them that he “needed” Brasher and was not going to terminate his employment. (Doc. 79-2, p. 131, ll. 15-23 - p. 132 ll.1-17). Davis did not tell the plaintiffs or Anderson that he had suggested the payment system to Brasher, but he did tell them that he would investigate the matter and report back to them. Neither the plaintiffs nor Anderson, however, complained or otherwise suggested at the meeting that Brasher's payment demands were racially motivated.

         Davis spoke with McMillan about the $100-per-load payments that Brasher asked for and received either before or after his meeting with the plaintiffs.[6] After the meeting, and as the plaintiffs and Anderson were sitting in a car together, Brasher contacted Anderson and informed him that all three were “cut off” from loads to Texas. Brasher placed the plaintiffs and Anderson on the “cut off” list because they complained to Davis about the $100-per-load scheme. Brasher claims he “was really hurt that [they] had went behind [his] back and did that. All [they] had to do was say [they] didn't want to pay [him] no more.” (Doc. 75-7, p. 33, ll. 17-20). Jones and Jackson confirmed that they were placed on the “cut off” list after the meeting, yet neither spoke to Brasher or Davis about being taken off of the “cut off” list. The $100-per-load scheme ended immediately after the meeting when McMillan told Brasher to stop accepting payments from drivers. Furthermore, Brasher never accepted another payment, asserting he “never did it again.” (Doc. 75-7, p. 33, ll. 3-4). Davis never spoke to the plaintiffs again, however, about resolving the situation as promised. The loads to Texas ended by the end of September 2014.

         In order to obtain loads to Texas, Jackson paid Brasher approximately $2, 900.00, in total.[7] Although Jones refused to pay Brasher for loads, he still received loads to Texas before the meeting. However, Jones was denied at least one load after both he and Jackson were “cut off” from receiving loads from the Chip Mill. Jones observed Cedrick Jones[8] hauling a load to Texas after (Chris) Jones and Jackson were “cut off” by Brasher. However, only Jackson and Jones indicated that Brasher implement the $100-per-load scheme due to any racial animus.[9] Jackson believes that Brasher harbored racial animus because Brasher “charge[d] only black folks and not white folks” for loads. (Doc. 75-2, p. 266, ll. 18-19). He states that “[if Brasher] did it to the whites, he was wrong. But if didn't do it to them, he is twice as wrong. When they come and say - when they tell me that no, we are not paying, that's a slap in the face to me . . . .” (Doc. 75-2, p. 263, ll. 15-19). Jackson, however, claims that “[w]e would never have been here if wasn't for [money.]” (Doc. 75-2, p. 141, ll. 8-9)

         IV. DISCUSSION

         The plaintiffs assert seven claims in their Amended Complaint. Some of the claims were dismissed previously on motions to dismiss filed by some of the defendants. Therefore, not every claim is applicable to each defendant. The court will address each claim individually, as it may apply to each defendant.

         A. Count One: 42 U.S.C. § 1981 - Race Discrimination in Contract and Retaliation

         1. Jackson's Standing to Bring § 1981 Claim

         Although Count One remains pending against all defendants, Jackson does not have standing to maintain a claim under § 1981. In Domino's Pizza, Inc. v. McDonald, the sole shareholder and president of a Nevada corporation brought a cause of action under § 1981 against Domino's Pizza when Domino's Pizza breached a contract with his corporation due to racial animus. 546 U.S. 470, 472-73 (2006). He argued that he had “a cause of action because he ‘made and enforced contracts' for” his corporation. Id. at 475. The Supreme Court disagreed, finding that McDonald “[could ]not maintain a cause of action under § 1981 unless he ha[d] . . . rights under the . . . contract that he wish[ed] ‘to make and enforce.'” Id. at 479-80. The Court reasoned that “Section 1981 plaintiffs must identify injuries flowing from a racially motivated breach of their own contractual relationship, not of someone else's.” Id. at 480. While “McDonald's complaint [did] identify a contractual relationship, the one between Domino's and [plaintiff's corporation, ] . . . it is fundamental corporation and agency law-indeed, it can be said to be the whole purpose of corporation and agency law-that the shareholder and contracting officer of a corporation has no rights and is exposed to no liability under the corporation's contracts.” Id. at 477.

         The defendants argue that Domino's Pizza controls, and therefore Jackson lacks standing to bring a § 1981 claim as an individual. Jackson, however, asserts that he contracted with the Chip Mill in his own name, as if it were a sole proprietorship. Furthermore, Jackson attempts to argue that a limited liability company (“LLC”) is different from a corporation, which in turn makes Domino's Pizza distinguishable. In Jackson's view, Jackson Transportation, LLC, “in all relevant aspects resembles a sole proprietorship.” (Doc. 79, pp. 20-21).

         Jackson's strained argument that Jackson Transportation, LLC, is different from a corporation, which in turn makes Domino's Pizza distinguishable, is unavailing. An LLC is more like a corporation than a sole proprietorship for the purposes of standing to bring a § 1981 claim. As the Supreme Court explained, “the shareholder and contracting officer of a corporation has no rights and is exposed to no liability under the corporation's contracts.” Id. at 477. Similarly, “in general, members of an LLC are not proper parties to proceedings against the LLC, . . . and members are not liable for judgments against the LLC . . . .” Filo Am., Inc. v. Olhoss Trading Co., 321 F.Supp.2d 1266, 1268 (M.D. Ala. 2004). Here, a member of an LLC may not bring a § 1981 claim for an alleged contract impairment suffered by the LLC for the same reason an officer/shareholder in a corporation could not maintain a cause of action under § 1981 for an alleged contract impairment in Domino's Pizza.

         It is undisputed that Jackson is a member, owner, and operator of Jackson Transportation, LLC, which was formed on March 3, 2003, and has existed continuously since that date. During all relevant times, Jackson Transportation, LLC, hauled wood chips from the Chip Mill to Texas, not Jackson individually.[10]However, Jackson Transportation, LLC, was not named a party to this action. As such, Jackson is not the proper party and lacks standing to maintain a claim under § 1981 because his ability “to make or enforce a contract” in his own name was not impaired. Summary judgment is due to be GRANTED for any claim of discrimination or retaliation brought by Jackson under § 1981 as to each defendant.

         2. Jones' § 1981 Claim

         a. Pre-Meeting § 1981 Claim

         To support a claim brought pursuant to 42 U.S.C. § 1981, the plaintiff must allege and make a prima facie showing that “(1) he or she is a member of a racial minority; (2) the defendant had intent to discriminate on the basis of race; and (3) the discrimination concerned one or more activities enumerated in the statute.” Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1235 (11th Cir. 2000).

         The activities enumerated in the statute are the rights to “make and enforce contracts, to sue, be parties, give evidence, and to the full and equal protection of all laws . . . .” 42 U.S.C. § 1981. “[T]he term ‘make and enforce contracts' includes making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privilege, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). “To state a claim under § 1981 for interference with a right to contract, ‘a plaintiff must identify an impaired contractual relationship under which the plaintiff has rights.'” Jimenez v. Wellstar Health System, 596 F.3d 1304, 1308 (11th Cir. 2010) (quoting Kinnon v. Arcoub, Gopman & Assocs., 490 F.3d 886, 890 (11th Cir. 2007)).

         The second prong of the test dictates that “[a] showing of disparate impact through a neutral practice [alone] is insufficient to prove a § 1981 violation because proof of discriminatory intent is essential.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999). “To show that a defendant acted with discriminatory purpose-i.e., element 2 of the § 1981 cause of action-a plaintiff must present either (1) statistical proof of a pattern of discrimination, (2) direct evidence of discrimination, which consists of evidence which, if believed, would prove the existence of discrimination without inference or presumption, or (3) circumstantial evidence of discriminatory intent using the framework established in McDonnell Douglas.” Melton v. National Dairy, LLC, 705 F.Supp.2d 1303, 1315-16 (M.D. Ala. 2010).[11]

         Under the McDonnell Douglas framework for § 1981 non-employment claims, the plaintiff must establish a prima facie case to create an inference of discrimination if direct evidence does not exist. Benton, 230 F.Supp.2d at 1369. Once the plaintiff successfully establishes a prima facie case, “then the burden shifts to the defendant to offer legitimate, non-discriminatory reasons for its actions.” Brooks v. Cty. Comm'n of Jefferson Cty, Ala., 446 F.3d 1160, 1162 (11th Cir. 2006). “If the defendant offers legitimate, nondiscriminatory reasons, then the burden shifts back to the plaintiff to rebut those reasons and show that they are merely pretext for discrimination.” Id. Despite these shifting burdens, “the ultimate burden of persuading the trier of fact that the [defendant] intentionally discriminated against the [plaintiff] remains at all times with the plaintiff.” Id. (internal quotation marks omitted).

         Although neither party has delineated two possible § 1981 claims, the court construes the factual record to establish two possible violations of § 1981. The first possible violation of § 1981 involves Brasher asking African American drivers for $100 per load to Texas and not asking the same of white drivers prior to the meeting. The second possible violation of § 1981 concerns Brasher denying Jones the opportunity to haul loads to Texas after the meeting, while allowing other drivers to continue to haul loads to Texas.

         i. Contract Impairment

         The parties do not dispute that Jones is a member of a racial minority. Jones cannot, however, establish that the first possible violation of § 1981 involves a contract impairment. Defendants Brasher and McMillan Trucking argue that the plaintiffs did not have a contractual relationship with either the Chip Mill or McMillan Trucking nor did the plaintiffs have a right to keep hauling loads for the Chip Mill. Jones argues that he was “extorted economically on the basis of race” and that “[t]he defendants threatened to deprioritize the plaintiffs if they did not pay the money.” (Doc. 79, pp. 12-13).

         Prior to the meeting, Jones cannot show “that the allegedly discriminatory conduct concerned . . . the making, performance, modification, or termination of contracts, or the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Benton, 230 F.Supp.2d at 1370. In other words, he cannot establish that he was denied, or Brasher impaired, his opportunity to contract with the Chip Mill to haul loads to Texas prior to the meeting. In fact, the record conclusively establishes that Jones was not denied a load to Texas during this period before the meeting. When asked if he “kn[ew] of any loads between the date [he] refused and August 25th that [he] missed out on because [he] refused to pay that hundred dollars, ” Jones answered “[n]o. I don't recall any loads that I missed during that time.” (Doc. 75-6, p. 100, ll. 16-21).

         ii. Prima Facie Case

         It is clear from the evidence that there is neither direct evidence nor statistical proof of discrimination. Because of this, Jones must prove intent in accordance with McDonnell Douglass. To establish a prima facie case of discrimination under the McDonnell Douglass framework, the

plaintiff must demonstrate the following elements . . .: (1) that she is a member of a protected class; (2) that the allegedly discriminatory conduct concerned . . . the making, performance, modification, or termination of contracts, or the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship; and (3) that the defendants treated the plaintiff less favorably with regard to the allegedly discriminatory act than the defendants treated other similarly situated persons who were outside plaintiff's protected class.

Id. at 1370; see also Flournoy, 2015 WL 8542765, at *3. In other words, the plaintiff must “show an apt comparator of a different race who was not subjected to the same harsh treatment with regard to the enforcement of a contract as was the plaintiff” to prove intent by circumstantial evidence. Id.

         Even assuming arguendo that Jones can point to a contract impairment prior to the meeting, Jones cannot establish a prima facie case of discriminatory intent by identifying a white comparator. The defendants argue that Jones has failed to assert a prima facie case of discrimination against them. However, the defendants argue that Jones must prove Brasher's intent to discriminate on the basis of race. Defendants assert that “there is no evidence Brasher intentionally discriminated against Jones based on race, [and Jones] cannot identify a White comparator who was treated more favorably” (doc. 74, p. 3).

         Jones argues that he was “extorted economically on the basis of race.” (Doc. 79, p. 12). He alleges that the defendants “did not similarly threaten white drivers.” (Doc. 79, p. 13). In other words, he argues that the plaintiffs' evidence reveals white comparators “from whom Brasher did not demand” the $100-per load payment. (Id.). Specifically, Jones points to William Harold Spivey, III, and Dewayne Loveless as comparators who were not asked to pay $100 per load and who in fact voluntarily paid $100 per load to Brasher. Finally, Jones argues that the Chip Mill, Brett Davis, and McMillan Trucking are liable under a theory of agency and respondeat superior.

         Jones cannot point to a sufficient white comparator. African American and white drivers alike paid Brasher $100 per load to receive priority on loads to Texas.[12] Furthermore, both African American and white drivers voluntarily paid Brasher to secure preference on loads to Texas.[13] Most fatal to his § 1981 claim, however, is the absence of a white comparator who refused to pay for a load to Texas, yet who received more preferential treatment. Jones refused to pay Brasher $100 per load. Therefore, to establish a comparator, he must point to a white driver who also refused to pay but received more preferential treatment in the form of being assigned a load without paying Brasher. He cannot, however, identify a white driver who ultimately refused to pay $100 per load, much less one who refused to pay and yet received a load. Because the record is devoid of any white driver who did not pay $100 per load or who did not offer a tangible benefit worth significant value in lieu of paying $100 per load, Jones cannot establish a white comparator to demonstrate the necessary discriminatory intent to support his § 1981 claim.[14]

         iii. Legitimate, Non-Discriminatory Reason

         Even if he could establish his prima facie case by pointing to a white comparator, Jones cannot show that Brasher's proffered legitimate reason for requiring $100 per load to Texas is pretext. Defendants argue that “Brasher's motivation for accepting $100 per load to Texas from African American and white owner/operators was to increase his income based on the profitable Texas loads.” (Doc. 75, p. 18; doc. 75-7, p. 23, ll. 1-16). They assert that the scheme “was not based on race[] and was available to all owners and operators.” (Doc. 75, p. 18, doc. 75-7, p. 70, ll. 19-23 - p. 71, ll. 1-7). Jones argues that the proffered reason is pretext. He points to Loveless and Spivey who voluntarily compensated Brasher to secure continued preference in contrast to African Americans who were asked to pay $100 per load to Texas. (Doc. 79, p. 13). Jackson testified that he believed the scheme was racially motivated because Brasher “charge[d] only black folks and not white folks.” (Doc. 75-2, p. 266, ll. 18-9).

         The record establishes that both African American and white drivers voluntarily paid to secure continued preference for loads to Texas and that the scheme was never about race.[15] When asked what the case is all about at the end of the day, Jackson testified that it is about his money. (Doc. 75-2, p. 144, ll. 21-23 - p. 145, ll. 1-13; see also doc. 75-2, p. 141, ll. 8-9) (“We would never have been here if wasn't for [money]”)). Jones cannot point to evidence that Brasher intended to discriminate against him on the basis of race. (Doc. 75-6, p. 220, ll. 4-10; p. 251, ll. 11-14). Furthermore, Anderson, Howard, Powell, and Pruitt, all African-American drivers, do not believe that Brasher was motivated by racial animus. (Doc. 75-12, p. 53, ll. 1-23 - p.54, l. 1; doc. 75-14, p. 49, 1. 23 - p. 50, ll. 1-15; doc. 75-15, p. 41, ll. 16-23; doc. 75-16, p. 79, ll. 5-8). Anderson testified that at the meeting with Davis neither he nor the plaintiffs complained to Davis about “anything to do with race.” (Doc. 75-12, pp. 46, ll. 22-23 - p. 47, ll. 1-15). As Jackson testified, the record shows that the scheme required by Brasher ultimately came down to money, not racial animus. Therefore, Jones cannot establish either an alleged contract impairment or Brasher's discriminatory intent for the first possible violation of § 1981.

         b. Post-Meeting § 1981 Claim

         i. Pri ...


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