United States District Court, N.D. Alabama, Western Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE.
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.
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).
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. (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
• 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 -
• 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).
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).
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.
SUMMARY JUDGMENT STANDARD
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.
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.
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).
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
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
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
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.
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.
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. McMillan Trucking was hauling wood chips
from the Chip Mill to local destination; McMillan Trucking,
however, did not haul to Texas.
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).
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. 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. At least some African American drivers
voluntarily approached Brasher and offered to pay $100 per
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.
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.
spoke with McMillan about the $100-per-load payments that
Brasher asked for and received either before or after his
meeting with the plaintiffs. 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
order to obtain loads to Texas, Jackson paid Brasher
approximately $2, 900.00, in total. 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 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. 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.
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.
Count One: 42 U.S.C. § 1981 - Race Discrimination in
Contract and Retaliation
Jackson's Standing to Bring § 1981 Claim
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.
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).
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
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.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
Jones' § 1981 Claim
Pre-Meeting § 1981 Claim
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).
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)).
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.
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
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.
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).
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).
Prima Facie Case
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
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.
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).
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
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. Furthermore,
both African American and white drivers voluntarily paid
Brasher to secure preference on loads to Texas. 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.
Legitimate, Non-Discriminatory Reason
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).
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. 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
Post-Meeting § 1981 Claim