United States District Court, N.D. Alabama, Eastern Division
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE.
INTRODUCTION AND PROCEDURAL HISTORY
a civil action filed by the Plaintiff, James Strong, against
the Defendant, Blue Bell Creameries. In its original form,
the Complaint alleged that the Defendant discriminated
against Strong on the basis of his race in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 2000e, et seq. (“Title VII”),
and 42 U.S.C. § 1981. (Count One). The Plaintiff also
alleged that the Defendant discriminated against him due to
his disability, and failed to reasonably accommodate his
disability, in violation of the Americans with Disabilities
Act, 42 U.S.C. § 12112, et seq. (the
“ADA”), and the amendments thereto. (Count
Two). Both counts arose out of the
Plaintiff's employment with the Defendant.
21, 2016, this Court held that “the Plaintiff has
failed to properly allege facts which plausibly support a
claim for wrongful discharge, ” and dismissed any such
claim. (Doc. 29 at 13). The Plaintiff subsequently flied a
motion to amend the Complaint (doc. 31), which this Court
denied (doc. 33 at 11). The parties then agreed that the
Complaint alleged only two claims-one for an alleged
discriminatory demotion asserted under Title VII and Section
1981 (Count One), and one for constructive discharge asserted
under the ADAAA (Count Two). Then, in response to an earlier
Motion for Summary Judgment (doc. 34), the Plaintiff admitted
that the only remaining claim in this case was Count
One, alleging race discrimination under Title VII and Section
1981, based upon his alleged demotion. (Doc. 35 at 3,
¶7; doc. 39 at 2, ¶7).
January 27, 2017, this case came before the Court on the
Motion for Summary Judgment filed by the Defendant. (Doc.
34). In its Memorandum Opinion and Order on that motion (doc.
41), this Court held as follows:
1. The Defendant's motion for summary judgment is
GRANTED in favor of the Defendant and
against the Plaintiff as to Count One to the extent that
Count One is based on anything other than the Plaintiff being
placed into a position which did not pay him overtime.
2. The Defendant's motion for summary judgment is
GRANTED in favor of the Defendant and
against the Plaintiff as to Count Two in its entirety. Count
Two is DISMISSED with prejudice.
3. In all other respects, the motion for summary judgment is
(Doc. 41 at 12) (emphasis in original).
case now comes before the Court on the Defendant's Second
Motion for Summary Judgment (the “Motion”). (Doc.
52). For the reasons stated herein, the Motion will be
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary
judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those
portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(c) requires the non-moving party to
go beyond the pleadings in answering the
movant. Id. at 324. By its own affidavits
- or by the depositions, answers to interrogatories, and
admissions on file - it must designate specific facts showing
that there is a genuine issue for trial. Id.
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. Chapman, 229
F.3d at 1023. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson,
477 U.S. at 248. A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. If the evidence
presented by the non-movant to rebut the moving party's
evidence is merely colorable, or is not significantly
probative, summary judgment may still be granted.
Id. at 249.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact - that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once
the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating
the existence of a triable issue of fact.” Id.
(citation omitted) (emphasis added).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996). The second method a
movant in this position may use to discharge its burden is to
provide affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
Plaintiff, James Strong, began working for Blue Bell in the
year 2000 and, in 2005, took the position of over-the-road
Truck Driver. Jimmy L. Crace is the Warehouse/Distribution
Manager of the Sylacauga, Alabama Blue Bell Plant out of
which the Plaintiff was based. (Doc. 53-1 at 2, ¶1). On
May 14, 2014, Crace moved the Plaintiff from his driving job
to a palletizer position. In his new position, the Plaintiff
received the same hourly rate of pay he received as a Truck
Driver. However, Strong claims that he was denied the
opportunity to earn overtime wages in this new
position-something he had been able to do as a truck
deposition, the Plaintiff testified that when Crace told him
that he was moving him to the palletizer position, “he
said . . . he was going to either demote me or he was going
to fire me. He told me to take some vacation days until they
made a decision whether they were going to fire me. He was
going to call me back whether they were going to demote me or
they were going to fire me.” (Doc. 53-2 at
8(28)-9(29)). Eventually, Crace called the Plaintiff back and
told him that he was being moved to the palletizer position.
In his deposition, the Plaintiff first stated that he could
not remember Crace having any discussions with him about
overtime. (Doc. 53-2 at 19(70)). Later in his deposition, the
Plaintiff stated that Crace told him “he was going to
put me in palletizer and that I wasn't going to get
nothing [sic] but eight hours a day, and if I got any more
than that he was going to fire me.” (Doc. 53-2 at
15(56); see also, doc. 53-2 at 17(64)-18(65)).
denies that he told the Plaintiff he could not work overtime.
In his declaration he states:
I did not tell him he could not work overtime. The Palletizer
position is scheduled for nine hours every day and can have
more hours depending on the work load. When Strong was
transferred to the Palletizer position, I gave him a schedule
to work. That schedule provided Strong at least nine hours
every day. Attached as Exhibit 28 is a true and correct copy
of the schedules I made for Strong when he was transferred to
the Palletizer position. The schedules all provide nine hours
every day for five work days.
(Doc. 53-1 at 9, ¶12). Indeed, the record contains a
schedule showing that Strong was scheduled to work: four
nine-hour shifts for the week ending May 31, 2014 (doc. 53-1
at 72); five nine-hour shifts for the week ending June 6,
2014 (doc. 53-1 at 73); five nine-hour shifts for the week
ending June 14, 2014 (doc. 53-1 at 74); and five nine-hour
shifts for the week ending June 21, 2014 (doc. 53-1 at
In addition, the Plaintiff does not dispute that employees
who worked as palletizers regularly received overtime. Some
of the employees in the warehouse received as much as 18 to
23 hours in one week for overtime. (Doc. 53-1 at 9, doc. 53-1
states that “Strong was removed from driving duties in
May 2014 primarily because of problems related to time
management. Blue Bell also had complaints about him from its
wholesale facilities and members of the public.” (Doc.
53-1 at 3, ¶5). In his deposition, the Plaintiff agreed
that he was transferred to the palletizer position
“because of the alleged difference in [his] actual time
versus [his] scheduled time.” (Doc. 53-2 at 7(22);
see also doc. 53-2 at 9 (30-31) (“Q: Was it
during that [first] conversation that he told you that he was
thinking about either demoting or firing you because of your
difference between your actual driving time and the scheduled
time? A. Yes, sir. And he said that's what the reason was
for my getting demoted.”); doc. 53-2 at 50(195)
(“Q. When he told you that they were - I'm trying
to remember what you told me earlier today. I guess this is
when he first talked to you and told you about that you were
going to be demoted or fired, didn't he tell you the
reason why that -- at least this morning what you told me was
the reason why that was being done was because your actual
drive times were greater than your scheduled time? A. That
would be true.”)).
Bell's records support the stated reasons for his
transfer. The company began tracking scheduled delivery time
as compared to actual delivery time in 2009, and since that
time, Plaintiff has ranked last or next to last among all
Sylacauga-based drivers. Plaintiff's excess delivery time
numbers and his ranking is as follows:
Next to last
Next to last
Next to last (partial year)
(Doc. 53-1 at 3-4, ¶7; and doc. 53-1 at
12-26). The individual who was last in 2012, 2013,
and for the full year 2014 was also an African-American
individual named Tim McGregor. Regarding the Plaintiff's
performance as a truck driver, the following exchange took
place in the Plaintiff's deposition:
Q. Do you know of any other drivers whose difference was
equal to or worse than yours?
A. Yes, sir.
Q. All right. Tell me who.
A. Tim McGregor.
* * *
Q. Tim McGregor. Now, he is another ...