Richardson v. Koch Foods of Alabama, LLC

          MEMORANDUM OPINION AND ORDER

          SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on defendant's motion for summary judgment. Doc. 34.^[1] For the reasons stated below, the motion is due to be granted.

         Facts

          Plaintiff Henry Wayne Richardson was employed as a truck driver with defendant Koch Foods from October 2011 until his termination on September 24, 2014. (Doc. 36-4 at 24-25, 152-53). In the personnel action form terminating plaintiff, defendant states that plaintiff was terminated for “job abandonment.” (Doc. 40-12). John James was the Koch Foods feed mill manager during the period of plaintiff's employment. Jacob Cheatham was the assistant manager and plaintiff's direct supervisor. Carlos Adkins was the lead driver and reported directly to Cheatham. (Doc. 36-2 at 11:1-16).

         Truck drivers at Koch Foods were regularly scheduled to work six days per week. (Doc. 36-4 at 49-50). In order to receive a day off, drivers were required to submit a form requesting the day off, subject to their supervisor's approval. Id. at 70-72. If a driver was allowed the day off, a vacation day would be charged from his or her allotted number of vacation days per year, although plaintiff contends that he was unaware of this policy at the time. Id. at 71-72.

         Koch Foods dispatchers assist in loading trucks with feed and telling the drivers where to deliver the loads. (Doc. 36-2 at 20). Dispatchers are hourly employees who do not have supervisory authority over truck drivers. (Docs. 36-1 at 55, 36-2 at 20). Delivering feed from the mill typically takes a predictable number of hours. If the amount of time to make the feed run would not allow a driver to deliver a load and then return the truck before the end of the shift, the truck driver typically was released from work before the end of his shift by his supervisor. (Doc. 36-1 at 54-55). Dispatchers were not allowed to release truck drivers directly without obtaining a supervisor's approval. Id. at 55. Although it appears that dispatchers had some influence over whether truck drivers could be released from work early if a load would take too long into the next shift to deliver, or the feed mill was nonoperational, supervisory approval was still required for the early release of a truck driver. (Doc. 36-2 at 13-14).

         a. Plaintiff's employment with defendant prior to his heart blockage

         The record does not reflect any apparent issues with plaintiff's employment with defendant prior to early 2013. On January 7, 2013, plaintiff received a write-up for insubordination for refusing to drive another load from the feed mill. (Doc. 36-8). Plaintiff responded to the write-up that he saw “no reason” to wait around when there was no feed. Id. On March 2, 2013, plaintiff received a verbal warning about his attendance. The form states that plaintiff had accumulated 3.5 attendance points (although the record is unclear as to what is a typical number of attendance points). (Doc. 36-9). Plaintiff often requested Saturdays off work in order to spend time with his daughter. Plaintiff contends that prior to Cheatham's being his supervisor, defendant would honor his request to take Saturdays off to spend with his daughter without docking him a vacation day, but that this policy changed with Cheatham. (Doc. 36-4 at 71:10-16). Notwithstanding plaintiff's testimony in this regard, the record shows that some of his requests were granted and plaintiff was charged a vacation day, while others were denied. See Docs. 36-6, 36-7.

         In April 2013, plaintiff met with Shawn Collins and David Birchfield, HR managers for Koch Foods. In that meeting, plaintiff expressed concerns that Cheatham was ignoring his requests for time off and incorrectly issuing attendance points against him. Plaintiff also indicated that he felt retaliated against by Cheatham for questioning Cheatham's handling of the March attendance write-up and for his lack of professionalism with employees. (Doc. 36-12).

         b. Plaintiff's employment with defendant subsequent to his heart blockage

          On August 18, 2013, plaintiff suffered an acute inferior wall myocardial infarction, and a stent was placed in his right coronary artery. (Doc. 36-13). Defendant's supervisors learned of plaintiff's heart issue and procedure around that same time. (Doc. 36-1 at 16). On September 25, 2013, plaintiff's physician released him to return to work without restriction. (Doc. 36-13). Plaintiff's heart condition and subsequent surgery did not impede his ability to do his job, walk, stand, eat, care for himself, or sleep. (Doc. 36-4 at 97:23- 99:18).

         Steve Bohannon was a lead truck driver at Koch Foods. (Doc. 36-20 at 24:5-6). He testifies that he overheard a conversation between James and Cheatham about plaintiff. Id. at 42. According to Bohannon, all three were in an office with the blinds shut when James told Cheatham to begin denying plaintiff his Saturday requests off so that plaintiff would miss work and they could write him up and terminate him. Id. at 41-42. Bohannon indicates that the men thought plaintiff was a “liability” for having a heart attack. Id. at 42. Bohannon could not recall when the conversation occurred, but he estimates that it was about six months prior to Bohannon's March 2014 termination. Id. at 42-43. Bohannon acknowledged that the policy at Koch Foods was that drivers were required to get permission from a supervisor before they could leave early. Id. at 86:4-17. On February 17, 2014, Bohannon suffered a heart attack and underwent surgery. Id. at 34:25-35:4. Bohannon was terminated for “poor job performance” on March 14, 2014. (Doc. 36-25). Much later, in a conversation with plaintiff about their respective terminations, Bohannon learned that Koch Foods had a photograph of Bohannon asleep at his desk. Doc. 36-20 at 28-30.

         On February 20, 2014, plaintiff received a “1^st written” warning from Cheatham for leaving work early without permission and with time to deliver a load already on his trailer. (Doc. 40-5). Plaintiff refused to sign the warning. He noted that he was concerned about having the truck ready and pre-loaded for the next shift and he did not have sufficient time to finish the route. (Doc. 36-4 at 99:19-106:12). Plaintiff acknowledges that he did not ask a supervisor's permission to leave work, despite having their cell phone numbers. Id. On August 14, 2014, plaintiff received a written warning for attendance that specifically cited his absences on July 21 and August 14, and his leaving work early on August 4. (Doc. 40-6). Plaintiff again refused to sign this warning.

         Plaintiff testified that in spring 2014 he made verbal complaints to Human Resources (HR) personnel, including manager David Birchfield, Bobby Elrod, Shawn Collins, and Rhonda Ogle. (Doc. 36-4 at 176- 79). However, plaintiff did not mention to Elrod, Collins, or Ogle his heart attack or the possibility that he was being treated differently based on the fact that he had had a heart attack the summer before. In spring of 2014, plaintiff speculated to Birchfield that maybe Cheatham was treating him poorly because “[Cheatham] thinks I'm messing with his girlfriend or because I had a heart attack.” Id. at 176.

         On September 11, 2014, plaintiff filed a written complaint of harassment against Cheatham with Shawn Collins of HR. In the complaint plaintiff “formally charg[es] Jay Cheatham with harassment” and complains that Cheatham's “rules and enforcement differ from day to day and driver to driver.” (Doc. 40-7). In that written complaint there is no mention of plaintiff's heart condition and procedure of August 2013. See Id. The record does not show any follow-up from anyone at Koch Foods regarding this complaint.

         On September 20, 2014, plaintiff began working at 5:00 a.m. At around 1:15 p.m., after he had been working for eight hours, he was told by dispatcher Tommy McCray that the feed mill was under repair and no loads would be available to be taken for another 1.5 hours. (Doc. 36-4 at 145:15-152:1). Plaintiff claims that McCray gave him permission to go home and said that the night shift would take care of the remaining eight loads. Id. at 147. Plaintiff acknowledges that he did not ask a supervisor for permission to leave early. He also acknowledges that he drove only one load on September 20, 2014, but he maintains there were other drivers that also drove only one load before leaving for the day. Id. at 150- 53. Although defendant contends that plaintiff was the only driver who took just one load that day, the documents submitted by defendant do not support this contention.^[2]

         On September 24, 2014, James asked plaintiff whether he had been driving a full load on the interstate in violation of federal law and company policy. Plaintiff admitted that he had. Id. at 152-53; Doc. 36-19. James also confronted plaintiff about leaving early on September 20, 2014, and plaintiff admitted that he did leave early. James terminated plaintiff at the end of that conversation. (Doc. 36-19).

         c. Procedural Background

          Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on November 22, 2014. (Doc. 40-13). In his charge, he claims discrimination in violation of the American with Disabilities Act (ADA), as amended, because of his disability or perceived disability. Id. On the EEOC form, the only box checked regarding his discrimination is “disability.” An EEOC determination was issued April 11, 2016. (Doc. 40-14). The EEOC investigation concluded “that the evidence obtained during the investigation established that there is reasonable cause to conclude that the Charging Party was discriminated against on the basis of retaliation, in violation of the [ADA].” Id.

         On October 18, 2016, plaintiff filed a three-count complaint against defendant asserting claims for disability discrimination in violation of the ADA (first count), unlawful retaliation under Title VII (second count), and retaliatory hostile work environment under Title VII (third count). Both counts two and three cite to Title VII of the Civil Rights Act of 1964, as amended, (42 U.S.C. § 2000(e), et seq.), and the 1991 Civil Rights Act, and 42 U.S.C. 1981(a). (Doc. 1). Defendant moves for summary judgment on the Title VII claims set out in the second and third counts, arguing that plaintiff failed to exhaust his administrative remedies because he did not raise a Title VII violation with the EEOC or otherwise claim that his termination was based on a reason made unlawful under Title VII - i.e, race, color, sex, religion or national origin. (Doc. 34 at 1-2). Defendant argues that plaintiff's disability claim in count one fails because he is not disabled as that term is defined under the ADA, and he cannot proceed under a “regarded as” theory because his heart condition was a minor and transitory impairment. Defendant contends that, even if plaintiff can establish that he is disabled, he cannot show a causal connection between his termination and his disability. Further, defendant submits that plaintiff did not get along with Cheatham prior to his heart condition. Finally, defendant argues that it had a non-discriminatory reason for terminating plaintiff.

         Summary Judgment Standard of Review

          Summary judgment is appropriate “if the movant shows 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). “Rule 56(c) mandates the entry of 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). A fact issue is “genuine” if a rational trier of fact could find for the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must “examine the evidence in the light most favorable to the non-moving party, ” drawing all inferences in favor of such party. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). If the movant adequately supports its motion, the burden shifts to the opposing party to establish-“by producing affidavits or other relevant and admissible evidence beyond the pleadings”-specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011). The non-moving party cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir.1981), cert. denied, 456 U.S. 1010 (1982). “If the evidence is such that a reasonable jury could return a verdict for the non-moving party” then a genuine issue of material fact exists and a summary judgment motion must be denied. Anderson v. Liberty Lobby, Inc, 477 U.S. 242 (1986).

         Discussion

         a. Title VII claims - counts two and three

         Defendant contends that it is entitled to summary judgment on counts two and three because plaintiff failed to exhaust his administrative remedies as to his Title VII claims.Before filing a Title VII claim, a plaintiff must exhaust certain administrative remedies. See E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002); seegenerally 42 U.S.C. § 2000e-5. The administrative process begins with the timely filing of a charge of discrimination. Joe's Stone Crabs, Inc., 296 F.3d at 1271. “The [EEOC] should have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir.1983). The intent behind requiring the initial involvement of the “good office” of the EEOC is to promote informal cooperation and resolution between the complaining and responding parties. Wuv. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989). Claims in a judicial complaint not first brought before the EEOC cannot be considered before the court and a claimant may not “raise new acts of ...