United States District Court, M.D. Alabama, Northern Division
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 “1st
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
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