United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
employment discrimination and breach of contract case comes
before the court on Defendant Publix Supermarket,
Inc.’s motion for summary judgment as to Plaintiff Pape
Tamba’s claims and Publix’s counterclaims. (Doc.
asserts that it terminated Mr. Tamba, who is African-American
and an immigrant, for dishonesty, not because of his race or
national origin. And no dispute exists that Publix reasonably
considered Mr. Tamba to be dishonest.
so, Mr. Tamba contends that Publix committed race and/or
national origin discrimination because it did not terminate
two allegedly similarly-situated employees, one who was white
and one who was not an immigrant. But no evidence shows that
Mr. Tamba and the white employee were similar in any material
respects and the non-immigrant employee does not exist on the
record. And Mr. Tamba offers no other circumstantial evidence
of discrimination. So the court will grant Publix’s
motion for summary judgment on Mr. Tamba’s claims.
also moves for summary judgment on its counterclaims against
Mr. Tamba. According to Publix, Mr. Tamba breached a
relocation benefits contract by not returning any of the
money that Publix gave him to cover his moving expenses when
he relocated from Florida to work at Publix’s facility
in Alabama. The company also claims that Mr. Tamba has been
unjustly enriched by retaining those relocation benefits and
other erroneous payments Publix made to him.
Tamba does not meaningfully dispute the evidence that shows
he breached the contract by not returning his relocation
benefits, so the court will grant summary judgment in favor
of Publix on its breach of contract counterclaim. But genuine
disputes of material fact preclude summary judgment on
Publix’s unjust enrichment counterclaim.
STANDARD OF REVIEW
court can resolve a case on summary judgment only when the
moving party establishes two essential elements: (1) no
genuine disputes of material fact exist; and (2) the
moving party is entitled to judgment as a matter of law.
the first element of the moving party’s summary
judgment burden, “‘[g]enuine disputes [of
material fact] are those in which the evidence is such that a
reasonable jury could return a verdict for the
non-movant.’” Evans v. Books-A-
Million, 762 F.3d 1288, 1294 (11th Cir. 2014)
(emphasis added) (quoting Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 742 (11th Cir. 1996)). And when
considering whether any genuine disputes of material fact
exist, the court must view the evidence in the record in the
light most favorable to the non-moving party and draw
reasonable inferences in favor of the non-moving party.
White v. Beltram Edge Tool Supply, Inc., 789 F.3d
1188, 1191 (11th Cir. 2015).
to these rules, the court presents the facts supported by
evidence on the record in the light most favorable to Mr.
Payment Issues After Mr. Tamba’s Transfer to
majority of 2016, Mr. Tamba worked as a forklift operator at
Publix’s warehouse in Lakeland, Florida. At the end of
2016, Mr. Tamba completed an application for a position
titled “truck driver/truck driver trainee” at
Publix’s warehouse and distribution center in McCalla,
Alabama. (Doc. 24-3 at 16–17, 86).
accepted Mr. Tamba’s application and agreed to cover
his expenses to relocate to McCalla. Pursuant to a
“Relocation Package Repayment Agreement” that
both parties signed, Publix paid Mr. Tamba, or moving
companies on his behalf, $15, 246.57 in moving expenses.
(Doc. 24-3 at 16, 85; Doc. 24-6 at 2). The Repayment
Agreement provided that if Mr. Tamba left Publix within 12
months of receiving the relocation benefits, he would have to
fully reimburse Publix for those payments.
Mr. Tamba applied for a position titled “truck
driver/truck driver trainee, ” “truck
driver” and “truck driver trainee” are
different positions with different rates of pay. Truck
drivers drive over the road and can initially make $21.85 per
hour, while truck driver trainees move trailers and perform
spotter driver duties only on Publix’s property and can
initially make $16.79 per hour. Truck driver trainees train
to eventually become truck drivers in the event of a truck
driver position vacancy.
truck driver/truck driver trainee distinction caused
confusion that followed Mr. Tamba throughout his employment
with Publix in Alabama. First, Publix accepted Mr.
Tamba’s “truck driver/truck driver trainee”
job application and, according to the company, hired him as a
truck driver trainee. (See Doc. 24-8 at 2)
(email from Publix manager informing an administrator that
Mr. Tamba would be transferring as a truck driver trainee).
But Publix internally classified him as a truck driver making
$21.85 hour, rather than a truck driver trainee making $16.79
per hour. (Doc. 24-1 at 22; Doc. 24-5 at 38; Doc. 24-7 at
3–4; Doc. 24-9 at ¶ 9). Publix contends that its
administrator made this mistake because several other
transfers from Lakeland, Florida were truck drivers.
other hand, on a “Job Offer Acceptance and Commitment
Form, ” Mr. Tamba checked a box for “Truck
Driver”-and not “Truck Driver
Trainee”- following the statement, “I accept a
transfer to the following position in the McCalla
Distribution Center.” (Doc. 24-5 at 30). Mr. Tamba and
the Dispatch Superintendent at the Florida facility, Alan
Dorman, signed the commitment form.
transferring to McCalla on April 8, 2017, Mr. Tamba only
performed spotter driver duties at the facility and never
drove a truck over the road; i.e., he did not
perform the duties of the “truck driver”
position. But he received truck driver pay during the entire
month of April. (Doc. 24-3 at 97–99; Doc. 24-5 at 38).
early May 2017, Publix discovered that Mr. Tamba had been
receiving truck driver pay since he transferred to McCalla,
which Publix considered a mistake because, according to the
company, Mr. Tamba transferred as a truck driver trainee, not
a truck driver. In an email sent to Publix Human Resources, a
manager at the McCalla facility stated, “[Mr. Tamba]
has been overpaid about $500 for the month of April because
Paul Chambers misclassified his position in his transfer
paperwork. He was listed as a Truck Driver but he is working
in Trailer Movement.” (Doc. 24-1 at 79). Publix decided
that it would reduce Mr. Tamba’s paychecks by $200 per
week until it fully recouped the $500 overpayment.
mistakes continued. On Mr. Tamba’s next paycheck,
issued on May 4, 2017, Publix withheld the entire $500
overpayment, rather than the $200 per week as agreed. When
Publix attempted to correct this mistake on May 11, 2017, it
made yet another mistake-the company overpaid Mr. Tamba
again. Publix paid Mr. Tamba as if he had worked
143.65 hours during the week of April 22, 2017, when he had
actually worked only 51.68 hours, and Publix paid
him the truck driver rate instead of the truck driver trainee