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Tamba v. Publix Super Markets, Inc.

United States District Court, N.D. Alabama, Southern Division

September 20, 2019

PAPE TAMBA, Plaintiff/Counter-Defendant,
PUBLIX SUPER MARKETS, INC., Defendant/Counter-Claimant.



         This 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. 22).

         Publix 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.

         Even 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.

         Publix 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.

         Mr. 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.


         A trial 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. Fed.R.Civ.P. 56(a).

         As to 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).

         Pursuant to these rules, the court presents the facts supported by evidence on the record in the light most favorable to Mr. Tamba.

         II. FACTS

         A. Payment Issues After Mr. Tamba’s Transfer to Alabama

         For the 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).

         Publix 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.

         Though 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.

         The 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.

         On the 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.

         After 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).

         In 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.

         But the 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 ...

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