424 F.3d 806 (8th Cir. 2005), 04-3924, Johnson v. Ready Mixed Concrete Co.

Docket Nº:04-3924.
Citation:424 F.3d 806
Party Name:Willie JOHNSON, Appellant, v. READY MIXED CONCRETE CO., a Nebraska Corporation and division of Lyman-Richey Corporation, a Delaware Corporation, Appellee.
Case Date:September 26, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 806

424 F.3d 806 (8th Cir. 2005)

Willie JOHNSON, Appellant,


READY MIXED CONCRETE CO., a Nebraska Corporation and division of Lyman-Richey Corporation, a Delaware Corporation, Appellee.

No. 04-3924.

United States Court of Appeals, Eighth Circuit.

September 26, 2005

Submitted: June 24, 2005

Appeal from the United States District Court for the District of Nebraska.

Page 807

[Copyrighted Material Omitted]

Page 808

Matthew L. McBride, argued, Omaha, NE, for appellant.

Matthew G. Dunning, argued, Omaha, NE (Juliana Reno, on the brief), appellee.

Before ARNOLD, McMILLIAN, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Willie Johnson appeals from the district court's1 grant of summary judgment in favor of Ready Mixed Concrete ("Ready Mixed") in his suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.


Johnson, an African-American, was employed as a truck driver by Ready Mixed from 1994 until 2002. He drove a cement mixing truck for the company and was based out of its plant in Omaha, Nebraska. On June 13, 2002, Ready Mixed fired Johnson, citing dishonesty as the reason for his termination.

Johnson's alleged dishonesty occurred in connection with an incident in which his truck was damaged by acid while he was washing it. All truck drivers at Ready Mixed were required periodically to clean their trucks. The drivers cleaned their truck cabs using soap and water, but cleaned the drums of the trucks with a solution of diluted acid. The parties do not dispute that on Friday, June 7, Johnson was told to clean his truck before leaving for the day, and that he reported acid damage to his truck on the following Wednesday, June 12. They dispute, however, when and how the acid damage occurred.

Johnson asserts that the acid damage occurred on Friday, June 7. According to his deposition testimony, Johnson washed his truck out quickly that day after being asked to do so, because he "was excited to get off early to enjoy the weekend." (J.A. at 94). Johnson pulled up next to the water hose and filled his bucket up with water and soap. Leaving his broom in the bucket, he went to use the restroom, came back, and started washing. Johnson began by washing one passenger door and the hood. While walking back to the water hose to rinse off the door and hood, he noticed that his truck "was changing colors." He knew from the discoloration that "it must have been acid in that bucket." Johnson testified later that he thought the acid had been added to his bucket either by a fellow employee seeking to conserve acid or as a result of "sabotage." (J.A. at 88, 108)

Johnson's supervisors testified that they did not believe that the acid damage occurred to his truck on Friday, June 7, but rather that it must have occurred on Tuesday, June 11, the day before Johnson reported the damage. They also testified that they did not believe Johnson's assertion that the acid was added to his bucket by a fellow employee. When Johnson brought the damage to the attention of John Stueve, the plant superintendent, on June 12, Stueve examined the truck and then contacted William Herschlag, who was the acting general superintendent of Ready Mixed's concrete plants. Either Stueve or Herschlag asked Johnson to fill out a company damage report, known as a "Form 5." On the Form 5, Johnson drew a scene of the "accident" and reported that the acid damage had occurred on June 7.

Page 809

He recounted the incident as described above and concluded that "I bel[ie]ve someone had to pour a[ci]d in my Bucket when I went to Restroom. Sab[o]tage." (J.A. at 209).

After receiving Johnson's report, Stueve and Herschlag investigated the acid incident. Stueve was skeptical that the damage had occurred on June 7, maintaining that he "[a]bsolutely" would have noticed any acid damage to Johnson's truck occurring prior to June 11. He testified in his deposition that he "would have observed" Johnson's truck "numerous times" between June 7 and June 12, either from his office or while performing duties near where it was parked. Stueve and Herschlag reviewed Johnson's time record from Friday, June 7, which indicated that Johnson had clocked out twenty minutes after being told to wash his truck. According to Stueve, he did not believe that Johnson could have washed his truck, gone to the restroom, and, as required by company procedure, refueled his truck in twenty minutes. Herschlag testified that he did not think Johnson had sufficient time to "clean the truck, as he had stated." (J.A. at 515).

Stueve, moreover, did not believe Johnson's suggestion that another employee put acid in Johnson's bucket, reasoning that he did not "have employees at [the plant] that would purposely do that." (J.A. at 422). Herschlag likewise testified that he and Stueve "did not believe" that Johnson had been sabotaged, (J.A. at 522), and that Johnson's accusation that "somebody else pour[ed] acid into his bucket," in his view, was "false." (J.A. at 541).

Stueve also testified that three employees approached him on June 12 with information about the acid damage. These employees each wrote out statements saying that they saw Johnson washing his truck on June 11. One of them testified expressly that Johnson "put[] acid into a five gallon bucket," and "proceeded to clean his truck with the acid."

On June 13, in response to Stueve's skepticism of Johnson's claim that the acid damage had occurred on June 7, Johnson submitted another statement explaining his actions on June 11. He claimed that the acid he had been seen with was "to help clean the hopper and drum," and that on June 11, he "washed only the D[ru]m & hopper."

Still disbelieving Johnson's account, Stueve faxed the Form 5, along with the three employee statements and a statement of his own, to Kevin Schmidt, Executive Vice President and Chief Operating Officer of Ready Mixed. Schmidt then approved Johnson's dismissal "due to dishonesty and falsification of company documents." (J.A. at 553). Herschlag informed Johnson of his termination on June 13, 2002. Schmidt asserts that he spoke to Johnson shortly after he was fired, and that Johnson claimed that two fellow truck drivers could support his version of events. The two truck drivers gave statements saying that they had not seen Johnson washing out his truck on June 7. One of them stated that he had seen Johnson washing his truck's hopper with acid on June 11, and the other stated that he had been away...

To continue reading