Hale v. ABF Freight System, Inc., 102512 FED6, 11-6440

Docket Nº:11-6440
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:D. ARCHIE HALE, Plaintiff-Appellant, v. ABF FREIGHT SYSTEM, INC., Defendant-Appellee.
Judge Panel:BEFORE: BOGGS and McKEAGUE, Circuit Judges, and WATSON, District Judge.
Case Date:October 25, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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D. ARCHIE HALE, Plaintiff-Appellant,

v.

ABF FREIGHT SYSTEM, INC., Defendant-Appellee.

No. 11-6440

United States Court of Appeals, Sixth Circuit

October 25, 2012

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

BEFORE: BOGGS and McKEAGUE, Circuit Judges, and WATSON, District Judge. [*]

OPINION

McKEAGUE, Circuit Judge.

Plaintiff D. Archie Hale ("Hale") appeals the district court's grant of summary judgment for his employer, ABF Freight System ("ABF"). Hale contends that he was terminated and subject to a hostile work environment because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. § 4-21-101 et seq. Because Hale has failed to present evidence of discriminatory conduct rising to the level of frequency and severity necessary to establish a hostile work environment, we AFFIRM the district court's judgment on this claim. However, we find that Hale has presented sufficient evidence to establish a genuine issue of material fact as to whether he was terminated because of age and accordingly REVERSE the judgment of the district court and REMAND for trial on this claim.

I. BACKGROUND

Hale was first employed by ABF from 1982 through 1984 as an operations supervisor at ABF's Chattanooga terminal. In 1997, Hale was again hired by ABF for the same position and remained with ABF until his termination twelve years later on October 5, 2009. He was recruited and hired by Pam Laney, the ABF branch manager at the Chattanooga terminal and Hale's supervisor throughout the twelve-year period of his employment. Hale was 50 years old when he was hired by ABF for the second time in 1997.

As an ABF employee, Hale received a copy of ABF's Code of Conduct, which states ABF's status as an equal opportunity employer, obligates employees to report illegal or unethical behavior, and sets out a procedure for doing so. Hale signed an acknowledgement but admitted in his deposition that he did not actually read the Code. Hale never utilized any internal procedures to report illegal harassment or discrimination.

As an operations supervisor, Hale was responsible for setting up delivery routes, calling customers to schedule deliveries, dispatching drivers for freight pickups, supervising loading and unloading, ordering parts and supplies for maintenance, and managing overage, shortage, and damaged freight. Hale worked from 5:30 a.m. to about 3:30 p.m. A second operations manager, Mark Stewart, came in at around 1 p.m. to handle afternoon shipments.

According to Hale, in the twelve-year-period of his employment with ABF during which he dealt with 500-600 customers a week, he received only two customer complaints. He received 19 raises, several commendation letters from customers, and one commendation letter from ABF's Vice President of Operations and Sales. Hale alleges that none of the letters were put in his employee file.

On his annual employee reviews, all signed by Laney, Hale consistently received satisfactory marks.1 For example, in 1997, out of 60 applicable categories, Hale was rated as "satisfactory" in 50 and "needs improvement" in 10. From 2000-2009, Hale did not receive any "unacceptable" marks and consistently received more "meets or exceeds expectations" than "needs improvement" marks.2 The comments on Hale's employee reviews from 2003-2005 and 2009 suggest he could have more of a "can do" attitude and improve on telephone courtesy. Other comments throughout the years state that Hale was doing a great job.

Beginning in February 2009, Hale began to have a series of problems at work, evidenced by emails between Hale and Laney as well as copies of Employee Discussion Reports ("EDRs") documenting Hale's mistakes. These issues coincided with Laney inquiring about Hale's retirement plans and making age-related comments.

February 23, 2009: Laney emailed Hale, reprimanding him for a delayed "Timekeeper"3shipment, seven other late deliveries, and 52 early deliveries during the previous week. Laney also directed Hale not to mark a shipment "on hand"4 until Hale called the customer, and, if the customer could not be reached, mailed an auto-generated letter to the customer explaining why the shipment was put on hand. She ended with several other complaints about Hale's performance, stating, inter alia, that she wanted Hale to keep up with emails, timely submit supplies inventories, and tidy up his work space. Laney also filled out an EDR regarding the untimely shipments.

Hale responded the same day, giving his rationale for each delayed delivery. He admitted that "some things could have been done different" but that he was "looking to get the maximum freight delivered and going to Athens [location of Timekeeper delivery] that day would have been two hours of driving with nothing to pick up there after I finished delivery." In his deposition, Hale explained that it had been his common practice to group together shipments going to the same place and deliver them at the same time, saying, "If you've got two shipments, you don't deliver one just because and hold the other one because it's got a different delivery date." He also stated that this had never been a problem before. Regarding the late Timekeeper shipment, Hale testified that he called the customer to explain the shipment would be delayed, the customer told Hale to deliver the following day, and the customer paid the entire shipping fee anyway.

Hale also responded in writing to the EDR, explaining his rationale behind the early deliveries. He stated that he had been keeping up with monthly supplies inventories and was not aware of any instances of untimeliness. He did not mention that the Timekeeper customer had paid the shipping fee.

March 2009: Hale testified that sometime in March 2009, Laney inquired when he was planning to retire. He responded that he was planning to retire five years later at age 67 because he would then be able to draw the maximum amount of social security and be on Medicare.

March 13, 2009: Laney emailed Hale and Stewart telling them that they must call a customer prior to a pickup to make sure the freight was ready and "not waste valuable time and money" sending a driver to check if a shipment is ready "when it would take . . . 2 minutes to pick up the phone."

March 15, 2009: Laney emailed Hale about failing to call prior to a pickup, saying "[w]e have been over this so many times, why have you continued to not call yourself like I instructed you to do?" Hale responded on March 17, admitting that while he had generally been calling prior to pickup, he had "missed this one [Industrial Valve pickup]." This began an extended email exchange lasting through March 24, wherein Laney repeatedly asserted that Hale failed to call prior to pickup on more occasions than just the Industrial Valve pickup and demanded explanations why he continued to do so and Hale repeatedly responded that he was aware of Laney's desired procedure though he may have made some mistakes and that he had nothing further to say. In a sworn declaration submitted after his deposition, Hale claimed that it had been his usual practice to ask a driver to take five to ten minutes to check in on a customer if he could not reach the customer by phone. He stated it made customers happy, made sense logistically, and had not been a problem before March 2009.

Laney emailed Hale to express frustration with a delivery made prior to the delivery window and Hale's failure to personally call the customer regarding the change. Laney stated such conduct was inappropriate when Hale had set the delivery window in the first place and that she could not believe Hale would treat a customer like this. Hale replied that he does not call anyone before 8 a.m., especially with residential deliveries, and that the driver had called the customer before Hale could.

Laney emailed Hale stating, "I am continuing to be amazed that you are ignoring instructions that I have given you on how you are supposed to be doing things." She then faulted Hale for failing to update the equipment pool report—e.g., changing the status of trailers from "inbound" to "city" and making sure a customer's last name appeared on a "U-Pack." In his email response, Hale admitted that he missed one "U-Pack"; in his deposition, Hale claimed that he missed one out of 50 total trailers and, further, that Stewart had missed it as well because the equipment pool report that contained the mistake was printed at 4:05 p.m., after Stewart would have checked all the trailers at the start of his shift.

March 16, 2009: Laney emailed Hale referring to an email she sent Hale and Stewart on February 5, 2009 about limiting their internet usage to work-related matters. Hale admitted he had been guilty of visiting non-work related websites to read local news and sports. The next day, Laney sent a long reply to Hale, demanding an explanation why Hale was back on the internet after her February 5 email. She reiterated some of Hale's work performance issues mentioned in her earlier emails, such as failing to call a customer before sending a driver to pick up freight and improperly coding shipments "on hand, " as examples of things Hale should be working on instead of being on the internet. Hale replied that he had already responded to her concern about his internet usage, that he had no excuse, and that he hoped to have an opportunity to correct his behavior.

Laney emailed Hale, chastising him for improperly coding shipments as "short" and for putting deliveries on drivers' manifests without actually loading the shipments on the trailers and...

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