Cooper v. Wal-Mart Transp., LLC

• Decision Date: 24 September 2009
• Docket Number: Civil Action No. H-08-0085.
• Citation: 662 F.Supp.2d 757
• Parties: Leandros COOPER, Plaintiff, v. WAL-MART TRANSPORTATION, LLC and Wal-Mart Stores, Inc., Defendant.
• Court: U.S. District Court — Southern District of Texas

662 F.Supp.2d 757

Leandros COOPER, Plaintiff, v. WAL-MART TRANSPORTATION, LLC and Wal-Mart Stores, Inc., Defendant.

Civil Action No. H-08-0085.

United States District Court, S.D. Texas, Houston Division.

September 24, 2009.

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Ajay Choudhary, Jack Q. Nichols, Coane Associates, Houston, TX, for Plaintiff.

Melissa Jean Judd, Nitin Sud, Littler Mendelson PC, Houston, TX, Charlotte Kaye McClusky, Littler Mendelson PC, Atlanta, GA, for Defendant.

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

This is an employment discrimination suit. Leandros Cooper, a truck driver who worked for Wal-Mart Transportation, LLC and Wal-Mart Stores, Inc., alleges discrimination and a hostile work environment based on his race. He also alleges that he was terminated from his job in retaliation for filing a Charge of Discrimination with the Equal Employment Opportunity Commission and the Texas Workforce Commission. His final claim is that he was assaulted by a Wal-Mart manager.

Wal-Mart has moved for summary judgment. (Docket Entry No. 31). Cooper has responded to the summary judgment motion, (Docket Entry No. 35), Wal-Mart has replied, (Docket Entry No. 36), and Cooper has filed a surreply, (Docket Entry No. 37). Wal-Mart has also moved to strike two of Cooper's potential witnesses, (Docket Entry Nos. 24 and 25); no response has been filed.

Based on a careful review of the complaint; the motions, responses, and replies; the summary judgment record; and the applicable law, this court denies Wal-Mart's motion for summary judgement as to the hostile work environment claim but otherwise grants the motion. Both motions to strike are granted.

The parties are ordered to appear for a status conference on Thursday, October 15 at 3:30 p.m. in Courtroom 11-B to set a schedule and trial date.

The reasons for these rulings are explained below.

I. The Evidence in the Summary Judgment Record

Leandros Demetrous Cooper is an African-American male born in June 1959. He is an Army veteran, the father of two adult children, and a truck driver by trade. (Docket Entry No, 24, Ex. 2 at 9-10). Cooper began working as an interregional truck driver for Wal-Mart on October 4, 2005. (Docket Entry No. 31, Ex. 1 at 75 Ex. 5 at ¶ 2). During the first several months of his employment, Cooper was assigned to Wal-Mart's distribution center in Hurricane, Utah. (Id.). He later asked for, and received, a transfer to the Sealy, Texas distribution center, where he began working on January 27, 2006. (Docket Entry No. 35, Ex. 3). In an affidavit, Dana Fuller, Regional Human Resources Manager for Wal-Mart, stated that the transfer was granted "in order to resolve `issues' that had arisen between [Cooper] and other drivers, including [his] team driver with whom he jointly operated a commercial Wal-Mart truck." (Docket Entry No. 31, Ex. 5, ¶ 3).

Cooper has submitted a declaration stating that while he worked at the Hurricane Distribution Center in Utah, several persons made racially discriminatory comments. (Docket Entry No. 35, Ex. 5, ¶ 1). In October 2005, Eric Lasher, the General Terminal Manager, told Cooper "no guns," which Cooper thought was an offensive reference to a stereotype of African-Americans as gun owners. The next month, Lasher said that Cooper would "run right through this place." Also in November, a coworker said "monkey's dress like that." Cooper complained about the coworker's comment to Michael DiGioia, an operations manager. In December 2005 or January 2006, a "husband and wife team" said "here comes the nigger." In January 2006, a driver named Don said "I can't be seen riding around with a burnt co-driver," which Cooper took as a reference to his skin color. Cooper complained about Don's comment to Julie Winterton, the Human Resources Manager. Winterton said "that she thought [Cooper] wanted to join the Klan." Cooper lodged discrimination complaints with two internal entities: Wal-Mart's Resources for Living and Wal-Mart's Ethics Committee. He also complained to Darwin Jones, the regional personnel manager. Just before Cooper transferred to Sealy, where Paul Peterson is the general terminal manager, Lasher told Cooper that "Paul Peterson is my peezoe." The record does not reveal what "peezoe" means or what Cooper interpreted it to mean. (Docket Entry No. 35, Ex. 3).

Soon after Cooper began working at Sealy, he accused his team driver—Wal-Mart's drivers work in teams of two in a single truck—of trying to kill him. The team driver reported that Cooper began yelling profanities at him, encouraging him to cross the median and to "go ahead and kill us both, kill us now." (Id. at ¶ 4). Some time later, Cooper's truck caught fire. Cooper told his manager that the team driver had started the fire. Cooper reported to his manager that he thought his team driver "might have messed with the wiring" because he had asked Cooper to put his sleeping bag and blankets under the truck's bunk, which Cooper believed was for the purpose of causing the fire. (Id.). Cooper's manager told him that the allegations were outlandish. Cooper responded that he was "just paranoid." (Id.).

Cooper felt mistreated starting on his first day at Wal-Mart's Sealy Distribution Center. He alleges that he was forced to sit outside the office of human resources manager Kay Murphy while she and three drivers "went over my personal information on Ms. Murphy's computer." (Id. at ¶ 2). Cooper's dissatisfaction continued:

Then they made me go through a second orientation. They also made me sit in a third orientation for one day. When I was trained they overbooked my loads and I did not have time to take lunch breaks. This lasted 7 to 8 days. Management did not train any of the other white drivers (Don, Dennis, Darren, and Mike) who went to orientation with that way. Two of them (Darren and Dennis) became store ambassadors. Further, when I first started at Sealy, they made me run local and domicile even though I bid for and was awarded interregional. White drivers (George Murdock, Calvin Johnson, Michael Chmelik, Dennis Ramsey, Roy Whatley and Dennis Miller) were permitted to run the routes they bid for.

(Id.). According to Cooper, in "September/October of 2006, I complained to Dana Fuller, the Regional Human Resources Manager that white drivers are given more favorable routes, better mileage, and better pay." (Id.). Cooper's specific complaint about pay, by his own admission, was that "my pay was lower then it was at the Hurricane Distribution Center." (Id. at ¶ 4). Cooper also asserts that he complained about having to pass six drug screens, which was more than white drivers. "I specifically complained," he states, "that I was being discriminated against." (Id.). Fuller remembers differently, testifying in her declaration that "at no time did [Cooper] ever inform me or any other member of management that he believed any alleged conduct directed towards him was on account of his membership in any protected classification." (Docket Entry No. 31, Ex. 5). For the purposes of this summary judgment motion, Cooper's version must be accepted as true.

Fuller and Murphy investigated Cooper's complaints "seriously and promptly and thoroughly," finding that "[n]one of his complaints could be substantiated." (Id.). Fuller testified in her deposition that when she looked at Cooper's drug-testing record, it showed that he had only been tested twice, which was "not unusual" and "not a lot." (Docket Entry No. 31, Ex. 4 at 36-37). She found no signs of deviation from Wal-Mart's randomized testing program. (Id.). When Fuller investigated Cooper's pay complaint, she found that his Average Day's Pay (ADP)—the metric Wal-Mart uses for measuring pay, because wages vary daily based on miles driven—had actually increased since he transferred to Sealy. (Id.). Finally, with respect to route assignments and mileage allocations, Wal-Mart used its blind, computer-operated system in assigning work to Cooper. Fuller explained how the assignment system works:

Drivers operating out of the Sealy Distribution Center ... are given their load assignments by dispatchers located at the Regional Operations Center ("ROC"), which is an off-site facility located in Bentonville, Arkansas. All trucks have an on-board computer which allows for communication to the ROC.... Thus, although all drivers receive the same pay for the same activities, and miles are paid on a graduated scale determined by a driver's length of service, a driver's pay can be affected by the accuracy of the driver's [time entries in the on-board computer], which, in turn impacts how much activity and/or how many miles a driver is assigned during each work week. Additionally, the only identifying characteristic of truck drivers available to the ROC dispatchers is the driver's identification number, not the driver's race, or any other personal characteristic.

...

Additionally, Wal-Mart executes a bid process twice a year, during which changes to driver schedules and depart days/times are made.... Through the bid process, drivers rank their route/load choices in order of preference, allowing for individual driver preferences on matters such as the first load of the week, departure day/time and the type of program, i.e., whether they would prefer local driving routes or interregional driving. Each bid is measured solely by the longevity of the driver's employment at the facility at which they are working. Therefore the drivers with the longest tenure at each facility will usually get their top choices.

(Docket Entry No. 31, Ex. 5 at ¶¶ 12, 14). Fuller found no evidence that Wal-Mart had deviated from the system in Cooper's case. (Id.).

Cooper lodged several other internal complaints while working in Sealy. In October 2006, he complained to Murphy that someone had torn his paycheck or pay stub. Murphy explained to Cooper that the checks are prepared in the payroll...