Gary v. Freightliner

• Decision Date: 08 April 2005
• Docket Number: No. 3:02CV343-MCK.,3:02CV343-MCK.
• Citation: 394 F.Supp.2d 773
• Parties: Jerome GARY, Plaintiff, v. FREIGHTLINER, Defendant
• Court: U.S. District Court — Western District of North Carolina

394 F.Supp.2d 773

Jerome GARY, Plaintiff, v. FREIGHTLINER, Defendant

No. 3:02CV343-MCK.

United States District Court, W.D. North Carolina, Charlotte Division.

April 8, 2005.

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Romallus O. Murphy, Greensboro, NC, for Plaintiff.

Keith M. Weddington and Kristi Kessler Walters, Parker, Poe, Adams & Bernstein, Charlotte, NC, for Defendant.

ORDER

VOORHEES, District Judge.

THIS MATTER IS BEFORE THE COURT for ruling on Defendant's Motion for Summary Judgment (doc. 20); the Memorandum in Support (doc. 22); Plaintiff's Response (doc. 25) and the Reply (doc. 28).¹

I. Factual and procedural background

Plaintiff Jerome Gary filed this complaint alleging that his former employer, Defendant Freightliner, wrongfully discharged and retaliated against him because of his race and age in violation of Title VII of the Civil Rights Act of 1964, as amended, Section 1981 of the Civil Rights Act of 1866, and the Age Discrimination in Employment Act ("ADEA"). Regarding the ADEA claim, in his Response to the Motion for Summary Judgment, Plaintiff states that he "abandon's [sic] this claim" (doc. 25, p. 6). Accordingly, only the wrongful discharge and retaliation claims will be addressed in this Order. For the following reasons, the motion for summary judgment is granted.

Defendant hired Plaintiff in 1991 to work as a painter in Defendant's Mount Holly truck manufacturing plant. Plaintiff is an African-American male. Defendant terminated Plaintiff on April 3, 2001, for insubordination and failure to comply with a direct order.

During his employment with Defendant, Plaintiff received a number of disciplinary warnings. In addition to warnings received for absenteeism and tardiness, Plaintiff was suspended in 1993 for insubordination for failure to obey a direct order. At that time, Plaintiff was warned that future similar incidents would result in progressive discipline to include termination.

At the time of Plaintiff's employment, employees at the Mount Holly plant were represented by the United Auto Workers Union under a collective bargaining agreement ("CBA"). Under the CBA, Plaintiff was one of several Freightliner employees elected by the employees to serve as a union representative. As a union representative, Plaintiff investigated and filed grievances on behalf of his fellow employees. It is undisputed that, under the terms of the CBA and the policies at Freightliner, failure to follow a direct order from a supervisor (unless to do so would be unsafe or illegal) is insubordination which may lead to termination.

Plaintiff was a concededly aggressive representative who was criticized by the UAW's International Representative for burdening Freightliner's grievance procedure by filing multiple grievances regarding the same complaint or incident. For example, Plaintiff filed 49 grievances regarding employee Doris McGill whose request for the hiring of an additional employee to help her do her job was refused. In over 49 grievances filed regarding this one incident, Plaintiff claimed that McGill was refused the additional assistance because she was black. Plaintiff refused to quit filing multiple grievances despite the UAW directing him to stop. Accordingly, to deal with the burden on the grievance system caused by Plaintiff's unwillingness to follow the directive of his own Union, the UAW and Freightliner were forced to devise a procedure whereby they would select and address a single grievance which was representative of any set of multiple grievances filed by Plaintiff.

On March 26, 2001, Plaintiff went to talk with several employees in the aisle way of Supervisor Darrell Reid's area. Mr. Reid is African-American. After Plaintiff had been in the aisle way for some time, Mr. Reid told him that he was disrupting the line because employees kept leaving their stations to talk with Plaintiff. Mr. Reid asked Plaintiff to leave. Plaintiff refused, indicating that he was conducting union business and would remain in Mr. Reid's area. Following further discussions with Plaintiff, Mr. Reid gave him a direct order to leave. Plaintiff refused. Plaintiff argued with Mr. Reid and demanded that the shift manager, David Duty, (who is white) be called to discuss the situation. When Mr. Duty arrived, Plaintiff admitted that he had been given a direct order by Mr. Reid to leave and refused. Plaintiff then demanded to know whether the order for him to leave constituted a "unilateral change" in standard procedure whereby a union representative would not be allowed to stand in the aisle way and take notes after interviewing an employee. To diffuse the situation, Mr. Duty instructed Plaintiff to go to the union office. Plaintiff refused, telling Mr. Duty that "Duty, you are nobody's daddy so don't tell me to go to the union office like some kid." (Plaintiff Dep., Ex. 20). Mr. Duty instructed Mr. Reid to give Plaintiff another direct order to leave the aisle way. Mr. Reid gave Plaintiff another direct order. Plaintiff refused and was suspended following investigation.

The investigation involved the Human Resources Manager, the Labor Relations Manager, and the Personnel Specialist. Plaintiff was represented by the Vice President of the local UAW and another union committee person. After the investigation, Plaintiff was terminated for insubordination. Plaintiff appealed and the Union filed a grievance on his behalf to contest his termination which was denied. Plaintiff's grievance was ultimately referred to arbitration. Neither Plaintiff nor the Union mentioned race or age discrimination during the grievance and arbitration procedures. Instead, they argued that Plaintiff was terminated for participating in Union activity. The arbitrator ruled in favor of Defendant, finding that Plaintiff disobeyed a direct order and had a history of disobeying direct orders in the past. Plaintiff appealed the arbitrator's decision to the Regional Director of the NLRB who upheld the arbitrator's decision. Plaintiff appealed that decision to the NLRB's Office of Appeals. That appeal was also denied and the NLRB charge brought by the Union was ultimately dismissed.

Following his unsuccessful arbitration of the matter, Plaintiff filed an EEOC charge against Defendant. In the EEOC charge, Plaintiff claimed for the first time that he was discriminated against on the basis of race and age. Plaintiff then filed an EEOC charge against the Union, claiming that it discriminated against him on the basis of race and age in failing to represent him properly during the grievance and arbitration process. Both charges were dismissed by the EEOC. Plaintiff then asked the EEOC to reconsider its dismissal of the charge against Defendant. The EEOC responded that no evidence was overlooked nor misinterpreted in evaluating the charge. Following the issuance of a "right-to-sue" letter from the Equal Employment Opportunity Commission, Plaintiff filed this action against Freightliner, alleging discrimination on the basis of race and age.

For the following reasons, this Court finds that summary judgment should be granted in favor of Defendant.

II. Summary Judgment Standard

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the initial burden of identifying the materials which demonstrate the absence of a genuine issue of material fact, but the moving party need not negate the adverse party's claim. Celotex Corp v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of material fact if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case on which the party will bear the burden of proof at trial. Id. at 322-23, 106 S.Ct. 2548. In evaluating whether a dispute about a material fact is genuine, the court must determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505. Although the court must view the evidence in the light most favorable to the nonmoving party, Rule 56 does not relieve the non-movant of the responsibility to rebut the motion and the burden of producing evidence that would support a jury verdict. Id. at 256, 106 S.Ct. 2505.

Summary judgment is not inappropriate in discrimination cases simply because they involve issues of intent and motive. Edwards v. Norfolk S. Corp. 872 F.Supp. 277, 280 (W.D.Va.), affd., 42 F.3d 1385, 1994 WL 681097 (4th Cir.1994).

A plaintiff when faced with a motion for summary judgment cannot rely on attenuated possibilities that a jury would infer a discriminatory motive, but rather must come forward with sufficient evidence to establish a prima facie case and respond sufficiently to any rebuttal by the defendant to create a genuine issue of material fact. Even where a prima facie case has been established but the defendant has rebutted with a proffer of legitimate, non-discriminatory reasons for the [adverse employment action] a genuine issue of material fact is not automatically presented.

McDaniel v. Mead Corp., 622 F.Supp. 351, 355 (W.D.Va.1985), aff'd. 818 F.2d 861 (4th Cir.1987) (quoting Pace v. Southern Ry. Sys., 701 F.2d 1383, 1391 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983)). The Fourth Circuit has clearly held...