Mack v. Colorworks Painting Co.

Decision Date21 October 2015
Docket NumberCase No. 2:13–cv–02263–HGD
Citation140 F.Supp.3d 1210
Parties Xavier Mack, Plaintiff v. Colorworks Painting Company, LLC, et al., Defendants
CourtU.S. District Court — Northern District of Alabama

Gregory O. Wiggins, Kevin W. Jent, Wiggins Childs Pantazis Fisher & Goldfarb, Birmingham, AL, for Plaintiff.

Scott Alan Gilliland, Vestavia Hills, AL, for Defendants.



This matter is before the undersigned U.S. Magistrate Judge based on the consent of the parties pursuant to 28 U.S.C. § 636(c). On December 17, 2013, plaintiff, Xavier Mack, filed suit against his former employer, Colorworks, LLC (Colorworks), and the sole shareholder of the LLC, Eric Birchfield, alleging that he was terminated from his employment on December 3, 2013, based on his race, in violation of 42 U.S.C. § 1981. (Doc. 9, Amended Complaint).

Motions for summary judgment have been filed by Birchfield (Doc. 17) and Colorworks (Doc. 22). A response to these motions has been filed by plaintiff (Doc. 26), and a joint reply was made by defendants. (Doc. 28). These motions are now ready for disposition.

In his amended complaint, Mack, an African-American, alleges that he was employed by defendant Colorworks from February 2010 until his termination/layoff. According to plaintiff, at the time of his termination/layoff, defendants retained a white male employee who had been employed for only three weeks; whereas, plaintiff had been employed for approximately two years and nine months. (Doc. 9, Amended Complaint). Plaintiff alleges that he performed his duties and responsibilities in a satisfactory manner and that the proffered reasons for his termination were a pretext for race discrimination in violation of 42 U.S.C. § 1981. (Id. ).


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. Rule 56(a). Defendants, as the parties seeking summary judgment, bear the initial responsibility of informing the district court of the basis for their motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrates the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). A genuine issue of material fact is shown when the non-moving party produces evidence so that a reasonable factfinder could return a verdict in his favor. Greenberg v. BellSouth Telecomms., Inc ., 498 F.3d 1258, 1263 (11th Cir.2007). If the non-moving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to summary judgment. Celotex , 477 U.S. at 323, 106 S.Ct. 2548. In reviewing whether the non-moving party has met his burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter; the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Tipton v. Bergrohr GMBH – Siegen , 965 F.2d 994, 998–99 (11th Cir.1992). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard's, Inc ., 419 F.3d 1169, 1181 (11th Cir.2005). A "mere scintilla of evidence" in support of the non-moving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay , 358 F.3d 859, 860 (11th Cir.2004).


Plaintiff met Colorworks owner Eric Birchfield in around 2006 or 2007. Colorworks does commercial and residential painting. (Birchfield Depo. at 11). Mack worked for Colorworks as a painter on a part-time basis from 2006/2007 until 2011. (Mack Depo. at 10, 21). At the time Mack began working for Colorworks on a part-time basis, Colorworks had five employees: Chris Riley, Chris Hawkins, Felix Hill, Christoff Bradley and Jonathan McElwane, a/k/a "Peewee." All of these employees are Caucasian, except for Hill who is African-American.

Mack was hired on as a full-time employee on March 11, 2011. (Mack Depo. at 12, 65 and Ex. 4; Birchfield Depo. at 40). After Mack was hired to work full-time, he was predominantly supervised by Felix Hill or Christopher Hawkins. (Mack Depo. at 21). Mack had keys to the Colorworks office, the shop where the tools were stored, and Color works' vans. Only Mack, Hill and Christof had sets of keys. (Id. at 45–46). Mack also had a Colorworks credit card. Only Mack and Christof had a Colorworks credit card. (Mack Dep. at 46-47).

On or about December 3, 2013, plaintiff was informed that he did not need to report to work because work was slow. However, upon driving by Colorworks' place of business, plaintiff noticed that all employees had reported to work, including a white employee who had been with the company for a very short period of time. Plaintiff asserts that he questioned Birchfield about this by text messaging and was simply told "that's the way it is." When Mack stated that he did not understand this, he alleges that Birchfield responded by asking Mack if he understood that joking and laughing at the boss with other employees was detrimental to his job. Mack states he had no idea to what Birchfield was referring. (Mack Depo. at 26-28). Shortly after this exchange, Mack filed the instant lawsuit. Defendant Birchfield asserts that he had a number of good reasons for terminating Mack. A number of these events are disputed by plaintiff.

Birchfield alleges that, in early October 2013, he pulled up on a job site and caught Mack standing in the driveway talking on his telephone while the rest of the crew was painting. (Birchfield Depo. at 55). Plaintiff, however, asserts that Birchfield never caught him talking on his cell phone while the rest of the crew was working. (Plaintiff's Ex. A, Decl. of Xavier Mack (Mack Decl.)).

Birchfield further alleges that the following day, he pulled up to the same job site and found Mack sitting in the work van while the rest of the crew was painting. (Birchfield Depo. at 56). Plaintiff, however, asserts that this event never happened. (Mack Decl.).

Birchfield claims that he had previously reprimanded Mack for leaving a job site early after he had instructed the crew that Mack was working on not to leave until the job was finished. Mack responds that Birchfield did reprimand him on one occasion for leaving a job in Harpersville, Alabama. However, he points out that Birchfield has admitted that plaintiff was only a painter and never a lead man and that the two lead men who were plaintiff's supervisors made the decision to leave the job early on that day. Although not a supervisor, plaintiff was the only person reprimanded by Birchfield on this occasion. (Mack Depo. at 34-36).

It is also alleged by Birchfield that he came by a job site on one occasion and found Mack sitting in a van eating a sandwich while the rest of the crew was working, and there were other occasions when Birchfield would come to a job site and find Mack taking a break while the rest of the crew was working. He alleges that Mack understood that Colorworks had a rule requiring everyone to take breaks and lunch at the same time.

However, a review of the testimony cited by defendants reflects that Mack advised that everyone "pretty much" took breaks at the same time but that there were occasions when he had to do his job after the others had finished their parts of the job, such that there were occasions when he might take a break 10 or 15 minutes later than the others. (Mack Depo. at 26-38). Birchfield admits that Colorworks had no written policies of any sort. (Birchfield Depo. at 35).

According to Birchfield, Mack was late in returning from lunch on Thanksgiving Eve, 2013. He alleges that he pulled Mack aside and spoke to him about returning late from lunch. Thereafter, Birchfield called in the whole crew to discuss the matter.

Plaintiff responds that, on this occasion, plaintiff's supervisors had decided to take an hour for lunch and that he was simply following the orders from his supervisors. (Mack Depo. at 28-30). Mack states that he asked Birchfield why he was not having this discussion with the entire crew, rather than just him. As a result, Birchfield called the entire crew in and they came up with an agreement regarding how long they would take for lunch. (Id. at 27–34). Birchfield admits that this is the only occasion of which he is aware where Mack took an extended lunch. (Birchfield Depo. at 52).

Birchfield asserts that after this meeting, he left the job site, but returned about five minutes later because he had forgotten something. When he came in the room, Mack was in the room with two other employees mocking Birchfield and making fun of his speech that he gave them. (Birchfield Depo. at 52). Mack denies that he did this. (Mack Depo. at 28).

There were also other incidents about which Birchfield testified when he pulled up on job sites to find plaintiff not working. He also alleges that Mack was insubordinate and hung up the phone on him at least ten times and was frequently tardy for work. Plaintiff denies that any of these events occurred. (Mack Decl., ¶¶ 5-10).

Mack alleges that Colorworks terminated him on the Monday after Thanksgiving, 2013. (Mack Depo. at 23).1 He believes his termination was based on Birchfield's claim that he saw Mack mocking him a few days earlier and other incidents when he found plaintiff not working or taking unauthorized breaks. He denies that any of these incidents occurred.

Birchfield asserts that the testimony reflects that Mack never heard him or any of his supervisors at Colorworks use a racial slur. (See Mack Depo. at 50). He also notes that, while Mack was working...

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