Martin v. J.A.M. Distributing Co.

Decision Date13 July 2009
Docket NumberCivil Action No. 1:08-CV-298.
Citation674 F.Supp.2d 822
PartiesRichard C. MARTIN, Plaintiff, v. J.A.M. DISTRIBUTING COMPANY, Defendant.
CourtU.S. District Court — Eastern District of Texas

Melissa Ann Moore, Moore & Associates, Houston, TX, for Plaintiff.

Dawn Rachelle Tezino, Elizabeth Brandes Pratt, and Morris C. Carrington, Mehaffy & Weber-Beaumont, Beaumont, TX, for Defendant.

MEMORANDUM AND ORDER

MARCIA A. CRONE, District Judge.

Pending before the court is Defendant J.A.M. Distributing Company's ("J.A.M.") Motion for Summary Judgment (#36). J.A.M. moves for summary judgment on an action brought by Plaintiff Richard C. Martin ("Martin") alleging racial discrimination in employment and retaliation arising under the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 ("Section 1981"), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000h-6 ("Title VII"), and the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21.001-21.306 ("TCHRA"). Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment is not warranted.

I. Background

On September 9, 2003, Jonas Wolfe ("Wolfe"), the Area Manager for J.A.M.'s Beaumont, Texas, region, hired Martin, an African-American male, to work as a bobtail driver in J.A.M.'s Beaumont terminal. J.A.M. buys, sells, and transports fuel, oils, and lubricants throughout the United States, maintaining facilities in Houston, Beaumont, Galveston, Dallas, and Lufkin, Texas. In June 2007, J.A.M. trained Martin to become a transport driver. The responsibilities of such a position include picking up trailers of petroleum products from J.A.M.'s customers and delivering them to its storage facilities for unloading into storage tanks.

On Wednesday, June 27, 2007, James Bush ("Bush"), a Caucasian co-worker, dispatched Martin to pick up a trailer containing the lubricant DTE 26 from the ExxonMobil facility in Beaumont and to unload it into a tank of DTE 26 on J.A.M.'s premises for storage purposes. Upon his return, Martin and Bush completed a Tank Farm Unloading Checklist required by J.A.M. for the purpose of identifying the driver unloading the lubricant, in this case, Martin, and the supervising employee, referred to as the spotter, Bush, and to confirm that the unloading occurred at the proper location and in accordance with company guidelines. As the spotter, Bush was required to serve as a secondary check by verifying that the correct trailer was brought to the J.A.M. premises and that the correct product was unloaded into the storage tank by taking a sample of the lubricant. Although Bush signed the bottom of the checklist confirming that Martin had transported the correct trailer, approximately twenty-five to thirty minutes later, Martin discovered that he had picked up the wrong trailer and subsequently cross-contaminated two different products. Martin immediately notified Bush of the mistake. At that time, Bush called their supervisor, Wolfe, to inform him of the cross-contamination. Wolfe told Martin and Bush that he would meet with them the next day to discuss the incident.

The following day, June 28, 2007, Wolfe met with Martin and Bush to talk about the cross-contamination. During the meeting, Wolfe suspended Martin without pay for two days — June 28 and June 29, 2007. Additionally, Wolfe filled out a Notice of Disciplinary Suspension for Martin, which Bush signed as a witness. According to Martin, Wolfe did not issue Bush any type of disciplinary action at the meeting.1 Martin contends that, at the end of the meeting, he reminded Wolfe that he would be out on vacation for the week of July 4, 2007, and that Wolfe verbally approved his vacation at this time. Wolfe maintains that he told Martin he could not accommodate his request, indicating that he would approve Martin's vacation for only July 5 and July 6, 2007.

On Friday, June 29, 2007, Martin called J.A.M.'s Safety Director Owen Olson ("Olson") to report what he perceived to be disparate treatment between himself and Bush. Martin expressed his dismay that Bush had not been suspended following the cross-contamination incident, when both he and Bush admitted they shared responsibility for the occurrence. Subsequently, Olson reported the complaint to Wolfe and Cindy Garbutt ("Garbutt"), J.A.M.'s Human Resource Manager.

Martin failed to report to work for the week of July 2 through July 6, 2007. Martin alleges that he spent this week on vacation with his family and that he called his supervisor's office to check in on Monday, July 2, 2007, and Tuesday, July 3, 2007. Martin further maintains that on July 2, 2007, Wolfe instructed Bush to remove Martin from the work schedule for July 3, 2007, and not to place him back on the schedule until further notice. J.A.M. concedes that Wednesday, July 4, 2007, was a company holiday in observance of Independence Day, on which Martin was not scheduled to work, and that Martin was approved for vacation on July 5 and 6, 2007. Thus, for the week of July 2, 2007, J.A.M. asserts that Martin failed to call or report to work only on July 2 and 3, 2007.

Martin also failed to report to work on Monday, July 9, 2007. In explaining his absence, Martin claims that on July 8, 2007, he called Wolfe's cellular telephone to notify him of the death of his childhood friend's grandmother, Madea. According to Martin, he received Wolfe's permission to miss work on the following day, July 9, 2007. To the contrary, Wolfe asserts that Martin never received permission to miss work on July 9, 2007.

Following his return to work, on July 10, 2007, J.A.M. maintains that Wolfe terminated Martin for his failure to report to work on three consecutive work days — July 2, 3, and 9, 2007, in violation of J.A.M.'s Tardiness and Absenteeism Policy. Specifically, the policy provides:

Regular attendance on the job is important to J.A.M. Distributing Company's operations. Frequent or unexplained absences from work, or tardiness in reporting for work, will seriously affect an employee's performance and evaluation. As a result, J.A.M. will discipline employees for tardiness and absenteeism up to and including termination.

If an employee fails to report to work and does not notify his/her supervisor for three (3) consecutive days, the employee will be considered to have "voluntarily resigned" their duties and responsibilities as a J.A.M. employee.

(emphasis in original). Martin contends that despite his pleading with Wolfe to let him keep his job, Wolfe stated, "I can't find it in my heart to forgive you . . . for saying that I discriminated against you; and I'm going to have to terminate you."

In December 2007, Martin filed a charge of discrimination and retaliation with the Equal Opportunity Employment Commission ("EEOC"). On May 14, 2008, the EEOC issued Martin a Notice of Right to Sue letter. Subsequently, on May 29, 2008, Martin initiated this action, alleging that he was terminated because of his race and in retaliation for reporting acts of discrimination to J.A.M.'s Safety Department in violation of Section 1981, Title VII, and the TCHRA. In its Second Amended Answer, filed August 20, 2008, J.A.M. denies that Martin's termination was the result of any discriminatory or retaliatory conduct. On April 3, 2009, J.A.M. filed the instant motion seeking summary judgment on the claims asserted by Martin, arguing that he cannot establish a prima facie case of employment discrimination or retaliation and is unable to show J.A.M.'s reason for terminating his employment was a pretext for racial discrimination or retaliation.

II. Analysis
A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Warfield v. Byron, 436 F.3d 551, 557 (5th Cir.2006); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir.2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.2002).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); EMCASCO Ins. Co. v. American Int'l Specialty Lines Ins. Co., 438 F.3d 519, 523 (5th Cir.2006); Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004); Malacara v. Garber, 353 F.3d 393, 404 (5th Cir.2003). "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348); see Riverwood Int'l Corp. v. Employers Ins. of Wausau,...

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