Mason v. Mitchell's Contracting Serv., LLC

• Decision Date: 12 September 2011
• Docket Number: Civil Action No. 10–411–CG–B.
• Citation: 816 F.Supp.2d 1178
• Parties: Wayne MASON, Plaintiff, v. MITCHELL'S CONTRACTING SERVICE, LLC, Defendant.
• Court: U.S. District Court — Southern District of Alabama

816 F.Supp.2d 1178

Wayne MASON, Plaintiff,

v.MITCHELL'S CONTRACTING SERVICE, LLC, Defendant.

Civil Action No. 10–411–CG–B.

United States District Court,S.D. Alabama,Southern Division.

Sept. 12, 2011.

Cynthia Forman Wilkinson, Birmingham, AL, for Plaintiff.

Rickman Edgar Williams, III, Pitts & Pitts, Selma, AL, E. Barry Johnson Parker, J. Walton Jackson, Maynard Cooper & Gale P.C., Mobile, AL, for Defendant.

ORDER

CALLIE V.S. GRANADE, District Judge.

This matter is before the court on defendant's motion for summary judgment. (Doc. 37). The parties have filed briefs and evidentiary materials in support of their respective positions (Docs. 38, 41, 47, 48, 50, 55, 58, and 61), and the motion is now ripe for resolution. After careful consideration of the foregoing, the court concludes that the motion is due to be GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND

The defendant, Mitchell Contracting Service, LLC (“MCS”), is a small civil contracting company located in Catherine, Alabama, and is engaged primarily in dirt, paving, and septic work. (Doc. 41–2, p. 2). MCS is owned by Primm Mitchell (“Mitchell”) and employs approximately eight to ten people. Id.

There are several categories of employees at MCS: (1) truck drivers, (2) laborers, and (3) equipment operators, as well as a supervisory superintendent. Id., (Doc. 47, p. 3). Mitchell makes all human resource decisions at MCS, including each employee's rate of pay, which he bases on each employee's experience, performance, attendance, seniority, attitude, and initiative. Id.

The plaintiff, Wayne Mason (“Mason”), is an African American male from Safford, Alabama. (Doc. 1, p. 2). MCS hired Mason as a dump truck driver in approximately June 2004. (Doc. 41–2, p. 4).

Mason paints a dismal picture of the atmosphere at MCS. Specifically, Mason asserts that Mitchell routinely addressed African American employees as “nigger,” “motherfuckers,” and “boy,” and used additional, unspecified profanity to “speak down” to African American employees. (Doc. 1, pp. 4–5). Mason further claims that Mitchell stated that he did not want African Americans working for him, but that he did not have a choice in the matter, and that he also once stated that he purchased a two million dollar insurance policy because he knew that he would eventually “get caught” calling African Americans “niggers” and “bastards.” Id. Mason also relates an incident that he claims took place in approximately 2006, when he took the day off from work in observance of the national holiday marking Martin Luther King, Jr., Day. Id. at p. 4. Upon returning to work the following day, Mason alleges that Mitchell told him, “they should have killed four more niggers, and you would have had the whole week off.” Id.

More generally, Mason alleges that African American employees were given the least desirable jobs at MCS and that they were given the oldest, most deteriorated trucks to drive. Id. at 5. Mason also claims that when business at MCS was slow and there was not enough work for all employees, he and other African American truck drivers were always the first employees to be sent home while white employees were allowed to continue working. Id. Furthermore, Mason alleges that African American employees were paid less than white employees. Id.

On the evening of Sunday, November 9, 2008, Mason called his supervisor at MCS, Terry Wilkerson (“Wilkerson”), to let him know that he was sick and would not be at work the following day. (Doc. 38–4, p. 6). Mason did not call MCS again and did not go to work at all the following week, from Monday, November 10, through Friday, November 14, (Doc. 41–2, p. 4). Wilkerson did not tell Mason to call when they spoke on Sunday night. (Doc. 38–4, p. 7), (Doc. 50–3, p. 41). Wilkerson noted “sick” on Mason's timesheets for November 10 through the 13. (Doc. 38–4, p. 7). The next day, Friday, November 14, started a new week for MCS's bookkeeping, and Wilkerson, not having heard from Mason, wrote “no show” on Mason's timesheet. (Doc. 38–4, p. 7).

The parties dispute what happened next, and therefore the court views the facts in the light most favorable to the non-moving party, Mason. The following week, Mason called MCS and spoke to Wilkerson again. (Doc. 50–3, p. 41). Mason told Wilkerson that he was still sick and needed to take “a couple” more days off from work, to which Wilkerson replied that if Mason needed to take more time, then he should go ahead and take the time off. Id. at p. 44.

Several days after this second conversation between Mason and Wilkerson, Mitchell called Mason and told him to turn in his uniform and company-issued cell phone. Id. at p. 44. Mitchell did not explicitly say that Mason was fired, but according to Mason, it was obvious from the tenor of the conversation. Id. at p. 45. Mason thinks that Mitchell told him the reason for his termination was that Mason was sick and could not work, but also states that he has difficulty remembering the conversation clearly. (Doc. 38–3, p. 29). Rather than turn in his uniform and cell phone in person, Mason gave them to fellow MCS employee Jack Moore, who turned them in to MCS. Id. at 46.

On May 5, 2009, Mason filed a charge of discrimination with the EEOC, alleging that he had been subjected to “racial harassment and racial comments” by Mitchell during his employment at MCS; that he had been treated differently than similarly situated white drivers; and that he was terminated after Mitchell told him to turn in his uniform and cell phone because he was sick and could not work. (Doc. 48–19, p. 2).

II. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” The trial court's function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir.2002) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–250, 106 S.Ct. 2505. (internal citations omitted).

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251–252, 106 S.Ct. 2505. The moving party bears the burden of proving that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir.2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999). “If reasonable minds might differ on the inferences arising from undisputed facts, then [a court] should deny summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d 1532, 1535 (11th Cir.1989) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985)).

Once the movant satisfies his initial burden under Rule 56(a), the nonmoving party “must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial.” Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Otherwise stated, the nonmovant must “demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The non-moving party “may not rely merely on allegations or denials in its own pleading; rather, its response .... must set out specific facts showing a genuine issue for trial.” Vega v. Invsco Group, Ltd., 432 Fed.Appx. 867, 870 (11th Cir.2011). “A mere ‘scintilla’ of evidence supporting the [non-moving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citation omitted). “[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole.” Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998 (11th Cir.1992). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation and citation omitted).

III. LEGAL ANALYSIS

A. Judicial Estoppel

Mason filed a Bankruptcy Petition on June 23, 2010. (Doc. 38–7). However, he did not disclose his pre-existing EEOC claim as required on either the Petition's Debtor's Schedules (“Schedules”) or the Statement of Financial Affairs (“SFA”).¹ Likewise, Mason did not amend his Petition to add his discrimination claim until January 28, 2011—almost seven months after filing suit in this case. (Doc. 38–9). MCS claims that Mason cannot bring his claim before this court because the doctrine of judicial estoppel prevents him from pursuing a racial discrimination claim in the District court, having sworn to the Bankruptcy court that no claims existed. (Doc. 41–1, p. 3).

1. Statement of the Law

“Judicial estoppel is an...