Penn v. Usf Holland Inc.

• Decision Date: 16 November 2010
• Docket Number: Civil Action No. CV–09–S–00203–NE.
• Citation: 770 F.Supp.2d 1211
• Parties: Kevin PENN, Plaintiff,v.USF HOLLAND, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

770 F.Supp.2d 1211

Kevin PENN, Plaintiff,

v.USF HOLLAND, INC., Defendant.

Civil Action No. CV–09–S–00203–NE.

United States District Court, N.D. Alabama, Northeastern Division.

Nov. 16, 2010.

Eric J. Artrip, Rebekah Keith McKinney, Watson McKinney & Artrip LLP, Huntsville, AL, for Plaintiff.Joel R. Hlavaty, Kelly S. Lawrence, T. Merritt Bumpass, Jr., Thomas J. Piatak, Frantz Ward LLP, Cleveland, OH, Jonathan A. Hardage, U.S. Army Aviation & Missile Command Legal Office, Redstone Arsenal, AL, Warne S. Heath, Bradley Arant Boult Cummings LLP, Huntsville, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

C. LYNWOOD SMITH, JR., District Judge.

Plaintiff asserts claims against USF Holland, Inc., his current employer, under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), for disparate treatment, hostile work environment, and retaliation.¹ Defendant has moved for summary judgment as to all of plaintiff's claims.² Upon consideration of the parties' briefs and evidentiary submissions, the court concludes that defendant's motion for summary judgment is due to be granted. Plaintiff's motion to strike the report of defendant's expert will be denied as moot.³

I. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) ( en banc ) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995)). Inferences in favor of the non-moving party are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1983). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (asking “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”).

II. SUMMARY OF FACTS

Plaintiff, Kevin Penn (“Penn”), is an African–American male (“black”) who accepted a position as a “city driver” and occasional “dock worker” for defendant, USF Holland, Inc. (“Holland”), on November 26, 2005.⁴ Penn joined a union and became a bargaining unit employee.⁵ Holland is a regional transportation service provider that operates a terminal in Decatur, Alabama (“the Decatur Terminal”).⁶ So-called “city drivers” transport freight from the customer's location to the local terminal, where that freight is unloaded by dock workers and combined with other freight scheduled to travel a distance outside city operations.⁷ Outbound freight is transported outside the city by “linehaul drivers” who return with more inbound freight. ⁸ Dock workers load the inbound freight onto trailers for city drivers to deliver locally.⁹ While out on delivery, city drivers use radios to keep the terminal informed of their status.¹⁰ Drivers are expected to punch in a Nextel radio at every pickup stop.¹¹ This permits supervisors to make decisions regarding what outbound freight a city driver should pick up on his or her way back from dropping off local inbound freight.¹² The managers who oversee these operations are called “inbound supervisors” and “outbound supervisors.”

Tom Carl, a white male, became the overall manager at the Decatur Terminal shortly after Penn began work for Holland.¹³ The supervisors reporting to Carl were: Shane Luker, white male; Thomas Lightford, black male; Joey Norton, white male; and Ellen Conlin, white female.¹⁴ Randy Stephenson, white male, replaced Tom Carl as the manager at the Decatur Terminal in September of 2007.¹⁵ Stephen Blubaugh, a white male, is Holland's Vice President of Human Resources.¹⁶ Stacey VandeVusse, a white female, also serves in Holland's human resources department.¹⁷ Penn has voiced complaints to or about most of these individuals on numerous occasions. As a bargaining unit employee, Penn is entitled to dispute management's employment-related actions by filing “grievances.” ¹⁸

Shortly after Tom Carl became manager of the Decatur Terminal, he noticed a company vehicle at a Verizon cell phone store.¹⁹ Carl determined that it was Penn's work vehicle.²⁰ Carl went into the store, found Penn in line, and informed Penn that, according to the terminal, Penn was supposed to be “en route to a customer” at that time.²¹ Penn informed Carl that he was on his ten-minute break, and Penn believed that his radio reflected that fact.²² Penn was in the Verizon store for no more than ten minutes. ²³ Carl did not reprimand him, and there were no issues between Penn and the supervisors at the Decatur Terminal for the remainder of the year. ²⁴

In the Spring of 2007, however, Carl noticed Penn's work truck in a K–Mart parking lot.²⁵ After waiting for Penn to exit the store, Carl contacted Penn by radio and inquired as to his location.²⁶ While still in the K–Mart parking lot, Penn responded that he was traveling on Interstate 65, en route to a customer's location.²⁷ Carl believed he needed two eyewitnesses before taking disciplinary action, so he “decided to cut Penn another break.” ²⁸

On March 2, 2007, Ellen Conlin, the outbound supervisor at the time, noticed Penn talking on his cell phone while at work.²⁹ Penn was on his ten-minute break.³⁰ When Conlin confronted Penn, he told her that “he was on the phone with his wife and that he would get off the phone when he was done.” ³¹ An argument ensued, which disrupted work operations. ³² Conlin asked Penn to follow her to the mechanics' work bay to continue the conversation.³³ She explained to Penn that he had to either get off of the telephone, or request permission from a supervisor to use it.³⁴

On March 9, 2007, Penn took a cell telephone call at work that related to the recent death of one of his relatives.³⁵ The call happened to come while Penn was on his ten-minute break.³⁶ When the Decatur Terminal Manager, Tom Carl, confronted Penn, he “shushed [Carl] away with his hand and continued to walk down the dock, still on the phone....” ³⁷ Carl issued a written warning to Penn for using a cell telephone while on the dock, claiming it was a violation of company policy.³⁸ While the parties dispute whether there was a cell telephone policy in place at the time, there is no dispute that, “from that point on ... [Carl] put up the policy in which there was no cell phone uses [sic], including supervisors, for personal reasons.” ³⁹

There were times when Penn, like other drivers, would take a “little longer on his lunch break.” ⁴⁰ Thomas Lightford, an outbound supervisor, would generally give Penn and other drivers, some of whom were white, a verbal warning and “let it slide.” ⁴¹ That was not Carl's approach when Penn “went over [his] lunch period on March 9, 2007,” however. ⁴² Just before Penn took his lunch while on the road, a supervisor asked Penn to return to the terminal with freight.⁴³ Penn dropped his trailer off at the terminal and then, according to Penn, “it took [him] ten minutes to get to where [he] needed to go to eat, and ten minutes to get back, and [he] went over [his] lunch.” ⁴⁴ Carl claimed that Penn took a one and one half hour lunch, and that Penn attempted to justify this by claiming “his lunch that he took was only a half an hour ... it took him a half an hour to get to where he was going to eat, half an hour to eat lunch[,] and half an hour to come back, and that he could get a statement from the waitress if [Carl] desired.” ⁴⁵ Although the parties disputed the severity of Penn's tardiness, Carl offered to Penn, and Penn accepted, a three-day suspension in lieu of termination for the late lunch.⁴⁶ Carl waived the suspension, and Penn did not lose any work time or money.⁴⁷ Charles Oden, a white male, was once fifteen minutes late from his lunch, and Carl reprimanded him with a warning letter.⁴⁸

On March 12, 2007, Carl issued a written warning to Penn for failing to inform the terminal of a delay that lasted longer than twenty minutes, something Penn was required to report pursuant to company policy.⁴⁹ The terminal supervisors did not know, however, that Penn was unable to call in due to a lack of signal on his Nextel radio.⁵⁰ Penn's unreported delay, which spanned two hours, also was due to the “awkward shape[ ]” of the freight, which required Penn “to move freight around to get all the freight in.” ⁵¹

Carl began receiving complaints about Penn's work performance, including dissatisfaction regarding the amount of time Penn spent in performing his runs and picking up his loads, as well as a lack of communication from Penn. ⁵²...