Wagner v. Merit Distribution

• Decision Date: 10 August 2006
• Docket Number: No. 04-2696 B.,04-2696 B.
• Citation: 445 F.Supp.2d 899
• Parties: Charles WAGNER, Plaintiff, v. MERIT DISTRIBUTION, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

445 F.Supp.2d 899

Charles WAGNER, Plaintiff, v.MERIT DISTRIBUTION, et al., Defendants.

No. 04-2696 B.

United States District Court, W.D. Tennessee, Western Division.

August 10, 2006.

COPYRIGHT MATERIAL OMITTED

Charles A. Sevier, James E. King, Jr., Eskins King, PC, Memphis, TN, for Plaintiff.

John W. Simmons, Jonathan E. Kaplan, Kiesewetter Wise Kaplan Schwimmer & Prather, Memphis, TN, Roland M. Lowell, Bruce Weathers Corley & Lyle, Nashville, TN, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFEDANTS' MOTIONS FOR SUMMARY JUDGMENT

BREEN, District Judge.

INTRODUCTION

This lawsuit has been brought by the Plaintiff, Charles Wagner, against the Defendants, Merit Distribution, Inc.("Merit"); James Austin, Sr.("Austin Sr."); James Austin, Jr.("Austin Jr."); and Austin Truck & Trailer Repair Center, LLC("Austin Truck") pursuant to 42 U.S.C. § 1981.Specifically, the Plaintiff, an African-American, alleges that he suffered from race discrimination in the form of disparate treatment, was subjected to a racially hostile work environment, and was ultimately terminated because he complained of discriminatory treatment.In addition to his federal claim, Wagner also seeks damages for intentional infliction of emotional distress under Tennessee state law.The Defendants, in separately filed motions, seek summary judgment under Rule 56 of the Federal Rules of Civil Procedure.Defendants Merit, Austin Sr. and Austin Jr. request disposition as to all claims, while Austin Truck seeks partial summary judgment on Wagner's § 1981 discharge and state law claim.

STANDARD OF REVIEW

Rule 56(c) provides that a

. . . 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 a judgment as a matter of law.

Fed.R.Civ.P. 56(c);seeCelotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(1986);Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc.,862 F.2d 597, 601(6th Cir.1988).In reviewing a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538(1986).When the motion is supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on her pleadings but, rather, must present some "specific facts showing that there is a genuine issue for trial."Celotex,477 U.S. at 324, 106 S.Ct. at 2553.It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co.,475 U.S. at 586, 106 S.Ct. at 1356.These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202(1986).Summary judgment must be entered "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,477 U.S. at 322, 106 S.Ct. at 2552.In this circuit, "this requires the nonmoving party to `put up or shut up'[on] the critical issues of [his] asserted causes of action."Lord v. Saratoga Capital, Inc.,920 F.Supp. 840, 847(W.D.Tenn.1995)(citingStreet v. J.C. Bradford & Co.,886 F.2d 1472, 1478(6th Cir.1989)).The "judge may not make credibility determinations or weigh the evidence."Adams v. Metiva,31 F.3d 375, 379(6th Cir.1994).

FACTS AND PROCEDURAL BACKGROUND

The following facts are undisputed unless otherwise noted.Austin Truck is a Tennessee limited liability company operated by Austin Jr. and owned by Melanie Austin, Austin Jr.'s wife.Austin Jr. was responsible for hiring, firing and supervising employees at Austin Truck.The Plaintiff was employed by Austin Truck from July through October 2003 as a "clean up and iron man."He was supervised by Austin Jr. and Mike Vick, a diesel mechanic.

Although denied by Austin Jr., it is the Plaintiff's position that he complained to Austin Jr. on three Occasions concerning Vick's repeated use of the word "nigger" with respect to him and asked Austin Jr. to speak to Vick.Wagner claims that, on one occasion during the second or third month of his employment with Austin Truck, Vick told him that he was "one of the slowest niggers he ever met in his life" while the Plaintiff was changing the oil in a truck.Wagner told Austin Jr., who could hear the remark, that "[m]an, you need to talk to Mike because I don't play racism, you know."According to the Plaintiff, Austin Jr. merely laughed, shrugged his shoulders and giggled.

Around the end of the third month or middle of the fourth month of his employment, Vick stated to Wagner to "[g]o get the part, nigger" or "[n]igger, we got some parts for you to pick up at K-Mart."The Plaintiff again requested that Austin Jr. speak to Vick because he did not appreciate the comment, which offended him.Austin Jr. again responded with a shrug and a laugh and nothing else.Wagner approached Austin Jr. a third time after being slapped by Vick.Vick tapped the Plaintiff on the shoulder and, when he turned around, slapped him with one hand.Vick then said, "[y]ou don't like that, I will slap you with two hands," and proceeded to slap the Plaintiff on both cheeks.When he complained about the incident to Austin Jr., his employer said, "Charlie, if you can't take a fucking joke, you need to find another job."The Plaintiff also claims that Vick displayed a confederate flag in his work area and that he mentioned the large size of the flag to Austin, Jr.There is no indication, however, that he perceived anything racial about the display.Austin, Jr. denies that Wagner ever complained about racial harassment or about Vick.He also denies making the statement attributed to him by Wagner or hearing Vick use the word "nigger" in the workplace.

Wagner was fired on November 2, 2003 because, according to the Defendants, he failed to finish washing a truck.The Defendants aver that on the preceding afternoon he asked to leave early to do something with his family.Austin Jr. agreed on the condition that the wash be completed before the customer arrived the next morning.By 10:00 a.m. the following day when the customer called, the truck had not been washed.Austin Jr. completed the job himself and fired Wagner that evening for failure to report to work or to follow instructions.

The Plaintiff alleges that he spoke with a representative of the Equal Employment Opportunity Commission(the "EEOC") concerning the slapping incident and was discharged a week or two later.He contends that he arrived at work at 8:00 a.m. Sunday morning to wash the truck but that the pressure washer was not operating properly.He telephoned Austin Jr. who instructed him to contact Patrick Perry for advice on how to repair it.Wagner maintains that Perry told him he did not work for Austin Truck and was not going to get out of bed for anyone.He called Austin Jr. back and was directed to "shut down the building, clock out and go to the house," which he did.The Plaintiff alleges he did not hear from Austin Jr. again until he was fired later in the day.It is the Defendants' position that the power washer used by Austin Jr. to complete the wash was the same one Wagner claimed was broken.According to the Defendants, at the time of his termination, neither Austin Jr. nor anyone else at Austin Truck was aware Wagner had filed an EEOC claim, which was dated December 8, 2003.

POSITIONS OF THE PARTIES AND ANALYSIS

The Statutory Provision and Elements of the 1981 Claim.

Section 1981, in relevant part, provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ..."42 U.S.C. § 1981(a).The statute is applicable to claims of racial discrimination in the employment context.SeeNoble v. Brinker Int'l, Inc.,391 F.3d 715, 720(6th Cir.2004), cert. denied,___ U.S. ___, 126 S.Ct. 353, 163 L.Ed.2d 62(2005).The Sixth Circuit has instructed that "[t]he elements of a prima facie case as well as the allocations of the burden of proof are the same for employment claims stemming from Title VII¹ and § 1981."²Id.(citations and internal quotation marks omitted).A discrimination claim may be shown by direct or circumstantial evidence.White v. Columbus Metro. Hous. Auth.,429 F.3d 232, 238(6th Cir.2005).In cases, such as that at bar, where there is a lack of direct evidence,

the well-established [McDonnell Douglas v. Green,411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973), andTexas Department of Community Affairs v. Burdine,450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207(1981)] burden-shifting framework applies to claims of discrimination brought under Title VII[and]§ 1981.To establish a prima facie case of ... racial discrimination under [McDonnell Douglas], [a plaintiff] must demonstrate that (1)[he] is a member of a protected class, (2)[he] was subjected to an adverse employment action, (3)[he] was qualified, and (4)[he] was treated differently than similarly-situated . . . nonminority employees for the same or similar conduct.If [the plaintiff] sustains [his] burden of establishing a prima facie case, the burden then shifts to [the defendant] to articulate a legitimate, nondiscriminatory reason for [the adverse action].If [the defendant] successfully carries its burden, the burden returns to [the plaintiff] to produce evidence from which...