GARRETT

v.

R.E. MICHEL COMPANY, LLC

This matter comes before the Court upon Defendant's Motion for Summary Judgment [Doc. 17], Plaintiff’s Amended Response in Opposition [Doc. 19], Defendant’s Reply [Doc. 21], and the Statement of Agreed Material Facts [Doc. 28]. In its motion, Defendant presents various grounds for summary judgment on Plaintiff’s claims for racial discrimination and retaliation. Having considered the motion and being fully advised in the premises, the Court will GRANT Defendant's Motion for Summary Judgment.

I. BACKGROUND AND FACTS1

Undisputed Material Facts

On December⁹, 2019, Plaintiff was supposed to drive from Orlando, Florida to the R.E. Michel branch in Jupiter, Florida, to make a delivery. Id. ¶ 6. He did not personally conduct a pre-trip inspection of his truck that morning. Id. ¶ 9. When he arrived at the branch in Jupiter, his trailer was locked and he did not have the pad lock keys. Id. ¶ 7. He was unable to complete the delivery that day. Id. ¶ 8. On December¹¹, 2019, Plaintiff met with his supervisor, Wayne Nanan; Floating Manager, Michael Muffett; and Branch 312 Manager, Steve Queen⁴ to discuss the failed delivery. Id. ¶ 10; Doc. 17-1 at p. 4 ¶ 27. During that meeting, concerns were raised that Plaintiff had taken an abnormally long time to reach the

Jupiter branch and his handwritten records did not match his ELD data or the Jupiter branch’s records. [Doc. 17-1 at p. 4 ¶ 31; Doc. 28 ¶ 11]. The next day, Plaintiff again met with Mr. Muffett and Mr. Queen.5 [Doc. 28 ¶ 12]. During that meeting, Mr. Muffett showed Plaintiff that there were multiple instances where the ELD tracked his vehicle as being “on-duty” but “not driving,” and where Plaintiff’s handwritten driver’s logs did not match his ELD records [Doc. 17-1 at p. 5 ¶¶ 34, 43]. Some of the

The day after, December 13, 2019, Plaintiff lodged written complaints of racial discrimination and disparate treatment. [Doc. 28 ¶ 14]. This was the first time he had lodged such complaints. Id. On December 16, 2019, he sent a supplemental letter with additional allegations. Id. ¶ 15. Taken together, the two letters make four allegations:

(1) two white employees had locked themselves out of their trucks but were not disciplined; (2) white employee Michael Rudd was not punished for stealing time by reporting to work at 5:00 am and waiting around on days he did not have a route assignment; (3) white employee William Casteel stole time by stopping at his home for lunch and was not punished; and (4) Mr. Casteel also stole time by getting a haircut while on-duty and was not punished. Id. ¶ 16.

On May 19, 2020, Plaintiff filed this action against Defendant in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. [Doc. 1-2; Doc. 1-1 at p. 3].

II. LEGAL STANDARD

Summary judgment is appropriate only when the court is satisfied that “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law” after reviewing the “pleadings, the discovery and disclosure materials on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). In determining whether a genuine issue of material fact exists, the Court must consider all the evidence in the light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F. 3d 1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a reasonable jury,

considering the evidence presented, could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986). A fact is “material” if it may affect the outcome of the suit under governing law. Id. The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court that there is “an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S. Ct. 2548. “Only when that burden has been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc., 929 F. 2d 604, 608 (11th Cir. 1991). “[I]n order to survive summary judgment, the nonmoving party must set forth specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian Ctr. Church, Inc., No. 19-11070, 2020 WL 5289881, at *3 (11th Cir. Sept.⁴, 2020) (citing Anderson, 477 U.S. at 249-50). “[U]nsupported ‘conclusory allegations’ do not suffice.” Middlebrooks v. Sacor Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019).

Likewise, “[a] ‘mere existence of a scintilla of evidence’ cannot suffice to create a genuine issue of material fact.” Johnson, 2020 WL 5289881, at *3 (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

Plaintiff has asserted that he was subjected to a racially disparate workplace and was retaliated against after he complained, in violation of § 1981. “§ 1981 ... has a specific function: It protects the equal right of ‘[a]ll persons within the jurisdiction of the United States’ to ‘make and enforce contracts’ without respect to race.” Moore v. Grady Mem'l Hosp. Corp., 834 F. 3d 1168, 1171 (11th Cir. 2016) (quoting Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474–75 (2006)).8 The statute “prohibits not only racial discrimination but also retaliation against those who oppose it.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 355 (2013) (citing CBOCS West, Inc. v. 8 The statute explains that “the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.A. § 1981(b). Humphries, 553 U.S. 442, 452–453 (2008)); Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F. 3d 1121, 1134 (11th Cir. 2020) (“Retaliation claims are also cognizable under 42 U.S.C. § 1981.”). The test for unlawful discrimination and retaliation in violation of

§ 1981 is the same as the formulation used in Title VII discriminatory treatment cases. Ferrill v. Parker Grp., Inc., 168 F. 3d 468, 472 (11th Cir. 1999) (addressing disparate treatment discrimination); Gogel, 967 F. 3d at 1134 (addressing retaliation claims). Under that framework, if a plaintiff establishes a prima facie case of discrimination or retaliation, and the employer articulates a legitimate, non-discriminatory or non-retaliatory reason for its employment action, then the plaintiff must show the reason proffered by the defendant was not the true one, but was more likely a pretext for discrimination or retaliation.

Wiggins v. Sec'y, Dep't of Army, 520 F. App'x 799, 800 (11th Cir. 2013). “Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the plaintiff.” Equal Employment Opportunity Comm’n v. Joe’s Stone Crabs, Inc., 296 F. 3d 1265, 1273 (11th Cir. 2002), cert. denied, 539 U.S. 941 (2003).9 A plaintiff can survive a defendant’s motion for summary

The Prima Facie Case The prima facie burden imposed on a plaintiff is to establish facts adequate to permit an inference of discrimination or retaliation. Lewis v. City of Union City, Georgia, 918 F. 3d 1213, 1222 (11th Cir. 2019) (“[A]t the prima facie stage the plaintiff must show a potential ‘winner’—i.e., enough to give rise to a valid inference that her employer engaged in unlawful intentional ‘discrimination.’ ”); see Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-254 (1981). By establishing a prima facie case, the plaintiff creates a rebuttable presumption of discrimination or retaliation. Corbin v. Southland Int'l Trucks, 25 F. 3d 1545, 1550 (11th Cir. 1994). a. Disparate Treatment

To establish a prima facie case for disparate treatment in a race discrimination case, the plaintiff must show that: (1) he is a member of a protected class; (2) he was subjected to an adverse employment action; (3) his employer treated similarly situated employees outside of his protected class more favorably than he was treated; and (4) he was qualified to do the job. Burke-Fowler v. Orange Cty., Fla., 447 F. 3d 1319, 1323 (11th Cir. 2006). Having reviewed the arguments and evidence presented, the Court agrees with Defendant that Plaintiff cannot establish a prima facie case as his comparators were not similarly situated. “[A] meaningful comparator analysis must be conducted at the prima facie stage of McDonnell Douglas’s burden-shifting framework.” Lewis, 918 F. 3d at 1218. “[A] plaintiff asserting an intentionaldiscrimination claim under McDonnell Douglas must demonstrate that [he] and [his] proffered comparators were ‘similarly situated in all material respects.’ ” Id. The quantity and quality of the comparator's misconduct must be nearly identical. Burke- Fowler, 447 F. 3d at 1323. In making the determination as to whether the employees are similarly situated, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways.

Silvera v. Orange Cty. Sch. Bd., 244 F. 3d 1253, 1259 (11th Cir. 2001). Here, the employees were not involved in the same or similar conduct. The undisputed evidence is that Plaintiff had been falsely reporting hours he spent stopped as time worked. None of the other drivers had falsified their daily logs. [Docs. 17-1 ¶¶ 31-34, 48, 60-63, 69; Doc. 17-6 ¶¶ 23-25, 31; Doc. 17-8 ¶ 34, 52]. Contrary to Plaintiff’s claim, the evidence indicates that Plaintiff’s coworker Michael Rudd did not steal time by arriving to work at 5:00 am because all drivers were required to report to work at that time every day except on Mondays. [Doc. 17-1 ¶ 62]. That coworker also did not steal time by eating or sitting in the breakroom after arriving at 5:00 am as all the drivers often got breakfast from nearby restaurants while waiting for their trucks to be loaded. Id. ¶ 63. Plaintiff’s conduct is also dissimilar to that of his comparator William Casteel, who stopped at his house during lunchtime and who once got a haircut during his lunch break, because that comparator did so during his unpaid, off-the-clock lunch break. [Doc. 17-1 ¶¶ 66-68; Doc. 17-6 ¶¶ 43-45; Doc. 17-8 ¶¶ 45-48]. Additionally, Plaintiff’s coworkers, William Casteel and Randy Dykes, did not forget their keys when making deliveries, but rather they locked their keys inside their trucks, which did not disrupt business. They were able to complete their deliveries that day. [Doc. 17-1 ¶¶ 50-59]. Plaintiff was unable to complete his delivery on December⁹, 2019 because he could not open his trailer, as he had left the keys to the pad lock at his home. [Doc. 17-1 ¶¶ 27-29]. Further, Plaintiff has provided no evidence that his other coworkers were treated more favorably.¹⁰ [Doc. 17-1 ¶¶ 60-61]. Hence, he cannot establish a prima facie case that he was subject to disparate treatment. b. Retaliation

“To establish a claim of retaliation under ... [§] 1981, a plaintiff must prove that he engaged in statutorily protected activity, he suffered a materially adverse action, and there was some causal relation between the two events.” Moore, 834 F. 3d at 1176 (quoting Goldsmith v. Bagby Elevator Co., Inc., 513 F. 3d 1261, 1277 (11th Cir. 2008)).

Defendant makes an argument only as to whether Plaintiff engaged in protected

Director. [Doc. 176 at pp. 48, 50]. In his first complaint, dated December 13, 2019, Plaintiff complained about the “increasingly discriminatory, hostile, and intimidating work environment” and alleged that he was treated differently from his white coworkers. Id. at p. 48. He also threatened to file a complaint with the Equal Employment Opportunity Commission. Id. He supplemented his complaint on

December 16, 2019, to further demonstrate the racial discrimination he experienced. Id. at p. 50. These allegations amply support the objective reasonableness of Plaintiff’s belief that he was being treated less fairly than his white coworkers and that he was suspended because of his race. Plaintiff’s complaint of discrimination here is similar to that of the plaintiff in Knox, which the court found was protected activity. See also Felder v. Bradford Health Servs., 493 F. App'x 17, 21 (11th Cir. 2012) (holding that plaintiff’s complaint to an employee in Human Resources about discrimination constituted protected activity); Hankins v. AirTran Airways, Inc., 237 F. App'x 513, 519 (11th Cir. 2007) (“Hankins engaged in a protected activity by stating to her superior,

Allison Head, Hankins' belief that Durham was discriminating against her on the basis of race.”). The evidence before the Court establishes a prima facie case of retaliation by Defendant.¹¹

Plaintiff’s altering of her time sheets was a nondiscriminatory reason for her demotion. See also E.E.O.C. v. Total Sys. Servs., Inc., 221 F. 3d 1171, 1176 (11th Cir. 2000) (finding that Defendant's good faith belief that the employee lied in an internal investigation

F. 3d 911, 924 (11th Cir. 2018). Additionally, Plaintiff was terminated within four days of lodging his complaint to the director of human resources. The close proximity of the two events establishes the requisite causation. See Thomas v. Cooper Lighting, Inc., 506 F. 3d 1361, 1364 (11th Cir. 2007) (“The burden of causation can be met by showing close temporal proximity between the statutorily protected activity and the adverse employment action.”); McCann v. Tillman, 526 F. 3d 1370, 1376 (11th Cir. 2008) (“[T]he five days between McCann's grievance and Bounds' overtime memorandum satisfies the 'close temporal proximity’ test of the causation element.”); Marria v. C.R. England, Inc., 679 F. App'x 844, 849 (11th Cir. 2017) (seven days between two events satisfied casual element). offered a legitimate nondiscriminatory reason for the employee’s termination); Wineberger v. RaceTrac Petroleum, Inc., 672 F. App'x 914, 919 (11th Cir. 2016) (finding that RaceTrac's reasonable belief that the employee stole candy was a legitimate,

nondiscriminatory reason for terminating her employment). Here, Defendant has established a legitimate non-discriminatory reason for Plaintiff’s termination. Pretext Moreover, there is no evidence that the reason for Plaintiff’s termination was pretext. “A reason is not pretext for discrimination ‘unless it is shown both that the reason was false, and that discrimination was the real reason.’ ” Brooks v. Cty. Comm'n of Jefferson Cty., Ala., 446 F. 3d 1160, 1163 (11th Cir. 2006) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). “The inquiry into pretext requires the court to determine, in view of all the evidence, ‘whether the plaintiff has cast sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude that the employer's proffered legitimate reasons were not what actually motivated its conduct.’ ” Crawford v. Carroll, 529 F. 3d 961, 976 (11th Cir. 2008) (Combs v. Plantation Patterns, 106 F. 3d 1519, 1538 (11th Cir.1997)). Here, Plaintiff has merely offered argument that there are factual disputes regarding the truly motivating factor behind Defendant’s decision, that Plaintiff would have been fired long before he filed his complaint if he was the employee Defendant represents him to be during the time of his employment, and that any employer may be able to point to a bevy of reasons as to why a termination could otherwise be justified. [Doc. 19 at pp. 7-8]. This is not enough. See Siudock v. Volusia Cty. Sch. Bd., 568 F. App'x 659, 664 (11th Cir. 2014) (“Siudock presents no evidence , other than his own unsupported belief, that these reasons were pretextual. Thus, the district court properly granted summary judgment on his retaliation claims.”). As the Court has explained, the ultimate burden of persuasion remains at all times with the plaintiff. Joe’s Stone Crabs, Inc., 296 F. 3d at 1273. Plaintiff has presented no evidence disputing the fact that he submitted false time sheets and establishing that his termination was based on his race. Plaintiff has failed to establish that Defendant intentionally discriminated against him. As no genuine issues of material fact exist, Defendant is entitled to judgment in its favor as a matter of law. Accordingly, it is ORDERED: 1. Defendant's Motion for Summary Judgment [Doc. 17] is GRANTED. 2. The Clerk is directed to enter judgment in favor of Defendant, R.E. Michel Company, LLC and against Plaintiff Raphael Garrett. 3. The Clerk is further directed to terminate all deadlines and pending motions as moot and to close this case. DONE AND ORDERED in Tampa, Florida on November 24, 2021.

Charlene Edwards Honeywell United States District Judge

Copies to: Counsel of Record and Unrepresented Parties, if any