Barfield v. Fed. Express Corp.

351 F.Supp.3d 1041

DeWayne BARFIELD, Plaintiff,

v.FEDERAL EXPRESS CORPORATION, Defendant.

CIVIL ACTION NO. H-17-2403

United States District Court, S.D. Texas, Houston Division.

Signed January 3, 2019

Ahad Saeed Khan, Ahad Khan Law, Houston, TX, for Plaintiff.

Brandon D. Pettes, Carl K. Morrison, Fed Ex Corp., Memphis, TN, Nehal Shah Anand, Littler Mendelson PC, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

EWING WERLEIN, JR., UNITED STATES DISTRICT JUDGE

Pending are Defendant's Motion for Summary Judgment (Document No. 19) and Plaintiff's Motion to Strike (Document No. 23). After carefully considering the motions, responses, reply, and the applicable law, and having conducted a hearing to receive oral arguments, the Court concludes as follows.

I. Background

In June 1996, Plaintiff DeWayne Barfield ("Plaintiff") applied for employment with Defendant Federal Express Corporation ("Defendant").¹ As part of his application, Plaintiff executed an employment agreement ("the Employment Agreement") that includes in its fifteenth and final provision:

To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring the complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.²

Directly beneath this provision is the concluding sentence, "I have read this entire Agreement, which consists of 2 pages, and I thoroughly understand the content," followed by Plaintiff's signature.³ Upon being hired, Plaintiff worked as a courier for Defendant for more than 2 0 years until Defendant terminated him on January 16, 2017, for allegedly violating Defendant's Vehicle Accidents/Occurrences Policy and Acceptable Conduct Policy.⁴

At the time of his termination, Plaintiff was 58 years old.⁵ Several months before his termination, Plaintiff alleges, his Senior Manager Jim Gleissner directed frequent age-related comments toward him and other employees.⁶ These comments included Gleissner saying he would get rid of employees if they were getting too old and that management would always be able to find someone better to replace them.⁷

On January 11, 2017, while operating Defendant's vehicle in an employee parking area at the end of his shift, Plaintiff accidentally struck co-worker Troy Ross's parked personal vehicle.⁸ Plaintiff got out of the truck he was driving, surveyed the damage to Ross's vehicle, returned to the truck and parked to the side to avoid obstructing the way.⁹ Without leaving Defendant's premises, Plaintiff went to the office of his operations manager, Aaron Gilbert, to report the incident.¹⁰ Gilbert was not in his office.¹¹ Plaintiff went to the front of the office and had the staff page Gilbert.¹²

Citing stomach issues and his nerves resulting from the accident, Plaintiff then used the restroom for four to five minutes.¹³ After exiting the restroom, Plaintiff returned to Gilbert's office but Gilbert was still absent.¹⁴ Plaintiff returned to the parking lot where he saw Gilbert as well as his co-worker Troy Ross surveying the damage to Ross's vehicle.¹⁵ Plaintiff stood with Gilbert and Ross as they discussed the situation.¹⁶ Plaintiff observed that Ross was very upset.¹⁷ Ross testifies that has been "known to get upset" and knows he "can be intimidating" when upset.¹⁸ Plaintiff states he feared a "physical altercation" and therefore did not report his involvement or say anything regarding the accident as he stood next to the two men.¹⁹ Plaintiff silently followed them back to Gilbert's office and then waited in his personal vehicle until Ross had left.²⁰ After seeing Ross leave, Plaintiff called and reported all information regarding the accident to Gilbert.²¹ Plaintiff made this report more than an hour after the accident but did not leave Defendant's premises at any point before making this report.²²

The morning after the accident, Plaintiff's Manager Joanne Martinez notified Plaintiff that he was suspended with pay pending investigation of the incident.²³ Four days later, Martinez notified Plaintiff that his employment was terminated. Mr. Gleissner, the Senior Manager who allegedly made frequent age-related comments to Plaintiff and his co-workers, had some participation in Plaintiff's termination, at least to the extent of approving Martinez's draft termination letter and forwarding it to his own supervisor.²⁴ The stated reason for Plaintiff's termination was failure to notify management about the accident at the time it occurred in violation of Defendant's Acceptable Conduct Policy.²⁵

Defendant's Acceptable Conduct Policy lists "[f]ailure to report a vehicle accident in accordance with 8-90 Vehicle Accidents/Occurrences and 4-48 Driving Qualifications" as "Misconduct" which "may result in severe disciplinary action up to and including termination."²⁶ The referenced Vehicle Accidents/Occurrences Policy defines an employee's responsibility for reporting accidents as follows:

The operator of a revenue road licensed vehicle (i.e. Company-owned, rented, or leased) must report to a member of their management or dispatch, if management is not available, any accident/occurrence of a vehicle coming in contact with an object, property, or person .... The driver is not to leave the scene of the accident without management approval.²⁷

The Vehicle/Accidents Conduct Policy also states that "[f]ailure to report an accident or occurrence immediately in accordance with this policy" is a "serious violation [ ] of safety regulations" for which "severe disciplinary action up to and including termination" can result.²⁸

After he received notice of termination, both Plaintiff's Manager Joanne Martinez and his Senior Manager Jim Gleissner encouraged Plaintiff to participate in the Guaranteed Fair Treatment Process ("GFTP"), an internal review mechanism available to employees.²⁹ The third and final stage of this process consisted of a review by an internal appeals board on March 7, 2017, after which the appeals board upheld Plaintiff's termination.³⁰ Plaintiff states that after he learned that he would not be reinstated, he began to reflect on the comments Gleissner had made about age as well as what Plaintiff understood about older employees receiving higher pay and more benefits.³¹ Plaintiff believes it would make a senior manager like Gleissner "look good" to get rid of an employee with Plaintiff's higher wage rate and benefits package.³² Plaintiff further offers examples of younger employees who were cited for the same violation of company policy--failure to report an accident in a timely manner--but were not terminated.³³

Plaintiff filed his EEOC charge on or about April 10, 2017, alleging that Defendant discriminated against him on the basis of age.³⁴ In addition to discussing the accident and termination in his EEOC charge, Plaintiff refers to Gleissner's alleged age-related comments made several months before his termination.³⁵ The EEOC issued to Plaintiff its Notice of Right to Sue and Plaintiff filed this lawsuit on August 6, 2017, alleging violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.³⁶

II. Legal Standard

Rule 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Once the movant carries this burden, the burden shifts to the nonmovant to show that summary judgment should not be granted. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Id."[T]he nonmoving party must set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case." Id."A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record ... or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c) (1). "The court need consider only the cited materials, but it may consider other materials in the record." Id. 56(c) (3).

In considering a motion for summary judgment, the district court must view the evidence "through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "If the record, viewed in this light, could not lead a rational trier of fact to find" for the nonmovant, then summary judgment is proper. Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993). On the other hand, if "the factfinder could reasonably find in [the nonmovant's] favor, then summary judgment is improper." Id. Even if the standards of Rule 56 are met, a court has discretion to deny a motion for summary judgment if it believes that "the better course would be to proceed to a full trial." Anderson, 106 S.Ct. at 2513.

III. Evidentiary Objections

Defendant moves to strike the affidavit of Troy Ross under FED. R. CIV. P. 56(c) (4), which requires that an affidavit submitted in support of or opposition to a motion for summary judgment "must be made on personal knowledge."³⁷ Defendant argues that a number of assertions in Ross's affidavit fail to meet this requirement. Having reviewed these statements, the motion is GRANTED in part as to the following statements, which are STRICKEN for want of personal knowledge:

¶ 4: "I do not

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