Binger v. Enterprises

KEVIN BINGER PLAINTIFF v. ANDERSON ENTERPRISES, d/b/a MCDONALD'S DEFENDANTS

CAUSE NO.: 1:13CV150-SA-DAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI ABERDEEN DIVISION

February 4, 2015

MEMORANDUM OPINION

Kevin Binger brings this lawsuit pursuant to Title VII and 42 U.S.C. Section 1981, as well as the Americans with Disabilities Act (ADA). Specifically, Plaintiff alleges he was terminated from his employment because of his race, his opposition to race discrimination, and his disability. Defendant has moved for summary judgment, and the Court finds as follows:

Factual and Procedural Background

Plaintiff, a Caucasian male, was employed as a maintenance worker in the Cass Street McDonald's in Corinth, Mississippi, which was initially owned by his brother-in-law. Binger's brother-in-law eventually sold the Cass Street McDonald's and his other franchise to Anderson Enterprises in February of 2011.

On February 24, 2012, Plaintiff underwent a heart stent procedure that required him to be off work for one week. He returned to full duty on March 5, 2012. Plaintiff left work for additional heart-related health issues three days later on March 8, 2012. During an examination into those ailments, it was discovered that Plaintiff had kidney cancer, which required hospitalization for the removal of one kidney and an extensive recuperation period prior to his being able to return to work. Both Plaintiff and Lew Anderson, owner of Anderson Enterprises, acknowledge ongoing conversations during this period regarding Plaintiff's health and his possible return to work.

Prior to returning to work, Plaintiff alerted the new general manager of the Cass Street McDonald's that his doctor released him to full duty. She told him to report to work on Monday morning, June 4. When Plaintiff showed up to work his shift, he was told by his shift manager (after approximately three to four hours of work) to go home because his return to work had not been cleared by Lew Anderson. Anderson was on vacation at the time and called Plaintiff that afternoon. Anderson informed Binger he was terminated because other employees complained that he had made "racist comments" sometime between March 5 and March 8.

Defendant contends that while Binger was on the job between March 5 and March 8, he made two statements for which he was later terminated. First, Plaintiff admittedly commented that Anderson Enterprises was trying to get rid of all its white managers. Second, Plaintiff supposedly commented to other employees that he intended to be fired by the end of that month in order to collect either unemployment insurance benefits or be able to sue for wrongful termination.

Plaintiff was initially granted unemployment insurance benefits, but those benefits ceased once Plaintiff began retroactively receiving Social Security disability benefits. The Social Security Administration determined that Plaintiff was disabled and unable to work as of February 24, 2012. Plaintiff submitted a charge with the EEOC, an investigation was opened, and he commenced this suit after efforts at mediation failed.

Defendant filed this Motion for Summary Judgment [42] on the grounds that Plaintiff is unable to prove a prima facie case of race discrimination, opposition to race discrimination, or disability discrimination, or that the employer's reason for terminating Plaintiff was a pretext for such discrimination.

Summary Judgment Standard

Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when the evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, 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).

The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S. Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when . . . both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). However, conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d at 1075.

Discussion and Analysis

Race Discrimination

Binger claims Anderson Enterprises illegally discriminated against him because of his race when he was terminated. Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).

Where, as here, a plaintiff relies only on circumstantial evidence to prove his discrimination claim, the Court utilizes the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). "Under this framework, the plaintiff must first create a presumption of discrimination by making out a prima facie case of discrimination." Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003) (internal citations omitted). If the plaintiff can establish a prima facie case, "the burden of production shifts to the employer, who must offer an alternative nondiscriminatory explanation for the adverse employment action." Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). If the defendant can articulate such a nondiscriminatory reason, the burden then shifts back to the plaintiff who must show at "a new level of specificity" that the explanation is merely a pretext for discrimination. Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985), abrogated on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502, 513, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). In the alternative, the plaintiff may show "that the employer's reason, while true, is not the only reason for its conduct, and another 'motivating factor' is the plaintiff's protected characteristic." Alvarado v. Tex. Rangers, 492 F.3d 605, 611(5th Cir. 2007) (quoting Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)). See also 42 U.S.C. § 2000e-2(m).

To sustain his race discrimination claim based on termination, Plaintiff must first establish a prima facie case by showing (1) he is a member of a protected class, (2) he was qualified for the position at issue, (3) he was the subject of an adverse employment action, and (4) he was replaced by someone outside the protected class, or in the case of disparate treatment, he was treated less favorably than similarly situated employees under nearly identical circumstances. Lee, 574 F.3d at 259; Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001).

Defendant contends that Plaintiff was neither replaced by someone outside his protected class, nor can he identify any similarly situated African American employee who was treated more favorably. Plaintiff asserts that he was replaced by Erskine Hall and Victor Brooks, both African American males. However, Anderson contends Binger's position was essentially eliminated and the duties split between two existing employees. An employee is not considered replaced if his duties are distributed among other co-workers, Griffin v. Kennard Indep. Sch. Dist., 567 F. App'x 293, 294-95 (5th Cir. 2014), therefore, Plaintiff must proceed under the disparate treatment clause of the fourth prong.

Plaintiff must show that the employer gave preferential treatment to an African American employee under nearly identical circumstances. See Okoye, 245 F.3d at 514. The preferential treatment must illustrate that the misconduct for which the plaintiff was discharged was nearly identical to misconduct engaged in by other employees. Id.; Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (citing Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). "The employment actions being compared will be deemed to have been taken undernearly identical circumstances when the employees being compared [1] held the same job or responsibilities, [2] shared the same supervisor or had their employment status determined by the same person, and [3] have essentially comparable violation histories." Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012) (quoting Lee, 574 F.3d at 260).

Plaintiff's comparison is limited to vague contentions that Anderson Enterprises intended to get rid of all white managers and replace them with black managers, allegations that a superior within the Anderson Enterprises chain of command was harder on white managers than black managers, and comments from other employees regarding a supposed "racial bias" in employment decisions made by the new management. Plaintiff was a maintenance worker, not a manager, at the Cass Street McDonald's. His supervisor in that position was not the same superior to whom a manager would report. Further, Plaintiff has failed to provide the necessary work history of any individual worker outside the protected...