Harris v. FedEx Freight, Inc.

110 F.Supp.3d 805

Keith L. Harris, Plaintiff,

v.FedEx Freight, Inc., et al., Defendants.

Case No. 13 C 8378

United States District Court, N.D. Illinois, Eastern Division.

Signed June 17, 2015

Kevin Francis O'Connor, Ryan Odell Estes, O'Connor | O'Connor, P.C., Elmhurst, IL, for Plaintiff.

Martin K. LaPointe, Susan Marie Troester, LaPointe Law, P.C., Northbrook, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John Robert Blakey, United States District Judge

This is an employment discrimination action that arises from the August 28, 2012 termination of Plaintiff Keith Harris, a black driver at FedEx Freight. In his six-count Second Amended Complaint [20], Plaintiff alleges that FedEx Freight and four white supervisors (a fifth supervisor was dismissed for lack of personal jurisdiction [41] ) discriminated against Plaintiff based on his race, retaliated against him for engaging in protected activity and denied him certain statutory benefits.

Defendants now move for summary judgment [66] on all six counts. That motion is granted in part and denied in part.

I. Legal Standard

Summary judgment is appropriate 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. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.2014). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, this Court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party, here, Plaintiff. See CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th Cir.2014).

II. Facts¹

A. Parties

Plaintiff is a black male. DSOF ¶ 4. On July 5, 2006, Plaintiff began working at FedEx Freight as a Dock Worker at the Aurora Service Center in Aurora, Illinois. DSOF ¶ 10. Soon thereafter, in the following months, FedEx Freight promoted Plaintiff first to Driver Apprentice and then to City Driver. DSOF ¶¶ 10–11. It appears that Plaintiff remained a City Driver until August 28, 2012, when he was terminated.

Defendant FedEx Freight is a package shipping company. The four individual Defendants, who are all white, held supervisory roles at FedEx Freight. At all relevant times and beginning in November 2006, Defendant Robert Vande Hei (white) was the Service Center Manager at the Aurora Service Center. DSOF ¶¶ 7, 12.

Mr. Vande Hei supervised Operations Managers, including Defendant Kevin McCready (white), and Operations Supervisors, including Defendant David Mills (white). DSOF ¶¶ 8–9, 12. Operations Supervisors work in the Dispatch Office where they monitor drivers' locales throughout the day by computer and communicate with the drivers about nearby pick-ups when customers call. DSOF ¶ 13. Stuart Baxter (black) served as a HR Advisor until January 30, 2011, at which time Defendant Roger Maco (white) took over the position. DSOF ¶¶ 6, 12, 14.

B. Work Environment

Plaintiff alleges that during his tenure at FedEx Freight, supervisors created a hostile work environment. The supervisors, for example, levied racial epithets against Plaintiff and gave him undesirable job assignments. For brevity, this Court will discuss this conduct in connection with Plaintiff's hostile work environment claim (see Section III.A) and not repeat that discussion here.

C. Discharge and Injury

Plaintiff's termination purportedly arises from two Compensated Time Violations over a five-month period in 2012. A Compensated Time Violation is when an hourly employee is "on-the-clock" and supposed to be working but is not. DSOF ¶ 25. According to FedEx Freight's Employee Handbook, a Compensated Time Violation can result in discharge. DSOF ¶ 27. Mr. Maco, the HR Advisor, explained that the Employee Handbook guidelines were not "absolute" and that, in practice, HR typically: issued a so-called "Critical Corrective Action" (a written write-up) for violations less than 15 minutes and where the employee had no prior infractions; issued a Critical Corrective Action plus a three-day suspension for violations between 15 and 30 minutes; and terminated employees for violations greater than 30 minutes. Maco Dep. at 102–04; see also DSOF ¶ 26.

The morning of March 29, 2012, when Plaintiff arrived to work, Mr. Mills assigned him to take a tractor trailer and drive to the Elmhurst Service Center, DSOF ¶ 21; Mills Dep. at 74–75, which is located in Elmhurst, Illinois. The parties dispute the motivation for this assignment. Defendants claim that the Elmhurst Service Center required additional help that day, DSOF ¶ 21, whereas Plaintiff argues that the assignment was intended as punishment because the supervisor there, Annette Felber, had discriminated against Plaintiff in 2009, when Ms. Felber was working at the Aurora Service Center, Response to DSOF ¶ 21; PSOAF ¶ 19.

For a drive that typically takes 45 minutes, it took Plaintiff one hour and 48 minutes to reach the Elmhurst Service Center. DSOF ¶ 24. Plaintiff attributed the delay to him getting lost (despite having made requests for directions) and road construction. PSOAF ¶ 21.

Based on the delay and Plaintiff's explanation, Mr. Maco, his boss Brian Jenkins and Mr. Vande Hei issued Plaintiff a Critical Corrective Action and a three-day suspension. DSOF ¶ 26; Maco Dep. at 104. Mr. Maco testified that FedEx Freight could have fired Plaintiff, as allowed by the Employee Handbook, but Management and HR gave Plaintiff the benefit of the doubt given his explanation for the delay. DSOF ¶¶ 27–28; Maco Dep. at 104. The Critical Corrective Action issued to Plaintiff stated that future infractions would result in further discipline, up to and including termination. DSOF ¶ 29. Plaintiff unsuccessfully appealed the Critical Corrective Action through the company's internal appeals process. DSOF ¶ 30.

Plaintiff incurred a second Compensated Time Violation for events occurring on August 15, 2012. DSOF ¶ 33. On that day, Plaintiff asked Joe Paoletti, an Operations Supervisor, for permission to go to a cell phone store over his lunch break, and Mr. Paoletti agreed. DSOF ¶ 33. This is where the parties diverge in their version of the events.

Defendants principally rely on the narration of events from Mr. Maco's undated Corrective Action Recap. See DSOF ¶¶ 33–38 (citing Corrective Action Recap [73] ). (The Corrective Action Recap has what appears to be an August 30, 2012 fax stamp, suggesting that the document was prepared on or before that date.) According to the Recap, Plaintiff stopped at a Sprint store during his lunch break, which Plaintiff took from 2:29 to 2:59 p.m. DSOF ¶ 33. Sometime later, Mr. Paoletti then sent Plaintiff an Intermec message instructing him to visit a customer to pick-up freight that needed to go out on an outbound trailer at Aurora Service Center that evening. DSOF ¶ 34. FedEx Freight issued City Drivers, including Plaintiff, a handheld device called an "Intermec" so they could communicate with their Operations Supervisors while on the road. DSOF ¶ 15.

Turning back to the timeline, Plaintiff completed a stop at 6:51 p.m., about 22 minutes away from the new assignment. DSOF ¶ 34. At 7:00 p.m., Mr. Paoletti sent a second message reminding Plaintiff to "come home" after the assigned pickup. DSOF ¶ 35. Plaintiff did not respond, so at 7:29 p.m., Mr. Paoletti sent another message: "Freight on your trailer needs to service." DSOF ¶ 35. Still no response. DSOF ¶ 36. At 7:41 p.m., Mr. Paoletti sent another message: "Are you at the Sprint store?" DSOF ¶ 36. Plaintiff again did not respond but made the pick-up at 7:42 p.m. DSOF ¶ 36. Three minutes later, at 7:45 p.m., Mr. Paoletti sent yet another message: "Come home and see Q [Operations Manager Quintin Hammitte] when back." DSOF ¶ 36. The shipment ultimately missed its connection at Aurora Service Center by the time Plaintiff returned. DSOF ¶ 37. Mr. Hammitte (black) asked Plaintiff for a written statement. DSOF ¶ 37. Plaintiff did not give a written statement, explaining that he would not write one off-the-clock. Response to DSOF ¶ 37.

Plaintiff is correct that the Corrective Action Recap quotes statements not made by the author (Mr. Maco). Responses to DSOF ¶¶ 33–38, 44. Thus there may be hearsay hurdles that Defendants must first clear if they seek to introduce the Recap at trial. But those hurdles are inapplicable here. As discussed in connection with Plaintiff's termination claim (see Section III.B), this Court does not need to consider the Corrective Action Recap for its truth, but rather considers it as the purported basis for Defendants' decision to terminate Plaintiff. See Fed. R. Evid. 801(c)(2).

As for Plaintiff's version of the August 15, 2012 events, Plaintiff generally testified that he was performing his job duties at all relevant times. PSOAF ¶ 25. As for not responding to Mr. Paoletti's messages, Plaintiff explained that his Intermec was freezing up that day, so he received some messages, but perhaps not others, and the messages he did receive were delayed. Responses to DSOF ¶¶ 4243. Plaintiff testified that he reported the problems with his Intermec to Mr. Paoletti sometime on August 15, 2012 and also complained to Mr. Paoletti about the same Intermec not working "through that week." Responses to DSOF ¶¶ 42–43; Harris Dep. at 182.

Management at Aurora Service Center began investigating Plaintiff for a possible Compensated Time Violation for the late pick-up on August 15, 2012. DSOF ¶¶ 38–40. Among other things, they ran a GPS "bread crumb trail" on Plaintiff's trailer. DSOF ¶ 38. In 2011, FedEx Freight, with the knowledge...