On June 23, 2004, plaintiff filed a pro se Title VII lawsuit alleging discrimination based on his race and color in not receiving a raise and for retaliation in being given a letter of correction without investigating the charges. A first amended complaint was filed by counsel on October 13th adding claims under the Americans with Disability Act "(ADA"), the Arkansas Civil Rights Act ("ACRA"), and for the tort of outrage.
Defendant filed a motion for summary judgment on May 9th supported by brief, exhibits and a separate statement of undisputed facts. It asserts that there is no adverse action in holding plaintiff's wage rate flat for a period of time after his transfer to West Memphis given the differential between his compensation and the wage rate paid to other more senior transport drivers performing the same job or in his payroll being occasionally miscalculated when it was always corrected so he was accurately paid. Defendant argues that plaintiff cannot prove that he was treated differently than similarly situated non-black employees since he must point to a comparable white transport driver who was performing the same job, with the same background and experience, reporting to the same supervisor and without any mitigating or distinguishing circumstances, but who received the benefit that was denied to plaintiff. It continues that plaintiff relies upon three white transport drivers as comparators.
Defendant points to plaintiff admitting that he has no evidence whatsoever regarding Porter Beach, he does not know why Beach was removed from his lead driver position, whether he has received raises since his demotion, and how much he is actually paid. It states that Beach was a hired as a lead driver in 1990 and only resigned his lead driver responsibilities because of a heart condition and he is not employed in West Memphis. As to Howard Brown, he was employed for almost twenty years in Nashville with ten of those years in a lead position and also resigned lead responsibilities for health-related reasons. There were no complaints from more senior employees regarding their wage rate. Based on the differing backgrounds, physical conditions, tenure and performance, defendant asserts that plaintiff cannot argue that they are similarly situated.
Defendant continues that Eric Meyer is the only employee that would be comparable to plaintiff and they were treated the very same way as both are employed in West Memphis, both were relieved of their lead driver responsibilities due to performance-related concerns, both kept their lead driver salary which were held flat as transport drivers as they earned substantially more than co-workers in the same location. It states that Breeding - after consultation with Dyer - decided to manage comparative compensation and conflicts that had developed until the more senior co-workers could catch up and that in light of that nondiscriminatory reason for its actions, plaintiff must produce sufficient evidence to support a reasonable inference of pretext. Defendant argues that plaintiff has no evidence of racial animus, he cannot dispute the differences in his situation and those of Beach and Porter, and his subjective belief and personal perceptions do not create a triable issue of fact.
Turning to retaliation, defendant contends that defendant has no evidence of a an adverse employment action as he is relying solely on the fact that defendant issued him a Correction Notice on October 2, 2003 relating to concerns raised by the Transport Center employees regarding his conduct and that counseling form had no impact whatsoever on his wages or benefits, there is no evidence of causation since Dyer was not aware of plaintiff's Charge filed seven months earlier, and plaintiff admits that complaints were made about him although he argues whether the Travel Center employees' concerns were justified.
Defendant contends that plaintiff does not have a claim under the ADA as plaintiff never filed a Charge alleging such discrimination, he admits that he is not disabled, and he does not believe that he was discriminated on the basis of any purported disability even if he believes they violated 29 C.F.R. §1630.14(b) by storing his medical information in his personnel file. As to the outrage claim, defendant asserts that plaintiff cannot meet any of the required elements as he has no evidence that either Dyer or Breeding intended to inflict emotional distress when the compensation decision was made especially when Dyer had received complaints from more senior drivers regarding plaintiff's wage rate as the highest paid driver in West Memphis with the least amount of seniority and that plaintiff did not testify to severe emotional distress, just that the experience had been stressful and he occasionally has difficulty sleeping.
On June 6th, plaintiff filed a response supported by brief, exhibits and a response to defendant's statement of material facts. He contends that there are genuine material fact issues as to whether pay raises that were denied to plaintiff were granted to similarly situated white employees, whether a sham Correction Notice was created in retaliation to set him up for termination, consistent shorting of his paycheck, and making false statements to the EEOC regarding his job performance and its investigation into the allegations supposedly supporting the defendant Notice. Plaintiff contests the Breeding's affidavit as conflicting with this deposition testimony and so should not be considered by the Court. He argues that much of the evidence of defendant's explanations are false, there is no evidence that before he filed his EEOC charge regarding denial of raises that Breeding or Dyer ever told plaintiff that his performance as Lead Driver was deficient or that its raises were anything other than cost of living adjustments; that he was treated differently than Brown, Beach and Meyer with respect to raises with the multiple explanations shifting; Breeding and Dyer's versions of whether plaintiff was told before the transfer - not demotion since there is nothing in the record to so indicate - that he would not be receiving a raise conflict; and defendant initially failed to disclose that Brown, Beach and Meyer had all received raises after being transferred from Lead Driver to Transport Driver.
As to retaliation, plaintiff contends that Breeding was disinterested in whether the allegations made by Tommy Bradshaw were true and that plaintiff's affidavit and deposition, the dates of the Correction Notice, the dates of the supporting statements, statements of witnesses denying that they had been asked about the charges, and Parmly's response create fact questions as to whether defendant was trying to find a pretext to get rid of plaintiff. He continues that his pay was shorted on a regular basis and the humiliation and stigma is sufficient for an adverse employment action.
Plaintiff withdraws his ADA claim and moves to dismiss it without prejudice leaving that to the EEOC. As to outrage, plaintiff points to defendant's EEOC response that treating white drivers differently than black drivers would be utterly objectionable and reflecting a sentiment out of place in a modern work force says it best that discrimination, retaliation against the victim and falsification of his job performance cannot be tolerated in a civilized society.
Defendant filed a reply on June 17th that while plaintiff disputes many of the facts, he fails to cite record evidence in support such as Ben Crow complained about his behavior at the Travel Center and Bradshaw advised Dyer that he had spoken to other employees about Crow's complaints. It continues that Breeding's deposition is not contradictory but merely more detailed after he had an opportunity to review further records.
Defendant states that plaintiff has made no effort to compare himself to Beach in Chattanooga or Brown in Nashville since they had more than fifteen years as employees and ten years as Lead Drivers and both resigned due to health concerns and while Meyer can be reasonably compared to plaintiff, they were both treated the same way in receiving raises despite performance problems, their wages being held flat after removal from the lead role, and plaintiff continued to earn more than Meyer - his former supervisor. It contends that there is no evidence of racial motivation in holding his wages flat as he was earning substantially more than all his more senior co-workers - including his supervisor - in 2001.
Turning to retaliation, defendant argues that the counseling form that plaintiff received had no impact on his wages or benefits and so was not a materially disadvantageous change when he was told to behave when interacting with Travel Center employees. Defendant asserts that it is undisputed that Bradshaw, the manager of the Travel Center advised Dyer that he had received complaints and Dyer and Breeding could reasonably rely on his conclusion that misconduct had occurred although Dyer did meet with plaintiff and listened to his side of the story before counseling him to avoid further conflict with the Travel Center employees. As to the claim of outrage, Defendant states that the Eighth Circuit has expressly held that allegations of discrimination do not meet that standard and that plaintiff has only suffered moderate stress.
Summary judgment can properly be entered when there are no genuine material facts that can be resolved by a finder of fact; that is, there are no facts which could reasonably be resolved in favor of either party. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2512 (1986). The non-moving party may not just rest upon his or her pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986); Civil Procedure Rule 56. "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).
Local Rule 56.1 provides that a party moving for summary judgment must file a separate, short and concise statement of material facts as to which it contends there is no genuine issue to be tried. The rule further provides that unless the non-moving party files a separate, short and concise statement of the material facts as to which it contends a genuine issue exists to be tried, all material facts set forth in the moving party's statement will be deemed admitted.
The defendant's Local Rule 56.1 statement is set out below with plaintiff's response in brackets:
1. Pilot Travel Centers LLC, ("Pilot") is the nation's largest operator of travel centers and largest seller of over-the-road diesel fuel. Pilot owns and operates over 250 travel centers in 37 state coast to coast. [Plaintiff agrees.]
2. Pilot is an equal opportunity employer that prohibits discrimination on the basis on race with respect to all aspects of employment, including compensation. Employees who believe that they have been subjected to discrimination are instructed to immediately contact Human Resources. [Plaintiff agrees that defendant has such written policies in place, but denies that they were followed by defendant in dealing with plaintiff. Plaintiff tried to call David Parmly in Pilot's HR twice, but Mr. Parmly never returned his calls. Plaintiff further cites the record to date and disputes that defendant actually follows its written policies.]
3. Pilot operates its Travel Centers and its fuel transportation services as separate divisions within the Company. Mangers within the Transportation Department have no authority or supervisory responsibility over Travel Center operations. [Plaintiff agrees.]
4. Within the Transportation Department, Pilot employs transport drivers who haul diesel fuel from refineries to Pilot Travel Center service stations. Transport drivers are responsible for leading their trucks with fuel, transporting the fuel from a depot or refinery to designated Travel Centers, and unloading the fuel. [Plaintiff agrees.]
5. Pilot also employs lead drivers in certain geographic locations. In addition to transport driver responsibilities, lead drivers are responsible for maintaining Pilot's trucks, ensuring proper paperwork, and forwarding payments to Pilot's corporate offices. [Plaintiff notes that the statement is misleading because notwithstanding his title as Lead Driver in Troy, Illinois, plaintiff was the only driver in Troy.]
6. When setting base compensation rates for transport drivers, Pilot considers the geographic area where that driver will be employed. Pilot considers raises for transport drivers annually in January. Increases are based upon factors including cost of living, geographic location, and job performance. [Plaintiff disputes statement 6. Breeding's affidavit is contradicted by his deposition testimony, the fact that Eric Meyers received a raise at the same time defendant asserts that he was demoted, and the absence of any identifiable criteria on which to base the raises if they involved either geographic areas (e.g., no indices or market surveys) or merit (e.g., Meyers' raise at the same time he is purportedly being demoted in 2003.) See also Pilot 157 (E-mail from Breeding to Parmly (April 3, 2003), stating that raises are generally cost of living adjustments.).]
7. Littleton applied for employment with Pilot on August 18, 200. Randall Dyer, a Pilot Regional Manager, hired Littleton as a transport driver in Chattanooga, Tennessee, and he was paid a starting rate of $10.00 an hour. [Plaintiff generally agrees, but all hiring, pay, transfer, and employee discipline decisions are ultimately approved by David Breeding. In addition, the statement is misleading because Littleton was sent to Chattanooga for training and was paid $10.00 per hour during his training period.]
8. Dyer recommended Littleton for lead driver position in Troy, Illinois, where he had several years of prior experience as a truck drier. Within two months of his hiring, Littleton transferred to Troy as a lead driver, and his wage was increased to $13.50/hour. In January 2001, Littleton received a raise to $13.90/hour. [Plaintiff generally agrees, bu the statement is somewhat misleading because there was only one driver in Troy, Illinois.]
9. In Troy, Littleton was supervised by Nick Peaker, who reported to David Breeding, Pilot's Director of Transportation. Littleton testified about problems he experienced as the lead driver in Troy, which he blames on leaking storage tanks to the Travel Center. [Plaintiff admits statement 9, but denies that he was ever informed that his performance was deficient.]
10. Breeding was unhappy with Littleton's job performance in Troy. The Troy location was not profitable, and Littleton was responsible for generating revenue at that location. Breeding wanted to make a change in Troy, and he decided to transfer Littleton to West Memphis, Arkansas. [Plaintiff disputes statement 10. See Littleton Affidavit.]
11. Breeding told Littleton that he could keep his lead driver wage after his transfer to West Memphis. Littleton understood that he was transferring from a lead driver position back to a transport driver position. He moved to West Memphis in June 2001. [Plaintiff generally agrees, but disputes the statement to the extent that it states that moving from Lead Driver to Transport Driver is considered a demotion by Pilot as Brown, Beach, and Meyer were not considered demoted and absence of any Employee Action Notice in plaintiff's personnel file reflecting a demotion.]
12. When Littleton arrive in West Memphis in June 2001, he was supervised by Eric Meyer, the lead driver in that area. Meyer is white. Meyer reported to Dyer, the Regional Manger who had originally hired Littleton in Chattanooga. [Plaintiff agrees, but everyone ultimately reported to David Breeding, who determined all pay issues and raises.]
13. At $13.90 per hour. Littleton was the highest paid transport driver in West Memphis when he arrived, despite the fact that all the other drivers had more seniority with the Company. Littleton's wage rate was even higher than his supervisor's (Meyer's) hourly rate of pay. [Plaintiff agrees, but Breeding had stated that plaintiff's pay would be unaffected and that he would continue to receive raises, Breeding made all decision regarding driver pay, Breeding used no market surveys or economic data evidencing his contention that Pilot considered individual markets in determining wage rates, Brown's wage rate was greater than plaintiff's, and raises were considered cost of living adjustments and generally made across the board.]
14. Dyer discovered soon after Littleton's arrival in West Memphis that his wage rate was the subject of discussion among other drivers, and Dyer perceived conflict regarding this issue because Littleton was paid more than other senior employees, including his supervisor. Dyer received complaints from three different drivers in West Memphis regarding the fact that Littleton was paid more to do the same job. [Plaintiff disputes statement 14. Plaintiff never disclosed his pay rate to any other Pilot employee and never heard any other employees in West Memphis grumble or complain about his pay rate. The fact that defendant failed to disclose the fact during the EEOC investigation or Dyer's and Breeding's failure to mention this during their depositions, calls into question whether the statement is believable or merely contrived after the fact.]
15. In February 2002, Pilot demoted Meyer from his lead driver position due to poor performance. Like Littleton, Meyer retained his lead driver wage rate following his demotion. [Plaintiff disputes statement 15. Defendant gave Meyer a raise on January 31, 2002 (or in February 2002, given that it appears that part of the date is scratched through) at the same time it claims it was demoting Meyer from Lead Driver (or not demoting if Dyer is believed). The decision to give the raise was made by Breeding at the same time he was deciding to demote Meyer and was not effective until after Meyer was demoted. Furthermore, Breeding's memo to Parmly states that he was demoting Meyer at the same time he was transferring plaintiff, which would have been in mid-2001. In that case, according to Breeding's own records, Meyer was clearly given a raise in 2002 after he was supposedly demoted, while plaintiff continued to be denied the cost of living raise.]
16. Breeding and Dyer decided to promote Cedric Clark to the lead driver position. Clark is black. Littleton has had no difficulty with Clark's supervision. [Plaintiff agrees. Indeed, in 2004 Clark told plaintiff that he was the highest-rated Transport Driver in West Memphis in the annual evaluation, but plaintiff received no raise in 2004. No driver evaluation was given in 2005.]
17. Pilot typically makes compensation decision for its drivers in January. [Plaintiff disputes statement 17. Breeding had told Littleton in June 2001 that Littleton would continue to receive his raises after transferring to West Memphis.]
18. In 2002, Breeding decided that Littleton would not receive a raise because he was still earning his lead driver pay. [Plaintiff disputes statement 18. Harold Brown and Porter Beach, who are white, received raises after transferring from Lead Driver to Transport Driver positions. Eric Meyer, who is white, received a raise at or about the same time that Pilot claims to have demoted Meyer from Lead Driver to Transport Driver (or not demoted according to Dyer's deposition). Breeding approved each raise and "the buck stops with [Breeding]" on raises. Breeding does not remember the substance of any of his conversations with Littleton, who is black, including the one in which he told Littleton that Littleton would continue to receive raises. Furthermore, other than the sham Correction Notice issued to Littleton in October 2003, Littleton was never advised of any other deficiencies in his performance by either Dyer or Breeding. Littleton was similarly situated to Brown and Beach, and more favorably situated than Meyer, but failed to receive the cost of living raise afforded to each of the white employees.]
19. In February 2002, Littleton complained to Dyer about the fact that he did not receive a raise, and Dyer advised him that he would not receive a raise because he has been returned to a regular driver position, and he had to wait one year before receiving an increase. [Plaintiff agrees that the incident and conversation took place.]
20. At that time, Littleton did not believe that his race had anything to do with the decision not to give him a raise in 2002. [Plaintiff agrees, but notes this was before he learned of the raises given to Brown, Meyer, and Beach. It was also before Pilot issued the sham Correction Notice, before Pilot tried to "recreate" the circumstances of his transfer, before Pilot initially tried to hide Brown from the EEOC (never disclosed Beach), and took the other actions alleged by plaintiff.]
21. In January 2003, Breeding decided that Littleton's wage rate would remain constant because he was still earning more than all the other drivers in West Memphis, with the exception of Clark, the lead driver. Although Breeding was responsible for approving raises for transport drivers, Dyer agreed with Breeding's decision in Littleton's case. [Plaintiff agrees that he failed to receive a raise on 2003, but otherwise disputes statement 21. Breeding consciously decided to treat plaintiff differently than he had treated Brown, Beach, Meyer, who are each white, with respect to raises.]
22. When Littleton discovered that he would not receive an increaser in 2003, Littleton contacted Breeding. Breeding advised him that they had to "get [his wage rate] in line with the rest of the drivers" in West Memphis. [Plaintiff agrees that he contacted Breeding and Breeding made the statement attributed to him. Plaintiff disputes any implication that Breeding's statement was the real reason for the denial of plaintiff's case.]
23. Littleton subsequently learned that Howard Brown, a transport driver and former lead driver in Tennessee, had received a raise two years after he was removed from the lead position. Because Brown is white, Littleton decided that Pilot was discriminating against him because he is black - and he did not receive a raise. Littleton has no other evidence to support his discrimination claim. [Plaintiff generally agrees, but denies that he has no other evidence to support his discrimination claim. Defendant's statement takes one statement of plaintiff out of context and ignores the raises given to Beach and Meyer, the varying statement/reasons/excuses made by Pilot to Littleton, the EEOC, and the Court regarding Pilot's refusal to award Littleton his annual raise for 2002, 2003, and 2004 the retaliation against Littleton after he filed his EEOC charge, and the other evidence in the record and expected to be adduced at trial. There is much more evidence in the possession of Littleton, his lawyers, and third parties to support Littleton's claim of discrimination.]
24. On February 26, 2003, Littleton filed his Charge of Discrimination with the EEOC, asserting that "a similarly situated White male Truck driver was given a raise even though [Littleton] was told that Lead Drivers who return to a regular driver position could not receive a raise for the first year." [Plaintiff agrees.]
25. At this deposition, Littleton identified Eric Meyer, Howard Brown, and Porter Beach as "similarly situated" former lead drivers. All three ...