Harris v. Fedex Freight, Inc.

Citations: 110 F. Supp. 3d 805; 2015 U.S. Dist. LEXIS 78223; 127 Fair Empl. Prac. Cas. (BNA) 918; 2015 WL 3798153Docket: Case No. 13 C 8378

Court: District Court, N.D. Illinois; June 17, 2015; Federal District Court

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Plaintiff Keith Harris, a black driver at FedEx Freight, initiated an employment discrimination lawsuit following his termination on August 28, 2012. His Second Amended Complaint includes six counts alleging racial discrimination, retaliation for engaging in protected activities, and denial of statutory benefits against FedEx Freight and four white supervisors; one supervisor was dismissed for lack of jurisdiction. The defendants have filed for summary judgment on all counts, which the court partially granted and partially denied.

The court outlines the legal standard for summary judgment, emphasizing that it is appropriate when the movant can demonstrate that no genuine dispute exists regarding material facts, and all evidence must be viewed in favor of the nonmoving party, here the Plaintiff.

Harris began his employment with FedEx Freight in 2006 and was promoted to City Driver until his termination. The involved supervisors, all white, included Robert Vande Hei (Service Center Manager), Kevin McCready (Operations Manager), and David Mills (Operations Supervisor), while Stuart Baxter, a black HR Advisor, was succeeded by Roger Maco (white) in 2011.

Harris claims that he faced a hostile work environment characterized by racial slurs and unfavorable job assignments. His termination was based on two Compensated Time Violations within five months, which, according to the FedEx Employee Handbook, can lead to discharge. However, HR practices suggest that punishments are typically more lenient for first-time offenders with violations under certain thresholds.

On March 29, 2012, Plaintiff was assigned by Mr. Mills to drive a tractor trailer to the Elmhurst Service Center, a decision contested by both parties. Defendants argue the assignment was due to staffing needs, while Plaintiff claims it was punitive, stemming from past discrimination by supervisor Annette Felber. The drive, typically 45 minutes, took Plaintiff 1 hour and 48 minutes, which he attributed to getting lost and road construction. This delay led to a Critical Corrective Action and a three-day suspension from Mr. Maco, Brian Jenkins, and Mr. Vande Hei, despite the potential for termination under the Employee Handbook. The action warned of further discipline for future infractions. Plaintiff's appeal of the action was unsuccessful.

On August 15, 2012, Plaintiff received a second Compensated Time Violation after asking Operations Supervisor Joe Paoletti for permission to visit a cell phone store during lunch, which Paoletti approved. Discrepancies arose in the accounts of events; Defendants relied on Mr. Maco’s Corrective Action Recap, dated around August 30, 2012, which stated Plaintiff visited a Sprint store during his lunch from 2:29 to 2:59 p.m. Later, Paoletti instructed Plaintiff to pick up freight at Aurora Service Center but received no response to multiple messages sent after the assigned pickup time. Plaintiff made the pickup at 7:42 p.m., but the shipment missed its connection. When asked for a written statement by Operations Manager Quintín Hammitte, Plaintiff refused to provide one off-the-clock. The Corrective Action Recap includes potentially hearsay statements not made by Mr. Maco, posing challenges for Defendants if they attempt to introduce the document in court, although those challenges are not relevant at this stage.

The Court does not need to assess the truth of the Corrective Action Recap but will consider it as the reason for the Defendants’ decision to terminate the Plaintiff. Plaintiff testified that he was performing his job duties on August 15, 2012, but did not respond to messages from Mr. Paoletti due to his Intermec device malfunctioning, which he reported to Mr. Paoletti. Management investigated Plaintiff for a Compensated Time Violation related to a late pick-up, analyzing GPS data that indicated the trailer was stationary for 29 minutes and that the drive took 41 minutes when it should have only taken 26 minutes. During a meeting on August 20, 2012, Plaintiff explained his situation but failed to account for 19 minutes of inactivity. A report indicated that the Intermec was receiving messages promptly on that date, which contradicted Plaintiff's claims of delayed communications. After the meeting, Plaintiff injured himself while speaking on the phone, leading to a visit to Provena Mercy Medical Center, which issued conflicting Work Status Instruction Sheets regarding his ability to return to work. On August 23, 2012, Mr. Vande Hei allegedly instructed Plaintiff to return to work, despite receiving a note from Plaintiff's doctor stating he could not return, with Vande Hei expressing concerns about FedEx Freight’s "injury quota."

Mr. Vande Hei testified that he requested the Plaintiff to return to 'light duty' after receiving documentation from the Plaintiff. It is established that the Plaintiff did not return to work before his termination. During a conversation between August 20 and 28, 2012, the Plaintiff informed Mr. Vande Hei of his intention to file for workers’ compensation, to which Mr. Vande Hei responded that the Plaintiff needed to return or risk being fired, expressing concern that a new claim would negatively impact the company’s numbers. Subsequently, Mr. Vande Hei, along with HR representatives Mr. Maco and Mr. Jenkins, made the unanimous decision to terminate the Plaintiff's employment, effective August 28, 2012. The termination letter, undated and issued by Mr. Maco, mentioned attempts to notify the Plaintiff of his termination by phone on August 29 and subsequent dates. The Plaintiff received the letter on September 4, 2012, and later appealed the decision to FedEx Freight’s Appeal Review Committee, which denied the appeal.

The administrative history indicates that the Plaintiff filed charges with the EEOC for race discrimination, receiving a Notice of Right to Sue letter in August 2013, although specific dates of the charges are not provided. The court proceeds to analyze the Plaintiff’s six categories of claims, granting summary judgment to the Defendants specifically concerning the Plaintiff's retaliation claims in Counts I and II. 

In Counts I and II, the Plaintiff asserts claims under 42 U.S.C. 1981 and Title VII of the Civil Rights Act of 1964, both of which are evaluated similarly. The court examines the Plaintiff’s hostile work environment claim, which requires proof of (1) an objectively and subjectively offensive work environment, (2) that race was the cause of the harassment, (3) conduct that was severe or pervasive, and (4) a basis for employer liability. The court considers the totality of circumstances, noting that off-hand comments and isolated incidents are insufficient for a claim. A triable issue of fact exists regarding the first three elements, as the Plaintiff cites repeated instances of racial epithets from supervisors. The alleged harassment began in fall 2011, with offensive remarks made by Operations Supervisors regarding a 401(k) contribution letter and racially charged comments about food and family attendance at a company picnic.

Mr. McCready, an Operations Manager, participated in a conversation that included racially charged laughter. Shortly after, Mr. Harris reported the incident to Mr. Vande Hei, with a dispute over whether Harris expressed that the comments were race-related. Although Harris did not explicitly attribute the comments to racial discrimination, he suggested that terms like "baby mamas" are not used with white individuals, implying profiling.

During a company picnic, a colleague, David Yang, overheard Mr. Mills make a derogatory remark about Harris and his children related to fried chicken. Although Harris was not present, such comments can support a hostile work environment claim. Later, Harris recounted an encounter with Mills during a Thanksgiving event, where Mills indicated that the event was not meant for Harris to receive free turkeys.

Harris also described an incident with Mr. Paoletti, who mocked him while crumpling a letter Harris was writing, implying it was racially motivated. On June 26, 2012, Harris had a phone conversation with Mark Courter regarding a traffic citation, during which Courter asked Harris about his race and made comments suggesting Harris only avoided traffic penalties due to his "black friends." Feeling belittled, Harris sent a letter expressing his discomfort. An HR Advisor, Mr. Maco, subsequently met with Harris, who articulated feelings of discrimination stemming from Courter’s condescending attitude. Maco noted that the conversation was combative but ended positively.

The document indicates that the accumulation of these racially insensitive remarks justifies denying summary judgment, as they reflect a hostile work environment. Citing precedents, including Rodgers v. Western-Southern Life Insurance Co., it emphasizes that even a few racial epithets can significantly alter working conditions and create an abusive atmosphere.

The Court determined that the frequency and severity of racial epithets experienced by the Plaintiff significantly altered the conditions of his employment, despite the lack of an exact count of such remarks. The Plaintiff identified nine potentially racial comments made over five conversations. While the Court acknowledged that no single comment was as severe as those in prior cases (Rodgers and Fulmore), it noted that the cumulative effect of the comments, especially given their frequency, can still constitute a hostile work environment. The Court rejected Defendants' argument that the comments were not racially charged, citing precedents where seemingly neutral remarks were interpreted to have racial undertones. The Plaintiff successfully demonstrated the subjective component of a hostile work environment by reporting the offensive comments to supervisors.

Additionally, the Plaintiff presented evidence indicating potential discrimination in job assignments and privileges based on race. Testimonies revealed that Mr. Vande Hei denied leave requests to the Plaintiff and another Black employee while granting similar requests to white employees, suggesting racial bias. The Plaintiff also alleged he received less favorable route assignments, particularly more 'lift gate' routes—which are viewed as undesirable—compared to white drivers. Testimony indicated a change in the assignment procedure under Mr. Vande Hei, raising questions about the fairness of these assignments. Overall, the Court found sufficient material issues of fact warranting further examination by a jury, despite Defendants' argument that job assignments are inherent to the Plaintiff's role.

Plaintiff contends that the assignment of lift gate routes was discriminatory rather than unjustified. Testimonies from Mr. Davila and Mr. Joseph support claims of racial discrimination at the Aurora Service Center, where other minority employees also reported similar experiences. Notably, Mr. Tyler, a black driver, testified about being told to leave the cafeteria by white coworkers, indicating a hostile work environment. Additional evidence includes Mr. Vande Hei's refusal to allow Plaintiff to post literature for Black History Month and the decision to place the Aurora Service Center on 'Red Alert' due to perceived threats from Plaintiff. The court recognizes a disputed issue of material fact regarding Plaintiff's hostile work environment claim, with FedEx Freight being strictly liable if a supervisor created such an environment.

In Counts I and II, Plaintiff asserts he was terminated due to his race, in violation of Title VII, which prohibits race-based discharges. To support his claim, Plaintiff must demonstrate Defendants had a discriminatory motive. He employs the direct method of proving discrimination, which allows for circumstantial evidence rather than solely relying on direct admissions. This evidence can include suspicious timing, ambiguous statements, treatment of similarly situated employees, and the employer’s credibility regarding stated reasons for adverse actions. Plaintiff argues that the grounds for his termination—two Compensated Time Violations—were not valid, as he disputes fault for these incidents. The court refrains from deeply analyzing the merits of the termination, noting that the focus should be on whether FedEx genuinely believed its reasons for termination, rather than whether those reasons were correct. Ultimately, demonstrating that FedEx may have mistakenly terminated him does not, on its own, prove the decision was racially motivated.

Attacking the employer's rationale for termination can indicate pretext, but the Plaintiff must ultimately demonstrate that discrimination, rather than a poor decision, motivated the termination. The Plaintiff's arguments largely fail to establish a connection between his termination and his race. The timeline of events reveals that the second Compensated Time Violation occurred on August 15, 2012, followed by an investigation and interviews with the Plaintiff on August 20, 2012. Despite the Plaintiff's assertion of a suspicious timing for his termination, the record does not support this inference. The decision to terminate, made by Mr. Maco, Mr. Jenkins, and Mr. Vande Hei on an unspecified date, was reviewed by the Legal Department before execution. When questioned about the August 28, 2012 termination, Mr. Vande Hei could not explain the delay following the violation. The two-week interval between the violation and termination does not imply discrimination, as it aligns with the time needed for investigation and decision-making. Additionally, the Plaintiff did not demonstrate that Mr. Vande Hei's request for him to return to work occurred after the termination decision was made. The comparison to a previous case, Ptasznik, illustrates that failing to establish a coherent timeline undermines claims of discrimination. Lastly, claims that Mr. McCready and Mr. Mills targeted the Plaintiff for scrutiny compared to other drivers lack sufficient evidentiary support. Overall, the Plaintiff is left without compelling arguments linking his termination to discriminatory practices.

The record indicates a credible argument that the Plaintiff may have been "set up" to fail or that race influenced the decision to terminate him, particularly involving Mr. Vande Hei. The first Compensated Time Violation is alleged to be racially motivated, as the Plaintiff was assigned to the Elmhurst Service Center under potentially discriminatory conditions. Testimonies reveal that Ms. Felber, the supervisor, previously discriminated against the Plaintiff, as he was disciplined while two white employees were not for similar conduct. The Plaintiff contends he should have been able to avoid this assignment due to seniority. 

Additionally, there is evidence of differential treatment based on race, as black drivers were singled out in management meetings for their slower performance, while slower white drivers were not mentioned. Although the Plaintiff argues that the lack of Compensated Time Violations among other drivers suggests racial discrimination, testimonies from Mr. Vande Hei and former HR Advisor Mr. Baxter indicate a lack of memory regarding such violations at the Aurora Service Center. The evidence presented suggests that while the Plaintiff may have been singled out, it does not sufficiently demonstrate systemic racial discrimination, as he has not proven that black drivers were cited for violations at a higher rate than their white counterparts.

Base statistics regarding Compensated Time Violations lack contextual evidence necessary to infer discrimination, as established in Hemsworth v. Quotesmith.com. The record indicates evidence of racial discrimination by Mr. Vande Hei against black drivers, leading to the denial of summary judgment for the Plaintiff's racial discrimination claims in Counts I and II. In addition, the Plaintiff alleges retaliation in Counts I and II for complaints made about racial discrimination at FedEx Freight. To prove retaliation under the direct method, the Plaintiff must establish three elements: (1) engagement in statutorily protected activity, (2) a materially adverse action by the employer, and (3) a causal connection between the two. The first two elements are undisputed, as the Plaintiff made multiple discrimination complaints and was terminated on August 28, 2012. However, the Plaintiff has not demonstrated the necessary causation, as he has failed to connect his complaints to his termination effectively. Although he suggests a suspicious timing between his complaints and termination, such timing alone is insufficient to establish causation without additional supporting circumstances. The general rule in the Seventh Circuit stipulates that long intervals between protected activity and adverse action do not suffice to survive summary judgment unless further evidence indicates a causal link.

Intervals of two months or shorter are insufficient to imply discrimination or establish a triable issue, as demonstrated in Harper (687 F.3d at 307 n. 31) and other Seventh Circuit cases. The Plaintiff's complaints of racial discrimination began at least 18 months prior to his termination, with the last complaint occurring two months before his dismissal. This timing lacks a causal connection to his termination. While the Plaintiff cites Malin (762 F.3d 552) to argue successful retaliation claims can occur with a multi-year gap, the Malin case involved repeated denials of promotions that connected the time gap, which is absent here. The Plaintiff did not identify any more recent complaints that could support his claim, and the court is not required to investigate the record on his behalf (United States v. Dunkel, 927 F.2d 955, 956). Even if newer complaints existed, the Plaintiff failed to explain why they would lead to retaliation, unlike previous complaints. This situation parallels Leitgen (630 F.3d 668), where the employee’s timeline did not support a retaliation inference due to earlier complaints. Consequently, summary judgment is granted for the Plaintiff's retaliation claims in Counts I and II.

In Counts III and IV, the Plaintiff alleges violations of the Fair Labor Standards Act (FLSA) and Illinois Minimum Wage Law due to unpaid overtime for work performed off-the-clock during 2011 to 2012. Count III is against all Defendants, while Count IV targets only FedEx Freight. The FLSA mandates that employees working over 40 hours in a week must receive overtime pay (29 U.S.C. 207(a)(1)). The employee must prove the occurrence of uncompensated overtime, particularly when employer records are inaccurate. In this case, the Plaintiff must provide sufficient evidence to establish the extent of unpaid work based on just and reasonable inference.

Under the Illinois Minimum Wage Law, the analysis aligns with that of the Fair Labor Standards Act (FLSA), as established in Brown v. 534 F.3d at 595. The employer bears the burden of demonstrating the exact amount of work performed or challenging the reasonableness of the employee's evidence. Employees may indirectly prove hours worked by identifying triggering factors that suggest extended work hours. The Seventh Circuit's Brown case illustrated this with an example where an employee could infer overtime due to identifiable events, such as school functions. In the current case, the Plaintiff alleges he was instructed not to record time for specific tasks, including delivering empty trailers and completing post-trip driver logs. Deliveries took 15-30 minutes each, and the Plaintiff estimated these occurrences happened five to eight times, with dates and times potentially verifiable through employer records. Similarly, when acting as a Road Driver, he was directed to punch out before finishing required logs, which took 15-20 minutes to complete.

Defendants contest the specificity of the Plaintiff's testimony, arguing it is too vague to withstand summary judgment. However, case law supports denying summary judgment in similar situations, where an employee's deposition created a genuine issue of material fact despite a lack of documentary evidence. Notable cases include Cardenas v. Grozdic and Skelton v. American Intercontinental University Online, which both resulted in the denial of summary judgment based on the credibility of the employee’s testimony regarding hours worked.

The employer in Skelton required employees to limit their reported work hours to 40 per week. Defendants contest Plaintiffs' testimony as uncorroborated and self-serving, which is deemed incorrect since deposition testimony is inherently self-serving, and a jury could reasonably accept the Plaintiff's account of his work hours. The Seventh Circuit allows a Plaintiff's deposition testimony to counter summary judgment. Defendants raise issues regarding the payment structure for Road and City Drivers, asserting that Road Drivers are compensated by the mile, not by the hour, based on an affidavit from Mr. Vande Hei. However, this evidence does not definitively support their claims. While Road Drivers are not “on-the-clock” for filling out logs, City Drivers filling in for them are typically paid by the hour for shorter trips. The Plaintiff indicated uncertainty regarding any weeks he worked over 40 hours without overtime, which slightly undermines but does not negate his claim, emphasizing that documentary evidence may clarify actual hours worked. Consequently, summary judgment is denied for Counts III and IV regarding unpaid overtime claims. 

In Count V, the Plaintiff alleges a violation of the Family and Medical Leave Act (FMLA), asserting that he was entitled to a leave of absence for injuries sustained on August 20, 2012, and should not have been compelled to return to work. The claim is directed against FedEx Freight and specific individuals. To succeed on an interference claim under the FMLA, the Plaintiff must demonstrate eligibility for FMLA protections, that the employer is covered by the FMLA, entitlement to leave, sufficient notice of intent to take leave, and denial of FMLA benefits. The Plaintiff claims wrongful termination deprived him of these benefits, proceeding solely under an interference theory.

Both parties dispute whether the Defendants terminated the Plaintiff due to his assertion of rights under the Family and Medical Leave Act (FMLA); however, this issue is deemed irrelevant. The Seventh Circuit's ruling in Kauffman v. Federal Express Corp. clarifies that retaliation claims require proof of discriminatory intent, while interference claims only need evidence that the employer denied the employee's statutory rights. An employee can pursue an interference claim regardless of whether the termination was related to the assertion of such rights. In Kauffman, the employer's motivation for termination was unrelated to the employee's FMLA leave, but the employee's interference claim was still valid as it focused on the respect for FMLA entitlements.

The issue of whether Defendants interfered with the Plaintiff's FMLA rights remains unresolved in the current motion. Summary judgment is denied for Count V regarding the FMLA.

In Count VI, the Plaintiff alleges retaliation by FedEx Freight for seeking to file a workers' compensation claim. To succeed, he must demonstrate that he was employed prior to the injury, exercised a right under the Illinois Workers’ Compensation Act, was discharged, and that the discharge was causally linked to the claim. The Plaintiff was injured on August 20, 2012, and terminated on August 28, 2012, after expressing his intent to file a claim. A supervisor allegedly threatened him regarding this intent, which raises questions about the true motive behind the termination, making it a matter for the jury to decide. Summary judgment is also denied for Count VI.

The court's conclusion grants summary judgment for the Defendants concerning the retaliation claims in Counts I and II, while all other claims, including those for hostile work environment, racial discrimination, FLSA, Illinois Minimum Wage Law, Workers’ Compensation Act, and FMLA, remain active.

"DSOF" denotes the Defendants’ statement of undisputed facts, accompanied by Plaintiff's responses, while "PSOAF" refers to the Plaintiff's statement of additional facts with Defendants' responses. The August 20, 2012 Instruction Sheet indicates that the Plaintiff may return to work with specific restrictions: no lifting or pushing/pulling over 5 pounds with the right arm, no climbing vertical ladders, no tight gripping with the right hand, and no work involving the use of the right arm, with ambulation as tolerated. Additionally, the Plaintiff is required to wear a sling and hard splint. It states that the Plaintiff may not return to work until a follow-up appointment. An additional instruction notes “light duty,” though part of it is illegible. The August 23, 2012 Instruction Sheet specifies that the Plaintiff may return to work with restrictions against tight gripping with the right hand and using the right arm, but may not return until a specialist is consulted. The additional instruction suggests an orthopedic consult is needed as soon as possible.