The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JOHNNY BRANCH PLAINTIFF
Vv. CASE NO. 5:16-CV-05361
TRANSPLACE FREIGHT SERVICES, LLC DEFENDANT
MEMORANDUM OPINION AND ORDER
Now pending before the Court are a Motion for Summary Judgment (Doc. 25), Brief
in Support (Doc. 26), and Statement of Facts (Doc. 27) filed by Defendant Transplace
Freight Services, LLC (“Transplace”). On October 23, 2017, Plaintiff Johnny Branch filed
a pro se motion for leave to file his response out of time, and the Court granted the motion.
See Doc. 29. Mr. Branch’s Response (Doc. 30) was filed of record on October 25, 2017.
Transplace elected not to file a reply. As the Motion for Summary Judgment is now ripe,
it willbe GRANTED IN PART AND DENIED IN PART for the reasons explained herein.
|. BACKGROUND
At the time of the incidents described in the Complaint, Mr. Branch, an African-
American male, had been employed at Transplace for 17 years. On July 14, 2016, he and
a Caucasian male co-worker named Nick L. became involved in a verbal disagreement in
which Nick L. insulted President Obama and called Mr. Branch “boy,” perhaps numerous
times. According to the declaration of Jessica Lynch, Vice President of Human Resources
at Transplace, various witnesses to the disagreement were later interviewed by managers,
who in turn documented the witnesses’ statements. See Doc. 27-2.' The witnesses allege
Transplace has presented the witness accounts in the form of emails, some of which
appear to have been authored by the witnesses themselves, while others appear to be
summaries of witness statements prepared by the managers.
that Mr. Branch exchanged words and perhaps insults with Nick L. There remain disputes
of fact about exactly what was said in the course of the argument, but all witnesses and
Mr. Branch agree that the disagreement did not last long and ended without physical
violence.
After the managers interviewed Mr. Branch, Nick L., and the witnesses, the
company decided that Mr. Branch’s and Nick L.’s behavior violated Transplace’s “Core
Value” of “Respecting the Individual,” and that both men should be fired. Mr. Branch’s
termination letter states that “[a]ccording to multiple sources,” the verbal disagreement
was “loud and inappropriate . . . and there was legitimate concern it would turn physical.”
(Doc. 27-3). The letter also claimed that “several employees had to step in and separate
[Mr. Branch] and the other employee,” id.—a fact that Mr. Branch disputes, see Doc. 30,
pp. 2-3. Both Mr. Branch and Nick L. were terminated on July 19, 2016. At the time, Mr.
Branch was the only African-American employee working for Transplace in the broker
division of the company’s office in Lowell, Arkansas.
Though Transplace maintains that it fired Mr. Branch due to the nature of this
altercation with Nick L., Mr. Branch believes he was dismissed due to his race. In his
Complaint, he claims that Transplace failed to promote him during his tenure with the
company, and that he was not given an opportunity to apply for promotions within his
division. See Doc. 1, p. 3. In his response to summary judgment, he attributes this “failure
to be promoted” as being “due to his race and [to] retaliation,” but he offers no specific
facts or incidents to support this claim. See Doc. 30, p. 4. From Mr. Branch’s perspective,
the incident involving Nick L. was one in which Mr. Branch was the victim of verbal
harassment and humiliation by another coworker. Rather than fire the aggressor, Nick L.,
the company decided to fire Mr. Branch, as well. He maintains that Transplace merely
used the argument as pretext for terminating Mr. Branch due to his race. According to Mr.
Branch, several similarly-situated Caucasian employees had engaged in similar behavior
in the past but were never suspended or fired.
ll. LEGAL STANDARD
The standard of review for summary judgment is well established. Under Federal
Rule of Civil Procedure 56(a), “[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.” The Court must review the facts in the light most favorable
to the opposing party and give that party the benefit of any inferences that logically can be
drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir.
1997). The moving party bears the burden of proving the absence of a genuine dispute
of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Nat'l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 606 (8th Cir.
1999).
Once the moving party has met its burden, the non-moving party must “come
forward with ‘specific facts showing that there is a genuine issue for trial." Matsushita, 475
U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). In order for there to be a genuine issue of
material fact, the non-moving party must produce evidence “such that a reasonable jury
could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d
64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“The nonmoving party must do more than rely on allegations or denials in the pleadings,
and the court should grant summary judgment if any essential element of the prima facie
case is not supported by specific facts sufficient to raise a genuine issue for trial.” Register
v. Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
“While employment discrimination cases are often fact intensive and dependent on
nuance in the workplace, they are not immune from summary judgment, and there is no
separate summary judgment standard for employment discrimination cases.” Fercelio v.
Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010). A plaintiff can survive summary
judgment on a discrimination claim “either by providing direct evidence of discrimination
or by creating an inference of unlawful discrimination” using circumstantial evidence. Bone
v. G4S Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012). When a plaintiff relies on
circumstantial evidence to prove discrimination based on disparate treatment, the claim is
analyzed using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).
Under the burden-shifting framework, the employee must first establish a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802. A minimal evidentiary
showing will satisfy this burden. Johnson v. Ark. State Police, 10 F.3d 547, 551 (8th Cir.
1993). Once the employee meets it, a presumption of discrimination is created. Tex. Dept.
of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). The burden then shifts to the
employer to offer a legitimate, non-discriminatory reason for the adverse employment
actions taken. McDonnell Douglas, 411 U.S. at 802. “Once the employer's burden is met,
the presumption of discrimination disappears, and the employee must prove that the
proffered justification is merely a pretext for discrimination.” Pope v. ESA Servs., inc., 406
F.3d 1001, 1007 (8th Cir. 2005) (citing Sprenger v. Fed. Home Loan Bank of Des Moines,
253 F.3d 1106, 1111 (8th Cir. 2001)). “At all times, the burden of persuasion remains with
the plaintiff.” Id. (citing Gagnon v. Sprint Corp., 284 F.3d 839, 847 (8th Cir. 2002)).
lll. DISCUSSION
The Court has carefully reviewed the entire record in the case and evaluated all
genuine, material disputes of fact in Mr. Branch’s favor, as the law requires. With that said,
however, Mr. Branch cannot prevail on summary judgment simply by lodging his
disagreement with Transplace’s arguments. To the extent Transplace has offered proof
that Mr. Branch’s claims are unsupported by the evidence, Mr. Branch is then “required to
discard the shielding cloak of formal allegations and meet proof with proof by showing a
genuine issue as to a material fact.” Pace v. Portfolio Recovery Assoc., LLC, 512 Fed.
Appx. 643, 645 (8th Cir. 2013) (per curiam) (quotation and citation omitted).
From the face of the Complaint, it appears that Mr. Branch’s claims of discrimination
and retaliation are brought under Title VII of the Civil Rights Act of 1964 and the Arkansas
Civil Rights Act (“ACRA’) of 1993. “Claims of discrimination and retaliation are properly
analyzed under the same legal framework whether brought under Title VIl or ACRA.”
Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 792 (8th Cir. 2011). Beginning with
the claim for race discrimination, a prima facie case requires proof that the victim: (1) is a
member of a protected class; (2) was meeting his employer's expectations; (3) suffered an
adverse employment action; and (4) was treated differently than similarly situated
employees who were not members of his protected class. Jackman v. Fifth Judicial Dist
Dep't of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013).
A claim for failure to promote based on race requires a showing the victim: (1) is
a member of a protected group; (2) applied for a promotion to a position for which the
employer was seeking applicants and for which he was qualified; (3) was not promoted;
and that (4) similarly situated employees who did not belong to the protected class were
promoted instead. Bennett v. Nucor Corp., 656 F.3d 802, 819-20 (8th Cir. 2011) (citing
Austin v. Minn. Mining & Mfg. Co., 193 F.3d 992, 995 (8th Cir. 1999)).
Lastly, to the extent Mr. Branch claims that he was retaliated against by Transplace,
a prima facie case requires a showing that: (1) he engaged in a protected activity; (2) he
suffered an adverse employment action; and (3) there was a causal connection between
the protected activity and the adverse employment action. Jackson v. United Parcel Serv.,
Inc., 643 F.3d 1081, 1088 (8th Cir. 2011) (quotation and citation omitted). Below, the
Court will address Mr. Branch’s three claims, using the burden-shifting framework set forth
in the McDonnell Douglas case.
A. Race Discrimination Due to Termination
Mr. Branch contends he suffered race discrimination due to his termination. He
meets the first three factors of the prima facie test for race discrimination easily, as he is
a member of a protected class, was meeting his employer’s legitimate expectations at the
time, and suffered an adverse employment action. He also meets the fourth factor of the
test, as he makes at least a minimal evidentiary showing that several Caucasian, similarly-
situated employees were involved in verbal altercations at work, but none was fired. See
Mr. Branch’s EEOC Questionnaire, Doc. 30-2 (stating “[t]here have been verbal conflicts
between Kriston Barnes and Justin Felts, Richard Scott and Kriston Barnes, Courtney
O’Brien and several employees,” and noting that all of these employees are Caucasian and
none was suspended or terminated for engaging in this behavior).
Now that Mr. Branch has set forth a prima facie case, the burden shifts to
Transplace to proffer a legitimate, non-discriminatory reason for termination. Here,
Transplace contends that the altercation between Mr. Branch and Nick L. violated the
workplace code of conduct, and that both individuals involved in the conflict were fired.
This decision was based upon Transplace’s belief that the confrontation was “a loud and
inappropriate verbal altercation . . . and there was a legitimate concern it would turn
physical.” (Doc. 27-3).
Mr. Branch responds that the reason offered by Transplace for firing him is
pretextual. He contends, first, that he was not the aggressor in the verbal altercation with
Nick L., but was instead the victim of Nick L.’s racially motivated slurs and harassment.
Second, he maintains that firing employees for engaging in verbal altercations, such as the
one he was in, was an unprecedented move by Transplace. According to Mr. Branch,
several Caucasian coworkers of his had been involved in similar verbal disagreements at
work, but had never been suspended, let alone fired. Third, Mr. Branch points to his long
tenure with the company and notes that he never presented the company with any cause
to fire him prior to the incident with Nick L.? He therefore contends that Transplace simply
seized upon the incident to justify firing him due to his race.
? Other than the disagreement with Nick L., Transplace offers no another reason for firing
him. The company’s termination letter acknowledges Mr. Branch’s “long tenure with
Transplace,” and notes that in Mr. Branch’s particular case, the company “ma[de] an
exception’ to its usual policy of refusing to pay fired workers for any unused vacation time.
(Doc. 27-3, p. 1).
Transplace offers no rebuttal to Mr. Branch’s pretext arguments, and thus, has failed
to meet its burden on summary judgment. Mr. Branch, on the other hand, has identified
in his prima facie case and in his pretext argument several similarly-situated Caucasian
coworkers who engaged in the same or similar behavior that he did, yet were not
disciplined in the same way. Mr. Branch is not required to establish that racial
discrimination was the one and only reason why he was fired. Instead, Title VII, as
amended by the Civil Rights Act of 1991, provides that an unlawful employment practice
is established when a plaintiff “demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though other factors also
motivated the practice,” 42 U.S.C. § 2000e—2(m) (emphasis added). In other words, Mr.
Branch meets his burden on summary judgment by setting forth facts and evidence that
“both discredit the employer's articulated reason and demonstrate the ‘circumstances
permit a reasonable inference of discriminatory animus.” Johnson v. Securitas Security
Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 855 (8th Cir. 2012)). He has done so here, and therefore, his claim
for race discrimination will survive for trial.
B. Race Discrimination Due to Failure to Promote
Mr. Branch’s second claim is that Transplace failed to promote him due to his race.
Although it is clear that Mr. Branch is a member of a protected group, neither the
Complaint nor his response to the Motion for Summary Judgment gives any details as to
his failure-to-promote claim. For example, he never discloses when he applied for certain
jobs within Transplace, the names of the positions he applied for, or whether any similarly-
situated employees—who were not members of his race—in fact received these
promotions instead. According to the Supreme Court, a discrete act, such as a failure to
promote, “starts a new clock for filing charges alleging that act.” Nat. R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002). As the Court has no information as to when
any alleged failure to promote occurred, there is no way to make even a threshold finding
that the claim was timely filed with the EEOC. In any event, Mr. Branch has failed to set
forth a prima facie case to support this claim, and it is therefore dismissed.
C. Retaliation
Mr. Branch’s third and final claim is for retaliation. A prima facie case for retaliation
requires a showing that the claimant engaged in protected activity and suffered an adverse
employment action as a result. “To make out a retaliation claim, the plaintiff must show that
the protected conduct was a ‘determinative—not merely a motivating—factor’ in the
employer's adverse employment decision.” Van Horn v. Best Buy Stores, L.P., 526 F.3d
1144, 1148 (8th Cir.2008) (quoting Carrington v. City of Des Moines, lowa, 481 F.3d 1046,
1053 (8th Cir.2007)).
Although the record on summary judgment contains very little information about the
retaliation claim, it appears Mr. Branch’s main contention is that his firing was retaliatory
in nature because it came only after his supervisors found out about Nick L.’s racially-
motivated comments. Assuming Mr. Branch’s reporting of Nick L.’s comments constitutes
protected speech under Title VII, Mr. Branch has failed to show any evidence of a causal
nexus between his complaint and his eventual firing. Unlike the proof he presented on his
claim of race discrimination, Mr. Branch offers nothing but speculation to substantiate his
claim that he was fired in retaliation for engaging in protected speech. “A party's
‘unsupported self-serving allegation[ ] that [his] employer's decision was based on
retaliation does not establish a genuine issue of material fact.”” Jackson, 643 F.3d 1081,
1088. This claim is therefore dismissed.
IV. CONCLUSION
For the reasons explained herein, Defendant Transplace Freight Services, LLC’s
Motion for Summary Judgment (Doc. 25) is GRANTED IN PART AND DENIED IN PART.
The Motion is denied as to Mr. Branch’s claim that his termination was racially motivated
and constituted illegal discrimination. The Motion is granted as to all other claims, which
are DISMISSED WITH PREJUDICE.
With regard to the apparent point of contention between the parties as to which
Transplace entity was Mr. Branch’s employer and should stand trial in this matter, the
Court hereby ORDERS the parties to meet and confer, and then file a joint stipulation on
the record no later than December 4, 2017, identifying the name of the correct Transplace
entity that is being sued and will □□ trial.
IT |S SO ORDERED on this JPiay of ee 2017.
AAAS
MOTHY L7-BROOKS
Lo DATATES DISTRICT JUDGE
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