Hemphill

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

GRAY W. HEMPHILL, III, )

)

Plaintiff, )

)

v. ) Case No. 3:24-cv-00866

) Judge Aleta A. Trauger

HUB GROUP, INC, )

)

Defendant. )

MEMORANDUM

Before the court is the Motion for Summary Judgment (Doc. No. 34) filed by defendant

HUB Group, Inc. (“HUB”), seeking summary judgment on all of plaintiff Gray Hemphill’s claims

against it for employment discrimination under 42 U.S.C. § 1981 and the Tennessee Human Rights

Act (“THRA”), violation of the minimum wage and overtime provisions of the Fair Labor

Standards Act (“FLSA”), retaliation in violation of all three statutory schemes, and unjust

enrichment under Tennessee law. (See Compl., Doc. No. 1.) For the reasons set forth herein, the

motion will be granted.

I. LEGAL STANDARD – RULE 56

Under Federal Rule of Civil Procedure 56, any party “may move for summary judgment,

identifying each claim or defense . . . on which summary judgment is sought.” Fed. R. Civ. P.

56(a). “The 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.” Id.

By its very terms, Rule 56 anticipates “that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). In other words, even if genuine,

a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating

a motion for summary judgment. On the other hand, “summary judgment will not lie if the dispute

about a material fact is ‘genuine.’” Id. at 248.

“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect

the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d

718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). A dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the non-moving party.” Peeples v. City of

Detroit, 891 F.3d 622, 630 (6th Cir. 2018).

In ruling on a motion for summary judgment, it is not the judge’s function to make

credibility determinations, “weigh the evidence[,] and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In determining

whether a genuine issue of material fact exists, the court must assume as true the evidence of the

nonmoving party and draw all reasonable inferences in that party’s favor. Id. at 255; Tolan v.

Cotton, 572 U.S. 650, 660 (2014). However, the “mere existence of a scintilla of evidence in

support of the” nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S.

at 252. “There must be evidence on which the jury could reasonably find for the [nonmoving

party].” Id. The inquiry, therefore, “asks whether reasonable jurors could find by a preponderance

of the evidence that the” nonmoving party is entitled to a verdict. Id.

II. PROCEDURAL HISTORY

Hemphill initiated this lawsuit in the Davidson County Circuit Court, and HUB removed

it to this court in July 2024. Following the close of discovery, HUB moved for summary judgment

on all claims set forth in the Complaint. In support of its motion, HUB filed a Memorandum of

Law (Doc. No. 36), Statement of Undisputed Material Facts (“SUMF”) (Doc. No. 35), and the

factual material cited in support of its motion. Hemphill filed a Response in Opposition to the

Motion for Summary Judgment (Doc. No. 39), Response to the SUMF (“PRSUMF”) (Doc. No.

41), his own Statement of Additional Material Facts (“SAF”) (Doc. No. 40), and additional or

duplicative evidentiary material. The defendant responded to the SAF (“DRSAF”) (Doc. No. 43)

and filed a Reply (Doc. No. 42).1

In his Response, Hemphill expressly concedes that the factual record as developed in

discovery is insufficient to support his claims for substantive violations of 42 U.S.C. § 1981, the

THRA, or the FLSA. (Doc. No. 39 at 1–2 n.1.) He nonetheless maintains that material factual

disputes preclude summary judgment on his claims for retaliation in violation of all three statutes,

as well as on his unjust enrichment claim. The factual recitation below, therefore, focuses on the

facts relevant to these remaining claims.

The facts set forth herein for which no citation is provided are drawn directly from the

PRSUMF and are undisputed for purposes of summary judgment. The facts are undisputed or

viewed in the light most favorable to the plaintiff, unless otherwise indicated.

III. FACTS

A. Background

HUB is a transportation and logistics management company that specializes in providing

comprehensive supply chain solutions. It employs truck drivers to deliver products.

1 Prior to May 2025, the court’s Local Rules authorized a party responding to a summary

judgment motion to include with its response to the movant’s statement of undisputed material

facts a “concise statement of additional facts” that the non-movant believes are both material and

disputed. L.R. 56.01(c) (Jan. 24, 2020). As amended in May 2025, the Local Rules no longer

authorize such an additional statement of disputed facts. See L.R. 56.01(e) (May 15, 2025). The

defendant, although it responded to the SAF, objected on the grounds that it is prohibited by the

Local Rules. The court has reviewed the SAF and finds that, aside from the fact that it is not

permitted by the Local Rules, most of the statements in the SAF are either redundant of those in

the SUMF, not material to the remaining claims, or not supported by the cited material.

HUB Group utilizes Lytx DriveCam (“Lytx”), a “VER” (Video Event Recording)

technology that assesses and captures driver behaviors to improve driver safety and provide drivers

with opportunities to improve their driving skills. Lytx captures “triggered events” to identify

driving behaviors that increase risk so that drivers can self-correct. Lytx reviews the “triggered

events” captured by the DriveCam and then sends the video to the terminal and/or driver manager

for review.

Triggered events include such things as rolling stops, eyes off the road, seat belts not

engaged, and driver distraction caused by such activities as eating, drinking, and smoking. When

a driver engages in certain unsafe behaviors, like distracted driving, the Lytx system emits audible

alerts, allowing drivers the opportunity to self-correct with no event being recorded. If, however,

the driver fails to correct him or herself after the second audible alert, the event will be recorded

and sent to management for secondary review.

HUB Group uses Idelic to manage the safety of its fleet. Idelic gathers data from various

sources of information, including a driver’s motor vehicle record, accident or injury reports, and

Lytx. Using this information, Idelic generates a Watch List risk score, between 1 and 100, with a

score of 1 being the best and 100 the worst. Citations, “dirty” roadside inspections, and Lytx

triggered events can increase a driver’s Watch List risk score. HUB will place a driver on a

Personal Development Plan (“PDP”) when his or her Idelic Watch List risk score exceeds 76. A

driver can only be assigned two PDPs within a rolling 12-month period. If a driver’s Watch List

risk score requires a third PDP within the 12-month period, the driver may be subject to

termination.

When a driver is placed on a PDP, Idelic assigns tasks for the driver and the driver’s

manager to complete over a four-week period to address the unsafe behavior that is increasing the

driver’s Watch List score. The expectation is that over the course of the PDP, the driver’s Watch

List risk score will decrease without further incident.

HUB also provides all new drivers a copy of and access to the HUB Group Company Driver

Handbook (“Handbook”). The Handbook provides a policy concerning driver disqualifications,

and drivers are provided with examples of safety violations that constitute driver disqualifications,

or instances in which a driver may be terminated. The Handbook states that “drivers may be

terminated” for, among other things, “failure to report an accident.” (Doc. No. 35-1 at 11–12.) The

term “accident” is defined by the Handbook as “[a]ny event involving a vehicle striking an object

not connected to the vehicle, excluding animals and normal road debris, regardless of damage.”

(Id. at 17.) The term “incident” is defined to include “a fixed object accident resulting in less than

$1,000 in physical damage cost.” (Id. at 18.) “A driver who has a preventable accident or incident

is subject to corrective action, up to and including termination of employment.” (Id. at 15.)

B. Hemphill’s Employment and Termination

HUB employed Hemphill as a truck driver from February 2023 until his termination on

October 5, 2023. His direct supervisor from February through May 2023 was Denise Smith. His

direct supervisor from May 2023 until his termination was Clevon Ford. At all relevant times, Ty

Wright was the Terminal Manager for HUB’s Nashville Terminal and was Hemphill’s second

level supervisor. Smith, Ford, Wright, and Hemphill are all African American.

Around May 1, 2023, Hemphill was placed on his first PDP. He completed the tasks

assigned by Idelic and thus completed the PDP. In August 2023, Hemphill’s Watch List score hit

the threshold again, and he was placed on a second PDP when he returned from medical leave on

August 28, 2023. On September 21, 2023, Hemphill hit a parked trailer on a customer’s property.

(Hemphill Dep. 148–49.) Lytx captured the impact and alerted HUB management to the triggered

event. Wright subsequently called Hemphill and asked him about the incident. Hemphill admitted

to hitting the trailer after Wright questioned him. Although Hemphill acknowledges that his unit

struck the trailer, he characterizes the contact with the trailer as a “rub.” (Hemphill Dep. 149.)

According to the plaintiff, this “rub” did not result in damage. (See id. at 153, 155.) However,

Hemphill knew HUB’s policy required him, as a driver, to report any accident. Hemphill has

admitted that he struck an object with his trailer and failed to report it in violation of HUB Group

policy.

Ed Foster is the Southeast Regional Safety Manager who covers the Nashville Terminal

where Hemphill’s employment was based. Foster reviewed the incident and recommended to

Human Resources that Hemphill be terminated for failing to report an accident in violation of HUB

policy. At the relevant time, the Human Resources Manager overseeing the Nashville Terminal

was Tiara Adams (“Adams”), who received Foster’s termination recommendation. After

consulting with her direct supervisor, Director of Human Resources Laura O’Neal, Adams

approved Hemphill’s termination on or about October 5, 2023. On the same day, Wright called

Hemphill to inform him of the decision to separate his employment. Wright memorialized their

conversation in a follow-up email, explaining, “As a result of the investigation into the

incident/accident that occurred on Thursday, September 21, 2023, on a customer’s property, the

decision has been made to terminate your employment with Hub Group Trucking, effective

immediately, due to failure to report an incident/accident.” (Doc. No. 35-15 at 2.)

The Disciplinary Action Form documenting the plaintiff’s termination states that the reason

for the termination was Hemphill’s accident and failure to report it. (Doc. No. 40-5.) Under

“Action Plan for Improvement” on the same form, it states, “Based on the severity of the offense,

and the fact that he did not report it, along with the driver’s current watch list score of 62 (this is

before the collision), and that he is currently on his second PDP, the decision has been made to

terminate Mr. Hemphill’s employment with Hub Group Trucking, effective immediately.” (Id.)

C. Section 1981 and THRA Retaliation Claims

Asked during his deposition about his complaints about the Lytx system, Hemphill

explained that he is not alleging in this lawsuit that Lytx is intentionally discriminatory, but his

“assumption” is that the system was not designed to be as “accurate” for “people with dark skin

during dark hours” as it is for people with “white skin.” (Hemphill Dep. 206.) He believed it was

“possible that during programming, . . . it may have affected white drivers differently than black

drivers.” (Id. at 206.) Nothing in his deposition testimony suggests that he complained to his HUB

supervisors that he believed the system was discriminating against Black drivers. Asked about

meetings with HUB management about Lytx, the plaintiff testified that he and many other drivers,

too, were upset with the system because it “dinged” them for eating and drinking while driving.

(Id. at 88–89.) They had a Terminal meeting about the issue, when “a vice president came down

to Nashville to discuss” the complaints, though Hemphill could not recall which drivers attended

the meeting. (Id. at 97–98.) He also testified about a meeting between himself and his supervisors,

Smith and Wright. It is unclear when this meeting occurred. Asked what they discussed at this

meeting, Hemphill stated that they talked “[a]bout the use of drinking water and coffee and snacks

triggering the AI system,” and he complained that he “felt the Lytx in-camera system was dinging

[him] for drinking coffee,” or drinking generally, and eating. (Id. at 107–08.) He also testified that

Smith and Wright “acknowledged” that the system was “dinging” him for eating and drinking and

that Wright, in fact, had “instructed people to stop drinking, to quit agitating the AI system,” which

did not go over well with the drivers. (Id. at 108.)

After being asked what they talked about at the meeting with his supervisors, Hemphill did

not testify that race, or the possibility that the Lytx system was treating Black and White drivers

differently, came up during that or any other meeting. He vaguely recalled having a conversation

with another Black driver “about the sensitivity of the camera.” (Id. at 98.)

In response to HUB’s Motion for Summary Judgment, Hemphill filed a Declaration in

which he now states:

3. Upon receiving my first [PDP] in May 2023, I expressed concerns to Ty

Wright and Ed Foster about the fact that the Lytx camera system was constantly

“dinging,” or indicating potential unsafe behavior, any time I drank coffee or water

prior to sunrise. This prior communication is reflected in an email exchange

between myself and Mr. Wright . . . attached herein as Exhibit A.

. . . .

8. Accordingly, I complained to Ty Wright and Ed Foster that I was

concerned the artificial intelligence in the Lytx camera system may be inadvertently

causing racial discrepancies in Idelic Warning List point accruals. Some of the

contents of these conversations are reflected in Exhibit A.

9. Ty Wright referred to this complaint as me being argumentative and not

accepting responsibility for safety. This is reflected in Exhibit A.

(Doc. No. 40-2, Hemphill Decl. ¶¶ 3, 8–9.)

Exhibit A, to which the plaintiff refers, is a lengthy email exchange between him and Ty

Wright, some of which emails are also copied to Ed Foster, that took place from June 14, 2023

through June 16, 2023. (Doc. No. 40-7.) In the first email, from Wright to Hemphill, Wright

notified Hemphill, “You are approaching your second [PDP], based on your driving behaviors.”

(Id. at 6.) He stated that they had addressed and coached Hemphill’s “unsafe actions” but that he

had not changed the way he drove and, most recently, had run a stop sign. (Id.) Wright emphasized

that such conduct was “unacceptable and will not be tolerated.” (Id.) Hemphill responded with a

lengthy email, referencing his “first [meeting] on this issue,” during which he “shared with” Smith

and Wright his opinion—and they “both agreed” with him—“that drinking coffee and water or

snacks triggers the A.I. system,” i.e., Lytx. (Id. at 5.) He attributed his accumulation of points to

that problem rather than unsafe driving behavior. (Id.) He articulated numerous other complaints

and expressed his belief that Wright was “building a case against [him],” but he did not express

any complaint that the Lytx system is unfairly biased based on race or color, nor did he refer to a

past complaint that the system was discriminatory. (See id.) This is apparently the May 2023

meeting to which he refers in his Declaration (Hemphill Decl. ¶ 3), but it was with Smith and

Wright, not Foster and Wright, as he also confirmed in his deposition (Hemphill Dep. 107).

Wright responded with his own lengthy email, addressing and disputing each of Hemphill’s

contentions. His response likewise did not mention race. (Id. at 4.) Hemphill responded again, still

on June 14, accusing Wright of “suspending” him for three days after their meeting that day

because he was “upset” with Hemphill. (Id. at 3.) This email was copied to Foster. Wright

responded:

We are sitting drivers to improve our loads per driver per day. It is your turn to sit,

and that decision was made to do it now because of your driving behavior. It is a

good time to take a break and reflect on our discussion. Safety is our number one

priority, so yes, when someone is clearly, blatantly, not following the law and

company policy, and wants to argue about it, there will be discussions and

consequences.

Sitting drivers is never based on emotions. We follow the directives of Hub

leadership. You will be back to your normal schedule on Sunday, June 18. I fully

expect no more issues going forward.

(Id.)

Hemphill responded with yet another lengthy email to “recap” their meeting, enumerating

numerous complaints and again copying Foster. He mentioned ethnicity in this one, stating that he

felt that Wright’s referring to him as “bro” “was not only in a negative context but was an

inappropriate ethnic slur for someone my age and highly offensive and unprofessional.” (Id. at 2.)

Wright responded once more, copying Foster, thanking Hemphill for his “feedback and honest

communication” and declining to continue to go “back and forth in this manner.” (Id. at 1.)

D. FLSA Retaliation Claim

Hemphill submitted numerous complaints about and to Smith about Smith’s lack of

professionalism. He also complained to her about her failure to correctly report and pay him for

“detention” time on May 2, 3, 4, and 5, 2023. (See Doc. No. 40-8.) However, Hemphill admitted

during his deposition that he cannot identify a single week in which he was not eventually paid for

all hours worked. (Hemphill Dep. 168.) Hemphill never complained to management that he was

not being paid minimum wage, and he did not recall ever making a complaint about not receiving

overtime pay. (Hemphill Dep. 166.)

E. Unjust Enrichment Claim

Hemphill believes he may not have been paid for all hours worked, but he admitted during

his deposition that he cannot identify any week in which he was not paid for all hours worked.

(Hemphill Dep. 168.)

IV. ANALYSIS

A. Retaliation Under § 1981 and the THRA

Retaliation claims under § 1981 and the THRA are subject to the same legal standards,

and, when they depend on indirect evidence, they are both analyzed at the summary judgment

stage under the familiar McDonnell Douglas burden-shifting framework. See Laster v. City of

Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973)); Wade v. Knoxville Utils. Bd., 259 F.3d 452, 464 (6th Cir. 2001). Thus, to survive

summary judgment on retaliation claims, a plaintiff must first establish a prima facie case, which

requires evidence sufficient to prove “(1) that the employee engaged in protected activity; (2) that

the employer knew about the employee’s protected activity; (3) that the employer subsequently

took a materially adverse action against the employee; and (4) a causal connection between the

employee’s protected activity and the resulting adverse action.” Ferguson v. Middle Tenn. State

Univ., 451 S.W.3d 375, 382 (Tenn. 2014); see also Rogers v. Henry Ford Health Sys., 897 F.3d

763, 775 (6th Cir. 2018) (enumerating same elements). If a plaintiff succeeds in making out these

elements, “the burden shifts to the employer to proffer a legitimate, nondiscriminatory [or

nonretaliatory] reason for its decision.” Rogers, 897 F.3d at 772 (alteration in original) (citation

omitted). If the employer does so, “the plaintiff must then prove by a preponderance of the

evidence that the reasons offered by the employer were pretextual.” Id. (citation omitted).

HUB argues that the plaintiff cannot show that he engaged in protected activity, for

purposes of his retaliation claims under § 1981 and the THRA, because he cannot show that he

ever complained to HUB’s management that the Lytx system was inherently biased against Black

drivers. (Doc. No. 36 at 18.) It further argues that, even if Hemphill could make such a showing,

HUB had legitimate, non-retaliatory reasons for any adverse employment decisions to which the

plaintiff might point, and Hemphill cannot show that its reasons are pretext for retaliation.

The plaintiff argues in his Response that he has “ample evidence” of engaging in protected

activity, pointing specifically to his complaints about the Lytx system (Doc. No. 39 at 9, 10.) Most

of the factual assertions set forth in his Response are misleading or simply not supported by the

record. For instance, he claims that he “complained to his direct Hub Group supervisors that, as a

black man, Lytx was unfairly ‘dinging’ him and increasing his Idelic Watch List risk score when

he was eating or drinking while driving in the early mornings hours, whereas his white coworkers

reported the Lytx system did not indicate violations for them.” (Id. at 10.) Contrary to his

suggestion in his Response, Hemphill testified that two White coworkers reported to him that the

system was not “dinging” them for drinking coffee early in the morning, though one reported that

the system “dinged” him for eating a sandwich around 9:00 or 10:00 in the morning. (Hemphill

Dep. 204.) And Hemphill “seemed to recall” that he had had a discussion with one Black co-

worker, Charles Black, “about the sensitivity of the camera.” (Id. at 98.) He did not know if Mr.

Black made a report to management. (Id.) Otherwise, nothing in the record supports Hemphill’s

claim that he or anyone else reported to HUB that Lytx was discriminating against Black drivers,

except Hemphill’s own Declaration, filed in support of his opposition to summary judgment, in

which he asserts that he “complained to Ty Wright and Ed Foster that [he] was concerned the

artificial intelligence in the Lytx camera system may be inadvertently causing racial discrepancies

in Idelic Warning List point accruals.” (Hemphill Decl. ¶ 8.)2 He does not actually indicate at

which meeting he made this complaint, when it occurred, or whether he is in fact thinking of his

meeting in May 2023 with Wright and Smith.

The written record—specifically the lengthy emails from May 14–16, 2023—does not

reflect a discussion of race and does not affirmatively establish that Hemphill ever complained to

his managers that he believed the Lytx system discriminated based on race. When asked during

his deposition what he talked about when he met with Wright and Smith in May 2023 about his

issues with Lytx, Hemphill said they discussed the fact that he was being “dinged” for eating and

drinking. (Hemphill Dep. 107.) He did not indicate that he complained that he was being dinged

by Lytx for eating and drinking because of his race or color.

It is well established that “[a] party may not create a factual issue by filing an affidavit,

after a motion for summary judgment has been made, which contradicts her earlier deposition

testimony.” Smith v. Consol. Rail Corp., 91 F.3d 144 (Table), 1996 WL 366283, at *4 (6th Cir.

June 28, 1996) (quoting Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986)). Even

2 The court presumes, without deciding, that this “vague charge of discrimination” qualifies

as protected activity, but it is not clear at all that it does. Cf. Yazdian v. ConMed Endoscopic Techs.,

Inc., 793 F.3d 634, 645 (6th Cir. 2015) (“Title VII does not protect an employee, however, if his

opposition is merely a ‘vague charge of discrimination.’” (quoting Booker v. Brown & Williamson

Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989)).

without a direct contradiction, the “sham affidavit” rule “can also apply when the witness’s

affidavit is in tension with . . . prior testimony as long as the circumstances show that the party

filed the affidavit merely to manufacture ‘a sham fact issue.’” Boykin v. Fam. Dollar Stores of

Michigan, LLC, 3 F.4th 832, 842 (6th Cir. 2021) (quoting Aerel S.R.L. v. PCC Airfoils, L.L.C., 448

F.3d 899, 908 (6th Cir. 2006)). At the same time, the rule does not prevent a party “who was not

directly questioned about an issue from supplementing incomplete deposition testimony with a

sworn affidavit.” Aerel, 448 F.3d. at 907. Importantly, a deponent “is under no obligation to

volunteer information not fairly sought by the questioner.” Id. A party is free to file a declaration

that “fills a gap left open by the moving party and thus provides the district court with more

information, rather than less, at the crucial summary judgment stage.” Id.

In this case, Hemphill’s assertion in his Declaration that he complained to Wright and

Foster that the “Lytx camera system may be inadvertently causing racial discrepancies in Idelic

Warning List point accruals” is in obvious tension with the contemporaneous email exchange that

complains about the Lytx system generally but without reference to race and his deposition

testimony, stating that what he talked about in meetings with company management was that he

was being dinged for eating and drinking. (Compare Hemphill Decl. ¶ 8 with, e.g., Hemphill Dep.

107.) However, the court cannot find any instance in Hemphill’s deposition where he was directly

asked whether he complained to HUB management that he thought Lytx was discriminating

unfairly (even if unintentionally) based on race.3 And Hemphill’s statement in his Declaration that

he told his managers that he believed Lytx was “causing racial discrepancies” is not in actual

conflict with his testimony that they talked about the system’s dinging him for eating and drinking.

3 He was asked whether he has “spoken with anybody at Lytx” about his suspicions.

(Hemphill Dep. 94.)

Under these circumstances, although it presents an extremely close call, the court does not find it

appropriate to invoke the sham affidavit rule. In other words, the court accepts, for purposes of the

plaintiff’s prima facie case of retaliation, that he may have engaged in protected conduct by

complaining in some meeting he had with Wright no later than mid-June 2023 that Lytx might

discriminate based on race.

HUB also argues that Hemphill cannot show a causal connection between this alleged

protected activity and any adverse action for purposes of his prima facie case and that, even if he

could, he cannot refute the company’s legitimate, non-retaliatory reasons for its actions. Hemphill

contends that the company retaliated against him by suspending him, causing him to “lose runs,”

placing him on PDPs, and ultimately terminating him. He maintains that the temporal proximity

between his complaints and the adverse actions is sufficiently short to establish causation and that

he can establish pretext, because (1) HUB “misclassified the terminating event as an ‘accident’

rather than an incident”; (2) HUB misrepresented that his PDP did not impact the decision to

terminate him; (3) Hemphill was subjected to numerous other incidents of “discipline” when other

drivers were not for the same conduct; (4) the plaintiff’s three-day “furlough” was a punitive

suspension; and (4) HUB’s internal emails reflect pretext, specifically a “Hallelujah!” email from

Ed Foster to Ty Wright after learning of Hemphill’s termination.

As the defendant points out, the plaintiff’s first PDP took place before Hemphill’s alleged

complaint that Lytx was racist. The second did not take place until late August, more than two

months later (at least), and his termination did not take place until October, more than four months

later. As the Sixth Circuit has stated, “a roughly 75-day delay between [a plaintiff’s] protected

activity and an adverse employment action is not, standing alone, a convincing case for proving

causation.” Kenney v. Aspen Techs., Inc., 965 F.3d 443, 449 (6th Cir. 2020). The court finds that

the plaintiff cannot establish a causal connection between his purported protected conduct and his

PDPs or termination based solely on the timing of the events, and he offers no other evidence of

causation.

Regarding his three-day furlough, assuming that this event qualifies as an adverse

employment action, the plaintiff cannot show that the defendant’s proffered reason for it is pretext

for retaliation for protected conduct. Ty Wright sent out a text to “all drivers” on June 12, 2023,

notifying them that he had been directed to “sit” drivers “if we are over the daily scheduled

threshold,” as a result of which many drivers would only be working four days per week, but that

the company was “trying to be as fair as possible.” (Doc. No. 35-17 at 2.) The plaintiff was notified

on June 14 that he would be furloughed under this policy until June 18. (See Doc. No. 40-7 at 3.)

Wright explained to him that it was Hemphill’s “turn to sit” but also that the “decision was made

to do it now because of [Hemphill’s] driving behavior” and his continuing to argue about the

matter. (Id.) The plaintiff clearly believed that the action was punitive and “retaliatory” for his

complaints generally, and he confirmed during his deposition that his assumption was based

entirely on Wright’s email itself. (See Hemphill Dep. 121–22.)

“The plaintiff does not need to prove pretext; [he] only needs to show that the question of

pretext is a genuine factual dispute.” Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs., 974

F.3d 652, 667 (6th Cir. 2020) (citing Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 813 (6th

Cir. 2011)). “Notably, this burden on the plaintiff ‘merges with the ultimate burden of persuading

the court that [he] has been the victim of intentional discrimination.’” Jackson v. VHS Detroit

Receiving Hosp., Inc., 814 F.3d 769, 779 (6th Cir. 2016) (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981)). Thus, on summary judgment, “[i]n evaluating pretext and the

plaintiff’s ultimate burden, the court should consider all [probative] evidence in the light most

favorable to the plaintiff, including the evidence presented in the prima facie stage.” Id. (quoting

Provenzano, 663 F.3d at 812). Generally, to establish pretext, the plaintiff must come forward with

some evidence from which a reasonable jury could conclude that the defendant’s proffered reason

had “no basis in fact, did not motivate the adverse employment action, or was insufficient to

motivate the action.” Greer v. Cummins, Inc., No. 22-5663, 2023 WL 9472037, at *3 (6th Cir. Oct.

23, 2023) (citing Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012)).

With regard to the plaintiff’s three-day furlough, he offers no evidence aside from his own

speculation that Wright’s reason for the action and the timing of it had no basis in fact, did not

motivate the decision, or were insufficient. The plaintiff’s argumentative tone in his emails on June

14 and June 15, standing alone, is sufficient to justify the timing of Wright’s decision to “sit” him,

and, in any event, the plaintiff has no evidence that other drivers were treated differently than he

was with regard to furloughs.

Even assuming that the plaintiff could establish a causal connection between his protected

activity and his second PDP or his termination, he cannot establish that HUB’s reasons for those

actions was pretext for retaliation. The PDP was based on the points assigned by Idelic, and

Hemphill’s termination was based on his failure to report an accident, in violation of company

policy. That his history with the company and prior PDPs may have contributed to that decision

does not conflict with or suggest that the proffered reason—his failure to report the accident—was

pretext for retaliation. Although Hemphill now claims that there is some distinction between an

“incident” and an “accident,” his argument ignores the plain language of HUB policy, quoted

above, which requires drivers to report all accidents and incidents immediately to their immediate

supervisor. (See Doc. No. 35-1 at 11–12, 17–18.) In other words, however the “trailer rub” is

characterized, Hemphill was required to report it, and he admitted that he did not report it as

required by HUB policy. He also fails to offer any evidence beyond his rank speculation that

Foster’s sending a “Hallelujah” email to Wright after the termination was concluded suggests

retaliation.

The other events Hemphill complains about are either too trivial to qualify as adverse

events or they predated the alleged adverse events. The court finds that the evidence in the record,

viewed in the light most favorable to the plaintiff, would not permit a rational jury to find in the

plaintiff’s favor on his claims of retaliation in violation of § 1981 and the THRA. The defendant

is entitled to summary judgment on these claims.

B. Retaliation Under the FLSA

FLSA retaliation claims that rely on indirect evidence are also analyzed under the

McDonnell Douglas framework. Adair v. Charter Cnty. of Wayne, 452 F.3d 482, 489 (6th Cir.

2006). To establish a prima facie case of retaliation, the plaintiff must show that “(1) he or she

engaged in a protected activity under the FLSA; (2) his or her exercise of this right was known by

the employer; (3) thereafter, the employer took an employment action adverse to her; and (4) there

was a causal connection between the protected activity and the adverse employment action.”

Caudle v. Hard Drive Express, Inc., 91 F.4th 1233, 1237–38 (6th Cir. 2024) (quoting Adair, 452

F.3d at 489).

The anti-retaliation provision of the FLSA makes it unlawful for an employer to “discharge

or in any other manner discriminate against any employee because such employee has filed any

complaint or instituted or caused to be instituted any proceeding under or related to this chapter,

or has testified or is about to testify in any such proceeding, or has served or is about to serve on

an industry committee.” 29 U.S.C. § 215(a)(3). For purposes of a retaliation claim, an employee

“engages in protected activity when he opposes employer practices that the employee reasonably

believes are in violation of the statute.” Warren v. Chester Cnty., No. 25-5370, 2026 WL 372953,

at *5 (6th Cir. Feb. 10, 2026) (quoting Browning v. Franklin Precision Indus., Inc., No. 23-5406,

2023 WL 8437235, at *3 (6th Cir. Dec. 5, 2023)). “To support a retaliation claim, the opposed

practice need not actually violate [a statute]; rather, the employee must have ‘reasonably believed

it to be a violation of [the statute].’” Bacon v. Honda of Am. Mfg., Inc., 192 F. App’x 337, 342-43

(6th Cir. 2006) (quoting Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000)

(alterations omitted))). For purposes of the notice element of the prima facie case, “a complaint

must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both

content and context, as an assertion of rights protected by the statute and a call for their protection.”

Warren, 2026 WL 372953, at *6 (quoting Kasten v. Saint-Gobain Performance Plastics Corp.,

563 U.S. 1, 14 (2011)). “An employee’s complaint must take on “some degree of formality,

certainly to the point where the recipient has been given fair notice that a grievance has been lodged

and does, or should, reasonably understand the matter as part of its business concerns.” Id. (quoting

Kasten, 563 U.S. at 14). “A complaint has been ‘filed’ when a reasonable, objective person would

understand the employee to have put the employer on notice that she is asserting statutory rights

under the FLSA.” McKinnon v. L-3 Commc’ns Corp., 814 F. App'x 35, 42 (6th Cir. 2020).

The defendant contends that Hemphill did not engage in protected activity and that his

vague complaints about delays in payment were not sufficient to put it on notice that the plaintiff

was making a complaint under the FLSA. (Doc. No. 36 at 19; see also id. (“Put simply, Hemphill’s

complaints were trivial in nature – frustration about minor delays in payments of his wages – not

clear and detailed complaints that put HUB Group on notice that they were potentially violating

his rights under the FLSA.”).) Hemphill responds that he “repeatedly complained . . . that he was

not being paid correctly or promptly for work already performed” and that he had to “‘repeatedly

address’ those pay problems.” (Doc. No. 39 at 19.)

As set forth above, Hemphill testified that he was always paid at least minimum wage, that

he never complained to HUB management that he did not receive at least minimum wage, and he

did not “recall” whether he ever complained about not receiving overtime pay. (Hemphill Dep.

166.) Instead, he claimed that his pay was delayed on several occasions. (See id. at 167 (“Not never

paid, delayed.”).) He offers no evidence that he made any type of complaint that would have put

HUB on notice that he believed his rights under the FLSA were being violated. As a result, he

cannot establish that he engaged in activity protected by the FLSA or that HUB was on notice of

such protected activity.

HUB is entitled to summary judgment on Hemphill’s FLSA retaliation claim.

C. Unjust Enrichment

To prevail on an unjust enrichment claim under Tennessee law, a plaintiff must

demonstrate the following elements:

(1) there must be no existing, enforceable contract between the parties covering the

same subject matter; (2) the party seeking recovery must prove that it provided

valuable goods and services; (3) the party to be charged must have received the

goods and services; (4) the circumstances must indicate that the parties involved in

the transaction should have reasonably understood that the person providing the

goods or services expected to be compensated; and (5) the circumstances must also

demonstrate that it would be unjust for the party benefitting from the goods or

services to retain them without paying for them.

College v. Nat’l Ass’n of Christian Athletes, No. E2021-00931-COA-R3-CV, 2023 WL 128275,

at *6 (Tenn. Ct. App. Jan. 9, 2023) (quoting Smith v. Hi-Speed, Inc., 536 S.W.3d 458, 480 (Tenn.

Ct. App. 2016)).

HUB asserts that it is entitled to summary judgment on this claim because Hemphill cannot

show that he rendered services for which he was not paid. (Doc. No. 36 at 22 (citing Hemphill

Dep. 167–70).) The plaintiff responds that “a reasonable jury could conclude that Hub Group was

unjustly enriched by retaining the benefit of Plaintiff’s services while mishandling or delaying

wages and cutting remunerative tasks in response to his complaints.” (Doc. No. 39 at 23.)

Hemphill does not, however, point to evidence in the record giving rise to a material factual

dispute as to whether he performed any work for which he was not paid. When he was asked during

his deposition whether it was his “understanding that [he was] never paid for some of [his] routes,”

Hemphill clarified, “Not never paid, delayed.” (Hemphill Dep. 167.) Asked to confirm that he was

always ultimately paid for the routes he drove, Hemphill stated that he believed that “there were

significant pay disparities” but that he just “got tired of checking [his] income statements every

week.” (Hemphill Dep. 167–68.) However, he could not identify any workweek for which he was

not paid for all of the hours he worked. Discovery has been completed, and Hemphill has not

produced or identified any evidence suggesting that he was not paid for all hours worked. (Id. at

169–70.) Hemphill’s speculation or belief that he may not have been paid for all of the hours he

worked is not sufficient to permit a rational jury to conclude that he, in fact, worked hours for

which he was not paid. Moreover, his statement in his Declaration that Denise Smith, when she

was his supervisor, “consistently underpaid [him] for work performed” (Hemphill Decl. ¶ 12)

directly contradicts the plaintiff’s deposition testimony that his pay was simply “delayed” at times

and that he could not identify any work performed for which he was not ultimately paid. As such,

it is subject to the sham affidavit rule and will not be accepted as creating a material factual dispute.

HUB is entitled to summary judgment on the plaintiff’s unjust enrichment claim.

21

V. CONCLUSION

The plaintiff concedes that he cannot prevail on his substantive claims under 42 U.S.C. §

1981, the THRA, and the FLSA, and he fails to establish a material factual dispute that would

preclude summary judgment as to his retaliation and unjust enrichment claims. HUB’s Motion for

Summary Judgment (Doc. No. 34), therefore, will be granted, and this case will be dismissed. An

appropriate Order is filed herewith.

ALETA A. TRAUGER

United States District Judge