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Lake v. Yellow Transportation, Inc.: US District Court : EMPLOYMENT - summary judgment of no racial discrimination, no pretext regarding tardiness

1The Court views all facts in the light most favorable to
plaintiff, the non-moving party. This motion is considered
pursuant to Rule 56 of the Federal Rules of Civil Procedure. The
facts set forth in this Opinion are drawn from the pleadings, and
are not determinations on the merits.
William Lake )
v. ) ORDER
Yellow Transportation, Inc. )
This matter is before the Court on defendants motion for
summary judgment. Plaintiff was employed by Yellow Transportation,
Inc. (Yellow), from August, 2004, until his termination on
November 23, 2005. According to plaintiff, his dismissal resulted
from racial discrimination. Defendant states plaintiff was
improperly tardy, and denies any racial animus.
Defendant claims plaintiff has failed to establish a prima
facie case of racial discrimination, and has failed to show its
reasons for discharge were a pretext for racial discrimination.
Plaintiff opposes summary judgment, asserting there are genuine
issues of material fact which preclude a decision at this time.
Defendants motion is granted.
I. Background1
A. Plaintiffs Casual Employment
Plaintiff, William Lake, an African American, began working at
Yellows Burnsville, Minnesota, facility in August, 2004, as a
casual dock worker. Yellow transports freight using - for purposes
of this case, and at the time in question - three categories of
workers: casual, probationary, and regular.
Casual workers are employed on an as-needed basis, and are
subject to call two hours before an open shift. Yellow requires
casuals to accept at least five shifts every week. As part-time
employees, casuals are not subject to the collective bargaining
agreement between Yellow and its organized employees. The company
does not guarantee permanent employment for casual workers.
Yellows probationary employees are in that status for a
period of 30 days, and are also not subject to the collective
bargaining agreement. A probationary worker who successfully
passes the 30-day period becomes a regular Yellow employee, and
becomes subject to the collective bargaining agreement.
When plaintiff began as a casual employee, he received and
signed an acknowledgment stating that [e]xcessive work missed will
result in my name being removed from the casual list. (Lake Dep.
66:9-14, Ex. E.) Yellow stressed attendance, availability, and
performance as the factors for promotion from casual status.
During plaintiffs employment as a casual, he was routinely
unavailable for work when called. (Kraus Aff. 5.) Even though
he did not work 70% of the time when called (Kraus Aff. 11.), he
received positive reviews and feedback when he did report for work.
He promised Yellow his attendance and availability would improve if
2During oral argument, plaintiff acknowledged arriving late on
three occasions during the probationary period. This contrasts
with his Memorandum, which acknowledges only two late arrivals.
(Pl.s Mem. Opp. Summ. J. 37) (arguing that plaintiffs two
tardies of two minutes was [sic] reasonable). Here, the Court
relies on the number in the Memorandum.
he was promoted.
B. Plaintiffs Probationary Employment
In May, July, and September, 2005, plaintiff sought
probationary status. (Kraus Aff. 8-10.) Each request was
denied because of his unavailability and attendance. Also, if
employees failed to satisfactorily complete probation, they were
not allowed to return to casual status.
On October 31, 2005, Yellow agreed to allow plaintiff into the
30-day probationary regime beginning in November. He was
cautioned, however, that he must exhibit acceptable attendance and
availability. (Kraus Aff. 12.) Plaintiff acknowledged he
should have a spotless record during this 30-day period. (Pl.s
Mem. Opp. Summ. J. 5.) He denies Yellow warned him to avoid
tardiness during probation. (Pl.s Mem. Opp. Summ. J. 11.)
According to Yellow, plaintiff arrived late to work on
November 4, 5, 11, and 18, and failed to punch his timecard on
November 19 and 21. While plaintiff denies being tardy as often as
claimed, he admits to being tardy on November 11 and 18.2
According to Yellow, Lakes attendance led his supervisor, Gary
Kraus, to advise him on November 21 that further late arrivals
would result in termination. (Kraus Aff. 14.) Lake explicitly
denies that this meeting and warning took place. (Pl.s Mem. Opp.
Summ. J. 15.) Yellow states, and its records show, Lake reported
late for work the very next day. Additionally, Yellow maintains
Lake was unavailable for work on four separate occasions during the
three-week probationary period. (Kraus Aff. 13.) Lake was
terminated on November 23, 2005, for poor attendance and
Plaintiffs memorandum does not suggest he was a victim of
direct discrimination. During oral argument, defense counsel
agreed plaintiff has no evidence of direct discrimination.
C. Procedural History
Lake filed suit against Yellow claiming race discrimination,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e-2(a)(1) and 42 U.S.C. 1981. Specifically, Lake
accuses Yellow of failing to hire him as a full-time employee, and
terminating him because of his race.
II. Analysis
Summary judgment is appropriate when the evidence, viewed in
the light most favorable to the nonmoving party, presents no
genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The party opposing summary
judgment may not rest upon the allegations set forth in its
pleadings, but must produce significant probative evidence. See
Anderson, 477 U.S. at 248-49; see also Hartnagel v. Norman, 953
F.2d 394, 395-96 (8th Cir. 1992).
This Court analyzes plaintiffs Title VII and Section 1981
claims under the same framework. Gordon v. Shafer Contracting Co.,
469 F.3d 1191, 1196 (8th Cir. 2006). Because plaintiff has offered
no direct evidence of discrimination, he must establish a prima
facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). If plaintiff can do so, defendant must advance legitimate,
nondiscriminatory reasons for its decision. Texas Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). In order to survive
summary judgment, plaintiff must show defendants reason is a
pretext for intentional discrimination. St. Marys Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993).
Plaintiff then must establish a prima facie case by showing:
(1) he is a member of a protected class; (2) he met his employers
legitimate expectations; (3) he suffered an adverse employment
action; and (4) the circumstances give rise to an inference of
discrimination. Wheeler v. Aventis Pharms., 360 F.3d 853, 857 (8th
Cir. 2004). Plaintiff, as an African American, is a member of a
protected class. And having been fired, he has faced an adverse
employment action. This case turns on whether plaintiff has met
Yellows legitimate expectations, and whether the circumstances
give rise to an inference of discrimination.
Applying these principles, the Court finds plaintiff has
failed to establish a prima facie case. Even assuming he can do
so, he cannot show Yellows reasons for his termination to be
pretextual. Yellow offers Lakes tardiness and unavailability as
its legitimate, non-discriminatory reasons for dismissal. The
Eighth Circuit Court of Appeals recognizes tardiness as a
legitimate reason for discharge. See Clearwater v. Indep. Sch.
Dist. No. 166, 231 F.3d 1122, 1127 (8th Cir. 2000).
While plaintiff denies being tardy five times during
probation, he acknowledges he was tardy at least twice - November
11 and 18. (Pl.s Mem. Opp. Summ. J. 35.) He also acknowledges he
failed to punch in on November 19 and 21, but claims this was
excused by his supervisor. (Id.) These claims notwithstanding,
Lakes timecards reflect five unexcused late arrivals, and two
excused late arrivals in November, 2005. (Lake Dep. 146:8-23, Ex.
K; Cover Dep. 75:13 - 76:23; Ex. 4.)
In acknowledging his late arrivals, Lake surrenders his claim
that Yellows reasons are pretextual. While he admits his
tardiness, he argues the decision to end his employment was
excessive. That is as it may be. The Eighth Circuit has
emphasized that courts do not sit as super-human relations
officers, nor are they empowered to second guess managements
employment decisions. See King v. Hardesty, 517 F.3d 1049, 1063
(8th Cir. 2008).
Plaintiff carries his argument a step further, claiming Yellow
treated similarly situated Caucasian employees differently, giving
rise to an inference of discrimination. Id. (Instances of
disparate treatment can support a claim of pretext.). He claims
Yellows Caucasian probationary employees were not always available
when called, but were not terminated. He further claims several
Caucasian regular employees were late to work, but kept their jobs.
His argument fails; he cannot show his comparators were similarly
In order to establish a valid comparison, the plaintiff must
show that he and those employees outside of his protected group
were similarly situated in all relevant respects. Pope v. ESA
Servs., 406 F.3d 1001, 1009 (8th Cir. 2005). Here, plaintiff has
failed to identify any employee with a similar tardiness record
during their probationary period who Yellow hired-on as regular
employees. Other employees were late, but they were regular
employees subject to the collective bargaining agreement.
Plaintiff has no evidence showing any probationary employees -
those beyond the protection of the collective bargaining agreement
- were late, nor has he shown how frequently they were late,
whether supervisors excused any tardiness, or whether Yellow knew
about any other employees tardiness. See Clearwater, 231 F.3d at
Plaintiff offers a laundry list of grievances related by
others to suggest an inference of discrimination. Whether taken
separately or in the collective, these accusations do not give rise
to an inference of discrimination.
He claims the reasons for his discharge changed over time.
Lake properly notes that [s]ubstantial changes over time in the
employers proffered reason for its employment decision support a
finding of pretext. Korbrin v. Univ. of Minn., 34 F.3d 698, 703
(8th Cir. 1994). His point is, however, unavailing, because Yellow
has consistently maintained it fired Lake due to tardiness. In
response to the initial EEOC request, Yellow supplied the EEOC
with evidence regarding [Lakes] attendance and availability.
(Def.s Reply 10.) From this fact, Lake argues Yellow claimed he
was unavailable, rather than tardy. This claim is specious.
Yellow has consistently said Lake was late, and Lake does not deny
it. Yellow has not wavered from its reason for firing Lake;
plaintiff therefore fails to raise an inference of discrimination.
Next, Lake argues Yellows reliance on documents prepared
after his discharge evinces pretext. He is wrong -- his complaint
relates to summaries Yellow had prepared. But he is particularly
wrong because his time cards reflect his tardiness. While
plaintiff denies the specific number of tardies, he does admit he
was late.
Lakes denial of a late-November warning is similarly
unavailing. Supervisor Kraus maintains he warned Lake on November
21, 2005, that Yellow would fire him if he was late again. Lake
denies the conversation took place. This does not help his case,
because there is no requirement of a final warning, or any
warning at all. Lake admits two tardies. Tardiness is not a post
hoc invention where all involved parties agree Lake arrived late on
at least two occasions.
This case is certainly not a class action, but Lake has
offered statistical evidence he claims supports an inference of
discrimination. This, too, fails. Plaintiffs statistical
evidence establishes that all African American employees attaining
regular status did so within a few weeks, while many Caucasian
employees worked for more than a year before promotion. (Def.s
Reply 7-8.)
Even if the statistics demonstrated otherwise, employment
statistics do not usually bear on an employers specific
intentions. [S]uch statistical evidence will rarely suffice to
rebut an employers legitimate, nondiscriminatory reasons for a
particular adverse employment action. Bogren v. Minnesota, 236
F.3d 399, 406 (8th Cir. 2000) (citation omitted). Similarly,
alleged prior acts of discrimination cannot rebut Yellows
reasons for discharging this particular employee. Lake does not
offer any evidence that would demonstrate pretext in this case.
Finally, although Yellows hard drive crashed, destroying some
past attendance reports, the missing reports do not relate to the
plaintiff. Yellow provided Lake with comparable documents
detailing employee attendance. Lake is not entitled to an adverse
inference of discrimination because Yellow rebutted any
presumption that the destroyed [material] would have bolstered
[plaintiffs] case. Favors v. Fisher, 13 F.3d 1235, 1239 (8th
Cir. 1994).
III. Conclusion
Lake admits arriving late on at least two occasions, and he
acknowledges that his probationary record should have been
spotless. Tellingly, he cannot identify a similarly situated
Caucasian employee treated more favorably by Yellow. Upon review,
the Court finds Lake has failed to raise a triable issue of
material fact as to whether Yellows reasons justifying Lakes
termination were pretextual.
Accordingly, defendants motion for summary judgment [Docket
No. 18] is granted.
Dated: January 6, 2009
s/ James M. Rosenbaum
United States District Judge


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