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Mann v. XPO Logistics Freight, Inc.

United States District Court, D. Kansas

March 29, 2019

ANTHONY MANN, DANA MOYE, & KATINA MCGEE, Plaintiffs,
v.
XPO LOGISTICS FREIGHT, INC., f/k/a CON-WAY TRANSPORTATION SERVICES, INC., f/k/a CON-WAY FREIGHT INC., Defendant.

          MEMORANDUM AND ORDER

          Carlos Murguia United States District Judge.

         Plaintiffs Anthony Mann, Dana Moye, and Katina McGee filed the present action against their former employer, defendant XPO Logistics Freight, Inc., for employment discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”). The matter is now before the court on defendant's Motion for Summary Judgment (Doc. 202). For the reasons set forth below, the court grants defendant's motion.

         I. Background

         Defendant is a corporation that provides transportation and logistics services throughout the United States. Plaintiffs were employed by defendant as Driver Sales Representatives (“DSRs”) at the Kansas City, Kansas facility. DSRs have a multitude of job duties including driving defendant's vehicles to transport customer freight or working on the dock loading and unloading freight. DSRs are required to maintain a Commercial Drivers License (“CDL”) and must have “prompt, daily attendance at assigned work location[s].” Some DSRs perform “line haul” duties, which involve transportation of freight from Kansas City to one of defendant's other facilities, and then a same-day return trip back to Kansas City. If freight needs to be transported over longer distances, DSRs may drive on Extended Service Lines (“ESLs”). Federal regulations require that ESLs involve a two-DSR team so that one driver can sleep in a sleeper cab while the other drives. DSRs also may do local pick up and delivery around the Kansas City area or perform dock duties such as unloading and loading freight, clearing the dock, and “hostling, ” which is moving trailers around the yard and dock bays.

         DSRs report to Freight Operations Supervisors, who in turn report to Freight Operations Managers. All managers and supervisors ultimately report to a Service Center Manager. At times relevant to this litigation, the Service Center Manager was Mike Lewis. Defendant also utilizes a Personnel Supervisor who handles administrative duties such as payroll, employee attendance, time-off requests and the Job Selection Preference process. During the relevant times to this litigation, Anita Sloan was the Personnel Supervisor.

         Human resource matters are handled first by a Human Resources Generalist-here, Maureen Mahr-who reports to a Human Resource Director-here, Kevin Huner. All employee termination decisions are made by the Human Resource Directors, using recommendations made by the Human Resource Generalist.

         Every year, defendant allows its DSRs to register their preferences for work assignments through a Job Selection Process or “bid process.” The Personnel Supervisor collects bid sheets from DSRs who numerically rank their preference for work category (such as line haul, ESL, or local pick up and delivery) and preference for various runs listed within each category. Employees with more seniority get priority when it comes to preference selections. The bid process, however, is only a preference list; it is not a guarantee of what tasks a DSR may be assigned on a given day. DSRs are compensated based on an established structure of rates. When driving, a DSR is paid on a per-mile rate. This rate is pre-set depending on how long the DSR has been employed by defendant. For other work, including local deliveries and dock work, a DSR is paid a set hourly rate which is also determined based on how long the DSR has been employed by defendant.

         Anthony Mann

         Mann, an African-American male, was employed by defendant from August 24, 2009, until he was terminated on June 15, 2015. Mann was a DSR, and at the time his employment ended, his main role was to perform the “hostler” function, which included moving trailers throughout the yard and hooking containers to trailers. On May 9, 2015, another employee made a complaint alleging Mann was making comments to other workers about using race as a form of job protection. On May 14, 2015, Mann mis-hooked a trailer, which caused property damage. And on May 18, 2015, the Director of Operations, Mike Potter, observed Mann using his personal cell phone while he was working, which was a violation of company policy. Potter informed the Assistant Service Center Manager, Bryan Bonifas, that he observed Mann on his cell phone. Bonifas called Mann into a meeting to discuss the matter with Maureen Mahr. While Bonifas and Mahr were discussing the cell phone policy violation with him, Mann proceeded to answer his phone, which Bonifas considered a “disruption during the investigation and further display of failing to adhere to the cell phone policy.” (Doc. 202-2, at 69.)

         On May 28, 2015, Mahr met with Mann to discipline him for the mis-hook incident and to issue discipline for the cell phone policy violations. Mahr also wanted to obtain a statement from Mann regarding the employee complaint made against him. During the meeting, Mann again interrupted the discussion by answering his cell phone. Mann told Mahr he could not make a statement regarding the complaint because he needed to leave immediately to meet someone about a moving van. He claimed he had permission to leave work early, but it was later determined that he had not properly sought the time off pursuant to time-off policies.

         On May 29, 2015, Mann arrived at work to write a statement in response to the employee complaint. He was then placed out of service for violation of Policy 541 and insubordination due to his “blatant disregard toward the cell phone policy” and insubordination toward Mahr and Bonifas. Mann's response to the complaint included his own allegations of race discrimination. In response to these allegations, defendant began a three-day investigation, utilizing three Human Resource Generalists from outside Kansas City. The investigators allegedly interviewed 128 employees and concluded that

many employees hold a perception that there is favoritism with whatever group they are not a part of. Caucasians perceive that African Americans and Hispanics receive favoritism, African Americans perceive that Caucasians and Hispanics receive favoritism, high performers perceive that lower performers are given a break while lower performers feel that they are picked on and higher performers get away with things.

(Doc 217, at 1.) Human Resources Director Kevin Huner believed that this indicated there were issues with consistently applying policies. He concluded, however, that the allegations made by Mann were “found to be largely without merit, ” and that it was clearly established that Mann “uses his race to get his way in specific situations and has bragged about it to others causing a disruption in the workplace.” (Id.) Huner scheduled training for leaders and supervisors to address the consistency issues, harassment, and discrimination.

         Mann was placed out of service during the investigation. On June 8, 2015, Huner emailed the Vice President of Human Resources, Bruce Moss, recommending that Mann be terminated for insubordination due to his “complete disregard or respect for instructions given to him, ” and based on a “massive amount of documentation” that showed that Mann, over a long period of time, “manipulated people to get his way through using race as an issue and violated policy . . . .” (Doc. 202-2, at 89.) Moss disagreed with Huner's termination recommendation and suggested instead that Mann be disciplined for his performance but be brought back to work.

         On June 9, 2015, Huner and Service Center Manager Mike Lewis called Mann to inform him that he could return to work and instructed him to return the following day. Mann informed them that he was on a previously scheduled vacation and would not be able to return to work until June 15. Huner initially accepted Mann's representation that he had previously scheduled vacation, but upon further investigation discovered that he had not obtained proper approval to take time off. Mann claims that he had selected the dates before-hand and that he goes out of town that week every year. There is evidence, however, that he had not taken time off that week in either 2013 or 2014.

         On June 11, 2015, Huner left a message with Mann informing him he did not have approval for time off work and instructing him to report to work on June 12. When Mann did not report to work on June 12, Huner reported the developments to Moss, who advised him that this additional misconduct, when viewed collectively with previous misconduct, was reason to terminate Mann. Mann was terminated on June 15, 2015.

         Mann admits that he was never personally subjected to any racially derogatory statements during his employment, but claims he was offended when he witnessed racially derogatory statements made to other black employees. He claims in 2013 or 2014 an employee told a black supervisor, “I'll whip your ass, boy.” He also claims that in 2013 or 2014 he saw something like “KKK” written on his locker, that he reported it, and that it was cleaned up. Mann also claims that sometime in 2014 he would hear monkey noises over the radio while he was working, but when he reported it, his supervisors and Mahr told him it was just employees kidding around.

         Dana Moye

         Moye, an African-American male, was employed by defendant from September 1997 until he was terminated on April 8, 2016. Moye was a DSR, and during 2016 was doing long haul runs. On January 6, 2016, Moye was on a long haul run when he was contacted by central dispatch to turn back to meet the wife of a DSR so she could retrieve the keys the DSR had accidentally left in the truck. Moye turned in his pay sheet for that trip to be approved by Service Center Manager Mike Lewis. Lewis reviewed Moye's pay sheet and mileage book and found multiple discrepancies in his records, including a request to be compensated both in time and mileage for the turnaround. Moye was placed out of service for approximately one hour while the matter was investigated. Mahr determined that Moye may have received certain instructions from other employees about how to report the time for the turnaround, and his pay was adjusted so that he was not double dipping on pay. Because of other discrepancies in the report, Mahr issued Moye a “Letter of Instruction, ” which reprimanded Moye for the multiple inconsistencies in his report.

         A DSR is required to hold a valid CDL, and defendant is required to comply with federal Department of Transportation regulations regarding the employment of drivers working under a CDL. Company policy requires that every employee holding a CDL must report any traffic citations (other than parking violations) to his supervisor before the end of the next business day following the day of conviction. According to the policy, failure to comply will result “in disciplinary action up to and including termination of employment.” (Doc. 217-9.) And an employee is required to report any suspension, revocations, or cancellations to their CDL by the end of the business day following the day the employee received notice, or face “disciplinary action up to and including termination of employment.” (Id.) Additionally, Personnel Supervisor, Anita Sloan, is responsible for administering an annual motor vehicle record review of its DSRs. During the annual review process, Sloan distributes a form to DSRs to self-report any issues with their CDL (other than parking tickets) for the year leading up to the completion of the form. Sloan then obtains a motor vehicle record report to confirm the DSR's driving history and compares it with the driver's self-report to determine whether the employee made an accurate self-report.

         On January 20, 2015, Moye's CDL was suspended by the State of Missouri. Moye continued to drive defendant's trucks during the 14-day period his CDL was suspended. It was reinstated on February 5, 2015. Moye failed to notify defendant of the suspension as required by policy. Moye also failed to self-report the suspension on his annual motor vehicle record review. According to Mahr, Moye was placed out of service on April 5, 2016, pending an investigation. When she confronted Moye about the suspended license, she claimed Moye was “less than honest during the course of questioning with HR regarding the matter, ” and that he had a variety of inconsistent and insufficient explanations for his conduct. (Doc. 202-2, at 135.) Mahr recommended terminating Moye based on failure to adhere to Policy 541 for falsification of documents. Kevin Huner concurred with the recommendation, and Moye was terminated on April 8, 2016 for driving company vehicles on a suspended license and for not reporting the suspension. Moye, however, contested the termination, claiming he forgot about a ticket he received in January 2015 when completing his annual review, that he did not know he had a suspended license, and that he was unaware he was falsifying documents.

         Moye also claimed he was subject to both age and race harassment throughout his employment. Specifically, Moye claims he witnessed racist graffiti “on a monthly basis, ” including graffiti that stated, “a good n***er is a dead n***er” and other derogatory comments. He admitted he and other African American DSRs would report the graffiti and that sometimes it would take weeks for defendant to remove it. He also claims that he was harassed by other employees because of his race and that other employees would vandalize his work equipment, but when reported, defendant never took action. Moye also alleges that he found nooses in his truck on two separate occasions. Defendant got involved by holding a meeting for the entire service center about their zero-tolerance policy. Defendant also initiated an investigation and required employees to watch videos as part of a ...


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