The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court for consideration of the "Motion of Defendant USF Holland, Inc. for Summary Judgment" [doc. 41]. Plaintiff has filed a response [doc. 49], and defendant has submitted a reply [doc. 51]. The court has determined that oral argument will not be necessary, and the motion is ripe for the court's consideration and determination.
Plaintiff has filed this action for alleged violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et. seq.; 42 U.S.C. § 1981; and the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. section 4-21-101, et. seq. based upon his race. Plaintiff is African American. For the reasons set forth herein, the motion will be granted, and this case will be dismissed.
The facts presented are taken from the parties' submissions concerning the pending motion as well as the complaint and are the facts relevant to plaintiff's claims. Defendant, USF Holland, Inc., is a freight delivery service that operates nationally and has a terminal in Knoxville. On May 12, 2004, plaintiff, Alfred Frazier, applied for work with the defendant, and he was hired on May 28, 2004, as a "driver casual" employee to work on an "as needed" basis. Driver casuals drive trucks and assist on the dock at the end of a driving shift. Casual employees who perform well and meet defendant's expectations can be eligible to become regular employees who must serve a thirty to sixty day probationary period. Plaintiff was called to work for eleven days between May 28, 2004, and June 23, 2004.
The decision was then made to cease calling plaintiff to come in to work. Defendant's position is that plaintiff's performance was inadequate and that he did not have the skill level for the work. Terminal Manager Frank Rose stated that the decision to cease calling the plaintiff to work was made because he took a long time to make deliveries; he frequently got lost and called the dispatcher for directions; he did not always call in for additional pick ups; he was reportedly absent for approximately four hours without checking in with dispatch; he was not adept at operating the fork lift; and he had trouble locating freight on the dock to load onto trucks. Rose also testified that he did not personally know plaintiff and he did not know or consider plaintiff's race when he decided to discontinue calling him for work.
Plaintiff testified that he was "singled out" and treated differently than white workers in that he received less training because he was not paired with an experienced worker as is defendant's custom; he was assigned old trucks to drive that were not road worthy; and he was discontinued as a casual worker while a white causal worker hired with him, Earl Deever, was retained.
On September 9, 2004, plaintiff filed an EEOC/THRA charge that identified the period of discrimination as May 28, 2004, through June 2004. The right to sue letter was issued March 10, 2005, and this complaint was filed May 4, 2005. Plaintiff had previously filed a charge of discrimination against the defendant back in 1997.
Standard Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Canderm Pharmacal, Ltd. v. Elder Pharms., Inc., 862 F.2d 597, 601 (6th Cir. 1988) (quoting Fed. R. Civ. P. 56(c)). The moving party may discharge its burden by demonstrating that the non- moving party has failed to establish an essential element of that party's case for which he or she bears the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party need not support its motion with affidavits or other materials negating the opponent's claim. Id. at 323. Although the moving party has the initial burden, that burden may be discharged by a "showing" to the district court that there is an absence of evidence in support of the non-moving party's case. Id. at 325 (emphasis in original).
After the moving party has carried its initial burden of showing that there are no genuine issues of material fact in dispute, the burden shifts to the non-moving party to present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The non-moving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor. Id. at 255. The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52.
To withstand a motion for summary judgment in a Title VII case ,*fn1 the plaintiff must present direct evidence of discrimination or present circumstantial evidence through a prima facie case. See Mitchell, 964 F.2d at 582. There is no direct evidence of discrimination in this case; therefore, plaintiff must establish a prima facie case using the well known and established McDonnell Douglas/Burdine burden-shifting framework. To establish a prima facie case of racial discrimination under McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), plaintiff must show that 1) he is a member of a protected class, 2) he was subjected to an adverse employment action, 3) he was qualified, and 4) he was replaced by someone not in plaintiff's protective class or treated differently than similarly-situated persons who were not in plaintiff's protected class. See McClain v. Nw. Cmty. Corr. Ctr. Judicial Corr. Bd., 440 F.3d 320, 332 (6th Cir. 2006).
The only challenge to plaintiff's prima facie case is at the fourth prong. Plaintiff contends that he was treated differently than other white employees, so this is a disparate treatment case.*fn2 "Disparate treatment occurs when an employer treats some employees less favorably than others because of race, religion, sex, or the like." Huguley v. Gen. Motors Corp., 52 F.3d 1364, 1370 (6th Cir. 1995). "To prevail on a claim of disparate treatment a plaintiff must show that [his] employer intentionally discriminated against [him]." Lynch v. Freeman, 817 F.2d 380, 382 (6th Cir. 1987); see also Lovas v. Huntington Nat'l Bank, No. 99-3213, 2000 WL 712355, at *5 (6th Cir. May 22, 2000). Intent can be shown by direct evidence or inferred from a prima facie showing of discrimination. Huguley, 52 F.3d at 1370; see also Shah v. Gen. Elec. Co., 816 F.2d 264, 267 (6th Cir. 1987) (proof of discriminatory motive can be inferred from differences in treatment). Ultimately, to prevail in this Title VII discrimination action, the plaintiff has to show that the adverse employment action would not have occurred except for his race. Simon v. City of Youngstown, 73 F.3d 68, 70 (6th Cir. 1995).
In order to demonstrate that he was "similarly situated" to the employees who he claims were treated differently or more favorably, plaintiff must prove that all relevant aspects of his employment situation were "nearly identical" to those of the other employees. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (citing Ruth v. Children's Med. Ctr., No. 90-4069, 583, 1991 WL 151158, at *6 (6th Cir. Aug. 8, 1991)).
With regard to being "similarly situated," the Sixth Circuit has stated:
Thus, to be deemed "similarly-situated," the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employers' treatment of them for it.
Mitchell, 964 F.2d at 583 (citations omitted). More recently, the Sixth Circuit explained "similarly situated" in Clayton v. Meijer, Inc., 281 F.3d 605 (6th Cir. 2002):
As this Court first explained in Mitchell, "[i]t is fundamental that to make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the 'comparables' are similarly situated in all respects." 964 F.2d at 583 (emphasis in original). As further explained in Ercegovich [v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998)], "[t]he plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered 'similarly situated'; rather . . . the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in 'all of the relevant aspects.'" 154 F.3d at 352 (emphasis in original) (citation omitted). Finally, in Perry [v. McGinnis, 209 F.3d 597 (6th Cir. 2000)] we explained that "this Court has asserted that in applying the standard [that plaintiff must show that he is treated differently than similarly situated employees from outside the class] courts should not demand exact correlation, but should instead seek relevant similarity." 209 F.3d at 601.
Once plaintiff establishes a prima facie case, the burden shifts to the defendant to present a legitimate, nondiscriminatory reason for its actions, in this case the decision to cease calling the plaintiff to work. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citing McDonnell Douglas, 411 U.S. at 802). The defendant does not need to prove the nondiscriminatory reason but needs to "merely articulate a valid rationale." Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996) ( citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 514 (1993)). If the defendant meets its burden, the burden then ...