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Miller v. Kimes & Stone Construction Co., Inc.

United States District Court, N.D. Mississippi, Aberdeen Division

September 24, 2014

URICK MILLER, Plaintiff,


DEBRA M. BROWN, District Judge.

This lawsuit is brought by Plaintiff Urick Miller against his former employer, Defendant Kimes & Stone Construction Company, Inc. ("Kimes & Stone"), alleging wrongful discharge based on race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Kimes & Stone has moved for summary judgment on grounds that Plaintiff did not suffer an adverse employment action because he quit his job, and that he was not replaced by or treated less favorably than an employee outside his protected group. Kimes & Stone also contends it would have been justified had it terminated Plaintiff because Plaintiff violated company policy by taking a company water truck home overnight. Plaintiff argues summary judgment should be denied because Kimes & Stone unofficially terminated him and, thereafter, hired three white men to work in positions he could have filled. For the reasons below, the Court finds that material fact issues exist warranting the denial of summary judgment.


Plaintiff is an African-American man who was hired as a truck driver at Kimes & Stone on May 17, 2010. Emp. List [41-16] at 3. According to Plaintiff, his employment with Kimes & Stone was seasonal. Pl.'s Dep. [45-1] at 4. Plaintiff did not report to work during the "off season, " which included winter months and times of inclement weather. Id. Throughout the rest of the year, Plaintiff returned to full time employment status.

During the week beginning July 17, 2011, Plaintiff worked as a crewmember on a project in Pearl, Mississippi, supervised by Brad Jones, a job foreman at Kimes & Stone. Id. at 6; Jones Dep. [45-4] at 6; Doc. [41-22]. Around that time, Plaintiff learned that his cousin passed away and the funeral would be held on Thursday, July 21, 2011, in Okolona, Mississippi. Pl.'s Dep. [45-1] at 6. Plaintiff asked Jones for permission to attend the funeral. Id. At the end of the workday on July 20, 2011, Jones told Plaintiff he could take off work to attend the funeral. Id. ; Jones Dep. [45-4] at 6. Jones also advised Plaintiff that the crew would begin a new project in Tennessee the next day and to come to Tennessee after the funeral so he could work on the new project. Pl.'s Dep. [45-1] at 6; Jones Dep. [45-4] at 10-11. After talking with Jones, Plaintiff drove a company-owned water truck home and went to sleep. Pl.'s Dep. [45-1] at 6.

Kimes & Stone had a policy in place at the time which prohibited employees from taking company vehicles home. See Doc. [41-18] at 1 ("All water trucks, service trucks, dump trucks, etc. [i]f not left on the job are to be brought to the shop yard. No employees are to take company trucks home."). There is a dispute as to whether Jones gave Plaintiff permission to drive the water truck home or directed Plaintiff to return the truck to Kimes & Stone's shop in Booneville, Mississippi.

Early the next day, Jones discovered Plaintiff had not returned the truck to the shop, and that he would be short one truck for the Tennessee project without it. Jones Dep. [45-4] at 7-8. Jones contacted a supervisor, and two employees went to retrieve the truck from Plaintiff's home. Id. at 8; Pl.'s Dep. [45-1] at 6; S. Stone Dep. [41-8] at 13. Plaintiff claims he woke up when he heard the truck being moved, and tried to stop the employees from driving away. Pl.'s Dep. [41-1] at 6. Plaintiff also claims that he called Jones but did not get an answer, and contacted Richard Lindsey, Kimes & Stone's safety manager, who allegedly was unaware of the incident and unable to provide information to Plaintiff. Id. at 6-7. Plaintiff never spoke with Jones to confirm whether he had been fired, and he did not work on the project in Tennessee.[1]

As job foreman, Jones would call his crewmembers to tell them when and where to report to work for each new project. Jones Dep. [45-4] at 13. Without notification from Jones, crewmembers did not know whether to report to work or where new projects were located. For the next two months, Plaintiff was not called in to work.

On an unspecified date, Plaintiff talked to Richard Lindsey and was advised that Jones would be contacting him about a project in Alabama. Pl.'s Dep. [45-1] at 11. Jones eventually called Plaintiff but told him he was not needed on the Alabama project. Id. at 11-12. Plaintiff was not contacted by Jones again. Id. at 12; Jones Dep. [45-4] at 11.

On October 26, 2011, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), for wrongful discharge based on race. Compl. [1] at Exh. A. On July 24, 2012, the EEOC issued Plaintiff a Notice of Right to Sue letter. Id. at Exh. B. Plaintiff filed this lawsuit against Kimes & Stone on October 5, 2012, for race discrimination under Title VII.[2] Defendant filed the instant motion for summary judgment on October 2, 2013, arguing that Plaintiff cannot make a prima facie claim for Title VII employment discrimination and, even if he could, violation of company policy is a legitimate, nondiscriminatory reason for termination. In response, Plaintiff argues that he can make a valid Title VII claim and summary judgment should be denied because material fact issues exist warranting the case to be heard by a jury. The motion has been fully briefed and is ripe for decision.


Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should be granted when the evidence shows there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Entry of summary judgment is appropriate, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When determining whether summary judgment is appropriate in a case, a district court reviews all well pleaded facts in the light most favorable to the nonmoving party. Pratt v. City of Houston, Tex., 247 F.3d 601, 606 (5th Cir. 2001).


Plaintiff claims he was wrongfully terminated because he is an African-American. Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to [] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). "Claims of racial discrimination brought under § 1981 are governed by the same evidentiary framework applicable to claims of employment discrimination brought under Title ...

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