NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0720n.06
Filed: October 4, 2007
No. 06-6386
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALFRED L. FRAZIER, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
USF HOLLAND, INC., ) OPINION
)
Defendant-Appellee. )
BEFORE: COLE and COOK, Circuit Judges; and FROST, District Judge.*
R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Alfred L. Frazier appeals a district
court’s order granting summary judgment to Defendant-Appellee USF Holland, Inc., on Frazier’s
claims of race discrimination and retaliation brought under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (“Title VII”); the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”); and the
Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 (“THRA”). Frazier contends that USF
Holland unlawfully terminated him (1) because of his race, and/or (2) in retaliation against a
discrimination charge Frazier filed seven years earlier. The district court concluded that USF Holland
was entitled to summary judgment because Frazier failed to establish a prima facie case for either
*
The Honorable Gregory L. Frost, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 06-6386
Alfred L. Frazier v. USF Holland, Inc.
of his race discrimination or retaliation claims. The district court also concluded that even if Frazier
had made out a prima facie case of his discrimination claim, he failed to rebut USF Holland’s
legitimate, nondiscriminatory reasons for discharging him. After reviewing the record and arguments
on appeal, we AFFIRM.
I. BACKGROUND
USF Holland is a national freight delivery trucking company, employing approximately
10,000 employees and operating approximately seventy terminals. Frazier, who is Black, first applied
for employment as a truck driver at USF Holland’s Knoxville terminal in 1994. This application
proved fruitless, and in 1997 Frazier filed a complaint against USF Holland with the Tennessee
Human Rights Commission (“THRC”) and the Equal Employment Opportunity Commission
(“EEOC”), alleging that USF Holland failed to hire him because of his race. Frazier ultimately
decided not to pursue these charges.
Frazier again applied for work as a truck driver with USF Holland’s Knoxville terminal in
2004. This time Frazier was hired as a “casual,” as opposed to a “regular,” employee. Casual
employees are called to work on an as-needed basis during busy times and to fill a temporary
vacancy when, for instance, a regular employee calls in sick or takes a vacation. “Driver casuals”
drive trucks, work on the loading dock, and, unlike the “part-time casuals,” who do dock work only,
are not limited to six-hour shifts. A casual employee who performs well and meets USF Holland’s
job qualifications may become eligible for hire as a regular employee, as regular-employee positions
open, and begin a thirty- to sixty-day probationary period. USF Holland utilizes the casual-employee
period and regular-employee probationary period to determine whether a potential hire is suited for
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Alfred L. Frazier v. USF Holland, Inc.
the job.
USF Holland called Frazier to work as a driver casual eleven times between May 28, 2004,
and June 23, 2004. During these eleven days, Frazier split time between city-driving and dock-
working duties. USF Holland did not call Frazier to work after June 23, and, on July 16, the company
officially terminated Frazier. USF Holland maintains that Frazier’s performance was inadequate and
that he did not possess the requisite skills necessary to do either job. The terminal manager testified
that Frazier took too long to make deliveries, frequently got lost when doing so, and had trouble
operating the fork lift and locating freight on the dock. Frazier asserts that he performed
satisfactorily, but was treated differently because of his race and/or in retaliation against his
complaint filed against USF Holland in 1997.
On September 9, 2004, Frazier filed discrimination and retaliation charges with the THRC
and the EEOC. These charges were predicated on the events that transpired between May 28, 2004,
and June 2004, only. After finding that the record did not support either charge, the EEOC issued
Frazier a right-to-sue letter on March 10, 2005. Frazier timely brought the instant action in federal
district court, alleging that USF Holland (1) discharged him because of his race, and (2) retaliated
against him for previously filing a discrimination charge with the THRC and the EEOC in 1997, both
in violation of Title VII, § 1981, and the THRA. The district court granted USF Holland’s motion
for summary judgment, concluding that Frazier failed to demonstrate a prima facie case for either
race discrimination or retaliation, and that even if Frazier had established the prima facie case, he
nevertheless failed to establish that USF Holland’s reasons for its decision to stop calling him to
work were merely a pretext for discrimination. Frazier v. USF Holland, Inc., No. 3:05-CV-230, slip
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Alfred L. Frazier v. USF Holland, Inc.
op. at 21–22 (E.D. Tenn. Oct. 17, 2006).
Frazier timely appealed.
II. ANALYSIS
Frazier’s discrimination and retaliation claims under § 1981 and the THRA are governed by
the same legal framework as his claims under Title VII. Wade v. Knoxville Utils. Bd., 259 F.3d 452,
464 (6th Cir. 2001). Accordingly, the analysis of his discrimination and retaliation claims under
Title VII apply equally to the parallel claims under § 1981 and THRA. Id.
We review de novo the district court’s grant of summary judgment on all claims in favor of
USF Holland. Miller v. Admin. Office of the Courts, 448 F.3d 887, 893 (6th Cir. 2006). Summary
judgment is appropriate “if 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 a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
moving party bears the burden of proving that there are no genuine issues of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
A. Discrimination Claim
Title VII forbids employers from discriminating 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). At the summary-judgment stage, a
plaintiff must adduce either direct or circumstantial evidence to prevail on a Title VII
race-discrimination claim. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). Frazier has not
presented any direct evidence of discrimination; rather, he contends circumstantial evidence supports
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Alfred L. Frazier v. USF Holland, Inc.
his claim.
Under the circumstantial-evidence approach, a plaintiff must first establish a prima facie case
by creating an inference of discrimination under the familiar McDonnell Douglas /Burdine burden-
shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Dews v. A.B. Dick Co., 231 F.3d 1016, 1020-
21 (6th Cir. 2000). To establish a prima facie case of race discrimination, Frazier must demonstrate
that he (1) is a member of a protected class, (2) suffered an adverse employment action, (3) was
qualified for the position, and (4) was treated differently than similarly-situated, non-protected
employees. DiCarlo, 358 F.3d at 415. “After a plaintiff creates a presumption of discrimination by
establishing a prima facie case, a defendant may rebut the presumption by proffering a legitimate,
nondiscriminatory reason for its decision.” Dews, 231 F.3d at 1021. If the employer carries its
burden, the plaintiff must then prove by a preponderance of the evidence that the reasons offered by
the employer were pretextual. Id. Throughout this burden-shifting process, “the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff.” DiCarlo, 358 F.3d at 415 (internal citation omitted).
USF Holland concedes the first three prongs of Fraizer’s prima facie case. The parties
dispute, however, whether Frazier established that he was treated differently than similarly situated
employees who are not in his protected class. In support of his claim that he was treated differently
because of his race, Frazier argues that (1) he did not receive the same on-the-job training as non-
minority casual employees; (2) he was assigned to drive old, unsafe trucks, while non-minority
causal employees were given better trucks; and (3) he was terminated, while Earl Deever, a non-
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Alfred L. Frazier v. USF Holland, Inc.
minority casual employee, was retained.
Certainly Frazier’s claims of unequal training, unequal truck assignment, and termination,
if true, constitute “different treatment.” The question then is whether Frazier has established a
genuine issue of fact that these other employees who allegedly received more favorable treatment
were non-minorities and similarly situated to Frazier. A “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.’” Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quoting Pierce v. Commonwealth
Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)). Courts “should make an independent determination
as to the relevancy of a particular aspect of the plaintiff's employment status and that of the
non-protected employee.” Id. With this standard in mind, we address the three alleged instances of
unequal treatment in turn.
1. Unequal Training
Frazier claims that he did not receive the same on-the-job training as non-minority employees
working alongside him on the dock. Frazier, however, has presented no evidence that these other
employees either had the same position as Fraizer (driver casual), or claimed to have the same
extensive work experience as Frazier, both being relevant aspects of receiving additional training.
In deposition testimony, Frazier simply refers to these employees as “new faces” he saw on the dock
and relies on this description to create an inference that they must have been casual employees like
Frazier. Although it is reasonable to infer, based on Frazier’s “new faces” testimony, that these
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employees were likely recent hires, Fraizer’s comment alone is insufficient to create a factual issue
for the jury that those “new faces” were similarly situated in all relevant respects to Frazier.
Ercegovich, 154 F.3d at 352.
For instance, Frazier has not established that these “new faces” were hired as casual, as
opposed to regular, employees. Because casual employees are hired to be called on an as-needed
basis, due to additional work or to supplement a specific position, it is reasonable for USF Holland
to devote different or additional training to newly hired regular employees. Moreover, on the
employment application that Frazier submitted to USF Holland, Frazier stated that he had nearly
thirty years of dock and platform-related experience. Frazier did not put forward evidence that any
of the “new faces” had similar, extensive dock experience, and yet still received additional training.
Frazier counters that USF Holland had a practice of not hiring inexperienced dockworkers and,
therefore, these “new faces” would not require training different from Frazier. Although there is no
dispute that USF Holland’s practice is to hire only casual workers with some dock experience, this
still does not establish that these “new faces” had anywhere near the thirty years of dock and
platform-related experience that Frazier represented he had. Frazier, who maintains the burden of
proof, falls short of establishing that these unidentified employees, even assuming they were casuals,
were similarly situated to him “in all of the relevant respects,” because he has not presented any
evidence regarding their prior experience or tenure with USF Holland. Therefore, we conclude that
Frazier has not established a genuine issue of material fact relating to his unequal training
allegations.
2. Unequal Truck Assignment
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Alfred L. Frazier v. USF Holland, Inc.
Next, Frazier contends that he was repeatedly assigned to drive old, unsafe delivery trucks,
while non-minority drivers were assigned to newer, more desirable trucks. At deposition, Frazier
testified that
[t]he guys that would come in after I would get an assignment, these
guys would get good trucks. I would get the truck that was dangerous,
something they pulled out of what they called quote, unquote,
“graveyard type deal.” . . . [I]t’s a nickname where they bring out a
truck that’s absolutely unroadworthy.
(JA 486.) Frazier testified that Eddie Allen, who was responsible for truck assignments, would tease
Frazier by saying, “Here [Frazier], here’s your assignment for the day. I’ve got something special
for you.” (JA 487.) Frazier testified that a USF Holland mechanic expressed concern about the
roadworthiness of a truck assigned to Frazier, and that, of the “six or seven white” casuals in his
group, he would always “get[] the crappy truck.” (JA 488.)
Frazier’s testimony, taken in a light most favorable to Frazier, does not establish that these
non-minority casual drivers were similarly situated to Frazier in all relevant respects. It is undisputed
that USF Holland assigns trucks based on seniority and route distance. As USF Holland points out,
Frazier has not put forward any evidence establishing that these non-minority casual drivers shared
the same seniority as Frazier or that they drove similar routes. Indeed, Frazier admitted at deposition
that he did not know the hire date of these “six or seven white casuals [who] would get better
trucks,” nor did he “know anything about the runs that they were delivering to.” (JA 492–93.)
Further, Eddie Allen testified that although Frazier may have received the oldest truck during his
eleven working days, it was because he “generally had the shortest runs in the city.” (JA 256.) Thus,
Frazier has not established a genuine issue of fact that other non-minority similarly situated casual
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Alfred L. Frazier v. USF Holland, Inc.
employees received better truck assignments.
3. Retention of Earl Deever
Finally, Frazier contends that he was treated differently from Earl Deever, a non-minority
casual employee whom USF Holland allegedly retained after ceasing to call Frazier. Frazier’s
evidence that Deever was similarly situated to him consists exclusively of Frazier’s own deposition
testimony identifying Deever only as a white casual employee. Frazier has failed to establish that
Deever was similarly situated to Frazier in all relevant respects: Fraizer does not indicate how long
Deever had been employed as a casual employee, Deever’s level of performance while employed at
USF Holland, or Deever’s relevant past experience. We conclude, therefore, that Fraizer has not
established a genuine issue of material fact based on the retainment of Earl Deever.
In sum, Frazier’s generalized and vague allegations that other non-minority casual employees
were treated better than he was is not enough to make out a prima facie showing that he was denied
further employment because of his race. We therefore affirm the entry of summary judgement on his
race discrimination claims.
B. Retaliation Claim
Frazier also alleges that USF Holland discharged him in retaliation for the discrimination
charge he filed against USF Holland in 1997. To establish a prima facie case of retaliation under
Title VII, a plaintiff must establish that (1) he engaged in activity protected by Title VII, (2) the
exercise of his civil rights was known to the defendant, (3) the defendant took an adverse
employment action against the plaintiff, and (4) the adverse employment action was causally
connected to the protected activity. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
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USF Holland challenges only the second and fourth prongs.
1. USF Holland’s Knowledge of Frazier’s Protected Activity
The decisionmaker’s knowledge of the protected activity is an essential element of the prima
facie case of unlawful retaliation. See Muhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002). USF
Holland contends that the management personnel charged with the decision to discontinue Frazier’s
employment lacked any knowledge of Frazier’s seven-year-old discrimination claim. Indeed, the
relevant affidavits and deposition testimony of USF Holland’s Knoxville Terminal supervisors all
indicate that they were unaware that Frazier had previously filed a charge of discrimination against
USF Holland. Frank Rose (“Rose”), the manager responsible for terminating Frazier, was not even
employed by USF Holland in 1997.
Nonetheless, Frazier argues that the “only logical explanation” for his termination is that
Rose made the adverse decision based upon information reported to him by other employees who
did have knowledge of Frazier’s 1997 discrimination charge. This, says Frazier, is the only way to
reconcile USF Holland’s “inconsistent” actions of hiring him as a casual employee and then
“abruptly” terminating him. Frazier has failed to produce any evidence, direct or circumstantial, to
support his contention that Rose, indeed, had been informed of Frazier’s 1997 activity. To survive
a summary judgment motion, a plaintiff must put forward more than speculations or intuitions.
Muhall, 287 F.3d at 552 (holding that plaintiff failed to establish knowledge on the part of the
decisionmaker where plaintiff did not produce any evidence, direct or circumstantial, to rebut
evidence that decisionmaker had no knowledge and plaintiff offered “only conspiratorial theories,
not the specific facts required under the Federal Rule of Civil Procedure 56” (citing Visser v. Packer
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Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc) (holding that summary judgment
was appropriate where the inferences plaintiff sought to draw from evidence were akin to “flights
of fancy, speculations, hunches, intuitions, or rumors about matters remote from [personal]
experience”))). Thus, the district court correctly concluded that Frazier failed to establish the
“knowledge prong” of the prima facie case.
2. Causation
Frazier also fails to demonstrate a causal connection between his 1997 discrimination charge
and USF Holland’s decision to stop calling Frazier for work in 2004. To establish the requisite causal
connection, a plaintiff must “‘proffer evidence sufficient to raise the inference that [his or] her
protected activity was the likely reason for the adverse action.’” EEOC v. Avery Dennison Corp., 104
F.3d 858, 861 (6th Cir. 1997) (quoting Zanders v. National R.R. Passenger Corp., 898 F.2d 1127,
1135 (6th Cir. 1990) (internal quotations and citations omitted). The burden of proof at the prima
facie stage is minimal; all the plaintiff must do is put forth some credible evidence that enables the
court to deduce that there is a causal connection between the retaliatory action and the protected
activity. Avery, 104 F.3d at 861. “Proof of temporal proximity between the protected activity and the
adverse employment action, ‘coupled with other indicia of retaliatory conduct,’ may give rise to a
finding of a causal connection.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (quoting
Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 737 (6th Cir. 2006)).
Frazier has not proffered evidence sufficient to raise an inference that his protected activity
was likely the reason for his termination. He relies on his “only logical explanation” argument from
above to establish a causal link between his 1997 activity and his 2004 termination. As an initial
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matter, seven years had elapsed since Frazier filed the discrimination charges. Although such a gap
does not necessarily destroy causation, see Dixon, 481 F.3d at 335 (“a mere lapse in time between
the protected activity and the adverse employment action does not inevitably foreclose a finding of
causality”), it does undermine such an inference. See, e.g., Clark County Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (finding no causal connection when, among other things, almost two years
elapsed between the employee’s participation in protected activity and the adverse employment
decision). In any event, Frazier has not presented any “other indicia of retaliatory conduct” giving
rise to a finding of a causal connection. Dixon, 481 F.3d at 334. Frazier has presented nothing
beyond self-serving speculation and thus has failed to create an inference that his “protected activity
was the likely reason for the adverse action.” Avery Dennison Corp., 104 F.3d at 861.
Because Fraizer failed to establish a prima facie case that he was retaliated against because
of his 1997 discrimination filing, we affirm the district court’s entry of summary judgment on these
claims.
III. CONCLUSION
For these reasons, we AFFIRM the district court’s grant of summary judgment.
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Frazier v. USF Holland, Inc.
Court: Court of Appeals for the Sixth Circuit
Date filed: 2007-10-04
Citations: 250 F. App'x 142
Copy CitationsCombined Opinion