United States District Court, D. Colorado
RODERICK I. FULLER, Plaintiff,
OLD DOMINION FREIGHT LINE, INC., a Virginia corporation, as known, doing business or sometimes referred to as “Old Dominion, ” Defendant.
Brooke Jackson United States District Judge
are defendant's motion for summary judgment and motion to
strike part of plaintiff's response. Summary judgment is
denied, but the motion to strike is granted.
Roderick Fuller was a truck driver for Old Dominion Freight
Line, Inc. (“OD”) until he was terminated in
April 2016. He sued OD claiming breach of contract and racial
discrimination. The Court granted OD's motion to dismiss
the contract claim in a written order issued on June 12,
2017. ECF No. 32. The claims remaining for trial are
plaintiff's Second Claim (violation of Title VII of the
Civil Rights Act of 1964) and Third Claim (violation of
§ 1981 of the Civil Rights Act of 1866). Second Amended
Complaint, ECF No. 43, at 22-30. The trial to a jury is set
to begin on June 25, 2018, with a Trial Preparation
Conference on May 24, 2018.
Scheduling Order set a deadline for the filing of dispositive
motions of January 17, 2018. However, the parties later
requested an extension of that date to March 5, 2018. On that
date OD filed the pending motion for summary judgment. ECF
No. 57. That motion became ripe for review upon the filing of
defendant's reply brief on April 12, 2018. However, the
next day OD filed the pending motion to strike a portion of
plaintiff's response brief. That motion became ripe for
review upon the filing of the defendant's reply brief on
May 17, 2018.
the proximity of the Trial Preparation Conference and trial,
the Court will not be able to issue a complete written
analysis of the pending motions as it did with respect to
OD's motion to dismiss. The Court has reviewed the
motions and will resolve them in a relatively summary fashion
in this order.
Defendant's Motion for Summary
The theme of this motion is announced in its introductory
Without any supporting evidence (even after taking seven
depositions and propounding extensive written discovery),
Fuller now claims OD discriminated against him because of his
race and terminated his employment because he made an
isolated complaint of race discrimination in 2009 - seven
years before his termination. Fuller's allegations are
sensational, demonstrably false, and unsupported by any
ECF No. 57 at 1-2.
standard for review of a summary judgment motion, however, is
not whether a party's claims are weak, sensational, or
false, but whether there is a genuine dispute of material
fact such that evaluation of the facts should be by the jury.
Fed.R.Civ.P. 56(a). On review of the briefs the Court finds
that there are genuine fact disputes that remain at this
although OD argues that Mr. Fuller was fired for not
following the correct protocol when reporting damage to his
truck, other evidence indicates that Mr. Fuller's method
of reporting the damage was acceptable under company
standards. See ECF Nos. 63-7, 63-10, 63- 11, 63-12
(depositions explaining acceptable methods of reporting).
This speaks to pretext (a required element for a retaliation
claim), as does the testimony of one of Mr. Fuller's
co-workers that senior management disliked Mr. Fuller due to
a 2009 race-related complaint he made that resulted in a
manager being fired. See ECF No. 63-8 (Figueroa
deposition). This co-worker also testified that senior
management “were looking for a reason to fire [Mr.
Fuller], so they found one.”
it is unclear who had the decision-making authority to fire
plaintiff. OD argues it was the sole decision of Mr.
Faucette, someone removed from the situation and less likely
to have animus towards plaintiff, while plaintiff presents
evidence that the decision was orchestrated and executed by
Mr. Smith, his direct manager who allegedly harassed and
while the temporal proximity between Mr. Fuller's
protected conduct (the race-related complaint in 2009) and
his ultimate termination (in April 2016) weakens his
retaliation claim, see, e.g., Smith v.
Wellpoint, Inc., No. 09-cv-00256-MSK-MJW, 2010 WL
3075579 (D. Colo. Aug. 5, 2010) (holding that three month
period between protected action and adverse action is
insufficient on its own to indicate causation), I find that
Mr. Fuller has raised a genuine dispute as to whether racial
animus spurring from his constitutionally protected conduct
in 2009 led to consistent confrontations and maltreatment ...