An appeals court has rejected the argument by a driver for the Publix grocery store chain that the company fired him because he is Black.
In a ruling handed down in late November by the U.S. Court of Appeals for the 11th Circuit, a three-judge panel ruled against Pape Tamba, who was appealing an earlier ruling against his case from the northern district of Alabama. The lower court had granted summary judgement in favor of Publix Super Markets Inc.
While the case seems straightforward, it was complicated by the fact that the precise classification of Tamba — whether he was hired as a driver or a driver trainee — also became an issue in the litigation.
“Tamba has not established a prima facie case of discrminiation because he cannot identify similarly situated comparators,” the court wrote in its decision.
Tamba, an immigrant from Senegal, was hired by Publix as a truck driver, according to what the suit said was a Commitment Form. But Publix had intended to hire him as a truck driver trainee, and that’s what he was referred to on a separate document.
Tamba was hired for a Publix facility in McCalla, Alabama, and was to be transferred there, as he had been working for Publix as a forklift operator in Lakeland, Florida. There was a relocation package involved in the transfer. The relocation agreement referred to him as a trainee.
Additionally, if Tamba didn’t last the year, he owed the company the money paid out in the relocation.
In June 2017, Tamba had an accident at McCalla when he failed to set a parking brake and the truck rolled forward, damaging the truck. He gave a less-than-accurate accounting of what happened, but the incident was caught on surveillance camera.
“According to its employee handbook, Publix does not accept ‘dishonesty of any kind,’” the court said in its recap of what occured. “In fact, dishonesty alone may lead to employment termination.” And that is what happened after management met with Tamba: “Tamba’s employment was terminated for dishonesty,” the court said.
In his suit against Publix, Tamba said the grocery store giant “held him to a higher standard than white employees who had similar accidents and had completed accident reports.” He also said his accent was “mocked” by his fellow employees and that he was viewed as “different.”
Also at issue: His dismissal came less than a year after he was transferred to Alabama, and he did not return the relocation money. Publix countersued him over that money, which totaled a little more than $15,200.
Publix said the dismissal was due to dishonesty and had nothing to do with Tamba’s race. In opposing summary judgement, Tamba said he could identify two other employees — not identified by name in the appeal document — who had been caught in similar activities and were not disciplined as he was. Tamba said Publix’s stated reason for the dismissal was “pretextual,” that the charge of lying was essentially a cover for dismissing him because of his race.
Summary judgement was handed down in September 2019. The district court argued that Tamba “did not state a prima facie case of discrmination nor offer circumstantial evidence that Publix terminated his employment because of race or national origin discmination.” The court also held that for various reasons, comparisons with the two employees cited by Tamba were not relevant. One of the two workers was not charged with lying, just damaging a truck; the second’s existence could not even be established by the court.
The court also ruled in favor of Publix’s countersuit against Tamba regarding the unpaid relocation money.
The appeals court said that besides finding that there was no evidence that Publix’s dismissal of him was based on race, “Tamba failed to submit any evidence that he did not violate Publix’s dishonesty rule or that other employees outside his protected class engaged in similar acts but were not similarly treated.” The court also ruled that Tamnba could not produce evidence that the dishonesty citation was a pretext for a discriminatory firing.
In addressing the Publix countersuit on the repayment of the relocation fees, the court dismissed the significance of the inconsistency in the two signed agreements, one of which referred to him as a driver trainee and the other as a driver. The court affirmed the lower court ruling that Tamba must repay the money.
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