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Akins v. Midwest Logistics, Inc.

United States District Court, N.D. Indiana, South Bend Division

November 13, 2014




On July 29, 2011, Plaintiff, Frederick D. Akins ("Akins"), filed a complaint against his employer, Defendant Midwest Logistics, Inc. ("Midwest") alleging race discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §2000e et seq., for a truck assignment issue on May 28, 2010. On August 24, 2012, Akins filed a second complaint against Midwest alleging retaliation under Title VII for his termination on May 26, 2011. Akins alleged that his termination was in retaliation for filing a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") regarding the truck assignment issue at the heart of the first case. As a result, the Court consolidated these cases on May 29, 2013. On that same date, the parties consented to have this consolidated case adjudicated by the undersigned.

Now before the Court is Midwest's motion for summary judgment filed on December 23, 2013. Akins filed his response on September 2, 2014. The motion became ripe on September 15, 2014, when Midwest Logistics filed its reply brief.[1] On October 28, 2014, the Court held oral argument on Midwest's motion for summary judgment. The Court issues the following opinion pursuant to the consent of the parties and 28 U.S.C. § 636(c). Before proceeding to address Midwest's motion for summary judgment, however, the Court must address the matter of whether Staffing Services, Inc. ("Staffing Services") is a party to this action.


On August 14, 2013, this Court granted Akins' motion for joinder of Staff Services as a defendant without any objection from Midwest. However, Akins failed to provide a summons to the Clerk or to serve the summons on Staffing Services. Moreover, no counsel has entered an appearance for Staffing Services.

On September 22, 2014, this Court ordered Akins to show cause why this action should not be dismissed against Staffing Services for failure to accomplish service in the time allotted under Fed.R.Civ.P. 4(m). Akins timely responded on September 30, 2014. The Court also discussed this issue with counsel at oral argument where Akins' attorney, Bessie Davis, acknowledged that service on Staffing Services had inadvertently not been secured and that Akins' prosecution of this case would have proceeded exactly the same had Staffing Services been served. At the hearing, Midwest's counsel, John Halstead, agreed that Staffing Services and Midwest Logistics are sister corporations, both of which are now in the midst of administrative dissolution. In addition, Halstead acknowledged that the officers and owners of both corporations are the same individuals and that he would also represent Staffing Services if it were served. Given the interconnection of the two companies and the lack of evidence of prejudice for any party if Staffing Services was joined at this point in the litigation, the Court discussed the possibility of having Staffing Services waive service, after which it could file an answer and proceed as a defendant in this action. Halstead agreed that waiver would be the most expeditious method to address the service issue raised here, but could not commit without consulting his client.

Therefore, the Court AFFORDS Staffing Services until November 21, 2014, to file a status report informing the Court whether it intends to waive service. If Staffing Services does waive service, its answer to Akins' complaint will be due on December 12, 2014. If Staffing Services refuses to waive service, Fed.R.Civ.P. 4(m), which allows plaintiffs 120 days after the complaint is filed to serve a defendant, will dictate the Court's response. Rule 4(m) provides that when a plaintiff fails to meet the 120-day deadline, "the court... on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Because more than 120 days has passed since this Court granted Akins' request to join Staffing Services as a defendant and service has not been secured, this Court would be forced to dismiss Staffing Services without prejudice if it chooses not to waive service.


A. Relevant Background

The following facts are primarily not in dispute. Where the facts are in dispute, this Court has determined that the disputes are either not material or has chosen to address such disputes in the Court's substantive analysis of the issues.

Defendant, Midwest Logistics, located in North Liberty, Indiana, is a company that contracted with other companies to transport freight. One of Midwest's customers was AM General, which built Humvees. AM General relied on Midwest to shuttle parts between its Logistics Operations Center in South Bend and its McKinley Plant in Mishawaka.

Staffing Services leases drivers to Midwest. Akins, an African-American, was employed by Staffing Services and worked as an AM General shuttle driver for Midwest from July 2006 through May 25, 2011. Shuttle drivers were assigned the task of running parts between AM General's Mishawaka and South Bend facilities. Midwest also used drivers to make "local" runs, which included servicing other customers in nearby areas such as Merrillville and Michigan City. Local drivers were assigned to newer vehicles in the Midwest fleet because they were driving farther and Midwest wanted them to be in more dependable vehicles. All drivers maintained daily logs of their activities, destinations, time, and mileage called City Man Daily Worksheets ("the daily log").

While working for Midwest, Akins' primary responsibility was making shuttle runs for AM General. When Akins' AM General work was completed on any given day, however, Midwest sometimes directed Akins to make local runs. In May 2010, Akins was assigned to the oldest and least dependable-arguably the worst-vehicle in Midwest's fleet to complete his daily runs. Having learned that another driver was given his preferred work schedule because of his seniority, Akins assumed that truck assignments were also based on seniority. He then complained to Midwest about being assigned the worst truck in the fleet and asked that he be assigned to a newer truck then assigned to another shuttle/local driver, Steve Gorsuch, who was Caucasian, because Akins had more seniority than Gorsuch. Midwest refused to reassign Akins to Gorsuch's truck.

Akins alleges that his truck reassignment request was denied because of his race. Yet, Akins admits that no Midwest employee told him he was denied the vehicle because of his race. In addition, Akins acknowledges that no one at Midwest ever made comments to him about his or another person's race. Akins also agreed that his Midwest supervisors told him that the company treated everyone equally. Moreover, Akins knew of no instance where the other two African-American Midwest employees or the single Hispanic driver at Midwest were treated unfairly because of their race. Even so, Akins filed a Charge of Discrimination with the EEOC on December 29, 2010, alleging that Midwest discriminated against him by denying his vehicle request. On April 29, 2011, Akins' received a right-to-sue letter from the EEOC after it dismissed his claim.

Almost a month later on May 25, 2011, Mark Ellam, Logistics Manager at AM General, contacted Midwest's Logistics Operations Manager and one of Akins' supervisors, Pete Cicero, by telephone complaining that a Midwest driver was sleeping in his truck, which was parked in Dock 3 at the McKinley plant while the truck was being loaded. Ellam expressed concern because of an AM General policy requiring drivers to remain outside their trucks in a designated area while their trucks were being loaded at Dock 3. The policy addressed safety concerns that had arisen when a another driver remained in his truck. In addition, Ellam noted that he did not want to be paying for drivers who were sleeping on the job. While Ellam could not identify the allegedly sleeping driver because he had not observed the incident himself, Cicero reassured him that it was one of two drivers[2] and that he would take care of it. Later that day, Randy Scamehorn, Midwest's General Manager and Staffing Services' human resource officer, asked Ellam to provide a written complaint regarding the incident, which he did via email around 9:45 p.m. that night. Ellam's email identified the truck involved by its truck number: 207201, which only Akins had driven that day according to his daily log.

The next morning, Akins was told that he was terminated for sleeping on the job. Even Akins admits, sleeping on the job was a terminable offense. His termination letter, prepared by ...

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