United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States patriot Judge
issue in this § 1981 race discrimination case is whether
a white employee who was given a final written warning is an
appropriate comparator for plaintiffs, two African American
employees who were terminated. Defendant argues summary
judgment is appropriate because the white employee engaged in
conduct that was less severe than that of plaintiffs.
Plaintiffs oppose defendant's motion, contending that
there is a genuine issue of material fact as to whether
defendant terminated plaintiffs due to their race because the
white employee engaged in conduct that was substantially
similar to plaintiffs' conduct, and defendant did not
terminate the white employee.
Luis Fuentes (“Fuentes”) and Wiley Hatchett
(“Hatchett”), are former Cable Technicians for
defendant. Fuentes identifies as Black Hispanic and Hatchett
identifies as Black. Defendant, Cox Com, Inc., is a Delaware
corporation that provides TV, Internet, Digital Telephone,
home security and technological solutions services for
residential customers in the Fredericks burg, Virginia area.
employs Cable Technicians, or Universal Home Technicians, to
troubleshoot customers' problems and install cable boxes
at new customers' homes. There are three levels of Cable
Technician depending on the Cable Technician's experience
and performance: Emerging, Proficient, and Expert. Cable
Technicians are hourly employees, and as a result, are
expected to maintain accurate records of work orders and
hours worked. Defendant's Corrective Action Policy
provides that “deliberate or willful falsification,
omission or alteration” of a company record is cause
for immediate dismissal. See Cox Corrective Action
Policy ¶ II.J; see also Cox Wage & Hour
Compliance Policy ¶ G. Although Cable Technicians are
expected to take jobs throughout the workday, Cable
Technicians living within the area they service are permitted
to return home during the day if they are not on a job, and
at the end of the day, can park in front of their homes to
wait for dispatch to call them with additional work. Brinklow
Dep. 35: 10-21. Cable Technicians are also required to assist
other Cable Technicians in between assigned jobs if they have
time. Id. 36:16-21.
was hired by defendant in 2002 as a Cable Technician. Around
2009, Fuentes moved to the Fredericksburg area and began
reporting to Todd Brinklow (“Brinklow”), the
Field Service Supervisor for that area. In 2010, Fuentes was
promoted to an “Expert” level technician, and in
2014-2015, Fuentes served as a lead Cable Technician
responsible for supervising other Cable Technicians. Fuentes
consistently had good work evaluations throughout his
employment with defendant and was one of the more efficient
Cable Technicians under Brinklow's supervision. Hatchett
was hired as a Cable Technician in 2001 under Brinklow and
was eventually selected to serve as Acting Supervisor in
Brinklow's absence. Both Fuentes and Hatchett lived in
houses within the footprint of the area they serviced.
Field Service Supervisor, Brinklow had to conduct two quality
checks per month of each Cable Technician who reported to
him. During quality checks, supervisors go to customer
locations and determine whether the Cable Technician has
completed the assigned job. In December 2015, Brinklow
completed a quality check on Hatchett and determined that
Hatchett had not completed a job. Specifically, Hatchett had
reported that he successfully disconnected a line, but when
Brinklow arrived on site, the line was still connected.
Brinklow reported the finding to his manager, Aaron Button
(“Button”), who directed Brinklow to investigate
the job and determine why it had not been completed. As a
part of his investigation, Brinklow compared Hatchett's
route and work for the day in ETA Direct with
Hatchett's GPS location through the Trimble
report. The comparison revealed discrepancies
between where Hatchett should have been based on his work
orders and where he actually was during these days. Brinklow
reported these discrepancies to Button, and Button instructed
Brinklow to audit all of Brinklow's Cable Technicians.
Brinklow then compared the ETA Direct reports to the Trimble
reports for all of his Cable Technicians and found additional
discrepancies between work order locations and actual
locations for Fuentes and William Frazier
(“Frazier”), a white Cable Technician.
concluded based on the discrepancies that all three
employees-Hatchett, Fuentes, and Frazier-were “holding
jobs.” A Cable Technician “holds a job” if
the Cable Technician opens a job on the company-issued tablet
and then does not close the job promptly after he or she
finishes the job. Brinklow testified that there could be many
explanations for holding jobs. For example, a Cable
Technician might hold a job in the event (i) the Cable
Technician had issues with the Internet connection or
functioning of the tablet and could not close the job
immediately upon finishing it, Brinklow Dep. 51:12-52:8,
63:17-22; (ii) the Cable Technician forgot to close out the
job; or (iii) the Cable Technician had trouble getting
through to dispatch to report problems, Frazier Dep.
29:12-15; Brinklow Dep. 38:6-15, 51:12-52:8.
January 5, 2015, Brinklow and Stephen Johnson
(“Johnson”) separately interviewed Fuentes,
Hatchett, and Frazier to determine why they were holding
jobs. Brinklow presented the three employees with the reports
showing the discrepancies between their GPS locations and
their work order locations and gave each employee the
opportunity to prepare a written statement. All three
employees prepared statements.
written statement, Fuentes offered an explanation for each of
the discrepancies between his GPS location and his work order
locations. Specifically, Fuentes explained that:
• On December 13, Fuentes drove to the wrong street and
later started having problems with his tablet, which
prevented him from closing his jobs.
• On December 15, Fuentes mentioned that he drove to a
job but the job was taken from him before he arrived. He
subsequently parked his car to call dispatch for a new
assignment but dispatch did not return his calls. Later that
day, Fuentes had problems with his tablet, again preventing
him from closing out his jobs.
• On December 16, Fuentes explained that he went home to
use the restroom and forgot to close out a job.
• On December 19, Fuentes stated that he forgot to close
out one of his jobs, closed one job by mistake, and forgot to
start another job ...