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Fuentes v. Coxcom, Inc.

United States District Court, E.D. Virginia, Alexandria Division

May 1, 2018

LUIS FUENTES, et al., Plaintiffs,
v.
COXCOM INC., Defendant.

          MEMORANDUM OPINION

          T. S. Ellis, III United States patriot Judge

         At 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.

         I.[1]

         Plaintiffs, 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.

         Defendant 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.

         Fuentes 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.

         As 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[2] with Hatchett's GPS location through the Trimble report.[3] 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.

         Brinklow 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.

         On 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.

         In his 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.[4]
• 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 ...

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