Judge denies Fedex Freight’s motion to dismiss racial discrimination lawsuit

May 29, 2020

Tyson Fisher


FedEx Freight will have to face a race bias lawsuit after an Illinois federal court denied its motion to dismiss the case.

On May 7, Judge Jorge Alonso of the United States District Court for the Northern District of Illinois dismissed FedEx’s motion for summary judgment in a racial discrimination lawsuit. Consequently, the driver can proceed with his claims that certain policies were not homogenously enforced.

Background of FedEx Freight employee incident

The lawsuit derives from a physical confrontation that occurred in August 2017 between Larry Kilgore III, a black man, and Don Romero, who is not black. Kilgore began working for FedEx Freight in April 2015. While filling out paperwork in the driver’s lounge on Aug. 10, 2017, Romero allegedly called Kilgore “dumb” or “stupid,” according to the court opinion.

In an attempt to ignore Romero, Kilgore put on his headphones. The lawsuit accuses Romero of hitting Kilgore on the side of the headphones, knocking them off his ear. Kilgore reacted by telling Romero to back off. According to court documents, Romero responded by telling Kilgore that if he touched him, Kilgore would get fired.

Kilgore told a nearby supervisor to “get (Romero)] away from me before I slap the s*** out of him,” and “Get him away from me before things are about to go down,” the court opinion states. When the supervisor arrived, Romero was allegedly dancing around Kilgore and teasing him. Eventually, Romero left after the supervisor told him five or six times to leave. Following the incident, Kilgore complained to FedEx Freight’s Alert Line that he had been physically attacked by Romero.

During the internal investigation, Kilgore was sent home without pay. Romero, however, was not. Kilgore claims that a FedEx Freight security specialist interviewed Romero for eight minutes, whereas his interview lasted 30 minutes. Furthermore, the security specialist allegedly called Kilgore “Waldo,” which is a nickname Kilgore dislikes. Kilgore had previously asked his supervisors to help him stop people from using that nickname.

According to the court opinion, Romero admitted to having touched Kilgore’s headphones. Romero also told the security specialist the incident lasted 30 seconds and was “over before it began.” Additionally, Romero told the interviewer he was not afraid, because “it was just words.”

After the investigation, both Romero and Kilgore received corrective action.

The investigation concluded that Kilgore had violated FedEx Freight’s workplace violence policy. More specifically, a FedEx Freight employee-relations adviser concluded Kilgore “made very inappropriate and threatening comments directed towards Mr. Romero.” Consequently, Kilgore was terminated from his employment at FedEx Freight.

As far as Romero was concerned, the security specialist concluded that since Romero touched Kilgore’s headphones and not Kilgore himself, he did not act aggressively. The employee-relations adviser found Romero “made physical contact with (Kilgore) by tapping his headphones and asking him if he was ‘dumb or stupid’” after calling him Waldo. Romero was suspended for three days for “provoking or threatening behavior.”

In the complaint, Kilgore points to a prior incident where a FedEx Freight employee was accused of pushing an employee. That employee, who is not black, was not fired.

Does FedEx Freight employee’s claims pass muster?

Kilgore’s lawsuit accuses FedEx Freight of firing him based on his race, a violation of federal and state law. A claim for discrimination under Title VII of the Civil Rights Act of 1964 or the Illinois Human Rights Act must show “whether the evidence would permit a reasonable fact-finder to conclude that (plaintiff) was subjected to an adverse employment action based on a statutorily prohibited factor,” the court explains. Meanwhile, a claim under the equal rights law of 42 U.S. Code section 1981 must show “that, but for race, (he) would not have suffered the loss of a legally protected right.”

FedEx Freight argued that Kilgore’s claims do not pass requirements set forth in relevant state or federal case law.

The court disagreed.

“Plaintiff has put forth evidence that he was meeting his employer’s expectations (he had never before been the subject of corrective action), that he was subjected to adverse employment actions (he was relieved of duty without pay during the investigation and discharged) and that a similarly-situated employee (Romero) outside of his protected class was treated more favorably (Romero was not relieved of duty during the investigation and was not discharged),” the court found.

FedEx Freight argued that Romero was not similarly situated, because plaintiff threatened violence.

However, the court said both Romero and Kilgore had the same job, were involved in the same incident that was investigated by the same employee and had their fates decided by the same employee. Despite the court finding their conduct “slightly different,” it ultimately decided their conduct “was sufficiently similar to warrant a reasonable fact finder to conclude” FedEx Freight’s decision could be deemed “impermissible” due to conduct of “comparable seriousness.”

“If anything, in the light most favorable to (Kilgore), the slight difference in conduct makes (Kilgore’s) case stronger: the nonblack employee was merely suspended for actually committing a battery, while the black employee was actually discharged for merely threatening to commit a battery,” the court states in the opinion.

The court found that FedEx Freight did articulate a legitimate, nondiscriminatory reason for firing Kilgore. However, it failed to articulate a reason for relieving Kilgore of his duties during the investigation but not Romero.