Judge Declines to Toss FedEx Retaliation Claim

RICHMOND, Va. (CN) - A FedEx driver who claims his supervisors threatened him with a gun and added him to their 'hit list' of black employees to fire can pursue claims against his former employer, a federal judge ruled.

In his federal complaint, Philip Atkins claimed FedEx managers told him about his spot on the 'hit list' after firing two black workers in October, 2012.

A short time later, Atkins said, he and three white coworkers were admonished by a white supervisor for using the bathroom without notifying dispatch - a policy to which the plaintiff says he'd never before been exposed.

Though the white employees received verbal warnings, Atkins said he was told it had been recommended he be fired.

Atkins said that a few weeks later, he was approached by a supervisor who "attempted to intimidate him into admitting wrongdoing."

When Atkins refused to do so, he was suspended for three days and placed on a month-long probation, the complaint said.

Atkins appealed the punishment to the human resources department, claiming he had been subjected to racially disparate treatment.

He says this prompted Terrance Collins, a white service manager to confront him in "a menacing demeanor, threatening to 'split and peal [sic] [his] head open like a pineapple with a machete'', informed Atkins that he was 'out to get him', mocked Atkins' hairstyle, informed Atkins that he 'had previously beat a discrimination case ... and that the company would fly its lawyers in on a private jet to defend him', told him not to 'think about snitching', and showed Atkins a revolver that Collins had kept in his glove compartment 'in case black guys like you with their dreadlocks run up on [him].'"

FedEx responded to these allegations by filing a motion for a partial dismissal of the suit, which U.S. District Judge Robert Payne granted in part and dismissed in part on May 29.

Judge Payne dismissed Atkins' claim related to his allegedly being placed on a "hit list" of employees to be fired, finding that even if the conversation transpired as the plaintiff said it did, it nonetheless occurred "well before the first alleged protected activity, which occurred in November 2012."

The Judge refused, however, to dismiss Atkins' other retaliatory discipline claim, related to his punishment for an unauthorized bathroom break, being wholly unconvinced by FedEx's argument that the plaintiff received less harsh discipline -- a three-day suspension without pay -- than was originally recommended by management.

"FexEx offers no authority to support this contention. Nor could the Court locate any," Payne wrote. "Under the facts alleged in the SAC, it is plausible that the decision to impose even the lesser decision was casually connected to the protected activity. Therefore, the motion to dismiss Count II as to the retaliatory discipline will be denied."

FedEx is represented by Jimmy Frank Robinson, Jr. and James Clay Rollins of Ogletree Deakins Nash Smoak & Stewart. Atkins is represented by Scott Gregory Crowley of Crowley & Crowley.

"FedEx denies the allegations, many of which are based on fictitious events. We look forward to presenting the facts in court and will vigorously defend the lawsuit," the company told Courthouse News.

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