Wilson v. Federal Express Corporation ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
KEVIN ALEXANDER WILSON, )
)
Plaintiff, )
)
v. ) Case No. 1:18-cv-00485 (APM)
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FEDERAL EXPRESS CORPORATION, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
I.
Before the court is Defendant Federal Express Corporation’s Motion for Summary
Judgment. See Def.’s Mot. for Summ. J., ECF No. 27 [hereinafter Def.’s Mot.]; Def.’s Mem. of
Law in Support of Def.’s Mot., ECF No. 27-1 [hereinafter Def.’s Mem.]. In an earlier opinion,
the court dismissed several of Plaintiff’s claims, see Order, ECF No. 19, leaving only two counts
for the court’s consideration: (1) race discrimination in violation of § 42 U.S.C. § 1981, and
(2) negligence, see Complaint, ECF No. 1, ¶¶ 77–97. Defendant’s motion is granted as to both
counts.
II.
“[W]hen a party responds to some but not all arguments raised on a Motion for Summary
Judgment, a court may fairly view the unacknowledged arguments as conceded.” Sykes v. Dudas,
573 F. Supp. 2d 191, 202 (D.D.C. 2008) (citation omitted); see also Wilkins v. Jackson, 750
F. Supp. 2d 160, 162 (D.D.C. 2010) (citations omitted) (“It is well established that if a [party] fails
to respond to an argument raised in a motion for summary judgment, it is proper to treat that
argument as conceded.”). Here, Plaintiff offers no opposition to Defendant’s motion as to his
§ 1981 claim but does argue that the court should deny summary judgment as to his negligence
claim. See Pl.’s Opp’n to Def.’s Mot., ECF No. 30-4, at 7–9. The court therefore treats
Defendant’s motion as to Plaintiff’s § 1981 claim as conceded.
Even if the court must consider Defendant’s argument on the merits, cf. Winston & Strawn,
LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016), Defendant prevails. Defendant puts forward
a non-discriminatory reason for terminating Plaintiff: he lost custodial control of a package in
violation of company policy. See Def.’s Mem. at 1. As Plaintiff offers no evidence to rebut this
non-discriminatory reason, the court treats this factual assertion as true. See Fed. R. Civ. P.
56(e)(2). Accordingly, on the merits, there is no genuine dispute of material fact that would
support racial animus as the reason for Plaintiff’s termination.
III.
Defendant raises a host of arguments with respect to Plaintiff’s negligence claim but the
court need only address two. First, Plaintiff does not dispute Defendant’s evidence establishing
that the company provided him with a secure truck on the day he lost the package that led to his
termination. See Pl.’s Resp. to Def.’s Stmt. of Undisputed Material Facts, ECF No. 30-2, ¶¶ 16–
21 (conceding factual assertions that pre- and post-trip inspections found nothing wrong with the
assigned truck). Thus, Plaintiff has failed to create a genuine dispute of material fact as to his
central claim: that Defendant was negligent by supplying him with an unsecure truck.
Additionally, as the court observed in the related case of Howard v. Federal Express Corp.,
allowing Plaintiff to assert a negligence claim challenging his termination in this case would “do
an end-run around the at-will employment doctrine.” No. 16-cv-02514 (APM), 2019 WL
2103126, at *3 (D.D.C. May 14, 2019). For that separate reason, Defendant is entitled to summary
judgment on Plaintiff’s negligence claim.
IV.
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted.
A separate final order accompanies this Memorandum Opinion.
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Dated: November 4, 2019 Amit P. Mehta
United States District Judge