Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—N.D. Ala.: Former Piggly Wiggly worker, fired for productivity issues, advances claims, (Jun 11, 2025)

By Todd Harrison, J.D.

He had presented sufficient evidence showing that five of his coworkers did not face any discipline for the same conduct.

Denying Piggly Wiggly’s motion for summary judgment against the Title VII and Section 1981 race discrimination claims alleged by a former employee, a federal district court in Alabama found that the employee had identified five comparators who were not fired for falling short of the same standards to which the employee was subjected. The fact that the five comparators did not face discipline for failing to meet their productivity goals also suggested that the reason given for the employee’s discharge was pretextual (Durr v. Piggly Wiggly Alabama Distributing Co., Inc., No. 2:23-cv-00915-SGC (N.D. Ala. Jun. 9, 2025)).

The employee is a Black man who worked as an order selector at a Piggly Wiggly distribution facility from January 2015 until his termination on July 15, 2021.

Productivity standards. Order selectors are required to meet required daily and weekly productivity standards. If an order selector fails to meet either standard, they are subject to discipline consistent with the employer’s progressive discipline policy.

Disciplinary actions. In this case, the employee failed to meet the minimum daily productivity standards on at least four occasions within the nine-month period preceding his termination date of July 15. The discipline began with a verbal warning, progressed to a written warning, then a suspension, and finally termination.

Discrimination allegations. According to the employee, his termination was motivated by racial discrimination. He first filed a grievance under a collective bargaining agreement. An HR director denied the grievance and an independent arbitrator found in favor of the employer. After filing a complaint with the EEOC and receiving a right to sue letter, the employee commenced this action.

Comparators. It was undisputed that the employee failed to meet the minimum daily production standards on multiple occasions during the nine-month period preceding his termination. However, he alleged that he was subjected to harsher discipline than five Hispanic order selectors who also failed to meet the minimum daily and/or weekly productivity standard within a nine-month period. He contended that the five comparators were not discharged or even disciplined at all for the same conduct.

Deposition testimony. With regard to the proffered comparators, the employer argued that they were not proper comparators because the employee testified at deposition that he had no knowledge of their daily or weekly production averages, performance-related issues, or disciplinary histories. The court found that this was a mischaracterization of the employee’s testimony.

A fair reading of the testimony in the light most favorable to the employee is that he does not know the exact number of cases per hour per day or week each proposed comparator averaged, explained the court. However, he did state that he knew of occasions where those averages fell below the required minimum.

In addition, the court noted that the employee never testified that he lacked any knowledge of the proposed comparators’ disciplinary history. He testified that he did not know the details of those histories outside of the information already given to employer’s counsel during discovery. The court was unaware of this information but observed that the amended complaint alleged four of the comparators were disciplined multiple times for excessive breaks. However, this was not inconsistent with the employee’s testimony that the comparators did not suffer any adverse actions, said the court, noting that not all discipline qualifies as an adverse action.

Pretext. Next, the employer contended that it had a legitimate, non-discriminatory reason for firing the employee—repeated disciplinary infractions. The employer referenced the four occasions on which the employee failed to meet its productivity standards as well as seven occasions on which the employee violated other work rules.

The legitimacy of the employee’s failures to meet the productivity standards as a reason for termination was called into question by the employee’s testimony concerning the lack of discipline faced by his comparators for the same violations, explained the court.

As to the seven additional work rule violations referenced by the employer, the court found these were “weak reasons” to help support the employer’s position. The employer did not identify these alleged violations as a basis of its decision in the disciplinary record it created contemporaneously with the employee’s discharge.

Although an employer is not necessarily bound by the explanation it gives an employee for their termination at the time of discharge, the employer in this instance failed to offer evidence that the seven additional violations were additional reasons for its decision. The assertion was made by the employer’s counsel in a brief. “However, assertions made by counsel in briefs are not evidence,” said the court, finding the additional work rule violations amounted to “no more than post-hoc justifications offered by counsel.”

Causation. Finally, the employer asserted that, irrespective of its other arguments, the employee’s Section 1981 claim failed because the employee could not show that race was the but-for cause of his discharge, as opposed to merely a motivating factor.

As an initial matter, the court stated that it was not convinced that the but-for standard of causation applicable to the Section 1981 claim was more onerous than the standard of causation applicable to the Title VII claim. However, it found that this was of no consequence as, regardless of the relative demand of the standard of causation applicable to a Section 1981 claim, whether the employee met this standard was a question for the jury, not the court.

Denial of grievance. Although the employer largely confined its arguments to the employee’s claims for discriminatory discharge, it also sought summary judgment against the employee’s claims that it violated Title VII and Section 1981 when its director of HR denied the employee’s grievance. According to the employer, the grievance was properly denied because the employee was fired for a legitimate, non-discriminatory reason. However, the court pointed out that there was a question of fact for the jury as to the veracity of the employer’s proffered reason for terminating the employee, which in turn called into question the veracity of the reason it proffered for denying the employee’s grievance. Accordingly, the employer’s motion for summary judgment was denied.

The case is No. 2:23-cv-00915-SGC.

Judge: Cornelius, S.

Attorneys: Ajin Jarbar Durr, pro se. Albert L. Vreeland, II (Lehr Middlebrooks Vreeland & Thompson) for Piggly Wiggly Alabama Distributing Co., Inc.

Companies: Piggly Wiggly Alabama Distributing Co., Inc.

Cases: Discrimination RaceDiscrimination Discharge Labor UnionsMembers UnfairLaborPractices AlabamaNews