Opinion
Case No. 1:09-cv-752.
June 28, 2011
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 29)
This civil action is before the Court on Defendant's motion for summary judgment (Doc. 29) and the parties' responsive memoranda (Docs. 36, 37, 39, 40).
Also pending before this Court is Plaintiff's motion for default judgment (Doc. 28), which he filed pro se before obtaining counsel. Plaintiff requests that default judgment be entered against Defendant for "failure to truthfully respond to plaintiffs motion to compel." ( Id.) Defendant filed a memorandum in opposition (Doc. 31), and essentially the issues argued therein were raised in the pleadings associated with the motion for summary judgment. Therefore, Plaintiffs motion for default judgment (Doc. 28) is DENIED as MOOT.
I. BACKGROUND FACTS
This case was filed on October 16, 2009, nearly 2 years ago. Discovery was due to be completed by November 30, 2010, and motions were due by January 30, 2011. (Doc. 13). Plaintiff never asked to extend the discovery deadline, but has filed multiple motions requesting discovery. (Docs. 17, 20, 24, 28, 36, 39). Defendant has maintained on multiple occasions that Plaintiff has been provided with all of the requested documents in its possession. ( See, e.g., Doc. 40).Currently pending before the Court is Defendant's motion for summary judgment. (Doc. 29). Plaintiff requests that the motion for summary judgment be denied, because he does not have the requisite discovery to respond to the motion pursuant to Fed.R.Civ.P. 56(d). Specifically, Plaintiff claims that he has not been given discovery regarding individuals who are similarly situated. Although Plaintiff's memorandum in opposition to Defendant's motion for summary judgment does not address the substance of the motion, Plaintiff's Declaration does, and it references several purported comparators who were allegedly treated more favorably.
During the administrative proceedings, Plaintiff obtained discovery concerning the discipline issued to all employees whom Defendant claimed were arguably similar, including: Stephon Forester, Roy McDonald, Ruth Renae Irving, Jerry Seale, Rhonda Speakman, Raymond Starks, Diane Beard, Tom Riley, Leonard Saylor, Thomas Clasgens, Jay Thompson, Steve Erkins, Ted Colpenhein, Patrick Carter, Tim Alexander, Alex Burns, and Chris Kounaris. (Doc. 40 at 2).
II. UNDISPUTED FACTS
1. Plaintiff began working for the U.S. Postal Service (hereinafter "Postal Service") on or about February 27, 1999. (Doc. 30, Ex. 5).
2. Plaintiff worked at the Postal Service Cincinnati Bulk Mail Center (hereinafter "BMC") the entire time he was employed by the Postal Service. (Doc. 30, Ex. 5 at 250).
3. Plaintiff's original position was "Tractor Trailer Operator." (Doc. 30, Ex. A). In 2005, Plaintiff began working as an acting supervisor in the transportation division of the BMC, and he continued working as an acting supervisor until his termination. ( Id., Ex. 5 at 261, 317).
4. On or about April 24, 2007, Plaintiff was issued the termination of employment action which is the subject of this lawsuit. (Doc. 30, Ex. A at 60-65).
5. The termination notice states, in pertinent part, as follows:
The reason for this action is:
Improper Conduct
An investigation of your activities as they relate to Jarrett Power Washing ("JPW") was conducted by the Postal Service Office of Inspector General ("OIG"). JPW is a commercial business whose services were retained by the Postal Service at the BMC beginning in or about June, 2006. The BMC has approximately 285 tractors and trailers assigned to its Transportation division. JPW provided the services of washing the trailers and tractors at the BMC from approximately July through December, 2006.
You have been employed in the Transportation division of the BMC for a number of years. You were employed in the assignment of acting supervisor (204B) in the Transportation division of the BMC throughout 2006. In this assignment of acting supervisor, your duties included supervising the tractor trailer drivers who operate the trailers and tractors at the BMC . . . Further, in your acting supervisor assignment at the BMC, you came in contact with, and oversaw the actions of the individuals who provided the service of power washing the trailers and tractors at the BMC.
The OIG investigation uncovered the following information concerning the JPW business.
1. On July 13, 2006, you signed a. . . . Signature Card" with KeyBank opening [a] checking account . . . [for] JPW. Your Ohio Drivers License . . . was used as identification for the account, which was set up as a sole proprietorship. No other authorized . . . signatures appear on the . . . signature card". . . . The social security number identified on the account is [yours]. At the bottom of the card is your handwritten signature, listing you as "owner" of JPW.
2. Records show that [the address to which checks were issued to pay JPW [is] your address . . . P.O. Box 181261, Fairfield, Ohio . . .
. . .
5. [The] Key Bank account [that you opened for JPW] was used to write seven checks totaling $2,359.04. Each of the seven checks was endorsed with your name. [One check] was made payable to American Family Insurance for "truck insurance". [One check] was made payable to Public Storage for "truck storage". [One check] was made payable to Summer Tire Company, for items "for truck."
6. The record also shows that a "Certification of Registration" was obtained for a commercial truck from the State of Ohio . . . The vehicle registration listed the owner of the vehicle as JPW and your personal address at 8139 Nightshade Rd., Maineville, Ohio 45039-6904, was listed as the owner's address. You have never reported to anyone of authority that you have a connection with JPW. When questioned by OIG Agents about your involvement with JPW, you were not candid concerning your activities . . . You gave inaccurate or inconsistent statements and/or you said that you could not remember information related to, for example, the vehicle registration, vehicle storage contact, vehicle insurance and bank account . . . You claimed that Lester Jarrett, a personal friend of many years, who was from the Philadelphia, PA area, but had been living with you in the Cincinnati area, was the real owner of JPW, and that you were just helping him out.
Your actions are in violation of the following:
1. Title 5, CFR § 2635.702 — Use of public office for private gain. An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including . . . persons with whom the employee has or seeks . . . business relations. The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.
(d) Performance of official duties affecting a private interest. To ensure that the performance of his official duties does not give rise to an appearance of use of public office for private gain or of giving preferential treatment, an employee whose duties would affect the financial interests of a friend, relative or person with whom he is affiliated in a nongovernmental capacity shall comply with any applicable requirements of Section 2635.502.
2. The Postal Service Interim Internal Purchasing Guidelines, which provide as follows, in pertinent part: 1.6.4 Contracts with Postal Service Employees and Their Immediate Families 1.6.4.a . . . [C]ontracts may not be awarded to Postal Service employees, their immediate families, or business organizations substantially owned or controlled by Postal Service employees . . .
3. Section 661.2 of the Employee and Labor Relations Manual ("ELM") which states: 661.2 Application to Postal Employees. In addition to the statues listed in Title 5, CFR Part 2635.901-902, the following statues and regulations are applicable to all employees in the Postal Service.
(Doc. 30, Ex. A at 60-65).
6. The Plaintiff timely filed an administrative EEOC complaint with the Postal Service alleging that his termination was: (1) discrimination based on race ("African American"); and (2) retaliation for prior EEOC activity (Agency Case No. 1C-452-0017-06). Said EEOC complaint did not allege any basis of discrimination other than race. (Doc. 30, Ex. 1 at 1, 4).
7. Plaintiff's prior EEOC case (Agency Case No. 1C-452-0017-06) was filed on or about April 1, 2006 and was closed as withdrawn on or about January 16, 2007. (Doc. 30, Ex. 2 at 3, 6).
8. Following receipt of Plaintiff's administrative EEOC complaint, the Postal Service prepared an EEOC "Investigation Report" ("IR") that was completed on or about September 4, 2007. (Doc. 30, Ex. 1 at 1).
9. Plaintiff requested a hearing before an administrative judge employed by the EEOC. A three-day hearing was conducted on August 21, 22 and 25, 2008 by EEOC Administrative Judge Davidson Momah. (Doc. 30, Ex. 5 at 7).
10. Plaintiff was represented throughout the EEOC hearing by an attorney, Kory Jackson, Esquire. (Doc. 30, Ex. 5 at 9).
11. At the EEOC hearing, Plaintiff did not deny that he had connections to JPW. For example:
• Plaintiff testified he had been friends with a man named Lester Jarrett for more than 30 years, since Plaintiff was approximately 12 to 14 years old and living in Philadelphia. (Doc. 30, Ex. 5 at 272, 296, 301).
• In response to questions about the nature of his relationship with Lester Jarrett, Plaintiff testified, "I consider him as a friend." (Doc. 30, Ex. 5 at 301).
• Plaintiff testified that in January 2006, Lester Jarrett contacted him and asked about getting work cleaning vehicles for the Postal Service. (Doc. 30, Ex. 5 at 273-274, 322).
• Plaintiff testified that in response to Jarrett's queries, he gave Jarrett the telephone number of the manager of the transportation division at the BMC, Renae Irving. (Doc. 30, Ex. 5 at 275-276, 338).
• Plaintiff testified that Lester Jarrett then began performing power-washing on tractors and trailers at the BMC in or about May 2006. (Doc. 30, Ex. 5 at 276-277).
• Plaintiff testified that he opened a checking account for the JPW business in order to "help" Lester Jarrett because Jarrett had problems opening an account. (Doc. 30, Ex. 5 at 277-280, 378-379).
• Plaintiff testified the telephone number on the JPW truck was his home telephone number. (Doc. 30, Ex. 5 at 284, 326-327; Ex. 6 at 328).
• Plaintiff testified that in or about December 2006 he put the storage space that JPW used in his name and said he "would be responsible" for it. (Doc. 30, Ex. 5 at 282-283).
• Plaintiff testified that his home address was on the vehicle registration of JPW's truck. (Doc. 30, Ex. 5 at 286, 322).
• Plaintiff testified that the address on the business cards of JPW was his home address. (Doc. 30, Ex. 6 at 328-329).
• Plaintiff testified that the telephone and fax numbers on the business cards of JPW were numbers at his home. (Doc. 30, Ex. 6 at 329).
• Plaintiff testified that the mail for JPW went to his post office box for a period of time. (Doc. 30, Ex. 5 at 281). Plaintiff testified that later Lester Jarrett got a post office box for JPW's mail, and on the application for that post office box, Lester Jarrett listed the Plaintiff's address as the physical address of the box office holder. (Doc. 30, Ex. 6 at 331-334).
• Plaintiff testified that in or about August 2006, Lester Jarrett went back to Philadelphia and, when he left, he asked the Plaintiff to "[keep] an eye on" the JPW employees and the Plaintiff agreed to do so. (Doc. 30, Ex. 6 at 350-354).
• Plaintiff testified that he wrote five or six checks on the JPW bank account. One of the checks he signed was for insurance for the power-washing business. (Doc. 30, Ex. 6 at 363-364, 374).
12. At the EEOC hearing, Plaintiff called Lester Jarrett as a witness on Plaintiff's behalf. Lester Jarrett testified, in part, as follows:
• Jarrett testified that Plaintiff is a "life-long friend." (Doc. 30, Ex. 5 at 45, 65-66).
• Jarrett testified that he began washing trucks at the BMC in May 2006. The people who helped him do the power-washing were family members and friends of his. (Doc. 30, Ex. 5 at 52).
• Jarrett testified that JPW's bank account was opened by the Plaintiff, in the Plaintiff's name. (Doc. 30, Ex. 5 at 55).
• Jarrett testified that the rental agreement for JPW's storage space was in the Plaintiff's name for a week or two. (Doc. 30, Ex. 5 at 56-57).
• Jarrett testified that the phone number of the side of the JPW's truck was the Plaintiff's phone number. (Doc. 30, Ex. 5 at 58).
• Jarrett testified the address on the vehicle registration for JPW's truck was the Plaintiff's address. (Doc. 30, Ex. 5 at 62-63, 83).
• Jarrett testified the Plaintiff's address was also used for the insurance on the power-washing truck. (Doc. 30, Ex. 5 at 63).
• Jarrett testified that the Plaintiff's post office box was originally used for JPW's mail. (Doc. 30, Ex. 5 at 63-64).
• Jarrett testified that when he later got a separate post office box for the company's mail, the Plaintiff had access to that box. (Doc. 30, Ex. 5 at 64).
• Jarrett testified that the Plaintiff was authorized to write checks on the power-washing company's checking account to pay the company's debts. (Doc. 30, Ex. 5 at 64-65).
• Jarrett testified that in about August, 2006 he had to return to the Philadelphia area and he asked the Plaintiff to "keep an eye on" his employees while he was gone. (Doc. 30, Ex. 5 at 111-112).
13. The OIG conducted an investigation concerning JPW and prepared a written report that was completed on or about March 29, 2007. (Doc. 30 at 13-130).
14. The termination action in question was issued by the Plant Manager of the Cincinnati BMC, Patrick Kane. (Doc. 30, Ex. A at 65; Ex. 5 at 535).
15. Kane testified that the Plaintiff's race and prior EEOC activity were not factors in his decision to terminate the Plaintiff. (Doc. 30, Ex. A, at 3, 15, 18).
16. Kane testified that the reason he terminated Plaintiff was his conflict of interest relative to JPW. (Doc. 30, Ex. 6 at 483, 488).
17. On or about December 12, 2008, the EEOC administrative judge issued an "Order Entering Judgment" in favor of the Postal Service, in which he found that the Plaintiff was not subjected to discrimination or retaliation for prior EEOC activity. (Doc. 30, Ex. 7 at 32).
18. The administrative judge concluded that the comparison employees cited by the Plaintiff were not similarly situated or were not treated more favorably under similar circumstances. (Doc. 30, Ex. 7 at 18-19, ¶ 24; 22, 31).
19. Specifically, the administrative judge found that the following white comparators identified by Plaintiff were not similarly situated or were not treated more favorably for the following reasons:
• Raymond Stark (postmaster, attempted to correct his clerk's cash shortage by falsifying a record) — Kane was not involved in the discipline of this employee because employee did not work at the BMC and was not in Kane's chain of command. (Doc. 30, Ex. 7 at 16).
• Patrick Carter (accused of punching a female) — Kane was not aware of this allegation. (Doc. 30, Ex. 7 at 16).
• Tim Alexander (accused of playing golf while improperly off-work) — Kane was not aware of this allegation and the incident is still under investigation. (Doc. 30, Ex. 7 at 16-17, 32).
• Ted Volpenhein (accused of "clocking out earlier in order to go and have a drink") — OIG found allegations unfounded. (Doc. 30, Ex. 7 at 16).
• Jay Thompson (accused of threatening another with a gun) — Kane was not aware of this incident. (Doc. 30, Ex. 7 at 17).
• Alex Bums (alleged Jerry Seale improperly clocked out another employee) — Kane was not aware of this allegation. (Doc. 30, Ex. 7 at 17).
• Chris Kounaris (video-taped by OIG performing physical activity inconsistent with worker's compensation claim) — Kounaris was removed and Kane concurred in the removal, so this employee was not treated more favorably. (Doc. 30, Ex. 7 at 17-18, 31).
• Tom Clasgens (tractor trailer driver charged with multiple driving violations, threatening and bullying employees, removal was reduced to last chance agreement) — Kane was not the deciding official. The deciding official was a previous Plant Manger, George Graves. (Doc. 30, Ex. 7 at 18, 23).
20. With respect to the foregoing comparators, Plant Manager Kane testified as follows, in pertinent part:
• Raymond Stark — Kane testified he was not involved in the discipline issued to this employee. Stark did not work at the BMC. Stark did not work for Kane and was not within Kane's chain of command, so Kane had no authority, and no input regarding the discipline this employee received. (Doc. 30, Ex. 6 at 528-532). Kane never saw the discipline issued to Stark before the EEO hearing. ( Id. at 528-531).
• Patrick Carter — Kane testified he thinks Carter is a mail handler at the BMC. He has never heard that Carter alleged punched a female. (Doc. 30, Ex. 6 at 505-506).
• Tim Alexander — Kane testified that Alexander is a white mail handler at the BMC who played in the same golf league as Kane. (Doc. 30, Ex. 6 at 505). Kane heard that Alexander may have improperly requested leave for a day that he was playing golf. ( Id. 506). This allegation came to light only a few weeks before the EEO hearing and was still under investigation by the OIG at the time of the hearing. ( Id. at 506-508).
• Ted Volpenhein — Kane testified that Volpenheim was a Caucasian supervisor at the BMC. People told Kane this employee "was leaving work and going out drinking" so Kane asked the OIG to investigation that allegation. The OIG found the allegation unfounded, so no discipline was issued. (Doc. 30, Ex. 6 at 490).
• Joe Thompson — Kane testified he does not know who this is, and does not know if he is an employee at the BMC. Kane testified no one has ever told him an employee by this name made a threat involving a gun. (Doc. 30, Ex. 6 at 508-509).
• Alex Burns — Kane testified that he believes Burns is a mail handler at the BMC. (Doc. 30, Ex. 6 at 524-525). Kane testified that, prior to the EEOC hearing, he was not aware that Burns had made an allegation to the OIG that Supervisor Jerry Seale was improperly clocking in another employee. ( Id. at 525-527).
• Chris Kounaris — Kane testified that Kounaris was a white employee at a facility where Kane worked before working at the BMC. (Doc. 30, Ex. 6 at 492). Kounaris had a worker's compensation claim for "a hurt back and the OIG was investigating him and they found him picking up his wife . . . doing stuff that was totally against what he claimed his bad back could do." ( Id. at 492). Although Kounaris had no prior discipline, Kane issued him a termination. ( Id. at 491-492, 541-542).
• Tom Clasgens — Kane testified Clasgens is a driver for the transportation division at the BMC and he believes Clasgens is white. (Doc. 30, Ex. 6 at 494). He does not know how many times Clasgens has been disciplined, and he has not been told about the discipline Clasgens received. ( Id. at 494). He does not have to review or concur with the discipline of a driver, it is handled by lower-level officials. ( Id. at 494, 498, 541). He does not know whether Clasgens ever threatened another employee or was involved in a fight with another employee. ( Id. at 502).
21. The administrative judge also found that, although the official who terminated the Plaintiff (Patrick Kane) was aware of the Plaintiff's prior EEOC activity, the Plaintiff failed to show a causal connection between his protected activity and his termination. (Doc. 30, Ex. 7 at 28). The administrative judge further found that even if the Plaintiff had established a prima facie case of retaliation, the Postal Service articulated a legitimate non-discriminatory reason for the termination conflict of interest, and the Plaintiff failed to show the reason articulated by the Agency was a pretext for retaliation. ( Id., Ex. 7 at 29).
22. Plaintiff appealed the administrative judge's decision to the appellate division of the EEOC, the Office of Federal Operations ("OFO"). On or about July 23, 2009, OFO issued a decision that affirmed the administrative judge's finding of no discrimination. (Doc. 30, Ex. 8 at 4).
Plaintiff has not presented any evidence that this event occurred.
Plaintiff has not introduced any evidence about Alexander.
III. STANDARD OF REVIEW
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (1986).
IV. ANALYSIS
A. Rule 56(d) Motion
Rule 56(d) of the Federal Rules of Civil Procedure provides that if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the Court may defer considering the motion or deny it. Fed.R.Civ. 56(D); Vance By Through Hammons v. United States, 90 F.3d 1145, 1149 (6th Cir. 1996). "A plaintiff seeking to delay a ruling on a summary judgment motion must demonstrate how postponing a ruling will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Duran v. AT T Corp., C-2-99-418, 2001 U.S. Dist. LEXIS 22327 (S.D. Ohio Aug. 22, 2001) (citing Good v. Ohio Edison Co., 149 F.3d 413, 422 (6th Cir. 1998)). To this end, a Rule 56(d) affidavit must "identify the material facts it hopes to uncover." Taylor Acquisitions v. City of Taylor, 313 Fed. App'x 826, 835 (6th Cir. 2009); Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004) ("In the absence of a sufficient affidavit, there is no justification for the district court's determination that a motion for summary judgment would be premature until the close of discovery.").
Whether to grant a 56(d) motion is within the trial court's discretion. Good, 149 F.3d at 422. No party has an "absolute right to additional time for discovery[.]" Lewis v. ACB Bus. Servs. Inc., 135 F.3d 389, 409 (6th Cir. 1998). "The fact that discovery is not complete — indeed, has not begun — need not defeat [a motion for summary judgment]." Pan Am. Pharm., Inc. v. Shelin, 980 F.2d 730 (6th Cir. 1992) (quoting Am. Nurses' Ass'n v. Illinois, 783 F.2d 716, 729 (7th Cir. 1986)).
Plaintiff's conclusory assertions are insufficient to warrant a stay of the motion for summary judgment. Ball v. Union Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (holding it is within the trial court's discretion to reject a Rule 56(d) affidavit as insufficient to support further discovery when the affidavit lacks "any details" or "specificity"). "[A] district court need not allow additional discovery by the nonmoving party if the party does not explain how such discovery would rebut the movant's showing of the absence of a genuine issue of material fact." Singleton v. United States, 277 F.3d 864, 872 (6th Cir. 2002). Plaintiff's affidavit fails to identify what material facts he hopes to discover or exactly how he expects those materials to help him in opposing summary judgment.
Moreover, Plaintiff does not explain how factual discovery would have any impact on Defendant's summary judgment motion based on the purely legal arguments regarding the state law claims or the breach of contract claims. "[T]he plaintiffs cannot prolong the resolution of what are otherwise purely legal issues by ambiguous references to the need for, and the general importance of discovery." Schulze v. Twp. Of Claybanks, No. 1:09cv724, 2009 U.S. Dist. LEXIS 100129 (W.D. Mich. Oct. 27, 2009) (holding [former] Rule 56(f) is inapposite where factual discovery would have no bearing on legal arguments raised in summary judgment motion) (quoting Robinson v. Akins, No. 89C5413, 1990 U.S. Dist. LEXIS 5462, at *6 (N.D. Ill. May 7, 1990)). Accordingly, Plaintiff's 56(d) motion is denied.
B. State Law Claim
Plaintiff's complaint states that his racial discrimination claim is brought pursuant to two provisions of the Ohio Revised Code that pertain to discrimination, specifically Ohio Rev. Code §§ 4112.02 and 4112.99.
Defendant is immune from suit pursuant to these provisions of Ohio state law. Title VII of the Civil Rights Act of 1964, Section 701 et seq., as amended, 42 U.S.C.A. 2000e et seq. provides the exclusive remedy for discrimination against federal employees. Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976). The Sixth Circuit and the Southern District of Ohio, Western Division, have previously dismissed claims brought by Postal Service employees under the Ohio Revised Code, Chapter 4112, on the grounds that those claims attempted to remedy discrimination in the workplace, and Title VII provides the exclusive judicial remedy for such conduct. Davis v. Runyon, 142 F.3d 433, *5 (6th Cir. 1998).
C. Breach of Contract
Plaintiff's complaint alleges that his termination constitutes a breach of the contract between the Postal Service and the "United Postal Workers Union" because the Postal Service did not follow the "progressive discipline steps" required by the contract. (Doc. 15 at ¶¶ 16-19). The Postal Service does not have a collective bargaining agreement with an organization known as the "United Postal Workers Union." The Postal Service has a collective bargaining agreement with an organization known as the "American Postal Workers Union, AFL-CIO" (hereinafter "APWU"), and the Plaintiff was a member of that union. Even assuming, arguendo, that this is the organization to which Plaintiff meant to refer, Plaintiff lacks standing to bring it.
The Postal Reorganization Act provides for jurisdiction of the district courts over "suits for violation of contracts between the Postal Service and a labor organization representing Postal Service employees." 39 U.S.C. § 1208(b). This section is the "analogue" of § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). Lawson v. Truck Drivers, Chauffeurs Helpers, 698 F.2d 250, 255 (6th Cir.), cert. denied, 464 U.S. 814 (1983). Section 301 law is therefore consistently applied to actions brought under 39 U.S.C. § 1208(b). Id. Under this body of law, it is well established that when a collective bargaining agreement establishes a mandatory grievance procedure and grants the union the exclusive right to pursue claims on behalf of an aggrieved employee, the results obtained by the union are normally conclusive of the employee's rights under the agreement subject to very limited judicial review. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983).
An employee may, however, still bring suit under the collective bargaining agreement, but such suit must establish that the union breached its duty of fair representation along with the claim against the Postal Service for breach of contract. DelCostello, 426 U.S. at 164-65. A hybrid breach of contract/breach of duty of fair representation suit is one in which the employer is charged with violating the terms of a collective bargaining agreement and the union is charged with breach of the duty of fair representation. Id. To prevail in such a hybrid suit, the plaintiff must prove each claim against each defendant. White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990).
Where an employee, such as the instant Plaintiff, has not claimed nor attempted to establish a breach of the union's duty of fair representation, his breach of contract claim is deficient as a matter of law. McDaniel v. Potter, No., 1:06cv803, 2007 U.S. Dist. LEXIS 79573 (N.D. Ohio 2007).
D. Discrimination
Disparate treatment race discrimination, such as that alleged by Plaintiff, can be proven three ways. First, the plaintiff can establish direct evidence of discrimination such as proof that the responsible agent of the defendant admits that his actions were based upon racial animus. Such proof is rarely available, and is not alleged in this case.
Secondly, the plaintiff can use statistical analysis to show discrimination. No such evidence has been alleged in this case. Thirdly, and in the vast majority of cases, the plaintiff must rely on circumstantial evidence in the burden shifting analysis first described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this analysis, the plaintiff must first establish a prima facie case. To establish a prima facie case, the plaintiff must establish that: (1) he was a member of a protected class; (2) he was subjected to an adverse employment action; (3) he was qualified for his job; and (4) a similarly situated worker not in the plaintiffs protected class was treated more favorably than the plaintiff. Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995).
1. Prima Facie Case
In this case, Plaintiff's claims rely on indirect or circumstantial evidence. "The key question is always whether, under the particular facts and context of the case at hand, the plaintiff has presented sufficient evidence to permit a reasonable jury to conclude that he or she suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination." Blair v. Henry Filters, 505 F.3d 517, 529 (6th Cir. 2007).
There is no dispute that Plaintiff is a member of the protected class (African American), was qualified for his job, and suffered an adverse action when he was terminated from his position. Accordingly, the disputed issues are: (1) whether similarly situated non-protected employees were treated more favorably; and (2) whether there is evidence, albeit disputed, from which reasonable jurors could conclude that Plaintiff's race was a determining factor.
In order to satisfy the similarly-situated requirement, a plaintiff must demonstrate that the comparable employee is similar "in all of the relevant aspects." Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). In determining what the "relevant" aspects are, courts are to "make an independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the comparator employee." Id. In the disciplinary context, such as this case, the Sixth Circuit has held that to be found similarly situated, the plaintiff and his proposed comparator must have engaged in acts of "comparable seriousness." Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir. 2002) (applying the Ercegovich approach to a Title VII claim). To make this assessment, courts look to certain factors, such as whether the individuals have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it. Ercegovich, 154 F.3d at 352, ( quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Where incidents of misconduct giving rise to discipline form the crux of the similarities between employees, the degree of their misconduct is a factor to be given great weight. Macy v. Hopkins Cnty. School Bd. of Edu., 484 F.3d 357, 370 (6th Cir. 2007).
Plaintiff was terminated by BMC plant manager, Patrick Kane. (Doc. 20, Ex. A at 65).
Plaintiff alleges that employees Dave Dick, Thomas Clasgens, Raymond Stark, Charles Yond, and Morris Jordan, are similarly situated employees who were treated more favorably. Mr. Dick was a BMC employee who was suspended for improper conduct on two occasions: (1) calling in sick to go bowling (Doc. 39, Ex. 3) and (2) verbally abusing his supervisor ( Id., Ex. 4). Mr. Dick's supervisors were Herald Peetz and Thomas Riley. With respect to Thomas Clasgens, as explained supra at Section II, the ALJ found that Mr. Clasgens was not similarly situated because he had a different supervisor and was charged with dissimilar improper conduct — multiple driving violations and threatening employees. Mr. Stark, a postmaster, was disciplined for attempting to correct his clerk's cash shortage by falsifying a record. Mr. Stark also had a different supervisor. Plaintiff also cites employees Charles Yond and Morris Jordan, who were disciplined for falsifying worker's compensation claims. Messrs. Yond and Jordan also had a different supervisor. (Doc. 39, Ex. 7).
Plaintiff does not indicate in his affidavit that he requires additional discovery about these or other employees as required by Fed.R.Civ.P. 56(d).
Based on the factors enumerated in Ercegovich, this Court is unable to find that any of these comparators are similarly situated. None of the comparators had the same supervisor or engaged in misconduct even remotely similar to that of the Plaintiff. Accordingly, the Court finds that Plaintiff has failed to establish a prima facie case of race discrimination as required to survive Defendant's motion for summary judgment. 2. Legitimate reason for termination
Even if Plaintiff were able to establish a prima facie case, which he has not, Defendant has articulated a legitimate reason for termination.
Once a plaintiff has made a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the decision. McDonnell Douglas, 411 U.S. at 802. Under McDonnell Douglas, the burden of production may shift from the plaintiff to the defendant, but the burden of persuasion remains with the plaintiff throughout the analysis. See Barnhart v. Pickrel, Schaeffer Ebeling Co., 12 F.3d 1382, 1390 (6th Cir. 1993). If the defendant meets this burden, then the presumption created from the prima facie case drops out and plaintiff has "an opportunity to prove . . . that the proffered reasons were not the true reason for the employment decision, but were a pretext for discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 248 (1981). See also, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Brown v. EG G Mound Applied Technologies, 117 F. Supp. 2d 671, 677 (S.D. Ohio 2000).
Plaintiff had an improper conflict of interest with JPW, a business providing power-washing services to the Postal Service at the BMC where he worked. Plaintiff did not deny that he had connections to JPW. In fact, Plaintiff admitted that virtually all of the factual allegations in the notice of termination were accurate. ( See, e.g., Section II, supra). At both at the administrative hearing and in his affidavit in the instant case (Doc. 39, Ex. 1), Plaintiff emphasized that he did not profit financially from his association with JPW. However, that is not the reason he was terminated. The notice of termination provides a plethora of violations, including using his office for a friend's private gain, the appearance of using public office for private gain, and awarding a contract substantially owned or controlled by a Postal Service Employee. Plaintiff admitted that he and Lester Jarrett had been friends for more than 30 years, that he gave Mr. Jarrett the contact information for the manager of transportation at BMC, opened a bank account for JPW, his personal telephone number was on the JPW truck, JPW's storage unit was in his name, the address on JPW's business cards was his home address, he wrote checks on the JPW account, and that he "kept an eye on the company" when Mr. Jarrett went back to Philadelphia. Accordingly, it is sufficiently clear that Plaintiff had "substantial control" of the business in violation of Postal Service regulations and policies.
3. Pretext
If the defendant articulates a legitimate, non-discriminatory reason for its action, as here, then the plaintiff must show both that the proffered reason is false, and that the real reason for the action was discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993). A plaintiff can demonstrate pretext by showing that the given reason "did not exist in fact," or by establishing that the given reason "was not the true reason," or by showing that the given reason "was not sufficient for the action." Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
Plaintiff has failed to produce any evidence that the reason articulated by the Postal Service for his termination was not its true reason, or was a pretext for discrimination. Therefore, the Court is unable to draw an inference that Plaintiff's race was a factor in his treatment.
E. Retaliation
In order to establish a prima facie case of retaliation under Title VII, an employee must establish: (1) that he engaged in an activity protected by Title VII; (2) that this exercise of his protected rights was known to defendant; (3) that defendant thereafter took an employment action adverse to plaintiff; and (4) that there was a casual connection between the protected activity and the adverse employment action. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987).
Once a plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to articulate a non-discriminatory reason for its action. EEOC v. Avery-Dennison Corp., 104 F.3d 858, 862 (6th Cir. 1997). If that is proffered, then the plaintiff must establish that the given reason is a pretext. Merely showing pretext without establishing a retaliatory motive is not sufficient for the plaintiff to prevail. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-08 (1993). If the Plaintiff cannot rebut as pretext the employer's proffered non-discriminatory reason for the adverse employment action, the court need not evaluate the existence of a prima facie case and summary judgment is appropriate. Coomer v. Bethesda Hosp. Inc., 370 F.3d 499, 510-11 (6th Cir. 2004).
As explained supra (Section IV.D.3), Plaintiff has failed to establish that the articulated reason for his termination (conflict of interest in relation to JPW) was a pretext. In fact, Plaintiff has admitted that the factual allegations in the subject termination notice are true. ( Id.) Therefore, summary judgment is granted on the retaliation claim.