Opinion
Civil Action 3:01CV-271-H.
April 26, 2002
MEMORANDUM OPINION
Plaintiff has filed suit against Defendant, his former employer, alleging racial discrimination and retaliation in violation of KRS §§ 344.040(1) and 344.280(1), respectively. In May, 2001, Defendant removed the action from Jefferson Circuit Court, and subsequently has moved this Court to grant summary judgment on both of Plaintiff's claims. The Court will now consider this motion.
Defendant also moves for summary judgment on Plaintiff's claim for harassment. However, Plaintiff's complaint does not specifically allege a harassment claim, and Plaintiff's response memorandum makes no effort to defend one.
I.
Plaintiff, an African-American male, began working for Defendant in October, 1999. Defendant supplies products to the construction industry, and Plaintiff was employed as a warehouseman and driver. Upon hiring Plaintiff, Defendant provided him with a Personnel Handbook, which sets forth, inter alia, Defendant's absenteeism policies. More specifically, ¶ 4.2 provides that: "Some absences are unavoidable. However, when they become excessive or prolonged without reasonable justification, supervisors must take appropriate and timely action. Written record of poor attendance should be kept for use in discussions with the employee." Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. B. Plaintiff does not dispute that he was provided with a copy of this handbook on the date he was hired.
On April 3, 2000, Plaintiff filed a "charge of discrimination" with the Equal Employment Opportunity Commission ("EEOC"), and stated his grievance as follows:
I began working for Triden Construction Supply Company in May 1999 as a driver and warehouse worker. In September 1999 I began to experience harassment from white co-workers and managers. I have received disciplinary warnings for violations of company policy. White co-workers who committed the same violations received no such warnings. I believe I have been harassed due to my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended.Id., Ex. D. Plaintiff states that his EEOC complaint was prompted by the following. First, on one occasion, Plaintiff was assigned to deliver supplies to the site at which Slugger Field was being constructed, also the location of demonstrators waging a protest against stadium hiring practices. According to Plaintiff's deposition testimony:
At numerous points in his pleadings — including his complaint, deposition testimony, and response memorandum — Plaintiff avers that he began working for Defendant in October, 1999. It is unclear how any alleged harassment could have begun in September, 1999, or why Plaintiff's EEOC charge states that his employment commenced in May, 1999.
the comment was made in the office of, well, maybe they'll let you through now, you know, being that Mr. — Reverend Coleman is a black man, and at the time, they was boycotting the white workers down there at the Louisville Slugger stadium, that me myself, I took that as being a black worker, driver, that maybe I could get through the picket line.
Barlow Dep., at 24. Second, Plaintiff alleges that he was "upset that he encountered racist comments at some of the construction sites to which he delivered materials for Triden." Pl.'s Resp. to Mot. for Summ. J. ("Pl.'s Resp."), at 3. Third, Plaintiff maintains that the office environment was one where people "spoke their mind" about issues involving race, religion, and gender. Barlow Dep., at 40. For example, Plaintiff states that his coworkers warned him to be careful when making deliveries to certain sites, because "as far as black people go, they don't really take too kind to them basically." Id. at 39. In addition, there was one "very religious gentleman who caught a lot of slack [sic] from being religious," and a woman who "caught a lot of flak as far as being a woman." Id. Plaintiff says that "I was offended by some of the things, and it was brought to their attention, but then it was told to me by Mr. [George] Kolb [Plaintiff's supervisor] that when you work here, that if you can't handle it, then don't work here, we do these things." Id. at 40. Finally, Plaintiff testified that he requested a transfer to Defendant's Indianapolis office, but heard Kolb, on the phone discussing the move, state that Plaintiff "couldn't find [his] way around Louisville, let alone find [his] way around Indianapolis." Id. at 42.
Following mediation, the EEOC charge was resolved on April 24, 2000. Nevertheless, Plaintiff alleges that Defendant continued to discriminate against him. On one occasion, Plaintiff's supervisor in the warehouse, Jeff Tyler, had instructed a group of black temporary workers in a manner that Plaintiff felt was improper, and Plaintiff proceeded to deliver to them contrary instructions. In response, Tyler told Plaintiff, "I'm the warehouse manager here, you need to stay in your place," a comment Plaintiff attributes to racial animus. Id. at 49. Plaintiff also says that Tyler once almost called him a racial name, but caught himself before speaking, and later apologized. Plaintiff maintains that he complained to Kolb, the Branch Manager, who did nothing. Plaintiff also states that Kolb fired two other black drivers, purportedly for violations of company policy, and referred to one of the terminated employees as "that black guy." Id. at 88.
On Wednesday, October 11, 2000, Plaintiff injured his back while working. The next day, Thursday, October 12, he called and left a message on Defendant's answering machine that he could not come into work due to diarrhea, cramps, and a backache. On Friday, October 13, Plaintiff again did not come to work, and did not call in because the pain from his injury was too intense. Later that day, however, one of Defendant's drivers saw Plaintiff at a fast food restaurant. Plaintiff states that he was en route to visit a doctor, but his health care providers had scheduling difficulties, and he was unable to receive care immediately. On Saturday, October 15, Plaintiff came into the office to pick up his paycheck. When he could not find it, he paged Kolb. Kolb told Plaintiff the location of his check, and also told Plaintiff to come into the office on Wednesday, October 18, as Kolb would be out of town on Monday and Tuesday, October 16 and 17. That Wednesday, Kolb met with Plaintiff and told him that he was fired because of excessive absenteeism.
Plaintiff did not actually receive any medical treatment until a trip to the emergency room on October 22, 2000, or eleven days after his injury.
Plaintiff does not deny that he missed a lot of work during his tenure with Defendant. According to Defendant, from January, 2000, until Plaintiff's termination on October 18, 2000, Plaintiff was absent twenty days and either arrived late or left early on thirteen others. Plaintiff, in response, contends that Defendant did not consistently enforce its attendance policies. In particular, Plaintiff says that Defendant had a lax attitude towards attendance due to the nature of the construction business, in which drivers were often required to work much later than scheduled. Also, all of Plaintiff's many absences had been approved by his supervisors; in fact, Plaintiff alleges that the first time he was told that his absenteeism was a problem was at the time he was fired. Finally, Plaintiff says that Defendant treated white employees who missed work more leniently. Consequently, Plaintiff filed a second charge of discrimination with the EEOC on October 27, 2000, which was denied in January, 2001. This suit followed.
II.
"Because Ky. Rev. St. Chapter 344 mirrors Title VII of the Civil Rights Act of 1964 (`Title VII'), we use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). See also Stewart v. Univ. of Louisville, 65 S.W.3d 536, 539 (Ky.Ct.App. 2002). "[A] plaintiff may establish discrimination either by introducing direct evidence of discrimination or by proving inferential and circumstantial evidence which would support an inference of discrimination." Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). "The direct evidence and circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the other, but not both." Id. at 348-49. Plaintiff in this case seeks to proceed under both approaches, and the Court therefore will examine each separately.
A.
"In discrimination cases, direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). "For example, a facially discriminatory employment policy or a corporate decision maker's express statement of a desire to remove employees in the protected group is direct evidence of discriminatory intent." Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). However, "isolated and ambiguous statements . . . are too abstract, in addition to being irrelevant and prejudicial, to support a finding of discrimination." LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 380 (6th Cir. 1993) (quoting Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989)). In other words, the Court must examine not only the substance of any allegedly discriminatory evidence, but also determine whether there exists any causal connection between the purported animus and the adverse employment action.
The Court finds that Plaintiff has not presented direct evidence of discrimination. Plaintiff's allegations, at most, demonstrate racial insensitivity. Completely absent, however, is any indication that unlawful discrimination motivated Defendant to fire Plaintiff. Plaintiff argues the following incidents constitute direct evidence. First, the statement by one of his co-workers that Plaintiff could get through the picket line at Slugger Field, presumably because of Plaintiff's race. Second, Tyler's statement to Plaintiff that he "stay in his place," and not contradict Tyler's directives to other subordinate employees. Third, Kolb's reference to a fired employee as "that black guy." And fourth, Kolb's disregard of Plaintiff's complaints of offensive racial, religious, and gender comments around the workplace.
None of these alleged instances plausibly establishes that Defendant's act of firing Plaintiff was racially motivated. The statements are either fairly innocuous (e.g,. the comments about passing through the picket line, Kolb's reference to the fired driver's race), facially unrelated to race (e.g., Tyler's directive to Plaintiff to "stay in his place"), too attenuated to Plaintiff's termination (e.g., Kolb's dismissal of Plaintiff's complaints) or involved persons other than Kolb. None of these instances come remotely close to showing direct evidence of a racial animus related to Plaintiff's termination.
B.
Racial discrimination claims in which a plaintiff seeks to prove his or her case through indirect or circumstantial evidence are analyzed under the familiar burden shifting mechanism set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined in Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). See, e.g., Kline, 128 F.3d at 348. "First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination." Burdine, 450 U.S. at 252-53. "Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Id. at 253 (quoting McDonnell Douglas, 411 U.S. at 802). "Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. (citing McDonnell Douglas, 411 U.S. at 804).
To establish a prima facie case, a plaintiff must show that he or she: 1) was a member of a protected class, 2) suffered an adverse employment decision, 3) was qualified for the position either lost or gained, and 4) lost the position to a person who was not a member of the protected class. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (citing McDonnell Douglas, 411 U.S. at 802). "The fourth element may also be satisfied by showing that similarly situated non-protected employees were treated more favorably." Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995). Defendant concedes that Plaintiff, an African-American who was terminated from his position, fulfills the first and second prongs, but argues that he cannot satisfy the third or fourth.
Defendant asserts that Plaintiff's chronic absenteeism rendered him unqualified for his position. To demonstrate that he was qualified at the time Defendant fired him, Plaintiff "must show that [he] was performing at a level which met defendant's legitimate expectations." Jacklyn, 176 F.3d at 929. An employee who fails to show up for work is not meeting an employer's legitimate expectations. However, Plaintiff says that Defendant tolerated his many absences without complaint until the moment of his termination. Defendant's personnel handbook provides that poor attendance should be recorded and discussed with the offending employee, but the policy does not also require this as a precondition to termination. Nevertheless, the Court is also mindful "[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Burdine, 450 U.S. at 253. For the purpose of Plaintiff's prima facie case, the Court could assume that strict attendance was not a qualification rigidly enforced by Defendant.
Defendant also asserts that Plaintiff cannot prove the fourth element of a prima facie case, differential treatment. Plaintiff's response memorandum rather blithely contends that he is not required to do so. The burden of establishing a prima facie case may not be onerous, but it does exist, particularly in the Sixth Circuit. See, e.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 582-84 (6th Cir. 1992). A plaintiff may show differential treatment in one of two ways: first, by introducing evidence that he or she was replaced by a person outside of the protected class, or second, by showing that a comparable non-protected person was treated better. See id. at 582. However, "[i]t is fundamental that to make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the `comparables' are similarly situated in all respects." Id. at 583.
Thus, to be deemed "similarly-situated", the individuals with whom the plaintiff seeks to compare his/her treatment must 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.Id. Plaintiff has specifically alleged that the sporadic attendance of two white employees went unpunished by Defendant. However, neither were similarly situated to the extend required by the Sixth Circuit. The first, Mike Bower, like Plaintiff was a driver for Defendant. But, Plaintiff does not dispute that Bower had worked for Defendant for longer than a year, and therefore had accrued sick and vacation time, and had been absent on less total days than Plaintiff. The second, Jeff Tyler, unlike Plaintiff was a salaried manager for Defendant, subject to different leave rules, and also had been absent on less total days than Plaintiff.
Defendant's sick leave policy provides that "[e]mployees must have one full year in service to be eligible for sick leave benefits." Def.'s Mot., Ex. B at ¶ 3.1.
In sum, Plaintiff has failed to demonstrate that he was treated differently than other similarly situated employees, and therefore has failed to prove the fourth element of a prima facie case. Accordingly, he cannot proceed on his claim for racial discrimination.
Even were the Court to assume, arguendo, that Plaintiff adequately proved a prima facie case, it ultimately would matter little. The burden would shift to Defendant to demonstrate a legitimate, nondiscriminatory justification for firing Plaintiff. Defendant's proffered reason, Plaintiff's absenteeism, would suffice, thus shifting the burden back to Plaintiff to demonstrate that this was a mere pretext for discrimination. Plaintiff fails to do so. He asserts that his attendance did not actually motivate Defendant's decision to terminate him. But, Plaintiff offers no additional evidence in support of his rebuttal, and even states in his response memorandum that he may rest on the original proof presented as part of his prima facie case. See Pl.'s Resp., at 10-11. Plaintiff again misstates the law of the Sixth Circuit. See Manzer, 29 F.3d at 1084 ("If the bare bones elements of a plaintiff's prima facie case were sufficient to make this showing . . . the entire `burden shifting' analysis of McDonnell Douglas and its successors would be illusory . . . Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff must not rely simply on his prima facie evidence but must, instead, introduce additional evidence of . . . discrimination.").
III.
"Like a disparate treatment claim, proof of a retaliation claim under federal employment discrimination law is governed by the McDonnell Douglas/Burdine tripartite framework of shifting burdens of production and proof." Harrison v. Metro Gov't of Nashville, 80 F.3d 1107, 1118 (6th Cir. 1996). A prima facie case of retaliation requires a plaintiff to establish that: "(1) he engaged in activity protected by Title VII; (2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action." Nguyen, 229 F.3d at 563. Defendant concedes that Plaintiff meets the first three requirements, but argues he cannot satisfy the fourth."To establish the causal connection required in the fourth prong, a plaintiff must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action." Id. Furthermore, "[a]lthough no one factor is dispositive in establishing a causal connection, evidence that defendant treated the plaintiff differently from similarly situated employees or that the adverse action was taken shortly after the plaintiff's exercise of protected rights is relevant to causation." Id. (emphasis added).
As the Court has already discussed, Plaintiff has not proved differential treatment from similarly situated employees. Plaintiff also argues, however, that the temporal proximity between the date he engaged in protected activity and the date Defendant terminated him establishes the requisite causal connection. Defendant notes that Plaintiff filed his EEOC complaint in April 2000 and was fired October 2000, or approximately six months later, during which time Plaintiff missed fourteen days of work. The Sixth Circuit has not established a benchmark duration after which an employee's termination may be deemed too remote from his or her exercise of protected conduct for the purpose of demonstrating a causal connection. Rather, the preferred approach is to analyze temporal proximity in addition to other compelling evidence of retaliation. For example, in Harrison, one year and three months had elapsed between an employee's filing of a charge with the EEOC and his termination. See 80 F.3d at 1119. Nevertheless, the Sixth Circuit found that:
In addition, the evidence showed that three employees feared retaliation because they testified at [plaintiff's] hearing, and that [plaintiff's supervisor] made repeated comments that suggested he would not hesitate to run employees out of his department. This evidence, taken together with the timetable of [plaintiff's] EEOC charge and termination, convinces us that the plaintiff established a prima facie case of retaliation.Id. (emphasis added). By contrast, in Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999), the Sixth Circuit found that:
"because the disciplinary actions occurred two to five months after [the plaintiff] filed [EEOC] charges, and are fairly evenly spread over a period of time, the inference of a causal connection based on temporal proximity alone is tenuous." Absent additional evidence, this loose temporal proximity is insufficient to create a triable issue.
(emphasis added).
Here, Defendant fired Plaintiff six months after Plaintiff filed his EEOC claim. The Court concludes that temporal proximity, alone, cannot suffice to establish a causal connection between the two events. This conclusion is bolstered by the fact that Plaintiff presents no additional evidence in support of his retaliation claim. See Nguyen, 229 F.3d at 567 (noting that "while there may be circumstances where evidence of temporal proximity alone would be sufficient to support [an] inference [of retaliation], we do not hesitate to say that they have not been presented in this case," where the "plaintiff's retaliation case was otherwise weak, and there was substantial evidence supporting the defendant's version of events"). Plaintiff argues that he has introduced additional evidence of retaliation. He asserts that filing an EEOC complaint was not the only protected conduct in which he engaged, and points to his complaints to Kolb of discriminatory behavior in Defendant's workplace.
Plaintiff's vague allegations of repeated complaints to Defendant simply are not sufficient to save his retaliation claim. Plaintiff offers no substantiation of making the claims, no specification of the subject matter of his complaints, and no indication of the dates on which he lodged his complaints. In the absence of more credible evidence, Plaintiff cannot establish the causal connection required for a prima facie case and, therefore, his retaliation claim must be dismissed.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
Defendant has moved for summary judgment. The Court has reviewed the memoranda of the parties as well as the testimony of record. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion for summary judgment is SUSTAINED and Plaintiff's complaint is DISMISSED WITH PREJUDICE.
This is final and appealable order.