Opinion
Case No. 3:02CV7329
June 18, 2003
ORDER
This is an employee discrimination case brought by a former and a current employee of Pilklington North America, a Toledo-based glass manufacturer. Plaintiffs, African-Americans, claim that they were denied the same opportunities to become trained as tool makers as those made available to Caucasian employees. Plaintiffs also claim that they were subjected to a hostile work environment and intentional infliction of emotional distress.
Pending is defendants' motion for summary judgment. For the reasons that follow, the motion shall be granted in part and denied in part.
Plaintiff Barner's complaint also asserts a retaliation claim. His opposition to the defendants' motion for summary judgment states that he is withdrawing that claim. Defendants' motion for summary judgment shall, accordingly, be granted with regard to that claim.
Plaintiffs had been long time Pilkington employees when, in September, 1999, they were given an opportunity to enter an apprentice program in the mold shop. This was a two year program governed by the collective bargaining agreement between Pilkington and plaintiffs' union.
The apprentice program consists of a series of five classes. After completing four classes, the candidate can "test out" — i.e., show that he is qualified without taking the fifth course. Both plaintiffs were given a chance to test out of the fifth course, but declined to do so. They eventually completed the program and were able to advance to a high pay level.
Plaintiffs contend, however, that during the course of their training they were treated differently by their supervisor, defendant Frank Zemanski, than six Caucasian employees who began their training in September, 2000, a year after plaintiffs entered the program. According to the plaintiffs, Zemanski routinely assigned them to menial tasks that diverted them from training opportunities, and the white employees were assigned such tasks infrequently and less extensively, and were able to advance more rapidly than the plaintiffs.
Plaintiffs contend that Zemanski treated them in an insulting and demeaning manner. When he first met the plaintiffs, Zemanski allegedly said, "Is this what I got to work with?" Plaintiffs state that on a number of occasions Zemanski called plaintiff Hayes lazy and plaintiff Barner lazy and worthless. Barner also complains that Zemanski often misspelled his name, and continued to do so after he complained to Zemanski about doing so.
Plaintiffs also assert that, while Mr. Zemanski did not use racial epithets, he did not reprimand others who did so, and that, on occasion, he smiled when such epithets were uttered.
Affidavits by two of the white employees who were among the six hired and who began training in September, 2000, support many of these contentions. In addition, those affidavits assert that the plaintiffs were given substantially more menial work, and on a more regular and routine basis than their white counterparts, so that the white trainees were able to progress more rapidly.
The defendant disparages these affidavits on the basis that the affiants are disgruntled former employees. They also contend that they are not admissible due either to want of foundation for the opinions therein expressed, impropriety of lay opinion on particular subjects, or hearsay.
With regard to the hearsay contention, the challenge to the affiant's report of what they heard said is not well taken. References to Zemanski's calling the plaintiffs lazy or worthless are not offered for the truth of the matter asserted — i.e., to show that plaintiffs do not like to work. Indeed, they and the affiants assert that they were hard working employees.
I am also persuaded that the affiants could properly express lay opinion about plaintiffs' hard working qualities, and their observations that they were given more menial tasks on a regular basis, and less opportunity for training. Likewise, the affiants could express their view that they were less qualified than the plaintiffs when they began their apprenticeships.
Defendants contend that the white trainees advanced more quickly than plaintiffs because they came into the program with greater experience. For support for this contention, defendants point to the plaintiffs' deposition testimony. That testimony does not support the defendants' contentions.
The defendants' brief states:
The new employees had extensive mechanical, welding or other related skills which Plaintiffs lacked. (Hayes Dep., p. 36; Barner Dep., p. 37-38). In fact, their level of experience and training at the time they entered the department not only exceeded that of Plaintiffs but were [sic] equivalent or very close to the training program requirements. (Hayes Dep., pp. 36-37; Barner Dep., p. 32). One was an instructor in the training program which Plaintiffs attended. (Hayes Dep., p. 37). Because of their experience and training, the new employees were hired as 1st class Template Makers or promoted to that level after a brief training period. (Barner Dep., p. 32).
Doc. 23 at 5-6 (emphasis in original).
The testimony by Mr. Hayes to which the defendants point was:
Q. So these six people that were hired were people that had previous experience as tool builders?
A. They had previous experience as die makers or welder. One of them was a welder. A couple of them had worked in machine shops.
Q. And are those the kind of skills that are required of a tool and die maker?
A. Those are the type skills you need to make parts, not build tools.
Q. Why do you say that?
A. Because to build tools was a different — something they had never done. It was something different that they was going to have to learn just like myself.
* * * * *
Q. You indicated to me that one of the people was a welder?
A. Right.
Q. Who is that?
A. Jeff Cutcher.
Q. Do you believe that Mr. Cutcher needed to attend the welding class —
A. No, he was — sorry.
Q. — in order to become a tool and die maker?
A. No, he was an instructor of welding.
Q. So Mr. Cutcher was the instructor in the welding course that you took?
A. No, he taught at Owens at different times.
Q. Okay. And there were other people that had background in machining; is that correct?
A. Yes.
Q. Who are the people who had machining background?
A. The Carpenter boys — the Carpenter guys rather, Filas, and I really don't know what Ross
Rollins knew how to do.
Hayes Dep., 36-37.
Hayes' testimony does not support the defendant's contentions.
The testimony is, in any event, not properly before the court because it has not been shown to be based on an adequate foundation — there is no indication how plaintiff Hayes knew about the past experiences of the six white trainees. It would appear likely, as well, that Hayes' testimony about the other trainees' experience is based on hearsay. Thus, even if the testimony were accurately recounted in the defendants' brief, it is not admissible.
Finally, the reference to the experience of the Carpenters is undercut substantially by their own affidavits about the superiority of the plaintiffs' skills to their own.
The excerpts from the deposition of plaintiff Barner to which the defendants point in making the above-referenced contentions in their brief are:
A. I just went to school. Then after a year, then they brought in six Caucasian guys off the street that wasn't affiliated with Pilkingon and trained them guys in five months, then sent them to school — I take that back. They sent three to school for one class. The other three never went to school. And they trained them in five months, gave them the test and put them in front of us. Gave them the top pay and said seniority didn't matter. And we were still on to putting on sweeping the floors, painting the walls, working the lines while these guys stayed in the shop and got the top pay. It was six of them.
Barner Dep., 32.
A. After the first year, six Caucasian people were brought in off the street not affiliated with Pilkington. They got the training within five months and put in front of Nate Hayes and myself and paid the top pay.
Barner Dep., 37.
Q. And what do you know about their qualifications?
A. Gary Filas I believe was — had a card in machining. Ross Rollins, as far as I know, didn't have any qualifications that I know of.
Q. And how did you come to learn that Mr. Filas had a card in machining?
A. He spoke on it himself.
Barner Dep. 38.
Once again, the deposition testimony does not support the defendants' contentions in their brief. The same foundational problems exist, and, in one respect, the testimony is clearly hearsay. There is nothing which properly, much less adequately rebuts plaintiffs' contention that they were trained differently than similarly situated white trainees.
Thus, the record properly before this court shows that: 1) the plaintiffs are members of a protected class; 2) the defendant Pilkington provided training to its employees; 3) plaintiffs were eligible for the training; and 4) the circumstances of the training given to plaintiffs create an inference of discrimination. Plaintiffs have made out a case sufficient to go to the jury. Thompson v. Potomac Electric Power Co., 312 F.2d 645, 649-650 (4th Cir. 2002); Pafford v. Herman, 148 F.3d 658, 667 (7th Cir. 1998); Johnson v. Ohio Valley Elec. Corp., 2002 WL 484418, *3 (S.D.Ohio).
To be sure, plaintiffs did, in due course, receive the training and become qualified. But that is not a defense to their contentions. What matters is their allegations, which the present record supports, that they were treated differently with regard to how and when the training was offered to them, as opposed to how and when it was offered to six white new hires who started a their training a year after the plaintiffs.
Defendants argue that plaintiffs have failed to show that they suffered a materially adverse employment-related action at defendants' hands. To be actionable, discrimination must have a materially adverse impact on the plaintiffs' terms and conditions of employment. See generally Allen v. Michigan Dept. of Corrections, 165 F.3d 405, 410 (6th Cir. 1999) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)). To be "materially adverse," the change in the terms or conditions of employment must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Kocsis, 97 F.3d at 886.
Viewed most favorably to the plaintiffs, the record shows that they were denied equal access to opportunities for training, such denial was not random, but repeated, and resulted in a delay in their completion of the program and ensuing benefits. These consequences are both adverse and material.
I also agree that plaintiffs have made out a prima facie claim that they were subjected to a hostile work environment. Viewed most favorably for the plaintiffs, the record shows that Zemanski expressed a negative view about the plaintiffs' worth when all he knew about them was the color their skin, used terms — "lazy", "worthless" — that have historically been used in a negative, race-based, and stereotyping manner, and tolerated the use of racial epithets by plaintiffs' coworkers, and smiled when they were used. Likewise viewing the record favorably to the plaintiffs, a jury could find that the they were substantially more often given menial tasks, and regularly denied opportunities to progress in their training at the same rate as the white trainees.
Based on the present record, a jury could find that these were not random, incidental acts devoid of any racial significance. Our language does not only have a single word that can convey racial animus, or that may be deeply offensive and humiliating to African-Americans, especially when used by a white person in the company of other white persons. A black man will get the point if a white man calls him lazy or worthless often enough.
The conditions presented in the record satisfy the elements of a hostile work environment claim: 1) plaintiffs are members of a protected class; 2) they were subjected to unwelcome harassment; 3) the harassment was based on race; 4) the harassment unreasonably interfered with plaintiffs' work performance; and 5) the harassment created an intimidating, hostile, or offensive work environment. Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999).
I likewise agree that the record in this case suffices to send the plaintiffs' intentional infliction of emotional distress claim to the jury. Though no Ohio case has adopted the proposition that indignity on the basis of race sustains a claim for intentional infliction of emotional distress, other cases have allowed such claims to proceed. Covington v. Beaumont Independent School Dist., 738 F. Supp. 1041 (E.D.Tex. 1990). Viewing the record most favorably for the plaintiffs, a jury might find for them on this claim. In any event, the record suffices to permit the jury to consider this claim.
In light of the foregoing, it is
ORDERED THAT defendants' motion for summary judgment be granted with regard to plaintiff Barner's claim of retaliation, and otherwise denied.
So ordered.