Opinion
Case No. 3:02CV7545
October 10, 2003
ORDER
This is an employment discrimination case in which plaintiff N. Earl Fitzgerald alleges that he was discriminated against by his employer, defendant Roadway Express, Inc. This court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Pending is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the following reasons, defendant's motion shall be granted.
BACKGROUND
N. Earl Fitzgerald is a long — term employee for defendant Roadway Express, Inc. ("Roadway"). Fitzgerald drove a Roadway delivery truck for 15 years until his termination in August, 2001. He was reinstated in November, 2001, and currently works for Roadway in the same capacity.
Fitzgerald is African — American. Since July, 2000, he has several times complained to Roadway's management that he has received less favorable treatment than white Roadway employees.
On August 14, 2001, Fitzgerald made a routine delivery to the Home Depot store on Alexis Road in Toledo, Ohio. Home Depot's receiving clerk, Christina Holmes, asked Fitzgerald for help unloading the truck A confrontation between Holmes and Fitzgerald ensued, though both parties disagree as to exactly what happened.
Holmes contacted Sandy Murawski, a Roadway customer service representative, and told her of the confrontation with Fitzgerald. Murawski stated that Holmes was very upset and crying during the telephone conversation. Holmes followed her phone complaint with a faxed complaint to Bruce Lietzke, a Roadway Terminal operations manager. Holmes' complaint alleges that Fitzgerald was rude and abusive toward her when she asked for his help, and that he swore at her and threatened her when she tried to dismiss the incident and return to her work
Murawski later informed John McAbier, another Roadway Terminal operations manager, of the incident between Fitzgerald and Holmes. On returning to Roadway's terminal later that day, Fitzgerald asked Lietzke if he had heard from Holmes. Lietzke explained to Fitzgerald that he had heard from Holmes, and that he would discuss this matter with Fitzgerald at a later date. Fitzgerald does not dispute that a "negative interaction" between himself and Holmes occurred on August 14, 2001, but denies that he raised his voice or used any profanity during the incident. Doc. 37, at 2.
Lietzke confirmed Holmes' complaint with Murawski and Diana Bolles, Roadway customer service representatives who had spoken directly with Holmes. On August 21, 2001, Lietzke met with Fitzgerald and his union steward, Paul Matijega, to discuss Holmes' complaint. As a result of this meeting, a Letter of Accountability was issued to Fitzgerald warning him for his conduct during the incident with Holmes. Lietzke informed Fitzgerald that he would not be sent back to the Home Depot where Holmes worked. On not being sent back to the Home Depot store where Holmes worked, Fitzgerald states:
the easiest thing for [Roadway] to do would be for them to not let me go back over there . . . Home Depot's our big account, our bread and butter. No way will management risk making any waves. I understand this and believe it or not agree with it.
Doc. 27, at 4.
Fitzgerald did not file a grievance with the union about the Letter of Accountability.
On August 23, 2001, Fitzgerald made a delivery to a different Home Depot store on Secor Road in Toledo. Fitzgerald discussed the Holmes incident with an employee at the Secor Road Home Depot, who told Fitzgerald to discuss this matter with the manager of the Alexis Road store. Id. at 5. On August 24, 2001, Fitzgerald called to speak with the Alexis Road store manager, Sergio Rico, to "talk to him on the phone and give him an idea of my side of the story." Id. Later that day, Fitzgerald, on his own time, returned to the Alexis Road store, but Rico had already left for the day.
On August 29, 2001, Fitzgerald returned to the Alexis Road store, again on his own time, where he spoke with Rico and explained that Holmes was dishonest in her complaint against him. Doc. 27, at 5. That same day, Holmes spoke to Murawski and told her that Fitzgerald had been seen in the Alexis Road store and that this made her afraid because she felt threatened by Fitzgerald. Id. Murawski subsequently informed McAbier that Fitzgerald had returned to the Home Depot after Holmes' original complaint, and that this upset Holmes. Id.
Based on this information, on August 30, 2001, McAbier decided to discharge Fitzgerald. Doc. 27, exhibit A, at ¶ 7. Pursuant to standard procedure, McAbier permitted Fitzgerald to remain in service pending a Union grievance of his discharge. According to McAbier, he told Fitzgerald, at a meeting on August 29, 2001 with Union representatives, not to return to the Alexis Road store. Id. Fitzgerald, however, denies ever being told not to return to the Alexis Road Home Depot store.
Two days later, on August 31, 2001, Therese Buffaloe, another Roadway customer service representative, informed McAbier that Holmes had called that day and stated that Fitzgerald had been seen in the store again. Doc. 27, exhibit A, at. ¶ 8. Based on this information, McAbier concluded that Fitzgerald had returned to the Alexis Road store after being discharged. Because Home Depot is Roadway's largest national customer, and because he was concerned that Fitzgerald was disregarding what McAbier thought was a clear order not to return to the Alexis Road Home Depot store, McAbier decided to take Fitzgerald "out of service." This meant that Fitzgerald would not be permitted to work pending the Union grievance. McAbier sent a certified letter to the Union steward and Fitzgerald, which states, in part:
You were to continue working until the complaint was fully investigated and you were instructed not to stop at Home Depot again. Since your discharge, you went back to Home Depot on August 30, 2001 and we received another complaint; therefore you are being taken out of service effective today, August 31, 2001.
Doc. 27, at 6.
In addition, McAbier called Rico, the Alexis Road store manager, to inform him of the decision. Rico promised to call the police if he saw Fitzgerald in the store again.
Holmes, who has been sued by Fitzgerald in state court for defamation, now denies having called Buffaloe. Fitzgerald also denies returning to the Alexis Road store on August 30, 2001. Fitzgerald remained out of service while his grievance was pending. He contends that Roadway made false statements at the grievance hearing.
On October 29, 2001, Fitzgerald filed a complaint with the Ohio Civil Rights Commission ("OCRC") claiming that Roadway discriminated against him. Fitzgerald's discharge was reversed on November 9, 2001. He returned to Roadway, where he currently works.
Fitzgerald's complaint highlights, in contrast to his own experiences, other incidences involving customer complaints about non — minority Roadway employees where Roadway did not order similar disciplinary measures. Fitzgerald states that Holmes has also complained to Roadway about safety violations committed by Roadway driver John Krum, who is white. Roadway has not instituted any disciplinary action against Krum. In addition, Fitzgerald asserts that an employee of another Roadway customer, La — z — Boy, told Fitzgerald that she submitted a complaint to Roadway about one of its drivers, Kevin Ramsey, who is white. The incident involved a dispute over loading `skids.' Roadway did not discipline Ramsey.
STANDARD OF REVIEW
Summary judgement must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non — moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non — moving party, and all reasonable inferences will be drawn in the non — moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed R. Civ. P. 56(c).
DISCUSSION
Fitzgerald claims that Roadway discriminated against him based on his race in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). Title VII states that "[i]t shall be unlawful employment practice for an employee . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ."
Where the plaintiff does not have direct evidence of discrimination, courts use a burden — shifting approach. The Supreme Court explained:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. 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." 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.Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973).
A. Prima Facie Case
To establish a prima facie case of race discrimination under McDonnell Douglas and Bur dine, the plaintiff must prove: 1) he is a member of a protected class, 2) he was subjected to an adverse employment action, 3) he was qualified, and 4) he was treated differently that similarly — situated male employees for the same or similar conduct. See Jacklyn v. Schering — Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 928 (6th Cir. 1999) (citing Mitchell v. Toledo Hospital, 964 F.2d 577, 582-83 (6th Cir. 1992).
In the instant case, Fitzgerald easily meets his burden under the first three requirements for establishing a prima facie case. First, Fitzgerald is African — American, and therefore is a member of a protected class. Second, it is undisputed that Roadway discharged Fitzgerald, clearly an adverse employment action. Third, it is undisputed that Fitzgerald is qualified for his position; he has been working for Roadway for over fifteen years.
Fitzgerald, however, has failed to proffer evidence sufficient to establish that he was treated less favorably than similarly situated non — minority employees.
For Fitzgerald to establish that other non — minority employees were treated more favorably than him, he "must show that the `comparables' are similarly situated in all respects." Mitchell, 964 F.2d at 583 (emphasis in original). Therefore, the "individuals with whom [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 their employer's treatment of them for it." Clayton v. Meijer, Inc., 281 F.3d 605 (6th Cir. 2002) (quoting Mitchell, 964 F.2d at 583).
The Sixth Circuit has held that a discharged African — American employee, who was engaging in the same conduct as other non — minority employees, failed to show that the non — minority employees were treated more favorably than he. Clayton, 281 F.3d at 608. The distinguishing factor, the Sixth Circuit said, is not the conduct in which the employees engaged, but whether the harm resulting from the employees' action was distinguishable. The court reasoned that:
While [plaintiff and the] other white employees may have engaged in the same acts of negligence, the employer is not precluded from considering the harm resulting from the conduct of its employees. In this case, only [plaintiff's] negligence caused serious injury to a coworker. This is precisely "such differentiating or mitigating circumstance" that distinguishes [plaintiff's] conduct from those of the three white coworkers.Id. at 612 (citing Mitchell, 964 F.2d at 583).
The decision in Clayton is analogous to the instant case. Fitzgerald alleges that he was treated more harshly than other non — minority Roadway employees, Krum and Ramsey, for committing similar acts. Fitzgerald's case, though, is distinguishable from the limited facts he conveys about Krum's and Ramsey's cases. For example, the Krum and Ramsey incidents were isolated, single occurrences. Fitzgerald repeatedly returned to the Home Depot store, aggravating the situation and causing Home Depot's employees to complain repeatedly to Roadway about his behavior. Roadway could reasonably conclude that Fitzgerald's repeated conduct was more of a threat than other employees' isolated acts.
Moreover, Home Depot is Roadway's largest national customer and Roadway was permitted to consider the potentially far — reaching harm Fitzgerald's conduct could cause Roadway if Home Depot chose another carrier service based on the frequency of its Toledo customers' complaints.
Even if Roadway did not consider the potential harm of Fitzgerald's conduct as distinguishable from that resulting from the conduct of Krum and Ramsey, Fitzgerald has failed to establish that Krum and Ramsey engaged in the same acts of negligence as Fitzgerald.
Fitzgerald also argues that he was treated differently than other Roadway employees with regard to overtime and access to trucks with air conditioning. However, Fitzgerald has not shown that any such differential treatment came at the hands of McAbier, rather than other Roadway officials. As the Sixth Circuit held in Mitchell and Clayton, this evidence is probative only if the alleged disparate treatment was by the same supervisor who was responsible for the decision to implement the adverse employment action giving rise to the lawsuit
For these reasons, Fitzgerald has failed to satisfy the fourth element of the McDonnell Douglas test and cannot make out a prima facie case of discrimination.
B. Legitimate, Non — discriminatory Reason for the Adverse Employment Action
Even if Fitzgerald could establish a prima facie case of discrimination, Roadway has met its burden of setting forth a legitimate, non — discriminatory reason for Fitzgerald's discharge.
Roadway based its termination of Fitzgerald on complaints from a very important national customer. Those complaints alleged that Fitzgerald had been abusive and rude and had repeatedly aggravated the situation by pursuing the employee who made the complaints. This is undoubtedly a legitimate, non — discriminatory reason for taking disciplinary action against Fitzgerald. The Sixth Circuit has held that when an employer terminates an employee based on customer complaints alleging abusive behavior by that employee, the employer has set forth a legitimate, non — discriminatory reason for the employee's discharge. Crawford v. Broadview Savings Loan Co., 1989 U.S. App. LEXIS 9921 at*16(6th Cir. 1989).
C. Legitimate, Non — discriminatory Reason Was Not a Pretext for Discrimination
Fitzgerald has failed to establish a prima facie case, but, even if he had not, he has not met his burden to establish that Roadway's legitimate reasons for discharging Fitzgerald were merely a pretext for discriminating against him.
To establish that Roadway's proffered reasons for discharging Fitzgerald were a pretext, Fitzgerald must show that Roadway was more likely than not motivated by a discriminatory purpose or that Roadway's proffered explanation is unworthy of belief. Wixson v. Dowagiac Nursing Home, 87 F.3d 164, 170 (6th Cir. 1996). If McAbier honestly believed his proffered non — discriminatory reason for discharging Fitzgerald, Fitzgerald cannot establish pretext simply by claiming that the proffered reason is inaccurate. See, e.g., Majewskl v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2000).
Though Fitzgerald spends a considerable amount of time in his opposition to the motion for summary judgment discussing allegedly false statements made by Roadway in the grievance hearing and its response to Fitzgerald's complaint to the Ohio Civil Rights Commission, that discussion is not material to the question of Roadway's intent at the time it discharged him. Fitzgerald further asserts that he was not told not to return to the Alexis Road Home Depot on his own time. Even if this is true, Roadway could properly view Fitzgerald's two return visits to speak with Rico as inappropriate under the circumstances, especially in light of Ms. Murawski's and Ms. Buffaloe's reports about Holmes' reactions to those visits. Here, Fitzgerald asserts that Holmes did not call Buffaloe and that he was never at the Alexis Road Home Depot on August 30, 2001. Even if Buffaloe's report was false, there is no indication that McAbier believed it to be so. McAbier, in fact, asserts that he discharged Fitzgerald because Holmes' complaints were serious and clearly jeopardized Roadway's business relationship with Home Depot. He, therefore, acted on a legitimate belief that Holmes' accusations were well — founded.
Fitzgerald also contends that Roadway failed to investigate Holmes' complaint or to permit him an opportunity to present his version of the incident with Holmes. Roadway, however, has no obligation to investigate a customer complaint that it finds plausible on its face. See, e.g., Crawford, 1989 U.S. App. LEXIS at *16 (holding that the employer's lack of in — depth investigations into customer complaints or its deviations from standard disciplinary procedures were insufficient to establish that the employer's termination was race related or pretext).
In any event, Fitzgerald had a union representative with him when he first met with McAbier following the initial complaint, and he does not deny having a "negative interaction" with Holmes. Fitzgerald does not dispute Roadway's contention that Home Depot is its largest, and thus a very important, customer. Nor does he dispute that Roadway could properly take a complaint such as that received from Holmes very seriously.
For these reasons, Fitzgerald has not established that Roadway's non — discriminatory reason for his discharge was a pretext for discrimination.
CONCLUSION
It is, therefore,
ORDERED THAT Roadway's motion for summary judgment be, and hereby is, granted.
So ordered.