Opinion
Case No. 00-72595
January 30, 2001
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. Introduction
This is a race and discrimination and retaliation case under Title VII, 42 U.S.C. § 2000(e), et seq. Plaintiff Joseph Gant (Gant), proceeding pro se claims that defendant, the Regents of the University of Michigan (the University) discriminated and retaliated against him when the University terminated for sleeping during work hours. Gant is an African American man.
Gant improperly named the University of Michigan Main Hospital Environmental Services as the defendant.
Before the Court is the University's motion for summary judgment, to which Gant has responded. The University says that (1) Gant cannot make out a prima facie case, (2) the University had a legitimate reason for terminating him, and (3) Gant cannot show pretext.
The Court ordinarily would grant oral argument on defendant's motion. However, in this case, the Court finds that oral argument is not necessary. See Mich. LR 7.1(e)(2).
II. Factual Background A.
Gant was employed by the University from April 29, 1979 to January 31, 2000 as a custodian at the University's Main Hospital. At all times during his employment, Gant was covered by a collective bargaining agreement between the University and AFSCME Local 1583 (the Union). On May 5, 1999, Wiley Edwards (Edwards), a African American man and a supervisor who was filling in for Gant's regular supervisor, Spencer Gardner, found Gant sleeping on the couch in the Environmental Services Lounge on the 6th floor of the Main Hospital. The time was 6:45am. Edwards called Gant's name several times. Gant eventually woke up and told Edwards that it was his break time. Edwards informed Gant that his break time was 6:15 to 6:30am. On May 6, 1999, Edwards wrote Gant a letter memorializing the incident and informed Gant that sleeping on the job is a serious form of misconduct. The letter also informed that Gant received a 2 day disciplinary lay off for May 5 and May 6. The letter also advised that "any future misconduct of this nature will subject you to further disciplinary action up to, and including discharge." On May 13, 1999, Gant filed a grievance with the Union protesting his lay off.
On December 30, 1999, Edwards, who was again filling in for Spencer Gardner, found Gant sleeping in the 6th floor lounge during regular work hours. On January 18, 2000, the University held a Disciplinary review Conference (DRC) with Gant and his Union representative, where Gant was permitted to present facts or information regarding the alleged dischargeable conduct. Susan Powers (Powers), a Human Resources Consultant for the University, conducted the DRC. Gant offered no proof that he was not sleeping. Thereafter, Edwards, Powers, and Michael Daughenbough, Assistant Director of the Environmental Services Department, made the decision to terminate Gant. On January 28, 2000, Edwards again wrote to Gant memorializing both incidents of sleeping on the job and stating that Gant was terminated effective January 31, 2000. On February 3, 2000, Gant filed a grievance with the Union protesting his termination.
On February 8, 2000, Gant filed a charge of racial discrimination and retaliation with the EEOC. On April 4, 2000, the EEOC dismissed the charge, finding that its investigation failed to reveal evidence of racial discrimination or retaliatory harm. Gant filed suit against the University on June 7, 2000.
B.
This is Gant's third lawsuit against the University for discrimination during the course of his employment with the University. In 1989, Gant, apparently proceeding pro se, filed suit against the University alleging race discrimination in the denial of a promotion on five separate occasions and retaliation for having filed an EEOC charge in 1983. The case was dismissed on the University's motion for summary judgment. The Court of Appeals for the Sixth Circuit affirmed in an unpublished per curiam opinion.
In 1995, Gant, again proceeding pro se, filed suit against the University alleging race discrimination in not being selected for positions as a Maintenance Mechanic II in January of 1988 and in January of 1995. The case was dismissed on the University's motion for summary judgment. The Sixth Circuit affirmed in and unpublished opinion.
During the course of his employment, Gant has also numerous grievances, EEOC charges and Michigan Employment Related Commission (MERC) charges. Most recently, an administrative hearing was held on June 8, 2000 regarding Gant's MERC charge concerning an unfair labor practice Gant filed against both the Union and the University. The ALJ dismissed the charge; Gant has sought further administrative review.
III. Summary Judgment
Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In so doing, the Court "must view the evidence in the light most favorable to the non-moving party."Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).
IV. Analysis A.
Title VII makes unlawful an employer's decision "to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin[.]" 42 U.S.C. § 2000e-2(a)(1) (1994).
The McDonnell Douglas/Burdine framework is applicable to claims brought under Title VII. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (applying McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
To establish a prima facie case of race discrimination, Gant must show by a preponderance of the evidence that (1) he was a member of the protected class, (2) he was subjected to an adverse employment action, (3) he was qualified for a particular position, and (4) he was treated differently than similarly situated non-minority and younger employees.See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996); Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 420 (6th Cir. 1999).
In order to establish a prima facie case of unlawful retaliation, Gant must show that (1) he engaged in activity protected by Title VII, (2) the exercise of his civil rights was known to the University, (3) the University subjected him to an adverse employment action, and (4) a causal connection exists between the protected activity and the adverse employment action. See Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 412 (6th Cir. 1999). The court should look only to the plaintiff's evidence to determine whether or not the plaintiff has established a prima facie case of retaliation. See Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 662-63 n. 7 (6th Cir. 2000).
Once Gant establishes a prima facie case of discrimination or retaliation, the burden shifts to the University to rebut the presumption of discrimination by providing evidence showing that the plaintiff was terminated for a legitimate nondiscriminatory reason. See Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1092 (6th Cir. 1994). Gant may demonstrate that the University's explanation was merely pretext by showing (1) that the proffered reason had no basis in fact, (2) that the proffered reason did not actually motivate the termination, or (3) that the proffered reason was not sufficient to motivate the discharge. See id. at 1084. See also Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 248, 252-53 (2000) (holding that a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification was false, may permit fact finder to conclude that the employer unlawfully discriminated).
B.
Gant has filed several papers in response to the University's motion, from which the following can be discerned regarding his claims. Gant says that the first incident of sleeping was while he was on break, and either denies sleeping on the second incident or claims he was sleeping for 1/2 of a second. He also alleges that witnesses who said he was sleeping were lying. He also states that he has filed harassment complaints with the Union against Edwards and other supervisors, and seems to contend that he was terminated in retaliation because of those complaints.
Gant has submitted a paper entitled "Brief of Joseph Gant, Individually Charging Party," which is identical to a paper previously filed that the Court treated as an amended complaint. The paper apparently recites Gant's version of the events. Gant has also submitted an order in his second case against the University where the court denied the University's motion to dismiss on the grounds that Gant failed to exhaust his administrative remedies and that his complaint was time barred. Gant has also filed the Clerk's entry of default entered in his second case against the University, which was later set aside on the University's motion. Finally, he has submitted various papers relating to his EEOC charge in 1988 (for failure to promote), copies of statements from witnesses relating to his termination for sleeping, on which Gant has written that the statements are not true, papers relating to his EEOC grievance regarding his termination, and documents relating to harassment complaints made by Gant against University supervisors.
Gant's papers are largely unintelligible.
C.
The University argues that Gant cannot make out a prima facie case of discrimination because (1) its is not clear that Gant was qualified for his job and performed it satisfactorily and (2) that he was replaced by a person outside of the protected community or treated differently than other similarly situated individuals. As to the first argument, the University relies on Gant's personnel file which contains many warnings regarding tardiness and unexcused absences, and other misconduct. As to the second argument, the University relies on the fact that Gant's job was eliminated after his discharged and that according to an "informal survey," the University has discharged 13 employees since 1989 for sleeping on the job. These individuals include 5 white, 6 black, and 2 individuals whose race is unknown.
While the University's first argument is unpersuasive, Its second argument is well taken. Because Gant's job was eliminated and because the University has discharged other individuals, both black and white, for the same conduct, Gant cannot, and has not established a prima fade case of discrimination.
The same is true of Gant's retaliation claim. It is not at all clear what protected activity Gant alleges he was engaged in, and them is no evidence that any of the alleged activity was casually related to his termination. Thus, Gant has not established a prima fade case of retaliation.
Moreover, even assuming Gant has made out a prima fade case of discrimination and/or retaliation, the University had a legitimate non-discriminatory and non-retaliatory reason for terminating him — a second violation of sleeping on the job. The University's policy regarding sleeping on the job states "An employee shall no sleep during regularly scheduled work hours." The policy provides exceptions where the employee is taking prescribed medications or employee illness. The policy also provides for the following discipline regarding sleeping on the job:
Two day disciplinary layoff unless there are aggravating circumstances which may justify discharge. If the employee has received a disciplinary layoff for unexcused absenteeism, or previously been given the benefit of mitigating circumstances, discharge may be warranted.
The undisputed evidence shows that the University followed this policy in terminating Gant. Gant was given a two day layoff for the first incident and was discharged after the second incident.
Finally, Gant has failed to produce any evidence that the University's reason for terminating him was pretextual. While Gant denies sleeping on the job and/or says he was sleeping during a break, Gant offers no evidence to support these assertions. It is also notable that Gant offers no evidence of racially discriminatory conduct on the part of the University. Overall, Gant has failed to create a genuine issue of material fact as to whether the University discriminated against him or retaliated against him when he was terminated him for sleeping on the job.
V. Conclusion
The University's motion for summary judgment is GRANTED. This case is DISMISSED.
SO ORDERED.