Opinion
No. 1:02-cv-114
February 11, 2004
JUDGMENT
Plaintiff Corey M. King mistakenly identifies one of the defendants in the complaint as Randstaff Staffing Services. This defendant's true name is Randstad Staffing Services, Inc. The record is hereby CORRECTED to reflect the defendant's true and proper name, Randstad Staffing Services, Inc. The Clerk of Court is DIRECTED to make the necessary correction in the record showing that the defendant's name is Randstad Staffing Services, Inc.
In accordance with the accompanying memorandum opinion, the motions by defendant Randstad Staffing Services, Inc. and defendant Siskin Steel and Supply Company for summary judgment [Court File Nos. 27, 33] are GRANTED pursuant to FED. R. CIV. P. 56. The complaint of plaintiff Corey M. King is DISMISSED WITH PREJUDICE. Defendants shall recover their costs of this action from plaintiff Corey M. King under FED. R. CIV. P. 54(d)(1) and E.D.TN. LR 54.1.
Defendant Siskin Steel and Supply Company moves to extend the pretrial case management deadlines set by the Court's scheduling order and/or for continuance of the trial. In the alternative, defendant Siskin Steel and Supply Company moves the Court to hold another pretrial conference under FED. R. CIV. P. 16(a) to discuss the case management deadlines and status of the case. [Court File No. 47]. Defendants have made several motions in limine [Court File Nos. 51, 52, 53, 54 55] and plaintiff makes a motion in limine. [Court File No. 62]. Defendant Randstad Staffing Services, Inc. moves to bifurcate the trial on the issue of punitive damages. [Court File No. 56]. In light of the Court's decision to grant summary judgment in the defendants' favor, all of these motions are DENIED as MOOT.
The Clerk of Court shall close the record in this case. This is a FINAL JUDGMENT.
SO ORDERED.
MEMORANDUM OPINION
Plaintiff Corey M. King ("King") brings this action under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the Tennessee Human Rights Act ("THRA"), TENN. CODE ANN. §§ 4-21-101 et seq., claiming race discrimination in employment. King's claims fall into three categories: (1) disparate treatment; (2) racial harassment and hostile work environment; and (3) retaliation.King mistakenly identifies a defendant as Randstaff Staffing Services. The defendant's correct name is Randstad Staffing Services, Inc. ("Randstad"). The record will be corrected to reflect Randstad's true name.
Defendants Randstad and Siskin Steel and Supply Company ("Siskin") move for summary judgment pursuant to FED. R. CIV. P. 56. [Court File Nos. 27, 33]. After reviewing the record, the Court concludes the summary judgment motions are well taken and will be GRANTED. King's complaint will be DISMISSED WITH PREJUDICE. There are no genuine issues of material fact in dispute and the defendants are entitled to summary judgment. Based on the proof in the record, an objective, rational jury could not find in King's favor on any of his claims.
Siskin moves to extend the pretrial case management deadlines set by the Court's scheduling order and/or postpone the trial. In the alternative, Siskin moves the Court to hold another pretrial conference under FED. R. CIV. P. 16(a) to discuss the pretrial deadlines and status of the case. [Court File No. 47]. Defendants have made motions in limine [Court File Nos. 51, 52, 53, 54 55] and plaintiff makes a motion in limine. [Court File No. 62]. Randstad moves to bifurcate the issue of punitive damages. [Court File No. 56]. All of these motions will be DENIED as MOOT.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The Court must view the facts contained in the record and all reasonable inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907(6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a rational jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907. While the Court draws all reasonable factual inferences in the light most favorable to plaintiff King, the Court may grant summary judgment to the defendants if the record taken as a whole could not lead an objective, rational jury to find for King. Matushita, 475 U.S. at 587; McKinnie v. Roadway Express, Inc., 341 F.3d 554, 557 (6th Cir. 2003).
II. King's Complaint
The complaint is signed by King and constitutes his sworn statement that the factual allegations set forth therein are true. A verified complaint may serve as an affidavit in opposition to a summary judgment motion if it is properly supported and based on personal knowledge. Hamilton v. Roberts, 165 F.3d 27 (Table, text at 1998 WL 639158, *5 (6th Cir. Sept. 10, 1998)); Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993); Williams v. Browman, 981 F.2d 901, 903-05 (6th Cir. 1992); Hooks v. Hooks, 771 F.2d 935, 945-46 (6th Cir. 1985). Hearsay statements which are inadmissible under the FEDERAL RULES OF EVIDENCE and mere conclusory allegations made in a verified complaint are insufficient to withstand a summary judgment motion. Hamilton, 1998 WL 639158, at *5.
Many allegations in King's complaint are vague, lacking in details, and conclusory which is to be expected of a pleading. The general allegations in the complaint are amplified and explained by King in his deposition. It is useful to summarize King's complaint to lay the groundwork for analysis of his various claims. The Court inserts the names of key persons to facilitate a clearer understanding of the complaint.
King, an African-American, was employed at Siskin beginning in April 1999, through Randstad, a temporary employment agency. King was a temporary employee who worked at Siskin as a material handler, machine operator, and forklift driver. The workforce at Siskin was composed of both regular employees and temporary employees. The temporary employees essentially worked the same jobs and hours as regular employees.
While at Siskin, King contends he was subjected to racial slurs and the unequal treatment of employees based solely on differences in their race. King alleges he was passed over being hired by Siskin in a regular job when one became available. King says he was next in line to be hired by Siskin and he had no disciplinary or other work problems that should have adversely affected his getting the regular job. Instead of hiring King for the regular job, Siskin hired a white male (Jonathan Folds) who had previously quit working at Siskin for a few months and then returned to Siskin. King alleges that the reason he was passed over and Folds was hired for the regular job was due to racial animosity and discrimination against King by a Siskin supervisor (Eddie Stinnett). According to King, the Siskin supervisor (Eddie Stinnett) favored white employees over African-American employees in distributing overtime work and treatment during work hours.
King refers to "permanent" jobs and "permanent" employment. Instead of using the term "permanent," the Court will use the term "regular." A position of employment at Siskin was either a temporary job or a regular job.
King complains the work environment at Siskin became so hostile due to racial harassment that he submitted a grievance letter to Siskin's personnel director (Dan Williams) in February 2000. After Siskin conducted an investigation, it allowed the offending supervisor (Eddie Stinnett) to resign. King alleges the working conditions at Siskin became more difficult for him after he complained, i.e. King contends he suffered more racial harassment and retaliation after complaining to Siskin. King asserts that Randstad ignored his complaints about racial harassment and discrimination at Siskin.
It is alleged by King that the racial harassment continued at Siskin, including placing a hangman's noose in his employee locker and specially testing King for employment. When King requested information about regular job openings at Siskin in March 2000, Siskin told King that it was not then hiring for regular jobs. The next day King discovered that Siskin had recently conducted a job fair for prospective regular employees but Siskin had not given notice of the job fair to King. Siskin's personnel director (Dan Williams) told King there was a hiring freeze at Siskin. The next week the same personnel director told another Siskin employee there was no hiring freeze and Siskin was looking to hire regular employees.
King filed an administrative complaint with the Equal Employment Opportunity Commission ("EEOC") and the Tennessee Human Rights Commission ("THRC") in March 2000. In the meantime, King contends that Siskin told Randstad to find some other work for King. King asserts that instead of alleviating the racial harassment and discrimination at its plant, Siskin sought to have Randstad place King in another temporary job with Komatsu America International Company ("Komatsu") in Chattanooga. Randstad contacted King about switching to a temporary job with Komatsu but King decided to remain at Siskin. Komatsu began massive lay-offs of its temporary employees the following week. King evidently views this as a deliberate plot by Siskin and Randstad to lure King away from his job at Siskin and place King in a new temporary job at Komatsu even though Randstad purportedly had knowledge that Komatsu would soon begin laying off many of its temporary employees.
While his complaint to EEOC and THRC was being processed, King continued to work as a temporary employee at Siskin. King asserts there was an effort made to try and force him to quit his job at Siskin. King alleges that, without any cause, Siskin began requiring him to go through a series of random drug screens without providing King any information about the supposed adverse results. King privately obtained his own drug screen to prove that his urine was negative for the presence of illegal drugs.
King further alleges that after being forced to continually work in a racially hostile work environment at Siskin, it became clear that Siskin would never hire him for a regular job. King then left Siskin. King says he has subsequently been unable to obtain other employment in the manufacturing field in the Chattanooga area with wages that have parity with the level of income he earned at Siskin. King believes the reason he has been unable to find comparable employment is because Siskin and Randstad have taken action to "blackball" him. King alleges that when prospective employers contact Siskin and Randstad for references, Siskin and Randstad give them negative reports about King thus preventing him from obtaining other employment.
King claims that Siskin and Randstad, acting together, have discriminated against King on account of his race in violation of Title VII, the THRA, and 42 U.S.C. § 1981. King demands the following damages: (1) back pay; (2) front pay; (3) the economic difference between regular and temporary employment at Siskin calculated as beginning on the date of King's first attempt to obtain regular employment at Siskin, including lost promotions and the value of all benefits lost based on Siskin's refusal to promote and train King; (4) compensatory damages for humiliation, mental distress, and embarrassment; and (5) punitive damages.
King also demands an injunction requiring Siskin to reinstate him as an employee in a regular job. King demands an injunction prohibiting Siskin from committing future acts of employment discrimination, harassment, or retaliation against him. Moreover, King seeks an injunction prohibiting Randstad from engaging in future acts of "racial steering" and "future complacency accepting racially hostile environments" for the placement of Randstad's workers. King wants Randstad to be enjoined from reassigning its temporary workers at the request of an employer because the worker has complained about a racially hostile work environment. King seeks an injunction to prohibit Randstad from facilitating retaliation against its workers who raise complaints about race discrimination.
III. Facts
The allegations in King's complaint do not stand up under scrutiny. After examining the record, the Court finds that King's factual allegations fail for a variety of reasons. Many of his allegations are not supported by probative evidence that would be admissible at trial under the FEDERAL RULES OF EVIDENCE. Some allegations are nothing more than rank speculation and conjecture unsupported by direct or circumstantial proof. Other vague allegations are the result of King's confusion and failure to accurately remember or comprehend what actually happened. In his complaint, King often ignores or selectively forgets material facts. King also takes some facts entirely out of context, grossly misinterprets and exaggerates critical events, and jumps to many unreasonable or unwarranted conclusions he cannot prove.
King seeks to generate issues of fact and avoid summary judgment by asking the Court to make inferences which are not objectively reasonable. Although the Court must view the record in the light most favorable to King under Rule 65, the Court is not required to make unreasonable factual inferences that are not supported by direct or circumstantial proof. In his complaint, King sketches out in relatively broad brush strokes a basic outline of what he claims occurred. But when all of the relevant facts and details are examined and added to complete the picture, what emerges is a chronology of events which demonstrates that King cannot prove what he asserts in his complaint.
The Court has reviewed the record in the light most favorable to King and makes the following findings of fact.
A. Background: Siskin and Randstad
King resides in Chattanooga, Tennessee. Randstad is an employment agency that provides temporary employees to other businesses. Randstad maintains an office in Chattanooga. In April 1999, Randstad hired King and sent him to his first temporary assignment at Siskin. King was given job duties at Siskin as a machine operator, materials handler, and forklift operator. He cut metal materials and products to fill customer orders, and he loaded finished products onto trucks sometimes using a forklift.
Siskin processes and distributes steel and aluminum products throughout the Southeastern United States. Siskin operates a warehouse and processing facility in Chattanooga known as the "Plant." Siskin also operates a "Steel Store" which sells scrap metal and other materials processed at its Plant that were not sold or delivered as part of a customer order.
Siskin utilizes temporary employees at its Steel Store during periods when extra manpower is needed but no approved regular positions of employment are available. Siskin uses temporary employment agencies, including Randstad, to help meet its needs for temporary manpower. Temporary employees who perform well and meet Siskin's job qualifications are eligible to become regular employees when there is an opening at Siskin for a regular position either at the Steel Store or the Plant.
Before individuals are considered for hire as regular Siskin employees, they are required to pass a basic measuring test. Siskin's products consist of metal plates, sheets, bars, tubes, angles, beams, and channels which are identified by their different sizes and dimensions. Measuring is an essential part of the work at Siskin. Workers must be able to identify products and materials which necessarily requires measuring skill. Workers at Siskin who receive materials or fill a customer's order must be able to verify that the materials and products specified on the delivery receipt or customer purchase order are correct. Measuring skills are especially critical in the machine operator jobs in the Plant (saw operator, shear operator, laser and burner operators) because these jobs involve many more variables from the standpoint of complying with and accurately filling customer orders. Materials must be cut or burned to the customers' exact specifications.
Siskin administers a measuring test to all persons who apply for a regular job to make certain that the applicants possess the fundamental measurement and math skills necessary to perform the job. When King worked as a temporary employee at Siskin in the Steel Store, he was not required to pass the measurement test. Temporary employees are more closely supervised and have fewer measuring responsibilities than regular employees, so Siskin does not require its temporary employees to pass the measuring test. However, to be eligible and qualified for consideration for regular employment at Siskin, temporary employees must pass the measuring test. There are typically 24 questions on the test and applicants can miss or incorrectly answer up to a maximum of three questions and still pass the test.
Siskin had a written "No Harassment Policy" in place which provides that Siskin will not tolerate any form of harassment against its employees based on race or other Title VII protected categories. The policy contains a section explaining how to report instances of harassment to Siskin. The policy instructs employees that if they experience or witness what they think could be racial harassment or discrimination, they should immediately bring the matter to Siskin's attention. If an employee feels uncomfortable reporting alleged discrimination or harassment to their supervisor or manager, the employee should contact Siskin's Human Resources Director. This written policy was disseminated to all employees and openly posted in the Steel Store where King worked.
B. King Applies For Regular Job in Steel Store in December 1999
King began working as a temporary employee for Siskin in its Steel Store in April 1999. On or about December 20, 1999, a regular job became open in the Steel Store and King applied for it. King took the required written measuring test on December 20, 1999, but he incorrectly answered ten questions and failed the test. The Court has reviewed a copy of King's measuring test. [Court File No. 43, King's Deposition, Exhibit 11]. There is no dispute that the test was accurately graded. There is no proof that the measuring test is racially discriminatory. The test asks basic math questions and provides a fair, objective method for determining essential measuring skills. Because he failed the measuring test, King was ineligible and unqualified to be considered for the regular job in the Steel Store. Siskin had a legitimate, nondiscriminatory reason for denying King's application for the regular job to King in the Steel Store in December 1999.
Another temporary employee in the Steel Store, Jonathan Folds ("Folds"), was hired by Siskin in the open regular job in the Steel Store. Folds is Caucasian (white) and he successfully passed the written measuring test. Folds also had substantially more cumulative experience than King working in the Steel Store. After Folds was hired as a regular employee and because of economic conditions, there was a hiring freeze at the Steel Store. There were no more regular jobs available at the Steel Store until November 2000. King offers no proof to show that there were any other regular jobs open in the Steel Store from January 2000 through November 20, 2000, when King's temporary employment with Siskin was terminated.
C. February 15, 2000 Grievance Letter
In January and February 2000, King was upset that he did not get the regular job in the Steel Store instead of Folds. King refused to recognize and understand that he was unqualified for that particular job because he had failed the mandatory measurement test. King chooses to believe that Siskin discriminated against him on account of his race and gave the regular job to Folds solely because Folds is white. King bases this belief on the conduct of Eddie Stinnett ("Stinnett") who was then manager of the Steel Store. Stinnett is Caucasian. King believes Stinnett was biased and prejudiced against African-American workers.
When King did not get the regular job in the Steel Store, he submitted a letter to Siskin complaining about race discrimination and racial harassment by Stinnett. On February 16, 2000, King met with Dan Williams ("Williams"), the Human Resources Director for Siskin, to complain about Stinnett's conduct. At their meeting, King presented a letter to Williams dated February 15, 2000. King's letter states in relevant part:
This letter comes to you in order to make you aware of some unfair management practices currently being used by Eddie Stinnett in addition to his use of racial slurs on a daily basis.
For Example:
1. Eddie has said on more than one occasion that the only reason Hershel Walker can catch a football is because he thinks it is a watermelon.
2. Whenever I cut steel and it is twelve inches or longer, he makes the comment "one proud black boy".
3. A co-worker who is African-American asked Eddie for a cup of his coffee and Eddie responded by saying "After it runs through my kidneys".
4. Eddie hired Johnathan Folds over me when I should have been the next person hired at the steel store. Johnathan quit for 6 to 8 weeks and went to work at a Hardee's Resturant [sic] and because he quit, should have had to start his time all over. I questioned Eddie about this and he stated that Johnathan had worked at the steel store longer than me. I knew there was no point in continuing the conversation with him.
5. Around the 2nd or 3rd week in January, Eddie was going to send Johnathan and I for our physicals for permanent employment because we had been short of help at the steel store. Then Eddie decided to wait until a later date for the physicals. Finally he sent Johnathan for his physical and never did send me for mine, which was totally unfair.
6. Eddie has paid Johnathan for days when he was not present at work and also during the time he was a temporary for Randstand Staffing. I have never been paid extra even for legitimate time off. Johnathan went on vacation June 15, 1999 and was paid for his time off (even though he was working for Randstand Staffing at the time). Johnathan was paid for the whole day on 2/11/00 when he left the job at noon.
7. Eddie allows Caucasian employees to work overtime, he does not offer the same opportunities to African-American employees. We find out about overtime when we return to work on the following Monday morning.
8. I have overheard Eddie and Johnathan make the statement "White is right". They appear to think the statement is funny but I do not, especially since I have observed actions to support their statements.
I feel that the above examples are more than enough evidence to support my feelings that Eddie Stinnett is involved in unfair labor practices. It is difficult to tolerate this environment of racial remarks, berating activities and other unfair practices. These are serious accusations and I would appreciate your looking into them.
Viewing the record in the light most favorable to King, the Court finds that on two different occasions Stinnett made the statement in King's presence that the only reason Herschel Walker (a famous African-American football player) can catch a football is because he thinks it is a watermelon. Several times when King cut a piece of steel twelve inches or longer, Stinnettt made the comment "one proud black boy." On one occasion when an African-American co-worker asked Stinnett for a cup of coffee, Stinnett replied, "After I run it through my kidneys." King overheard Stinnett and Folds make the statement "white is right" several times but the statement was not made directly to King. [King Deposition pp. 83-88].
D. Siskin Investigates King's Letter and Terminates Stinnett
The first time that any of these allegations of race discrimination and harassment were ever brought to the attention of Siskin management was when King presented his letter dated February 15 to Williams on February 16, 2000. Williams reviewed and discussed each of the allegations raised in the letter with King. Williams thanked King for bringing the matters to his attention and Williams said he would immediately conduct an investigation. Williams assured King that Siskin does not tolerate racial discrimination and harassment, and that Siskin would take appropriate action.
Two days later on February 18, 2000, Williams went to the Steel Store to investigate and interviewed Stinnett. Williams also met with King's immediate supervisor, Tony Parks ("Parks"). Parks is an African-American. Williams asked Parks for an explanation as to the reason why Folds had recently been hired as a regular employee in the Steel Store instead of King. Parks replied that he had recommended Folds for the regular job and there was no comparison between Folds and King. Parks stated that Folds was much "sharper" and a much more capable employee compared to King. Parks stated that if Siskin could only hire one regular employee to fill the vacant position, there was no question but that it should have been Folds and not King. Parks further explained that Folds had been working substantially longer at Siskin than King and Folds had much more experience. Folds passed the measurement test prior to the regular job opening up in December 1999, and King failed the measurement test.
After speaking with Parks, Williams reviewed Siskin's personnel records and verified that what Parks had said was true. Siskin's records show that Folds began working at Siskin in April 1998 as a temporary employee and Folds worked at Siskin consistently except for a three-month period from July 12 — October 14, 1999. The cumulative time that Folds had been working for Siskin was one year and seven months. This was compared to King who had been a temporary employee at Siskin for only nine months. The records confirmed that Folds passed the measurement test in July 1999 when he had earlier applied unsuccessfully for a different regular position. Williams verified that King failed the measurement test on December 20, 1999.
Based on his expeditious investigation, Williams determined that Stinnett had made at least some of the racial comments alleged by King in the February 15, 2000, letter. Williams promptly notified Stinnett that his employment at Siskin was being terminated. Because of Stinnett's length of service at Siskin, he was given an opportunity to submit his resignation. Stinnett had worked at Siskin for 34 years and he had been a supervisor for over 20 years without any prior reported incidents of misconduct. Stinnett agreed to resign. Stinnett's last day of employment at Siskin was February 28, 2000. In sum, less than two weeks after King first reported his complaint to Siskin, Siskin took effective action to remedy the problem and prevent any further racial discrimination and harassment against King by terminating Stinnett. Siskin took prompt, effective remedial action as soon as it received notice of King's complaint.
A few days later, Williams advised King that disciplinary action had been taken against Stinnett. Williams said he hoped the matter had been resolved. Williams told King that he should notify Williams if King was subjected to any racial harassment or discrimination in the future. A couple of weeks later in March 2000, Siskin held a meeting with all regular and temporary employees during which Siskin reiterated its policy against illegal discrimination and harassment. Siskin again distributed copies of its written policy prohibiting discrimination and harassment to all of its employees.
Although King was not hired for the regular job in the Steel Store in December 1999, this did not amount to race discrimination and disparate treatment because King was unqualified for the job since he had failed the measurement test. King was not similarly situated to Folds. Folds had substantially more cumulative work experience in the Steel Store compared to King, and Folds had successfully passed the measurement test while King failed the measurement test by a wide margin.
E. King Files Discrimination Charge With THRC and EEOC
Despite Siskin's termination of Stinnett, King filed an employment discrimination charge with THRC and EEOC on March 9, 2000. He named only Siskin as his employer. King attached a copy of his February 15, 2000 letter. In the THRC complaint form, King indicated that the basis for his charge of race discrimination was failure to hire, failure to promote, harassment, and intimidation. King said he had been subjected to racial slurs. When asked to describe how other persons of a different race were treated differently than him, King wrote in the THRC complaint form: "Allowed to work overtime. Always saying white is right. Get paid days off. Allowed to leave early. Get paid cash early. Allowed to give free steel to friends."
F. King Gives February 15. 2000 Letter to Randstad and Randstad Investigates
In the meantime, on March 9, 2000, King gave a copy of his February 15 grievance letter to Randstad when King went to Randstad's office to pick up his paycheck. The first time King ever informed Randstad about race discrimination and harassment at Siskin was on March 9, 2000, which was after Siskin had already completed its investigation and terminated Stinnett.
The undisputed proof shows that Randstad did not ignore King's complaint. When King accuses Randstad of ignoring his concerns about race discrimination and harassment at Siskin, this is simply untrue. King's conclusory accusation is nothing more than conjecture unsupported by any probative proof.
The record shows that Lorna Jane Hall ("Hall") is employed by Randstad as a senior agent and she is the main contact person at Randstad for dealing with Siskin. When Hall learned about the February 15 letter and King's complaints about Stinnett, Hall immediately telephoned Rick England ("England"), Siskin's Human Resources Manager. Hall asked England what Siskin was doing to investigate King's complaints and to remedy the problem England replied that Siskin had already conducted an investigation and terminated Stinnett's employment at Siskin. England also advised Hall that King was continuing to work as a temporary employee at Siskin in his same job and with the same hours of work.
Randstad determined that King's complaints about Stinnett had been adequately resolved by Siskin. King had not suffered any adverse employment action as a result of the February 15 letter. King was not terminated, demoted, transferred, or reassigned by Siskin. King continued to work at Siskin in the same temporary job with the same work hours and wages as before. Consequently, there was no further action that Randstad needed to take concerning the matters raised in King's letter of February 15, 2000.
Randstad was not involved and played no part in Siskin's decision whether to offer the regular job in the Steel Store to King or Folds. There is no proof whatsoever that prior to March 9, 2000, Randstad knew about or condoned Stinnett's misconduct. Stinnett was employed by Siskin and not Randstad. Randstad had no authority to take any disciplinary action against Stinnett. Randstad had no control over or input in decisions by Siskin concerning when Siskin would offer overtime work to Siskin's employees.
After Hall's telephone conversation with England on or about March 9, 2000, Hall periodically checked with King and England to make sure that King had no further complaints about his work at Siskin. Hall told King that she was aware of the results of Siskin's investigation and that Siskin had terminated Stinnett's employment. Hall advised King to notify her if King had any other complaints. Thereafter, King never made any further complaints to Randstad concerning his employment at Siskin. King has not presented any probative evidence to rebut or refute Randstad's proof on these points. G. Other Incidents Not Contained in King's February 15 Letter
At this juncture in the narrative, the Court interjects that with regard to the claim of racial harassment and hostile work environment, there are several additional incidents of alleged racial harassment that King did not include in his February 15, 2000 letter to Siskin. When King filed suit in this Court, he added four more allegations of racial harassment.
On one occasion Stinnett commented that he did not like the picture of a black girl because Stinnett "wouldn't go behind anything a black man's been in." [King Deposition pp. 89-90]. Stinnett once made the statement that "when you see a black man with a pager that means he's a drug dealer." [King Deposition pp. 90-91]. One day it was raining outside at the Steel Store and the employees wanted to come inside the building for a break. Stinnett said "Shit floats" but Stinnett used this phrase when talking to everybody, i.e, all white and black employees. King does not know if the statement "shit floats" was intended by Stinnett to be racial in nature, but King thought it was inappropriate. [King Deposition pp. 91-91].
There was one occasion when two of King's co-workers, Folds and Tony Hammontree, placed a rope shaped like a hangman's noose in King's work locker at Siskin. The "noose incident" occurred prior to King giving his February 15 letter to Williams at Siskin on February 16, 2000. [King Deposition pp. 114-117, 145].
King never complained about any of these additional incidents to either Siskin or Randstad before King's temporary employment at Siskin ended on November 20, 2000. King could have easily included these additional incidents in his February 15, 2000, grievance letter to Siskin, but he inexplicably did not do so. As a practical matter, Siskin and Randstad cannot reasonably be expected to investigate and take remedial action concerning these additional incidents of racial harassment since King never bothered to bring them to the attention of Siskin and Randstad while King was employed at Siskin.
The bottom line is that King's specific claims about racial harassment and hostile work environment raised in his February 15 letter were effectively resolved when Siskin terminated Stinnett's employment on February 28, 2000, and Siskinmet with its employees in March 2000 to reemphasize that racial harassment and discrimination would not be tolerated. After Siskin terminated Stinnett, King was not subjected to any further incidents of racial harassment and hostile work environment from Siskin supervisors and co-workers.
In his brief, King argues that after he made his initial complaint to Siskin (King's February 15, 2000 letter), and after the investigation by Williams in mid-February 2000, King began receiving greater racial harassment on the job at Siskin, including the hangman's noose being placed in his locker. [Court File No. 42, p. 2]. Thus, King seeks to use the noose incident to support a claim of further racial harassment and retaliation occurring sometime after February 16, 2000. This argument by King is factually incorrect and does not square with the proof.
King's contention on this point fails because it is flatly contradicted and refuted by his own deposition. King testified that the noose incident occurred shortly after he initially began working at Siskin and well before King prepared his February 15, 2000 letter. [King Deposition pp. 115-118]. The noose incident could not possibly have been done in retaliation for King complaining to Siskin about race discrimination and harassment because the noose incident occurred several months prior to King making his initial complaint to Siskin in the February 15, 2000 letter. The Court finds there is no proof that King was subjected to any additional racial harassment or a racially hostile work environment at Siskin after King submitted his February 15, 2000 letter to Siskin.
H. King Reminded To Use Seatbelt While Operating Forklift
King next contends that after his February 15, 2000 letter to Siskin and after he filed his Title VII charge against Siskin with THRC and EEOC on March 9, 2000, King was subjected to racial harassment and retaliation by a Siskin employee named Kim Nash ("Nash"). King says Nash came to the Steel Store on approximately three occasions to check and see if King was wearing his seatbelt while operating the forklift. King assured Nash that he was properly using the seatbelt.
One time Nash questioned King's veracity and asked King if he was telling the truth. King was insulted that Nash would accuse him of lying. King believes that Nash's conduct constitutes a form of retaliation since this level of scrutiny over King's operation of the forklift had not happened prior to King making his complaint to Siskin about race discrimination in mid-February 2000. King feels that Nash was trying to catch him doing something wrong. [King Deposition pp. 118-125, 198]. However, King never bothered to complain to Siskin and Randstad that Nash was allegedly discriminating, harassing, or retaliating against him.
The Court finds there is no proof that Nash was discriminating against King or harassing him because of his race. Nash never said anything to or about King indicating she harbored racial animus. No rational, objective jury could find that Siskin was retaliating against King based on the innocuous conduct of Nash. There is no proof that, when Nash was monitoring King's operation of the forklift and use of the seatbelt, Nash had any knowledge that King had previously made complaints of race discrimination and harassment against Stinnett and Siskin. Moreover, Nash's conduct does not amount to the kind of severe or pervasive harassment necessary to makeout a Title VII retaliation claim.
Siskin submits the sworn declaration of Nash. [Court File No. 32, Ex. D]. Nash is employed by Siskin as a Training Support Coordinator. Nash explains that sometime prior to or during the year 2000, the United States Occupational Safety and Health Administration ("OSHA") implemented new federal regulations governing forklift safety and training. Siskin was required by OSHA to make certain that all employees who operate forklifts are properly trained and comply with mandatory safety procedures. It was part of Nash's job to check on Siskin's employees to ensure that they were operating forklifts safely, which included wearing their seat belts. Nash periodically walked around the Plant and the Steel Store to check on Siskin's employees. If an employee operating a forklift was not wearing the required seatbelt, Nash would remind them to use the seatbelts. Nash had to "write up" several individuals for forklift safety violations, and did so for both black and white employees.
Nash further states that on one occasion, she observed King put on his forklift seatbelt as Nash came walking up. Nash asked King if he had just put the seatbelt on and King denied it. Nash's questioning of King about the seatbelt was not motivated by his race. Nash asked the same question of various other black and white employees. More significantly, Nash never sought to "write up" or initiate any disciplinary action against King based on a failure to properly use seatbelts while operating forklifts. At most, Nash reminded King on several occasions to use the seatbelts for his own safety and to comply with OSHA regulations. When all this occurred in 2000, Nash was not aware that King had made any race discrimination complaints against Siskin and Stinnett. Nash had no intent or desire to retaliate against King.
After reviewing King's deposition and Nash's sworn declaration, the Court finds there is no probative evidence that Nash ever discriminated, harassed, or retaliated against King in violation of Title VII and THRA. A rational, objective jury could not find that Nash's conduct is actionable against Siskin and Randstad under Title VII and THRA. Randstad is not liable for the actions of Nash. Nash was employed solely by Siskin, and Randstad had no control over or responsibility for Nash's conduct
I. Hiring Freeze at Siskin and Job Fair
King contends that in mid-March 2000, Williams told him there was a "freeze" on regular jobs at Siskin. King concedes that Williams did not specify whether the job freeze applied to the Steel Store, the Plant, or both. [King Deposition pp. 214-216]. Williams' statement about a job freeze in March 2000 was not false as alleged by King. It is undisputed that there were no openings for regular jobs in the Steel Store from February 2000 through early November 2000. [King Deposition p. 215]. King testified he has no personal knowledge about any openings for regular jobs at the Plant during the time period in question. [King Deposition p. 215].
Although King thinks Siskin held a job fair on March 10, 2000, seeking new regular employees, King has no direct personal knowledge of any such job fair. King only heard about the purported job fair from an unidentified Siskin co-worker. Any such testimony from King about what a co-worker may have told him about a job fair is hearsay and cannot be considered as admissible evidence under FED. R. CIV. P. 56. In sum, King has no admissible evidence to prove that Siskin held a job fair in mid-March 2000 and that Williams' statement about a job freeze for regular employees at Siskin was false.
J. Randstad's Offer to Place King in Temporary Job at Komatsu
King seeks to create a Title VII retaliation claim against Siskin and Randstad based on Randstad's offer to help place King in a temporary job at Komatsu. The gist of King's theory is that after King gave his February 15, 2000 letter to Siskin and after King filed his race discrimination charge with THRC and EEOC on March 9, 2000, Siskin and Randstad conspired with each other to retaliate against King by trying to induce him to leave his job at Siskin and accept a different job at Komatsu. Siskin and Randstad allegedly conspired to do this knowing that Komatsu was preparing to layoff many of its temporary employees in the near future.
Based on the proof, the Court concludes that a rational, objective jury could not find that this retaliation claim has any merit. There is no probative evidence that Siskin ever communicated and conspired with Randstad to try and induce or trick King into leaving Siskin to accept a job at Komatsu with the intent that Komatsu would shortly thereafter layoff King. This retaliation claim by King is based on nothing more than conjecture and speculation. [King Deposition pp. 247-256].
The proof shows that sometime shortly after March 9, 2000, when Randstad first learned that King was complaining about race discrimination and harassment at Siskin, Randstad suggested to King that he should consider taking a temporary job at Komatsu. At that time, Komatsu was paying higher wages than Siskin. There is absolutely no proof that Siskin and Randstad ever discussed this or conspired to trick King into going to work for Komatsu. There is no proof that Siskin and/or Randstad had any idea or advance knowledge that Komatsu would layoff some of its temporary employees a few weeks later. Siskin and Randstad did not have a crystal ball that allowed them to peer into the future and foretell events at Komatsu. At most, a rational jury could reasonably find that Randstad knew King was unhappy at Siskin and Randstad offered to help place King in a new job at Komatsu for higher wages. This does not amount to retaliation or race discrimination in violation of Title VII and THRA.
In any event, King did not suffer any injury or adverse employment action as a result of Randstad offering to place him in a new temporary job at Komatsu. King chose not to accept Randstad's offer of a job at Komatsu. King continued to work in the Steel Store at Siskin.
K. Stinnett Returns to Siskin as Customer
On August 4, 2000, King told Williams about an incident that had occurred a week earlier. King reported that Stinnett, who was then only a Siskin customer, had visited the Steel Store and had a brief conversation with King. Stinnett told King to "get his ass back to work." It is not clear whether Stinnett made this statement in a hostile tone of voice, or as a mere jest and feeble attempt at humor. Stinnett tried to shake King's hand as a friendly gesture. Stinnett also made a statement to King that "Siskin is going to fuck you just like they fucked me." King told Williams that King did not appreciate Stinnett's behavior.
The Court finds that any statements made by Stinnett in his capacity as a Siskin customer in late July or early August 2000 are irrelevant to King's instant lawsuit. Siskin and Randstad are not responsible for Stinnett's conduct after he was discharged from employment by Siskin. Moreover, Stinnett's conduct was not racial in nature and did not constitute racial harassment. Stinnett did not say or do anything on this occasion that harassed King based on King's race.
After listening to King's story about his encounter with customer Stinnett, Williams explained to King on August 4, 2000, that Siskin could not do anything directly to Stinnett anymore because Stinnett was no longer a Siskin employee. Williams said he would take steps to try and make sure that Stinnett did not bother King again whenever Stinnett came in as a customer. Williams followed up on this promise by discussing the matter with the new manager of the Steel Store, Don King. Williams and Don King agreed that they would make sure Stinnett had no further contact with plaintiff Corey King. If Stinnett did not comply, then Siskin would not allow Stinnett to come into the Steel Store in the future as a customer. Plaintiff King reported no further problems with Stinnett.
L. King Applies For Regular Job in the Plant and Fails Drug Screen
King alleges that, without any cause, Siskin began requiring him to go through a series of random drug screens and retesting without providing King any information about the results. This is untrue and is not supported by the proof. King took a mandatory drug screen after he applied for a regular job in the Plant at Siskin in November 2000 and he was adequately informed of the test results. This is discussed by King in a document he prepared captioned "Addendum" that is appended to his deposition as Attachment A.
Siskin did not discriminate or retaliate against King with regard to the drug screens. Siskin made an effort to assist King in applying for and obtaining a regular job in the Plant. Siskin bent over backwards in November 2000 to help King pass the measurement test and successfully complete a drug screen so he could qualify for the open regular job in the Plant but King failed the drug screen when he tested positive for marijuana.
The proof shows the following. In early November 2000, a regular position opened up in the Plant. Williams notified King about the job and encouraged him to apply for it. Williams told King that Siskin wanted to offer this regular job to him but first King would have to pass the measuring test. On November 6, 2000, King took the written measuring test again and failed it. Based on King's daily performance as a temporary employee in the Steel Store, Williams believed that King was capable of measuring more accurately than shown by his written test results.
On November 9, 2000, Williams met with King to review the results from the written measurement test. Williams orally explained to King what each question asked, and King gave correct answers to most of the questions. As a result of this oral test on November 9, Williams told King that he had passed the measurement test and that Siskin was offering him a regular job in the Plant, contingent upon the outcome of a drug screen. All prospective employees are required by Siskin to take a physical examination, including a drug screen. The fact that Siskin required King to successfully complete a physical examination and drug screen before he could be hired in the regular job was not race discrimination or retaliation.
The drug screen was administered by an independent laboratory, Occupational Health Services ("OHS"), a department of Parkridge Hospital in Chattanooga. OHS and Parkridge Hospital are completely separate from Siskin. On November 16, 2000, King went to OHS and provided a urine sample. The next day, November 17, OHS informed Siskin that the urine sample was "diluted" and OHS was unable to properly test it. OHS needed a new urine sample. Siskin's Human Resources Officer, England, went to the Steel Store on November 17, 2000, and told King that it was necessary for King to return to OHS to provide another urine sample. England transported King directly to OHS for the drug screen. King provided a second urine sample on November 17, 2000, which OHS collected as a split sample.
The use of split samples is a common procedure in drug screens. A split sample means that an individual's urine sample is divided into two parts and sealed separately. OHS sends one half of the split sample to a lab for a drug screen and stores the other half in case there are future challenges to the testing procedure and results. Upon receiving a request for a retest, OHS typically sends the stored half of the split sample to a different laboratory to ensure the new drug screen is independent and accurate. All OHS needs to proceed with a retest of the stored half of the split urine sample is authorization from the individual allowing OHS to send it to a different laboratory.
OHS sent the first part of King's split urine sample to Medtox Laboratories, Inc. in St. Paul, Minnesota, for independent testing. The result of the drug screen was that King tested positive for marijuana (THC) metabolite. On November 20, 2000, OHS reported to Williams that King had tested positive for marijuana. Williams then called King into his office at Siskin to allow OHS to directly inform King of the drug screen results. King went to Williams' office where King spoke with OHS by telephone. When OHS advised King that there could be another test of the other stored half of his split urine sample, King replied that he wanted to go forward with the test. OHS gave King instructions about going to OHS to sign the necessary authorization to send the stored half of the split sample to a different laboratory.
King denied using or smoking any marijuana. King's only explanation for the positive marijuana test result was that he had been around some people who were using marijuana but he wasn't sure how close he was to it. [King Deposition p. 182]. Williams told King that until Siskin received confirmation that the drug screen was negative for the presence of illegal drugs, Siskin could not allow King to continue working at Siskin. King cleaned out his employee locker and left Siskin on November 20, 2000. This terminated King's employment with Siskin.
Because Williams wanted to make sure there were no impediments to King getting a second drug screen on the split urine sample, Williams made arrangements for Siskin to pay for the retest of the split sample. King went back to OHS where he was asked to sign a document authorizing a retest of the stored split sample. King became confused and upset about only being asked to sign an authorization form because he was expecting to give OHS a completely new urine sample. King says he did not understand why OHS would not obtain a completely new urine sample from him. King erroneously and unreasonably interprets these facts as indicating that OHS and Siskin were somehow discriminating against him and trying to prevent him from passing the drug screen. There is no proof and no basis in fact to support King's claim that Siskin discriminated against him with regard to the drug screen. The drug screen was properly conducted by an independent laboratory through OHS.
There is some confusion in the record whether King authorized OHS to retest the stored split sample. The parties contend that King declined to authorize OHS to retest the stored split sample and King simply left OHS when he was not allowed to give a new, different urine sample. However, there is an exhibit to King's deposition showing that OHS sent the second half of the split sample to LabOne, Inc. in Kansas. The report from LabOne, Inc. shows that it tested a urine sample collected from Corey King on November 17, 2000, which could only be the stored, second half of the split sample. On November 27, 2000, LabOne, Inc. reported the results of the drug screen showing that King again tested positive for marijuana metabolite.
In any event, based on the result of the drug screen conducted by an independent laboratory, Siskin had a legitimate, nondiscriminatory reason in November 2000, for denying King's application for the regular job at the Plant and for terminating King's temporary employment at Siskin. There is no direct or circumstantial evidence showing that these decisions by Siskin were motivated by any race discrimination or retaliation against King. King has not presented any proof showing that Siskin's proffered reason for its decision in November 2000 was false and a pretext for race discrimination or retaliation.
King had no further contact with Williams and Siskin prior to King filing the instant suit in federal district court. On November 20, 2000, Siskin notified Randstad that King's assignment as a temporary employee at Siskin had ended. Randstad was not informed of the specific reason why King was no longer working at Siskin. Randstad had no control over or input into Siskin's decision to terminate King's employment due to the drug screen showing a positive result for marijuana. Randstad subsequently contacted King a few times to offer him more job assignments, but King performed no other work for Randstad after November 20, 2000. King made no further attempts to contact Randstad for temporary work assignments.
King unilaterally decided to privately obtain his own drug screen. On November 22, 2000, King went to the office of Physicians Care in Chattanooga and had Dr. William Meadows take a urine sample. Dr. Meadows did an instant drug screen using a CRLSTAT device. King successfully passed this drug screen and he did not test positive for marijuana or any other illegal substances. However, King never informed Siskin and Randstad about the results of the drug screen performed by Dr. Meadows. The Court finds that the results of the drug screen that King privately obtained from Dr. Meadows on November 22, 2000, does not affect or alter the fact that Siskin had a legitimate, nondiscriminatory reason on November 20, 2000, to terminate King's temporary employment in the Steel Store and to decide to deny King's application for the regular job in the Plant. There was no opportunity or reason for Siskin to reconsider its decision because King never notified Siskin about the results of the drug screen performed by Dr. Meadows.
M. No Proof That Defendants "Blackballed" King
King alleges that he has been unable to find other employment because Siskin and Randstad have "blackballed" him by making negative references about King to other prospective employers. The Court has reviewed King's deposition. King has no probative evidence to support this allegation. The "blackballing" claim is nothing more than sheer conjecture.
King speculates he has been blackballed because he applied for some jobs but did not get called back. However, King concedes that none of the prospective employers that he submitted applications to have ever told King that Siskin and/or Randstad made negative statements about King. King has no specific instances of blackballing. [King Deposition pp. 205-206, 261]. Based on the lack of evidence, a rational and objective jury could not find that Siskin and Randstad engaged in any activities to blackball King with potential employers where King had made job applications.
IV. Analysis
Claims brought under 42 U.S.C. § 1981 and THRA involve the same prima facie elements and burden-shifting standards applicable to Title VII. Claims raised under § 1981 and THRA are analyzed using the same framework as Title VII cases. Parks v. City of Chattanooga, 2003 WL 21674749, *5 n. 11 (6th Cir. July 16, 2003); Newinan v. Federal Exp. Corp., 266 F.3d 401, 406 (6th Cir. 2001); Wade v. Knoxville Utilities Bd., 259 F.3d 452, 464 (6th Cir. 2001); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 n. 5 (6th Cir. 2000); Tetro v. Elliot Popham Pontiac, Oldsmobile, Buick, CMC Trucks, Inc., 173 F.3d 988, 993 (6th Cir. 1999); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992); Martin v. Boeing-Oak Ridge Co., 244 F. Supp.2d 863, 866 n. 1 (E.D. Tenn. 2002); Campbell v. Florida Steel Corp., 919 S.W.2d 26, 31 (Tenn. 1996). The Court's analysis and conclusions concerning King's Title VII claims apply with equal force to and are dispositive of his same claims brought under § 1981 and THRA.
A. Disparate Treatment
Title VII prohibits employers from discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of the employee's race. 42 U.S.C. § 2000e-2(a)(1). Disparate treatment occurs when an employer treats some employees less favorably than other employees because of race. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15 (1977); McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973); Huguley v. General Motors Corp., 52 F.3d 1364, 1370 (6th Cir. 1995); Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992).
King bears the burden of establishing a prima facie case of Title VII discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802; Clayton v. Meijer, Inc., 281 F.3d 605, 611-12 (6th Cir. 2002); Kline v. Tennessee Valley Authority, 128 F.3d 337, 342 (6th Cir. 1997); Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); Talley v. Bravo Pittino Restaurant, Ltd., 61 F.3d 1241, 1248 (6th Cir. 1995). King is required to show that his employer acted with a discriminatory motive. International Bhd. of Teamsters, 431 U.S. at 335-36; Huguley, 52 F.3d at 1370.
To preclude summary judgment, King must present some probative evidence showing there is at least a genuine issue of material fact in dispute whether Siskin and Randstad acted with the intent or motive to discriminate against King on the basis of his race. King must show that his race actually played a role in the employer's decision making process and it had a determinative influence on the employer's decision which amounts to disparate treatment. International Bhd. of Teamsters, 431 U.S. at 335-36; Huguley, 52 F.3d at 1370.
King may establish a prima facie case either by direct evidence of intentional race discrimination, or by circumstantial evidence that creates an inference of race discrimination. Seay v. Tennessee Valley Authority, 339 F.3d 454, 463 (6th Cir. 2003); Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000); Johnson, 215 F.3d at 572; Jacklyn v. Schering-Plough Healthcare Products, 176 F.3d 921, 926 (6th Cir. 1999); Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6th Cir. 1996); Burns v. City of Columbus, Dep't of Public Safety, 91 F.3d 836, 842-43 (6th Cir. 1996); Talley, 61 F.3d at 1246, 1248-49; Huguley, 52 F.3d at 1370-71. The direct evidence and circumstantial evidence paths are mutually exclusive. King need only show one or the other, but not both. Johnson, 215 F.3d at 572; Kline, 128 F.3d at 348.
Under the direct evidence approach, once the plaintiff employee produces direct evidence that the employer took an adverse action against the employee because of his race, the burden of persuasion shifts to the employer to prove that it would have made the same decision or taken the same adverse action even if the employer had not been motivated by race discrimination. Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003); Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); Johnson, 215 F.3d at 572. Direct evidence is that evidence, which if believed, requires the conclusion that race discrimination was at least a motivating factor in the employer's actions. Johnson, 319 F.3d at 865; Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir. 2002); Wexler v. White's Fine Furniture, Inc., 246 F.3d 856, 862 (6th Cir. 2001); Weberg, 229 F.3d at 522, 524; Jacklyn, 176 F.3d at 926; Talley, 61 F.3d at 1248. As a practical matter, rarely will there be direct evidence from the lips of an employer proclaiming racial animus. Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998); Kline, 128 F.3d at 348.
The instant case involves a mixture of direct evidence and circumstantial evidence. With regard to Siskin, King has some direct evidence of intentional race discrimination based on oral statements made by Siskin's manager in the Steel Store, Stinnett, occurring prior to February 15, 2000. After Siskin terminated Stinnett's employment in late February 2000, there is no direct evidence of any intentional race discrimination by Siskin. King wants the Court to infer race discrimination by Siskin after February 2000 based purely on circumstantial evidence. With regard to Randstad, there is no probative direct or circumstantial evidence in the record showing that Randstad ever engaged in any intentional race discrimination against King.
The Supreme Court in McDonnell Douglas, 411 U.S. at 802-03, set forth the analytical framework governing Title VII cases where the plaintiff employee lacks direct evidence of an employer's discriminatory intent. See Hopson, 306 F.3d at 433; Ensley-Gaines, 100 F.3d at 1224; Burns, 91 F.3d at 842-43; Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1179 (6th Cir. 1996); Thurman, 90 F.3d at 1166. To establish a prima facie case of disparate treatment under Title VII based on circumstantial evidence, King is required to show four essential elements: (1) King belongs to a protected class of persons by virtue of his race; (2) King was qualified for the job; (3) King suffered an adverse employment action; and (4) a comparable white person similarly situated to King received more favorable treatment than King. Seay, 339 F.3d at 463; Hopson, 306 F.3d at 433; Clayton, 281 F.3d at 610; Ensley-Gaines, 100 F.3d at 1224; Thurinan, 90 F.3d at 1166; Harris on v. Metro Government of Nashville, 80 F.3d 1107, 1115 (6th Cir. 1996); Talley, 61 F.3d at 1246; Mitchell, 964 F.2d at 582-83. To defeat a properly supported summary judgment motion, King, must at the very least, show that a genuine issue of material fact exists as to each element of his prima facie case. Burns, 91 F.3d at 843.
Under the third element of the prima facie case, King must prove that he suffered a materially adverse employment action. For there to be a materially adverse change in the terms and conditions of employment, it must be more disruptive than a mere inconvenience or a minor alteration of job responsibilities. De minimis employment actions are not actionable under Title VII. White v. Burlington Northern Santa Fe Ry. Co., 310 F.3d 443, 450 (6th Cir. 2002); Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002); Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 886 (6th Cir. 1996). To establish a materially adverse employment action, King must show a significant change in his employment status. An adverse employment action sufficient to support a Title VII retaliation claim includes a failure to hire or promote, a termination of employment; a reassignment, transfer, or demotion resulting in a decrease in salary or a less distinguished job title, a material loss of employee benefits, or significantly diminished material job duties and responsibilities; or other similar factors unique to King's particular employment situation. Akers v. Alvey, 338 F.3d 491, 497-98 (6th Cir. 2003); White, 310 F.3d at 450; Ford, 305 F.3d at 553; Bowman, 220 F.3d at 461-62; Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999); Kocsis, 97 F.3d at 886; Martin, 244 F. Supp.2d at 876.
If King is able to meet his burden of making out a prima facie claim based on circumstantial evidence, it would establish an inference or rebuttable presumption of intentional race discrimination. The burden of producing evidence then shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action taken against King. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 506-07 (1993); Burdine, 450 U.S. at 252-53; Seay, 339 F.3d at 463; Johnson, 319 F.3d at 866; Hopson, 306 F.3d at 433; Ensley-Gaines, 100 F.3d at 1224; Burns, 91 F.3d at 843-44; Thurman, 90 F.3d at 1166; Wixson v. Dowagiac Nursing Home, 87 F.3d 164, 169 (6th Cir. 1996); Talley, 61 F.3d at 1246.
The next step is that if the employer articulates a legitimate, nondiscriminatory reason for its conduct, then the inference of race discrimination raised by the plaintiff sprima facie case is rebutted and the factual inquiry proceeds to a new level of specificity. United Postal Service v. Aikens, 460 U.S. 711, 714-15 (1983); E.E.O.C. v. Avery Denison, 104 F.3d 858, 861-62 (6th Cir. 1997); Thurman, 90 F.3d at 1166. The burden shifts back to King to produce proof that the employer's proffered reason is a pretext for intentional race discrimination against King. Hicks, 509 U.S. at 510-11; Seay, 339 F.3d at 463; Hopson, 306 F.3d at 433-34; Kline, 128 F.3d at 342-43; Monette, 90 F.3d at 1179. When an employer presents a legitimate, nondiscriminatory reason for its adverse employment decision, King is required to demonstrate that a genuine issue of material fact exists as to whether the employer's proffered reason is a pretext for discrimination in order to defeat the employer's summary judgment motion. Seay, 339 F.3d at 467.
Pretext may be shown either directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer's conduct, or indirectly by showing that the employer's proffered reason is unworthy of credence. Burdine, 450U.S. at 256; E.E.O.C. v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 834 (6th Cir. 1997); Thurman, 90 F.3d at 1166; Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1082 (6th Cir. 1994). To successfully challenge the credibility of the employer's proffered explanation or reason for its conduct, King must be able to prove by a preponderance of the evidence either that: (1) the employer's proffered explanation or reason has no basis in fact; (2) the proffered explanation did not actually motivate the adverse employment action; or (3) the proffered reason was insufficient to motivate or warrant the adverse employment action. Seay, 339 F.3d at 463; Johnson, 319 F.3d at 866; Hopson, 306 F.3d at 434; Peters v. Lincoln Elec. Co., 285 F.3d 3456, 471-72 (6th Cir. 2002); Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000); Yenkin-Majestic Paint, 112 F.3d at 834; Burns, 91 F.3d at 844; Maddux v. University of Tennessee, 62 F.3d 843, 848 (6th Cir. 1995); Manzer, 29 F.3d at 1084.
Despite these shifting burdens of production of evidence, plaintiff King at all times bears the ultimate burden of persuasion that his employer's conduct was the product of intentional race discrimination. Hicks, 509 U.S. at 510-12; Wixson, 87 F.3d at 169; Simon v. City of Youngstown, 73 F.3d 68, 71 (6th Cir. 1995). King must prove that the adverse employment action taken against him would not have occurred but for his race as an African American. Simon, 73 F.3d at 70; Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988).
As the Court reads and understands the complaint, King contends he was subjected to disparate treatment in the following ways.
1. Denial of King's Application For Regular Job in Steel Store
King contends he suffered disparate treatment in December 1999 when King's application for an open regular job in the Steel Store was denied by Siskin. King is upset that he was "passed over" and Siskin hired Folds for the job. This disparate treatment claim fails.
There is no liability on the part of Randstad. There is no proof that Randstad was involved or participated in Siskin's decision to offer the regular job in the Steel Store to Folds instead of King. It was strictly a decision made by Siskin without any input from Randstad. The decisonmaker, Stinnett, was not employed or controlled by Randstad.
Siskin is not liable for disparate treatment on this claim. King has not made out a prima facie case of disparate treatment against Siskin. There are several reasons why King's disparate treatment claim against Siskin fails. First, King was unqualified to be considered by Siskin for a regular job in the Steel Store in December 1999 because King had failed the measurement test. King was not qualified for the regular job he sought.
Second, King cannot prove that he was treated differently or less favorably than a similarly situated white person who had substantially similar or less qualifications than King. To demonstrate that a comparable individual received more favorable treatment, King is required to show that he was similarly situated to the comparable white person in all relevant respects. Johnson, 319 F.3d at 867; Clayton, 281 F.3d at 610-11; Johnson, 215 F.3d at 572-73; Jacklyn, 176 F.3d at 929; Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998); Ensley-Gaines, 100 F.3d at 1224; Harrison, 80 F.3d at 1115; Talley, 61 F.3d at 1247; Mitchell, 964 F.2d at 583.
King was not similarly situated and comparable to Folds. Folds was qualified for the regular job but King was not qualified. Unlike King, Folds had successfully passed the measurement test. Folds also had substantially more cumulative work experience in the Steel Store than King. Folds had worked in the Steel Store almost twice as long as King. There is no evidence from which an objective, rational jury could find that King was similarly situated to Folds in all relevant aspects of their employment situations at Siskin.
Third, even if we assume arguendo that King can somehow satisfy his burden of making out a prima facie case of disparate treatment (which he cannot), his claim must be dismissed because Siskin has articulated a legitimate, nondiscriminatory reason for the decision to hire Folds as a regular employee in the Steel Store instead of King. Siskin decided to offer the job to Folds because Folds had passed the measurement test and Folds had substantially more experience working in the Steel Store compared to King. King has no proof showing that Siskin's proffered reason is false and a pretext for race discrimination. There is no proof presented by King showing that Siskin's proffered reason for its decision to hire Folds in the regular job in the Steel Plant has no basis in fact, or did not actually motivate the decision, or was insufficient to motivate or warrant the decision.
The bottom line is that regardless of whether Stinnett was motivated by an intent to discriminate against King due to King's race, Siskin would have made the same decision anyway to hire Folds instead of King for the regular job in the Steel Store in December 1999 because Folds passed the measurement test while King failed the measurement test. Siskin would have made exactly the same decision regardless of any race discrimination by Stinnett.
2. Hiring Freeze and Job Fair
King alleges that in March 2000, Williams falsely told King there was a hiring freeze at Siskin and there were no regular jobs open even though Siskin purportedly held a job fair seeking new regular employees without giving notice to King. This claim fails because, as discussed supra, King has no probative evidence to support this allegation. There is no disparate treatment because there is no evidence that any other similarly situated white persons were hired by Siskin as regular employees in either the Steel Store or the Plant during the period of time from March 2000 through November 2000.
3. Denial of King's Application for Regular Job in the Plant
King cannot show disparate treatment concerning Siskin's decision in November 2000 to deny King's application for the regular job in the Plant. Siskin offered the regular job in the Plant to King on the condition that he successfully pass the standard physical examination and drug screen required of all prospective regular employees. The sole reason King did not get the job was that he failed the drug screen. This did not constitute disparate treatment and race discrimination by Siskin in violation of Title VII. There is no proof that King was treated differently or less favorably than similarly-situated white individuals.
There is no liability here on the part of Randstad. There is no proof that Randstad was involved or participated in Siskin's decision in November 2000 to deny King's application for the regular job in the Plant due to King failing the drug screen. The decision was made by Siskin without any input from Randstad. Randstad did not employ and had no authority or control over the persons at Siskin who made the decision.
4. Termination of King as Temporary Employee in the Steel Store
King is likewise unable to prove that the decision by Siskin on November 20, 2000, to terminate King's temporary employment in the Steel Store constitutes disparate treatment. The record shows that the sole reason Siskin decided to terminate King was that he failed the drug screen. There is no direct or circumstantial evidence of disparate treatment and intentional race discrimination by Siskin in violation of Title VII. There is no proof that King was treated any differently or less favorably than similarly-situated white individuals who failed their drug screens.
There is no liability on the part of Randstad. There is no proof that Randstad was involved or participated in Siskin's decision on November 20, 2000, to terminate King's employment in the Siskin Steel Store due to King failing the drug screen. The decision was made by Siskin without any input from Randstad. Randstad did not employ, and had no authority to control, the persons at Siskin who made the decision.
B. Racial Harassment and Hostile Work Environment
Harassment of an employee based on his race can create a hostile work environment that violates Title VII. See Parks, 2003 WL 21674749, at *6; Howard v. Board of Education of Memphis City Schools, 2003 WL 21518725 (6th Cir. July 1, 2003); Newman v. Federal Exp. Corp., 266 F.3d 401, 405 (6th Cir. 2001); Moore v. Kuka Welding Systems Robot Corp., 171 F.3d 1073, 1078-79 (6th Cir. 1999); see also Williams v. General Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999); Alien v. Michigan Dept. of Corrections, 165 F.3d 405, 410 (6th Cir. 1999).
The scope of the prohibition against a hostile working environment is not limited to economic or tangible discrimination. An employee may show a violation of Title VII if he can prove that racial harassment created a hostile work environment without having to prove that he suffered a tangible adverse employment action. Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Bowman, 220 F.3d at 462; Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir. 2000); Moore, 171 F.3d at 1079.
To establish a prima facie claim of hostile work environment, King is required to show five essential elements: (1) King is a member of a protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based on King's race; (4) the racial harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or abusive work environment at Siskin; and (5) the existence of employer liability. Farragher, 524 U.S. at 787-88; Parks, 2003 WL 21674749, at *6; Harris, 2003 WL 21518725, at *8; Newman, 266 F.3d at 405; Bowman, 220 F.3d at 462-63; Hafford v. Seidner, 183 F.3d F.3d 506, 512-13 (6th Cir. 1999); Moore, 171 F.3d at 1078-79; Martin, 244 F. Supp.2d at 872.
Defendants argue that King's hostile work environment claim must be dismissed because he cannot prove the fourth and fifth elements of his prima facie case.
A. Fourth Element of Prima Facie Claim: Severe or Pervasive
With regard to the fourth element of the prima facie case, a hostile work environment occurs when "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris, 510 U.S. at 21; see also Bowman, 220 F.3d at 463; Slayton v. Ohio Dept. of Youth Services, 206 F.3d 669, 678 (6th Cir. 2000); Williams, 187 F.3d at 560. For King to prove there existed a hostile work environment, both an objective and subjective test must be met. The conduct must be severe or pervasive enough to create a work environment that an objectively reasonable person would find racially hostile or abusive. King must also subjectively regard the work environment as intolerably hostile, offensive, or abusive. Faragher, 524 U.S. at 787-88; Harris, 510 U.S. at 21-22; Howard, 2003 WL 21518725, at *8; Newman, 266 F.3d at 405-406; Bowman, 220 F.3d at 463; Burnett, 203 F.3d at 982-83; Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790 (6th Cir. 2000); Williams, 187 F.3d at 562, 566; Martin, 244 F. Supp.2d at 872-73.
Defendants focus their attention on the objective component of the test. Defendants argue that King cannot prove the racial harassment at Siskin was sufficiently severe or pervasive to create a work environment that an objectively reasonable person would find intolerably hostile or abusive. It is unnecessary to reach and decide this particular issue regarding the fourth element of the prima facie case. The Court expresses no opinion whether the alleged racial harassment of King in the Steel Store prior to February 15-16, 2000, was sufficiently severe or pervasive to make out the fourth element of the prima facie claim under Title VII for hostile work environment.
B. Fifth Element of Prima Facie Claim: Employer Liability
Instead, the Court will grant summary judgment in favor of Siskin and Randstad, and dismiss the hostile work environment claim on the ground that King cannot prove the fifth element of his prima facie case — employer liability. King cannot prove, by either direct or circumstantial evidence, that Siskin and Randstad are liable for the racial harassment committed by supervisor Stinnet and by King's co-workers in the Steel Store.
In determining employer liability for hostile work environment, the law distinguishes between harassment by co-workers and harassment by supervisors. When harassment is committed by a co-worker, the standard for employer liability is markedly different from that applicable to supervisors. An employer may be held vicariously liable for a hostile work environment based on acts of racial harassment committed by a manager or supervisor based on the doctrine of respondeat superior. Faragher, 524 U.S. 775. An employer's liability under Title VII for co-worker harassment is not based on the doctrine of respondeat superior and vicarious liability. Hafford, 183 F.3d at 513; Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 872 (6th Cir. 1997); Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803-04 (6th Cir. 1994); Martin, 244 F. Supp.2d at 872, 874. Because King claims racial harassment by co-workers and supervisor Stinnett, the Court must analyze both types of employer liability.
We first consider the law governing employer liability for co-worker harassment. King contends he was racially harassed by his co-workers, Folds and Hammontree, when they placed a rope shaped like a hangman's noose in King's work locker in the Steel Store sometime prior to February 15, 2000. In cases of co-worker harassment, employer liability is direct, not derivative or vicarious liability. The employer can be held directly responsible only for its own acts or omissions. The employer can be liable under Title VII if the employer manifests indifference or acts unreasonably in light of the facts that the employer either knew or reasonably should have known about co-worker harassment. The employer's act of Title VII discrimination is not the co-worker harassment itself, but rather the employer's inappropriate response to the employee's charges of co-worker harassment. Hafford, 183 F.3d at 513; Blankenship, 123 F.3d at 872-73; Martin, 244 F. Supp.2d at 874.
To prove the fifth prima facie element that Siskin and Randstad have employer liability for racial harassment perpetrated by the co-workers regarding the "noose incident," King is required to establish that: (1) Siskin and Randstad either knew or reasonably should have known about the co-workers' racial harassment against King; and (2) Siskin and Randstad failed to implement prompt and appropriate corrective action. Moore, 171 F.3d at 1079; Hafford, 183 F.3d at 513; Blankenship, 123 F.3d at 872; Fleenor v. HewittSoap Co., 81 F.3d 48, 50 (6th Cir. 1996); Martin, 244 F. Supp.2d at 874.
The Court concludes that with regard to the alleged co-worker harassment (noose incident), King cannot prove the fifth element of his prima facie claim of hostile work environment that Siskin and Randstad have employer liability. The undisputed proof shows that during the period of time King was employed by Siskin and Randstad, King never made a complaint to Siskin and Randstad about the noose incident. King could have complained about the noose incident in his letter to Siskin dated February 15, 2000, and in his administrative charge filed with the EEOC and THRC in March 2000, but King chose not to do so.
Prior to his filing the instant lawsuit in federal district court, King never informed Siskin and Randstad about the noose being placed in his work locker. There is no proof offered to show that the respective officers and management of Siskin and Randstad either knew or reasonably should have known about the noose incident in the absence of a complaint by King. In sum, Siskin and Randstad did not fail to promptly implement appropriate corrective, remedial action in response to the noose incident because Siskin and Randstad never knew the noose incident had ever occurred. This was due to King's failure to report the noose incident to them. Consequently, Siskin and Randstad are not liable under Title VII for co-worker racial harassment and a hostile work environment based on the noose incident of which they had no notice.
We now turn to the issue of employer liability for racial harassment by supervisor Stinnett. Randstad cannot be held liable for Stinnett's conduct. Stinnett was not employed by Randstad. Stinnett was employed only by Siskin. Randstad had no authority or control over Stinnett's conduct in managing the Steel Store.
In Faragher, 524 U.S. at 807-08, the Supreme Court held that an employer is subject to vicarious liability under Title VII for a hostile work environment created by a supervisor with immediate authority over the plaintiff employee. When no tangible adverse employment action is taken by the supervisor, a defendant employer may raise an affirmative defense to liability which the employer must prove by a preponderance of the evidence. Adapting Faragher to the instant case, the affirmative defense is comprised of two elements: (a) that employer Siskin exercised reasonable care to prevent and correct promptly any racially harassing behavior by supervisor Stinnett in the Steel Store; and (b) that King unreasonably failed to take advantage of any preventive or corrective opportunities provided by Siskin or to avoid harm otherwise. Id. at 807; see also Burlington Indus., Inc., 524 U.S. 742, 765 (1998); Morris, 201 F.3d at 788-89; Williams, 187 F.3d at 567; Hafford, 183 F.3d at 513; Alien, 165 F.3d at 412.
The affirmative defense is not available to the employer when the supervisor's harassment culminates in a tangible adverse employment action such as discharge, demotion, or an undesirable reassignment. Faragher, 524 U.S. at 808. Supervisor Stinnett's racial harassment and the hostile work environment created by Stinnett did not culminate in a tangible adverse employment action against King. King was not discharged, demoted, and reassigned to an undesirable job by Stinnett as part of the hostile work environment in the Steel Store. Therefore, Siskin may utilize the affirmative defense.
Based on the proof in the record, the Court finds that Siskin cannot be held liable under Title VII for the hostile work environment created by supervisor Stinnett's racial harassment. A rational, objective jury could not find that Siskin has any liability on King's hostile work environment claim. All of the probative evidence in the record shows that Siskin is entitled to prevail on its affirmative defease. A rational, objective jury could only make one possible finding: that Siskin exercised reasonable care to prevent and correct promptly Stinnett's racial harassment, and that King unreasonably failed to advantage of preventive or corrective opportunities provided by Siskin prior to February 15, 2000.
Accordingly, King's claim against Siskin and Randstad for racial harassment and hostile work environment will be dismissed because King cannot prove the fifth element of his prima facie case — employer liability.
C. Retaliation
Title VII provides it is an unlawful for an employer to discriminate (retaliate) against an employee because the employee has opposed any employment practice made unlawful under Title VII, or because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42U.S.C. § 2000e-(3)(a); see White v. Burlington Northern Santa Fe Ry. Co., 310 F.3d 443, 449 (6th Cir. 2002); Johnson, 215 F.3d at 578; Hollins, 188 F.3d at 661.
There is no direct evidence that an officer, manager, or supervisor of Siskin and Randstad ever stated that they intended to retaliate against King for engaging in activity protected under Title VII. King presents his retaliation claim only through circumstantial proof. In the absence of direct evidence, retaliation may be proved by circumstantial evidence using the McDonnell Douglas, 411 U.S. 792, burden-shifting framework. See White, 310 F.3d at 449; Hollins, 188 F.3d at 661.
King is required to prove four essential elements to make out a prima facie claim of retaliation: (1) King engaged in activity protected by Title VII; (2) King's exercise of protected Title VII rights was known to the defendant employer; (3) the defendant employer thereafter took adverse employment action against King, or King was thereafter subjected to severe or pervasive retaliatory harassment by a manager/supervisor; and (4) there is a causal connection between the Title VII protected activity and the adverse employment action or retaliatory harassment by a manager/supervisor. Howard, 2003 WL 21518725, at *9; Akers, 338 F.3d at 497; White, 310 F.3d at 449; Ford, 305 F.3d at 552-53; Johnson, 215 F.2d at 578; Morris, 201 F.3d at 792; Martin, 244 F. Supp.2d at 876.
To show a causal connection under the fourth element of his prima facie case, King must produce sufficient evidence from which a reasonable inference can be drawn that the adverse employment action or harassment would not have been done by the employer had King not engaged in Title VII protected activity. Johnson, 215 F.3d at 682; Alien, 165 F.3d at 413; Avery Dennison, 104 F.3d at 861; see also Walbom v. Erie County Care Facility, 150 F.3d 584, 589 (6th Cir. 1998); Zanders v. National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990) (A causal link requires plaintiff to proffer evidence sufficient to raise an inference that his Title VII protected activity was the likely reason for adverse employment action). Although no single factor is dispositive in establishing a causal connection, evidence that the defendant employer treated King differently or less favorably than comparable, similarly situated white persons, or evidence that the adverse employment action was taken shortly after and in close proximity in time to King's exercise of Title VII protected rights, is relevant to causation. Johnson, 215 F.3d at 682; Moore, 171 F.3d at 1080; Alien, 165 F.3d at 413.
One of King's problems is that he is unable to show a causal connection between his Title VII protected activity and any adverse employment actions taken against him by Siskin. There is no evidence that Siskin ever treated King differently or less favorably than comparable, similarly situated white persons after King engaged in Title VII protected activity. Moreover, the adverse employment actions taken against King were not done shortly after or in close proximity in time to King's exercise of Title VII protected rights.
If King is able to establish a prima facie claim, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for its actions. If the employer articulates a legitimate, non-retaliatory reason for its actions, then the burden of producing evidence shifts back to King to show that the employer's proffered reason is a pretext for retaliation. King at all times bears the ultimate burden of persuading the trier of fact that the employer intended to retaliate against him in violation of Title VII. White, 310 F.3d at 449; Ford, 305 F.3d at 553; Johnson, 215 F.3d at 578-79; Morris, 201 F.3d at 793; Martin, 244 F. Supp.2d at 877-78.
For purposes of this memorandum opinion, the Court assumes arguendo that King can show the first and second elements of a prima facie retaliation claim. King engaged in activity protected by Title VII when he complained about race discrimination and racial harassment in his letter to dated February 15, 2000, which was presented to Siskin on February 16, 2000; and when King filed an administrative charge with EEOC and THRC against Siskin on or about March 9, 2000. Siskin knew about both of these events of Title VII protected activity. Although Randstad was ultimately informed by King in March 2000 about the grievance letter he had written to Siskin dated February 15, 2000, it is not clear whether Randstad ever had notice or knowledge that King also filed the administrative charge against Siskin with EEOC and THRC.
In analyzing the retaliation claims, the Court focuses its attention on two main questions: whether King can make out the third and fourth elements of his prima facie case, and whether Siskin had legitimate, non-retaliatory reasons for the adverse employment actions it took against King.
1. Randstad
King's retaliation claim against Randstad fails because he cannot prove the third and fourth elements of his prima facie case. There is no proof that Randstad ever took an adverse employment action against King. Randstad never terminated, demoted, transferred, refused to hire, or otherwise took any material employment action adverse to King. Rather, Randstad offered several times to help King find other temporary jobs with different employers, both before and after King was discharged by Siskin.
There is no proof of a causal connection between Randstad's conduct and any adverse employment actions taken against King by Siskin. When Siskin (Stinnett) decided in December 1999 not to hire King in a regular job at the Steel Store, Randstad did not participate or play an active role is this decision. Stinnett was Siskin's employee. Randstad exercised no authority or control over Stinnett.
Furthermore, Siskin's decision prior to February 16, 2000, to deny King's application for the regular job in the Steel Store cannot possibly constitute retaliation because it occurred before King ever engaged in any activity protected under Title VII. The first time King ever complained to Siskin management about Title VII violations was on February 16, 2000, which was after Stinnett already made the decision to hire Folds for the regular job in the Steel Store instead of hiring King.
When Siskin decided in November 2000 to deny King's application for the regular job in the Plant and to terminate King's temporary employment in the Steel Store after he failed the drug screen, there is no proof that Randstad participated or played an active role in Siskin's decision. Randstad was not informed by Siskin that King was being terminated until after it had already been done. In sum, there is no proof of a causal connection between Randstad's conduct and the adverse employment actions taken by Siskin against King.
King speculates that after his termination by Siskin in November 2000, Randstad "blackballed" him by giving prospective employers negative comments or reports about King thereby making it difficult for him to obtain other jobs. King contends that such "blackballing" by Randstad constitutes retaliation in violation of Title VII. However, King does not offer any probative evidence to support his conclusory allegation that Randstad has been "blackballing" him. There are no genuine issues of material fact in dispute and Randstad is entitled as a matter of law to have King's Title VII retaliation claim dismissed on summary judgment.
2. Siskin
King contends that Siskin took adverse employment actions against him in four instances: (1) Siskin denied King's application for the open regular job in the Steel Store in December 1999; (2) Siskin denied King's application for the open regular job in the Plant in November 2000; (3) Siskin terminated King's temporary employment in the Steel Store on November 20, 2000, after King failed the drug screens; and (4) after King was terminated, Siskin "blackballed" King by making negative comments about him to other prospective employers.
In addition, King contends he was also subjected to retaliation in the form of severe or pervasive harassment at Siskin in four instances: (1) the "noose incident" when a rope shaped like a hangman's noose was placed in his work locker by Siskin co-workers; (2) supervisor Nash checked several times to see if King was using the seat belt while operating the forklift; (3) Siskin conspired with Randstad and attempted to induce or trick King into resigning from his temporary job in Siskin's Steel Store to accept a different temporary job at Komatsu knowing that Komatsu would soon be implementing layoffs of its temporary workers; and (4) Siskin subjected King to a series of random drug screens and employment re-testing (measuring test) in November 2000 without any valid reason.
The retaliation claim against Siskin will be dismissed because King cannot meet his burden of proving a prima facie case. There is no causal connection between King's Title VII protected activity and any adverse employment action taken against him by Siskin. Furthermore, Siskin had legitimate, non-retaliatory reasons for the adverse employment actions it took against King. King cannot meet his burden of showing that Siskin's proffered reasons are false and a pretext for retaliation. Based on the proof in the record, an objective, rational jury could not find that Siskin retaliated against King in violation of Title VII, 42 U.S.C. § 2000e-3(a).
With regard to the first adverse employment action, the decision by Siskin in December 1999 not to hire King for the open regular job in the Steel Store cannot be the result of any retaliation prohibited by Title VII. There is no proof showing a causal connection between this particular adverse employment action and retaliation against King by Siskin for engaging in Title VII protected activity. King did not engage in any protected Title VII activity until mid-February and March 2000, which was after this decision had already been made by Siskin. The proof shows that Siskin's manager in the Steel Store, Stinnett, decided to hire Folds instead of King for the regular job in the Steel Store in December 1999. Prior to Stinnett's decision not to hire King for the regular job in the Steel Store, there is no proof that King ever engaged in any Title VII protected activity which could have caused Siskin to retaliate against him. The first time King engaged in any Title VII protected activity was February 16, 2000, when King delivered his grievance letter to Siskin complaining about Stinnett's race discrimination and harassment. King did not present the grievance letter to Siskin management until after Stinnett had already made the decision to hire Folds and not to hire King for the regular job in the Steel Store. Walborn, 150 F.3d at 589 (Adverse employment action that precedes employee engaging in protected activity cannot be basis for retaliation claim).
Moreover, King was unqualified for the regular job in the Steel Store because he failed the measurement test on December 20, 1999. Even if we assume arguendo that King can make out a prima facie claim of retaliation (which he cannot), this claim must be denied because Siskin had a legitimate, non-retaliatory reason for deciding not to hire King for the regular job in the Steel Store in December 1999 based on King failing the written measuring test.
With regard to the second adverse employment action, namely Siskin's decision not to hire King for the open regular job in the Plant in November 2000, King cannot make out the fourth element of his prima facie claim. There is no causal connection between Siskin's decision and King engaging in Title VII protected activity. The proof shows that Siskin did everything it reasonably could to encourage King to apply and become qualified for the regular job in the Plant in November 2000, including Siskin (Williams) helping King to clear the hurdle of his failing the written measurement test. Siskin offered the regular job in the Plant to King contingent upon his successfully passing a drug screen required of all prospective regular employees. The only reason that Siskin ultimately decided not to hire King for the regular job in the Plant was that he failed the drug screen. This does not constitute retaliation under Title VII. Siskin had a legitimate, non-retaliatory reason for deciding not to hire King for the regular job in the Plant. King has no proof showing that Siskin's proffered reason (King's failed drug screen) is false and a pretext for retaliation.
With regard to the third adverse employment action, namely Siskin's termination of King's temporary employment in the Steel Store in November 2000, King cannot make out the fourth element of his prima facie claim. There is no causal connection between Siskin's decision and King engaging in Title VII protected activity. The reason Siskin decided to terminate King was that he failed the drug screen by testing positive for marijuana. There was no retaliation under Title VII. Moreover, Siskin had a legitimate, non-retaliatory reason for terminating King's temporary employment due to the failed drug screen. King has no probative evidence showing that Siskin's proffered reason is false and a pretext for retaliation.
King alleges that after his termination by Siskin in November 2000, Siskin "blackballed" him by giving prospective employers negative comments or reports about King thereby making it difficult for him to obtain other jobs. However, King does not offer any probative evidence to support his conclusory allegation. The claim that Siskin has been "blackballing" King is nothing more than conjecture and speculation.
There is no proof that Siskin ever subjected King to retaliation in the form of severe or pervasive harassment in the workplace. As explained supra, the "noose incident" could not have been retaliation because it occurred prior to February 16, 2000, when King initially engaged in Title VII protected activity. Siskin did not know about the "noose incident" until the instant lawsuit was filed in federal district court. King never bothered to inform or notify Siskin about the "noose incident" while he was employed at Siskin. Furthermore, the persons responsible for placing the noose in King's work locker were co-workers and not Siskin managers/supervisors. There is no proof that Siskin management knew about, allowed, encouraged, participated in, condoned, or ratified the "noose incident." Consequently, King cannot make out a viable retaliation claim against Siskin based on the "noose incident."
King also fails to make out a prima facie retaliation claim based on supervisor Nash's conduct in monitoring King's operation of the forklift. King cannot prove the third and fourth elements of his prima facie case. Nash checked several times to see if King was using the seat belt while operating the forklift as required by OSHA safety regulations. Nash's innocuous conduct clearly does not rise to the level of severe or pervasive retaliatory harassment. See Akers, 338 F.3d at 498-99. There is no causal connection between Nash's conduct and King's Title VII protected activity. The undisputed proof shows that Nash did not know that King had engaged in Title VII protected activity and Nash had no intent to retaliate against King.
There is no probative evidence that Siskin conspired with Randstad for the purpose of inducing or tricking King into resigning from his temporary job in Siskin's Steel Store and to accept a temporary job at Komatsu knowing that Komatsu would soon be implementing a layoff of its temporary workers. King has no proof that such a conspiracy ever existed. King's allegation is nothing more than conjecture and speculation which is insufficient to withstand a summary judgment motion.
Finally, there is no merit to King's contention that Siskin subjected him to harassment in the form of a series of random drug screens and employment re-testing (measuring test) in November 2000 without a valid reason. The Court finds this retaliation claim is completely unfounded. King cannot prove the third and fourth elements of his prima facie case. The proof shows that Siskin did not subject King to unfair, unreasonable random testing. Siskin's conduct did not amount to severe or pervasive harassment of King. King cannot show a causal connection between his Title VII protected activity and Siskin requiring King to be tested.
The only reason why Siskin had King retake the measuring test and take the drug screens in November 2000 was because King had applied for the regular job in the Plant. Siskin had a legitimate, non-retaliatory reason for its conduct. Siskin followed and complied with its standard procedures for determining whether King was eligible and qualified to be hired as a regular employee in the Plant. All persons who apply for regular jobs with Siskin in the Plant are required to pass the measurement test and a drug screen. Siskin provided King with the same equal treatment as any other job applicant. It was King who set in motion the procedures leading to the measurement test and drug screens when he applied for the regular job in the Plant.
In short, Siskin did not subject King to the measurement test and drug screens in November 2000 for the purpose of harassing and retaliating against him for engaging in Title VII protected activity. On the contrary, Siskin had King take the measuring test and the drug screens as part of its standard procedures to enable King become a regular employee. Siskin was trying to help King achieve his goal of becoming a regular Siskin employee, not retaliate against him. It is not Siskin's fault that King failed the drug screen. It is frivolous for King to now claim that Siskin is liable under Title VII for retaliation based on the standard testing process that King initiated by applying for the regular job in the Plant.
There are no genuine issues of material fact in dispute and Siskin is entitled to have King's retaliation claim dismissed on summary judgment.
V. Conclusion
Accordingly, the motions by defendants Siskin and Randstad for summary judgment [Court File Nos. 27, 33] will be GRANTED pursuant to FED. R. CIV. P. 56. The plaintiffs complaint and all claims brought against the defendants will be DISMISSED WITH PREJUDICE. A separate judgment will be entered.