Hashemian v. Louisville Regional Airport Authority et al
Filing
105
MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 4/26/2013; re 78 MOTION to Strike filed by Farhad Hashemian, 70 MOTION for Summary Judgment filed by Louisville Regional Airport Authority, Janet Barrow, Karen Scott, Steve Petty, Michael Burris, C. T. Miller ; an appropriate order shall issuecc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
Case No. 3:09-CV-951-R
FARHAD HASHEMIAN
PLAINTIFF
v.
LOUISVILLE REGIONAL AIRPORT
AUTHORITY, et al.
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the Court on a Motion for Summary Judgment by Defendants
(DN 70). Plaintiff has filed his response (DN 75), to which Defendants have replied (DN 86).
Also before the Court is Plaintiff’s Motion to Strike portions of Defendants’ Motion for
Summary Judgment (DN 78) and Plaintiff’s Motion to Strike Defendants’ Reply (DN 87), to
which Defendants have responded. (DN 85 & 88, respectively.) This matter is now ripe for
adjudication. For the reasons that follow, Defendants’ Motion for Summary Judgment is
GRANTED and Plaintiff’s motions to strike are DENIED.
BACKGROUND
This case arises from the employment and subsequent termination of Plaintiff, Farhad
Hashemian, by Louisville Regional Airport Authority (ALRAA@). Plaintiff, an Iranian, was
employed at LRAA for 23 years as an Environmental Manager. Plaintiff’s primary responsibility
as Environmental Manager was to oversee the environmental abatement and demolition of the
houses acquired by LRAA as part of its noise-relocation program. Plaintiff’s direct supervisor
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was Defendant Karen Scott, who was hired as Deputy Executive Director of Engineering and
Planning in October 2004.
In August 2007, Plaintiff filed a written grievance about comments Scott made during a
staff meeting regarding Plaintiff’s possible favoritism toward a contractor who was bidding on a
LRAA project. Plaintiff complained that Scott made these remarks because Plaintiff shared
Iranian national origin with the contractor, although there was no mention of race or ethnicity
during the meeting. Following a mediation between involved parties, Scott was counseled on
using different methods when questioning an employee’s professional or personal ethics, and
Plaintiff was required to undergo conflict resolution counseling (at LRAA’s expense) because of
his inappropriate reaction to the events.
In the fall of 2007, Plaintiff was one of seven candidates to interview for the vacant
Director of Engineering position. A four-person panel that included Defendant Steve Petty, then
Director of Public Safety, conducted the initial interviews and ranked the candidates using a
standard evaluation form. The top two candidates were selected for final interviews with Scott.
Plaintiff, who was ranked third after the initial interviews, did not proceed in the interview
process. Scott ultimately selected the second-ranked Dwight Clayton, of American national
origin, for the position.
Throughout 2008, Scott and Plaintiff continued to experience conflict. During this time
period, the two met with Director of Human Resources, Defendant Janet Barrow, and Plaintiff
was informed that the way he discussed matters with Scott could be perceived as argumentative.
On December 23, 2008, Plaintiff received a written warning for his disruption of a noise project
pre-bid conference and subsequent insubordinate behavior in Scott’s office earlier that month.
Plaintiff insisted he had not been insubordinate, and that same day, Plaintiff filed a Charge of
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Discrimination with the EEOC for ongoing national origin discrimination by Defendants.
Plaintiff alleges retaliation against him intensified after he filed his first EEOC charge and
continued until he was terminated.
Plaintiff’s conflicts with Scott continued through 2009. During this time period, Plaintiff
registered nine complaints and/or grievances against Defendants Scott, Barrow, Executive
Director C.T. “Skip” Miller, and Deputy Executive Director of Finance & Administration,
Michael Burris, who was Barrow’s immediate supervisor. Plaintiff often sent lengthy
memoranda accompanying his complaints, but was not satisfied with LRAA’s response. On June
24, 2009, LRAA eliminated five inspectors in the Engineering Department due to budgetary
constraints and lack of work. Two of these inspectors reported directly to Plaintiff. Following the
layoffs, Scott and Burris met with the remaining Engineering Department managers and
informed them that they would be required to assume additional duties due to the workforce
reduction.
In July, Scott sent Plaintiff an email inquiring about a matter that she had requested
Plaintiff take care of and indicated that she would “address [Plaintiff’s] performance on this
matter accordingly.” In response, on July 6, 2009, Plaintiff sent an eight-page memorandum to
Scott, Miller, and Burris listing twenty “factual events” that he believed demonstrated Scott’s
various failings as Deputy Executive Director. Following this memorandum, Miller asked Burris
to place Plaintiff on paid leave to allow for a “cooling off period.” On July 22, 2009, Scott and
Miller conducted a reinstatement meeting in which Plaintiff received an annual evaluation. The
evaluation reflected deficiencies in several areas, and Plaintiff was placed on a performance
improvement plan. Also on July 22, 2009, Plaintiff filed a second Charge of Discrimination with
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the EEOC. Following LRAA’s receipt of his second discrimination charge, Plaintiff called into
work sick, and then took Family and Medical Leave Act (AFMLA@) leave on August 3, 2009.
Plaintiff was on leave until October 15, 2009, for his medical condition of coronary artery
disease with angioplasty and stenting placement. While Plaintiff was on leave, all incoming
phone calls were forwarded to Scott’s telephone so that business-related calls were answered,
and his access to LRAA’s computer network remained intact. However, Plaintiff failed to reset
his password upon its 30-day expiration, and the system automatically locked him out of the
network. Also while he was on FMLA leave, on September 9, 2009, Plaintiff received a Right to
Sue letter from the EEOC.
Upon his return to work on October 15, 2009, Plaintiff provided a note from his
physician, Dr. Ishkanian, who released Plaintiff to return to work stating, “Mr. Hashemian
should avoid any outside activity and unnecessary stress since he still suffers from angina
pectoris.” Prior to his arrival at work he was seen by Occupational Physicians Services (“OPS”).
OPS conducted a thorough review of Plaintiff’s medical history, conducted a physical
examination, reviewed Plaintiff’s job description, and determined Plaintiff could return to work
with the restrictions set forth in Dr. Ishkanian’s return to work note.
Upon arrival at work, Plaintiff met with Scott in regard to his work restrictions. On the
same day, Miller and Burris requested further clarification of Plaintiff’s restrictions from Dr.
Ishkanian and OPS. Plaintiff worked a complete day on October 15, 2009, but was informed he
could not work again until he produced clarification of his work restrictions. On October 16,
2009, Barrow sent a letter to OPS requesting clarification of Plaintiff’s restrictions. A second
return to work note from Dr. Ishkanian was provided to OPS on October 20, 2009. Dr. Ishkanian
explained:
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My patient Mr. Farhad Hashemian still suffers from partially blocked arteries.
Exposure to cold weather will worsen his condition. He should refrain from
outdoor related activities at all times. Mr. Hashemian’s job description does not
make any direct reference to outdoor work or related assignments, therefore he
can perform his duties with the exception of the restriction mentioned above.
Unnecessary stress is also not good for his condition. This being any type of stress
outside the routine and expected work. Imposing unreasonable deadlines can
create unnecessary stress to any worker.
OPS noted on October 23, 2009, that the time limit of the restrictions had been clarified and the
restrictions were permanent.
Plaintiff worked at LRAA from October 22, 2009, until November 4, 2009. During this
time LRAA took no further action regarding Plaintiff’s work restrictions. On November 3, 2009,
Miller, Scott, and Barrow met to discuss Plaintiff’s restrictions. They determined that, with
Louisville experiencing temperatures below forty degrees for approximately five months out of
the year, LRAA could not accommodate Plaintiff’s restrictions without causing undue hardship
on other individuals in the Engineering Department and economic hardship on LRAA. Because
there were no open positions for which Plaintiff was qualified, the decision was made to
terminate him. That same day, per standard procedure for involuntary terminations, Barrow
requested that Petty dispatch a Public Safety Officer to the Administration Building the next day
for Plaintiff’s termination.
On the morning of November 4, 2009, Dwight Clayton observed Plaintiff arrive at work
carrying two large, heavy duffel bags that he believed resembled gun cases. Clayton later
observed Plaintiff sitting along the wall for a monthly staff meeting, which he found unusual
because Plaintiff usually sat in the middle of the room. Clayton informed Petty that Plaintiff was
acting abnormally. Thereafter, shortly after 8:00 a.m., Petty ordered a canine sweep of the
Engineering Department and the parking lot as a precautionary measure. The sweep lasted
between fifteen and twenty minutes and was conducted while employees attended the monthly
staff meeting. Plaintiff was unaware of the canine sweep until months later, when informed by an
acquaintance who had heard that Plaintiff’s “bags and office” were searched while he was being
terminated.
Later that day, at approximately 11:30 a.m., Scott led Plaintiff to a conference room
where he was terminated in the presence of Barrow and Scott. Plaintiff was given a letter of
termination which stated in part, “[Plaintiff’s] permanent work restrictions prevent [Plaintiff]
from fulfilling a significant amount of the essential duties and responsibilities needed in the
position of Environmental Manger.” Plaintiff alleges that neither the letter, nor Barrow or Scott,
provided examples of how Plaintiff’s permanent work restrictions prevented him from fulfilling
a significant amount of his essential duties and responsibilities.
After his termination, upon return to his office, Plaintiff was instructed to pack up and
leave within ten minutes and anything of his left behind would be shipped to him. Plaintiff
alleges Scott and Barrow “offered no expression of empathy, humanity or any concern for
[Plaintiff].” Plaintiff alleges his termination was very different from the termination of other
employees who were terminated at the end of the day and allowed sufficient time to collect their
belongings. Plaintiff further alleges he was not offered severance or extended medical insurance.
Plaintiff filed the instant action on December 10, 2009, against LRAA. Plaintiff also
named C.T. Miller, Executive Director; Michael Burris, Deputy Executive Director Finance and
Administration; Janet Barrow, Director of Human Resources; and Karen Scott, Deputy
Executive Director of Engineering and Planning, each in their individual and representative
capacities. Plaintiff amended his complaint on March 25, 2010 and added Steve Petty, Director
of Public Safety, as a defendant both in his individual and representative capacity. On July 28,
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2010, the Court dismissed a portion of Plaintiff’s claims, but eleven remain outstanding at this
stage of the litigation. Defendants now move for summary judgment on Plaintiff’s remaining
eleven claims.
STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position; the plaintiff must present evidence on which the
trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment: “[t]he mere existence of a colorable factual dispute will not defeat a
properly supported motion for summary judgment. A genuine dispute between the parties on an
issue of material fact must exist to render summary judgment inappropriate.” Monette v. Elec.
Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
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DISCUSSION
I.
Plaintiff’s Motions to Strike
Rule 12(f) allows a court to “strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). A court may strike portions
of the pleading acting on its own initiative or “on a motion made by a party . . . before
responding to the pleading.” Id. Motions to strike under Rule 12(f) are addressed within the
sound discretion of the Court, although they are generally disfavored. Ameriwood Indus. Intern.
Corp. v. Arthur Andersen & Co., 961 F. Supp. 1078, 1083 (W.D. Mich. 1997) (citing Fed. Sav.
& Loan Ins. Corp. v. Burdette, 696 F. Supp. 1183, 1186 (E.D. Tenn. 1988); FDIC v. Butcher,
660 F. Supp. 1274, 1277 (E.D. Tenn. 1987); FDIC v. Berry, 659 F. Supp. 1475, 1479 (E.D.
Tenn. 1987)). Striking a pleading is a drastic remedy to be resorted to only when required for the
purposes of justice. Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th
Cir. 1953). A motion to strike should be granted only where there is a clear showing that the
challenged defense has no bearing on the subject matter and that permitting the matter to stand
would prejudice the party. Ameriwood at 1083.
Plaintiff has filed two motions to strike. Plaintiff’s first motion requests that the Court strike
“Defendants’ contradictory statements regarding the warrantless search conducted on November
4, 2009” and Defendants’ argument in their memorandum in support of summary judgment that
Plaintiff’s failure to promote claim was untimely filed. (See DN 78.) First, Defendants’
statements regarding the November 4, 2009, search are not contradictory and should not be
struck. Second, because the Court will decide the issues before it on the merits of Plaintiff’s
claims rather than the statute of limitations issue raised by Defendants, the Court will deny
Plaintiff’s motion. Plaintiff’s second motion requests that the Court strike Defendants’ argument
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that Plaintiff failed to exhaust his administrative remedies and requests the opportunity to file a
surreply based on Defendants’ “introduction of a new defense.” (See DN 87.) Again, because the
Court will decide the issues based on the merits of Plaintiff’s claim rather than a failure to
exhaust theory, Plaintiff’s second motion to strike and request for a surreply is also denied.
II.
Defendants’ Motion for Summary Judgment
In his response, Plaintiff has agreed to voluntarily dismiss four of his remaining claims.
There being no opposition from Plaintiff, the Court grants Defendants’ motion for summary
judgment on Plaintiffs’ claims for outrage (Counts III and XII), invasion of privacy by false light
(Count XIII), and defamation (Count XIV). The remainder of the Court’s opinion will address
Plaintiff’s remaining seven claims: national origin discrimination under Title VII against LRAA
for both pre-termination conduct (Count I) and Plaintiff’s termination (Count VII), retaliation
under Title VII against LRAA for both pre-termination conduct (Count II) and Plaintiff’s
termination (Count VIII), retaliation under the FMLA against LRAA for Plaintiff’s termination,
unreasonable search in violation of the Fourth Amendment against LRAA and the individual
defendants in both their official and individual capacities (Count X), and, finally, invasion of
privacy by unreasonable intrusion upon seclusion against the individual defendants in their
individual capacities (Count XI).
A. Plaintiff’s Title VII Discrimination Claims in Counts I and VII
Title VII makes it unlawful for an employer “to . . . discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual”s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Plaintiff can establish a Title VII discrimination claim by
producing either direct or circumstantial evidence of discrimination. DiCarlo v. Potter, 358 F.3d
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408, 414 (6th Cir. 2004) (quoting Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir.
1997)). As the Sixth Circuit has explained, “direct evidence is that evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (quoting Jacklyn
v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). In other
words, “direct evidence of discrimination does not require a factfinder to draw any inferences in
order to conclude that the challenged employment action was motivated at least in part by
prejudice against members of the protected group.” Id. at 866 (quoting Nguyen v. City of
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (noting that “a facially discriminatory employment
policy or a corporate decision maker's express statement of a desire to remove employees in the
protected group is direct evidence of discriminatory intent”)). “[T]he evidence must establish not
only that the plaintiff’s employer was predisposed to discriminate on the basis of [national
origin], but also that the employer acted on that predisposition.” DiCarlo, 358 F.3d at 415
(alterations in original) (quoting Hein v. All America Plywood Co., 232 F.3d 482, 488 (6th Cir.
2000)).
In his response, Plaintiff lists several “examples of LRAA’s predisposition and actions of
discrimination” (Pl.’s Resp., 8, DN 75); thus, it appears that he contends that the record contains
direct evidence of discrimination. However, many of the eleven examples Plaintiff cites appear
to have no bearing on the allegations at bar: namely, that Defendants discriminated against
Plaintiff based on his national origin. For example, Plaintiff mentions a number of other lawsuits
brought against LRAA by former employees that do not involve allegations of national origin
discrimination, or in some cases, discrimination in any form. Plaintiff also cites as direct
evidence of national origin discrimination: (1) Defendants’ failure to discipline Steve Tucker, an
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American-born, white male, for his “continuous use of profanities” and “Abusive Behavior”
toward his supervisor, in “stark contrast” with Defendants’ discipline of Plaintiff; (2) Defendant
Scott’s refusal to extend a project’s bid date for Iranian-American general contractor, Karim
Momeni, “a measure that Defendant Scott has generously done for a white-male contractor in
the past”; (3) Defendant Scott’s inference that Momeni was Plaintiff’s “friend” after Plaintiff
relayed Momeni’s verbal extension request, where she had not made similar inferences when he
relayed the verbal requests of white, American-born contractors; and (4) Defendant Scott’s
extension of “favors” to “American-born, white-male owned” contractors, such as restarting the
bidding process or approving invoices containing what Plaintiff considers double charges to
LRAA. Contrary to Plaintiff’s position, none of these instances compel the conclusion that
LRAA discriminated against Plaintiff based on his national origin. Each requires the Court to
draw a number of inferences before drawing the conclusion that LRAA’s actions toward Plaintiff
were performed with a discriminatory intent. Some require the Court to infer that Defendants’
actions in other contexts—such as Scott’s favoritism toward certain contractors over others is (1)
discriminatory and (2) such discrimination toward outside parties supports the conclusion that
Defendants’ treatment of Plaintiff is similarly discriminatory. The need to draw such inferences
“prevents these remarks from constituting direct evidence of discrimination.” Johnson, 319 F.3d
at 865.
Plaintiff’s claims rely, then, on circumstantial evidence of discrimination. “In the absence of
direct evidence of discrimination, Title VII claims are subject to the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973), as subsequently modified in Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).” Risch v. Royal Oak Police Dep’t, 581 F.3d
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383, 390 (6th Cir. 2009). Under McDonnell, after the plaintiff has established a prima facie case
of discrimination, the burden then shifts to the employer “to articulate some legitimate,
nondiscriminatory reason” for the adverse employment action. 411 U.S. at 802. If the employer
articulates such a reason, the burden shifts back to the plaintiff to show that the stated reason is
in fact pretext for unlawful discrimination. Id. at 804. The burden of persuasion remains with the
plaintiff at all times. Risch, 581 F.3d at 391 (citing Burdine, 450 U.S. at 253).
In order to set forth a prima facie case of discrimination, “the plaintiff must show (1) that he
is a member of a protected group, (2) that he was subject to an adverse employment decision, (3)
that he was qualified for the position, and (4) that he was replaced by a person outside of the
protected class [or] that similarly situated non-protected employees were treated more
favorably.” Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995); see also
McDonnell, 411 U.S. at 802. The Court will apply these standards to Counts I and VII.
Count I
Defendants move for summary judgment on Plaintiffs’ Title VII national origin
discrimination for certain pre-termination acts. Specifically, Plaintiff contends that the
Defendants discriminated against him based on his national origin when they failed to promote
him to the Director of Engineering position, hiring instead Dwight Clayton, whose national
origin is American. Defendants first contend that Plaintiff’s failure to promote claim is barred by
Title VII’s statute of limitations. To recover under Title VII, a plaintiff must first timely file a
charge with the EEOC. Vaughn v. Louisville Water Co., 302 Fed. App’x 337, 343 (6th Cir. 2008)
(quoting Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001)). Here, Plaintiff had 300 days
to file his EEOC charge. See 42 U.S.C. § 2000e-5(e)(1); Vaughn, 302 Fed. App’x at 343.
Plaintiff admits that his failure to promote claim was not filed within 300 days, but argues that
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Defendants’ conduct constitutes a continuing violation and, thus, is not barred by the statute of
limitations.
The Court declines to address the statute of limitations issue, as Plaintiff’s discrimination
claims in Count I fail on their merits. First, Plaintiff’s discrimination claim for a failure to
promote fails because, although he can meet his burden in establishing a prima facie case, LRAA
has articulated a legitimate, non-discriminatory reason for the failure to promote and Plaintiff has
not shown pretext. Defendants contend that they hired Dwight Clayton over Plaintiff because
Clayton was more qualified for the Director of Engineering position than Plaintiff. Defendant
Scott selected five external candidates and two internal candidates, including Plaintiff, for initial
interviews. (Karen Scott Aff. ¶¶ 16-17.) A panel of four, including then Director of Public
Safety, Defendant Petty, conducted these initial interviews and ranked each applicant based on a
standard evaluation form. (Id. ¶¶ 13-14, 17.) Following the interviews, Defendant Scott then
selected the two top-ranked candidates, John Cosper and Clayton, for second interviews.
Because he was ranked third, Plaintiff was not selected for a second interview.
Because LRAA has presented a legitimate, non-discriminatory reason for its failure to
select Plaintiff as the Director of Engineering, the burden shifts back to Plaintiff to show that
reason is pretext. Plaintiff may do so by showing that LRAA’s stated reasons (1) have no basis in
fact, (2) are not the actual reasons, or (3) are insufficient to explain Defendants’ actions. Felder
v. Nortel Networks Corp., 187 Fed. App’x 586, 594 (6th Cir. 2006). Plaintiff first challenges
Petty’s appointment to the interview panel. Plaintiff asserts that Petty, “who is not an engineer,
lacking education and/or experiential qualifications to rank an engineering candidate,” padded
the rankings in favor of Clayton. (See Pl.’s Am. Compl. ¶ 63, DN 16.) However, Plaintiff
presents no evidence that national origin animus motivated either Scott’s decision to place Petty
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on the interview panel or Petty’s less favorable scores.1 “The Supreme Court has held that a
plaintiff needs to do more than merely cast doubt on the employer’s rationale; a plaintiff must
create a permissible inference that [national origin] was the actual motivation for the employer’s
decisions.” Felder, 187 Fed. App’x at 594 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 515 (1993) (“[A] reason cannot be proved to be a pretext for discrimination unless it is
shown both that the reason was false, and that discrimination was the real reason”)). Rather,
Plaintiff points out that “the Two (2) outside panelists, both highly experienced Chief Engineers
for Cincinnati & Lexington Airports and both with substantial aviation engineering experience”
ranked Plaintiff more highly than Clayton. (Pl.’s Resp., 23, DN 75.) Plaintiff also includes a
chart he created comparing his qualifications to those of Clayton. However, Plaintiff’s own
beliefs about his qualifications are insufficient to call into question LRAA’s business judgment
about Plaintiff’s relative abilities and experience. Felder, 187 Fed. App’x at 594-95 (citing
Williams v. Columbus Metro. Hous. Auth., 90 Fed. App’x 870, 873-74 (6th Cir. 2004)). Further,
“[t]he law does not require employers to make perfect decisions, nor forbid them from making
decisions that others may disagree with.” Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996).
Thus, although Plaintiff might disagree with LRAA’s placement of Petty on the interview panel
or its decision to give equal weight to opinions of interviewers with varying degrees of aviation
engineering experience, such does not provide any factual support for his discrimination claim.
Furthermore, none of the other pre-termination incidents that Plaintiff has described
constitutes adverse employment actions. An “adverse employment action” is one that “affect[s]
employment or alter[s] the conditions of the workplace.” Burlington Northern and Santa Fe Ry.
1
Defendants point out that even if Petty’s rankings were excluded in computing the candidates’
average scores, Clayton would still have outranked Plaintiff as the second highest ranked
candidate, albeit by a smaller gap. (See Defs.’ Mot. for Summ. J., Ex. 7, DN 70-17 & Pl’s. Ex. 8,
DN 82-3.)
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Co. v. White, 548 U.S. 53, 61 (2006). Generally, it involves changes in the terms of employment,
such as “hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits,” and usually Ainflicts direct
economic harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761; 762 (1998); White v.
Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008). Examples of Defendants’ allegedly
discriminatory actions include (1) Scott’s comments regarding Plaintiff’s possible favoritism
toward the Iranian-American general contractor Karim Momeni, with whom Plaintiff is
acquainted; (2) Plaintiff being forced to undergo conflict resolution counseling (paid for by the
LRAA) following his reaction to Scott’s comments; and (3) Plaintiff receiving a written warning
from Scott on December 23, 2008 for interrupting a noise project pre-bid conference twenty days
earlier. None of these constitutes an adverse employment action under the above standard.
Therefore, Defendants are entitled to summary judgment on Count I of Plaintiff’s Complaint.
Count VII
Defendants also move for summary judgment on Plaintiffs’ claim against LRAA that he
was terminated because of his national origin in violation of Title VII. Plaintiff contends that
both LRAA’s decision to terminate Plaintiff and the manner in which LRAA terminated Plaintiff
were based upon his national origin. Defendant argues that Plaintiff has failed to establish the
fourth element of his prima facie case, i.e., that he was replaced by a person outside of the
protected class or that similarly situated non-protected employees were treated more favorably.
See Talley, 61 F.3d at 1246. In his response, Plaintiff notes that LRAA “has not directly filled
Plaintiff’s position[, but] they have piecemealed work to American born-employees.” (Pl.’s
Resp., 30, DN 75.) Since Plaintiff’s termination, Steve Tucker assists in putting together bids for
projects and Defendant Scott has handled a number of other duties that would have been
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performed by an Environmental Manager, including responding to fuel spills, asbestos removal,
and coordinating access for storm water sampling. (Scott Aff. ¶¶ 102-103.) A person is not
replaced if his duties are absorbed by other existing employees. See Geiger v. Tower Auto., 579
F.3d 614, 623 (6th Cir. 2009); Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 785-86
(6th Cir. 2007) (“A person is replaced only when another employee is hired or reassigned to
perform the plaintiff’s duties.”) (internal quotation marks omitted).
Plaintiff argues that the inspectors who were laid off in June 2009 were treated better
when they were terminated and, therefore, a material issue of fact exists as to whether Plaintiff
was treated less favorably than similarly situated individuals outside his protected class. First, to
be similarly-situated, a person “must have dealt with the same supervisor, have been subject to
the same standards and have engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer’s treatment of
them for it.” Jordan v. Kohl’s Dep’t Stores, Inc., 490 F. App’x 738, 744 (6th Cir. 2012). Here,
Plaintiff has not demonstrated he is similarly situated to his alleged comparators, who did not
share Plaintiff’s supervisor (two reported to Plaintiff himself), were terminated for budgetary
cuts rather than medical restrictions, and whose terminations did not take place during a time of
escalating tensions like Plaintiff’s. Second, although he points to these differences in the manner
in which he was terminated, Plaintiff has not shown the Defendants treated him differently in
their decision to terminate him. Therefore, Plaintiff has not satisfied his burden of proving a
prima facie case of discrimination.
Further, even if the Court were to assume Plaintiff had proven his prima facie case,
Defendant has offered a nondiscriminatory reason for his termination and Plaintiff has failed to
demonstrate the proffered reason was pretext. Again, Plaintiff can demonstrate pretext by
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showing that LRAA’s stated reasons (1) have no basis in fact, (2) are not the actual reasons for
his termination, or (3) are insufficient to explain Defendants’ actions. Felder, 187 Fed. App’x at
594. “Whichever method the plaintiff employs, he always bears the burden of producing
sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and
infer that the defendants intentionally discriminated against him.” Jordan, 490 Fed. App’x at 742
(alteration in original) (quoting Clark v. Walgreen Co., 424 Fed. App’x 467, 474 (6th Cir. 2011))
(internal quotation marks omitted). Furthermore, an employer’s explanation cannot be rejected
“unless there is a sufficient basis in the evidence for doing so.” Id. (emphasis in original)
(quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994),
overruled on other grounds by Geiger, 579 F.3d at 620-21).
Defendants assert that Plaintiff was terminated because his permanent medical restriction
prevented him from working outdoors in temperatures below 40 degrees, leaving him unable to
perform essential functions of his position. Plaintiff argues this justification is merely pretext, as
his written job description did not specifically list outdoor work as part and parcel of his position
as Environmental Manager. However, the record shows that among the five employees laid off in
June 2009 were the final two field inspectors in Plaintiff’s department whose outdoor duties
Plaintiff would be required to assume. The record also shows that Defendants gathered
information from Plaintiff’s physicians and Occupational Physicians Services (“OPS”) about the
extent of his restrictions, gathered information as to how a cold-weather restriction would affect
Plaintiff’s responsibilities as Environmental Manager, and discussed the feasibility of
accommodating the restrictions over a nearly 3-week period before ultimately deciding to
terminate him. From the evidence in the record, the Court cannot conclude a reasonable trier of
fact could conclude Defendants’ proffered reason for Plaintiff’s termination is pretext, especially
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in light of Defendants’ “reasonably informed and considered decision” before terminating
Plaintiff. Jordan, 490 F. App'x at 743 (quoting Michael v. Caterpillar Fin. Servs. Corp., 496
F.3d 584, 598-99 (6th Cir. 2007)); see also Russell v. Univ. of Toledo, 537 F.3d 596, 605 (6th
Cir. 2008) (“[T]he decisional process need not be optimal, only reasonably informed and
considered”).
Plaintiff has not established a prima facie case of national origin discrimination based on
his termination. Further, Plaintiff has failed to show pretext. Therefore, Defendants are entitled
to summary judgment on Count VII of Plaintiff’s Complaint.
B. Plaintiff’s Title VII Retaliation Claims in Counts II and VIII
Title VII forbids an employer from discriminating against any an employee “because he has
opposed any practice made an unlawful employment practice by [Title VII], or because he has
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). Plaintiff has not offered direct evidence of
retaliation; thus, the McDonnell Douglas burden-shifting framework applies. In order to establish
a claim for retaliation under Title VII, Plaintiff must show that (1) he engaged in activity
protected by Title VII; (2) this exercise of protected rights was known to Defendants; (3)
Defendants thereafter took a materially adverse employment action against Plaintiff, or Plaintiff
was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a
causal connection between the protected activity and the adverse employment action or
harassment. Johnson v. University of Cincinnati, 215 F.3d 561, 578 (6th Cir. 2000) (citations
omitted).
18
Count II
In Count II, Plaintiff alleges retaliation in the form of continuing harassment. “[T]he
scope of Title VII’s retaliation provision is broader than that of Title VII’s discrimination
provision.” Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008) (citing
Burlington Northern, 548 U.S. 53). Rather, “the adverse employment action requirement in the
retaliation context is not limited to an employer’s actions that affect the terms, conditions, or
status of employment, or those acts that occur in the workplace[,] . . . [but] instead protects
employees from conduct that would have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. (quoting Burlington Northern, 548 U.S. at 63-68)
(internal quotation marks omitted). Despite this broader standard, Title VII’s anti-retaliation
provision only protects an employee from retaliation that produces an injury or harm. Id.
Plaintiff alleges that the Defendants retaliated against him by: Scott calling him at home
when he was ill; reporting him for insubordination; Scott imposing unreasonable deadlines; Scott
losing her temper; not inviting Plaintiff to a project grand opening; placing him on administrative
leave “for whistle Blowing activities”; giving Plaintiff a negative performance evaluation;
Plaintiff receiving hostile communications from Scott; reducing Plaintiff’s authority and
autonomy by requiring him consult Scott prior to enacting certain decisions; terminating
Plaintiff’s two inspectors, thereby eliminating his work team; and removing Plaintiff’s computer
and phone access while he was on FMLA leave. (Pl.’s Resp., 32-39, DN 75 & 75-1.) In its July
28, 2010, Memorandum Opinion, the Court noted that: “[c]ontext matters. The real social impact
of workplace behavior often depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by a simple recitation of the words
used or the physical acts performed.” Burlington Northern, 548 U.S. at 68. Because discovery
19
had not yet been completed, the Court determined that it was unable to assess the context of the
above acts.
Defendants argue that at this stage of the litigation Plaintiff has failed to establish any
actions on the part of Defendants are materially adverse. In Burlington Northern, the Supreme
Court was careful to distinguish material adversity from “trivial harms.” Id. at 68. After all, Title
VII “does not set forth a general civility code for the American workplace” and, by reporting
discriminatory behavior, an employee is not thereafter immunized “from those petty slights or
minor annoyances that often take place at work and that all employees experience.” Id. In
response, Plaintiff conclusorily responds that “[a]ny other reasonable employee would have
found the challenged action materially adverse” and cites to the portion of Burlington Northern
that stresses the importance of context, but fails to elaborate further. Based on its review of the
record, the Court finds no rational basis to distinguish the facts at bar from those in other cases
holding that a plaintiff has failed to prove materially adverse actions. See James v. Metro. Gov’t
of Nashville, 243 F.3d App’x 74 (6th Cir. 2007) (employer’s denial of a lateral transfer, poor
performance reviews, and imposition of quotas were not materially adverse actions); Bowman v.
Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000) (noting that de minimis employment
actions are not materially adverse); Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999)
(holding that police chief’s suspension with pay was not an adverse employment action),
abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
Further, assuming any one of these acts could rise to the level of a materially adverse
employment decision, Plaintiff has failed to offer any proof such actions were causally connected
to his discrimination complaints. To establish a causal connection, Plaintiff must “proffer
evidence sufficient to raise the inference that [his] protected activity was the likely reason for the
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adverse action.” Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir. 2009) (quoting EEOC
v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (internal quotations omitted).
Plaintiff has not done so here. For example, Plaintiff alleges that Defendants’ June 2009
elimination of five positions, including the remaining two inspectors in Plaintiff’s department,
was in retaliation for Plaintiff’s continued complaints of discrimination. However, the record
shows these positions were eliminated due to budgetary restraints and lack of work. Plaintiff
attempts to establish a causal connection by pointing out a number of other cuts LRAA could
have made in lieu of cutting the five positions.2 However, in a Title VII claim, the role of the
Court is not to evaluate the employer’s business judgment, but instead to determine whether the
employer was motivated by retaliation. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Plaintiff has not pointed to any evidence from which a reasonable juror could conclude the
Defendants were so motivated.
Plaintiff’s only support that the remaining acts by Defendants are causally connected to
his discrimination is that “[t]he proximity in time show[s] the causal connection.” (Pl.’s Resp.,
40, DN 75-1.) However, temporal proximity alone is insufficient to establish this element. Sosby
v. Miller Brewing Co., 211 Fed. App’x 382, 387 (6th Cir. 2006); see also McNett v. Hardin
Cmty. Fed. Credit Union, 118 Fed. App’x 960, 965 (6th Cir. 2005) (“While mere temporal
proximity . . . is insufficient to demonstrate causation, the employer’s knowledge of the protected
activity coupled with an adverse action occurring close in time can create an inference of
causation where the particular circumstances strengthen the inference of causation”) (emphasis
2
Plaintiff also attaches an affidavit from former Manager of Human Resources, Lana Reinhart,
in which Reinhart indicates that, following the June 2009 terminations, Defendant Barrow told
her that Defendants Miller and Scott said, “Damn, we did not get the one we wanted” in
reference to Plaintiff. However, this affidavit fails to meet the requirements of Federal Rule of
Procedure 56(c)(4) and the Court therefore disregards it. Fed. R. Civ. P. 56(c)(4) (affidavits must
be made on personal knowledge and set out facts that would be admissible in evidence).
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added). Here, Plaintiff offers no additional evidence that supports a finding of causation.
Therefore, Defendants are entitled to summary judgment on Count II of Plaintiff’s Complaint.
Count VIII
In Count VIII, Plaintiff alleges retaliation in the form of termination. Defendants move
for summary judgment, first arguing that Plaintiff has failed to establish a causal connection
between his termination and his complaint to the EEOC. Plaintiff notes that he was fired “only
two months after he received his right to sue letter” and, thus, a causal connection exists. As
noted above, mere temporal proximity is insufficient to establish proximity. Here, however,
Plaintiff points out an additional circumstance that he contends demonstrates a causal
connection: the manner in which he was dismissed “was incongruent for someone being
terminated for health restrictions.” (Pl.’s Resp., 41, DN 75-1.)
Even assuming that Plaintiff has established his prima face case, Plaintiff has not offered
evidence that Defendants’ proffered reasons for terminating him—his medical restrictions upon
return and LRAA’s inability to accommodate them—were pretext for discrimination. As
previously discussed, Plaintiff bears the burden of producing evidence from which a jury could
reasonably reject the Defendants’ reasons for termination. Jordan, 490 Fed. App’x at 742. Here,
Plaintiff again references that he could perform the tasks specifically listed on his written job
description and argues that the Defendants “kept digging until they found a loophole to get
through—the issue of Plaintiff not working outside below forty degree weather.” (Pl.’s Resp., 41,
DN 75-1.) Thus, Plaintiff again argues that his medical restrictions did not actually motivate his
dismissal. However, as discussed above, Plaintiff has not produced evidence to meet his burden
of showing that “the sheer weight of the circumstantial evidence of [retaliation] makes it ‘more
likely than not’ that the employer’s explanation is a pretext, or coverup.” Singleton v. Select
22
Specialty Hosp.-Lexington, Inc., 391 Fed. App’x 395, 401 (6th Cir. 2010) (alteration in original)
(quoting Manzer, 29 F.3d at 1078). However, as the Court noted in its discussion of Count I,
supra, the record shows that because the employees in Plaintiff’s division were terminated,
Plaintiff was expected to take on the work of those inspectors, which included outdoor duties.
Plaintiff has pointed to no evidence that could reasonably undermine the Defendants’ rationale
for ultimately terminating him and Defendants are therefore entitled to summary judgment on
Count VIII.
C. Plaintiff’s FMLA Retaliation Claim in Count VI
Plaintiff also claims that he was terminated for having taken FMLA leave. In order to
make out a prima facie case of retaliation in violation of the FMLA, Plaintiff must show (1) he
availed himself of a protected right under the FMLA, (2) he suffered an adverse employment
action, and (3) that there was a causal connection between the exercise of his rights under the
FMLA and the adverse employment action. Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th
Cir. 2006). If Plaintiff establishes a prima facie case, the familiar burden-shifting approach
applies. Id.
As discussed extensively in previous sections, Plaintiff has failed to prove Defendants’
proffered reason for his termination was pretext for discrimination. In addition to his arguments
raised in other sections, Plaintiff argues that, when viewing weather data to determine the effect
of Plaintiff’s medical restrictions on the performance of his outdoor duties, Defendants should
have looked at the normal highs rather than the normal lows in determining how often the
temperature would drop below 40. He argues that the average lows often take place late at night
or early morning—hours he would not be expected to work. First, as Defendants point out, one
example of the Environmental Manager’s duties after the June 2009 layoffs is responding to fuel
23
spills and other environmental emergencies at the airport: events that “do not keep regular
business hours.” In any event, this criticism again improperly questions the business judgment of
LRAA and does not support Plaintiff’s contention that Defendants terminated him in retaliation
for his return from FMLA leave. For these reasons and those discussed in previous sections,
Plaintiff has failed to put forth evidence from which a reasonable juror could find that
Defendants’ reason for terminating Plaintiff was “more likely than not” pretext. Thus,
Defendants are entitled to summary judgment on Count VI.
D. Plaintiff’s Fourth Amendment Claim in Count X
Plaintiff alleges an unreasonable search in violation of the Fourth Amendment against all
Defendants. This claim is based on the canine sweep conducted in the Engineering Department
and parking lot without Plaintiff’s knowledge or consent. Defendants argue the search was not
unreasonable since the search was pursuant to an investigation of suspected work-related
employee misconduct.
The Fourth Amendment was established to protect “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV; see also Devenpeck v. Alford, 543 U.S. 146, 152 (2004). In O=Connor v.
Ortega, the Supreme Court held it is not a Fourth Amendment violation when a public employer
conducts a search of an employee’s office “for legitimate work-related, noninvestigatory
intrusions as well as investigations of work-related misconduct.” 480 U.S. 709, 725 (1987). The
Court went on to hold that:
public employer intrusions on the constitutionally protected privacy interests of
government employees for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this reasonableness standard,
both the inception and the scope of the intrusion must be reasonable.
24
Id. at 725-26.
Based on the record before it, the Court determines that the canine sweep was reasonable
at its inception. On the morning of November 4, 2009, Dwight Clayton observed Plaintiff
carrying two large, heavy duffel bags that resembled soft gun cases into his office (Steve Petty
Aff. ¶¶ 14-15; Dwight Clayton Aff. ¶¶ 10-11.) During a regularly scheduled staff meeting,
Clayton thereafter noticed Plaintiff sitting with his back against the wall rather than in the
audience, which Clayton had never observed Plaintiff do before. (Clayton Aff. ¶¶ 13-14.) This
behavior, coupled with what Clayton perceived as high tensions in the Engineering Department,
led him to report the behavior to Defendant Petty. (Id. ¶¶ 14-15; Petty Aff. ¶¶ 14-15.) Based on
the information received from Clayton, his knowledge of Plaintiff’s pending termination, and the
fact that high-level LRAA executives were attending the staff meeting, Defendant Petty ordered
a canine sweep after discussing the matter with his superior, Tim Bradshaw.
Plaintiff first argues Petty’s decision to order a canine sweep was unreasonable because
Plaintiff was slated to be terminated for work restrictions and not employment-related
misconduct. However, the reason for Plaintiff’s termination does not affect the reasonableness of
Petty’s decision to order the sweep in light of the totality of the circumstances: Clayton’s report
of suspicious behavior, escalating tensions between Defendants and Plaintiff, and Plaintiff’s
slated termination later that day. Plaintiff also argues that because the sweep was ordered based
on potentially criminal conduct, the search was not work-related and therefore is unreasonable.
This argument misses the mark: ensuring the safety of employees by investigating reported
suspicious behavior was certainly a valid, work-related reason to order a canine sweep here. The
validity of Defendant Petty’s order is unaffected by the potential criminality of the same
suspicious behavior. The sweep was reasonable at its inception.
25
The scope of the canine sweep was also reasonable. A workplace search is reasonable in
scope “in scope if the measures taken by the employer are reasonably related to the search’s
objective and they are not overly intrusive in light of the nature of the alleged misconduct.”
Gossmeyer v. McDonald, 128 F.3d 481, 491 (7th Cir. 1997). Here, the canine sweep
encompassed the parking lot and offices, common areas, and the conference room of the
Engineering Department. (Petty Aff. ¶¶ 23-26; Tim White Aff. ¶¶ 8-11.) Because the canine did
not indicate a finding of explosives during the sweep, no drawers, bags, cabinets, or cars were
opened or searched. (Petty Aff. ¶¶ 28-30; White Aff. ¶¶ 14-15.) The sweep lasted between fifteen
and twenty minutes, and took place while employees were at the staff meeting. (Petty Aff. ¶ 32;
Tim White Aff. ¶¶ 12.) Plaintiff provides no evidence to the contrary, and instead reiterates the
allegations in his Complaint that the search took place while he was being terminated. Plaintiff
also contends the search was unreasonable because it was conducted in “secret” while employees
attended a staff meeting; Plaintiff was unaware the Department was searched until months later
an acquaintance informed Plaintiff he had heard that Plaintiff’s belongings and office were
searched while Plaintiff was being terminated. Plaintiff also contends that a more reasonable
sweep would have included the staff meeting. The Court respectfully disagrees; bringing a
canine unit into an active staff meeting strikes the Court as far more intrusive and improper than
the search that took place in this case.
Because the canine sweep was proper both at inception and in its scope, all Defendants
are entitled to summary judgment on Count X.
E. Plaintiff’s Invasion of Privacy Claim in Count XI
Plaintiff alleges invasion of his privacy against the individual defendants based on the search
of his office and personal property during his termination. This count remains against the
26
individual defendants in their individual capacities only. Specifically, Plaintiff’s claim involves a
cause of action for unreasonable intrusion upon the seclusion of another. This cause of action
applies when a party ‘intentionally intrudes’ upon the private affairs or concerns’ of another and
such ‘intrusion would be highly offensive to the reasonable person.’” Washington v. City of
Georgetown, 2009 WL 530782, *5 (E.D. Ky. March 3, 2009) (quoting Restatement (Second) of
Torts § 652B).
Based on the facts above, the Court holds that Defendants are entitled to summary judgment
on this claim as well. The evidence above does not indicate that Defendant Petty—the only
Defendant who acted as a decisionmaker in ordering the sweep—did so for any other purpose
than investigating what he determined to be an employee’s reasonable safety concern. The Court
has determined that the sweep was reasonable in scope, and Plaintiff offers no argument as to
why the search in this case would be highly offensive to a reasonable person. Rather, Plaintiff
reiterates that because he “believes the search was done while he was being terminated,” there
were no legitimate business reasons for the search. However, at this stage of the litigation, mere
speculation will not suffice. Monette, 90 F.3d at 1177. The individual Defendants are entitled to
summary judgment on Count XI.
CONCLUSION
Defendants have moved for summary judgment on Plaintiff’s remaining claims. For the
foregoing reasons, Defendants’ Motion for Summary Judgment on all remaining causes of action
asserted by Plaintiff is GRANTED. Furthermore, Plaintiff’s Motions to Strike are DENIED. An
appropriate order shall issue.
April 26, 2013
CC:
Plaintiff, pro se
Counsel
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