Radford v. Ebonite International, Inc
Filing
37
MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 7/25/2017 granting in part and denying in part 20 Motion for Summary Judgment cc: Counsel(KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00076-TBR
REGINALD RADFORD
PLAINTIFF
v.
EBONITE INTERNATIONAL, INC.
DEFENDANT
Memorandum Opinion and Order
This matter is before the Court upon Defendant Ebonite International, Inc.’s
motion for summary judgment.
[DN 20.]
[DN 31], and Ebonite replied, [DN 36].
adjudication.
Plaintiff Reginald Radford responded,
Fully briefed, this matter is ripe for
For the following reasons, Ebonite’s motion is GRANTED IN PART
and DENIED IN PART.
I. Facts and Procedural History
Ebonite International is a leading manufacturer of bowling balls and
equipment.
Its primary manufacturing facilities are located in Hopkinsville,
Kentucky.
For a time, Plaintiff Reginald Radford was employed by Ebonite in its
Hopkinsville factory, eventually attaining the “lead man” position in the foam cores
department.
[DN 29 at 5.]
Radford was also a union steward.
[Id.]
In that
role, he would write grievances on behalf of himself and other employees “if the
company didn’t go by the union book.”
[Id.]
Radford’s supervisor, with whom he was often at odds, was Charlie Worsham.
Conflict between the two stretches back to 2011, when Worsham, a white male,
denied Radford’s request for overtime.
See [DN 36-1 at 8.]
Worsham filed a
harassment complaint, saying that Radford, an African-American, called him a
“racist.”
[Id.]
It is unclear how Ebonite addressed Worsham’s complaint.
The events giving rise to this case began in early 2013 after Radford filed a
series of grievances.
On January 31, Radford complained that Worsham attempted
to deny him a paid day of leave.
[DN 20-2 at 86.]
At Ebonite, employees who
have perfect attendance for six months in a row are rewarded with a paid day off,
known as a “goody day.”
[DN 29 at 13.]
According to Radford, he was entitled to
a goody day, but Worsham altered Radford’s paperwork to make it look like he was
not.
[Id.] In his grievance, Radford wrote that he was “[t]ired of the [lying],
discrimination, and harassment.”
[DN 20-2 at 86.]
mistake, and Radford received his goody day.
Worsham said he made a
[Id.]
Also on January 31, Radford requested that he be allowed to continue
working an hour of overtime each day. [Id. at 87.] As a lead man, it was
Radford’s job to come in an hour early to prepare certain factory systems.
at 6.]
[DN 29
Radford testified the company increased his production quota, but took away
his extra hour.
[Id. at 14.]
He said Ebonite also stopped allowing other African-
American lead men to work overtime, although overtime was allowed for white lead
men.
[Id.]
In response to Radford’s grievance, Worsham wrote that there was “no
need for overtime” because a “[t]ime study shows employee can complete all
requirements in an 8 hr. period.”
[DN 20-2 at 87.]
About two weeks later, Radford filed another grievance against Worsham.
He complained that on two successive days, Worsham cursed at another employee
2
because of problems on the manufacturing line.
employee was “tired of being stress[ed] out.
has happened.”
[Id.]
[Id. at 88.]
Radford said the
[A]nd this is the 5th or 6th time this
In response to each of Radford’s three grievances, Regina
Arnold, Ebonite’s Personnel/HR Manager, wrote that Worsham was “disciplined”
and new procedures were put in place to prevent future occurrences.
[Id. at 86-88.]
Radford made one final complaint about Worsham’s behavior in early 2013.
He alleged Worsham routinely allowed white employees to arrive late to work
without consequence, but would not afford African-American employees the same
leniency when they were tardy.1
[Id. at 8-9.]
Arnold investigated Radford’s
allegations and found that a white employee, David Hawkins, had indeed been
allowed to change his schedule when he was late on nine occasions.
3.]
[DN 20-4 at 2-
As a result of her findings and Radford’s other grievances, “Ebonite suspended
Worsham and required him to attend management training.”
[Id. at 3.]
Immediately after returning from his suspension, Radford says, Worsham
began
retaliating
against
Radford. Specifically,
Radford
alleges
Worsham
“increased Radford’s work load, removed a partition that shielded Radford from
flying debris . . . and asked a co-worker to watch for mistakes by Radford.”
at 10.]
[DN 31
According to Radford, the first day Worsham was back on the factory floor,
Radford observed Worsham tell a union steward to “watch [him],” ostensibly to
make sure he was working. [DN 20-2 at 9.]
Radford did not actually overhear the
conversation, but instead testified he was able to read Worsham’s lips and
The record does not appear to contain any formal grievance written by Radford regarding
Worsham’s alleged discriminatory practices. However, Ebonite and its witnesses admit that
Radford made this complaint, and that Worsham was suspended as a result. [DN 20-1 at 4.]
1
3
understand what he was saying to the steward.
[Id.]
He also says Worsham told
another employee, Will Poindexter, not to assist Radford whenever Radford fell
behind on his work.
[DN 29 at 19-20.]
Shortly thereafter, Radford met with Carl Rogers, Ebonite’s CFO, and Arnold
regarding Worsham’s conduct. [DN 20-2 at 10.]
During their meeting, Radford
mentioned that his desk was partially surrounded by a welding shield.
[Id.]
Radford’s desk was located “right next to a ball drilling machine [that] kicks off ball
debris and dust.”
[Id. at 14.] About two years earlier, Radford said an Ebonite
maintenance employee hung an obsolete welding shield around his desk to protect
him from the debris.
shield was gone.
[Id.]
The day after his meeting with Arnold and Rogers, the
[Id. at 10.]
The parties dispute the reason the welding shield was removed.
Ebonite
points to a memo, dated March 6, 2013, in which the maintenance foreman explains
that his department “need[s] [the welding shields] if we are going to weld for an
extended amount of time.
were mistaken.”
I am not sure who said you could have these but they
[Id. at 89.]
For his part, Radford believes Ebonite manufactured
a reason to have the shield removed, given that it had been hanging at his desk for
two years without incident.
[Id. at 10.] Radford filed a grievance on March 11,
alleging the shield was removed in retaliation for his complaints regarding
Worsham.
[Id. at 90.]
The welding shield was replaced by a clear curtain
approximately two months later.
[Id. at 11.]
4
Radford filed a charge of
discrimination with the EEOC relating to these events on April 29, 2013.
[DN 33,
Radford Ex. 0019.]
Several months later, Ebonite sought to cut production volume, and invited
employees to participate in a voluntary layoff.
for the week beginning September 22, 2013.
Radford took up Ebonite on its offer
[DN 29 at 7; DN 20-2 at 81.]
During
past layoffs, Radford testified, the company made mass unemployment claims for all
affected employees. [DN 29 at 8.]
This time, however, Ebonite did not.
[Id.]
When Radford learned the company had not filed a claim for him, he filed one on his
own behalf.
[Id. at 9.]
and Radford appealed.
The unemployment office denied that claim as untimely,
[Id.] Apparently, while that appeal was pending, Radford
instructed his wife to file another claim on his behalf for the same voluntary layoff
period.
[Id. at 8-9.]
Unfortunately, the office’s automated phone system recorded
that Radford was attempting to claim benefits for a two-week period beginning
September 29 – weeks during which he worked. [DN 20-2 at 81-82.]
The local unemployment office soon realized the error, and sent a notice to
Ebonite stating Radford “knowingly made false statements to establish the right to
or the amount of benefits.
This appears to be a violation of KRS 341.990(5) and
may be referred for criminal prosecution.”
[DN 33, Ebonite Ex. 0067.]
December
Radford’s
12,
2013,
Ebonite
terminated
employment.
On
Radford’s
termination letter states that “[a]s the result of the fraudulent obtaining of
Unemployment Insurance Benefits during weeks in which you were working here at
Ebonite, a decision has been made to terminate your employment today.”
5
[DN 20-2
at 84.]
The letter specifically cites Ebonite Work Rule #10, which prohibits the
“[v]iolation of any criminal law,” including “stealing [and] making fraudulent
records.” [Id.]
Radford appealed the unemployment office’s determination of fraud. Soon
after his termination, Radford had a hearing before the Division of Unemployment
Insurance Appeals Branch.
[DN 33, Radford Ex. 0027.] The unemployment
referee held Radford “did not knowingly make a false statement to obtain benefits,”
apparently accepting Radford’s explanation that his wife had inadvertently applied
for benefits beginning on the wrong date.
[Id.] He ordered Radford to repay
$830.00, the amount of extra benefits Radford received.
[Id. at Radford Ex. 0028.]
The referee’s decision was upheld by the Kentucky Unemployment Insurance
Commission.
[Id. at Radford Ex. 0029.]
Next, Radford proceeded to arbitration under the terms of the labor
agreement between Ebonite and his union.
Before the arbitrator, Ebonite argued
Radford was justly terminated for filing a false claim for unemployment benefits.
[DN 20-4 at 8.]
The union asked for reinstatement and back pay, claiming Ebonite
had no reason not to take Radford back after the state reversed its initial fraud
determination.
[Id. at 9.]
The arbitrator sided with Ebonite, ruling that even
though the referee determined there was no just cause for taking criminal action
against Radford, the company was still justified in terminating Radford for
violating its rules against theft.
[Id. at 17.]
6
Radford received his right-to-sue
letter from the EEOC on December 31, 2014, and filed this suit on April 1, 2015.
[DN 33, Radford Ex. 0031; DN 1.]
Radford claims the actions of Worsham and Ebonite amount to unlawful race
discrimination and retaliation.
Specifically, he says other Ebonite employees,
some of whom were white, also received unemployment overpayments but were not
terminated.
Radford also alleges that both his termination and Worsham’s actions
upon returning from suspension were retaliation for Radford’s grievances and
EEOC complaint.
Ebonite now moves for summary judgment.
[DN 20.]
II. Standard of Review
Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A genuine dispute of material fact exists where “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “may not
make credibility determinations nor weigh the evidence when determining whether
an issue of fact remains for trial.”
Laster v. City of Kalamazoo, 746 F.3d 714, 726
(6th Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001);
Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)).
“The ultimate question is
‘whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.’”
Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477
7
U.S. at 251-52).
As the party moving for summary judgment, Ebonite must
shoulder the burden of showing the absence of a genuine dispute of material fact as
to at least one essential element of each of Radford’s claims. Fed. R. Civ. P. 56(c);
see Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)). Assuming Ebonite satisfies its burden of production, Radford “must—by
deposition, answers to interrogatories, affidavits, and admissions on file—show
specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing
Celotex Corp., 477 U.S. at 324).
III. Discussion
Two threshold issues bear mention. First, Ebonite argues Radford’s Title
VII claims are untimely. Title VII plaintiffs must file suit within ninety days of
receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 20003-5(f)(1); Fuller
v. Mich. Dept. of Transp., 580 F. App’x 416, 424 (6th Cir. 2014).
issued Radford’s right-to-sue letter on December 31, 2014.
Here, the EEOC
[DN 33, Radford Ex.
0031.] Radford filed this action on April 1, 2015, ninety-one days later. See [DN
1.]
Courts in this circuit “presume[] that notice is given, and hence the ninety-day
limitations term begins running, on the fifth day following the mailing of a right-tosue notification to the claimant.” Rembisz v. Lew, 830 F.3d 681, 682 (6th Cir. 2016)
(quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552,
557 (6th Cir. 2000)) (cleaned up).
Ebonite seeks to rebut this presumption,
pointing to Radford’s deposition testimony:
Q: Is this your notice of right to sue?
A: Yes.
8
Q: When did you get that?
A: I don’t know the date. I don’t know the date that I received it. I
got it in, I know it was in ‘14, 2014, but I don’t know the exact date or
month that I received it.
Q: But you think you got it in 2014?
A: Yes. I think, yeah, December. Because I know I had 90 days to
get it filed in federal court. So I think I got it filed in March of ‘15.
So yeah, it was December.
[DN 29 at 17.]
The Court is not convinced this testimony, standing alone, is
enough to rebut the presumption Radford received the EEOC’s notice on January 5,
2015.
Radford did indeed testify he “think[s]” he received the notice in December
2014.
But he also testified, incorrectly, that he “think[s]” he filed suit in March
2015.
This demonstrates Radford has at least some confusion regarding the
precise timeline of his case, and calls into question the reliability of his testimony
regarding the date he received the EEOC’s notice. Radford’s Title VII claims are
timely.
Second, in addition to his claims under Title VII, Radford also brings claims
under the Kentucky Civil Rights Act (KCRA), KRS 344.010 et seq., and 42 U.S.C. §
1981.
The KCRA “is similar to Title VII . . . and should be interpreted consistently
with federal law.” Ammerman v. Bd. of Educ. of Nicholas Cty., 30 S.W.3d 793, 79798 (Ky. 2000).
Likewise, § 1981 “prohibits intentional race discrimination in the
making and enforcing of contracts,” Amini v. Oberlin Coll., 440 F.3d 350, 358 (6th
Cir. 2006), and courts analyze § 1981 claims under the “same analytical framework”
as Title VII claims. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 302 (6th
Cir. 2016) (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 n.5 (6th Cir.
2000) (“The elements of prima facie case as well as the allocations of the burden of
9
proof are the same for employment claims stemming from Title VII and § 1981.”)).
The Court will now turn to the merits of Radford’s discrimination and retaliation
claims.
A. Discrimination
At the outset, there is some confusion regarding the nature of Radford’s
discrimination claim.
Typically, absent direct evidence of discrimination, a claim
of disparate treatment is subject to the burden-shifting approach set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The burden initially lies
with the plaintiff to establish a prima facie case of disparate treatment.
The
burden then shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its action.
Assuming it does so, the burden shifts back to the plaintiff to
demonstrate the defendant’s proffered reason is merely pretext for unlawful
discrimination. Hollins v. Atl. Co., 188 F.3d 652, 658 (6th Cir. 1999).
refers to the McDonnell Douglas framework in his briefing.
Radford
[DN 31 at 11.]
However, Radford also characterizes his claim as one involving mixed-motive
discrimination.
[Id.]
In a mixed-motive case, the plaintiff alleges “an adverse
employment decision was the product of a mixture of legitimate and illegitimate
motives.”
Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 649 (6th Cir. 2012)
(citations omitted).
The McDonnell Douglas burden-shifting framework does not
apply to mixed-motive claims. Spees v. James Marine, Inc., 617 F.3d 380, 390 (6th
Cir. 2010) (citing White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir.
2008)).
“Instead, ‘a Title VII plaintiff asserting a mixed-motive claim need only
10
produce evidence sufficient to convince a jury that: (1) the defendant took an
adverse employment action against the plaintiff; and (2) race, color, religion, sex, or
national origin was a motivating factor for the defendant's adverse employment
action.’”
Id. (quoting White, 533 F.3d at 400).
In contrast to the panoply of
remedies available in a single-motive Title VII case, “a plaintiff asserting a mixedmotive claim is entitled only to declaratory relief, limited injunctive relief, and
attorney fees and costs where the employer demonstrates that it would have taken
the same employment action in the absence of an impermissible motivating factor.”
Id.
Here, it appears Radford attempts to bring his Title VII discrimination claim
under both a single-motive and mixed-motive theory.
The Court will address each
in turn, but it is first necessary to address the type of evidence Radford seeks to use
to prove his case.
Both single-motive and mixed-motive claims can be proven using
either direct or circumstantial evidence of discrimination. See Tennial, 840 F.3d at
302; Ondricko, 689 F.3d at 649.
“Direct evidence consists of facts that, if believed,
require the conclusion that unlawful discrimination was at least a motivating factor
in the employer’s actions.” Tennial, 840 F.3d at 302 (quoting Johnson v. Kroger
Co., 319 F.3d 858, 865 (6th Cir. 2003)) (cleaned up).
In contrast, “[c]ircumstantial
evidence . . . is proof that does not on its face establish discriminatory animus, but
does allow a factfinder to draw a reasonable inference that discrimination occurred.”
Ondricko, 689 F.3d at 649 (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th
Cir. 1997)).
11
Radford argues he has brought forth direct evidence of discrimination.
Particularly, he relies upon the fact that after he reported Worsham’s differential
treatment of African-American employees when it came to attendance, Ebonite
suspended Worsham and made him attend management training.
Granted,
Worsham’s suspension might suggest that Worsham acted in a discriminatory
manner.
But it is not direct evidence of discrimination, and it does not tend to
prove Radford was terminated because of his race.
To decide Worsham’s
suspension was evidence of discrimination, a factfinder would necessarily have to
make an inferential leap: since Worsham was suspended, it must mean he
discriminated.
Because such a leap is required, Worsham’s suspension is not
direct evidence.
Even if it were, the crux of Radford’s discrimination claim is not that
Worsham discriminated against African-American employees in recording absences.
Rather, Radford’s claim rests on his belief that race played some part in his
termination.
Radford does not allege Worsham was involved in the decision-
making process that led to his firing, nor does any evidence brought to the Court’s
attention support that notion.
In fact, Radford admits Worsham was not present
during the meeting in which he was let go.
[DN 31 at 8.] Worsham’s suspension
also occurred more than nine months before Radford’s firing.
As explained below,
Radford’s grievances against Worsham and Worsham’s subsequent actions are
relevant to Radford’s retaliation claim.
But they cannot be used as direct evidence
to support the discrimination claim arising from his termination.
12
Under either a
single-motive or mixed-motive theory, then, Radford must proceed using
circumstantial evidence.
(1) Single-Motive
To establish a prima facie case of single-motive discrimination based upon
circumstantial evidence, Radford must show he was “(1) a member of a protected
class, (2) subject to an adverse employment action, (3) qualified for the position, and
(4) replaced by a person outside the protected class or treated differently than
similarly situated nonminority employees.”
omitted).
Tennial, 840 F.3d at 303 (citation
The parties agree that Radford, an African-American, is a member of a
protected class, that he was terminated – the prototypical adverse action – and that
he was otherwise qualified for his position. However, they dispute whether
Ebonite treated any similarly-situated employees more favorably than Radford.
On this point, Radford contends several other employees, some white,
received unemployment overpayments but were not terminated. During his
deposition, Radford named twelve fellow employees – eight African-American and
four white – whom he believes received overpayments.
also admits some employees were paid extra benefits.
[DN 29 at 7-8.]
Ebonite
In her affidavit, Regina
Arnold states that “[i]n 2014, Ebonite learned of other Ebonite employees, both
black and white, who neglected to report holiday pay . . . during weeks in which
they worked.”
[DN 20-4 at 4.]
However, only Radford was terminated.
Ebonite
argues these employees are not proper comparators, because “[n]one of the other
13
employees . . . filed claims for benefits that were denied and then filed again for
benefits for weeks they worked at Ebonite.”
[DN 36 at 5.]
The Sixth Circuit directs “that to be deemed ‘similarly-situated’ in the
disciplinary context, ‘the individuals with whom the plaintiff seeks to compare
his/her treatment must have dealt with the same supervisor, have been subject to
the same standards and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or
the employer's treatment of them for it.’”
Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 352 (6th Cir. 1998) (quoting Mitchell v. Toledo Hosp., 964 F.2d
577, 583 (6th Cir. 1992)). However, “[t]he nonprotected employee need not be
identical in every way in order to be a proper comparator.
Instead, the plaintiff
must show that the comparator is similarly situated in all relevant aspects and has
engaged in acts of comparable seriousness.” Tennial, 840 F.3d at 304 (citing Bobo
v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012)). It is true that
Radford re-applied for benefits after first being denied, something the other
employees who received overpayments apparently did not do.
fails to see the significance of this distinction.
However, the Court
The conduct at issue here is the
same: employees applying for unemployment benefits to which they were not
entitled.
Radford has established that he was similarly-situated to other Ebonite
employees who received extra unemployment benefits, and that he was treated
differently than the four white employees who were not terminated.
14
The burden
now shifts to Ebonite to articulate a legitimate, nondiscriminatory reason for its
action. Hollins v. Atl. Co., 188 F.3d 652, 658 (6th Cir. 1999).
Ebonite has done so,
explaining it fired Radford because it received notice from a state agency stating he
committed fraud.
This constituted a violation of Ebonite’s work rule against theft
and the making of false records. See Fuller v. Mich. Dept. of Transp., 580 F. App’x
416, 427-28 (6th Cir. 2014) (suggesting employers are entitled to terminate
employees who commit unemployment benefits fraud).
At the final stage of the McDonnell Douglas inquiry, the burden shifts back to
Radford to demonstrate Ebonite’s proffered reason for terminating him is merely
pretext for unlawful discrimination. Hollins, 188 F.3d at 658.
Radford may
demonstrate pretext “by showing that the proffered reason (1) has no basis in fact,
(2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.” Elgabi v. Toledo Area Reg'l
Transit Auth., 228 F. App'x 537, 540 (6th Cir. 2007) (quoting Wexler v. White's Fine
Furniture, 317 F.3d 564, 576 (en banc) (6th Cir. 2003)).
Here, Radford argues his
termination was pretextual because his unemployment appeal was successful and
because other employees who received overpayments were not fired.
Neither
argument is sufficient to show pretext.
First, the fact that Radford won his unemployment appeal is not
determinative.
At this stage, the appropriate question is not whether Radford
actually committed fraud.
Rather, the question is whether Ebonite “reasonably
and honestly relie[d] on” the letter from the unemployment office in deciding to let
15
Radford go, “even if its conclusion is later shown to be ‘mistaken, foolish, trivial, or
baseless.’” Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009) (citing Clay v.
United Parcel Serv., Inc., 501 F.3d 695, 713-15 (6th Cir. 2007)).
Stated otherwise,
“as long as an employer has an honest belief in its proffered nondiscriminatory
reason for discharging an employee, the employee cannot establish that the reason
was pretextual simply because it is ultimately shown to be incorrect.” Niswander
v. Cincinnati Ins. Co., 529 F.3d 714, 728 (6th Cir. 2008) (quoting Majewski v. Auto.
Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001)).
Here, Ebonite received
an official communication from a government agency stating one of its employees
had broken the law.
Given no reason to question the veracity of that letter,
Ebonite chose to fire Radford based upon the conduct alleged by the state.
Second, it is true that other employees received overpayments, but were not
punished.
But that is only part of the story.
In her affidavit, Arnold explains that
while other employees received extra benefits in late 2013, it only received a notice
of fraud as to Radford.
this statement.
[DN 20-4 at 3.] Radford brings forth no evidence rebutting
If indeed Ebonite treated Radford differently, it had a good reason
for doing so – Ebonite did not know the other employees were also overpaid.
Finally, the fact that both African-American and white employees were kept
on after receiving overpayments significantly undercuts Radford’s argument that he
was terminated because of his race.
Radford admits that eight of the twelve
employees he believes received extra benefits were African-American.
He fails to
explain why, if his race was indeed the reason for his termination, one or more of
16
the other eight African-American employees were not also subjected to an adverse
employment action.
In sum, Radford cannot establish that race formed the sole basis of his
termination by Ebonite.
Although he has satisfied his burden at the prima facie
stage, Ebonite has shown that it possessed a legitimate, nondiscriminatory reason
for its decision – here, its belief that Radford committed unemployment benefits
fraud.
Radford has not demonstrated Ebonite held that belief in bad faith, nor has
he brought forth any other evidence suggesting Ebonite’s proffered reason for his
discharge is mere pretext for discrimination.
This proves fatal to this aspect of
Radford’s Title VII discrimination claim, as well as his discrimination claims under
the Kentucky Civil Rights Act and 42 U.S.C. § 1981.2
(2) Mixed-Motive
Even if Radford cannot prevail under a single-motive theory, he might still
prevail under a mixed-motive discrimination framework. Here, Radford may
defeat Ebonite’s motion by “produc[ing] evidence sufficient to convince a jury that:
(1) the defendant took an adverse employment action against the plaintiff; and (2)
race, color, religion, sex, or national origin was a motivating factor for the
defendant's adverse employment action.” Griffin v. Finkbeiner, 689 F.3d 584, 595
(6th Cir. 2012) (quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th
Cir. 2008)).
This burden “is not onerous and should preclude sending the case to
The mixed-motive analysis does not apply to claims under the Kentucky Civil Rights Act or 42
U.S.C. § 1981. See Walker v. Commonwealth, 503 S.W.3d 165, 174-75 (Ky. App. 2016); Williams v.
Zurz, 503 F. App’x 367, 375 (6th Cir. 2012).
2
17
the jury only where the record is devoid of evidence that could reasonably be
construed to support the plaintiff's claim.”
Id. (citations omitted).
Even with the benefit of a more lenient standard, Radford still fails to
establish a connection between his termination and his race. The Court is mindful
that Radford has established a prima facie case under McDonnell Douglas,
something that “can be considered in favor of his mixed-motive claim[].” Graham
v. Best Buy Stores, L.P., 298 F. App'x 487, 495 (6th Cir. 2008) (citation omitted).
However, this fact alone is not dispositive. See id.
Importantly, Radford has
neither alleged nor shown Rogers or Arnold, the Ebonite officials responsible for his
firing, “harbored any racial animus toward [him].” Lindsey v. Whirlpool Corp., 295
F. App'x 758, 768 (6th Cir. 2008).
Nor has he alleged or shown Worsham, the
supervisor against whom he levies the bulk of his accusations, was involved in
Ebonite’s decision to terminate his employment. See Reed v. Procter & Gamble
Mfg. Co., 556 F. App'x 421, 429 (6th Cir. 2014) (“[Plaintiff] does identify instances
suggesting that some other employees . . . felt and expressed [racial] animus, but he
does not identify facts to indicate that these employees influenced” the supervisor
who declined to promote him.).
Instead, much of Radford’s mixed-motive discrimination claim overlaps with
his retaliation claim.
Radford essentially argues that because of his role as an
African-American union steward advocating on behalf of other African-American
employees, Ebonite not only retaliated against him, but also discriminated against
him.
However, as explained below, there is no evidence suggesting that Radford’s
18
termination was tied to his union activity.
And while Worsham may have
retaliated against Radford because of his grievances, Radford has not demonstrated
Worsham influenced Rogers or Arnold in their decision to terminate his
employment.
Absent any other evidence that race was a motivating factor in his
termination, Radford’s mixed-motive claim is too speculative to survive summary
judgment.3
B. Retaliation
In addition to his discrimination claims, Radford also brings a claim of
retaliation.4
Title VII “makes it unlawful for an employer to discriminate against
an employee because the employee opposed an unlawful employment practice, or
made a charge, or participated in an investigation, proceeding, or hearing related to
Title VII.” E.E.O.C. v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993).
A
plaintiff may prove his Title VII retaliation claim through direct or circumstantial
evidence. Henry v. Ohio Dept. of Mental Retardation & Developmental Disabilities,
162 F. Supp. 2d 794, 800 (S.D. Ohio 2000).
Again, this case presents no direct
evidence of retaliation, so the Court must apply the McDonnell balancing test. Id.;
McDonnell, 411 U.S. at 802. “[T]o establish a prima facie case of retaliation, a
plaintiff must establish that: (1) he engaged in activity protected by Title VII; (2)
Radford also argues Worsham’s decision to deny Radford and other African-American employees an
hour of overtime each day amounted to discrimination. See [DN 31 at 12.] However, Radford
makes this argument only in passing, and “issues averted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” United States v.
Layne, 192 F.3d 556, 566 (6th Cir. 1999) (citation omitted). Additionally, Radford testified that he
continued to work overtime after his extra hour each morning was cut. [DN 29 at 21.]
4 A mixed-motive analysis does not apply to such claims.
Johnson v. Fifth Third Bank, 151 F. Supp.
3d 763, 773 (E.D. Mich. 2015) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct.
2517, 2534 (2013)).
3
19
the exercise of his civil rights was known to the defendant; (3) thereafter, the
defendant took an employment action adverse to the plaintiff; and (4) there was a
causal connection between the protected activity and the adverse employment
action.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003); Nguyen v.
City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). The causal connection must
be proven by sufficient evidence to demonstrate an inference that, had the plaintiff
not engaged in his protected rights, the defendant would not have taken the adverse
action. Id.
If the plaintiff successfully establishes a prima facie case of
retaliation, “a presumption of unlawful retaliation arises and the burden of
production shifts to the defendant to rebut the presumption by articulat[ing] some
legitimate, nondiscriminatory reason for its action.” Fuhr v. Hazel Park Sch. Dist.,
710 F.3d 668, 674 (6th Cir. 2013) (citation and internal quotation marks omitted).
Then, if the defendant successfully produces a legitimate, nondiscriminatory reason,
“the burden of production returns to the plaintiff to demonstrate by a
preponderance of the evidence that the proffered reason was a mere pretext for
discrimination.”
Fuhr, 710 F.3d at 675 (citing Abbott, 348 F.3d at 542).
Although Radford articulates a single retaliation claim, his briefing makes
apparent that he actually maintains two theories of retaliation.
Radford first
contends Worsham retaliated against him for filing workplace grievances by
“increas[ing] Radford’s work load, remov[ing] a partition that shielded Radford from
flying debris[,] . . . and asked a co-worker to watch for mistakes by Radford.”
20
[DN
31 at 10.]
He also says Ebonite terminated him in retaliation for filing a complaint
with the EEOC.
The Court will address the two theories separately.
(1) Grievances
Not all work-related grievances constitute protected activity under Title VII.
Rather, the plaintiff must have “opposed unlawful employment practices, or made a
charge, or participated in an investigation, proceeding or hearing related to Title
VII” in order for the grievance to fall within the statute’s purview. Batuyong v.
Gates, 337 F. App’x 451, 456 (6th Cir. 2009) (emphasis in original) (citing EEOC v.
Ohio Edison Co., 7 F.3d 541, 541 (6th Cir 1993)).
Here, Radford filed several
grievances against Worsham, at least two of which related to race discrimination.
In his grievance complaining that Worsham wrongly denied him a paid day off,
Radford stated he was “[t]ired of the [lying], discrimination, and harassment.”
20-2 at 86.]
[DN
More to the point, though, Radford specifically alleged Worsham held
African-American employees to a more stringent standard when it came to arriving
at work on time.
[DN 20-2 at 8-9; DN 20-1 at 4; DN 20-4 at 2-3.]
The Court is
satisfied these grievances amounted to protected activity under Title VII.
See
Adamov v. U.S. Bank Nat’l Assoc., ___ F. App’x ___, 2017 WL 902141, at *4 (6th Cir.
Mar. 7, 2017).
It is undisputed that Ebonite knew about Radford’s grievances.
The next
question, then, is whether Worsham’s actions following his return from suspension
were adverse under Title VII.
In this context, an adverse employment action is one
that results in “a significant change in employment status, such as hiring, firing,
21
failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” White v. Burlington N. & Santa
Fe R. Co., 364 F.3d 789, 798 (6th Cir. 2004) (citation omitted). It “must be more
disruptive than a mere inconvenience or an alteration of job responsibilities.”
Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004) (quoting Kocsis v.
Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996)).
Several of Radford’s complaints come closer to “de minimis employment
actions” insufficient to give rise to Title VII liability. Id.
For instance, Radford
alleges Worsham told Will Poindexter not to assist Radford with his job duties,
contrary to Poindexter’s earlier practice. [DN 29 at 19-20.] He also says he saw
Worsham tell another union steward to keep an eye on Radford. [DN 20-2 at 9.]
But, as noted above, “a mere inconvenience or an alteration of job responsibilities”
does not, by itself, constitute an adverse employment action. Mitchell, 389 F.3d at
182.
Even taking Radford’s testimony as true, these actions were designed to do
nothing more than make sure Radford did his job.
Nevertheless, the Court believes Radford’s allegation that Worsham had the
welding curtain surrounding Radford’s desk removed, if proven true, could
constitute an adverse action.
Radford testified the curtain shielded him from
debris and dust emitted by a nearby ball drilling machine.
[DN 20-2 at 14.]
The
curtain was gone for approximately two months until it was replaced by a clear
screen. [Id. at 11.]
During the interim period, Radford was presumably exposed
to the debris from the machine.
At least one Sixth Circuit case, albeit
22
unpublished, suggests that an employment action may be materially adverse if it
makes the circumstances of the employee’s job more dangerous.
See Virostek v.
Liberty Twp. Police Dept./Tr., 14 F. App’x 493, 511 (6th Cir. 2001).
Here, a
reasonable jury could conclude Worsham’s removal of the curtain was designed to
have a chilling effect upon Radford’s protected activity.
The final element of Radford’s prima facie retaliation case is causation.
Radford must bring forth evidence sufficient to demonstrate an inference of but for
causation; that is, had he not filed the protected grievances, Worsham would not
have taken the welding curtain away. Abbot, 348 F.3d at 542; Nguyen, 229 F.3d at
563.
As to causation, Radford’s case is based primarily, if not exclusively, on
temporal proximity.
“Where an adverse employment action occurs very close in
time after an employer learns of a protected activity, such temporal proximity
between the events is significant enough to constitute evidence of a causal
connection for the purposes of satisfying a prima facie case of retaliation.” Mickey
v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Here, the welding
curtain was removed only two days after Worsham returned from his suspension, a
period the Sixth Circuit has held to be short enough to give rise to an inference of
causation. See Michael v. Caterpillar Fin. Serv. Corp., 496 F.3d 584, 596 (6th Cir.
2007); Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007).
Radford has met
his burden at the prima face stage.
As with Radford’s discrimination claim, the burden now shifts to Ebonite “to
rebut
the
presumption
[of
retaliation]
23
by
articulat[ing]
some
legitimate,
nondiscriminatory reason for its action.” Fuhr, 710 F.3d at 674. Ebonite has done
just that, explaining the curtain should never have been around Radford’s desk in
the first place.
They point to a memo to Radford from the maintenance foreman
stating his department needed to use the curtain for welding.
[DN 20-2 at 89.]
Radford does not contest the authenticity of this memo, nor does he contradict the
foreman’s statement that the curtain belonged to the maintenance department.
Ebonite having produced a legitimate, nondiscriminatory reason, the burden
shifts back to Radford “to demonstrate . . . that the proffered reason was a mere
pretext” for retaliation. Fuhr, 710 F.3d at 675 (citation omitted).
Although this
presents a close call, the Court believes Radford has presented sufficient evidence of
pretext to allow his retaliation claim to go to a jury.
Particularly, Radford testified
that the curtain had been hanging around his desk for two years without incident.
[DN 20-2 at 10.]
He also stated the maintenance department is only five to ten feet
away from his own department, suggesting that if indeed the curtain belonged to
maintenance, the foreman would likely have noticed it beforehand.
Ebonite does not dispute either of these facts.
[DN 29 at 12.]
Taken together with the temporal
proximity between Radford’s grievances and Worsham’s suspension, a reasonable
jury could also conclude Ebonite’s explanation for removing the curtain was
pretextual.
(2) EEOC Complaint
The same cannot be said, however, for Radford’s termination.
While his
EEOC complaint is protected activity, see Mickey, 516 F.3d at 523, Radford brings
24
forth insufficient evidence of causation.5 Temporal proximity aside, Radford points
to no evidence of record demonstrating Ebonite fired him because of his EEOC
complaint.
And here, the time that elapsed between his complaint and his
termination – seven-and-a-half months – is insufficient, standing alone, to support
an inference of retaliation. See Nguyen, 229 F.3d at 566-67 (citing Parnell v. West,
114 F.3d 1188, 1997 WL 271751, at *2 (6th Cir. May 21, 1997) (unpublished table
decision)).
As to this theory of retaliation, Radford has not met his burden at the
prima facie stage, and Ebonite is entitled to summary judgment.
IV. Conclusion
As they pertain to his termination from Ebonite, Radford presents no genuine
issue of material fact regarding either his discrimination or retaliation claim.
However, a triable issue does exist regarding whether Worsham retaliated against
Radford for filing the grievances that led to Worsham’s suspension. That claim,
and that claim only, must be decided by a jury.
For the foregoing reasons, IT IS HEREBY ORDERED:
Defendant Ebonite International, Inc.’s motion for summary judgment [DN
20] is GRANTED IN PART AND DENIED IN PART.
CC: Counsel of Record
July 25, 2017
The Court will assume Rogers, Ebonite’s CEO and the person ultimately responsible for
terminating Radford’s employment, knew of Radford’s EEOC complaint.
5
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