Kea v. Donahoe et al

Filing 52

OPINION and ORDER GRANTING IN PART AND DENYING IN PART 43 MOTION for Summary Judgment on Plaintiff's Second Amended Complaint. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
David C. Kea, Sr.,
Plaintiff,
v.

Case No. 13-12991

Patrick R. Donahoe, Postmaster
General of the United States,

Sean F. Cox
United States District Court Judge

Defendant.
_______________________________/
OPINION & ORDER
Plaintiff brought this employment discrimination action against his employer, the United
States Postal Service, alleging unlawful race discrimination and retaliation claims under Title
VII. The matter is currently before the Court on Defendant’s Motion for Summary Judgment.
The parties have briefed the issues and the Court heard oral argument on August 6, 2015. For the
reasons set forth below, the Court shall GRANT THE MOTION IN PART AND DENY IT IN
PART. The motion shall be GRANTED to the extent that Defendant is entitled to summary
judgment in its favor with respect to the following claims: 1) Plaintiff’s disparate-treatment racediscrimination claim based upon being placed on off-duty status in 2010; and 2) Plaintiff’s
hostile work environment claims based on both race and retaliation. The Motion shall be
DENIED in all other respects. As such, the following claims shall proceed to trial: 1) Plaintiff’s
disparate-treatment race-discrimination claim based upon the vehicle restriction; and 2)
Plaintiff’s retaliation claim based upon the vehicle restriction.

1

BACKGROUND
Acting pro se, Plaintiff David C. Kea, Sr. (“Plaintiff” or “Kea”) filed this action against
Defendant Patrick R. Donahoe, the Postmaster General of the United States Postal Service and
two individual defendants. Plaintiff later obtained counsel and dismissed the individual
defendants, leaving the Postal Service as the only remaining defendant.
Plaintiff’s “Amended Complaint Second With Jury Demand” is Plaintiff’s operative
Complaint in this action and it includes the following counts: 1) “Unlawful Discrimination Based
On Race/National Origin” in violation of Title VII (Count I); 2) “Retaliation” in violation of Title
VII (Count II); and 3) “Discrimination Through Conflict of Interest and Criminal Activity in
Violation of 42 U.S.C. § 1981A” (Count III). But on June 19, 2014, Plaintiff stipulated to
dismissing Count III and striking his request for punitive damages. (See Docket Entry No. 37).
Thus, only Counts I and II remain.
Following the close of discovery, Defendants filed a Motion for Summary Judgment.
(Docket Entry No. 43).
This Court’s practice guidelines, which are expressly included in the Scheduling Order
issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled CounterStatement of Disputed Facts. The counter-statement shall list in separately
numbered paragraphs following the order or the movant’s statement, whether each
of the facts asserted by the moving party is admitted or denied and shall also be
supported by appropriate citations to the record. The Counter-Statement shall also
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include, in a separate section, a list of each issue of material fact as to which it is
contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
Disputed Facts.
(Docket Entry No. 30 at 2-3).
Both parties complied with the practice guidelines. Thus, as to Defendant’s Motion for
Summary Judgment, Defendants submitted a Statement of Material Facts Not In Dispute, which
shall be referred to as “Def.’s Stmt.”, and Plaintiff filed a Counter-Statement of Disputed Facts,
which shall be referred to as “Pl.’s Stmt.” (Docket Entry Nos. 43-1 and 46-2).
The following material facts are gleaned from the evidence submitted by the parties,
viewed in the light most favorable to Plaintiff, the non-moving party.
Plaintiff began working for the United States Postal Service on August 18, 1984, as a
part-time flexible letter carrier at the Plymouth, Michigan Post Office. (Def.’s and Pl.’s Stmt. at
¶ 1). Plaintiff became a full-time, regular letter carrier in October of 1985. (Id. at ¶ 2).
In December of 1989, the Postal Service issued Plaintiff a Notice of Removal for failing
to disclose his criminal history. The Postal Service later reduced his Notice of Removal to a 7day suspension. (Def.’s and Pl.’s Stmt. at ¶ 3).
Plaintiff continued to work as a letter carrier until April 2008. (Def.’s and Pl.’s Stmt. at ¶
4). While employed as a letter carrier, Plaintiff filed several EEO complaints.
Plaintiff’s EEO Activity While Employed As A Letter Carrier
On April 1, 2004, Plaintiff filed an EEO Complaint alleging race discrimination and
retaliation after the Postal Service denied him the opportunity to review his Official Personnel

3

Folder (OPF). Plaintiff also alleged being denied the ability to move freely about the post office
because of sexual harassment allegations. (Def.’s and Pl.’s Stmt. at ¶ 5; Ex. I to Pl.’s Br.).
In June of 2004, Plaintiff filed an EEO Complaint, alleging race and age discrimination.
Plaintiff alleged that he was denied a change in schedule while other employees, some of whom
are white and younger, were allowed to change their schedules. (Ex. I to Pl.’s Br.).
In February of 2005, Plaintiff filed an EEO Complaint, alleging he had been retaliated
against in various ways. (Id.).
In June of 2005, Plaintiff filed an EEO Complaint alleging retaliation after the Postal
Service allegedly denied him time to complete EEO paperwork. (Def.’s and Pl.’s Stmt. at ¶ 8).
Plaintiff Bids On And, Ultimately Receives, A VOMA Position
A Vehicle Operation Maintenance Assistant (“VOMA”) is a job position at the Postal
Service that services vehicle repairs including vehicle checks for flat tires, inoperable vehicle
lights and electrical issues. VOMAs also arrange for tow trucks from Postal Service contractors
when necessary and locate parts at any of the Vehicle Maintenance Facilities (“VMF facilities”).
VOMAs are responsible for bills related to vehicle repairs including verifying that repairs were
completed and that the repair cost is accurate. VOMAs also hire contractors. (Def.’s and Pl.’s
Stmt. at ¶¶ 9-12). VOMAs are stationed in Plymouth, Westland, and Canton, Michigan.
Ken Ross (who is white) worked as a VOMA at Livonia; Karen Blackney (who is white)
worked as a VOMA at Westland, Glen Erickson (who is white) worked as a VOMA at Canton.
The Postal Service also employs mechanics at the VMFs. Mechanics inspect vehicles,
replace parts, and perform repairs. At the times relevant to Plaintiff’s complaint, the Livonia
VMF mechanics included: Bryan Ferguson (who is African-American), David Stroshein (who is
4

white), David Briscoe (who is white), Walter Sajewski (who is white), Mike Dillman (who is
white), and Paul Guevara (who is Hispanic). (Def.’s and Pl.’s Stmt. at ¶¶ 15-16).
Gary Robinson supervised the mechanics and VOMAs at the Livonia VMF. Robinson
worked as a manager of the Livonia VMF from 2003 until March of 2011. Carol Piechota works
as the auto parts storekeeper at the Livonia VMF. Piechota has worked in that position since
2006 and Robinson was her supervisor. (Def.’s and Pl.’s Stmt. at ¶¶ 17-19).
In November of 2007, Plaintiff bid on a VOMA position at the Plymouth, Michigan Post
Office. Although the Postal Service posted that VOMA position at the Plymouth Post Office,
Robinson would be that VOMA’s supervisor. After Plaintiff bid on that VOMA position,
Robinson removed the VOMA posting from the Plymouth Post Office and instead posted it at the
Livonia VMF. As a result of moving the VOMA posting to Livonia, Plaintiff, a Plymouth Post
Office employee, could no longer bid on the VOMA position. Instead, only the Livonia VMF
employees could bid on the VOMA posting. (Def.’s and Pl.’s Stmt. at ¶¶ 20-23).
According to Plaintiff, Jack Warner, a retired VOMA, informed Robinson that Plaintiff
intended to bid on the VOMA position once the Postal Service posted it at the Plymouth Post
Office. (Def.’s and Pl.’s Stmt. at ¶ 26).
Plaintiff filed an EEO Complaint over the VOMA position. (Pl.’s Dep. at 26). Both
Plaintiff and Robinson attended an EEO redress concerning Plaintiff’s bid for the VOMA
position. In resolution of Plaintiff’s EEO Complaint, the Postal Service re-posted the VOMA
position at the Plymouth Post Office. (Def.’s and Pl.’s Stmt. at ¶ 31).
In April of 2008, Plaintiff bid for and received the VOMA position at the Plymouth Post
Office. (Def.’s and Pl.’s Stmt. at ¶ 32).
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After the Postal Service awarded Plaintiff the VOMA position, Robinson re-posted the
hours by changing the off-day to Tuesday. The Post Office, however, returned the hours to those
listed on the original VOMA position, with Saturday as the off-day. Union representative Don
Oziemski asked Robinson why he changed the off days and Robinson responded “because he
can.” (Def.’s and Pl.’s Stmt. at ¶¶ 33-35).
On May 16, 2008, Plaintiff wrote a letter to the then-Postmaster of the Plymouth Post
Office, stating that employees at that office harassed him because they wanted a white employee
named Lee Wetherford to receive the VOMA position. The Plymouth office employees,
including Wetherford’s wife, made comments to Plaintiff about washing their windows. The
Plymouth Post Office employees, according to Plaintiff, also took tools out of Plaintiff’s truck.
Plaintiff complained to Robinson and Robinson bought Plaintiff new tools. (Def.’s and Pl.’s
Stmt. at ¶¶ 36-37). Plaintiff also stated in that letter than an unidentified employee would not
give him keys that he needed, and it took management a week to find them. (Ex. B to Pl.’s Br.).
Plaintiff also complained about being denied overtime, being required to remove an ear piece,
and that some employees were not parking correctly. (Id.).
Plaintiff typically begins his work day at the Plymouth Post Office, where he maintains an
office, at about 7:00 a.m. Plaintiff is responsible for about 60 Plymouth and Northville vehicles.
His job is to get those vehicles prepared and make sure they are running before the mail carriers
need them. (Def.’s and Pl.’s Stmt. at ¶¶ 39-40). Plaintiff brings approximately four vehicles
each day to the Livonia VMF. Plaintiff testified that he is “constantly moving from city to city.
He travels “anywhere from Ann Arbor to Detroit,” depending on where he need to pick up parts.
(Def.’s and Pl.’s Stmt. at ¶¶ 43).
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Plaintiff testified that in performing his job he would rarely speak with his supervisor,
Robinson. That is, he would only speak to his supervisor about once a month regarding mileage,
or if there was a problem or he needed to get a credit card. (Pl.’s Dep. at 15).
Gorilla Picture Posted At Livonia VMF In 2008
Plaintiff testified that, when he first started as a VOMA, there was a picture on the
bulletin board in the lunchroom at the Livonia VMF that depicted a monkey and stated the words
“Stupid mother-fucker.” (Pl.’s Dep. at 42). Plaintiff testified that the picture was taken down at
some point, after he “said something about it,” but that the picture was up for “a long time.”
(Id.).
In opposition to Defendant’s Motion for Summary Judgment, Plaintiff submitted an
Affidavit that states that in “mid-2008, a gorilla picture was posted on the bulletin board in the
hallway leading to the lunchroom and stayed up for at least a year. The gorilla picture,” which he
states is attached to his Affidavit, “depicts a gorilla scratching his head, with the caption ‘Stupid
Mother Fucker.’” The attachment to his Affidavit, however, actually has the words “Dumb
Motherfucker” written on it. Plaintiff’s Affidavit states that he found that picture highly
offensive. He complained to Robinson about the picture but it was “not removed right away.”
(Pl.’s Aff. at 2).
Plaintiff perceived that picture to suggest that African-Americans are stupid gorillas and
he construed the word “stupid” as “a code word for “Nigger.’” (Id.).
Stroshein and Plaintiff’s 2008 Verbal Altercation
Stroshein, a white male, worked as a mechanic for the Postal Service from October 3,
1983, until he retired on March 8, 2012. He also worked as the lead mechanic at the Livonia
7

VMF, but did not supervise Plaintiff. (Def.’s and Pl.’s Stmts. at ¶¶ 44-45).
Plaintiff contends that Stroshein “disrespected him” several times before an incident that
occurred with Stroshein in October of 2008. (Pl.’s Dep. at 41). Plaintiff contends Stroshein
called Plaintiff “stupid” on several occasions. (Def.’s and Pl.’s Stmt. at ¶ 60).
On October 22, 2008, Plaintiff traveled to the Livonia VMF in order to obtain parts to
repair two broken-down vehicles. When he arrived, Plaintiff requested parts from Stroshein.
Plaintiff testified that when he asked Stroshein for parts, he responded, “I don’t do parts” and
then called Karen the VOMA in Westland and said, “Karen, here, Talk to David Kea. I can’t talk
to stupid people. I don’t do parts.” (Pl.’s Dep. at 25-26). Plaintiff ended the call with Karen,
telling her this had nothing to do with her. Plaintiff then said, “I’ve never disrespected you. I
don’t appreciate you calling me by a name.” Stroshein responded, “Well, I don’t do parts. I just
can’t deal with stupid people.” Plaintiff then said “who do you think you are, calling me stupid?”
Plaintiff testified that he was “getting hot” and said “Let’s take this outside and discuss this like
gentlemen because I ain’t going to make it a circus out here. Let’s step outside and we can
discuss this like gentlemen.” (Pl.’s Dep. at 27).
Robinson was not present during this incident. (Id. at 28). But Robinson talked to
Stroshein about his comment to Plaintiff that he “hates stupid people.” (Def.’s and Pl.’s Stmt. at
¶ 53).
Robinson issued a Letter of Warning to Plaintiff based on his conduct on October 22,
2008. (Def.’s and Pl.’s Stmt. at ¶ 54). Plaintiff filed an EEO complaint regarding his letter of
warning. (Def.’s and Pl.’s Stmt. at ¶ 59).
Robinson also issued a Notice of Suspension to Stroshein based on his conduct during
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this incident (Ex. 10 to Def.’s Br.) but Stroshein testified that it was reduced to a “working
suspension.” (Ex. 29 to Def.’s Br.; Ex. H to Pl.’s Br. at 49-50).
Ferguson’s 2009 Remarks
Plaintiff and Ferguson are both African-American. By all accounts, Plaintiff and
Ferguson do not get along.
Plaintiff’s relationship with Ferguson was good when Plaintiff began working as a
VOMA. Plaintiff’s relationship with Ferguson deteriorated because Plaintiff “wouldn’t stop
speaking to Paul Guevara.” According to Plaintiff, Ferguson told Plaintiff that if he speaks to
Guevara, Plaintiff “can’t speak to him.” (Def.’s Stmt. and Pl.’s Stmt. at ¶¶ 63-64). Ferguson and
Plaintiff did not talk to each other after December 2008. (Id. at ¶ 68).
In April of 2009, Plaintiff went to the Livonia VMF to pick up a part. (Id. at ¶ 70).
While he was there, Plaintiff heard Ferguson state, in a loud voice while working on a car,
“somebody’s not checking them mother fuckin’ oils.” (Pl.’s Dep. at 38-39). Plaintiff thought
Ferguson was referring to him and complained about it to Robinson. Robinson issued Ferguson
a Letter of Warning for “conduct” stating that Ferguson made disparaging remarks to another
employee (Plaintiff) and that the other employee left instead of confronting him. (Def.’s Stmt.
and Pl.’s Stmt. at ¶ 74; see also Ex. 29 to Def.’s Br.).
Plaintiff Supports Guevara’s EEO Case
A Hispanic VMF mechanic named Guevara filed an EEO complaint. On July 14, 2010,
Plaintiff wrote a letter in support of Guevara’s EEO complaint, discussing the Livonia VMF’s
alleged harassment of Guevara. (Def.’s Stmt. and Pl.’s Stmt. at ¶ 90; see also Ex. 14 to Def.’s
Br.). In that letter, Plaintiff stated that he has encountered employees at Livonia harassing
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Guevara, a “Mexican employee,” that profanity in the garage was a common occurrence, that
Robinson had allowed such conduct, and that other employees would be in Robinson’s office
laughing and talking about Guevara. (Ex. 14 to Def.’s Br.).
Monkey Cartoon In 2010
Postal Employee Paul Guevara signed an Affidavit stating that there “was a chimpanzee
cartoon posted on the stockroom wall at the Livonia VMF which had the caption, ‘You can’t fix
stupid.’ It was posted sometime in 2010 and remained up for several months at least.” (Guevara
Aff., Ex. J to Pl.’s Br., at ¶ 2). A copy of the cartoon is attached to Guevara’s Affidavit.1
Guevara states that, on several occasions he heard Stroshein call Plaintiff “stupid” to Plaintiff’s
face and behind Plaintiff’s back.
Plaintiff’s affidavit states that there was a “chimpanzee cartoon posted on the lunch room
wall at the Livonia VMF which had the caption ‘You Just can’t fix stupid.’” (Pl.’s Aff. at ¶ 4).
Plaintiff states that he “used the lunch room every day and had to pass by the picture every time.”
(Id. at ¶ 5).
The Firewood Investigative Interview in 2010
On July 9, 2010, Plaintiff and Piechota traveled to Northville to pick up a Postal Service
vehicle from a contractor. The contractor had firewood available and Piechota asked Plaintiff to
bring back some firewood for her personal use. Plaintiff put firewood in the back of the Postal
service truck and brought it to the Livonia VMF. He put the firewood near the door. (Def.’s and
Pl.’s Stmt. at ¶¶ 98-99).

1

It is undisputed that Plaintiff did not produce the cartoon during discovery and produced
it for the first time in responding to Defendant’s motion.
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Piechota testified that she was written up regarding the incident, for using a Postal vehicle
for personal use. (Piechota Dep. at 32).
On July 20, 2010, Robinson met with Plaintiff for an investigative interview. Plaintiff’s
union steward was also present. Robinson asked Plaintiff whether he used a Postal Service
vehicle to transport wood to the Livonia VMF during work hours and Plaintiff admitted that he
had transported wood to the Livonia VMF using a Postal Service vehicle and on Postal Service
time. (Def.’s and Pl.’s Stmt. at ¶¶ 100-102). Robinson also asked Plaintiff, “Have you gone to
Home Depot or any other store while on postal time?” and Plaintiff answered yes. (Ex. 15 to
Def.’s Br.) Robinson also asked Plaintiff if he had gone home for lunch using a Postal Service
vehicle and Plaintiff answered yes. (Id.).
Robinson did not discipline Plaintiff for the firewood incident, but Robinson told Plaintiff
that he could no longer drive a Postal Service vehicle to lunch. (Def.’s and Pl.’s Stmt. at ¶¶ 107
& 114).
When Robinson asked if that directive applied to all VOMAs, Robinson responded, “No,
just you.” (Pl.’s Dep. at 58-59). When Plaintiff asked Robinson, “Are you discriminating
against me?” Robinson responded, “If you want to call it that, yeah.” (Id.).
Robinson then told the other VOMAs that they could no longer use Postal Service
vehicles for lunch. (Def.’s Stmt. at ¶ 115).
Another VOMA named Blackney, however, testified that she spoke with Robinson after
that directive to the VOMAs. (Blackney EEO Dep., Ex. H to Pl.’s Br., at 223). Blackney
testified that she told Robinson that there are times when VOMAs are out on the road, shuttling
vehicles back and forth, and they stop and have lunch. (Id. at 223-224). Blackney told Robinson
11

that they have always used their vehicles for lunch. Robinson told Blackney he “did not have a
problem with that,” and that “[t]his is about Dave Kea and, you know, stopping him.” (Id. at
224-26).
Robinson testified during his EEO deposition that there is nothing wrong with taking a
Postal Service vehicle, if you’re out at the time, . . . you could stop for lunch.” (Def.’s and Pl.’s
Stmt. at ¶ 108).
Plaintiff’s Altercation with Robinson in July of 2010
Plaintiff arrived at the Livonia VMF around 7:00 a.m. on July 21, 2010. (Def.’s and Pl.’s
Stmt. at ¶ 127). When Plaintiff arrived, he spoke to Stroshein and told him that the vehicle
Plaintiff drove to the Livonia VMF was not running properly. (Id. at ¶ 128). Stroshein told
Plaintiff to leave the vehicle there because it was scheduled for maintenance in two weeks and
Plaintiff went to retrieve a bag and rain gear from the vehicle. (Def.’s and Pl.’s Stmt. at ¶ 129).
On his way to the vehicle, Plaintiff saw Guevara and stopped to speak to him. (Id. at ¶ 130).
Plaintiff said to Guevara, “I see we still got some ignorant motherfuckers working here.” (Pl.’s
EEOC Hrg. Dep. at 106). At this time, Plaintiff was carrying a clipboard in this hands. (Id. at
104).
As Plaintiff was walking toward Stroshein, Ferguson said “Look at that motherfucker,
keep a clip board with him everywhere he go.” (Id. at ¶ 105).
Plaintiff continued walking toward Stroshein and said “one of your ignorant employees
still disrespecting me,” and when Stroshein asked “what?” Plaintiff repeated that statement. (Id.
at ¶¶ 106-107). Stroshein then stated “they’re not my employees, they work for the Post Office.”
(Id.). At this time, Ferguson was about 30 to 35 feet away and was watching Plaintiff talk to
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Stroshein. Robinson was in his office at the Livonia VMF. (Id. at ¶ 108).
Plaintiff walked past the secretary’s office and into Robinson’s office. (Id. at ¶¶ 108109). Plaintiff said to Robinson, his supervisor, “What’s up with your mother-fucking
employees still disrespecting me?” (Def.’s and Pl.’s Stmt. at ¶ 135). Robinson responded,
“What did you say?” and Plaintiff then repeated, “What’s up with your mother-fucking
employees still disrespecting me?” (Def.’s and Pl.’s Stmt. at ¶¶ 136-37). Ferguson followed
Plaintiff into Robinson’s office. While Plaintiff and Ferguson were in Robinson’s office,
Ferguson did not say anything. (Def.’s and Pl.’s Stmt. at ¶ 138). Robinson told Plaintiff to step
outside. (Id. at 139).
Robinson then came outside and directed Plaintiff to leave the Livonia VMF. (Plaintiff’s
EEOC Dep. at 113). Robinson testified that Plaintiff was very angry during the incident and did
not leave the station when directed to do so. (Robinson EEOC Dep. at 24). Robinson testified
that Plaintiff was acting confrontational and that it was “very close to being a physical
altercation.” (Id. at 25). Robinson further testified:
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

He was obstinate. I told him to leave the building, he went to get stuff out
of a locker. I said you got to go, he went to another locker.
Did he leave?
Eventually, yes.
Did you feel threatened at that point?
Yes, I did.
Okay, in what way?
I just felt that any time he would take a swing at me that I was in danger.
Did he take a swing at you?
No.

(Id. at 27).
Robinson also testified that while Plaintiff used profanity as much as everyone else at
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work, he did not use it more than others. (Robinson EEOC Dep. at 24)
Plaintiff was placed in Emergency Off-Duty Status on July 21, 2010. (Ex. 17 to Def.’s
Br.). The notice to Plaintiff informed Plaintiff that the Postal Service had placed him in off-duty
status without pay effective immediately because, based on his July 21, 2010 conduct “there is
reason to believe that retaining you on duty may result in injury to yourself and others.
Accordingly, your retention in a duty status would not have been in the best interest of the Postal
Service.” (Def.’s and Pl.’s Stmt. at ¶ 148).
Robinson requested that placement and Plumb approved it. (Def.’s and Pl.’s Stmt. at ¶
146). Robinson spoke to Plumb, the Postal Service Inspectors, and the Postal Service police,
about Plaintiff’s conduct on July 21, 2010. (Id. at ¶147).
Plaintiff presented to the Post Office for an investigative interview on July 26, 2010.
Also present were Robinson, the Livonia Postmaster (Tom Cappelli), the Ann Arbor VMF
supervisor (Greg Gorski) and union steward (Don Oziemski). (Id. at ¶149). Robinson asked
Plaintiff questions during this meeting. Robinson discussed with Plaintiff the Postal Service’s
Zero Tolerance Policy, and also Plaintiff’s prior discipline for his conduct at work. On August 5,
2010, the Postal Service issued to Plaintiff a Notice of Removal. Robinson signed the Notice of
Removal. Plumb, the acting manager of the Livonia VMF at the time, approved Plaintiff’s
removal as the reviewing authority. (Def.’s and Pl.’s Stmt. at ¶¶ 149-154).
Plaintiff and the Post Office proceeded to arbitration with respect to his removal. (Def.’s
and Pl.’s Stmt. at ¶ 192). On March 16, 2011, the arbitrator upheld the emergency off-duty
placement, but converted Plaintiff’s removal to a 14-day suspension. (Id. at ¶193). Plaintiff also
received “back pay from August 23, 2011 until March 23, 2011.” (Id. at ¶ 194). Plaintiff
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returned to work on March 23, 2011. (Id. at ¶ 195).
Plaintiff’s 2010 EEO Complaint And EEO Proceedings
While he was off duty, on August 23, 2010, Plaintiff filed an EEO complaint alleging
harassment based on race and retaliation. (Ex. 22 to Def.’s Br.).
During the EEO proceedings, Blackney testified that Ferguson had called Plaintiff a
“nigger” and “stupid nigger” a couple of times in the summer of 2010, but that Plaintiff did not
hear him say it. (Blackney EEO Dep. at 21-23). It is undisputed that Plaintiff learned, for the
first time through Blackney’s EEO testimony in 2012, that Ferguson had called Plaintiff a nigger
behind his back. Plaintiff testified that he does not know if anyone had told Robinson about that.
(Plaintiff’s Dep. at 53-55).
The EEOC issued a decision finding the Plaintiff was not discriminated against based on
his race or in retaliation for engaging in protected activity. (Ex. 23 to Def.’s Br.). Plaintiff was
ultimately provided a “Right to Sue” letter by the EEOC. Thereafter, Plaintiff filed this action.
Standard of Decision
Under Fed. R. Civ. P. 56(a), summary judgment is proper when 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.” “No genuine dispute as to any material fact exists where the record ‘taken as a
whole could not lead a rational trier of facts to find for the non-moving party.’” Shreve v.
Franklin County, Ohio, 743 F.3d 126, 132 (6th Cir. 2014) (citing Matsushita Elec. Indus., Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “Ultimately, the court evaluates ‘whether the
evidence presents a sufficient disagreement to require submission to the jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Shreve, supra (citing Anderson v.
15

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
On summary judgment, the Court views the facts and draws all inferences in the light
most favorable to the non-moving party. Id. Fed. R. Civ. P. 56(c)(1) provides:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A)

citing to particular parts of material in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or
other materials; or

(B)

showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).
ANALYSIS
Plaintiff alleges that Defendant subjected him to disparate treatment, retaliation, and a
hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. In its pending Motion for Summary Judgment, Defendant contends that it is
entitled to summary judgment as to all claims.
At the summary judgment stage, a plaintiff must adduce either direct or circumstantial
evidence to prevail on his discrimination claim. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.
2004).
Here, Plaintiff does not assert that his claims are supported by any direct evidence of
discrimination or retaliation. Rather, he seeks to proceed under the circumstantial evidence
approach.

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Under the circumstantial evidence approach, a plaintiff must show the existence of facts
which create an inference of discrimination under the familiar McDonnell Douglas burdenshifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once a
plaintiff establishes such a prima facie case, the burden then shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse action. If the employer articulates such a
reason, then the Plaintiff has the burden of showing that the articulated reason is in reality a
pretext to mask discrimination. Skrjanc v. Great Lkakes Power Service Co., 272 F.3d 309 (6th
Cir. 2001).
I.

Race Discrimination Claims Based On Disparate Treatment
In its motion, Defendant contends that it is entitled to summary judgment with respect to

Plaintiff’s race discrimination claims based on disparate treatment because: 1) Plaintiff cannot
establish a prima facie case of race discrimination based on disparate treatment; and 2) even if he
could do so, Plaintiff cannot show that Defendant’s legitimate, non-discriminatory reason for the
adverse actions taken is a pretext for discrimination.
A.

Prima Facie Case

The parties agree that in order to establish a prima facie case of race discrimination, a
plaintiff must establish that: 1) he is a member of a protected class; 2) an adverse employment
action was taken against him; and 3) similarly situated employees outside of plaintiff’s class were
treated more favorably. Mitchell v. Toledo Hosp., 964 F.2d 582, 583 (6th Cir. 1992).
There is no dispute that Plaintiff, an African-American, is a member of a protected class
and he can therefore meet the first element. There is, however, a dispute as to what adverse
actions occurred and whether similarly situated non-protected employees were treated more
17

favorably than Plaintiff. Defendant agrees that being placed in off-duty status is an adverse
action but it contends that the vehicle restriction does not constitute an adverse action.
1.

Adverse Employment Actions

Plaintiff contends that he “suffered two specific adverse employment actions: [1)] he was
restricted in the use of Postal Service vehicles and [2)] he was placed on off-duty status which
was converted to a removal and then reduced to a 14-day suspension following an EEO hearing.”
(Pl.’s Br. at 4). Only the first alleged adverse action is challenged because, for purposes of the
motion, Defendant “does not contest that the emergency off-duty placement and 14-day
suspension (reduced from a notice of removal through arbitration) qualify as adverse actions.”
(Def.’s Br. at 3).
Thus, the Court must determine whether Plaintiff being restricted in his use of Postal
Service vehicles constitutes an “adverse action” under Title VII.
“An adverse employment action has been defined as a “materially adverse change in the
terms and conditions of a plaintiff's employment.” White v. Burlington N. & Santa Fe Ry. Co.,
364 F.3d 789, 795 (6th Cir.2004) (en banc) (citation omitted). A “mere inconvenience or an
alteration of job responsibilities” is not enough to constitute an adverse employment action. Id. at
797 (citing Kocsis v. Multi–Care Mgmt. Inc., 97 F.3d 876, 885–87).” Deleon v. Kalamazoo
Cnty. Road Com’n, 739 F.3d 914, 918 (6th Cir. 2014). De minimis actions are not materially
adverse.
Rather, “[a]t a minimum, the employee must be able to show a quantitative or qualitative
change in the terms of the conditions of employment.” Deleon, 739 F.3d at 919. Thus, a change
in an employee’s working conditions “may constitute a materially adverse employment action,
18

even in the absence of a demotion or pay decrease, so long as the particular circumstances
presented give rise to some level of objective intolerability.” Id.
Viewing the evidence in a light most favorable to Plaintiff, the nature of the VOMA job
position is such that VOMAs are constantly out on the road throughout the work day, traveling to
and from various cities. VOMAs have always been able to stop and have lunch while driving a
Postal Service Vehicle, wherever they may be during the lunch hour. Robinson changed that
condition of Plaintiff’s employment when he told Plaintiff that he could no longer stop for lunch
when driving a Postal Service vehicle. By not being able to use the postal vehicle he is driving
during the course of the day to stop for lunch, Plaintiff would have to interrupt the course of his
work, every day, at lunch time – regardless of how far away he is – and return to his home office
in order to eat lunch. The Court concludes that a reasonable juror could conclude that change
would negatively impact Plaintiff’s ability to perform his job as a VOMA and that condition
would be objectively intolerable. The Court finds that Plaintiff has raised a genuine issue of
material fact as to whether the restriction at issue constitute an adverse action for purposes of
Plaintiff’s race discrimination claim.
2.

Can Plaintiff Establish That A Similarly Situated, Non-Protected
Employee Was Treated More Favorably?

In order to sustain his burden as to the third element, Plaintiff must demonstrate that a
comparable non-protected person was treated better than he was. Louzon v. Ford Motor Co., 718
F.3d 556, 563 (6th Cir. 2013). As explained by the Sixth Circuit:
A plaintiff need not demonstrate an exact correlation with the employee receiving
more favorable treatment for the two to be considered “similarly-situated.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998).
The plaintiff and the employees with whom the plaintiff seeks to compare himself
19

or herself must be similar in “all of the relevant aspects.” Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994). Factors to consider
include whether the individuals “dealt with the same supervisor, [were] subject to
the same standards and ... 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.” Mitchell v. Toledo Hosp., 964 F.2d 577,
583 (6th Cir.1992).
Arnold v. City of Columbus, 515 F. App’x 524, 532 (6th Cir. 2013).
a.

Vehicle Restriction

With respect to the first alleged adverse action taken by Defendant, the restriction on use
of Postal Service vehicles imposed on Plaintiff, the Court concludes that Plaintiff can establish
that a similarly-situated non-protected person was treated more favorably than he was.
Viewing the evidence in Plaintiff’s favor, Robinson told Plaintiff that he could no longer
drive a Postal Service vehicle to lunch. (Def.’s and Pl.’s Stmt. at ¶¶ 107 & 114). When
Robinson asked if that directive applied to all VOMAs, Robinson responded, “No, just you.”
(Pl.’s Dep. at 58-59). When Plaintiff asked Robinson, “Are you discriminating against me?”
Robinson responded, “If you want to call it that, yeah.” (Id.).
Robinson then told the other VOMAs that they could no longer use Postal Service
vehicles for lunch. (Def.’s Stmt. at ¶ 115).
Blackney, a white woman, was also employed as a VOMA and reported to Robinson.
Blackney testified that she spoke with Robinson after that directive to the VOMAs. (Blackney
EEO Dep., Ex. H to Pl.’s Br., at 223). Blackney testified that she told Robinson that there are
times when VOMAs are out on the road, shuttling vehicles back and forth, and they stop and
have lunch. (Id. at 223-224). Blackney told Robinson that they have always used their vehicles

20

for lunch. Robinson told Blackney he “did not have a problem with that,” and that “This is about
Dave Kea and, you know, stopping him.” (Id. at 224-26).
Thus, Blackney, a white employee, was treated more favorably. The Court therefore
concludes that, construing the evidence in the light most favorable to Plaintiff, he can establish a
prima facie case of disparate treatment based upon this alleged adverse action.
b.

Off-Duty Status

Plaintiff also seeks to establish a claim of disparate treatment based upon his being placed
on off-duty status.
Defendant first contends that Plaintiff should not be permitted to compare himself with:
1) VOMAs stationed at locations other than Plymouth (Def.’s Br. at 4); or 2) mechanics. (Def.’s
Br. at 5-6). Defendant also contends that Plaintiff cannot establish the third element because the
employees he seeks to compare himself with did not engage in conduct of “comparable
seriousness.” (Def.’s Br. at 6).
In situations where the number of employees in the same position as the plaintiff is small,
the “‘similarly situated’ requirement should not be applied narrowly.” Arnold, 515 F. App’x at
532. As to whether another employee is similarly situated to the plaintiff, the “court ‘should
make an independent determination as to the relevancy of a particular aspect of the plaintiff’s
employment status and that of the non-protected employee.’” Louzon, 718 F.3d at 563-64
(internal citation omitted).
Because the VOMAs stationed at other locations and mechanics worked in the same
general work environment and had the same supervisor (Robinson) and the positions would have
the same general work rules and standards, the Court concludes that Plaintiff should be allowed
21

to compare himself with VOMAs stationed at other locations and with mechanics who reported
to Robinson.
In his brief, Plaintiff did not specify the non-protected employee or employees who he
alleges engaged in comparable conduct but were treated more favorably.2 Rather, in the section
of his brief where he should identify the person or person he wishes to compare himself to, he
simply restates a long narrative about the facts surrounding the incident that led to his being
placed on off-duty status. (See Pl.’s Br. at 9-11). Plaintiff then makes the argument that
swearing was commonplace at the Livonia VMF. (Pl.’s Br. at 11). But Plaintiff was not placed
on off-duty status for merely using profanity at the workplace. Plaintiff swore at his direct
supervisor in a confrontational manner and then failed to leave the premises as directed by his
supervisor.
At the hearing, Plaintiff’s Counsel was asked to specify the non-protected employee or
employees who Plaintiff alleges engaged in comparable conduct but were treated more favorably
than Plaintiff. The only person Plaintiff’s Counsel identified at the hearing was Stroshein, who
he contends engaged in similar conduct in 2008. Stroshein’s alleged conduct in 2008, however,
does not involve comparable conduct. The 2008 incident involved one employee (Stroshein)
referring to a co-worker (Plaintiff) as stupid. It did not involve swearing at a supervisor in a
confrontational manner and then failing to leave the premises after having been directed to do so
by a supervisor.
2

Plaintiff’s brief does state, in the relevant portion of his brief, that “no other Livonia
VMF employee was disciplined at all for anything that happened on July 21, 2010” and that
“Robinson testified that he may have heard Ferguson use the term ‘motherfucker’” at some point
during his employment. But Ferguson, like Plaintiff, is African American and is therefore not
outside of the protected class.
22

Based on this Court’s review of the extensive facts presented in this case, the Court finds
that Plaintiff has failed to identify a similarly-situated non-protected employee who was treated
better than he was for comparable conduct. Accordingly, the Court concludes that Plaintiff
cannot establish a prima facie claim of disparate treatment based upon his being placed on offduty status.
B.

Can Plaintiff Establish That Defendant’s Legitimate, Non-Discriminatory
Reasons For Its Actions Are Pretextual?

Once a defendant articulates a legitimate non-discriminatory reason for the challenged
action, the plaintiff has the burden of showing that the articulated reason is in reality a pretext to
mask discrimination. Skrjanc v. Great Lkakes Power Service Co., 272 F.3d 309 (6th Cir. 2001).
A plaintiff can refute the legitimate, nondiscriminatory reason that an employer offers to
justify an adverse employment action by showing that the proffered reason: 1) had no basis in
fact; 2) did not actually motivate the defendant’s challenged conduct; or 3) was insufficient to
warrant the challenged conduct. Wexler v. White Fine Furniture, 317 F.3d 564, 576 (6th Cir.
2003); Manzer, 29 F.3d at 1084. The first type of showing consists of evidence that the proffered
bases for the termination never happened (i.e., that they are factually false). With respect to the
second kind of showing, “the plaintiff argues that the sheer weight of the circumstantial evidence
of discrimination makes it ‘more likely than not’ that the employer’s explanation is a pretext, or
coverup.” Id. The third showing consists of evidence that other employees, particularly those
not in the protected class, were not fired even though they engaged in similar conduct. Id.
Where, as here, a case is at the summary judgment stage, a plaintiff seeking to prove
illegal discrimination via indirect evidence must submit sufficient evidence from which a

23

reasonable jury could conclude that the defendant’s legitimate, nondiscriminatory reasons for its
actions are a pretext for unlawful discrimination. Vincent v. Brewer, 514 F.3d 489, 494 (6th Cir.
2007).
a.

Vehicle Restriction

Because Defendant’s Motion for Summary Judgment takes the position that the vehicle
restriction does not constitute an adverse action for purposes of Plaintiff’s disparate impact
claim, it does not articulate its alleged legitimate, non-discriminatory reason for that restriction
is. At the August 6, 2015 hearing, Counsel for Defendant offered, as the legitimate, nondiscriminatory reason for the challenged action, that there is no reason for an employee to use a
postal vehicle for personal reasons.
The Court concludes that Plaintiff has identified sufficient evidence from which a
reasonable juror could conclude that the defendant’s legitimate, nondiscriminatory reason for the
vehicle restriction imposed on Plaintiff is a pretext for discrimination.
Viewing the facts in Plaintiff’s favor, although the vehicle restriction ostensibly applied
to all VOMAs, Robinson told both Blackney and Plaintiff that it only applied to Plaintiff.
After Robinson told Plaintiff that he could no longer drive a Postal Service vehicle to
lunch Plaintiff asked if that directive applied to all VOMAs and Robinson responded, “No, just
you.” (Pl.’s Dep. at 58-59). When Plaintiff asked Robinson, “Are you discriminating against
me?” Robinson responded, “If you want to call it that, yeah.” (Id.).
Robinson then told the other VOMAs that they could no longer use Postal Service
vehicles for lunch. (Def.’s Stmt. at ¶ 115).
Blackney, a white woman, was also employed as a VOMA and reported to Robinson.
24

Blackney testified that she spoke with Robinson after that directive to the VOMAs. (Blackney
EEO Dep., Ex. H to Pl.’s Br., at 223). Blackney testified that she told Robinson that there are
times when VOMAs are out on the road, shuttling vehicles back and forth, and they stop and
have lunch. (Id. at 223-224). Blackney told Robinson that they have always used their vehicles
for lunch. Robinson told Blackney he “did not have a problem with that,” and that “This is about
Dave Kea and, you know, stopping him.” (Id. at 224-26).
Accordingly, Plaintiff’s disparate treatment claim based on the vehicle restriction will
proceed to trial.
b.

Off-Duty Status

As set forth above, as to his being placed on off-duty status, Plaintiff has not identified a
similarly-situated non-protected employee who engaged in comparable conduct but was treated
more favorably than he was. Unless he can do so, he cannot establish a prima facie case of race
discrimination with respect to his claim based on his being placed on off-duty status following
the July 21, 2010 incident and the Court need not examine whether Plaintiff can establish that
Defendant’s legitimate, non-discriminatory reason for the challenged action if pretextual.
II.

Retaliation
“Title VII prohibits discriminating against an employee because that employee has

engaged in conduct protected by Title VII. See 42 U.S.C. § 2000e–3(a).” Laster v. City of
Kalamazoo, 746 F.3d 714, 729 (6th Cir. 2014). As with a Title VII discrimination claim, a Title
VII retaliation claim can be established either via direct evidence or the circumstantial evidence
approach. Id. Again, Plaintiff seeks to proceed via the circumstantial evidence approach.

25

A.

Can Plaintiff Establish A Prima Facie Case Of Retaliation?

As the Sixth Circuit explained in Laster, the “elements of a retaliation claim are similar
but distinct from those of a discrimination claim:”
To establish a prima facie case of retaliation under Title VII, Plaintiff must
demonstrate that: “(1) he engaged in activity protected by Title VII; (2) his
exercise of such protected activity was known by the defendant; (3) thereafter, the
defendant took an action that was “materially adverse” to the plaintiff; and (4) a
causal connection existed between the protected activity and the materially
adverse action.” Jones v. Johanns, 264 Fed.Appx. 463, 466 (6th Cir.2007) (citing
Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir.2003), and
Burlington N., 548 U.S. at 67–68, 126 S.Ct. 2405 (modifying the third element to
require a “materially adverse action” rather than an “adverse employment
action”)).
Laster, 746 F.3d at 730. Alternatively, a Plaintiff can establish the third element “by showing
that he ‘was subjected to severe or pervasive retaliatory harassment3 by a supervisor.” Id.
“Title VII retaliation claims “must be proved according to traditional principles of but-for
causation,” which “requires proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).” Laster, 746 F.3d at
731.
Here, Defendant challenges the following aspects of Plaintiff’s retaliation claim: 1)
Plaintiff’s ability to satisfy the adverse action element with respect to Plaintiff being restricted as
to use of Postal Service vehicles; and 2) Plaintiff’s ability to establish that his protected activity
was the “but-for” cause of any of the challenged adverse actions. (Def.’s Br. at 13).

3

In this case, Plaintiff seeks to assert a separate hostile work environment claim based on
retaliation.
26

1.

Is Use Of Vehicle Restriction An Adverse Action For Purposes Of A
Retaliation Claim?

Plaintiff's burden of establishing a materially adverse employment action is “less
onerous” with respect to a retaliation claim than it is as to a discrimination claim:
Unlike a Title VII discrimination claim, “the antiretaliation provision does not
confine the actions and harms it forbids to those that are related to employment or
occur at the workplace.” Burlington N., 548 U.S. at 57, 126 S.Ct. 2405. To
establish the third element of the prima facie Title VII retaliation claim, “a
plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68, 126 S.Ct. 2405 (internal quotation marks and citations
omitted). In analyzing the significance of any given act of retaliation, “[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.’ ” Id. at 69, 126 S.Ct. 2405 (quoting Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81–82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). “A
supervisor's refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding an employee from a
weekly training lunch that contributes significantly to the employee’s professional
advancement might well deter a reasonable employee from complaining about
discrimination.” Id. at 82, 118 S.Ct. 998 (citing 2 EEOC 1998 Manual § 8, p.
8–14). “An act that would be immaterial in some situations is material in others.”
Id. (citation omitted). “This more liberal definition permits actions not materially
adverse for purposes of an anti-discrimination claim to qualify as such in the
retaliation context.” Michael, 496 F.3d at 596 (holding that placing employee on
brief paid administrative leave and 90–day performance plan meet “relatively low
bar” of materially adverse action for purpose of retaliation claim); see also
Halfacre v. Home Depot, U.S.A., Inc., 221 Fed.Appx. 424, 432 (6th Cir.2007)
(remanding for reconsideration, in light of Burlington Northern, whether
assigning the plaintiff a poor performance-evaluation score constituted an adverse
employment action for the purpose of setting forth a retaliation claim).
Laster, 746 F.3d at 731-32.
As explained above, the Court concludes that Plaintiff has created a genuine issue of fact
27

as to whether the vehicle restriction constitutes an adverse action for purposes of his disparatetreatment race-discrimination claim. Because Plaintiff's burden of establishing a materially
adverse employment action is “less onerous” with respect to his retaliation claim, he can also
establish that the vehicle restriction is an adverse action as to his retaliation claim. All he has to
establish is that a reasonable employee would have found the vehicle restriction materially
adverse such that it would deter them from complaining about discrimination in the future.
Plaintiff has done so.
2.

Can Plaintiff Establish “But-For” Causation?

Again, “Title VII retaliation claims require proof that the desire to retaliate was the butfor cause of the challenged employment action.” Nassar, 133 S.Ct. at 2528. Accordingly, even
if the vehicle use restriction is an adverse action for purposes of a Title VII retaliation claim,
Plaintiff still has to establish that his protected activity was the but-for cause of that action being
taken by Robinson.
Plaintiff claims that his support of Guevara’s EEO complaint is the protected activity that
caused Robinson to restrict his use of Postal Service Vehicles. (Pl.’s Br. at 13). That means that
Plaintiff must present evidence from which a reasonable jury could find that Robinson would not
have so restricted Plaintiff if he had not supported Guevara’s complaint.
Plaintiff asserts that the close temporal proximity between Plaintiff’s support of Guevara
and Robinson imposing the restriction, along with other facts such as that he and other VOMAs
frequently used Postal Service vehicles to go to lunch, is sufficient to establish causation. (Id.).
The Court agrees that Plaintiff has submitted enough evidence to create a genuine issue of
fact as to causation. First, the restriction was imposed by Robinson about a month after Plaintiff
28

had submitted a letter supporting Guevara’s EEO complaint and making negative statements
about Robinson. So there is a fairly close temporal proximity, but standing alone, that would not
be enough.
“Although temporal proximity can be sufficient to constitute evidence where an adverse
employment action occurs close in time after the employer learns of a protected activity, Montell
v. Diversified Clinical Servs., Inc., 757 F.3d 497, 505 (6th Cir.2014), when more time elapses
between the employer learning of the plaintiff's protected activity and the subsequent adverse
employment action, the employee must produce additional evidence of retaliatory motive.”
Greene v. U.S. Dept. of Veterans Affairs, __ F. App’x __, 2015 WL 1296203 at * 3 (6th Cir.
2015). Given the roughly one-month gap in time, Plaintiff must produce additional evidence of
retaliatory motive. And he has done so.
Viewing the facts in Plaintiff’s favor, Robinson told Plaintiff that he could no longer
drive a Postal Service vehicle to lunch. (Def.’s and Pl.’s Stmt. at ¶¶ 107 & 114). When
Robinson asked if that directive applied to all VOMAs, Robinson responded, “No, just you.”
(Pl.’s Dep. at 58-59). When Plaintiff asked Robinson, “Are you discriminating against me?”
Robinson responded, “If you want to call it that, yeah.” (Id.).
Robinson then told the other VOMAs that they could no longer use Postal Service
vehicles for lunch. (Def.’s Stmt. at ¶ 115). But when another VOMA told Robinson that there
are times when VOMAs are out on the road, shuttling vehicles back and forth, and they stop and
have lunch, Robinson told her he “did not have a problem with that” and that “This is about Dave
Kea and, you know, stopping him.” (Blackney Dep. at 224-26).

29

B.

If So, Can Plaintiff Establish That Defendant’s Legitimate, NonDiscriminatory Reasons For Its Actions Are Pretextual?

As explained in Section I.B. of this Opinion & Order, the Court also concludes that
Plaintiff has identified sufficient evidence from which a reasonable juror could conclude that the
defendant’s legitimate, nondiscriminatory reason for the vehicle restriction imposed on Plaintiff
is a pretext for retaliation.
III.

Hostile Work Environment Claim
Although Plaintiff’s Complaint does not contain a separate count titled hostile work

environment, Defendant notes that the complaint does make references to a hostile work
environment. (Def.’s Br. at 18 n.4). Moreover, from the parties’ briefs, Plaintiff seeks to assert
two different hostile work environment claims: 1) a hostile work environment based on race; and
2) a hostile work environment based upon retaliation.
A.

Hostile Work Environment Claim Based On Race

To survive a motion for summary judgment on a hostile work environment claim that is
based upon race, a plaintiff must establish: 1) the plaintiff was a member of a protected class, 2)
the plaintiff was subjected to unwelcome harassment based on race, 3) the harassment had the
effect of unreasonably interfering with his work performance and creating an objectively
intimidating, hostile, or offensive work environment, and 4) there exists some basis for liability
on the part of the employer. Owhor v. St. John Health-Providence Hosp., 503 F. App’x 307, 312
(6th Cir. 2012) (Citing Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir.
2009)).
“Plaintiffs may show race-based harassment with either ‘(1) direct evidence of the use of

30

race-specific and derogatory terms or (2) comparative evidence about how the alleged harasser
treated members of both races in a mixed-race workplace.’” Wade v. Automation Personnel Svs.,
Inc., __ F. App’x __, 2015 WL 2214650 (6th Cir. 2015) (quoting Williams v. CSX Transp. Co.,
Inc., 643 F.3d 502, 511 (6th Cir.2011)).
“The third element requires a plaintiff to show that the workplace was permeated with
harassment that was ‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’ Harris v. Forklift Sys., Inc., 510 U.S.
17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).” Owhor, supra. The Sixth Circuit has explained
that:
Regarding the third element, our standard is that the conduct must be
“severe or pervasive enough to create an environment that a reasonable person
would find hostile or abusive and the victim must subjectively regard that
environment as abusive.” Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th
Cir.2000). Some factors we consider include: “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with the employee's
work performance.” Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). A “work
environment viewed as a whole may satisfy the legal definition of an abusive
work environment ... even though no single episode crosses the Title VII
threshold.” Williams v. General Motors Corp., 187 F.3d 553, 564 (6th Cir.1999)
(quotation omitted).
Warf v. U.S. Dept. of Veterans Affairs, 713 F.3d 874, 878 (6th Cir. 2013).
To determine whether a work environment is “hostile” or “abusive,” the Court looks at
the totality of the circumstances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126
L.Ed.2d 295 (1993).
The Sixth Circuit has held that, under the totality of the circumstances test, an “employer
may create a hostile environment for an employee even where it directs its discriminatory acts or
31

practices at the group of which the plaintiff is a member, and not just at the plaintiff herself.”
Jackson v. Quantex Corp., 191 F.3d 647, 661 (6th Cir. 1999). Thus, incidents of racial
harassment in the workplace can be considered even if the acts were not directed at the plaintiff,
or the plaintiff did not personally witness them but was aware of them. Jackson, supra at 661
(explaining that “[w]e have credited evidence of racial harassment directed at someone other than
the plaintiff when the plaintiff knew that a derogatory term had been used” and “racial epithets
need not be hurled at the plaintiff in order to contribute to a work environment that was hostile to
her.”). In other words, a “plaintiff does not need to be the target of, or a witness to harassment in
order for” the court to “consider that harassment in the totality of the circumstances; but he does
need to know about it.” Berryman v. Supervalu Holdings, Inc., 669 F.3d 714, 718 (6th Cir.
2012); see also Nicholson v. City of Clarksville, Tennessee, 530 F. A’ppx 434, 442 (6th Cir.
2013) (emphasis added).
“If the plaintiff can show that a hostile work environment existed, she must then prove
that her employer ‘tolerated or condoned the situation’ or ‘that the employer knew or should have
known of the alleged conduct and failed to make prompt remedial action.’” Jackson v. Quantex
Corp., 191 F.3d 647, 659 (6th Cir. 1999) (citing Davis v. Monsanto Chem. Co., 858 F.2d 345,
349 (6th Cir. 1988))
In its Motion for Summary Judgment, Defendant contends that Plaintiff cannot establish a
hostile work environment claim based on race for several reasons, including that: 1) most of the
incidents Plaintiff complains of did not involve race; 2) Plaintiff testified that Robinson removed
the gorilla picture from the bulletin board after Plaintiff complained about it; 3) although there is
testimony that Ferguson called Plaintiff a nigger behind his back, Plaintiff only became aware of
32

that at the EEOC hearing; 4) complaints about general profanity not involving race do not
establish a hostile work environment based on race; and 5) under the totality of the
circumstances, Plaintiff cannot establish severe or pervasive harassment based on race.
Defendant also asserts that Plaintiff’s hostile work environment claim fails because the
evidence establishes that on the occasions when Plaintiff complained to Robinson about his coworkers’ conduct, Robinson investigated the claims. Thus, Defendant argues that Plaintiff
cannot establish that his employer tolerated or condoned harassment or knew or should have
known of the harassment but failed to take action.
In response, Plaintiff contends that he can establish a hostile work environment based on
race. His brief (pages 18-21) identifies the following incidents as the evidence that can establish
a hostile work environment based on race:

•

In May of 2008, when Plaintiff first started as a VOMA in Plymouth, he claims that: 1) an
employee would not give him keys that he needed and it took management a week to find
them; 2) some employees suggested it was Plaintiff’s job to clean their windows; and 3)
someone took tools out of the truck Plaintiff drove, which were replaced after Plaintiff
advised Robinson.

•

In “mid-2008, a gorilla picture was posted on the bulletin board in the hallway leading to
the lunchroom and stayed up for at least a year. The gorilla picture,” which he states is
attached to his Affidavit, “depicts a gorilla scratching his head, with the caption ‘Stupid
Mother Fucker.” Plaintiff’s Affidavit states that he found that picture highly offensive.
Plaintiff perceived that picture to suggest that African-Americans are stupid gorillas.
Plaintiff states that he complained to Robinson about the picture “but it was not removed
right away.” (Pl.’s Aff. at 2).

•

In 2010, there was another offensive picture posted in the Livonia VMF. Postal
Employee Paul Guevara signed an Affidavit stating that there “was a chimpanzee cartoon
posted on the stockroom wall at the Livonia VMF which had the caption, ‘You can’t fix
stupid.’ It was posted sometime in 2010 and remained up for several months at least.”
(Guevara Aff., Ex. J to Pl.’s Br., at ¶ 2). A copy of the cartoon is attached to Guevara’s
33

Affidavit. Plaintiff’s affidavit states that there was a “chimpanzee cartoon posted on the
lunch room wall at the Livonia VMF which had the caption ‘You Just can’t fix stupid.’”
(Pl.’s Aff. at ¶ 4). Plaintiff states that he “used the lunch room every day and had to pass
by the picture every time.” (Id. at ¶ 5).
•

Plaintiff perceived the word “stupid” as “a code word for “Nigger.’” (Pl.’s Aff.).

•

Plaintiff testified that his co-worker Stroshein called him stupid on several occasions.
(Pl.’s Dep. at 41).

•

Guevara states that, on several occasions he heard Stroshein call Plaintiff “stupid” to
Plaintiff’s face and behind Plaintiff’s back.

•

Blackney testified that Ferguson (who is African-American) had called Plaintiff a
“nigger” and “stupid nigger” a couple of times in the summer of 2010, but that Plaintiff
did not hear him say it. (Blackney Dep. at 21-23).

•

Plaintiff learned, for the first time through Blackney’s EEOC testimony in 2012, that
Ferguson had called Plaintiff a nigger behind Plaintiff’s back.
The Court must determine whether this evidence, construed in the light most favorable to

Plaintiff, is sufficient to establish a hostile work environment claim based upon race.
Plaintiff began his employment with the Postal Service in 1984 and asserted his hostile
work environment claim in 2010. Thus, he had been employed by the Postal Service for over
twenty years when he asserted his claim. But his hostile work environment claim appears to be
focused on the time period during which he was employed as a VOMA, which began in 2008.
(See Pl.’s Br. at 23, stating Plaintiff’s work environment was hostile and racially based and it
“started” in 2008). Thus, the period at issue is approximately three years. Plaintiff does not
claim that any physically-threatening incidents occurred during that period, or at any time during
his employment.
As to the alleged harassment right after he became a VOMA, Plaintiff complains that: 1)
34

an employee would not give him keys that he needed and it took management a week to find
them; 2) some employees suggested it was Plaintiff’s job to clean their windows; and 3) someone
took tools out of the truck Plaintiff drove, which were replaced after Plaintiff advised Robinson.
None of those incidents, however, evidence racial animus. Moreover, Plaintiff acknowledges
that management responded to those incidents by finding the keys and replacing the tools.
With respect to Ferguson’s alleged use of racial epithets behind Plaintiff’s back on a few
occasions in 2010, that evidence does not support Plaintiff’s hostile work environment claim
because Plaintiff never knew about it until Blackney testified in the EEO action. While a
plaintiff does not need to witness harassment in order for the court to consider it as part of the
totality of the circumstances, the plaintiff “does need to know about it.” Berryman v. Supervalu
Holdings, Inc., 669 F.3d 714, 718 (6th Cir. 2012); see also Nicholson v. City of Clarksville,
Tennessee, 530 F. A’ppx 434, 442 (6th Cir. 2013). Here, it is undisputed that Plaintiff did not
know about Ferguson’s alleged use of racial epithets. In addition, there is no evidence in the
record that anyone ever reported Ferguson’s use of racial epithets to management.
That leaves the gorilla picture in 2008, the monkey cartoon in 2010, and Stroshein calling
Plaintiff stupid on several occasions during the three-year period at issue.
In mid-2008, a picture of a gorilla, on which someone wrote “dumb mother-fucker” or
“stupid mother-fucker” was put up on a bulletin board in the hallway leading to the lunchroom.
There is no evidence in the record to indicate that the picture or caption were directed at Plaintiff
and Plaintiff does not claim otherwise. Plaintiff’s Affidavit states that he perceived the picture as
suggesting that African-Americans are stupid gorillas and that a reasonable juror could so find.
Although Plaintiff testified that Robinson took the picture down after he complained, he states it
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was “not removed right away.” Robinson’s Affidavit does not state how long it took Robinson
to take the picture down after he complained. Nevertheless, given the nature of the picture and
its caption, and the length of time it remained on the bulletin board, the Court believes that a
reasonable juror could conclude that management knew or should have known about it and failed
to promptly take it down.
Some two years later, in 2010, there was another posting in the workplace at the Livonia
VMF that Plaintiff found offensive. Guevara’s Affidavit states that there “was a chimpanzee
cartoon posted on the stockroom wall at the Livonia VMF which had the caption, ‘You can’t fix
stupid.’ It was posted sometime in 2010 and remained up for several months at least.” (Guevara
Aff., Ex. J to Pl.’s Br., at ¶ 2). Plaintiff’s affidavit states that there was a “chimpanzee cartoon
posted on the lunch room wall at the Livonia VMF which had the caption ‘You Just can’t fix
stupid.’” (Pl.’s Aff. at ¶ 4). Plaintiff states that he “used the lunch room every day and had to
pass by the picture every time.” (Id. at ¶ 5). There is no evidence in the record that the cartoon
was directed at Plaintiff and Plaintiff does not claim otherwise. There is no evidence in the
record that anyone complained to management about the cartoon.
Finally, we have Plaintiff’s co-worker calling Plaintiff “stupid” several times over a
three-year period. Because “Title VII does not set forth a general civility code for the American
workplace,” and calling someone stupid has no obvious racial overtones, this would not normally
be considered in connection with a hostile work environment claim based upon race.
Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 69 (2006). In the context of this case, however,
the Court concludes that a reasonable juror could possibly believe Plaintiff that Stroshein used
the word “stupid” as a code word for “nigger,” given the above offensive picture and cartoon that
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had been posted in the workplace. But there is no evidence in the record that Plaintiff ever
complained to management that stupid was being used as a code word for a racial epithet, and on
the one occasion on which Plaintiff did complain to management about being referred to as
stupid by Stroshein, Robinson reprimanded Stroshein.
Looking at the totality of the circumstances, the Court concludes that the present
circumstances are comparable to those in which the Sixth Circuit has found workplace conduct to
be merely offensive and not sufficiently severe or pervasive enough to be cognizable under Title
VII. See, e.g.. Smith v. Leggett Wire Co., 220 F.3d 752, 760-61 (6th Cir. 2000) (incidents
including one racial slur directed at plaintiff, racially offensive and obscene cartoon circulated in
workplace, and African-American employee referred to as “gorilla” were deemed not severe or
pervasive enough to constitute objectively hostile work environment.).
Accordingly, Defendant is entitled to summary judgment with respect to Plaintiff’s
hostile work environment claim that is based upon race.
B.

Hostile Work Environment Claim Based On Retaliation

In its Motion for Summary Judgment, Defendant contends that Plaintiff’s hostile work
environment claim based on retaliation claim fails because Plaintiff cannot establish that he was
subject to a hostile work environment because of his prior protected activities. (Def.’s Br. at 21).
Plaintiff disagrees. (See Pl.’s Br. at 21-22).
“To prevail on a Title VII claim of retaliatory hostile work environment a plaintiff must
show that (1) she engaged in activity protected under Title VII; (2) the defendant was aware that
the plaintiff engaged in the protected activity; (3) the plaintiff suffered ‘severe or pervasive
retaliatory harassment by a supervisor; and (4) there was a causal connection between the
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protected activity and the . . . harassment.’” Cleveland v. Southern Disposal Waste Connections,
491 F. App’x 698, 707 (6th Cir. 2012) (quoting Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d
784, 793 (6th Cir. 2000)).
It is undisputed that Plaintiff has engaged in protected activity under Title VII and
Defendant was aware of that activity. But Plaintiff also has to show the third and fourth
elements: 3) that he suffered “severe or pervasive retaliatory harassment by a supervisor”; and 4)
a causal connection between the protected activity and the retaliatory harassment.
In the limited portion of Plaintiff’s response brief wherein he discusses this claim,
Plaintiff appears to allege that the perceived harassment came from Ferguson and Stroshein. As
Plaintiff’s Counsel acknowledged at the hearing, however, neither Ferguson nor Stroshein were
Plaintiff’s supervisors. Rather, they were Plaintiff’s co-workers.
At the hearing, Plaintiff’s Counsel stated that the alleged retaliatory harassment came
from Robinson, not Ferguson or Stroshein. In support of Plaintiff’s argument that he
experienced a hostile work environment based on retaliation, Plaintiff’s counsel directed the
Court to just two events: 1) Robinson’s investigation concerning the firewood in 2010; and 2)
Robinson having placed Plaintiff on off-duty status in 2010.
The Court concludes that Plaintiff has not adduced sufficient evidence from which a
reasonable juror could find “severe or pervasive retaliatory harassment by a supervisor.”
Accordingly, the Court shall grant summary judgment in favor of Defendant as to Plaintiff’s
hostile work environment claim that is based on retaliation.
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Defendant’s Motion for Summary
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Judgment is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED to the
extent that Defendant is entitled to summary judgment in its favor with respect to the following
claims: 1) Plaintiff’s disparate-treatment race-discrimination claim based upon being placed on
off-duty status in 2010; and 2) Plaintiff’s hostile work environment claims based on race and
retaliation. The Motion is DENIED in all other respects.
As such, the following claims shall proceed to trial: 1) Plaintiff’s disparate-treatment
race-discrimination claim based upon the vehicle restriction; and 2) Plaintiff’s retaliation claim
based upon the vehicle restriction.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: August 13, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of record on
August 13, 2015, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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