Williams v. Liberty Park of America et al

Filing 23

OPINION AND ORDER granting 18 defendants' Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEANO WILLIAMS,
Plaintiff,
Case No. 16-CV-10940
vs.
HON. GEORGE CARAM STEEH
LIBERTY PARK OF AMERICA,
THE DUGOUT and MARY ZOLNO,
Defendants.
_____________________________/

OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DOC. 18]
Plaintiff Deano Williams filed this civil rights case against his
employer under Title VII of the Civil Rights Act of 1964 and the Michigan
Elliot-Larsen Civil Rights Act. His complaint alleges racial discrimination,
harassment and retaliation by defendants Liberty Park of America, the
Dugout and Mary Zolno. The matter is before the court on defendants’
motion for summary judgment. For the reasons stated below, defendants’
motion for summary judgment is GRANTED.

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FACTUAL BACKGROUND
Deano Williams is an African American man who was hired to work
as a security guard for Liberty Park of America, an outdoor baseball and
softball facility. Williams was hired as a short-term seasonal employee to
work outside security at the venue. Work schedules were posted one week
in advance. When he applied for the position, Williams committed to being
available to work full-time.
When he was hired, Williams was provided with Liberty’s Hourly
Employee Information Guide (the “Handbook”). The Handbook informs
employees that excessive absenteeism is grounds for immediate
termination. (Handbook at 5-6). The Handbook allows 3 absences a year,
even with a phone call, before termination can occur. The Handbook also
provides the employer’s policy regarding discrimination and sets forth the
procedure employees should follow if they feel they have been
discriminated against. (Handbook at 2-4).
… Consequently, if you feel discriminated against or harassed
(sexually or otherwise) by someone who is not a Liberty Park
employee, but with whom you must interact as part of your
duties and responsibilities, you should immediately report your
concerns in accordance with the complaint procedure described
below. . . . .
If you believe you may have been discriminated against or
harassed in violation of Liberty Park’s Policy on Equal
Employment Opportunity, you should report your concerns
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immediately to your supervisor, any other manager or
supervisor, or a Vice President. . . .
If you are not entirely satisfied with how your complaint and/or
concerns have been handled, please notify, in writing, as soon
as possible, Liberty Park’s attorneys … so that the matter can
be investigated….
(Handbook at 3-4). The Handbook identifies Mary Zolno as Vice President
and the only staff member that can authorize any change or deviation from
the listed policies. (Handbook at 7).
During his employment, which began April 11, 2014 and ended on
October 9, 2014, Williams called in absent eight times. In the last month
before his termination alone he called in four times. Williams was
purportedly terminated for excessive absenteeism. The decision to
terminate Williams was made by Dave Furman, who was the Chief of
Security and is Caucasian. (Dave Furman Aff).
After his termination, Williams met with Mary Zolno. He explained
that he had endured racial discrimination and harassment by patrons and
she offered him his job back. According to Williams, he told Zolno he
would consider returning to his job and was given a start date, but
ultimately he did not accept the position because he did not want to return
to an environment that caused him so much stress. According to Zolno,
she told Williams that any further call offs on his part would require
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documentation or lead to termination, and Williams agreed that was fair
and was placed on the schedule. After he did not report for work, nor call
off, on his first two scheduled days, he was considered to have voluntarily
quit.
Williams contends that throughout his employment at Liberty Park he
was subjected to racial slurs and threats by patrons. In his job as a
security guard, Williams occasionally had to eject drunk, unruly patrons
from the ballpark. On June 17, 2014, Williams was escorting a patron to
the parking lot when the patron made a racial epithet toward him and told
him, “I have some hollow points for your ass,” which he considered to be a
threat on his life. Williams told his manager, Dave Smigiel, about the
incident and contends that he asked Smigiel to call the police. Williams
provided a written report of the incident to Smigiel. (Id. at 46). According
to Williams, Smigiel did not call the police and told Williams to report back
to his post. (Williams dep. 46-47). Smigiel did call the player and his team
manager, and suspended the player from the park for the rest of the
season.
Williams made a police report about the June threat on his life on
October 19, 2014, four months after the incident, and after he stopped
working at Liberty Park. He alleges that the reason he delayed making the
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police report was because he was not able to obtain the name of the
perpetrator who threatened to kill him until that time.
Plaintiff refers to one other incident, which occurred in July of 2014
while plaintiff was escorting an intoxicated white player out of the park
because he was involved in a fight. The player made racist comments to
plaintiff, which were allegedly heard by his manager, Dave Furman.
According to plaintiff, Furman told him not to worry, it happens all the time,
and he will take care of it. (Williams dep. p. 60).
Williams filed a complaint with the EEOC and Michigan Civil Rights
Department on February 27, 2015. He was issued a Right to Sue Letter on
December 29, 2015.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." See Redding v. St.
Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has
affirmed the court's use of summary judgment as an integral part of the fair
and efficient administration of justice. The procedure is not a disfavored
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procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir.
1995).
The standard for determining whether summary judgment is
appropriate 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.'" Amway Distributors Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he
mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original);
see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907
(6th Cir. 2001).
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
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judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations
or denials in the non-movant's pleadings will not meet this burden, nor will
a mere scintilla of evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
ANALYSIS
I. Racial Discrimination
To establish a prima facie case of employment discrimination based
on race a plaintiff must present circumstantial evidence demonstrating: (1)
that the plaintiff is a member of a protected class; (2) that the plaintiff was
qualified for the position; (3) that the defendant subjected the plaintiff to an
adverse employment action; and (4) that the defendant did not subject
similarly situated persons outside the protected class to such adverse
action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct.
2742, 125 L. Ed. 2d 407 (1993); McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).
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Plaintiff was a member of a protected class and he was qualified for
his position. The question is whether plaintiff was subjected to an adverse
employment action and whether similarly situated persons outside the
protected class were treated differently.
An obvious adverse employment action is that plaintiff was
terminated after he was absent from work on eight occasions. Despite the
fact that during the 2014 season, Liberty Park employed six African
Americans and seven Caucasians in security positions, plaintiff does not
point to any Caucasian employees who had a similar number of absences
but were not terminated. Instead, plaintiff argues that Casey, a Caucasian
employee, was not subjected to racial epithets by patrons. Plaintiff also
asserts that Casey was promoted from security guard to bartender, while
plaintiff was not.
The court observes that the nature of the security guard position
brings on hostility by patrons who are being ejected from the park. None of
plaintiff’s co-employees were deposed in this case, so we do not know if
Casey or any of the other security guards were also subjected to
derogatory remarks by patrons.
Plaintiff has asserted several theories to support his claim of racial
discrimination, none of which survive defendants’ motion for summary
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judgment. If the alleged adverse employment action was plaintiff’s
termination, plaintiff has failed to come forth with any admissible evidence
that similarly situated Caucasian security guards with an excess of
absences were treated differently. If the alleged adverse employment
action was being subjected to a hostile work environment, plaintiff has
failed to produce any evidence that Caucasian security guards were not
likewise subjected to racial epithets. (See next section on Racial
Harassment) If the alleged adverse employment action was a failure to
promote plaintiff to bartender because of his race, there has been no
evidence produced regarding the qualifications of plaintiff or Casey for the
position of bartender.
Simply stated, plaintiff bears the burden of establishing the elements
of his prima facie case, and in this case plaintiff has failed to support his
claim of racial discrimination with admissible evidence. Summary judgment
is granted to defendants on plaintiff’s claim of racial discrimination.
II. Racial Harassment
To establish a prima facie case of racial discrimination based on a
hostile work environment, a plaintiff must show that: (1) the plaintiff was a
member of a protected class; (2) the plaintiff was subjected to unwelcome
harassment; (3) the harassment was based on race, (4) the harassment
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was sufficiently severe or pervasive to alter the conditions of employment
and create an environment that was intimidating, hostile, or offensive; and
(5) the employer knew or should have known about the harassing conduct
but failed to take corrective action. Williams v. CSX Transp. Co., Inc., 643
F.3d 502, 511 (6th Cir. 2011). All of the circumstances must be looked at in
order to determine whether an environment is hostile or abusive for
purposes of the fourth element. Id. In contrast, the third element limits the
scope of the analysis to harassment based only on the plaintiff’s race. Id.
An employer may be held liable for harassment by nonemployees if
the employer tolerates a discriminatory environment and fails to take steps
to remedy known discrimination. See e.g., Slayton v. Ohio Dep’t of Youth
Servs., 206 F.3d 669 (6th Cir. 2000) (prison could be held liable for hostile
work environment created by prison inmates). In Slayton, the instigator of
harassment was a co-worker of the plaintiff. In this case, the only racebased harassment described by plaintiff consists of comments made to him
by two ejected players. The court must look at defendants’ conduct in
responding to the incidents to determine if they permitted or tolerated a
discriminatory environment that rose to the level of harassment.
There is no allegation that the defendants in this case created a
hostile work environment. In fact, in his deposition, plaintiff testified that
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none of his managers made any racially discriminatory comments to him or
about him while he was employed with defendants. (Williams dep. at 6364). Rather, plaintiff complains that defendants tolerated a racially hostile
work environment by not sending an email to the teams and players
regarding racial sensitivity. Plaintiff also makes the allegation that his
“employer was known throughout the community as a hotbed for racism.”
(Response at # 10). This allegation is not supported by any evidence.
Plaintiff was employed for six months as an outside security guard.
He describes two incidents of being subjected to racial slurs by patrons.
The first incident described by plaintiff was the June incident, which
involved the threat on plaintiff’s life. Following the incident, plaintiff’s
manager ejected the offending player for the rest of the season. Plaintiff
never found out what happened after he ejected the player during the
second incident, in July of 2014.
Again, the incidents described by plaintiff make it clear that it is not
unusual for people to be angry when they are ejected from the park, and for
them to take their anger out on the security guard who ejects them.
However, there is insufficient evidence to conclude that the harassment
complained of created an intimidating, hostile, or offensive work

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environment of which defendant was or should have been aware and failed
to take corrective action.
Defendants have a policy to address what an employee should do if
he feels he has been discriminated against or harassed, including directing
the employee to contact defendants’ lawyers. Plaintiff did not complain to
anyone that he was dissatisfied with the investigations into the ejected
players. He complains that nobody reported the results of the
investigations to him, and for that reason assumes that the matters were
not handled properly.
In fact, defendants did address the issue of the player who
threatened plaintiff by telling both the player and his team manager that he
was no longer allowed in the park. Plaintiff has not submitted any other
evidence of a racially discriminatory culture within defendants’ company.
Plaintiff argues that a company may be held liable for hostile work
environment harassment even where no employee has complained if the
employer had constructive knowledge of the harassment. Jackson v.
Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999). In Jackson, the court
found that a hostile work environment was created by a supervisor with
immediate authority over the employee. There is no similar evidence in this

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case of a supervisor who was perpetuating, or even tolerating, a racially
hostile work environment.
In fact, the opposite can be said to be true. Whenever a patron was
unruly, he would be ejected from the park. On occasion it was plaintiff’s job
to carry out the ejection, which put him in the position to be the target of
their anger and frustration. All of the evidence points to the fact that the
managers conducted some level of investigation into the incidents that
resulted in the ejections. In the case of the June incident, defendants
banned the patron from the park for the rest of the season. While it is
unclear what happened after the July incident, plaintiff did not lodge any
official complaints about the racial harassment he was subjected to after
either of the two incidents.
As far as the defendants were concerned, they handled the incidents
and were not made aware that there were any other issues that needed to
be addressed. Plaintiff did not invoke the complaint procedure set up by
defendants to be utilized when an employee feels he has been a subject of
discrimination or harassment. The court finds that plaintiff has failed to set
forth a prima facie case of racial harassment. Summary judgment is
granted to defendants on plaintiff’s claim of racial harassment.

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III. Retaliation
Plaintiff argues that he has presented direct evidence of
discrimination, so the McDonnell Douglas burden shifting paradigm does
not apply to his retaliation claim. However, there is no direct evidence of
discrimination by or at the direction of defendants.
To make out a prima facie case of retaliatory discharge, the plaintiff
must prove that (1) he engaged in protected activity, (2) the employer knew
about the activity, (3) the employer took action that was adverse to the
plaintiff, and (4) there was a causal connection between the protected
activity and the adverse employment action.
Mr. Williams alleges that he engaged in the protected activity of
complaining about the harassing behavior of the park’s patrons. He argues
that defendants did not address his complaints, which makes them liable
for the hostile work environment that existed. It is not clear what
complaints Mr. Williams is talking about in this regard. He filed reports
following the two incidents, but these were reports about the incidents
involving the ejected patrons and not complaints about racial harassment
on the part of defendants. Neither party produced any complaints made by
Mr. Williams about racial harassment by his employer.

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Plaintiff did not file his police report until after he was terminated
and/or quit his employment. Therefore, the police report cannot form the
basis of a retaliation claim.
With no evidence to support a prima facie case of retaliatory
discharge, summary judgment is granted for defendants.
CONCLUSION
For the reasons stated above, defendants’ motion for summary
judgment is GRANTED.
Dated: July 18, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 18, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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