Despot v. American Income Life Insurance Company et al
Filing
36
ORDER granting 26 Defendants' Motion for Summary Judgment. Plaintiff's complaint is dismissed with prejudice. Signed by Judge Sandra S Beckwith on 7/30/12. (mb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
David Despot,
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Plaintiff,
vs.
American Income Life Insurance
Company and Torchmark
Corporation,
Defendants.
Case No.1:10-cv-932
ORDER
Before the Court is the joint motion of Defendants American
Income Life Insurance Company and Torchmark Corporation for
summary judgment. (Doc. 26) Plaintiff has filed his opposition
(Doc. 34), and Defendants have replied.
(Doc. 35)
For the
following reasons, Defendants’ motion will be granted.
FACTUAL BACKGROUND
Plaintiff David Despot, proceeding pro se, alleges a panoply
of claims for discrimination and retaliation under federal and
state law, arising from the termination of his employment with
American Income Life Insurance Company (“AIL”).
(Torchmark
Corporation is AIL’s parent company, and they will be referred to
collectively as AIL.)
Despot was employed by AIL as a Regional Director of Sales
from August 2007 through October 30, 2009.
(Doc. 26, Ex. 2,
Affidavit of Debra K. Gamble at ¶2; Doc. 28, Despot Depo. at 24.)
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As a regional director, Despot was in charge of overseeing
recruitment, sales and leadership development for various state
insurance agencies that were
owned and operated by independent
insurance agents who entered into contracts with AIL to sell
insurance.
Despot would typically work from an agency office
during the first part of the week, and then work from home on
Friday.
He attended monthly company director meetings held in
Texas which began on Monday morning.
Through the course of his employment, Despot reported from
time to time about what he alleged to be AIL’s failure to
accommodate his religious belief that he should not be required
to travel for work on Sundays.
(Despot Depo. at 19, 76, 78-84)
Despot admitted that he never refused to travel on Sundays when
he needed to do so, and was never disciplined for refusing to
travel on a Sunday.
Id. at 74, 97.
He also complained to
company management about certain practices and policies that he
considered to be sexually discriminatory to women.
219; 226, 228-34.
Id. at 213-
On one occasion, he said he was required to
attend a strip club with other male employees during an out of
town business trip, and that female employees were not allowed to
attend.
He complained that a company policy of not permitting
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“ride-alongs”1 between male Regional Directors and female sales
agents was discriminatory because it deprived female agents of
training opportunities.
Id. at 226, 228-34.
On October 27, 2009, Despot met with Brian Mitchell and
Debra Gamble, the general counsel and senior vice president,
respectively, for AIL.
Among other issues they discussed, Despot
told them about an incident involving an unnamed sales employee
who made a sexually inappropriate comment to his wife.
The next
day, October 28, Despot sent an email to Gamble and other AIL
management that included a description of the incident
purportedly written to Despot by his wife, Tanya.
She told
Despot that Richard Meshulam, another AIL sales director, made an
inappropriate sexual comment to her at a AIL sales convention in
California in May 2009.
Despot Depo. at 253-254; Gamble Aff. at
¶10.
AIL terminated Despot’s employment on October 30.
Gamble
sent Despot an email informing him of this decision, stating that
AIL had investigated his allegations of retaliation and found
them to be unsupported.
While Despot clearly disagreed with some
company policies (such as the ride-along policy), Gamble told him
that none of those policies violated any law.
1
Gamble also
A “ride-along” is the practice of a regional director
accompanying newer sales agents on sales calls “in order to
evaluate the overall performance of an Agency and the
effectiveness of that Agency’s training of its agents.” See Doc.
26, Ex. 1, Affidavit of Robert Falvo at ¶ 4.
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informed Despot that he violated a clear duty to immediately
report any and all incidents of harassment or misconduct, and to
cooperate with any resulting investigation, as required by AIL’s
anti-harassment policy.
She noted that Despot had revealed the
alleged incident involving his wife only the day before, despite
knowing about the incident since May 2009.
Gamble informed
Despot that his conduct was a serious breach of his obligations
as a director, and that his employment was terminated effective
immediately.
(Gamble Aff., Exhibit 3)
Despot filed a charge with the Ohio Civil Rights Commission
on July 31, 2010, claiming religious discrimination and
retaliation.
He was subsequently issued a right to sue notice,
and he timely filed his complaint in this case.
He alleges that
he was subjected to an offensive, intimidating, and hostile work
environment; that his acceptance of this environment became a
term and condition of his employment; and that this situation
amounted to sexual discrimination.
Despot further alleges that
AIL retaliated against him and harassed him for making
complaints, threatened him, and made false statements about him
to Ohio unemployment compensation personnel.
He also claims that
when he complained about the incident involving his wife and
certain of AIL’s business practices, AIL retaliated against him
by denying him promotions and terminating his employment.
AIL now seeks summary judgment on all of Despot’s claims.
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AIL argues that Despot cannot establish a prima facie case of a
failure to accommodate his religious beliefs, of religious or
sexual harassment, or of unlawful retaliation.
Even if he can
satisfy his prima facie burden on any of these claims, AIL
contends that he has not shown that its proffered reason for his
termination was pretextual.
ANALYSIS
1.
Summary Judgment Standards.
The court “shall grant summary judgment if 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.”
P. 56(a).
Fed. R. Civ.
An assertion of a undisputed fact must be supported by
citations to particular parts of the record, including
depositions, affidavits, admissions, and interrogatory answers.
The party opposing a properly supported summary judgment motion
“'may not rest upon the mere allegations or denials of his
pleading, but ... must set forth specific facts showing that
there is a genuine issue for trial.'”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (internal quotation omitted).
The Court is not duty bound to search the entire record in
an effort to establish a lack of material facts.
Guarino v.
Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir. 1992).
Rather, the burden is on the non-moving party to “present
affirmative evidence to defeat a properly supported motion for
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summary judgment...,” Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479-80 (6th Cir. 1989), and to designate specific facts in
dispute.
Anderson, 477 U.S. at 250.
The non-moving party “must
do more than simply show that there is some metaphysical doubt as
to the material facts.”
Matsushita Electric Industries Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The court
construes the evidence presented in the light most favorable to
the non-movant and draws all justifiable inferences in the nonmovant's favor.
United States v. Diebold Inc., 369 U.S. 654, 655
(1962).
The court's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether there
is a genuine issue for trial.
Anderson, 477 U.S. at 249.
The
court must assess “whether there is the need for trial — whether,
in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”
250.
“If the evidence is merely colorable, ...
Id. at
or is not
significantly probative, ... the court may grant judgment.”
Anderson, 477 U.S. at 249-50 (citations omitted).
2.
Despot’s Opposition Memorandum
The Court must address two preliminary matters before
reaching the merits of AIL’s motion.
Despot filed an opposition
entitled “Plaintiff’s Initial/Partial Response” to ALI’s motion.
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(Doc. 34)
He asserted that AIL owed him responses to his
document requests and interrogatories.
And he claimed that he
had not received a copy of his own deposition transcript.
That
deposition was filed on the docket on March 30, 2012 (Doc. 28),
and has been available to Despot at least since then.
With
respect to his assertions about overdue discovery responses, the
Court notes that Despot filed a motion to compel on November 8,
2011, which was denied by the Magistrate Judge because he failed
to comply with the rules governing such motions.
(See Doc. 25)
He did not file objections to the Magistrate Judge’s order, he
never renewed his motion, and he failed to respond to AIL’s
request for attorney’s fees as he was ordered to do by the
Magistrate Judge.
The discovery deadline was November 11, 2011,
and the Court concludes that Despot is not entitled to any
further discovery responses from AIL.
In addition, there is nothing in the Federal Rules of Civil
Procedure nor in this Court’s Local Rules permitting piecemeal
responses to dispositive motions.
The Court is cognizant of
Despot’s pro se status, but he has been afforded ample notice
that his status may afford him some leniency, but does not excuse
his duty to follow the procedural rules.
See, e.g., Doc. 25,
March 9, 2012 Order denying Despot’s motion to compel.
See also
McNeil v. United States, 508 U.S. 106, 113 (1993), noting that
pro se litigants may receive some leniency particularly where a
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procedural error could be fatal, but emphasizing that “we have
never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.”
The Court also notes that
Despot has filed a plethora of lawsuits in this district (and
others) over the past decade, demonstrating that he is not a
novice to the federal courts or to federal procedural rules.
See, e.g., Despot v. Nationwide Ins., No. 1:12-cv-44 (S.D. Ohio);
Despot v. Ohio National Financial Srvs., et al., No. 1:06-cv-193
(S.D. Ohio); Despot v. Keystone Insurers Group, Inc., et al., No.
1:07-cv-1047 (S.D. Ohio); Despot v. Western Southern Financial
Group, No. 1:06-cv-474 (S.D. Ohio).
Despite the title of his
response to AIL’s motion, the Court considers the record to be
closed with respect to that motion.
The Court also concludes that Despot has failed to properly
support his opposition to AIL’s motion.
Fed. R. Civ. Proc. 56(c)
states that a party opposing a motion for summary judgment must
support his opposition by:
(A) citing to particular parts of materials
in the record, including depositions,
documents, electronically stored information,
affidavits or declarations, stipulations ...
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.
Despite his pro se status, Despot is required to come forward
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with some admissible evidence that raises a genuine factual
dispute.
See McKinnie v. Roadway Express, Inc., 341 F.3d 554,
558 (6th Cir. 2003)(holding that pro se litigants “are not
entitled to special treatment, including assistance in regards to
responding to dispositive motions.”).
On April 6, 2012, this Court specifically notified Despot of
his obligation to respond to AIL’s motion.
(See Doc. 32)
The
Court’s notice advised him that he could not simply rest upon his
complaint, and that he must provide evidence showing there is a
genuine factual dispute.
Despot has not done so.
proffer any evidence supporting his claims.
He does not
He has not submitted
an affidavit from anyone with knowledge of the events he alleges
in his complaint.
Despot’s response consists almost entirely of
paragraphs taken from AIL’s motion followed by his own conclusory
arguments about why he believes AIL discriminated against him,
and citing case law that generally addresses such claims.
On this basis alone, AIL’s motion should be granted.
Despot’s status does not require the Court to attempt to make
Despot’s case for him.
See Ashiegbu v. Purviance, 74 F.Supp.2d
740, 746 (S.D. Ohio 1998).
Nor is the Court required to pore
over the record to determine if any genuine factual disputes may
exist.
Street v. J.C. Bradford, supra, 886 F.2d at 1479.
Rather, the Court may rely on the facts presented by AIL, which
has submitted evidence showing that Despot’s claims lack merit;
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Despot’s own conclusory allegations and subjective beliefs to the
contrary are insufficient to defeat AIL’s motion.
See Mitchell
v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992).
However, because the substance of Despot’s claims have been
addressed in the memoranda, the Court will reach the merits of
his claims.
While Despot’s complaint identifies 19 separate
causes of action, they all fall within the general categories of
religious accommodation, various forms of discrimination,
harassment, and retaliation.
Because Ohio courts apply federal
law to claims arising under Ohio Rev. Code 4112, see Peters v.
Lincoln Elec. Co., 285 F.3d 456, 469 (6th Cir. 2002), the Court
will consider Despot’s federal and state law claims together
under these four general categories.
3.
Religious Accommodation
Despot contends that AIL discriminated against him based on
his Catholic faith by failing to accommodate his religious
beliefs.
As best as the Court can discern, Despot claims that
AIL required him to travel on Sundays, which is against his
faith.
He claims he was verbally harassed and disciplined for
seeking this religious accommodation.
AIL argues that Despot
cannot establish a prima facie case of failure to accommodate,
and in any event he has no evidence that AIL’s legitimate reason
for terminating him is a pretext for unlawful religious
discrimination.
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Title VII requires an employer to accommodate “all aspects
of religious observance and practice, as well as belief, unless
an employer demonstrates that he is unable to reasonably
accommodate an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of
the employer’s business.”
42 U.S.C. § 2000e(j).
To establish a
prima facie claim, Despot must show: (1) he holds a sincere
religious belief that conflicts with his employer’s requirement;
(2) he informed his employer about his belief and the conflict;
and (3) he was discharged or disciplined for failing to comply
with the requirement.
Cir. 2007).
Tepper v. Potter, 505 F.3d 508, 514 (6th
If Despot satisfies this prima facie burden, AIL
must demonstrate that it could not reasonably accommodate him
without incurring undue hardship.
Id.
AIL contends that Despot has not shown that he holds a
sincere religious belief that conflicted with a requirement of
his employment, or that he was disciplined as a result of failing
to comply with any such requirement.
The record reflects that
Despot sent an email on March 8, 2009 (which was a Sunday) to
Robert Falvo, AIL’s Senior Vice President of Field Operations and
Despot’s supervisor, complaining about his work hours, his
salary, his bonus (which he felt was inadequate), and a lack of
promotion.
He also told Falvo that his “faith lifestyle has been
adversely affected since joining AIL with often required business
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travel on Sundays - for an alarming total of 25 Sundays of
business travel in 2008.
I believe that Sunday is faith day and
I believe and feel that business travel should not take place on
Sundays or, if it does at all, on very rare and necessary
occasions only.”
(Despot Depo., Ex. D) Despite this complaint,
however, Despot testified that he engaged in many other
activities on Sunday, such as grocery shopping or doing household
chores, and he admitted that he voluntarily sent work-related
emails on Sundays.
He also does not dispute that he traveled on
many Sundays throughout his tenure with AIL without complaint.
AIL argues that his belief that “faith is priority” on Sunday was
either not sincerely held, or that his belief did not actually
conflict with his work-related Sunday travel.
AIL also contends
that Despot fails to satisfy the third element of his prima facie
case, showing that he was disciplined or discharged for refusing
to travel on Sunday.
Despot admitted that he had never refused
to do so, and that he could not have been disciplined for
refusing to travel on a Sunday because he regularly did so.
(Despot Depo. at 87, 97-98)
Whether or not Despot sincerely believes that Sundays should
be reserved for faith-related pursuits, he admitted that he
regularly engaged in non-faith activities on Sundays, both
personal and work-related.
And it is undisputed that he has not
demonstrated that he was disciplined in any way, much less
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discharged, because of his refusal to comply with a work-related
requirement.
AIL is entitled to judgment on Despot’s religious
accommodation claims, because he has failed to establish a prima
facie claim of a failure to accommodate.
4.
Religious and Age Discrimination Claims
The Court will consider these claims together, as they are
premised on the same facts.
Despot has no direct evidence of any
discrimination, and the familiar McDonnell-Douglas burdenshifting analysis applies to his discrimination claims.
Despot
must show that (1) he is a member of a protected class; (2) he
suffered an adverse employment action; (3) he was qualified for
the position; and (4) a person not within the protected class
replaced him, or that AIL treated similarly-situated, nonprotected persons more favorably.
Younis v. Pinnacle Airlines,
Inc., 610 F.3d 359, 363 (6th Cir. 2010).
Despot’s prima facie
burden is not onerous, but simply raises a rebuttable presumption
of discrimination by eliminating the most common
nondiscriminatory reasons for the employer’s action.
Cline v.
Catholic Diocese, 206 F.3d 651, 660 (6th Cir. 2002) (internal
citations and quotations omitted).
If Despot can establish a
prima facie case, AIL must proffer a legitimate nondiscriminatory
reason for its actions.
Despot must then demonstrate that AIL’s
proffered reason is a pretext for unlawful discrimination.
Despot can establish pretext by showing (1) the employer’s reason
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has no factual basis; (2) the reason did not actually motivate
the employer; or (3) the articulated reason is insufficient to
justify the adverse action taken.
Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003).
AIL contends that Despot has not established a prima facie
case of discrimination on any basis because he was not replaced
by someone outside his protected class, and he has no evidence
that similarly situated, non-protected employees were treated
more favorably.
The Court agrees.
AIL has submitted unrebutted
evidence that Despot was not replaced after he was terminated,
and his agency offices were reassigned to other regional
directors.
evidence.
(Gamble Aff. at ¶15)
Despot does not dispute this
The Sixth Circuit has held that an employee is not
“replaced” if the employee’s job duties are assigned to other
employees, or “redistributed among other existing employees
already performing related work.
A person is replaced only when
another employee is hired or reassigned to perform the
plaintiff’s duties.”
(6th Cir. 1990).
Barnes v. GenCorp Inc., 896 F.2d 1457, 1465
The only evidence before the Court establishes
that AIL redistributed Despot’s work to other existing regional
directors.
Moreover, Despot has not identified any similarly-situated
employee who was treated more favorably.
He was asked whether or
not he was claiming that “there are similarly situated younger
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employees that were treated more favorably than [Despot] ...,”
and Despot responded “I’m not saying that.”
281)
(Despot Depo. at
He then stated that he was not “denying or favoring” that
question (Id. at 282).
But he has failed to produce any evidence
in response to AIL’s summary judgment motion showing or
suggesting that any younger employee, or any employee not of the
Catholic faith, was treated more favorably than he.
Despot
therefore has not satisfied a required element of his prima facie
discrimination claims.
Even if Despot had done so, however, AIL has proffered a
legitimate reason for his termination: his breach of his duty to
timely and properly report incidents of alleged harassment or
misconduct as required by AIL’s written policy.
Despot has not
come forward with any evidence suggesting that this reason is a
pretext for age or religious discrimination.
He does not dispute
the facts, as he admits that he did not report the alleged
incident involving his wife for almost five months.
He has no
evidence suggesting that AIL was not actually motivated by his
breach of the company’s anti-harassment policy, or that his
conduct was insufficient to justify AIL’s decision to terminate
his employment.
The Court therefore concludes that Despot has
not shown that a genuine factual dispute exists on his age and
religious discrimination claims, and AIL is entitled to judgment
on those claims as a matter of law.
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5.
Harassment
Despot’s complaint includes two counts of “EEOC Sexual
Harassment/Sex Discrimination” where he alleged that he was the
victim of sexual harassment.
He also alleged that he was
harassed based upon his religious beliefs.
He based these claims
on the incident involving his wife described above.
He also
relied on his email to Falvo and others on October 24,
complaining that sales agents were transferred from one regional
director’s supervision to another’s, because the director
allegedly had an extramarital affair with an employee of an
independent agency under that director’s supervision.
Despot
alleged that this situation constituted sexual harassment and
created a hostile working environment.
A prima facie case of harassment that creates a hostile work
environment requires Despot to show: (1) he is a member of a
protected class; (2) he was subjected to unwelcome harassment
based on his protected status; (3) the harassment unreasonably
interfered with his work performance by creating a hostile,
offensive, or intimidating work environment; and (4) AIL is
liable for that harassment.
See, e.g., Clark v. United Parcel
Service, Inc., 400 F.3d 341, (6th Cir. 2005) (sexual harassment);
Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)(racial or
religious harassment).
Despot admitted that he was not personally subjected to
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sexual harassment stemming from the incident between his wife and
Meshulam, or on any other basis that this Court can discern.
In
his response to AIL’s motion, he contends that it is sufficient
to show that he was affected by allegedly harassing conduct even
if he was not the intended victim.
(Doc. 34 at 13)
Regardless
of this contention, Despot has no admissible evidence to show
that he was subjected or exposed to any such conduct.
The only
evidence Despot offers about the Meshulam incident is his email
that includes his wife’s statement to him.
This is classic
hearsay, and may not be considered at the summary judgment stage.
Jacklyn v. Schering-Plough Healthcare Prod. Sales Corp., 176 F.3d
921, 927 (6th Cir. 1999).
Despot has no admissible evidence such
as affidavit from his wife or from Meshulam, the only two people
with personal knowledge about this incident.
The same is true
with respect to his complaint about an extramarital affair
between another regional manager and an agency employee.
His
only evidence of this is his statement that he “heard” (from
sources and people unknown) that the affair happened, and had
prompted the reassignment of that agency.
Even if all of this is
true, the Court cannot discern anything about this situation that
reflects pervasive sexual or religious harassment directed at or
affecting Despot.
AIL also notes Despot’s deposition testimony stating that he
faced religious harassment after he complained to Falvo about
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traveling on Sunday.
Despot said that Falvo told Despot that he
had lost Falvo’s trust, and was not a “member of the team.”
(Despot Depo. at 93, 96, 296)
Even if Despot is accurate in
reporting Falvo’s response, this incident does not amount to
harassment that created a hostile work environment based upon
Despot’s Catholic religion.
The alleged harassing conduct must
be “sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working
environment.”
Clark, 400 F.3d at 351 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)).
Isolated or sporadic
incidents, even if they constitute harassment, are plainly
insufficient.
Despot has failed to produce evidence that he was
subjected to the type of pervasive harassing conduct that could
give rise to a hostile environment claim.
AIL is therefore
entitled to judgment on Despot’s harassment claims.
6.
Retaliation
Despot’s complaint alleges that AIL retaliated against him
for seeking religious accommodations, and for objecting to
allegedly discriminatory company practices.
In his complaint, he
recites several activities that apparently form the basis for his
retaliation claims: (1) requesting an accommodation for his
religious belief that he should not be required to travel on
Sundays; (2) complaining to AIL that he was required to go to a
strip club on one occasion against his will, and that female
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employees were prevented from attending; (3) complaining about
AIL’s policy of not allowing female sales agents to participate
in “ride-alongs;” (4) a vague reference to AIL “not taking
seriously” various “EEOC discrimination matters” during the
course of his employment (Doc. 1 at 8); (5) complaining about
AIL’s failure to promote him and his dissatisfaction with his
salary and his bonus; and (6) complaining about the incident
involving his wife.
(Doc. 1 at 7-14)
He alleges that AIL
subjected him to discipline and harassment, denied him
promotions, terminated his employment, and made false statements
to the Ohio Office of Unemployment Compensation.
(Doc. 1 at 14-
16)
In order to establish a prima facie case of retaliation,
Despot must demonstrate that: (1) he engaged in conducted
protected by the anti-discrimination statutes; (2) AIL knew that
he engaged in that protected activity; (3) AIL subsequently took
an adverse employment action against him; and (4) the adverse
action was causally connected to his protected activity.
See
Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir.
2009).
If Despot satisfies this prima facie burden, AIL must
proffer a legitimate, non-retaliatory reason for the adverse
employment action, and Despot must then demonstrate pretext.
AIL argues that Despot has not established a prima facie
retaliation claim because he has not shown that he engaged in
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statutorily protected activity, and because there is no evidence
of a causal connection between any such activity and his
termination.
Two types of activity fall within the scope of
“protected” activity: participation in an EEOC or other antidiscrimination proceedings, and conduct opposing an employer’s
Title VII violation.
See Wasek v. Arrow Energy Services, Inc.,
682 F.3d 463, 469 (6th Cir. 2012).
Despot’s allegations amount
to a contention that he opposed various allegedly unlawful
practices.
The Court has reviewed Despot’s complaint and his response
to AIL’s motion, and must conclude that all of his complaints or
opposition conduct, save for one, do not fall within the scope of
Title VII-protected activity.
Complaints about his pay, or a
single incident where he claims he was required to go to a strip
club, or the single incident involving his wife (a non-employee)
are not sufficient.
He has no evidence that any female agent
ever complained that the ride-along policy discriminated against
them or against women agents generally.
And as AIL notes, these
agents were not employed by AIL, they were employees of the
independent agencies who had contractual relationships with AIL.
His complaint about travel on Sundays arguably falls within the
zone of protected activity as a complaint about a discriminatory
religious practice.
But as discussed above, he did not actually
complain that he was discriminated against based on his faith,
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nor identify any adverse action that was taken against him.
Even if any of Despot’s complaints amount to protected
activity, he has also failed to establish any causal connection
between his complaints and his termination.
He apparently
complained about Sunday travel early in his tenure, and again in
his March 2009 email.
He then renewed his complaint on October
24, 2009, six days before he was terminated.
The Sixth Circuit
has held that evidence of an adverse action taken shortly after
protected activity may be sufficient in some circumstances to
satisfy the casual link requirement.
See Mickey v. Zeidler Tool
& Die Co., 516 F.3d 516, 525-526 (6th Cir. 2008), where the court
acknowledged some “confusion in the case law” on this question,
but held that: “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.
But where some
time elapses between when the employer learns of a protected
activity and the subsequent adverse employment action, the
employee must couple temporal proximity with other evidence of
retaliatory conduct to establish causality.”
In Spengler v.
Worthington Cylinders, 615 F.3d 481, 494 (6th Cir. 2010), the
court found that any inference of causation based on the temporal
proximity of protected activity and an adverse action was
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extinguished because the plaintiff’s decision to leave the
worksite was an intervening event between the activity and the
adverse action.
Here, AIL similarly argues that any inference of
causation based on the temporal proximity between Despot’s last
complaint, six days before his termination, is extinguished by
Despot’s admission that he violated AIL’s anti-harassment policy
and did not promptly report an incident of harassment.
Despot did renew his objection to Sunday travel shortly
before he was terminated.
But he has no other evidence of any
retaliatory conduct taken against him, and there is no suggestion
that AIL retaliated against him after he initially voiced his
objections either early in his tenure or after his March 2009
email.
He does not offer any evidence tending to show that other
employees were treated differently than he was with respect to
complaints based on religion or other protected classifications.
But even if Despot’s allegations satisfy his prima facie
burden, however, he has not raised a genuine dispute that AIL’s
reason for his termination was a pretext for retaliation.
As
discussed above with his other claims, he has not come forward
with any evidence that raises a reasonable inference that AIL’s
stated reason, Despot’s breach of its anti-harassment policy, was
not the true reason for his termination.
CONCLUSION
For all of the foregoing reasons, the Court grants AIL’s
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motion for summary judgment on all of Despot’s claims.
Despot’s
complaint is dismissed with prejudice.
SO ORDERED.
THIS CASE IS CLOSED.
DATED: July 30, 2012
s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge
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