Ignatenkov v. U.S. Foodservice, Inc.

Filing 35

ORDER granting 17 Defendant's Motion for Summary Judgment. Plaintiff's complaint is dismissed with prejudice. Signed by Judge Sandra S Beckwith on 7/18/12. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
:
:
:
:
:
:
:
:
:

Pavel Ignatenkov,
Plaintiff,
vs.
U.S. Foodservice, Inc.,
Defendant.

Case No.1:11-cv-232

ORDER
Before the Court is the Defendant’s motion for summary
judgment.

(Doc. 17)

Defendant seeks entry of judgment on

Plaintiff’s claims of national origin discrimination, FMLA
retaliation, and wrongful discharge, arising from Defendant’s
December 2009 decision to terminate Plaintiff’s employment.
motion is fully briefed and ready for decision.

The

For the

following reasons, the Court will grant Defendant’s motion.
FACTUAL BACKGROUND
Pavel Ignatenkov was born in the former U.S.S.R.

He is a

lawful permanent resident who is in the process of applying for
citizenship.

U.S. Foodservice (“USF”) is a national wholesale

food distributor with a division in Cincinnati, Ohio.

Ignatenkov

was hired by U.S. Foodservice in 2004 as a “selector,” working on
the night shift.

A selector’s duties include filling USF’s

customer orders by “selecting” products stored in the warehouse,
and packing pallets of the products for customer delivery or
-1-

pickup.

The job also includes packing and unpacking trailers

parked at the warehouse loading dock.

The selectors use a pallet

jack, a machine that permits the driver to pick items from the
shelves and to stack and move pallets.
During the relevant time period, John Lee was USF’s night
warehouse manager.

Several floor managers reported to Lee and

directly supervised the shift employees.

In August 2008,

Ignatenkov wrote a memo documenting an incident involving Lee.
According to his written description (Ignatenkov Dep. Ex. 1),
the warehouse was extremely busy one night, and Ignatenkov and at
least one of his coworkers found it difficult to keep up with
moving the packed pallets into trailers.

At the end of the

night, he and his coworker had not finished loading trailers.

At

the end of their shift, Lee called them aside and started
screaming at them both, telling them they had to work faster, and
to clock out “and get the f*** out of here.”
they would be fired if it happened again.

Lee threatened that

In his written memo,

Ignatenkov accused Lee of being unprofessional, stating that he
did not treat Ignatenkov and his coworker with respect.
Ignatenkov believes that he submitted this written complaint to
Christa Bishop, USF’s human resources manager.

(Ignatenkov Dep.

at 133)
Ignatenkov described two other incidents of harassment at
work.

In February or March 2009, he testified that one of the

-2-

night floor managers, Robert Martin, approached him and dragged
him off his pallet jack, screaming at him and pulling him towards
the door.

Martin eventually calmed down, and he did not drag

Ignatenkov out of the warehouse.

It is unclear what may have

precipitated this incident; Ignatenkov reported the incident to
another floor manager, Andre Hinton, who told him that it was not
necessary to lodge a formal complaint.

Another time, Ignatenkov

said that a co-worker punched him in the back while he was on his
pallet jack.

He also asserted that a coworker, James Bradford,

hit his pallet jack with his own jack in November 2009.
USF maintained an “open door” complaint policy, under which
employees were encouraged to communicate complaints and concerns
to management.

In July 2009, Ignatenkov submitted a list of

complaints to Michael Klein, USF’s president, and to Bishop,
attaching a copy of his August 2008 report of the incident
involving Lee.

His new complaints were primarily about his shift

assignments, his pay, and some concerns about seniority and the
assignment of certain job tasks.

There is no mention in his memo

about anything concerning national origin discrimination or any
FMLA problems.

Klein and Bishop met with Ignatenkov to discuss

his concerns, and they began investigating his complaints.
Bishop was tasked with looking into several specific items, and
she wrote some notes on a copy of Ignatenkov’s memo.

Bishop sent

a copy that included her own notes to Andrew Virzi, who was USF’s

-3-

VP of Operations and Lee’s supervisor.

Virzi apparently printed

a copy of the document for himself, but failed to retrieve it
from a printer in the warehouse.

Ignatenkov discovered that a

few employees had seen his written complaint, as one of his
coworkers showed him the document.

He immediately sent an email

to Bishop and Klein, expressing his anger over the fact that his
complaints were not kept confidential.

(Klein Dep. Ex. 1)

Klein

and Bishop again met with Ignatenkov, who was understandably
upset that his communications with them had been seen by his
coworkers.

Klein apologized to him, and they continued to

investigate his concerns.
Ignatenkov developed pneumonia in October 2009, and was
approved for a two-week FMLA leave.

When he returned to work

later in October, he testified that he returned to the same job
at the same rate of pay.

He admitted that no one at USF

discouraged him from taking leave, either in October 2009 or on
several prior occasions when he was approved for leave for
various reasons.
On December 9, 2009, Ignatenkov was working his shift and
driving his jack trying to complete an order.

He encountered

another employee, Pamoussa Sawadogo, in Aisle 80 of the
warehouse.

Sawadogo is originally from West Africa, and he has

some difficulty understanding spoken English.

According to

Ignatenkov, he asked Sawadogo to move his jack and pallets out of

-4-

the way so that Ignatenkov could pass him.

When Sawadogo

responded slowly, Ignatenkov told him to get his “f***ing boards”
out of the way.

Sawadogo began to move some pallets, but

Ignatenkov believed the aisle was still blocked.

According to

Ignatenkov, he then used his own pallet jack to gently push the
pallets out of his way.
James Bradford, another selector working that shift,
approached Robert Martin, saying he witnessed Ignatenko’s
encounter with Sawadogo.

Bradford reported that Ignatenov was

bullying Sawadogo and being very aggressive.

Martin reported the

incident to Lee, who then talked with Sawadogo and Bradford
separately.

Bradford told Lee that he saw Ignatenkov run into

Sawadogo’s jack, at which point Ignatenkov got off his own jack,
approached Sawadogo, and “got in his face.”

Lee asked Bradford

if he wanted to write a statement, and Bradford did so.

Bradford

wrote that he and Ignatenkov were blocked from moving through
Aisle 80, and that Ignatenkov “... instantly started cursin [sic]
and threatening, calling Sawadogo out of his name, then he
violated his personal space by getting in his face and belittling
a nonconfrontational person even more.

Then moved his skids and

knocked his skids over. ... This offended me as a human being and
as a co-worker of Sawadogo. ...”

(Bishop Dep. Ex. 2)

Sawadogo

confirmed much of Bradford’s account of the incident; according
to Lee, Sawadogo was almost crying and told Lee that he felt

-5-

threatened by Ignatenkov.

Lee asked him to write a statement; he

wrote that he had moved his first pallet out of Ignatenkov’s way.
But then Ignatenkov began to “talk to me like his baby,” drove
into his pallets and knocked them over.

He described restacking

the products, and stated “So, I’m a negro or due to my mask I
look like a monkey, anyway I try to do my job, this is my
concern.

I think a flour [sic] is beautiful because we can see

different colors.

And the world is to compare to a flour, of

course its different races.

I like to make friendship but not to

threat someone like he did me today.”

(Sawadogo Dep. Ex. 1)

Lee then called Ignatenkov to the office and suspended him
pending an investigation of the incident.

Lee also reported the

incident by email to Bishop, Klein, and Virzi, telling them that
he suspended Ignatenkov until an investigation was done.

Lee

also stated: “I feel we should terminate this is a clear case of
workplace violence.”

(Virzi Dep. Ex. 19)

Ignatenkov immediately

called Klein and reported his suspension, and Klein assured him
that USF would investigate.
Later on the morning of December 10, Ignatenkov sent an
email to Bishop and Klein (with a copy to his attorney), stating
that “Since I came back from my FMLA leave, I am experiencing the
following problems that are harassment and discrimination.”
(Ignatenkov Dep. Ex. 4)

The first three items on his list dealt

with aspects of his pay and bidding for certain jobs; the fourth

-6-

item asserted that he had never been trained to operate a PIR
machine and forklift.

The fifth item was a complaint about his

suspension; he told Bishop and Klein that the “problem” was
caused by Sawadogo.

He denied using bad language, and accused

Sawadogo of being one of the worst workers on the night shift.
He told Klein and Bishop that Lee had caused him numerous
problems over the last year or more, including his suspension
which he characterized as “attempting to fire me over everyday
work routine.”

(Id.)

Bishop undertook an investigation of the incident, and spoke
separately to Bradford and to Sawadogo.

Sawadogo told Bishop

that when Ignatenkov hit his pallet, Ignatenkov got off his lift
and called Sawadogo a “f***ing idiot” and other things that he
did not understand.

He told Bishop that Ignatenkov used the term

“nego,” “nigger,” or “negro” during his tirade, that he talked
down to him, and that he felt Ignatenkov was making fun of him.
In his deposition, Sawadogo said that Ignatenkov was very angry
with him, and believed that Ignatenkov deliberately hit his
pallet, cursed at him, used a racial slur and called him a
monkey.

Bradford confirmed his written statement when he spoke

to Bishop, explaining what he meant when he wrote that Ignatenkov
called Sawadogo “out of his name.”
Bradford’s written statement.)

(Bishop Dep. Ex. 2,

He explained to Bishop that he

meant that Ignatenkov used a racial slur, “nigger.”

-7-

Bradford

told Bishop that Ignatenkov was very confrontational, and
violated Sawadogo’s personal space.

Bradford approached Sawadogo

after the incident to ask if he was alright, and he told Bishop
that Sawadogo was very upset and looked as if he was going to
cry.
Bishop also met with Ignatenkov, asking his version of the
incident.

Ignatenkov admitted that he got off his jack and

approached Sawadogo, telling him to move his f***ing boards.

He

also admitted that he used his pallet jack to move Sawadogo’s
pallet.

Ignatenkov denied using racial slurs, and denied that he

intentionally knocked over Sawadogo’s pallets.

He admitted in

his deposition that he “overreacted” and that he had used
profanity.
Bishop then met with Klein, Virzi and Lee about a week
later, and recommended that Ignatenkov be fired for violating
USF’s policies against workplace violence.

That policy states

that USF “will not tolerate any actions, statements or other
behavior by anyone that is, or is intended to be, violent,
threatening, intimidating, disruptive, aggressive or harassing,
as determined by the Company in its sole discretion.

This means

the Company will take appropriate action, up to and including
termination of employment, in response to such conduct.”

(Bishop

Dep. Ex. 12, at CM/ECF PAGEID 386) Ignatenkov was terminated on
December 18, 2009.

-8-

Ignatenkov filed a claim with the Ohio Civil Rights
Commission on September 22, 2010, and received a right to sue
notice in January 2011.

He filed his complaint in this case,

alleging national origin discrimination under Title VII and Ohio
Rev. Code 4112.02A; retaliation under Title VII and Ohio law,
alleging that his termination was in retaliation for complaining
about national origin discrimination; a state law claim for
wrongful discharge in violation of public policy; and claims for
FMLA interference and retaliation.
all of Plaintiff’s claims.

USF seeks summary judgment on

Ignatenkov does not dispute the

dismissal of his FMLA interference claim, but argues that genuine
disputes of material fact preclude entry of judgment on the rest
of his complaint.
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

-9-

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
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.”

-10-

Id. at

250.

“If the evidence is merely colorable, ...

or is not

significantly probative, ... the court may grant judgment.”
Anderson, 477 U.S. at 249-50 (citations omitted).
2.

National Origin Discrimination and Retaliation.
Ignatenkov’s state law discrimination and retaliation claims

are analyzed under federal law applicable to his Title VII
claims, and they will be addressed together.

See Plumbers &

Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights
Commission, 66 Ohio St.2d 192, 196 (Ohio 1981).
Ignatenkov does not offer any direct evidence of
discriminatory treatment based on his national origin, and so the
familiar McDonnell-Douglas burden-shifting framework applies.

To

establish a prima facie case of national origin discrimination,
Ignatenkov must show: (1) he is a member of a protected class;
(2) he was subjected to an adverse employment action; (3) he was
qualified for his job; and (4) he was treated differently than
similarly-situated, non-protected employees.

Younis v. Pinnacle

Airlines, Inc., 610 F.3d 359 (6th Cir. 2010); Wright v. Murray
Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006).

USF does not

contest the first three factors, but argues that Ignatenkov has
not shown that he was treated differently than similarly-situated
employees who violated USF’s workplace violence policy.
“Similarly situated” does not require a showing that the
individuals are “identically situated.”

-11-

What is required is that

Ignatenkov demonstrate that the two employees are similarly
situated in relevant aspects.

Ercegovich v. Goodyear Tire &

Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).

It is plaintiff’s

burden to show that the conduct of these employees was comparably
serious to his own.

Ignatenkov cites an incident involving two

non-Russian co-workers, Abdoulaye Tambdou and Sidi Traore, that
occurred after Ignatenkov’s termination.

According to Lee’s

email to Virzi and Bishop about this incident (Doc. 26, Ex. A),
Traore reported to Lee that Tambdou “slammed him to the floor,”
and that another employee (Samba) witnessed the altercation.

Lee

then spoke to Samba, who reported that he had seen them with
their hands on each other, and that Sidi “went to the ground and
Tambdou fell on top of him.”

Samba did not see who started the

incident, and could not hear anything being said.

Lee

interviewed Tambdou and Sidi; Tambdou admitted touching Sidi, but
Sidi denied putting his hands on Tambdou.

Bishop placed both

employees on three-day suspension and gave them each a final
warning.
Ignatenkov also relies on an incident involving Dewayne
Dobbs, another night shift employee, who brought a handgun to
work in August 2011.

Dobbs was not suspended or terminated,

although having a gun on USF premises is a clear violation of the
workplace violence policy.

Dobbs received a final written

warning from USF’s then-Vice President of Operations, Jeff

-12-

Coppenger (Doc. 26, Ex. B).

The warning states: “Prior to

clocking in for the start of your shift ..., you went straight to
Kevin Giffin to inform him that you were carrying a handgun.

You

also informed Kevin that you are licensed to carry in the State
of Ohio.

We appreciate your honesty and effort to come forward,

but need you to understand the serious nature of this incident.”
Coppenger told Dobbs that any further incidents “will result in
further disciplinary action up to and including termination of
your employment...”.

Dobbs wrote on the bottom of this notice,

“I understand my wrong doing, and I apologize for it.”
Ignatenkov also contends that he was the victim in three
incidents of workplace violence, and that USF took no actions
against the perpetrators.

He cites the August 2008 incident

involving Lee, and the incidents involving Martin and his coworker described above.

He also attached an affidavit to his

response to USF’s motion providing additional details about the
incident with Bradford in 2009, stating that Bradford
“deliberately ran his pallet jack into my pallet jack.”

He

states that he reported that incident to a floor manager, who
told him to “get over it.”

He also complained to Virzi, but

Virzi failed to check the security cameras in the area to find
out what happened.

The incident ended when Lee told the entire

staff the next day to “be more careful.”

(Doc. 26, Ex. 2)

USF responds that there is no evidence that Ignatenkov

-13-

reported the incidents involving his coworkers to management when
they occurred.

His July 2009 written memo to Bishop and Klein

states that unnamed coworkers grabbed him or threatened him, but
he admitted that he refused to identify these individuals when
Bishop asked him about the incidents during his meeting with her
in the summer of 2009.

Bishop testified that because he refused

to identify the individuals, she questioned supervisors about
whether they could recall such incidents, and none of them could
do so.

Ignatenkov suggests that Bishop should have done more,

questioned more people or even all of the shift employees to try
to identify who might have been involved.

Given his refusal to

identify the alleged culprits and the passage of time, Bishop
believed that it would not be productive, and that it was
unrealistic to question each employee about incidents that
occurred some months before.
Regarding the alleged similarity of the incident in which
Dobbs brought a gun to work, USF points out that Dobbs
voluntarily disclosed his weapon to his supervisor at the start
of his shift.

There was nothing about the incident suggesting

that any threats or violence were involved, and there was no
altercation with anyone: Dobbs admitted he was carrying the gun,
and accepted full responsibility for his action.

And with

respect to the altercation between Traore and Tambdou, Bishop
explained that they told conflicting stories about what had

-14-

happened and who initiated the altercation.

There is no

reference to either of them trying to “strangle” the other, as
Ignatenkov suggests.

The only witness to the incident, Samba,

told Bishop that he was too far away to see or hear what
precisely took place.

He described that he saw the two standing

close together, and that they appeared to be “holding hands,” but
he denied seeing either of them hit the other.

As Bishop was

unable to determine which of them was the instigator, and because
the only witness was unable to confirm either of their stories,
she decided to issue both of them warnings and suspend them.

But

in Ignatenkov’s encounter with Sawadogo, a witness (Bradford)
first reported the incident, and he told Bishop that he saw
Ignatenkov approach Sawadogo, “get in his face,” and use a racial
slur.

Bradford corroborated Sawadogo’s version of what had

happened.
Moreover, Bishop identified other individuals who violated
the workplace violence policy and who were terminated as a
result.

She testified that an employee named Bentancourt had a

verbal altercation with another employee in the parking lot; even
though there was no physical contact between the two, Bishop
decided to terminate both of them.

She also described an

incident with an employee named Fall, who got into a heated
verbal exchange and “chest bumped” another employee; Fall was
terminated as a result.

None of these employees had complained

-15-

about discrimination or workplace safety, and none were Russian
or born in the former Soviet Union.
USF cites Romans v. Mich. Dept. of Human Servs., 668 F.3d
826 (6th Cir. 2012), where the plaintiff alleged that other
employees violated workplace policies against harassment and use
of foul or abusive language but were not terminated, and citing
incidents in which coworkers harassed him.

The court noted that

the incident for which plaintiff was disciplined was
substantiated by a witness, while the incidents cited by the
plaintiff were not.

The same is true here: Ignatenkov claims

that a coworker hit him or hit his pallet jack, but there is
nothing to substantiate these claims, or to suggest that the
incidents involved intentional aggression rather than an
accident.
Moreover, in Clayton v. Meijer, Inc., 281 F.3d 605 (6th Cir.
2002), the plaintiff was discharged after violating a company
rule requiring a truck driver to be sure that the rear door of
the trailer was firmly closed and the dock plate raised before
leaving the loading dock.

Plaintiff’s failure to check his door

and the plate resulted in a serious injury to a coworker.
Plaintiff was African-American, and produced evidence that two
white drivers violated the same rule but were not terminated.
The court held that while all three engaged in similar conduct,
and were perhaps guilty of the same degree of negligent conduct,

-16-

only plaintiff’s violation had resulted in injuries to a
coworker.

The harm resulting from a rule violation was precisely

the sort of “differentiating or mitigating circumstance” that
distinguished plaintiff’s conduct from the white employees’
conduct, and the employer’s more severe treatment of the
plaintiff did not give rise to an inference of discrimination.
Id. at 612.

That situation also applies here.

Ignatenkov’s

complaints about his coworkers hitting him or his pallet jack did
not involve the use of racial epithets or demeaning words and
conduct based on his race or national origin.

Both Lee and

Bradford described Sawadogo as extremely upset after his
encounter with Ignatenkov, to the point that he was crying when
Lee saw him that evening.
The Court agrees that Ignatenkov has not shown that he was
treated differently in a relevant manner than similarly-situated
employees were treated by USF, and therefore has not shown a
prima facie case of national origin discrimination.
Ignatenkov also claims that USF retaliated against him and
fired him because he complained about discrimination.

A prima

facie case of retaliation requires Ignatenkov to establish: (1)
he engaged in Title VII-protected activity; (2) USF knew that he
engaged in that protected activity; (3) USF subsequently took an
adverse employment action against him; and (4) the adverse action
was causally connected to his protected activity.

-17-

See Ladd v.

Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009).
USF argues that Ignatenkov has not shown that he engaged in
any protected activity.

There is no evidence that he ever

complained to Bishop, Klein or Virzi about any national origin
discrimination, either directed at him or at anyone else.

He

asserts that co-workers called him “f***ing Russian” or “f***ing
Communist,” but he never reported these incidents to management.
His written complaints in August 2008 and July 2009 do not say
anything about national origin discrimination or harassment.
Ignatenkov did complain about Lee’s treatment of him during the
August 2008 incident, during which Lee screamed and swore at him.
But Lee was treating Ignatenkov and his co-worker equally during
that incident, belying any reasonable inference of Lee’s antiRussian bias or discriminatory attitude.

And Ignatenkov’s

written complaint about the incident does not complain about any
national origin or racial discrimination.

Moreover, the only

incident he cites that involved his supervisor, John Lee, was his
testimony that he walked by Lee’s office once and heard him say
“f***ing Russian,” but did not hear anything else Lee said.
(Ignatenkov Dep. at 127)

This isolated comment does not support

his assertion that Lee, or any USF management personnel, harbored
an anti-Russian animus.
USF cites several cases holding that an employee’s
complaints must be specific in opposing a practice outlawed by

-18-

Title VII (or other anti-discrimination statutes such as the
ADEA) in order to constitute protected activity.

See, e.g., Fox

v. Eagle Distributing Co., 510 F.3d 587 (6th Cir. 2007), where a
sales employee told a company customer that management was “out
to get him,” and that he had filed a $10 million lawsuit that
“would get their attention.”

Id. at 589.

The court held this

was not protected activity, as it did not oppose any unlawful
conduct by his employer, and noted that “a vague charge of
discrimination in an internal letter or memorandum is
insufficient to constitute opposition to an unlawful employment
practice.”

Id. at 591.

See also, Balding-Margolis v. Cleveland

Arcade, 352 Fed. Appx. 35, 45, 2009 U.S. App. LEXIS 24604 (6th
Cir., November 9, 2009)(unpublished), where plaintiff lodged
several complaints about general work-related issues but said
nothing about discriminatory conduct.

She admitted that she

never talked with anyone in management about sexual or age-based
harassment or discrimination, or at least could not recall that
she had ever done so.

The court affirmed the summary judgment to

the employer because she had failed to establish a prima facie
case of retaliation.

And see, Love v. Elec. Power Bd. Of

Chattanooga, 392 Fed. Appx. 405, 2010 U.S. App. LEXIS 17552 (6th
Cir., August 20, 2010)(unpublished), holding that an employee’s
charges that his supervisor and vice president were
confrontational and scared other employees, and that they denied

-19-

his vacation request because they were “out to get him,” did not
amount to ADEA-protected activity.
Ignatenkov asserts that he complained about “labor law”
violations; that his locker was taken away from him; and that he
specifically referred to OSHA violations in his post-suspension
complaint to Bishop and Klein, all of which constitutes protected
activity.

None of these complaints mention national origin

discrimination, and no reasonable inference can arise that he was
actually complaining about discrimination that is prohibited by
Title VII.
USF also contends that without showing that he engaged in
protected activity, Ignatenkov cannot demonstrate that USF knew
that he had done so, the second step of his prima facie case.
The Court agrees that the record amply supports the conclusion
that the ultimate decision maker, Bishop, had no knowledge that
Ignatenkov had ever complained about national origin
discrimination.

Klein, Virzi and Lee who also participated in

the final meeting with Bishop, all denied any knowledge of any
complaints, and Ignatenkov admitted in his deposition that he
knew of no facts suggesting that the complaints he did make were
connected to his national origin.

As a matter of logic,

therefore, without Title VII-protected activity that was known to
the decision makers, Ignatenkov cannot show a genuine factual
dispute whether his termination was causally connected to his

-20-

protected activity.

He has therefore failed to establish a prima

facie case of national origin retaliation.
But even if Ignatenkov could establish a prima facie case of
discrimination or retaliation, USF has offered a legitimate
justification for terminating him: the confrontation with
Sawadogo, which was a violation of the workplace violence policy.
Ignatenkov must then show that this proffered explanation is a
pretext.

He can do so by demonstrating that (1) the proffered

reason had no basis in fact; (2) the proffered reason did not
actually motivate his termination; or (3) the proffered reason
was insufficient to motivate his termination.

Manzer v. Diamond

Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
Ignatenkov must do more than dispute the facts on which his
termination was based; he must show that USF did not “honestly
believe” its proffered reason for terminating him:
In deciding whether an employer reasonably
relied on the particularized facts then
before it, we do not require that the
decisional process used by the employer be
optimal or that it left no stone unturned.
Rather, the key inquiry is whether the
employer made a reasonably informed and
considered decision before taking an adverse
employment action. If there is no material
dispute that the employer made a reasonably
informed and considered decision that
demonstrates an honest belief in the
proffered reason for the adverse employment
action, the case should be dismissed since no
reasonable juror could find that the
employer's adverse employment action was
pretextual.

-21-

Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001),
quoting Smith v. Chrysler, 155 F.3d 799, 807 (6th Cir. 1998)
(internal quotations omitted).
Ignatenkov contends that the facts about the incident that
Bishop chose to believe are untrue.

He denied using racial

epithets and denied that he intentionally hit Sawadogo’s pallet.
He accuses USF of consciously deciding to ignore his version of
the events because it wanted to terminate him for discriminatory,
unlawful reasons.

As the Court noted above, Lee testified that

Sawadogo was close to tears when he saw him on the night of the
incident.

Bradford confirmed Sawadogo’s description of the

incident to Lee and later to Bishop, telling Bishop that
Ignatenkov was very angry, jumped off his pallet jack and
approached Sawadogo, yelling and cursing at him using a racial
epithet.

Based on her investigation, Bishop concluded that

Ignatenkov had used a racial slur and had acted aggressively and
in a threatening manner.

Ignatenkov’s denials do not raise an

inference that Bishop did not honestly believe Sawadogo’s report
of the incident.

And his denials alone do not establish that

USF’s proffered reason had no basis in fact, as he admits that
the incident occurred and that he overreacted.
The Court also concludes that Ignatenkov has not established
a genuine dispute that USF’s proffered reason did not actually
motivate his termination.

He contends that the other incidents

-22-

involving violations of the workplace violence policy that he
recites did not result in termination of those employees.

Since

USF’s policy is one of “zero tolerance,” he suggests that the
incident with Sawadogo was not sufficient to actually motivate
his termination.

The Court disagrees.

As discussed above, the

other incidents of which Bishop was informed are substantively
different from the incident involving Ignatenkov, and Bishop
provided several instances in which employees had been terminated
for arguably less serious policy violations.

Moreover, as USF

points out, its “zero tolerance” policy does not state or require
that any and all violations no matter the degree of seriousness
must result in an employee’s automatic termination.
Finally, the court concludes that Ignatenkov has not shown
that the reason USF gives for his termination was insufficient to
motivate its decision.

As noted in Manzer, this type of pretext

evidence attacks the credibility of the employer’s explanation
with evidence tending to show that illegal discrimination was the
true cause: “In other words, 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.”
omitted).

Manzer, 29 F.3d at 1084 (internal citation

Ignatenkov argues that he protested his coworkers’

conduct in calling him a “f*** Russian.”

But nothing about this

conduct gives rise to a reasonable inference that it is more

-23-

likely than not that he was fired because of his national origin.
He never complained to Bishop, Klein or Virzi about any national
origin discrimination.

His written complaints in August 2008 and

July 2009 do not say anything about national origin
discrimination or harassment.

And as already stated above, the

only incident involving Lee was too isolated and ambiguous to
support an inference that the true reason he was terminated is
his national origin.
The Court therefore concludes that USF is entitled to
judgment on Ignatenkov’s claims of national origin discrimination
and retaliation.
3.

FMLA Retaliation.
Ignatenkov alleges that he was fired in retaliation for his

exercise of FMLA leave in October 2009.

As noted above,

Ignatenkov was granted two weeks leave because he had pneumonia.
He admits that when he returned from his leave, he was not
disciplined for taking leave, and there was no change in his
salary, work schedule, or position.

He also had taken previous

leaves without objection from USF, including at least one absence
for over a month to assist his mother while she was in the United
States.
A prima facie case of FMLA retaliation requires Ignatenkov
to show that (1) he exercised his FMLA rights, (2) his employer
knew that he had done so, (3) he suffered an adverse employment

-24-

action, and (4) a causal link exists between the two events.
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).
the last element, causation, is in dispute.

Only

Ignatenkov primarily

relies on the temporal proximity of his leave and his
termination.

He also contends that Bishop failed to investigate

Ignatenkov’s complaints after he returned from FMLA leave.
In Lindsay v. Yates, 578 F.3d 407 (6th Cir. 2009), a housing
discrimination claim, the plaintiffs claimed that defendants
terminated their purchase contract within days of discovering
that plaintiffs were African-American.

Plaintiffs argued that

temporal proximity alone was sufficient to establish their prima
facie discrimination claim.

In considering their argument, the

Sixth Circuit analogized to cases discussing temporal proximity
and causation in Title VII retaliation claims:
Causation can be proven indirectly through
circumstantial evidence such as suspicious
timing. Specifically, this Court has found
that temporal proximity between an assertion
of Title VII rights and a materially adverse
action, is sufficient to establish the causal
connection element of a retaliation claim
“[w]here an adverse employment action occurs
very close in time after an employer learns
of a protected activity.” Where the nexus is
not “very close,” we have declined to find a
causal connection based on timing alone.
Id. at 418-19 (citations and parenthetical explanations omitted).
The required proximity was also described as “acutely near in
time” in DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004),
where an employee filed an EEOC claim and his supervisor
-25-

recommended his termination thirteen days later.
of time have been found sufficient.

Various periods

See, e.g., Mickey v.

Zeidler, 516 F.3d 516 (employee was fired the same day his
employer was notified of his EEOC charge); McNett v. Hardin Cmty.
Fed. Credit Union, 118 Fed. Appx. 960, 965 (6th Cir. 2004)
(employee was terminated thirteen days after meeting with
regulators about his employer’s loan accounting practices).
Here, approximately six weeks elapsed between Ignatenkov’s
return to work and the incident which resulted in his termination
a week later.

Standing alone, that proximity is insufficient in

this case to give rise to a reasonable inference that there was a
causal link between Ignatenkov’s FMLA leave and his termination.
A six-week lapse might be sufficient if Ignatenkov had some
evidence that USF or his supervisors expressed some hostility
because he had taken FMLA leave, or complained about his absence,
but there is not a scintilla of evidence in the record suggesting
that to be the case.

See, e.g., Bryson v. Regis Corp., 498 F.3d

561 (6th Cir. 2007), where the plaintiff took three months leave
for knee surgery and was terminated on the day she was scheduled
to return.

In addition to the suspicious timing, she also had

evidence from other employees that her supervisor was angry about
her decision to take leave, and that the supervisor “would see to
it that Bryson did not have a job to return to.”

Given the

proximity of the events and this evidence of hostility by the

-26-

supervisor who terminated her, the court found that she had
satisfied her prima facie burden of proof.

Here, in contrast,

six weeks elapsed between Ignatenkov’s return from leave and his
termination, and there is no evidence of any hostility expressed
by anyone about the fact that he took FMLA leave.
Ignatenkov also argues that Bishop failed to investigate his
complaints of FMLA retaliation, citing Bishop’s deposition
testimony at pp. 113-114.

Bishop did not testify that she

ignored or failed to investigate any complaints about FMLA
retaliation.

As full context of the cited testimony reveals, she

was initially asked about Ignatenkov’s July 2009 complaints,
which had been seen by some of his co-workers; none of these
complaints involved an FMLA issue.

Bishop was then asked about

Ignatenkov’s “complaint” of FMLA retaliation, and she was unable
to recall any such complaint or any investigation of any such
complaint that she might have done.

She was asked if during the

course of the litigation, and responding to the “complaint” in
this case, she had located any documents or recalled any
information about any such investigation, and she responded that
she had not found any.

This is a far cry from Ignatenkov’s

characterization of her testimony, and his accusation that she
“failed to investigate” some complaint of FMLA retaliation.

The

only time that Ignatenkov mentioned anything about the FMLA was
in the memo he wrote on December 10, after he had been suspended
-27-

following the altercation with Sawadogo.

(Ignatenkov Dep. Ex. 4)

But even assuming that the temporal connection in this case
would be sufficient to satisfy Ignatenkov’s prima facie burden on
this claim, the Court concludes he has not established a genuine
dispute that USF’s reason for terminating him was a pretext, and
that the real reason for his termination was due to his exercise
of FMLA rights in October 2009 or at any other time.

The same

analysis set forth above with regard to Ignatenkov’s Title VII
claims fully applies to his FMLA claim: he has not established a
genuine dispute that USF’s proffered reason for his termination
had no basis in fact, or did not actually motivate the decision,
or that it was insufficient to motivate his termination.

He has

no evidence that he was treated differently from other employees
who exercised FMLA rights and violated the workplace violence
policy, or who exercised FMLA rights and violated any USF
workplace policies.
4.

Ohio Public Policy Claim.
Ignatenkov also asserts a claim for common law wrongful

discharge under Ohio law.

A public policy wrongful discharge

claim requires the plaintiff to demonstrate:
1. That clear public policy existed and was manifested
in a state or federal constitution, statute or
administrative regulation, or in the common law (the
clarity element).
2. That dismissing employees under circumstances like
those involved in the plaintiff's dismissal would
jeopardize the public policy (the jeopardy element).
-28-

3. The plaintiff's dismissal was motivated by conduct
related to the public policy (the causation element).
4. The employer lacked overriding legitimate business
justification for the dismissal (the overriding
justification element).
Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 171 (Ohio
2011)(internal quotations and citations omitted).

The clarity

and jeopardy elements are generally treated as issues of law,
while causation and overriding justification elements are usually
questions of fact.

Id., citing Collins v. Rizkana, 73 Ohio St.3d

65, 70 (Ohio 1995).
USF contends that Ignatenkov has not satisfied the “clarity”
element because he has not identified a specific source of law on
which his claim is premised, as Dohme requires.

In Dohme,

plaintiff’s job responsibilities included maintenance of his
employer’s fire-protection system.

An insurance adjuster visited

the plant to assess the building, and Dohme’s employer circulated
a list of employees who were authorized to speak with the
adjuster during the visit; Dohme was not one of the authorized
individuals.

Despite the instruction not to do so, Dohme met

with the adjuster and told him that he was missing reports about
certain fire alarm inspections, suggesting that reports had been
deliberately removed from the company’s computer.

When the

employer discovered that Dohme had violated the express directive
concerning contact with the adjuster, Dohme was terminated for
insubordination.
-29-

Dohme filed a wrongful discharge complaint, alleging that
his employer attempted to prevent him from interacting with the
adjuster, jeopardizing workplace safety and exposing employees to
danger.

The Ohio Court of Appeals reversed the trial court’s

judgment in favor of the employer, finding that Ohio had a clear
public policy favoring workplace fire safety, and that
retaliation against employees who raise fire safety concerns
violates that public policy.
The Ohio Supreme Court reversed and held that the employer
was entitled to summary judgment.

Dohme’s reliance on a general

“workplace fire safety” policy was insufficient absent a citation
to a statute, regulation, or other specific source of such a
policy.

Dohme’s reliance on previous Supreme Court opinions

generally discussing the basis for other public policy claims was
insufficient to establish a specific public policy applicable to
his situation.
Here, USF argues that Ignatenkov similarly fails to cite any
specific source of public policy.

Ignatenkov relies on his July

2009 complaint that USF was not properly maintaining the pallet
jacks.

In his response memorandum, he cites 29 U.S.C. §654,

which requires an employer to furnish a workplace “free from
recognized hazards that are causing or likely to cause death or
serious physical harm to his employees.”

The statute further

requires employers to comply with OSHA standards.

-30-

Ignatenkov’s

complained in July 2009 that he was assigned to the freezer
Monday through Friday, “but I still do not have a palletjack.

I

told John Lee to rebid palletjacks because we have many new ones
that are not assigned to anyone, but it never happened.

Also,

management fails to provide maintenance and necessary repair of
the palletjacks even if you fill out the necessary
forms/paperwork.”

(Ignatenkov Dep. Exhibit 2 at ¶4)

His

complaint was about lack of access to a palletjack for his
assigned shift, and his reference to “maintenance and repair” was
clearly set in that context, that he was unable to regularly
secure an operating pallet jack for his use.

This complaint does

not fairly suggest that Ignatenkov was complaining about a
recognized hazard that was likely to cause “death or serious
injury” to USF employees.
Ignatenkov also cites his December 10, 2009 email to Bishop
and Klein, written the day after he was suspended.

He complained

that he was never trained or certified on how to operate the “PIR
machine and forklift,” which was against “OSHA regulations” and
“against the law.”

(Ignatenkov Dep. Ex. 4)1

Bishop asked Virzi

to respond to the December 9 incident, describing her discussions
with Sawadogo and Bradford, and also asking Virzi to comment on
Ignatenkov’s December 10 complaints.

Virzi responded that if

Ignatenkov used racial epithets with Sawadogo, it was a clear

1

Ignatenkov also send a copy of his email to his lawyer.
-31-

violation of company policy “and a rather severe one, ... not
something I feel we can allow.”

Virzi also responded to the lack

of training complaint:
The formal training for Pavel was completed.
Although the formal observation was not
completed he has been observed by management
safely operating the PIR equipment. Pavel
has some responsibility for operating a piece
of equipment he hasn’t been officially
approved to operate, but ultimately it is
management’s responsibility to insure this
doesn’t happen, and if OSHA came into
investigate I think we would get a violation,
although we can show that we have the proper
procedures and policies in place to maintain
a safe working environment. I think Pavel
should be terminated for the incident. Even
if we would suspend him for 3 days or 5 days
he could still call OSHA, in fact he may have
already done so. I think we would be sending
the wrong message if we didn’t terminate him.
(Virzi Dep. Ex. 21)

Ignatenkov argues that Virzi clearly

advocated for Ignatenkov’s termination instead of some lesser
discipline (e.g., suspension for 3 or 5 days) because he
threatened to call OSHA.

Virzi testified that when he wrote this

email to Bishop, he believed the incident with Sawadogo as it was
described to him was sufficiently serious that Ignatenkov should
be terminated regardless of whether he had or would in the future
complain to OSHA.

By mentioning the possibility of suspending

Ignatenkov, he was not suggesting that his termination had
anything to do with OSHA or forklift training.

His email plainly

states his belief that the incident with Sawadogo was “not
something I feel we can allow,” and that “we would be sending the
-32-

wrong message if we didn’t terminate him.”
Ignatenkov’s suggestion that Virzi’s email states or implies
that he wanted to terminate Ignatenkov due to his reference to
OSHA is rather strained.

But even if this post-suspension

complaint about training is sufficiently specific to satisfy the
clarity element of a public policy wrongful discharge claim,
Ignatenkov has not established a genuine factual dispute that
this complaint, or his complaint five months earlier about
maintenance of palletjacks, caused his termination.

He argues

that because this element is generally an issue of fact, it must
be reserved for the jury.

The Court disagrees.

In McDermott v.

Continental Airlines, Inc., 339 Fed. Appx. 552, 2009 U.S. App.
LEXIS 16955 (6th Cir., July 30, 2009)(unpublished), the Sixth
Circuit affirmed summary judgment in favor of an employer on
plaintiff’s public policy wrongful discharge claim.

Plaintiff

alleged that he was fired after lodging several complaints about
safety violations by his employer, Continental Airlines.

The

employer asserted that the plaintiff was fired because of his
involvement with an accident at an airport, and his failure to
truthfully admit his involvement to his supervisor.

There was no

dispute that plaintiff satisfied the first two elements of his
claim: a clear public policy existed in certain FAA and TSA
regulations, and he had often complained about violations of
those regulations.

With regard to a causal link, the court

-33-

rejected his argument that another employee had been terminated
after complaining about safety violations, because the two were
not related and were separated by several years.

The court also

rejected plaintiff’s argument that his supervisor made derogatory
comments to him after he appeared on a radio show complaining
about an FAA violation.

The court found that the supervisor’s

comments were directed at the manner in which plaintiff
communicated his safety complaints (going on a radio show), and
not at the content of his complaint.

Even if the comments were

in response to the substance of his safety complaints, they were
too isolated to give rise to a causal link, as there was no
evidence that the supervisor’s comments were related to
plaintiff’s termination.

Nor could the jury permissibly infer

causation based upon the volume of plaintiff’s safety complaints
over the years; plaintiff’s subjective belief that those
complaints were the real reason he was terminated was simply
insufficient.
The court also held that even if there was some genuine
dispute about the causal link, plaintiff lacked evidence of
pretext in challenging his employer’s proffered justification his lack of honesty about his involvement in the accident.
Plaintiff argued that the process the airline used to confirm his
identity was flawed, and suggested that his supervisor was
targeting him for termination because of his complaints.

-34-

He also

argued that his supervisor knew that he had no reason to lie
about the accident, which suggested that the supervisor lacked an
“honest belief” about plaintiff’s involvement.

The court

reviewed the facts gathered by the supervisor, primarily
statements from other employees who were present the night of the
accident, to reject plaintiff’s arguments.

The court noted that

an employer is not required to use an “optimal” investigation
process, only that the employer make a “reasonably informed and
considered decision,” citing Smith v. Chrysler, 155 F.3d at 807.
The facts gathered by the supervisor during the investigation
substantiated the supervisor’s conclusions that plaintiff had
been involved and was dishonest in denying his involvement.
Here, the Court must conclude that Ignatenkov had not raised
a genuine factual dispute that his termination had anything to do
with his complaint about forklift training, particularly in view
of the fact that he first raised this issue only after he had
been suspended and knew that USF would investigate the Sawadogo
incident.

His July 2009 reference to pallet jack maintenance is

not only vague in referring to any safety concerns, it was made
five months before his termination.
The Court therefore concludes that USF is entitled to
judgment on Ignatenkov’s state law wrongful discharge claim.
CONCLUSION
For all of the foregoing reasons, the Court grants

-35-

Defendant’s motion for summary judgment.

(Doc. 17)

Plaintiff’s

complaint is dismissed with prejudice.
SO ORDERED.
THIS CASE IS CLOSED.
DATED: July 18, 2012

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

-36-