Nadel v. Time Warnder Cable LLC
Filing
36
ORDER that defendant's 30 Motion for Summary Judgment is Granted. Judgement is granted in favor of defendant on all claims and this case is Terminated on the docket of the Court. An appeal of this matter would not be taken in good faith and therefore denied plaintiff leave to appeal in forma pauperis. Signed by Magistrate Judge Karen L. Litkovitz on 9/28/2016. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER NADEL,
Plaintiff,
Case No. 1: l 5-cv-447
Litkovitz, M.J.
vs.
TIME WARNER CABLE LLC,
Defendant.
ORDER
This matter is before the Court on defendant's "Motion for Summary Judgment or, in the
alternative, Summary Adjudication and Memorandum in Support" (Doc. 30), plaintiffs response
in opposition to the motion (Doc. 33), 1 and defendant's reply memorandum (Doc. 35).
I. Background
Plaintiff Christopher D. Nadel, proceeding pro se, instituted this action against defendant
Time Warner Cable LLC (TWC) in July 2015. 2 Plaintiff filed an amended complaint on July 27,
2015, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e, et seq. (Title VII). (Doc. 4). Plaintiff alleges retaliation
and discrimination on the basis of his race, age, gender, color and religion.
Plaintiff makes the following allegations in the complaint: TWC placed plaintiff in a
position as a retail sales representative in one of its retail stores. (Id. at 2). In that job position,
1
Plaintiff filed a second response in opposition on August 22, 2016. (Doc. 34). The Court has not considered the
second filing because (I) it appears to be duplicative of plaintiffs first opposing memorandum, and (2) plaintiff did
not obtain leave of Court before filing a supplemental memorandum as required under the Local Rules of this Court.
See S.D. Ohio Civ. R. 7.2(a)(2) ("No additional memoranda beyond those enumerated [a motion with supporting
memorandum, a memorandum in opposition, and a reply memorandum] are permitted except upon leave of court for
good cause shown.").
2
Defendant Time Warner Cable LLC states it is not a proper defendant and that the proper defendant is TWC
Administration LLC. (Doc. 30 at 1, n.1 ).
he endured "harassment by management, retaliation, discrimination, disease, and tons of stress."
(Id. at 2-3). Plaintiff was " harassed mentally [and] physical[ly] for bringing tax, fraud , extortion
[and] identity theft issues to management's attention;' and he "was given certain jobs which
made [him] sick." (Id. at 3). "[M]anagement" discriminated against him based on his "race, age,
gender, color [and] religion." (Id.). Plaintiff was threatened with physical violence and
retaliated against. (Id.). Plaintiffs "name was slandered when [he] tried to pursue" [sic] and he
was "fired for lies." (Id.).
Plaintiff has attached an unsigned and unswom Equal Employment Opportunity
Commission (EEOC) charge to the complaint. (Id. at 7-8). An EEOC "Dismissal and Notice of
Rights" on the charge dated June 11, 2014, is also attached to the complaint. (Id. at 5).
II. Defendant's summary judgment motion
Defendant TWC moves for summary judgment on plaintiffs claims on the following
grounds: (1) plaintiff did not exhaust his administrative remedies by timely filing an
administrative charge with the EEOC as required in order to pursue his claims in federal court;
(2) plaintiff did not disclose a claim against TWC during the course of bankruptcy proceedings
he instituted and he is therefore judicially estopped from pursuing the claims he brings against
TWC in federal court; and (3) even if plaintiffs claims were properly before this Court, they fail
as a matter oflaw on the merits. (Doc. 30). Defendant contends that plaintiff is unable to
establish a prima facie case of retaliation or discrimination on any of the grounds he asserts. (Id.
at 17-19, 20-23). Defendant further alleges that it has articulated a legitimate nondiscriminatory
and non-retaliatory reason for plaintiffs termination - plaintiffs violation of TWC's Major
Work Rule #30, which requires an employee to report ifhe is charged with or convicted of a
2
criminal offense, including a traffic offense - and plaintiff has not introduced evidence to show
the articulated reason is pretextual. (Id. at 19-20, 23).
Plaintiffs arguments in opposition to defendant's motion are difficult to decipher, but as
best the Court is able to discern plaintiff alleges he exhausted his administrative remedies as
demonstrated by the "Notice of Rights" letter he received from the EEOC. (Doc. 33). Plaintiff
appears to allege that to the extent he did not complete the necessary administrative steps in the
usual order, his omissions resulted from his dire financial circumstances caused by the loss of his
job and other extenuating circumstances. (Id. at 3). Plaintiff further asserts that he filed for
bankruptcy well before his claims for discrimination and retaliation arose; he had no physical
estate and no intention of filing suit; and he "followed all steps required by law" that were
provided to him. (Id. at 4-5). Plaintiff also contends he can prevail on the merits of his claims
because he was a "stellar employee" who was wrongly reprimanded for using TWC's "open door
policy" to alert his employer of "[i]nsubordinate[,] dangerous and very disrespectful so called
leaders" ; there is no evidence that plaintiff failed to perform his job duties or to meet TWC' s
expectations; he did not have any documented " Write Ups"; and there is documentation showing
that he was required "to do more than any other employees" in the retail store, which is evidence
of intentional discrimination and retaliation. (Id. at 5-6).
III. Undisputed facts
Plaintiff began working as a Retail Sales Specialist for TWC on or about January 25,
2013. (Doc. 30-1 , Tina Andrews Deel., ii 3). Plaintiffs job duties included traveling to other
TWC locations to provide coverage and performing other customer care center/store duties as
assigned to him. (Doc. 30-1 , Andrews Deel., Exh. A; Doc. 30-14, Mario Stuckey Deel., ii 3).
3
Plaintiff's job required that he hold a valid driver's license and maintain a clean driving record.
(Doc. 30-1 , Andrews Deel., Exh. A).
In August 2013, plaintiff was involved in a workplace confrontation with Lead Retail
Sales Specialist Jennifer Fehr. (Doc. 30-1, Andrews
Deel. , ~
8). Human Resources Manager
Tina Andrews conducted an investigation, following which plaintiff was issued a final written
warning for insubordination and negative unprofessional behavior with co-workers and
leadership and Fehr received coaching from Andrews and Fehr's supervisor, Mario Stuckey
(Supervisor, Retail Sales).
(Id. ,~~
1, 9, 10; Exhs. B, C; Doc. 30-14, Stuckey Deel. , ~~ I, 6; see
also Doc. 30-1 , Andrews Deel., Exh. F).
TWC Major Work Rule #30 requires employees to promptly notify their department head
if they are "charged with, indicted for or convicted of a criminal offense (including
misdemeanors and traffic violations)." (Doc. 30-1 , Andrews
Deel.,~
20; Exh. H; Doc. 30-14,
Stuckey Deel.,~ JO). On April 3, 20 14, plaintiff informed Stuckey via email that he had been
detained by the police and he provided Stuckey with a copy of a summons for a court appearance
on April 28, 2014. (Doc. 30-14, Stuckey Deel.,~ 7; Doc. 30-1, Andrews Deel., Exh. L).
Stuckey forwarded the email to Andrews, who asked Stuckey and Chris Murray, Manager Retail
Sales, to arrange a time for Andrews to meet with plaintiff about the matter. (Doc. 30-14,
Stuckey Deel. , ~ 7; Doc. 30-1 , Andrews
Deel., ~
15).
On April 3 and 4, 2014, Andrews conducted a public records search and asked the TWC
Security Department to perform a standard background check of plaintiff. (Doc. 30-1, Andrews
Deel., ~ 16). Andrews discovered that plaintiff had been "charged with or convicted of
numerous offenses (including traffic violations)" between August 2012 and October 20 13 which
he had failed to report to TWC, including driving with a suspended license. (Id.).
4
Plaintiff was off work April 4 through April 9, and Andrews was unable to reach him by
phone during this period. (Doc. 30-1, Andrews Deel., ~ 17). Stuckey reached plaintiff by phone
on April 9, 2014, and both he and Andrews spoke to plaintiff about his email to Stuckey and the
summons he had received. (Id.; Doc. 30-14, Stuckey Deel.,~ 9). Andrews asked plaintiff to
provide a written statement about the underlying ticket, which plaintiff did not do. (Id.).
In April 2014, plaintiff submitted a complaint to TWC's Employee Relations alleging he
had been retaliated against for reporting the 2013 incident involving Fehr. (Doc. 30-1 , Andrews
Deel.,~
11 ). At some point plaintiff also sent an email to TWC's Director of Human Resources,
Carol Walker, indicating that TWC was discriminating against him due to his religion and race.
(Doc. 30-1 , Andrew Deel., Exh. F- "5/ 14/2014 Nadel Confidential Detailed Investigation
Summary," p. 3). 3 Michelle Urchek, a manager in TWC's Employee Relations Department in
Charlotte, North Carolina, investigated plaintiffs complaint. (Doc. 30-1 , Andrews Deel., ~ 11 ;
Exh. F). As part of her investigation, Urchek interviewed plaintiff. (Id. , Exhs. E, F). After the
interview, Urchek sent a memo to plaintiff to confirm the issues and concerns he had raised in
the April 14, 2014 interview. (Id. , Exh. E). Urchek wrote that plaintiff alleged that he was being
retaliated against for reporting an incident that occurred with Fehr that involved her yelling at
plaintiff and threatening him with violence, but it was plaintiff who was issued corrective action.
(Id.). Urchek noted that plaintiff alleged he had been treated differently since the incident;
specifically, plaintiff alleged that Fehr claimed she did not receive vacation requests plaintiff
3
This portion of the investigation summary states: "It is important to note that Nadel made statements regarding
discrimination due to his religion and race in an e-mail to HR Director, Carol Walker, which originally prompted
Employee Relations to investigate Nadel's concerns. In this e-mail, one ofNadel's claims was that Fehr was
discriminating against him 'due to what was told to upper management about the conversation that she overheard
about religion and what beliefs I have for my race.' When Urchek asked Nadel to explain, Nadel stated that he was
talking to his wife about what church to go to while he was on break outside and he assumed that Fehr overheard
him. He stated that Fehr did not make any comments that led him to believe she was being discriminatory nor was
he sure that she had heard his conversation with his wife." (Doc. 30-1 , Andrews Deel., Exh. F, p. 3).
5
emailed to her; Fehr gave plaintiff the wrong work schedule and would not assist him with
questions; plaintiff was told he was "not a good fit" for another role within the company, which
had hindered his ability to transfer into a different role; he was not provided training he
requested ; and he was told he would be terminated if he discussed the Fehr incident with other
employees. (Id.) . Plaintiff confirmed by an email to Urchek dated April 18, 20 14, that the letter
accurately reflected his concerns. (Id., Exh D). Plaintiff made no mention of discrimination
based on his race or religion, even though these were the concerns that had prompted the initial
investigation. (See id. , Exh. F, p. 3).
Urchek concluded as a result of her investigation that there was no evidence to support
plaintiffs allegation of retaliation for reporting the Fehr confrontation. (Id. , Exh. F). Urchek
wrote plaintiff a letter dated May 14, 2014, informing him that the investigation had concluded
and advising him of the findings on the concerns he had raised as outlined in the memo she had
sent him in April. (Id., Exh. G). Urchek wrote that she found no evidence that Fehr had
threatened plaintiff with physical violence; that Fehr had treated plaintiff differently by losing his
vacation requests, not informing him of schedule changes, and not assisting him; that a statement
by Murray had hindered plaintiffs ability to transfer to a new role; and although plaintiff had
been asked to keep information confidential during the initial investigation of the 2013 incident,
there was no evidence that he had been threatened with termination if he discussed the incident
with other employees. (Id.). The investigation report concluded that there was no evidence to
support a finding that Fehr or any other member of management was treating plaintiff differently
than other employees. (Id. , Exh. F).
Andrews conducted an additional records search on May 19, 2014, and learned that
plaintiff had fai led to appear in court on April 28, 2014, in compliance with the summons that
6
had been issued, resulting in issuance of a warrant. (Doc. 30- I, Andrews Deel., ~ I 9). Plaintiff,
who had been on leave since April under the Family and Medical Leave Act, subsequently
returned to work on July 1, 20I4. (Doc. 30-1, Andrews Deel.,~ 18). TWC terminated plaintiff
on July I I, 20I4, for the stated reason that plaintiff had violated Major Work Rule# 30. (Id.,~
21; Exh. J).
The evidence of record includes documents from plaintiffs EEOC file, including the
EEOC case log for his charge. (Doc. 30-15, J. Scott Carr Deel., Exh. 2). The documentation
shows that plaintiff completed an EEOC Intake Questionnaire, which he signed and dated April
4, 2004. (Id. at 20-23). Plaintiff checked a box indicating he wanted to file a charge of
discrimination and authorizing the EEOC to "look into" the discrimination he described in the
questionnaire. (Id. at 23). Plaintiffs signature on the form is not sworn or verified. (Id.). The
EEOC sent plaintiff a letter dated April 8, 2014, advising him that a "Charge of Discrimination"
had been drafted as a result of the information he had provided and enclosing the charge form
with a return envelope. (Id. at 24). The EEOC advised plaintiff that he should review the
charge, sign and date it, and return the signed and dated charge to the EEOC to facilitate the
proper handling of the charge. (Id.). The EEOC advised plaintiff:
WE ARE UNABLE TO INVESTIGATE FURTHER WITHOUT A SIGNED
CHARGE FORM. A DETERMINATION WILL BE MADE BASED ON THE
EVIDENCE CURRENTLY IN THE FILE. YOUR CHARGE WILL BE
DISMISSED WITHIN 33 DAYS OF THE DATE OF THIS LETTER IF WE DO
NOT RECEIVE YOUR SIGNED CHARGE FORM.
(Id.).
4
On the charge form completed by the EEOC, boxes for retaliation and for discrimination
based on race, color, sex and religion are checked. (Id. at 14-15). The form indicates that the
latest act of discrimination occurred on April 4, 20 I 4. (Id.). The charge sets forth the following
4
A copy of the unsigned and undated EEOC charge is also attached to the complaint. (Doc. 4 at 7-8).
7
allegations: Plaintiff is bi-racial and Jewish. In July or early August 2013, after plaintiff was
transferred to a new department, his manager Fehr stated that plaintiff could not be Jewish
because he is African-American. Plaintiff was offended by the remark and " voiced [his]
opposition" to it. He was treated differently by Fehr and held to different standards than his coworkers. Fehr threatened plaintiff with physical violence in October 2013. Plaintiff complained
to Murray and Stuckey. In retaliation, Fehr refused to train plaintiff on new products; constantly
changed his schedule without prior notice so it would appear he was either late to work or
extremely early; and talked disparagingly about plaintiff within earshot of his coworkers.
Plaintiff's vacation requests were denied but those of other employees in the department were
not; his paperwork constantly came up missing; he was sent home by Murray when he attempted
to return from a month-long short-tenn disability leave in March 2014 which he had taken due to
stress from alleged retaliation; and he was not paid for his leave despite having accrued time off
to cover part of it. Plaintiff complained to Human Resources about sexual jokes and remarks
made by a coworker on a daily basis, which Fehr also heard. Management had not addressed his
complaints. Plaintiff believed he had been discriminated against due to his race and religion and
retaliated against for his complaints in violation of the anti-discrimination laws. (Id. at 14-15).
The EEOC sent a Notice of Charge of Discrimination to defendant on May 7, 2014,
advising TWC that plaintiff had filed a discrimination charge against it and that no action by
defendant was required at that time. (Doc. 30-1, Andrews Deel., ~ 24; Exh. K). The unsigned
charge was attached to the Notice. (Id.). The case log includes a notation dated June 9, 2014,
indicating that plaintiff failed to return the signed charge form within 33 days. (Doc. 30-17, Carr
Deel., Exh. 2, p. 9). The EEOC closed its file on plaintiff's charge and issued a Dismissal and
8
Notice of Rights on June 11 , 2014. (Id. , p. 7). The EEOC sent the notice to TWC on that same
date. (Doc. 30-1, Andrews Deel., ii 25; Exh. L).
IV. Summary judgment standard
Fed. R. Civ. P. 56 allows summary judgment to secure a just and efficient determination
of an action. The court may only grant summary judgment as a matter of law when the moving
party has identified, as its basis for the motion, an absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The party opposing a properly supported motion for summary judgment "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, 477 U.S . 242, 248 (1986)
(quoting First Nat 'l Bank ofArizona v. Cities Serv. Co., 391 U.S . 253 (1968)). The evidence of
the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at
255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). However, a district court
need not view the facts in the light most favorable to the nonmoving party if that party's version
of events is "blatantly contradicted by the record, so that no reasonable jury could believe it."
Scott v. Harris, 550 U.S. 372, 380 (2007).
The court is not to weigh the evidence and determine the truth of the matter but is to
decide whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. There is no genuine
issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party. Id. (citing Cities Serv., 391 U.S. at 288-289). If the evidence is merely
colorable, Dombrowski v. Eastland, 387 U.S. 82, 84 (1967), or is not significantly probative,
Cities Serv., 391 U.S. at 290, judgment may be granted. Anderson, 477 U.S. at 249-50.
To demonstrate a genuine issue of fact, the opposing party "must do more than simply
9
show that there is some metaphysical doubt as to the material facts. . . . Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
'genuine issue for trial. " ' Matsushita Elec. Indus. Co. , Ltd. v. Zenith Radio Corp. , 475 U.S. 574,
586-87 (1986) (citation omitted).
V. Exhaustion of administrative remedies
Defendant alleges that plaintiff failed to exhaust his administrative remedies because he
did not timely file an administrative charge with the EEOC before filing his action in federal
court. Defendant alleges that plaintiff instead submitted an unsworn questionnaire to the EEOC
and never signed the charge that the EEOC prepared for him. (Doc. 30 at 1; see Doc 30-15,
Carr. Deel., Exh. 2, pp. 9, 20-23). Defendant contends that plaintiff refused to verify the charge
and he affirmatively told the EEOC that he did not want to file a charge, and the EEOC closed
plaintiffs file for lack of "reasonable cause" following multiple unsuccessful attempts to contact
plaintiff. (Id. , pp. 9, 10). Plaintiff denies that he told the EEOC that he did not want to file a
charge and he asserts that the statement in the EEOC case log to the contrary is "pure speculation
and hearsay." (Doc. 33 at 3). Plaintiff alleges that he completed the entire administrative
process as evidenced by the fact that the EEOC issued a determination on his charge and a
"Right to Sue" letter. (Id.).
Exhaustion of administrative remedies is a precondition to filing a Title VII lawsuit. 5
Lockett v. Potter, 259 F. App 'x 784, 786 (6th Cir. 2008) (citing McFarland v. Henderson, 307
F.3d 402, 406 (6th Cir. 2002); Benfordv. Frank, 943 F.2d 609, 612 (6th Cir. 1991)). As a
general rule, a plaintiff must first file a timely charge with the EEOC before pursuing an
employment discrimination action under Title Vil. Younis v. Pinnacle Airlines, Inc. , 610 F.3d
5
A claimant must also exhaust his administrative remedies as a precondition to filing an age discrimination claim
under the Age Di scrimination in Employment Act (ADEA). Hoover v. Timken, 30 F. App' x 511, 512-13 (6th Cir.
2002); 29 U.S.C. § 626(d).
10
359, 361 (6th Cir. 2010). See also Puckett v. Tennessee Eastman Co., 889 F.2d 1481 , 1486 (6th
Cir. 1989) (to bring a Title VII action in federal court, a plaintiff must (1) timely file a charge of
employment discrimination with the EEOC, and (2) receive and act upon the EEOC's right-tosue letter) (citing 42 U.S.C. § 2000e-5(f)(l) and McDonnell Douglas Corp. v. Green, 411 U.S.
792, 798 (1973)). The EEOC charge "shall be in writing under oath or affirmation and shall
contain such information and be in such form as the [EEOC] requires. " 42 U.S.C. § 2000e-5(b).
The EEOC regulations require that " [a] charge shall be in writing and signed and shall be
verified." 29 C.F.R. § 1601.9. To be "verified" means to be "sworn to or affirmed before a
notary public, designated representative of the Commission, or other person duly authorized by
law to administer oaths and take acknowledgements, or supported by an unsworn declaration in
writing under penalty of perjury." Sorrell v. Home Depot US.A., Inc., No. 00-1188, 2002 WL
1397244, at *I (W.D. Tenn. Jan. 2, 2002) (citing 29 C.F.R. § 1601.3(a)). The EEOC charge
must be "sufficiently precise to identify the parties, and to describe generally the action or
practices complained of." Id. See also 29 C.F .R. § 160 l. l 2(b); Williams v. CSX Transp. Co. ,
Inc., 643 F.3d 502, 508 (6th Cir. 2011 ). Accordingly, Title VII plaintiffs cannot bring claims in
a lawsuit that were not included in the EEOC charge. Younis, 610 F.3d at 361 (citing 42 U.S.C.
§ 2000e-5(f)(l); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)). This general rule
serves two purposes: (1) it gives the employer infonnation concerning the conduct about which
the employee complains, and (2) it affords the EEOC and the employer an opportunity to settle
the dispute. Id. at 361-62 (citing Alexander, 415 U.S. at 44).
Because aggrieved employees acting on their own behalf, rather than attorneys, usually
file charges with the EEOC, their prose charges are construed liberally. Younis, 610 F.3d at 362.
the Court may consider claims that are " reasonably related to or grow out of the factual
11
allegations in the EEOC charge." id. (citing Randolph v. Ohio Dep 't of Youth Servs. , 453 F.3d
724, 732 (6th Cir. 2006)). Pursuant to this rule, "whe[n] facts related with respect to the charged
claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not
precluded from bringing suit on that claim." Id. (quoting Davis v. Sodexho, Cumberland Coll.
Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)).
Here, defendant argues that the intake questionnaire submitted by plaintiff does not
satisfy the requirement of 42 U.S.C. § 2000e-5(b) that a charge "shall be in writing under oath or
affirmation[.]" (Doc. 30 at 13, citing§ 2000e-5(b)). Courts, including several district courts in
the Sixth Circuit, have addressed the question of whether an individual may satisfy this
requirement of the statute by submitting a written questionnaire to the EEOC. See, e.g., Woods
v. FacilitySource LLC, No. 2: I 3-cv-621, 2015 WL 247980 (S.D. Ohio Jan. 20, 2015); Dimas v.
Michigan Dept. of Civil Rights, No. 4:02-cv-178, 2004 WL 1397558, at *6 (W.D. Mich. Mar. 19,
2004); Sorrell, 2002 WL 1397244. In Woods, the Court acknowledged that "a questionnaire
alone will not constitute the filing of a charge ifit does not satisfy§ 2000e-5(b)'s requirements
of a 'writing under oath or affirmation' and notice to the employer of the claim being alleged."
Woods, 2015 WL 247980, at *5 (citations omitted). The Court found that these requirements
were satisfied in the case before it where both plaintiffs signed and filed intake questionnaires
with the EEOC that gave the required notice, and the questionnaires were accompanied by
signed, verified letters (i.e., "declaring under penalty of perjury that the letters were true and
correct") that provided more details of the alleged discrimination, identified the plaintiffs' legal
counsel, and requested that "the EEOC treat the questionnaires and letters as charges of
discrimination." Woods, 2015 WL 247980, at *4-5. In addition, the EEOC subsequently sent
plaintiffs letters (I) informing them that it was treating the documentation as a charge and that it
12
had notified the employer that the plaintiffs had filed a charge, (2) providing the plaintiffs with
the EEOC charge numbers it had assigned, and (3) advising the plaintiffs that it would begin the
investigation. Id. , at *4. The EEOC attached to the letters charge forms it had completed based
upon the infonnation the plaintiffs had provided which the EEOC asked the plaintiffs to sign and
return, although there was no evidence that the plaintiffs had done so. Id. The EEOC
subsequently issued right-to-sue letters to the plaintiffs. Id. The Court found that the plaintiffs'
situation was "well within the body of case law finding that the charge requirement is met by a
questionnaire and accompanying materials when together they satisfy all of the legally-required
elements of a charge." Id. , at *5 (citations omitted). The Court concluded that the fact plaintiffs
did not sign the charge forms the EEOC sent them did not change its conclusion because
plaintiffs had verified earlier submissions to the EEOC. Id. (citing Wilkerson v. Grinnell Corp.,
270 F.3d 1314, 1317 (11th Cir. 2001) (signed declaration at the end of intake questionnaire that,
" I swear or affirm under penalty of perjury that the provided information is truthful and correct
to the best of my knowledge.... " satisfied the verification requirements of Title VII and the
EEOC regulations)).
In Dimas, 2004 WL 1397558, the plaintiff argued that he timely filed his lawsuit based
on an EEOC intake questionnaire he had completed prior to filing a charge of discrimination
with the EEOC. Id., at *4. The Court noted that other courts have reached varying results on the
question of whether an intake questionnaire can suffice as a charge of discrimination. Id. , at *45 (collecting cases). The Court concluded that the intake questionnaire the plaintiff had
completed in the case before it sufficed as a charge because the questionnaire contained all of the
information required to be set forth in a charge, including the plaintiff and the employer' s name
and address, the basis of the alleged discrimination, and a factual statement describing the
13
allegedly discriminatory action. Id., at *6; see 29 C.F.R. § 1601.12(a)(l)-(5). Although it was
unclear whether the plaintiff had actually signed the questionnaire, the Court found this fact to be
irrelevant because the plaintiff subsequently filed a formal charge that cured any defects in the
questionnaire as permitted under 29 C.F .R. § 160 I. I 2(b) and the EEOC case log disclosed that
the EEOC assigned a case number based upon the questionnaire; the EEOC sent a package of
documents to the plaintiffs employer before the plaintiff filed the formal charge; and the EEOC
indicated in a letter to the plaintiff that a charge had been filed. Id. The Court therefore
concluded based on the information in the intake questionnaire and the facts surrounding the
plaintiffs completion of it that plaintiff had timely filed a charge. Id.
In Sorrell, 2002 WL 1397244, the Court found that an unsigned EEOC charge form that
had been completed by an EEOC representative but was never signed by the plaintiff, together
with a proposed revised statement of the plaintiffs factual allegations bearing the plaintiffs
signature but no acknowledgement that the statement was made under oath or affirmation or that
it was declared under penalty of perjury, were insufficient to constitute a verified charge filed
with the EEOC. Id. , at *2-3. The Court noted that the proposed revision was a request for a
change to be made to the charge form and for the new amended charge form to be returned to the
plaintiff for her signature, and the evidence showed that the signature on the request was not
intended to be a signature on the charge fonn. Id. The Court concluded that because the plaintiff
had not filed a verified charge with the EEOC, she could not pursue her Title VII claim against
the defendant. Id.
Consistent with the decisions by the various courts in this Circuit, this Court finds that
plaintiff did not exhaust his administrative remedies prior to filing this lawsuit as required by the
governing statute and regulations. The evidence shows that the EEOC drafted a charge for
14
plaintiff to sign that included required information, including plaintiff and the employer's name
and address, the basis of the alleged discrimination, and a factual statement describing the
allegedly discriminatory action as required under 29 C.F.R. § 1601 . l 2(a). (See Doc. 30-15, Carr
Deel., Exh. 2, pp. 14-15). The EEOC also assigned a charge number to plaintiffs claim and
gave TWC notice of the charge. (Id. ; Doc. 30-1 , Andrews Deel., if 24; Exh. K). According to
the EEOC case log, the EEOC had several exchanges with plaintiff regarding filing a charge.
(Doc. 30-15, Carr Deel., Exh. 2, p. 9). However, at no time did plaintiff submit a signed and
verified questionnaire or charge to the EEOC, and neither did he submit a subsequent charge that
cured the defects in the intake questionnaire. When plaintiff failed to return a " signed charge"
after more than 33 days, the EEOC closed its file on plaintiffs charge and issued a Notice of
Right to Sue on June 11, 2014. (Id. ; see also Exh. 2, p. 7). A signed EEOC memorandum dated
June 10, 2014, regarding plaintiffs charge indicates the file was closed for "Not Reasonable
Cause" and states: " It has been more than 33 days since a Charge was sent to [Charging Party]
for signature and it has not been returned. Multiple attempts have been made to ascertain
[Charging Party's] intent to pursue this Charge." (Id. , p. 10). There is no evidence that the
EEOC ever pursued an investigation into a charge filed by plaintiff or notified TWC of an
investigation. Rather, on June 11 , 2014, the same date the EEOC issued its "Dismissal and
Notice of Rights," the EEOC sent TWC a Notice of Charge of Discrimination indicating that no
action was required by TWC at that time. (Id., p. 12). Plaintiffs failure to submit a signed and
sworn declaration to the EEOC at any time during the course of the administrative proceedings
distinguishes this case from Woods, 2015 WL 24 7980, and Dimas, 2004 WL 1397558. The facts
of this case are instead akin to those in Sorrell, 2002 WL 1397244, where the plaintiff failed to
sign an EEOC charge or any type of statement that he acknowledged was made under oath or
15
affirmation or under penalty of perjury. Plaintiff Nadel did not respond to the EEOC ' s requests
that he submit a signed charge if he wished to pursue his complaint. Plaintiff therefore did not
give the EEOC an opportunity to investigate his charge and pursue conciliation efforts with his
employer. Younis, 610 F.3d at 361-62. Because plaintiff failed to exhaust his administrative
remedies by filing a verified charge or a charge and a sworn statement with the EEOC, he is
precluded from pursuing his Title VII claims in this Court.
VI. Resolution of plaintiff's claims on the merits
A. Plaintiff's claims of discrimination based on age, race, color, and religion
Assuming for summary judgment purposes that plaintiff exhausted his discrimination
and retaliation claims, defendant TWC is nonetheless entitled to summary judgment on the
merits of plaintiff's claims. Plaintiff alleges in the amended complaint that he was discriminated
against based on his age, race, color, and religion. 6 (Doc. 4 at 3). To prove a discrimination
claim under Title VII on these grounds, plaintiff must offer "direct evidence of discrimination or
introduce circumstantial evidence that would allow an inference of discriminatory treatment." 7
Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir. 2003). When a plaintiff alleges disparate
treatment based on circumstantial evidence, his claim is analyzed under the McDonnell Douglas
burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Plaintiff may establish a prima facie case of discrimination through circumstantial evidence by
showing that: l) he is a member of a protected class; 2) he suffered an adverse employment
action; 3) he was qualified for the position lost; and 4) he was replaced by an individual outside
6
Plaintiff also alleges discrimination based on his gender, but the gender discrimination claim appears to be limited
to a claim of sexual harassment. The Court will address that claim separately.
7
Age discrimination is barred under the ADEA, 29 U.S.C. § 621 , et seq. Cases arising under the ADEA are
analyzed under the same three-stage framework applicable to a Title VII claim. Grosjean v. First Energy Corp., 349
F .3d 332, 335 (2003).
16
the protected class. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Plaintiff may
also establish the fourth prong of a prima facie case of discrimination by showing that he was
treated less favorably than a similarly-situated individual outside the protected class. See
Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002). The fourth prong is modified for an
age discrimination claim to require replacement by a "substantially" or "significantly" younger
person, which may include an individual within the protected class. 0 'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308, 312-313 (1996); Grosjean, 349 F.3d at 335.
If the plaintiff establishes a prima facie case, the defendant must then offer some
legHimate, nondiscriminatory explanation for its employment decision. McDonnell Douglas
Corp. , 411 U.S. at 802. If the defendant produces such an explanation, the plaintiff must show
that the proffered reason was a pretext for unlawful discrimination. Id. at 804; Chen v. Dow
Chem. Co. , 580 F.3d 394, 400 (6th Cir. 2009). That is, he must point to sufficient evidence that
could lead a reasonable jury to reject the defendant' s proffered explanations. Chen, 580 F.3d at
400 (citations omitted). "Although the burdens of production shift, the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff." White v. Baxter Healthcare Corp. , 533 F.3d 381, 392
(6th Cir. 2008) (citing Texas Dept. o/Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
" [B]ecause a prima facie case [of discrimination] and sufficient evidence to reject the
employer' s explanation may permit a finding of liability ... a plaintiff [need not] always
introduce additional, independent evidence of discrimination" to survive summary judgment.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149 (2000). Nonetheless, there are
also "instances where, although the plaintiff has established a prima facie case and set forth
17
sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude
that the action was discriminatory. " Id. at 148.
Plaintiff has not come forward with competent evidence to create a genuine issue of
material fact on his prima facie case of discrimination based on his age. 8 Plaintiff has not made
any allegations or produced any evidence to show that he is a member of the protected group
under the ADEA, which protects workers at least 40 years of age. Mickey v. Zeidler Tool and
Die Co. , 516 F.3d 516, 521 (6th Cir. 2008). Plaintiff listed his date of birth as 1983 in the EEOC
Intake Questionnaire, which indicates he does not fall within the protected class. (Doc. 30-15,
Carr Deel., Exh. 2, p. 20). Moreover, plaintiff has not made any allegations or submitted any
evidence related to discrimination based on his age. Defendant is therefore entitled to summary
judgment on plaintiffs age discrimination claim.
Plaintiff has also failed to come forward with competent evidence to create a genuine
issue of material fact on his claims of discrimination based on his race, color, and religion. 9
Defendant has introduced evidence that after plaintiff was terminated, TWC hired an AfricanAmerican female, Tamiko Coleman, as plaintiffs replacement. (Doc. 30-1 , Andrews
Deel. , ~
23). Plaintiff does not dispute that the position he lost was filled by an African-American
female, and neither has plaintiff introduced any evidence as to the religious affiliation of his
replacement. In addition, plaintiff has not introduced any evidence to show that he was treated
8
Even if plaintiffs unswom questionnaire and unsigned EEOC charge could be construed together as a valid charge
for exhaustion purposes, neither document refers to discrimination on account ofplaintifrs age and the age
discrimination box on the EEOC charge completed by the EEOC is not checked. (Doc. 30-15, Carr Deel., Exh. 2,
pp. 14-15, 20-23). Thus, plaintiff did not exhaust his administrative remedies as to the age discrimination claim for
this additional reason.
9
Defendant alleges that in determining whether plaintiff can establish a prima facie case of discrimination, the Court
is limited to considering whether actions taken prior to plaintiffs July 2014 termination constituted adverse
employment actions because the complaint alleges plaintiff was given "certain jobs which made [him] sick." (Doc.
30 at 17, n.6, citing Doc. 4 at 3). The Court disagrees and finds that construing the complaint in this manner would
be inconsistent with the requirement that pro se filings be liberally construed. S ee Erickson v. Pardus, 551 U.S. 89,
94 (2007). In any event, defendant assumes that plaintiff challenges his termination as the adverse employment
action and argues that such claim fails on the merits. (Id.).
18
less favorably than any individuals outside the protected classes with respect to his race, color, or
religion. Plaintiff alleges that, "There is only documented evidence that the Plaintiff was
required to do more than all other employees ... ." (Doc. 33 at 6). However, plaintiff has not
introduced any documentation to support his allegation. 10 Plaintiffs generalized conclusion,
made without any reference to documentary evidence, is not sufficient to permit an inference that
defendant treated him less favorably than other employees outside the protected classes. See
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) ("[T]he party opposing [a motion
for summary judgment] ... must make an affirmative showing with proper evidence in order to
defeat the motion." (internal quotation marks omitted). Plaintiff therefore has not satisfied the
fourth prong of his prima facie case for his claims of discrimination based on his color, race, and
religion.
Even assuming plaintiff could establish a prima facie case of discrimination based on his
race, color or religion, defendant has articulated a legitimate, nondiscriminatory reason for
plaintiffs discharge. Defendant asserts that it terminated plaintiff because he violated Major
Work Rule # 30. (Doc. 30-1 , Andrews Deel.
~
21; Exh. J). Plaintiff has not introduced evidence
that creates an issue as to whether the reason defendant has articulated as the basis for his
discharge is pretextual. Plaintiff alleges in his response to the summary judgment motion that he
complied with Major Work Rule # 30 by reporting the April 2014 traffic violation and summons.
(Doc. 33 at 3). He further alleges that his "requirements" had changed multiple times due to
promotions he had received, and he contends that the Retail Sales Representative position did not
require him to drive. (Id. at 3-4). Plaintiff further speculates that if he had not disclosed his
criminal history during the first "2. 75 years of his employment" when he did not report to
10
Plaintiff has attached several documents to his opposing memorandum. (Doc. 33 at 9-2 7). However, the
documents do not show there is a genuine issue of material fact as to any of plaintiffs claims.
19
Andrews, Murray or Stuckey, he would not have been offered the position of Retail Sales
Representative. (Id. at 4). Plaintiff also contends that he was a "stellar employee" with a clean
work history, and he denies that he was insubordinate. (Id. at 5-6). Plaintiff's vague allegations,
without any reference to affidavits or documentary evidence to support them, fall far short of
satisfying plaintiff's burden to come forward with evidence establishing a material issue of fact
as to whether the reason proffered by defendant for his termination is pretextual. See Alexander
v. CareSource, 576 F.3d 551 , 558 (6th Cir. 2009) ("[T]he party opposing [a motion for summary
judgment] ... must make an affirmative showing with proper evidence in order to defeat the
motion.") (internal quotation marks omitted). Defendant has submitted affidavits and
documentary evidence to show that plaintiff's position required a "[v]alid driver's license and a
clean driving record" (Doc. 30-1, Andrews
Deel.,~
3, Exh. A); that the Final Written Warning
issued to plaintiff in August 2013 cited several prior instances of "unacceptable" and
"unprofessional" behavior that were a "direct violation of ... TWC Standards of Business
Conduct" (Id., Exh. C); and that plaintiff failed to report his traffic violations as required by
TWC Major Work Rule #30 (Id.,~ 16; Exh. H). Plaintiff's response in opposition to defendant' s
motion for summary judgment does not call this evidence into question and fails to satisfy his
burden to establish a material issue of fact for resolution by the fact-finder as to whether he was
discharged for violating Major Work Rule #3 0. Anderson, 477 U.S. at 252.
Insofar as plaintiff alleges he was the victim of sex discrimination, his claim appears to
be premised on the allegation in his EEOC charge that he "witnessed sexually based jokes and
conversations on a daily basis from a coworker," which he had complained about to no avail.
(Doc. 4 at 7-8). Plaintiff's claim is therefore properly construed as a sexual harassment claim.
Title VII prohibits "the creation of a hostile work environment" on the basis of an employee's
20
gender. Eisenbaum v. Senior Lif style Corp., 560 F. App'x 496, 499 (6th Cir. 2014) (quoting
e
Vance v. Ball State Univ., --U.S. --, 133 S.Ct. 2434, 2441 (2013)). To prevail on a hostile work
environment claim based on gender harassment, plaintiff must establish that ( 1) he is a member
of a protected class, (2) he was subjected to unwelcome harassment, (3) the harassment was
based on his gender, (4) the harassment had the effect of unreasonably interfering with his work
performance by creating a hostile, offensive, or intimidating work environment, and (5) the
defendant knew or should have known about the harassment and failed to act. Williams v. CSX
Transp. Co., inc., 643 F.3d 502, 511 (6th Cir. 2011); Hafford v. Seidner, 183 F.3d 506, 512 (6th
Cir. 1999).
Although plaintiff made an allegation of sexual harassment in his EEOC charge and a
generalized claim of sex discrimination in the complaint, the complaint includes no allegations
related to sexual harassment. Plaintiff alleges only that he was discriminated against by
management "for . .. gender[.]" (Doc. 4 at 3). Plaintiff claims that he was harassed "mentally
[and] physical[ly]," but he alleges the harassment resulted from "bringing tax, fraud, extortion
[and] identity theft issues to management's attention. " (Id.). Plaintiff does not make any
allegations about harassment pertaining to his gender. Nor has plaintiff produced any evidence
in response to defendant's summary judgment motion to show he has an actionable sexual
harassment claim. There is no evidence in the record to substantiate a claim that plaintiff was
harassed by co-workers or supervisors based on his gender or that such harassment had the effect
of unreasonably interfering with his work performance by creating a hostile work environment.
For these reasons, plaintiff cannot prevail on his sex discrimination claim and defendant is
entitled to summary judgment on the claim.
21
B. Plaintiff's retaliation claim
Title VII prohibits an employer from retaliating against an employee because he opposed
unlawful discrimination or because he "made a charge ... or participated in any manner in an
investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a); Univ. of Texas
Sw. Med. Ctr. v. Nassar, -- U.S. --, I 33 S.Ct. 2517, 2522 (2013). To establish a prima facie case
ofretaliation under Title VII, plaintiff must show that (I) he engaged in activity protected under
Title VII; (2) his employer knew of the exercise of the protected activity; (3) he was subjected to
an adverse employment action; and (4) there was a causal connection between the protected
activity and the adverse employment action. Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th
Cir. 2009) (citing Niswander v. Cincinnati Ins. Co., 529 F.3d 7 14, 720 (6th Cir. 2008)). If
plaintiff establishes a prima facie case of retaliation, the burden of production shifts to defendant
to "articulate some legitimate, non-discriminatory reason" for its actions. Id. If defendant
satisfies its burden, plaintiff bears the burden of demonstrating that the proffered reason was
pretextual. Id. A plaintiff asserting a retaliation claim under § 2000e-3(a) must establish that his
protected activity was a but-for cause of the alleged adverse action by the employer. Nassar, 133
S.Ct. at 2528. That is, the plaintiff must show that " [t]he unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer." Id. at 2533.
The practice about which the individual complains need not ultimately be found to be unlawful;
it is only necessary that the plaintiff have a "reasonable and good faith belief' that the challenged
conduct violated Title VII. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579-80 (6th Cir. 2000)
(citing EEOC Compliance Manual, (CCH)
~
8006)).
Defendant argues that plaintiff cannot establish a prima facie case of retaliation. (Doc. 30
at 20-23). Defendant contends that Title VII does not protect participation in an internal
22
investigation; instead, the investigation must take place pursuant to a pending EEOC charge.
(Id., citing Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542-43 (6th Cir. 2003)). Defendant
therefore alleges that to the extent plaintiffs retaliation claim is premised on his complaints to
TWC management and TWC Employee Relations about the August 2013 workplace incident
with Fehr, the first prong is not satisfied. To the extent plaintiff seeks to rely on his submission
of the EEOC questionnaire as the protected activity, defendant alleges that plaintiff's claim must
fail because he cannot show a causal connection between that activity and the adverse
employment action, i.e., his termination. Defendant alleges that its investigation into plaintiff's
violation ofTWC Major Work Rule #30 began before it had notice of plaintiffs EEOC
submission, such that the temporal proximity between plaintiff's protected activity and his
termination is insufficient to support an inference of a causal connection between the two events.
(Id. at 22-23). Finally, defendant contends it has asserted a legitimate, nonretaliatory reason for
plaintiff's termination - his violation of Major Work Rule #30 - and plaintiff has not produced
any evidence to rebut the proffered reason and show it was not the real reason for his
termination. (Id. at 23).
Initially, the Court rejects defendant' s argument that internal complaints to management
are insufficient to invoke the protections of Title VII's anti-retaliation provision when those
complaints are unrelated to a pending EEOC charge. Section 2000e-3(a) prohibits retaliation
against an employee who has "opposed" any practice by the employer made unlawful under Title
VII (the "opposition clause") or against an employee who has "participated" in any manner in an
investigation under Title VII (the "participation clause"). Johnson, 215 F .3d at 578 (citations
omitted). Examples of "opposing" conduct that may be protected by Title VII include
"complaining to anyone (management [or] other employees ...) about allegedly unlawful
23
practices," although the manner of opposition must be "reasonable." Id. at 579 (citing EEOC
Compliance Manual, (CCH) il 8006). Thus, insofar as plaintiff made internal complaints to
TWC management or Human Resources about employment practices or conduct that he
reasonably and in good faith believed violated Title VII, his complaints are sufficient to satisfy
the first prong of his prima facie retaliation claim.
The basis of plaintiffs retaliation claim is not clear from the complaint. Plaintiff
generally alleges that he was retaliated against, but he does not present any allegations to support
a claim that he was retaliated against because he opposed unlawful discrimination or because he
made a charge or participated in a proceeding under Title VII. Plaintiff alleges only that he was
harassed by defendant for " bringing tax, fraud, extortion [and] identity theft issues to
management' s attention." (Doc. 4 at 3). These allegations do not demonstrate that plaintiff
engaged in activity protected under Title VII and therefore cannot support a retaliation claim
under 42 U.S.C. § 2000e-3(a).
Plaintiff alleges in the unsigned EEOC charge attached to the complaint that he was
retaliated against after he "voiced [his] opposition" to an offensive remark Fehr made about his
religion and/or race in late July/early August 2013. (Doc. 4 at 7). The charge states that Fehr
purportedly stated that plaintiff could not be Jewish because he is African-American and that
Fehr treated plaintiff differently and held him to different standards after he opposed the remark.
(Id.). Plaintiff's allegations cannot support a retaliation claim against TWC. Plaintiff did not
have an objectively reasonable basis to believe that the single remark he attributes to Fehr
constituted unlawful harassment based on his race or religion. See Younis, 610 F.3d at 362 (a
plaintiff must present evidence of harassment that "unreasonably interfer[es] with [his] work
performance and creat(es] an objectively intimidating, hostile, or offensive work environment"
24
to establish a hostile work environment). Further, even assuming plaintiff reasonably believed
that Fehr's remark constituted unlawful discrimination, plaintiff has not produced any evidence
showing he "opposed" the remark. Specifically, plaintiff has not submitted any evidence to
show that he complained to Fehr or to any other employee at TWC about the remark or that
anyone at TWC was aware of the alleged remark prior to May 20 I 4, when TWC received notice
of plaintiff's EEOC complaint. 11 (Doc. 30-1 , Andrews Deel., Exh. K). Thus, plaintiff cannot
satisfy the first and second prongs of a retaliation claim based on Fehr's purported comment
regarding his religion and race.
In addition, there is no evidence of a causal connection between Fehr's purported remark
and the subsequent retaliatory actions plaintiff alleges. Plaintiff alleged in the EEOC charge that
Fehr had retaliated against him in a number of ways, but he alleged the retaliation stemmed from
his complaint to Murray and Stuckey about an incident involving Fehr during which she
allegedly threatened plaintiff with physical violence. 12 (Doc. 4 at 7). Plaintiff confirmed to
Urchek during her investigation of his complaint to TWC that the retaliatory actions he alleged i.e., allegations that Fehr refused to train him on new procedures, constantly changed his
schedule without prior notice, talked disparagingly about plaintiff within earshot of his
customers, and denied his vacation requests - had occurred after he reported the August 2013
incident with Fehr during which she allegedly threatened plaintiff with violence and not when
Fehr allegedly made the statement concerning African-Americans and the Jewish faith. (Doc.
11
As indicated earlier, TWC's records indicate that plaintiff complained to Human Resources prior to May 2014
that Fehr was discriminating against him because she had "overheard" plaintiff talking to his wife about "what
church to go to." (Doc. 30-1 , Andrews Deel., Exh. F). However, plaintiff admitted when questioned about the
incident that he did not know whether Fehr had actually overheard his conversation, and she had not made any
comments that led plaintiff to believe she was discriminating against him. (Id.). Further, this incident has no
apparent connection to the incident described in the EEOC complaint.
12
Plaintiff alleged that the incident occurred in October 20 13, but TWC documentation shows the incident occurred
in August of 20 13. (See Doc. 30-1 , Andrews Deel., Exhs . B, C, F).
25
30-1 , Andrews Deel., Exhs. D, E). Accordingly, plaintiff cannot establish the fourth prong of a
prima facie case ofretaliation based on his alleged opposition to a discriminatory remark Fehr
purportedly made in the summer of 2013.
Finally, plaintiff has not produced evidence to support an inference ofretaliation based
on his EEOC filings and his termination. The first three prongs of a prima facie case are
arguably satisfied with regard to plaintiffs termination. Plaintiff completed an EEOC
questionnaire on April 4, 2014 (Doc. 30-15, Carr Deel., Exh. 2, pp. 20-23), and the EEOC
drafted a charge on plaintiffs behalf on April 7, 2014. (Id., pp. 14-15). 13 TWC was aware of
plaintiffs complaint to the EEOC on or about May 7, 2014, when the EEOC sent TWC the
charge it had drafted on plaintiffs behalf. (Doc. 30-1, Andrews Deel., Exh. K). TWC took an
adverse employment action against plaintiff when it terminated his employment on July 11,
2014.
However, there is insufficient evidence of a causal connection between plaintiffs
protected activity and the adverse job action so as to establish a prima facie case of retaliation .
The only evidence of a causal connection between plaintiffs complaint to the EEOC and his
termination is the temporal proximity between the two events. See Mickey, 516 F.3d at 525
("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 ofretaliatory conduct to establish causality."). Here, approximately two months
13
Plaintiff also filed a complaint with TWC Employee Relations in April 2014 alleging unlawful retaliation by Fehr.
(Doc. 30-1 , Andrews Deel., iJ 11 ; Exh. F- "Nadel Confidential Detailed Investigation Summary" noting complaint
was received as a TWC referral on April 7, 2014).
26
elapsed between the date defendant learned of plaintiff's EEOC filing and the date of plaintiff's
termination. During the intervening time period, TWC investigated plaintiff's driving record
based on a public records search it first performed on April 3, 2014 - the day before plaintiff
contacted the EEOC - following plaintiff's report that he had been detained by the police and
had received a summons to appear in court. (Doc. 30-1 , Andrews Deel., iii! 15, 16). TWC
learned that plaintiff had received several moving violations between August 2012 and October
2013 that he had failed to report. (Id. , if 16). TWC also learned that plaintiff had failed to appear
in court on the summons he had reported and that a warrant had been issued. (Id., if 19). Thus,
defendant first became aware during the intervening period that plaintiff had violated Major
Work Rule #30, which requires an employee to report convictions for traffic violations. (Id.,
Exh. H). In light of these circumstances, temporal proximity alone is insufficient to establish a
causal connection between plaintiff's protected activity and his termination.
Finally, even if plaintiff could establish a prima facie case of retaliation, defendant has
asserted a legitimate, nonretaliatory reason for plaintiff's termination - his violation of Major
Work Rule #30 - and plaintiff has not produced any evidence to show that this was not the real
reason for his termination. For the reasons discussed earlier, plaintiff's opposing memorandum
does not call into question whether he failed to report traffic violations as alleged by defendant
and falls far short of satisfying plaintiffs burden to come forward with evidence establishing a
material issue of fact for resolution by the fact-finder on his Title VII retaliation claim.
Anderson, 477 U.S. at 252. Defendant is therefore entitled to summary judgment in its favor on
plaintiff's retaliation claim.
27
VII. Conclusion
Plaintiff failed to timely exhaust his administrative remedies as required in order to
pursue his Title VII and ADEA claims in this Court. Even assuming plaintiff had fully
exhausted his administrative remedies, he has failed to produce sufficient evidence to create a
genuine issue of material fact on the me1its of his claims. Defendant is therefore entitled to
summary judgment on all claims. 14
IT IS THEREFORE ORDERED THAT:
I. Defendant's motion for summary judgment (Doc. 30) is GRANTED. Judgment is granted in
favor of defendant on all claims and this case is TERMINATED on the docket of the Court.
2. The Court certifies pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an appeal of
this Order would not be taken in good faith and therefore denies plaintiff leave to appeal in
forma pauperis. Plaintiff remains free to apply to proceed informa pauperis in the Court of
Appeals. See Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd
v. United States Postal Serv., I 05 F.3d 274, 277 (6th Cir. 1997).
Date:
~!£,~
f/,z8 /!iP
United States Magistrate Judge
14
In light of the Court's disposition of plaintiff's claims on administrative exhaustion grounds and the merits, the
Court need not address whether plaintiff is judicially estopped from pursuing his claims by failing to disclose his
claim against TWC in his bankruptcy proceedings.
28
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