Metellus v. USA et al
Filing
35
ENTRY AND ORDER granting 30 Defendant's Motion for Summary Judgment and terminating case. Signed by Judge Thomas M. Rose on 5-25-2018. (de)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Johnathan M. Metellus,
Plaintiff,
v.
Case No. 3:16-cv-300
Judge Thomas M. Rose
Heather Wilson, Secretary of the United States
Air Force,1
Defendant.
ENTRY AND ORDER GRANTING DEFENDANT=S
MOTION FOR SUMMARY JUDGMENT, ECF 30, AND
TERMINATING CASE.
Pending before the Court is Defendant=s Motion for Summary Judgment. ECF 30.
Therein, Defendant, Secretary of the Air Force, requests that the Court grant summary judgment
on Plaintiff Johnathan M. Metellus’s claims of race discrimination, hostile work environment and
retaliation. Because Plaintiff has no direct evidence that Defendant’s decisions not to promote
Plaintiff were motivated by gender animus, and because he has no evidence to disprove
Defendant’s asserted non-discriminatory reasons for promoting others, and because there is no
evidence of a hostile work environment, Defendant’s motion will be granted.
1 Plaintiff’s Complaint alleged Title VII violations and Intentional Infliction of Emotional Distress and named both
the Secretary of the Air Force and the United States of America as Defendants. Because Plaintiff subsequently
voluntarily dismissed his IIED claim (ECF 11), the sole proper remaining Defendant in this action is the Secretary of
the Air Force. See 42 U.S.C. § 2000e-16(c); Ramsey v. Mnuchin, No. 1:15-cv-575, 2017 WL 2775114, at *1 n.1 (S.D.
Ohio June 27, 2017) (only proper defendant in Title VII suit is head of agency).
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I.
Background
Plaintiff Johnathan M. Metellus was hired as a civilian cook supervisor in the summer of
2014 to oversee approximately 13 employees in the hospital kitchen at WPAFB Medical Center.
Plaintiff began work in October 2014, but did not assume supervisory duties until December 2014
when he completed the required training. Throughout his tenure, Plaintiff, an African-American
male, reported directly to his first-line supervisor Master Sergeant Jerry Fondren, an
African-American male, and second-line supervisor Lieutenant Colonel James Weinstein, a
Caucasian male who oversaw the Medical Center’s clinical nutrition and food services. (ECF 25,
Weinstein Decl., ¶¶ 2–3 at PageID 262–631; ECF 26, Fondren Decl., ¶¶ 2–3 at 309.)
Plaintiff’s supervisors were generally pleased with the quality of his work and food
preparation. He consistently received positive evaluations, was never disciplined, and never
subjected to any adverse employment action. (ECF 25, Weinstein Decl., ¶4 at 263; ECF 26,
Fondren Decl., ¶10 at 312.) But Plaintiff’s relationship with his subordinates was sometimes
difficult. Plaintiff believed his subordinates were too friendly with management and often
insubordinate to him. (See, e.g., ECF 24, September 25, 2017 Deposition of Johnathan Metellus
(“Metellus Dep. II”), Ex. 7 at 223; ECF 25, Weinstein Decl., Ex. F at 277–81.) They, in turn,
chaffed at his managerial style and periodically complained to M. Sgt. Fondren and Lt. Col.
Weinstein about how he treated them. (ECF 25, Weinstein Decl., ¶5 at 263; ECF 26, Fondren
Decl., ¶10 at 312.)
Less than three weeks after starting, Plaintiff was confronted in the hallway by Sean
Fennell, one of the kitchen cooks. Fennell, upset that Plaintiff repeatedly belittled him in front of
customers, yelled: “You are this close to me taking you out,” and “How does it feel to be
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embarrassed in public now.” (ECF 26, Fondren Decl., Ex. A at 315–19.) Several individuals
including M. Sgt. Fondren and Lt. Col. Weinstein observed the exchange. (Id.) Weinstein
instructed Fondren to collect witness statements and sent Fennell home until Civilian Personnel
could be contacted. (Id. at 315.) When Fennell returned to service, he apologized to Plaintiff
several times and continued to work in the kitchen. (ECF 25, Weinstein Decl., ¶6 at 263.)
The USAF disciplined Fennell in accordance with its policies, which require the first-level
supervisor to propose discipline action and the second-level supervisor to approve the final
decision. (ECF 27, Declaration of Monica Bryant-McGuire (“Bryant-McGuire Decl.”), ¶3 at 364–
65.) Because Plaintiff had not completed his supervisory training, responsibility for Fennell’s
discipline fell to Fondren and Weinstein, who were serving as Fennell’s first and second-level
supervisors, respectively. (ECF 26, Fondren Decl., ¶5 at 310–11.) Fondren consulted with
Monica Bryant-McGuire from Civilian Personnel and shared with her the witness statements he
had collected. (ECF 27, Bryant-McGuire Decl., ¶5 at 365.) While Plaintiff had requested that
Fennell be terminated or suspended, an option Fondren and Weinstein considered,
Bryant-McGuire determined that, under the USAF’s progressive discipline policy, the appropriate
discipline for Fennell’s outburst was an oral admonishment. (Id.; ECF 26, Fondren Decl., Ex. O at
350.) She stated that she assessed Fennell’s statements against the Metz factors and concluded that
they did not constitute a true threat. See Metz v. Dep’t of Treasury, 780 F.2d 1001 (Fed. Cir. 1986).
Her recommendation also took into consideration Fennell’s clean disciplinary record. (ECF 27,
Bryant-McGuire Decl., ¶5 at 365.) Bryant-McGuire, an African-American, was not even aware
of Plaintiff’s race at the time or the color of either Plaintiff or Fennell, who is Caucasian. (Id.)
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M. Sgt. Fondren and Lt. Col. Weinstein followed Civilian Personnel’s recommendation.
An oral admonishment issued on November 17, 2014 and was entered onto Fennell’s permanent
record. (ECF 26, Fondren Decl., Ex. D at 322.) Fondren also sent letters to Plaintiff and Fennell
informing them of the availability of counseling services through the Employee Assistance
Program. (ECF 26, Fondren Decl., ¶4 at 310.) During the two and half years he served as
Fennell’s direct supervisor, Plaintiff never had to discipline him and even nominated him as
employee of the quarter. (ECF 24, Metellus Dep. II, 10:25–12:2 at 166.) While Plaintiff alleges
that he orally requested a transfer following the incident to avoid working alongside Fennell, he
never pursued that option or submitted a written request. (ECF 25, Weinstein Decl., ¶15 at 266.)
Plaintiff also alleges that Defendant racially discriminated against him by undermining his
supervision of his Lead Cook, Christian Budzinack. Budzinack resigned after only eight months,
when the USAF initiated removal proceedings against him at the behest of Plaintiff and with the
support of Civilian Personnel.
Plaintiff’s issues with Budzinack began shortly after Plaintiff’s arrival at WPAFB.
Plaintiff documented his initial concerns in a letter of counseling that he issued to Budzinack on
December 8, 2014. The letter charged that Budzinack’s actions were disrespectful and were
undermining Plaintiff’s authority in front of the other kitchen staff. (ECF 24, Metellus Dep. II, Ex.
7 at 223.) Plaintiff elected not to pursue discipline at this point, even though it was within his
discretion (and his responsibility) as first-level supervisor to do so.
Around this time, Plaintiff also suspected that Budzinack was drinking on the job. He
raised this concern with Lt. Col. Weinstein. After consulting with Human Resources, Weinstein
emailed an alcohol observation checklist to Plaintiff along with instructions on how to document
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his suspicions. (ECF 25, Weinstein Decl., Ex. A at 267-69.) Plaintiff never raised the issue with
management again nor documented the concern in his letters of counseling or his memoranda
regarding Budzinack’s performance. Plaintiff concedes that he never submitted a completed
form because he was not able to fully verify that Budzinack was drinking on the job. (ECF 24,
Metellus Dep. II, 34:15–35:1 at 172.)
Plaintiff continued to find fault with Budzinack’s attitude and proficiency as a cook. In
January 2015, he drafted a second counseling letter detailing Budzinack’s shortcomings and
perceived insubordination over the previous month. He sent a draft of the letter to Lt. Col.
Weinstein and asked that the Colonel “make recommendation if necessary and we can discuss.”
(ECF 25, Weinstein Decl., Ex. B at 270-73.) Weinstein did not make any recommendations. He
reminded Plaintiff that responsibility for discipline fell to Plaintiff as the first-level supervisor and
that Civilian Personnel would assist him as needed. (Id., ¶11 at 264.) Several weeks later Plaintiff
issued Budzinack a final version of the counseling letter, identical to the draft he had circulated to
Weinstein. (ECF 24, Metellus Dep. II, Ex. 9 at 226–28.)
In March 2015, Plaintiff drafted a negative performance review for Budzinack that marked
him deficient in 4 of 5 categories and listed his overall performance as unacceptable. (ECF 27,
Bryant-McGuire Decl., Ex. C at 379.) M. Sgt. Fondren, as Budzinack’s second-level supervisor,
reviewed the rating and did not feel comfortable signing the report because he felt there was not
adequate documentation at the time to support the rating. (ECF 26, Fondren Decl., ¶8 at 311.) On
the advice of Civilian Personnel, M. Sgt. Fondren drafted his own review and Lt. Col. Weinstein
submitted the non-concurring appraisals. (Id.; ECF 25, Weinstein Decl., ¶13 at 265.) Before the
final appraisals could be given to Budzinack, however, Plaintiff voluntarily elected to withdraw
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and shred his review in order to avoid any unnecessary tension. (ECF 24, Metellus Dep. II, 41:5–
15 at 174.) Weinstein instructed Plaintiff on multiple occasions that he was not required to
withdraw his review and that it was incumbent that he submit the appraisals he thought
appropriate. Weinstein documented these conversations in two contemporaneous memorandums
for the record. (ECF 25, Weinstein Decl., Ex. D & E at 275, 276.)
After the review period, Plaintiff began documenting his discussions and concerns in
Budzinack’s Personnel File. (See ECF 27, Bryant-McGuire Decl., Ex. C at 380-83.) He also
sought guidance from Monica Bryant-McGuire of Civilian Personnel on how to remove
Budzinack. In May 2015, he emailed her a three-page memorandum outlining his case for
Budzinack’s removal. (Id.) The memorandum attached a copy of the withdrawn performance
review and an excerpt of Budzinack’s Personnel File documenting ten counseling sessions since
March 19, 2015. (Id.) Bryant-McGuire requested additional detail, which Plaintiff provided in a
two-page memorandum and a follow-up email attaching photos of food that Budzinack had
prepared, and which Plaintiff deemed not acceptable to serve. (Id., Ex. E & F at 391–93, 394– 97.)
Bryant-McGuire reviewed the material and determined that removal would be an appropriate
employment action in light of the concerns about Budzinack’s performance. She relayed her
recommendations to M. Sgt. Fondren along with the supporting documentation. (Id., ¶7 at 366–
67.)
Because Plaintiff was going on leave, Fondren was going to serve as the first-level
supervisor for the proposed action. Before removal was finalized, however, Budzinack resigned
rendering the issue of his removal moot. (Id.)
Besides Fennell and Budzinack, in his two and half years at WPAFB, Plaintiff butted heads
with nearly every employee under his supervision. Plaintiff’s employees would sometimes bring
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their complaints about his management style to Fondren and Weinstein. (ECF 25, Weinstein Decl.,
¶5 at 263; ECF 26, Fondren Decl., ¶10 at 312–13.) Most of the complaints took issue with
Plaintiff’s condescending tone to his subordinates and did not rise to the level of actionable
conduct. (Id.) In many cases, Fondren reminded the employees that Plaintiff was their supervisor
and urged them to address the problem with him first. (Id.) In August 2016, however, Kellie
Gerber submitted a written complaint to Fondren that he was compelled to investigate. (ECF 26,
Fondren Decl., ¶12 & Ex. L at 313, 337–38.)
Gerber alleged that Plaintiff had insisted she cook her soup in a large kettle rather than the
smaller stockpot that she had previously been using without complaint. Because of her stature,
Gerber did not feel safe using the larger kettle and worried that she would burn herself or those
around her. (Id.) When she communicated this fear to Plaintiff, he responded by writing in her
personnel file that she was unable to follow supervisor instructions. Her complaint also stated
that she found Plaintiff intimidating, that workplace morale was “low to non-existent,” and that
Plaintiff had on several occasions asked her “some very personal questions about [her] private life
outside of the workplace that made [her] feel uncomfortable.” (Id.)
After consulting with Civilian Personnel, M. Sgt. Fondren investigated the claims, which
were partly corroborated by other staff members. (Id., Ex. M at 339-41. For example, Michelle
Arantz, an African-American employee, complained that Plaintiff had barred the kitchen staff
from attending the work Christmas party and that he “goes out of his way to make us miserable.”
(ECF 26, Fondren Decl., Ex. F at 325.) Similarly, Rosemarie Bozard, a Filipino employee, wrote
to M. Sgt. Fondren to complain that Plaintiff had unfairly accused her of abusing sick leave. She
stated that: “I felt it was very demeaning and am very frustrated that no matter how hard we work,
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Metellus is always quick to criticize and counsel but seldom ever provides praise.” (Id., Ex. G at
326.)
On August 24, 2016, Fronden issued Plaintiff an Interim Notice of possible administration
action. (Id., Ex. N at 342.) The Notice was non-disciplinary, and simply put Plaintiff on notice
that he could face discipline if it was determined he was negligent in the performance of his duties.
(Id.) The investigation proved inconclusive, however, and Plaintiff was never subjected to any
discipline or other negative employment action. (Id., ¶14 at 314.)
Two days after receiving the Interim Notice, Plaintiff requested a new supervisor. He
complained to Lt. Col. Weinstein that M. Sgt. Fondren’s personal relationship with the employees
created an “undue hardship” in the performance of his duties and charged that Fondren was
conspiring against him. (ECF 25, Weinstein Decl., Ex. F at 277.) After consulting with his
Superintendent and Civilian Personnel, Weinstein did not switch out supervisors because he felt
that Fondren was doing a good job and because no other supervisors were available. (Id., ¶14 at
265.) Plaintiff remained under Fondren’s supervision without incident for the remainder of his
time at WPAFB
Plaintiff continued to apply for other jobs as he had prior to starting at WPAFB and
throughout his time there. All told, he applied for approximately 16 to 18 federal service jobs in
two and half years. (ECF 24, Metellus Dep. II, 77:2–5 at 183; 84:7–10 at 184.) In July 2017, he
accepted a position as a Cook Supervisor at Yakota Air Base in Japan, where he currently works.
Plaintiff primarily applied for jobs through the USAJOBS website, which hosts
government and military openings and allows applicants to apply online. (Id., 84:11–88:20 at 184–
85.) Plaintiff submitted the same resume and reference list to the majority of those jobs. He also
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separately listed his first-level supervisors for his past and present jobs. (Id., 85:9–86:12 at 185;
90:5–13 at 186.) In response to an application for a U.S. Army cook posting in Yongsan, South
Korea, he received a response that he was “[i]neligible for further consideration for this position
and grade based on [the] results of your referral.” (ECF 28, Koller Decl., Ex. A at 414–15.)
Plaintiff assumed this notification meant that he was not hired because he was given a negative
reference. (ECF 24, Metellus Dep. II, 78:1–15 at 183.) Within the USAJOBS system, however,
“referral” is a term of art that refers to a reviewing agency’s determination to certify an applicant’s
entire application package, and specifically the resume. It does not indicate an issue with the
applicant’s job references or letters of reference. (ECF 29, Willingham Decl., ¶3 at 416.) Plaintiff
never followed up to determine the issue with this application packet, nor solicited or received any
feedback for any of the other positions for which he was not hired. (ECF 24, Metellus Dep. II,
81:16–82:18 at 184.)
II.
Standard
The standard of review applicable to motions for summary judgment is established by
Federal Rule of Civil Procedure 56 and associated case law. Rule 56 provides that summary
judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). Alternatively, summary judgment is denied “[i]f 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.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Thus, summary judgment must be entered
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“against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, admissions and affidavits which it believes demonstrate the absence of a genuine
issue of material fact. Id., at 323. The burden then shifts to the nonmoving party who “must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S., at 250
(quoting Fed. R. Civ. P. 56(e)).
Once the burden of production has shifted, the party opposing summary judgment cannot
rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to
go beyond the pleadings” and present some type of evidentiary material in support of its position.
Celotex Corp., 477 U.S., at 324.
In determining whether a genuine issue of material fact exists, a court must assume as true
the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party.
Anderson, 477 U.S., at 255. If the parties present conflicting evidence, a court may not decide
which evidence to believe by determining which parties’ affiants are more credible. 10A Wright &
Miller, Federal Practice and Procedure, § 2726. Rather, credibility determinations must be left
to the fact-finder. Id.
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Finally, in ruling on a motion for summary judgment, “[a] district court is not…obligated
to wade through and search the entire record for some specific facts that might support the
nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Thus, in determining whether a genuine issue of material fact exists on a particular issue, the court
is entitled to rely upon the Rule 56 evidence specifically called to its attention by the parties.
III.
Analysis
A.
Discrimination
Title VII of the Civil Rights Act of 1964 prohibits federal agencies from employment
discrimination “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–16(a). It
is a violation of Title VII to fail to promote an employee because of his or her membership in a
protected class. See, e.g., White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir.
2005). Plaintiff asserts he was discriminated against because of his race.
A plaintiff may establish a claim of discrimination either by presenting direct evidence of
discrimination or by presenting circumstantial evidence that would support an inference of
discrimination. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). Direct evidence is
where an employer’s statement directly shows discriminatory motive. See Schlett v. Avco Fin.
Servs., Inc., 950 F. Supp. 823, 828 (N.D. Ohio 1996). The Sixth Circuit stated in Manzer v.
Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994), that evidence that would
require the jury to infer a fact is not direct evidence. Direct evidence, in the form of verbal
comments, will be similar to an employer telling its employee, “I fired you because you are
disabled.” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998). Plaintiff has no direct
evidence that any of the actions of which she complains were motivated by race, leaving only the
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avenue utilizing circumstantial evidence established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–04 (1973) to survive summary judgment.
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), when a claim is
based on circumstantial evidence, a plaintiff must first establish a prima facie case of
discrimination, the elements of which vary slightly depending on the theory asserted.
To
establish a prima facie case of discrimination based on a “failure to promote” theory, a plaintiff
must demonstrate that:
(1) she is a member of a protected class; (2) she applied for and was
qualified for a promotion; (3) she was considered for and was
denied the promotion; and (4) an individual of similar qualifications
who was not a member of the protected class received the job at the
time plaintiff's request for the promotion was denied.
White, 429 F.3d at 240. A plaintiff's burden at the prima facie stage is “not onerous.” Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant to offer evidence of a legitimate, nondiscriminatory reason for its adverse action. If the
defendant satisfies its burden, the burden shifts back to the plaintiff to identify evidence from
which a reasonable jury could find that the stated reason is a pretext for discrimination.
Plaintiff’s racial discrimination claim fails at the initial prima facie stage because he has
not adduced any evidence that he was subjected to any negative employment outcome or that he
was treated differently than similarly-situated, non-protected employees.
To satisfy the second prong of a prima facie case, a plaintiff must show that he suffered an
“action by the employer that constitutes a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities or a decision
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causing a significant change in benefits.” White v. Baxter Healthcare Corp., 533 F.3d 381, 402
(6th Cir. 2008). Here, Plaintiff suffered no adverse employment action. He was not fired,
demoted, reassigned, or denied a promotion. Throughout his time at the base, he maintained his
position, pay, and core job responsibilities, and even received time off bonuses in both 2015 and
2016. (ECF 26, Fondren Decl., ¶10 at 312.) The injury about which he complains—undermining
of his supervisory authority—does not qualify as significant change in his employment status and
is not actionable as a Title VII discrimination claim. See, e.g., McGinnis v. U.S. Air Force, 266 F.
Supp. 2d 748, 768–69 (S.D. Ohio 2003) (negative performance review was not adverse action
because plaintiff did not suffer a demotion, termination, or a loss in benefits due solely to that
evaluation); Joiner v. Ohio Dep't of Transp., 949 F. Supp. 562, 567 (S.D. Ohio 1996) (no adverse
employment action where grade level, salary, and benefits remained the same, despite evidence of
loss of overtime and supervisory responsibilities).
Second, even if Plaintiff was subjected to some actionable negative employment outcome,
Plaintiff still cannot make out a prima facie case because there is no evidence that he was treated
differently than similarly situated non-protected employees, and thus no inference that any action
taken against him was motivated by race. In order to create a valid comparison, a plaintiff must
first establish that the comparable employees were “similarly situated in all relevant respects.”
Wright, 455 F.3d at 710. Individuals with whom the plaintiff seeks to compare his treatment
“must have dealt with the same supervisor, have been subjected to the same standards and have
engaged in the same conduct without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.” Mitchell v. Toledo Hosp., 964
F.2d 577, 583 (6th Cir. 1992).
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Plaintiff proposes three potential comparators—Sean Fennell, Christian Budzinack, and
Kellie Gerber. But these employees are not similarly situated to Plaintiff. They all served under
Plaintiff and were not subjected to the same work standards or supervisory structure as Plaintiff.
Nor did they engage in similar conduct to Plaintiff. In fact, because none of them exercised
supervisory authority over any individuals, the primary thrust of Plaintiff’s complaint—that his
supervisory authority was undercut by management—is inapplicable to their situation. Without
proper comparators, Plaintiff is unable to establish any inference that he was subjected to actions
based on his race. Indeed, all evidence points to the contrary. Both M. Sgt. Fondren, his first
level supervisor, and Monica Bryant-McGuire, the Civilian Personnel contact who handled
Fennell’s discipline and Budzinack’s removal, are African-American. Both deny that race was a
motivating factor in any of their decisions. Moreover, Plaintiff’s personality conflicts with his
staff were not limited to his white employees, but extended to the African-American and Filipino
employees, including Michele Arantz, Debra Smith, William Smith, and Rosemarie Bozard. (ECF
26, Fondren Decl., ¶10 at 312-13.)
Even if Plaintiff could establish a prima facie case of employment discrimination based on
the personnel actions directed at those serving under him, summary judgment is still appropriate
because the actions about which Plaintiff complains were taken pursuant to the USAF’s policies
for legitimate, nondiscriminatory reasons. See Raytheon Co. v. Hernandez, 540 U.S. 44, 53-55
(2003) (holding that application of neutral policy constitutes quintessential legitimate,
nondiscriminatory reason for employment action). Nor has Plaintiff adduced any evidence
showing that these reasons were pretextual.
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For instance, it is undisputed that Fennell was issued an oral admonishment in accordance
with the USAF’s policy on progressive discipline. Civilian Personnel determined that that
discipline was appropriate given Fennell’s otherwise spotless record and the nature of the conduct,
which did not rise to the level of a true threat under Metz. (ECF 24, Bryant-McGuire Decl., ¶5 at
365.) Similarly, the evidence establishes that Budzinack’s case was handled pursuant to the
USAF’s policies. While Plaintiff claims Defendant racially discriminated against him by not
accepting his March 2015 review of Budzinack, USAF policies do not require a second-level
supervisor to blindly accept a performance review that he or she believes lacks supporting
documentation. (Id., ¶4.) M. Sgt. Fondren’s decision to submit his own rating along with
Plaintiff’s was not based on a discriminatory animus toward Plaintiff, but on his own assessment
of Budzinack’s performance and a lack of documentation to support Plaintiff’s assessment. (ECF
26, Fondren Decl., ¶8 at 311.) Moreover, neither M. Sgt. Fondren nor Lt. Col. Weinstein ever
altered Plaintiff’s review. Plaintiff conceded at deposition that he voluntarily withdrew his
review to avoid creating any undue tension. (ECF 24, Metellus Dep. II, 41:5–15 at 174.)
B.
Hostile Environment
To prevail on a hostile work environment claim, a plaintiff must establish that: “(1) she
belonged a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment
was based on race; (4) the harassment was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment, and (5) the defendant knew or should
have known about the harassment and failed to act.” Williams v. CSX Transp. Co., 643 F.3d 502,
511 (6th Cir. 2011). To determine whether conduct is actionable, a court must consider the
totality of the circumstances “including the frequency of the discriminatory conduct; its severity;
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whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993). Harassment is “based on race when it would not have occurred but for the
plaintiff's race.” CSX Transp. Co., 643 F.3d at 511. While harassing conduct need not be overtly
racist to qualify, a plaintiff must produce either “(1) direct evidence of the use of race- specific and
derogatory terms or (2) comparative evidence about how the alleged harasser treated members of
both races in a mixed-race workplace.” Id.
Plaintiff has no evidence of a hostile work
environment or racial animus directed toward Plaintiff.
First, Plaintiff has not produced any evidence that he was subjected to any discriminatory
conduct, let alone conduct that was so severe or pervasive that it altered the conditions of his
employment. He was never threatened, humiliated, or ridiculed by his supervisors. And while
he clashed on occasion with his subordinates, management issued appropriate discipline when
those concerns were brought to its attention. Notably, Plaintiff’s primary complaints are not
about any actions directed at him, but stem from his perception that management was too friendly
with and too lenient on other employees, especially Fennell and Budzinack. Plaintiff’s argument
ignores, however, that these employees were subjected to disciplinary and removal proceedings in
accordance with USAF policy. Even if that were not the case, a reasonable person would not
construe such leniency as harassment directed at Plaintiff.
Second, there is no evidence that any unwelcomed conduct was based on race. Plaintiff
was not subjected to any racially charged or derogatory terms. The actions he complains about
were spearheaded by M. Sgt. Fondren and Bryant-McGuire, both of whom are African-American.
While his subordinates did not see eye to eye with him, these complaints came from white and
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black employees alike and were driven by his domineering personality and not the color of his
skin. (ECF 26, Fondren Decl., ¶10 at 312.) Contrary to his allegation that white employees under
his purview were treated better than black employees, it appears that all employees were treated in
accordance with USAF policy. Moreover, these employees are not similarly-situated to Plaintiff,
and there is no evidence that their treatment would have been different but-for Plaintiff’s race. See
CSX Transp. Co., 643 F.3d at 511.
“The most fundamental problem with the allegations [Plaintiff] makes with respect to these
individuals is that they fail to establish that the complained-of actions were based on [Plaintiff’s
race]. None of the allegations made by [Plaintiff] contain any hint of facts that would permit a
rational factfinder to infer that [race] animus played a part in what appear to have been
garden-variety personality conflicts between people…working in close quarters.” Perkins v.
Harvey, 368 Fed. App’x 640, 646 (6th Cir. 2010). The United States Supreme Court has noted
that harassing conduct “must be extreme to amount to a change in the terms and conditions of
employment[.]” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). “[S]imple teasing,
offhand comments, and isolated incidents (unless extremely serious)” do not create a hostile work
environment. Id. (citation and internal quotation marks omitted). “These standards for judging
hostility are sufficiently demanding to ensure that Title VII does not become a general civility
code.” Id. (internal quotation marks omitted). Far from running afoul of a civility code, the
actions Plaintiff describes appear well within most civility codes, not to mention the pale
established for hostile environment claims.
C.
Retaliation Claim
17
Title VII forbids employer actions that discriminate against an employee because the
employee participated in protected activity, such as an EEO investigation. Burlington N. & Santa
Fe Ry. Co v. White, 548 U.S. 53, 59 (2006). Where a plaintiff relies on indirect evidence to
establish his claim, the familiar McDonnell-Douglas burden-shifting framework applies. Laster v.
City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). To establish a prima facie case of
retaliation, a plaintiff must demonstrate that: “(1) he engaged in activity protected by Title VII; (2)
his exercise of such protected activity was known by the defendant; (3) thereafter, the defendant
took an action that was materially adverse to the plaintiff; and (4) a causal connection existed
between the protected activity and the materially adverse action.” Id. To satisfy the third prong,
the plaintiff “must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. Ry., 548 U.S. at 67–68
(internal quotation omitted). The standard is objective and does not protect a plaintiff from trivial
harms, such as petty slights, minor annoyances, and a simple lack of good manners, which are not
likely to deter victims from complaining to the EEOC. Id. at 68.
Here, Plaintiff claims that the USAF’s retaliation against him for engaging in protected
EEO was reflected in that “his significantly diminished…supervisory responsibilities were
significant and contributed to the seeking and acceptance of alternate employment for lower pay.”
(ECF 32, Mem. in Opp’n at PageID 447.) However, Plaintiff maintained all supervisory duties at
the base until he accepted his new position at Yokota Air Base in July 2017.
Plaintiff’s supervisory duties consisted of daily oversight of the kitchen staff, the
responsibility to recommend performance ratings, and the responsibility to recommend
18
“appropriate recognition and corrective action, as needed, in performance management.” (ECF 24,
September 25, 2017 Deposition of Johnathan Metellus, Ex. 17 at PageID 244.)
Plaintiff
continued to submit performance ratings for all members of the kitchen staff, including an
unsatisfactory rating for a Caucasian employee that management upheld. (ECF 33, Weinstein
Suppl. Decl., ¶2 at PageID 459 & Ex. A–B at PageID 461–63.)
He recommended
commendations for his employees under his supervision as he saw fit, and took on the more
mundane supervisory tasks, such as apprising employees of their grievance rights and the location
of the number for their union representatives. (Id., ¶2 at PageID 459 & Ex. C–D at PageID 464–
68.) Finally, Plaintiff maintained his responsibility for recommending corrective actions to
address performance and conduct issues, as evidenced by the successful corrective actions he
pursued against Budzinack and Kellie Gerber. Far from being stripped of his supervisory powers,
Plaintiff initiated removal proceedings against Budzinack. (ECF 24, Metellus Dep. II, 41:5–55:3 at
PageID 174–77.)
Had he been denied his supervisory powers as part of a scheme to protect Caucasian
employees, Plaintiff is unlikely to have been able to force Budzinack’s resignation. While
Plaintiff now claims that he felt that his performance review of Budzinack was overridden, he
admitted at deposition that he voluntarily withdrew his review of Budzinack in order to avoid
tension, rather than submitting both his review and Sgt. Fondren’s non-concurring review to
Civilian Personnel as Lt. Col. Weinstein had proposed. (ECF 24, Metellus Dep. II, 41:5-15 at
PageID 174.)
Similarly, while Plaintiff complains that M. Sgt. Fondren initiated an investigation based
on Gerber’s written complaint, that investigation upheld Plaintiff’s supervisory authority,
19
including Plaintiff’s decision to document his concern in Gerber’s 971 Personnel Folder. (Id.,
70:4-13 at PageID 181; ECF 26, Fondren Decl., ¶14 at PageID 314.)
Plaintiff has failed to adduce any evidence that he was not hired for a position because of a
negative job reference. Plaintiff was never informed that he was not hired because of a negative
reference, nor did he ever contact anyone to follow-up on the positions for which he was not
selected. (ECF 24, Metellus Dep. II, 81:16–82:18 at 184.) The evidence upon which he bases this
claim is an automated message he received though his USAJOBS account regarding his
application for a position at Yongsan Army Base. That message stated that he was “[i]neligible
for further consideration for this position and grade based on [the] results of [his] referral.” (ECF
28, Koller Decl., Ex. A at 415.) While Plaintiff interpreted this to mean that he was not selected
because of a negative reference, “referral” is actually a term of art that denotes the applicant’s
entire application package, specifically the resume. (ECF 29, Willingham Decl., ¶3 at 416.) The
message does not indicate that Plaintiff received a negative reference. The computer could have
deemed him ineligible for any number of reasons.
Even if Plaintiff had adduced evidence that he was denied a position because of a negative
job reference, there is no evidence that a negative job reference came from a supervisor. Plaintiff
listed other character references on his applications, and neither M. Sgt. Fondren nor Lt. Col.
Weinstein were ever asked for a reference for Plaintiff. (ECF 26, Fondren Decl., ¶16 at 314; ECF
25, Weinstein Decl., ¶16 at 266.)
Plaintiff’s claim that the USAF undercut his supervisory responsibilities by denying his
oral request for a transfer following the Fennell incident ignores that the alleged transfer request
predated him assuming supervisory responsibilities. Even if the USAF had denied a valid
20
transfer request to an open position, the case law is clear that denial of a lateral transfer in these
circumstances does not constitute an adverse employment action. See Henry v. Ohio Dep’t of
Mental Retardation & Developmental Disabilities, 162 F. Supp. 2d 794, 801 (S.D. Ohio 2000).
Plaintiff also claims that Defendant retaliated against him in September 2015 when M. Sgt.
Fondren issued him a letter of counseling related to a customer complaint that he believed to be
fabricated. Plaintiff has failed to adduce any evidence, however, that this event took place as he
described it. His Personnel File is devoid of any reference to such a letter, M. Sgt. Fondren has no
recollection or record of issuing any letter, and Plaintiff failed to produce any letter or
corroborating evidence during discovery. (ECF 26, Fondren Decl., ¶11 at 313.)
Customers did complain to M. Sgt. Fondren about Plaintiff, and M. Sgt. Fondren did raise
the issue of customer satisfaction in September 2015 during a performance review. (See id., Ex. I
at 330.) That review was overwhelmingly favorable, though. It indicated that Plaintiff needed no
improvement meeting the essential elements of his performance plan and rated his duty
performance, organizational skills, thoroughness, and communication very highly.
M. Sgt.
Fondren marked “working with individuals or groups” as an area for some improvement and
suggested that Plaintiff “[t]ake time to be more customer focus[ed]” and “[m]ake sure customers
know that you are here for them.” (Id.)
Plaintiff’s claim that he was forced into “alternate employment for lower pay” is
contradicted by his own testimony. Plaintiff claimed at deposition that his current pay, including
his salary and overseas stipend in Japan, was greater than his previous salary. (ECF 24, Metellus
Dep. II, 114:20 – 115:17 at PageID 192.)
IV.
Conclusion
21
Because Plaintiff has no direct evidence of discrimination and because Plaintiff cannot
disprove Defendant’s stated non-discriminatory reasons as pretext, and because the actions
Plaintiff decries do not amount to a hostile work environment, Defendant’s Motion for Summary
Judgment, ECF 30, is GRANTED.
The captioned cause is hereby TERMINATED upon the docket records of the United
States District Court for the Southern District of Ohio, Western Division, at Dayton. DONE and
ORDERED in Dayton, Ohio, this Friday, May 25, 2018.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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