Turner v. Westlake Piping and Fitting, Corp

Filing 47

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS 36 39 . Signed by Judge S. Thomas Anderson on 11/25/2024. (gkp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TONY TURNER,
v.

Plaintiff,

WESTLAKE PIPING AND FITTINGS
CORPORATION, formerly known as
LASCO FITTINGS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 1:23-cv-01183-STA-jay

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
Before the Court is Defendant Westlake Piping and Fittings Corporation’s, formerly known
as Lasco Fittings, Inc., Motion for Summary Judgment (ECF No. 36) and Motion for Judgment on
the Pleadings (ECF No. 39). Plaintiff Tony Turner has responded in opposition to Defendant’s
Motion for Summary Judgment. However, Plaintiff has not responded to the Motion for Judgment
on the Pleadings. Defendant has filed a reply in further support of its Rule 56 Motion. For the
reasons set forth below, both Motions are GRANTED.
BACKGROUND
Plaintiff filed his Complaint for Discrimination on September 1, 2023, alleging claims
under the following laws: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as amended
by § 1981a; Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791; Section
15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a; and 29
C.F.R. § 1614.101 (a) & (b). Plaintiff alleged that Defendant, his former employer, was liable for

1

discrimination on the basis of race and disability and retaliation for protected activity. 1 The
Complaint alleged that Plaintiff had properly exhausted his claim for disability discrimination with
the Equal Employment Opportunity Commission. Compl. ¶ 10. Defendant denies the allegations.
The parties have now completed discovery, and a jury trial is to begin January 27, 2025.
In order to decide Defendant’s Rule 56 Motion, the Court must consider whether any
genuine issue of material fact exists that might preclude judgment as a matter of law. A fact is
material if the fact “might affect the outcome of the lawsuit under the governing substantive law.”
Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing Wiley v. United States, 20 F.3d 222,
224 (6th Cir. 1994) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). 2 A dispute
about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. For purposes of summary judgment, a party
asserting that a material fact is not genuinely in dispute must cite to particular parts of the record
and show that the evidence fails to establish a genuine dispute or that the adverse party has failed

1

The Complaint contains other allegations about Defendant’s actions violating Plaintiff’s
Fourteenth Amendment rights and Defendant’s liability for the actions of its supervisory
personnel, specifically a failure “to adequately train, supervise, discipline, or otherwise direct its
authorized agents concerning race, age, disability employment discrimination and retaliation . . .
.” These allegations suggest a violation of Plaintiff’s civil rights by a person or entity acting under
color of law. See 42 U.S.C. § 1983 (creating a civil action against any person who under color of
law deprives the constitutional rights of another). However, as the Complaint alleges, Defendant
is a “private corporation.” Compl. ¶ 6.
2

Plaintiff argues in his separate paper responding to Defendant’s Statement of Facts that
Defendant failed to indicate whether its factual assertions were material facts. Plaintiff contends
that Defendant’s “failure to properly designate the facts should preclude this Court from granting
summary judgment.” Pl.’s Resp. to Def.’s Undisputed Statement of Facts (ECF No. 45-1).
Plaintiff does not actually develop this argument further and cites no legal authority to show why
his point should preclude the Court from reaching the merits of Defendant’s Rule 56 Motion.
Moreover, Plaintiff has responded to each of the facts asserted by Defendant, either by agreeing
the fact is undisputed or arguing that a fact remains in dispute. The Court has no reason then to
find that it cannot decide Defendant’s Motion for Summary Judgment.
2

to produce admissible evidence to support a fact. Fed. R. Civ. P. 56(c)(1). Local Rule 56.1(a)
requires a party seeking summary judgment to prepare a statement of facts “to assist the Court in
ascertaining whether there are any material facts in dispute.” Local R. 56.1(a). In support of its
Motion for Summary Judgment, Defendant has filed a Statement of Undisputed Facts, to which
Plaintiff has responded.
Based on the parties’ submissions, the Court finds that the following facts are undisputed
for purposes of summary judgment, unless otherwise noted. Defendant permitted Plaintiff to be
excused from work on a personal leave of absence for 30 days, from September 23, 2021, to
October 24, 2021. Def.’s Statement of Undisputed Fact ¶ 1. On October 23, 2021, during his first
personal leave of absence, Plaintiff attended a college football game in Ann Arbor, Michigan. Id.
¶ 2. Defendant did not require Plaintiff to provide medical documentation to be approved for the
personal leave of absence. Id. ¶ 3. Plaintiff then requested and Defendant approved a second 30day period of leave, extending Plaintiff’s personal leave of absence to November 22, 2021. Id. ¶
4.
Plaintiff did not return to work as scheduled after November 22, 2021. Id. ¶ 5. Plaintiff’s
absence from work between November 23, 2021, until January 4, 2022, was unexcused. Id. ¶ 6. 3
The “Personal Leave of Absence Request” form, which was filled out, signed, and acknowledged
by Plaintiff on November 1, 2021, to extend his personal leave of absence, stated that “if I do not
report for work on my first schedule[d] work day after my leave expires then I will be involuntarily
terminated from my position at LASCO Fittings, Inc.” Id. ¶ 7. Having not heard from Plaintiff for

3

Plaintiff has responded to Defendant’s Statement of Facts in paragraphs 5 and 6 that the
facts are disputed. As evidentiary support, Plaintiff cites a document (ECF No. 36-10, Page ID
248) containing information provided to the EEOC during the administrative proceedings. The
page cited states that “EAP physician Dr. Cravens faxed over the medical documents to HR Mead.”
3

three weeks after his leave expired, Defendant provided Plaintiff with a medical inquiry form for
requesting accommodation on or about December 16, 2021. Id. ¶ 8. Gayle Michael Cravens,
Plaintiff’s counselor, of Association of Behavioral Counselors returned a partially completed form
on or about December 28, 2021. Id. ¶ 9. Plaintiff did not provide any other information or
documentation to support his unexcused absences in November and December 2021. Id. ¶ 10.
Dr. Cravens testified at his deposition that Plaintiff told him he refused to return to work
until Defendant did what Plaintiff “wanted them to do.” Id. ¶ 11. Plaintiff also told Dr. Cravens
that he was “not going back until they fix this and I am happy.” Id. ¶ 12. Plaintiff did not have any
consultations with Dr. Cravens between October 28, 2021, and March 15, 2022. Id. ¶ 13. Dr.
Cravens did not state that Plaintiff could not do the functions of his job any time between
November 22, 2021, and December 28, 2021. Id. ¶ 14. 4
Defendant terminated Plaintiff’s employment on January 10, 2022. Id. ¶ 15. On or about
May 25, 2022, Plaintiff filed a Charge of Discrimination with the EEOC. Id. ¶ 16. In the Charge
of Discrimination, Plaintiff alleged discrimination solely on the basis of his alleged disabilities. Id.
¶ 17. Plaintiff’s Charge did not allege race discrimination or any Title VII violations. Id. ¶ 18.
Plaintiff stated in an interview with an EEOC investigator that he “did not experience any offensive
comments, behavior, or gestures made toward [him] from coworkers or management based on his
race/color.” Id. ¶19. Plaintiff never complained about racially derogatory language by Christopher
“Shea” Davis to Defendant. Id. ¶ 20.

4

In response to this statement, Plaintiff once more answers that Dr. Cravens diagnosed him
with adjustment disorder with a combination of depression and anxiety and that Dr. Cravens was
qualified to make the diagnosis. However, Plaintiff has not shown why the diagnosis creates a
genuine dispute over the fact that Dr. Cravens had not opined about Plaintiff’s ability or inability
to perform the functions of his normal work activity.
4

Plaintiff has responded to Defendant’s statement of undisputed facts but largely does not
dispute any of Defendant’s contentions. Plaintiff disputes only the facts surrounding his absences
from the job in November and December 2021. And the only evidence Plaintiff cites to oppose
Defendant’s view of the proof is a document (ECF No. 36-10, Page ID 248), containing notes from
an EEOC investigator’s interview with Plaintiff during the administrative proceedings. The page
cited states that “EAP physician Dr. Cravens faxed over the medical documents to HR Mead,” a
reference to Plaintiff’s counselor Dr. Cravens and Defendant’s human resources manager
Christopher Mead. Pl.’s Resp. to Def.’s Statement of Undisputed Fact ¶¶ 5-8. This single
statement, however, fails to show why a dispute exists over whether Plaintiff returned to work
after November 22, 2021, or whether his absences from November 23, 2021, to January 4, 2022,
were unexcused. The statement about Plaintiff’s doctor faxing documents to Defendant records
does not explain why the submission of the records creates a genuine dispute about Plaintiff’s
absence from work.
Plaintiff’s responses suffer from a number of additional problems. Although Plaintiff
asserts that Dr. Cravens is a licensed psychologist and that Defendant referred Plaintiff to Dr.
Cravens, id. ¶¶ 9, 10, 14, Dr. Cravens testified in his deposition that he was not a licensed
psychologist. Cravens Dep. 15:2-15 (ECF No. 45-2). Dr. Cravens has a doctorate of education in
counseling and holds a license as a professional counselor. Id. at 14:21-15:1. Dr. Cravens also
denied that Defendant referred Plaintiff to him and instead testified that Plaintiff informed Dr.
Cravens Defendant had referred Plaintiff to him. Id. at 15:16-16:1. Dr. Cravens did testify that he
is authorized to give diagnosis pursuant to DMS-5. Pl.’s Resp. to Def.’s Statement of Undisputed
Fact ¶¶ 9, 10, 14. Dr. Cravens diagnosed Plaintiff with adjustment disorder with a combination of
depression and anxiety. Id. Lastly, Plaintiff asserts that he returned to work on January 4, 2022,
5

when Defendant refused to accept Dr. Cravens’s paperwork, an apparent reference to the
documents Dr. Cravens faxed to Defendant as part of Plaintiff’s request for an accommodation.
Id. ¶ 7.
The Court finds that Plaintiff’s responses fail to show why a dispute exists over whether
Plaintiff returned to work after November 22, 2021, or whether his absences from November 23,
2021, to January 4, 2022, were excused. At best, Plaintiff’s proof implies that Plaintiff requested
an accommodation sometime in December 2021. Dr. Cravens completed (in part) a form to
document Plaintiff’s diagnosis. However, Plaintiff has not shown why he waited several weeks
from the end of his approved leave on November 22, 2021, to seek some accommodation. In fact,
Plaintiff never cites any evidence to show what accommodation he requested. Plaintiff’s responses
to Defendant’s Statement of Undisputed Facts do not show why Plaintiff did not return to work
when his period of approved absence expired on November 22, 2021, or why his absences for a
period of weeks thereafter were excused.
In its Motion for Summary Judgment, Defendant argues that the Court should grant
summary judgment on Plaintiff’s Title VII claims. First, Defendant contends that Plaintiff never
administratively exhausted the claims by filing a charge of discrimination with the EEOC. The
EEOC charge did not check the boxes for “race” or “retaliation” as the basis for Plaintiff’s claims
of discrimination. The charge alleged only disability discrimination in violation of the Americans
with Disabilities Act (“ADA”). The Court should grant Defendant judgment as a matter of law on
the Title VII claims for race discrimination and retaliation for this reason alone.
On the merits Defendant goes on to argue that Plaintiff has no proof to show that Defendant
treated him differently than other employees outside of Plaintiff’s protected class. Plaintiff cannot
prove that he was similarly situated to the employees he had identified in his judicial Complaint.
6

Each supposed comparator reported to a different supervisor, and Plaintiff’s conduct was not
similar to the conduct of his comparators. And Defendant had a legitimate, nondiscriminatory
reason for terminating Plaintiff. The undisputed proof shows that Defendant discharged Plaintiff
for excessive absenteeism. At the final stage of the burden-shifting framework, Plaintiff cannot
show that Defendant’s explanation was pretextual. For each of these reasons, Defendant argues
that it is entitled to judgment as a matter of law on Plaintiff’s Title VII claims for race
discrimination and retaliation.
The balance of Defendant’s Motion for Summary Judgement is addressed to Plaintiff’s
other allegations. Plaintiff has failed to allege and has no proof that his race was the “but for”
cause of his termination, a necessary predicate for any claim under 42 U.S.C. § 1981. Also,
Defendant learned of additional facts during discovery that would also support its decision to
terminate Plaintiff’s employment under the after-acquired evidence rule. It is undisputed that
Plaintiff missed 26 consecutive days of work during his medical leave of absence. However,
Defendant can now show that Plaintiff had stopped going to therapy sessions for his mental health
treatment and instead spent part of his leave traveling for personal reasons. According to
Defendant, Plaintiff’s own therapist testified that he formed the belief Plaintiff was abusing the
leave system to extend his time off from work. Finally, Plaintiff cannot hold Defendant liable
under the Rehabilitation Act because Defendant is not a federal employer. Even if he could,
Plaintiff has no proof to show that Defendant violated the Act.
Plaintiff has responded in opposition to Defendant’s Motion for Summary Judgment.
Plaintiff’s arguments are not entirely clear. Plaintiff does not address Defendant’s argument that
Plaintiff failed to allege race discrimination or retaliation in his administrative charge of
discrimination or Defendant’s arguments about Plaintiff’s other causes of action. Plaintiff seems
7

to argue that he has direct evidence of discrimination, though he cites no such evidence. Plaintiff
also argues that he can prove a prima facie case of discrimination, mainly by showing that he
requested an accommodation for his mental health needs just like the accommodation requested
by another employee named Zach Walls. Plaintiff claims that Defendant accommodated Walls
but denied Plaintiff’s request. Plaintiff does not actually spell out what the accommodation was.
Plaintiff just argues that Defendant has not introduced any evidence to support its claim that
Plaintiff and Walls were not similarly situated because they had different supervisors. And in one
part of his brief Plaintiff states that Defendant fired him after he filed his charge of discrimination.
However, the undisputed evidence shows that Defendant fired Plaintiff in January 2022 and
Plaintiff filed his charge of discrimination in May 2022.
In its separately filed Motion for Judgment on the Pleadings, Defendant argues that it is
entitled to judgment as a matter of law on Plaintiff’s remaining claims. Defendant contends that
the Complaint mentioned the ADEA but contains no facts to state a claim for age discrimination.
Next, Defendant reiterates its arguments that Plaintiff has failed to plead “but for” causation to
support his § 1981 claim for race discrimination or that the Complaint states a plausible claim
under the Rehabilitation Act or one its regulations, 29 C.F.R. § 1614.101. Likewise, Plaintiff has
done nothing to plead any facts to support his claim for retaliation. Defendant therefore seeks
judgment on the pleadings as to each of these claims. Plaintiff never responded to Defendant’s
Rule 12(c) Motion, and the time to respond has now expired.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment if
the party “shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
8

322 (1986). The Supreme Court has stated that “[t]hough determining whether there is a genuine
issue of material fact at summary judgment is a question of law, it is a legal question that sits near
the law-fact divide.” Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009). In reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A court does
not engage in “jury functions” like “credibility determinations and weighing the evidence.”
Youkhanna v. City of Sterling Heights, 934 F.3d 508, 515 (6th Cir. 2019) (citing Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986)). Rather, the question for the Court is whether a
reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled
to a verdict. Anderson, 477 U.S. at 252. In other words, the Court should ask “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Id. at 251–52. Summary judgment must be
entered “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, 477 U.S. at 322.
ANALYSIS
The Court holds that Defendant is entitled to judgment as a matter of law on each cause of
action alleged by Plaintiff. As a threshold matter, the Court finds that Plaintiff has failed to address
many of the dispositive arguments raised in Defendant’s Motion for Summary Judgment and that
Plaintiff has failed altogether to respond to Defendant’s Motion for Judgment on the Pleadings.
When a party “fails to address [an argument] in response to a motion for summary judgment,” the
argument is deemed waived. Alexander v. Carter for Byrd, 733 F. App’x 256, 261 (6th Cir. 2018)
(citations omitted). And when a party waives its opposition to an argument, “district courts in this
9

Circuit grant summary judgment as a matter of course.” Id. (collecting cases). Here, Plaintiff has
not addressed any of the following arguments in Defendant’s Motion for Summary Judgment: (1)
that Plaintiff failed to administratively exhaust his Title VII claims for race discrimination and
retaliation; (2) that Plaintiff has not alleged and cannot prove a § 1981 claim without evidence that
race was the “but for” cause of his termination; (3) that Plaintiff stopped going to counseling
sessions during his leave of absence from work; and (4) that Defendant cannot be liable under the
Rehabilitation Act. Because Plaintiff has not addressed any of these issues as part of his response
to the Motion for Summary Judgment, the Court finds that Plaintiff has waived the issues.
Therefore, Defendant is GRANTED summary judgment on each point.
Likewise, Plaintiff did not respond at all to Defendant’s Motion for Judgment on the
Pleadings. Federal Rule of Civil Procedure 12(c) states, “After the pleadings are closed–but early
enough not to delay trial–a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c).
Motions for judgment on the pleadings may be granted where the moving party “is entitled to
judgment as a matter of law.” Cincinnati Ins. Co. v. Beazer Homes Invs., LLC, 594 F.3d 441, 444
(6th Cir. 2010). A plaintiff forfeits a claim for relief by failing to respond to a defendant’s motion
for judgment on the pleadings. Threat v. City of Cleveland, Ohio, 6 F.4th 672, 681 (6th Cir. 2021).
Defendant’s Rule 12(c) Motion argues (1) that that the Complaint fails to state a claim for age
discrimination under the ADEA; (2) that the Complaint fails to plead “but for” causation to allege
Plaintiff’s § 1981 claim for race discrimination; (3) that the Complaint fails to state a plausible
claim under the Rehabilitation Act or one its regulations, 29 C.F.R. § 1614.101; and that (4) that
the Complaint does not allege any facts to support a claim for retaliation. The result of Plaintiff’s
failure to respond in any way to Defendant’s Rule 12(c) Motion is a forfeiture of each of the claims

10

addressed in the Motion. Therefore, Defendant’s Motion for Judgment on the Pleadings is
GRANTED.
The only substantive issue addressed in Plaintiff’s response brief is the merits of his race
discrimination claims. As the Court has noted, however, Plaintiff never responded to Defendant’s
argument that Plaintiff had failed to include the race discrimination and retaliation claims as part
of his EEOC charge or that Plaintiff failed to plead the elements of a § 1981 claim. Plaintiff’s
failure to address the arguments is fatal to his Title VII and § 1981 claims. Even if it were not,
Plaintiff has not shown why a genuine dispute remains for trial on his race discrimination claims
under either Title VII or § 1981. Smith v. City of Toledo, Ohio, 13 F.4th 508, 514 (6th Cir. 2021)
(analyzing Title VII and § 1981 claims “under the same framework”).
To make out a prima facie case of discrimination, Plaintiff must show that “(1) he is a
member of a protected group; (2) he was subjected to an adverse employment decision; (3) he was
qualified for the position; and (4) similarly situated non-protected employees were treated more
favorably.” Id. at 515 (cleaned up). At summary judgment Plaintiff has not cited evidence of a
similarly situated, non-protected employee who received more favorable treatment. “When
demonstrating that an employee is similarly situated, a plaintiff needn’t show an exact correlation
between herself and the proposed comparators, but must show similarities in all relevant aspects.”
Goldblum v. Univ. of Cincinnati, 62 F.4th 244, 255 (6th Cir. 2023) (cleaned up). Comparators
“must have dealt with the same supervisor, have been subject 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.” Younis v. Pinnacle Airlines, Inc.,
610 F.3d 359, 364 (6th Cir. 2010). Defendant has shown that two employees named in the judicial
Complaint, Christopher “Shea” Davis and Zach Walls, reported to different supervisors. See
11

McCool Decl. ¶¶ 15-18 (ECF No. 36-11). For his part Plaintiff has not cited any proof to show
how Plaintiff was nevertheless similarly situated to Davis, Walls, or any other non-protected
employee. And nothing in the record shows how any non-protected employee received more
favorable treatment than Plaintiff. Because Plaintiff has not come forward with proof to establish
an essential element of his claims, Plaintiff has failed to show that a jury could return a verdict in
his favor on his race discrimination claims.
CONCLUSION
The Court holds that Plaintiff has waived his opposition to most of the issues raised in
Defendant’s Motion for Summary Judgment and forfeited his opposition to Defendant’s Motion
for Judgment on the Pleadings. To the extent Plaintiff has responded on the merits of his race
discrimination claims, Plaintiff has not marshalled the evidence to prove them. Therefore, both the
Motion for Summary Judgment and the Motion for Judgment on the Pleadings are GRANTED.
The Clerk of Court is directed to enter judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: November 25, 2024.

12