JOHN R. ADAMS, District Judge.
This matter is before the Court upon numerous motions for summary judgment by Defendants Spitzer Management, Inc., Spitzer Motor City, Inc., and Spitzer Autoworld Cleveland, LLC (collectively "Spitzer"). In addition, individual defendant Alan Spitzer ("Mr. Spitzer") has moved for summary judgment. Each of the pending motions has been opposed. The Court now resolves each pending motion as detailed herein.
While the docket is extensive in this matter, the underlying factual allegations are relatively straightforward. On September 27, 2006, the EEOC filed its complaint against Spitzer. The initial complaint and the first amended complaint alleged that Spitzer had engaged in unlawful employment practices by creating a hostile work environment based upon national origin. At that time, the amended complaint included Dean Okafor, David, Marek, and all those employees similarly situated at Spitzer. Through discovery and complaints filed by intervenors, the allegations now include claims by Okafor, Marek, Hakim Nuriddin, Alawy Alawi, and Toufic Hamdan (now known as Nick Hamdan). The complaints alleged that these various Spitzer employees were referred to as: jungle bunny, monkey, gorilla, slant eye, wax on wax off, Ali Baba, and angry Muslim. The complaints allege that Marek, Alawi, and Hamdan were constructively discharged. Moreover, the complaints allege that Spitzer retaliated against Okafor and Nuriddin based upon the charges they filed with the EEOC.
Spitzer has moved for summary judgment on each claim pending before the Court through numerous motions. The EEOC, Nuriddin, and Okafor have each filed responses in opposition to the pending motions, and Spitzer has replied. Mr. Spitzer has filed his own separate motion for summary judgment which has also been fully briefed. The Court now resolves each of the pending motions.
Summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R. Civ.P. 56(a). The initial burden of showing the absence of any "genuine issues" belongs to the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing former Fed.R. Civ.P. 56(c)).
Id. (quoting former Fed.R. Civ.P. 56(c)). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary burdens. Id. at 252, 106 S.Ct. 2505. Moreover, the Court must view a summary judgment motion "in the light most favorable to the party opposing the motion." U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Once the moving party has satisfied its burden of proof, the burden then shifts to the non-moving party. The non-moving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be resolved by a jury." Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995). Moreover, Fed.R. Civ.P. 56(e) states as follows:
Accordingly, summary judgment analysis asks whether a trial is necessary and therefore is appropriate when there are no genuine issues of fact. Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
The Sixth Circuit has previously explained the legal framework the Court must utilize in analyzing a hostile work environment claim as follows:
Ejikeme v. Violet, 307 Fed.Appx. 944, 948-49 (6th Cir.2009). Section 1981, like Title VII, is not a "general civility code." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (discussing Title VII). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'" Id. (internal citation omitted). Furthermore,
Chancellor v. Coca-Cola Enterprises, Inc., 675 F.Supp.2d 771, 791 (S.D.Ohio 2009). "[E]vidence that may not have been explicitly accompanied by a racial or national origin slur may still contribute to a hostile work environment. See Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir.1999) (`[E]ven though a certain action may not have been specifically racial in nature, it may contribute to the plaintiff's proof of a hostile work environment if it would not have occurred but for the fact [of the plaintiff's protected status].')." Calderon v. Ford Motor Credit Co., 300 Fed.Appx. 362, 369 (6th Cir.2008).
Alawi claims that he was subjected to a hostile work environment based on his national origin while he worked at Spitzer Motor City. Alawi asserts that his Yemeni heritage subjected him to numerous comments from his general manager, James Dombrowski. The Court finds that the conduct alleged by Alawi does not meet the severe and pervasive standard necessary to support a claim for hostile work environment.
In support of his claim, Alawi alleges that Dombrowski called him to the sales tower, over the intercom, using the phrase "Ali Baba to the sales tower, Ali Baba to the sales tower, please." Doc. 122 at 30. Dombrowski does not deny referring to Alawi as Ali Baba. Doc. 111 at 45. While Ali Baba is a fictional character from ancient Arabic literature, the character has no direct links to Yemen. However, there is no question in the Court's view that the slang term was utilized based upon Alawi's national origin. The fact that Dombrowski may have been ignorant of its origin or ignorant of Middle Eastern geography
In support of his claim, Alawi relies heavily on El-Hakem v. BJY Inc., 415 F.3d 1068 (9th Cir.2005). The facts of El-Hakem were as follows:
Id. at 1073-74. As detailed above, the key to finding a hostile work environment in El-Hakem was the frequency and pervasiveness of the offending conduct. The frequency and pervasiveness of the conduct herein is unknown. In his deposition, Alawi indicated that "[a]t times he was, you know, he would make racial remarks towards certain salesmen such as Dean Okafor." Alawi also indicated that Dombrowski would summon him to the sales tower with the "Ali Baba to the tower" comment. While the EEOC's brief in opposition contends that a "reasonable jury could find Dombrowski's repeated use of the name Ali Baba" created a hostile work environment, its citation to the record again only references Alawi's vague account that he objected whenever the term was used.
The Court agrees with the analysis set forth in El-Hakem in many aspects. Like the repeated use of an "American" name in El-Hakem, the repeated use of Ali Baba is not severe conduct. It is no doubt offensive and demonstrative of ignorance, but it does approach the level of racial epithets that have been deemed severe. Furthermore, the Court agrees that less severe language may still support a hostile work environment when used frequently and pervasively in the work place. However, the record does not contain evidence of the frequency and pervasiveness of the use of this language. Instead, the record only indicates that over a several month period, the term was used more than once — whether it was used once a day, once a week, or three times over five months is unknown. Accordingly, the record contains insufficient evidence to generate a genuine issue of fact on Alawi's claim of a hostile work environment.
In reaching this conclusion, the Court has also considered Alawi's testimony that he overheard comments made to Okafor and Marek. The Court also acknowledges that these overheard comments may contribute to a hostile work environment. However, Alawi's testimony regarding these comments is similarly vague. He cannot recount the frequency of these comments and could only recall in vague
Alawi's claim of constructive discharge also fails. To demonstrate constructive discharge, Alawi must show that 1) "the employer ... deliberately create[d] intolerable working conditions, as perceived by a reasonable person," and 2) the employer did so "with the intention of forcing the employee to quit...." Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir.1999).
Logan v. Denny's, 259 F.3d 558, 569 (6th Cir.2001) (quoting and adopting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)). The Supreme Court has explained that constructive discharge requires a showing beyond that of a hostile working environment: "Beyond that, we hold, to establish `constructive discharge,' the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response." Pennsylvania State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
Alawi cannot satisfy this test. Alawi does not contend that his work place became so intolerable that he was required to resign. Rather, he admits that he quit working because Dombrowski was rude to his wife. Alawi's wife was waiting for her car to be serviced and Dombrowski allegedly approached her and told her to "get the fuck out of here." Again, while this conduct was rude and offensive, it does not approach the level necessary to support a claim of constructive discharge. Accordingly, Spitzer's motion for summary judgment on Alawi's claims is well taken.
Marek's claims are similar to those raised by Alawi and also arise from his employment at Spitzer Motor City. Marek raises claims of hostile work environment based on his national origin (Korean) and constructive discharge. The record evidence provided by Marek is more specific with regard to frequency and pervasiveness. As such, the record does not support summary judgment on Marek's hostile work environment claim.
Marek was hired by Chris Johnson, Dombrowski's predecessor, as a sales associate on May 12, 2005. Within a few months, Marek requested to be moved to an Auto Detailer/Porter position, asserting that the sales position was not a good fit for him. His request was immediately fulfilled and he began work as an auto detailer.
Before analyzing the comments made to Marek, the Court must note that the comments made by Dombrowski that Marek was not aware of cannot directly contribute to this hostile work environment claim. For example, Kevin Szatala testified that Dombrowski referred to Marek as "slant
Marek testified about comments that Dombrowski made to him as follows. Dombrowski would approach him in the service area and state, "What's up, Mr. Chinaman?" Doc. 117 at 40. Dombrowski would also state, "Chop chop, hurry up," and "wax on, wax off" to Marek. Marek indicated that he was unaware of similar comments being made to other detailers. Marek also testified that Dombrowski would make some form of these comments every time he came back to Marek's working area and that Dombrowski came back to his area on a daily basis. Thus, the record indicates that Marek was subjected to these comments daily (five to six days a week) for numerous months.
Spitzer contends that Marek cannot satisfy three elements of his prima facie case: 1) that the harassment was based on Marek's national origin, 2) that he cannot demonstrate that the harassment was severe and pervasive, and 3) employer liability. The Court will individually review each of these contentions.
Spitzer first asserts that the comments were not directed at Marek's national origin. For example, Spitzer asserts that Marek is Korean, so the comment "What's up, Mr. Chinaman" could not be directed at his national origin. Similarly, Spitzer contends that the "wax on wax off" comment was directed toward the actual duties that Marek had to perform as an auto detailer. Spitzer's contentions here border on frivolous.
First, Marek and a co-worker, Kevin Szatala, both testified that Dombrowski mocked Marek's accent. More specifically, Marek testified in his deposition that Dombrowski mocked his accent while utilizing the phrase "wax on wax off." Therefore, any suggestion that such a phrase was solely used to direct Marek toward his work duties is unsupported by the record. Second, Dombrowski's repeated references to "Chinaman" were clearly directed at Marek's Asian origin.
There also remains a genuine issue of material fact surrounding whether the conduct was severe or pervasive. In a case involving similar types of comments, the Ninth Circuit found no hostile work environment. In so holding, the Court noted as follows:
Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th Cir.2003) (emphasis added). Unlike the claim in Manatt, the facts herein indicate that Dombrowski's comments were nearly always directed at Marek — often with no other individual present. Moreover, these were not isolated incidents that occurred every so often. Marek testified that he endured the comments on a daily basis for months on end.
At this point, the Court notes that "the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct." Wanchik v. Great Lakes Health Plan, Inc., 6 Fed.Appx. 252, 263 (6th Cir.2001) (quoting Ellison v. Brady, 924 F.2d 872, 878 (9th Cir.1991)). Thus, while Dombrowski's comments were not physically threatening or particularly severe, they were frequent and pervasive. As such, a genuine issue of fact remains on this issue for a jury to decide.
Finally, Spitzer contends that Marek cannot demonstrate employer liability on his claim. In this regard, Spitzer contends that Marek cannot demonstrate constructive discharge and also argues that even if constructive discharge could be shown, the Faragher/Ellerth defense would justify summary judgment. The Court again reviews each contention individually.
With respect to constructive discharge, the Court finds that an issue of fact remains. Marek was daily subjected to offensive comments related to his national origin. For months, Marek endured the comments. However, Marek quit following a confrontation with a co-worker, Walter Andrews. As this confrontation was unrelated to Marek's national origin, Spitzer contends that his constructive discharge claim must fail. The Court disagrees.
As noted above, in evaluating a constructive discharge claim, the Court must determine whether Marek's resignation was a "fitting response" to Dombrowski's harassment. The facts herein compel submitting this issue to a jury. Another employee, Greg Kramer, informed Marek after the Andrews' incident that he could quit or that Dombrowski would fire him. Faced with appearing before his harasser for possible discipline or quitting, Marek's resignation was a fitting response. The mere fact that he was capable of enduring the harassment up until that potential confrontation does not make the response any less reasonable.
Finally, Spitzer contends that Marek cannot demonstrate employer liability because Spitzer was never given the opportunity to remedy the harassment. In that regard, Faragher and Ellerth are instructive.
Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). "No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Id. at 808, 118 S.Ct. 2275 (citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762-63, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). A constructive discharge case, like this one, may or may not involve an "official act" constituting a "tangible employment action" preceding the victim's resignation. See Suders, 542 U.S. 129, 124 S.Ct. 2342.
The EEOC contends that Spitzer cannot avail itself of this defense because Dombrowski's official acts led to Marek's constructive discharge.
Parton v. Smoky Mountain Knife Works, Inc., 2011 WL 4036959, at *10 (E.D.Tenn. Sept. 12, 2011). With regard to the availability of this defense, the Court agrees with Spitzer that it is available. Like the conduct discussed in Suders, Dombrowski's conduct "was exceedingly unofficial and involved no direct exercise of company authority; indeed, it was exactly the kind of wholly unauthorized conduct for which the affirmative defense was designed[.]" Suders, 542 U.S. at 150, 124 S.Ct. 2342 (quotation and citation omitted).
However, the record is clear that there remain genuine issues of material fact on both prongs of Spitzer's defense. First, there exist issues of fact regarding whether Spitzer took reasonable care to prevent harassment. Second, there exist issues of fact over whether Marek was unreasonable in declining to pursue those avenues of relief.
There is no dispute that Spitzer had some form of an anti-harassment policy. That policy states in relevant part as follows:
Doc. 133-3 at 1. Spitzer contends that the policy was readily available, provided to its employees, frequently updated, and posted throughout its dealerships.
Despite these contentions, summary judgment is inappropriate on this defense for myriad reasons. First, Marek contends that he never received the above-quoted policy. Second, the record is replete with instances wherein the policy was not followed. As detailed above, Alawi was harassed by his general manager over the loudspeaker at the dealership. Other managers, however, did not report this harassment as required by the policy. Numerous other Spitzer employees and managers witnessed the harassment of many of the plaintiffs herein and none took steps to report it to Spitzer Management or to anyone for that matter. Moreover, as will be detailed below, Okafor in fact reported his harassment to Spitzer Management. That report did little or nothing to slow Dombrowski's harassment and ultimately Okafor's complaints led to him being sued by Spitzer. Accordingly, there exists a question of fact over whether Spitzer exercised reasonable care to prevent harassment. As such, summary judgment on Spitzer's Faragher/Ellerth affirmative defense is not justified.
Unlike Alawi and Marek, Hamdan worked at Spitzer Autoworld Cleveland. However, similar to Marek and Alawi, Hamdan raises claims of hostile work environment and constructive discharge. The Court now reviews those contentions.
Hamdan was hired by Spitzer in January of 2005. He was born in Lebanon, and despite derogatory comments referring to him as an "angry Muslim," Hamdan is not Muslim. During the time frame at issue, Hamdan worked under general manager Mike Procaccini.
Hamdan ultimately left his employment with Spitzer in September of 2007. When asked why he left, Hamdan responded:
Doc. 126 at 33-34. Hamdan also claims he heard from another employee that Procaccini referred to him as an angry Muslim. When asked how often Procaccini made offensive comments, Hamdan responded "[t]hroughout the week, throughout the day, throughout the month[.]" Doc. 126 at 42. In addition, the record demonstrates that the general sales manager at that location, Rex Davidson, asked a young woman, in Hamdan's presence, whether she had ever ridden on a magic carpet. Doc. 126 at 44-45. Hamdan also
Initially, the Court agrees with Spitzer's argument that Hamdan cannot pursue a "perceived religion" claim. However, as Hamdan's national origin claims subsume all of the alleged derogatory comments, the effect of Spitzer's argument is minimal.
Spitzer also contends that Hamdan was not subjected to severe and pervasive harassment. The Court finds that the record creates a genuine issue of material fact surrounding this issue. In a factually similar case, the Sixth Circuit explained as follows:
Hussain v. Highgate Hotels, Inc., 126 Fed. Appx. 256, 268-69 (6th Cir.2005). Similar to the plaintiff in Hussain, Hamdan claimed that comments were made to or about him or Middle Easterners on nearly a daily basis. Also similar to Hussain, Hamdan indicated his disgust for these comments and no corrective action was taken by anyone at Spitzer. Other Courts have reached similar results:
Alamjamili v. Berglund Chevrolet, Inc., 2011 WL 1479101, at *13-14 (W.D.Va. Apr. 18, 2011). Like the plaintiffs in the above matters, Hamdan was subjected to nearly daily comments about his national origin. In addition to hearing the terms extremist, terrorist, and uncivilized on a routine basis, Hamdan was also subjected to mocking graffiti on a daily basis — graffiti that was both insulting to his national origin and sexually degrading. Upon witnessing this graffiti, Hamdan's supervisors laughed and made no effort to even erase it from view. With this record, a question of fact remains over whether the conduct was severe or pervasive.
Similar to the analysis performed above on Marek's claim of constructive discharge, a question of fact remains on Hamdan's claim of constructive discharge. Like Marek, Hamdan was subjected to daily derogatory remarks and disparaging graffiti. Like Marek, Hamdan endured this conduct for numerous months. Hamdan then finally resigned when Baker mocked his handwriting by asking, "What is this, Habibi writing?"
Moreover, there similarly exists a genuine issue of material fact with respect to Spitzer's Faragher/Ellerth defense. For the same reasons detailed above on Marek's claim, Spitzer is not entitled to summary judgment on its affirmative defenses. The same failure of managers and employees to follow Spitzer's alleged anti-harassment policies existed at Spitzer AutoWorld and Motor City. Accordingly, summary judgment on this affirmative defense is not supported by the record.
The pleadings, briefing, and supporting materials in this matter consist of thousands of pages. Despite those facts, it is unclear what precisely Nuriddin is claiming in his intervenor complaint. Spitzer's motion for summary judgment and the opposition only serve to demonstrate that the parties themselves are also uncertain of the claims raised by Nuriddin. Unlike the above plaintiffs, Nuriddin does not appear to raise a hostile work environment claim. Instead, Nuriddin seems to assert a straightforward race discrimination claim.
Smith v. Reno, 89 F.3d 835, at *2 (6th Cir.1996) (table decision).
Setting aside the issue of whether Nuriddin's race claims are timely,
Doc. 187 at 50-51. While Nuriddin's opposition brief spans 68 pages, there is no analysis tied to the above factual allegations. There is no argument to demonstrate that any of the identified employees — the unnamed employees regarding parking, Graham, and Ward — were similarly situated to Nuriddin. Accordingly, the record does not support a finding that Nuriddin's prima facie case has been satisfied. As such, summary judgment on his discrimination claim is appropriate.
Okafor raises claims similar to Alawi, Marek, and Hamdan, asserting he was subjected to a hostile work environment. Okafor claims that he was harassed based upon a combination of his Nigerian national origin and his African American race. The Court finds that Spitzer's motion for summary judgment on this claim is not well taken.
Similar to Marek, Okafor was forced to endure nearly daily comments from Dombrowski. Examples of Dombrowski's comments include:
Okafor also testified that Dombrowski routinely mocked his accent. Unlike several of the other plaintiffs, Okafor reported this misconduct to Spitzer Management. However, Okafor only took this step when his reports of this conduct to other managers, namely Peyton Lycans, resulted in Okafor being told that Dombrowski was simply trying to befriend him.
Initially, Okafor spoke with Larry Ward at Spitzer Management. Similar to Lycans, Ward informed Okafor that Dombrowski meant no harm. Okafor pressed on with his reports of the harassment and was eventually placed in contact with Anthony Giardini. At that time, Giardini was Spitzer Management's chief operating officer and was transitioning to its General Counsel. According to Okafor, Giardini informed Okafor that he was "thin skinned," "overreacting," and that if it were Giardini's decision, Okafor would have been fired. Doc. 118 at 111-12.
Consistent with the Court's analysis of Marek's claim of a hostile work environment and Hamdan's similar claim, Okafor's claim presents genuine issues of material fact that must be presented to a
Okafor also presented evidence that Dombrowski interfered with his sales, causing a loss in his income. However, the Court need not resolve whether this was a tangible employment action. Assuming there was no such action would allow Spitzer to raise its Faragher/Ellerth defense. Based upon the Court's analysis above, this defense does not warrant summary judgment. Accordingly, Okafor's hostile work environment claim survives.
Okafor and Nuriddin also raise claims of retaliation. The Sixth Circuit has explained the standard to apply in such a case as follows:
Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792-93 (6th Cir.2000) (emphasis in original).
There is no dispute that Okafor engaged in protected conduct and that Spitzer was aware of that conduct. Spitzer, however, contends that the record is clear that Okafor cannot demonstrate an adverse employment action and a casual connection between that action and any protected activity.
Okafor identifies three adverse employment actions: 1) in October of 2006, Okafor was suspended for one day, 2) on March 31, 2007, Okafor was suspended for two days and told to avoid contact with customers, and 3) on July 10, 2008, Okafor was terminated. Upon the Court's review of the record as detailed below, there is sufficient evidence for a jury to consider Okafor's claims that these constitute adverse employment actions.
The March 31, 2007 incident, however, stands on more tenuous ground. In that regard, Okafor was suspended based upon customer complaints. To support a causal connection, Okafor appears to rely on two factors. First, he relies upon the temporal proximity between this punishment and Nuriddin's EEOC charge. Second, Okafor contends that Spitzer believe that Nuriddin and Okafor were working together with regard to their EEOC complaints. In essence, Okafor wants to stack inferences in order to find a retaliatory animus with regard to this incident. This stacking of inferences is not permissible. Accordingly, with respect to this incident, Spitzer has properly demonstrated that no causal connection exists between protected activity and this discipline.
Finally, the Court must examine Okafor's termination on July 10, 2008. On June 26, 2008, the EEOC had filed suit against Spitzer, asserting claims on behalf of Okafor and Nuriddin. Four days later, the Cleveland Plain Dealer published an article about the lawsuit. On roughly that same day, July 1, 2008, Davidson summoned Okafor to his office and informed him that he "was no good, poisoned the sales force and had bad mouthed the dealership." Doc. 173-9 at 1. Nine days later, Okafor was terminated for an alleged violation of the sexual harassment policy.
Spitzer's response to all of these incidents seems to be grounded in its belief that it had legitimate reasons for all of Okafor's discipline. With respect to the first incident, the fact that Davidson and Spitzer effectively admitted that Okafor was not sent home until he threatened to complain to the EEOC, any assertion by Spitzer that the discipline was legitimate rings hollow. With respect to Okafor's termination, the Court finds that Spitzer has presented sufficient evidence to meet its burden of demonstrating a legitimate reason for the termination. Spitzer presented evidence that Okafor grabbed a female co-worker's arm and told her that she looked like a stewardess. Spitzer also
The record supports submitting the matter of pretext to a jury. The Sixth Circuit has noted that there are three methods for Okafor to meet his burden of demonstrating pretext.
Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 522 (6th Cir.1997) (citation and quotation omitted).
The EEOC has adequately demonstrated that the complaining parties, Michael Blackmur and Esther Kim, were close friends of the decision-maker, Davidson. While these facts cast doubt on the veracity of the statements of Blackmur and Kim, the Court need not doubt their credibility in order to send this matter to a jury. If the Spitzer witnesses are believed, Okafor grabbed Kim's arm and told her that she looked like a stewardess. Blackmur reported the incident, and if he is believed, Okafor responded by calling Blackmur a "motherfucker" and "spoke Nigerian to Blackmur with an intimidating tone and threatening body language." Doc. 137 at 9 (Spitzer motion for summary judgment). Spitzer then ordered Okafor to apologize. When Okafor declined to apologize, he was terminated.
Based upon the totality of the evidence before this Court, there exist several questions of fact surrounding the issue of pretext. First, assuming the truth of all of Spitzer's witnesses, there exists a question of whether Okafor's conduct justified his termination. Based upon all the other reported conduct of Dombrowski and Procaccini that led to no discipline, it is highly unlikely that Okafor's conduct was severe enough to warrant termination. In fact, the record contains evidence that Davidson screamed "motherfucker" at Nuriddin and received no discipline. Similarly, a close review of Spitzer's policy does not readily demonstrate how Okafor's conduct toward Kim was in violation of a sexual harassment policy. As such, the Court finds sufficient issues of fact regarding pretext remain to submit this matter to a jury.
Nuriddin's retaliation claim rests upon his argument that he presented evidence of an "ongoing campaign of retaliation." Doc. 187 at 46. In so doing, however, Nuriddin makes little effort to demonstrate the adverse employment actions that support his claim and to demonstrate the causal connection between his protected activity and those employment actions. It is clear from the record that many of the instances identified by Nuriddin are not adverse employment actions. For example, Nuriddin was written up on March 19, 2007. He, however, suffered no loss in wages or any other punishment for that write up. As such, it was not an adverse employment action.
The Court does find that Nuriddin's reduction in hours would constitute an adverse employment action. Additionally, Spitzer does not dispute that Nuriddin's termination constituted an adverse employment action. In that respect, the record also demonstrates that Spitzer has proffered legitimate business reasons for both the reduction in hours and the termination — namely, that the hours were reduced
With respect to Nuriddin's reduction in hours, the Court finds no issue of fact remains. Spitzer offered evidence, through Nuriddin's own deposition, that his hours were altered because Spitzer's service department would be closed on Saturdays. In the past, Nuriddin had taken Fridays off, so Spitzer offered Nuriddin the opportunity to work Fridays to continue his 40 hour work week. Due to religious considerations, Nuriddin declined to work Fridays and therefore his weekly hours were reduced to 32. Nuriddin's sole response to these facts appears to rely upon the temporal proximity between his third charge with the EEOC and this reduction in hours. However, given the undisputed fact that Nuriddin could have maintained his schedule if he was willing to work a different day during the week, the temporal proximity standing alone is simply insufficient to create an issue of fact regarding pretext.
Nuriddin's termination, however, requires an independent analysis. Spitzer contends that Nuriddin was termination for an altercation with his supervisor, Tracy Graham. According to Spitzer, the two had a heated argument that was witnessed by another supervisor, Mitchell Mincy. Graham then later called Mincy stating that she was scared, shaking, almost in tears, and frightened of Nuriddin. The next day, Mincy terminated Nuriddin.
Nuriddin asserts that the reasons for his termination were pretextual and relies upon numerous inconsistencies to support his claim. First, in answers to interrogatories, Spitzer claimed that Davidson made the decision to terminate Nuriddin. Later, Spitzer asserted that solely Mincy made the decision. In addition, on August 14, 2008, Mincy filled out and signed an employee termination report and indicated that Nuriddin was fired for "insubordination with manager." Doc. 187-4. However, in discovery requests in this matter, Spitzer contends that Nuriddin was terminated for violating its anti-harassment policies. Nuriddin is correct that precedent suggests that these changing facts support submitting the matter to a jury.
In Tinker, the Sixth Circuit found an issue of fact on the issue of pretext and explained its reasoning as follows:
Tinker, 127 F.3d at 523. Thus, the discrepancies noted above, standing alone, support submitting the issue of pretext to a jury.
The Court also believes that an issue of fact exists regarding whether Nuriddin's conduct was sufficient to warrant his termination. Mincy personally observed the conduct. At that time, he did not intervene,
Nuriddin and Okafor also raise a claim of abuse of process and a retaliation claim based upon a lawsuit that Spitzer filed against them following their termination. The Court now examines those claims.
Under Ohio law, an abuse of process claim contains the following elements: "(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process." Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115, paragraph one of syllabus (1994). Simply stated, "abuse of process occurs where someone attempts to achieve through use of the court that which the court is itself powerless to order." Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 662 N.E.2d 9, 14 (1996).
In its motion for summary judgment, Spitzer contends that it sought only to halt the slanderous and defamatory statements being made by Nuriddin and Okafor. Accordingly, Spitzer contends that it never sought to achieve any remedy that was beyond the court's authority to issue. At a minimum, a question of fact remains whether Spitzer sought to stop this activity or to completely silence Nuriddin and Okafor, a remedy far beyond the authority of the court. In his deposition, Giardini stated that the lawsuit was filed to stop Nuriddin and Okafor from "telling members of the community and perhaps even customers that the management team there and the ownership of that dealership would discriminate against them, would treat them unfairly, or would do some harm to them in the future." Doc. 110 at 99. Furthermore, given that Spitzer could have vindicated its position through already pending litigation filed by the EEOC — that is, demonstrate the alleged falsity of these accusations, it lends support to a finding that the lawsuit against Nuriddin and Okafor personally was meant to silence their ongoing, protected speech.
For similar reasons, Nuriddin and Okafor's retaliation claim based upon the lawsuit must proceed to a jury trial. As the Ohio Supreme Court has recognized that 1) the filing of a lawsuit may be an adverse action, and 2) that former employees are covered under Ohio's anti-retaliation laws, this claim is plausible on its face. See Greer-Burger v. Temesi, 116 Ohio St.3d 324, 879 N.E.2d 174 (2007). As there exists a question of fact over Spitzer's motivation for filing the suit, the Court finds that this aspect of the retaliation claims by Nuriddin and Okafor must be submitted to a jury.
Alan Spitzer has filed his own motion for summary judgment, asserting that there is no basis for finding him individually liable. Spitzer argues at length that there is no basis to pierce the corporate veil in this matter. In response, Nuriddin and Okafor
Initially, the Court notes that the record is clear Mr. Spitzer was not personally involved in the discipline or termination of any of the plaintiffs. While he may have engaged in discussions about those individuals, there is no evidence of any kind to suggest that he provided direction or input into the discipline process of any plaintiff. Accordingly, he cannot be found personally liable under that theory.
Mr. Spitzer's personal liability hinges upon the assertion that he authorized the lawsuit discussed above that was filed against Nuriddin and Okafor. The support for this contention comes from Giardini deposition. The following took place during that deposition:
Doc. 110 at 85-86. Okafor and Nurridin contend that Ohio law allows for liability to extend to Mr. Spitzer for his personal involvement in authorizing the lawsuit.
The Court agrees that Ohio law provides for this liability. Furthermore, Mr. Spitzer offered no reply brief to suggest any rationale that would absolve him from liability. For example, there is nothing in the record to suggest that a Board of Director's decision or some other form of authorization was required to initiate the lawsuit. As such, as the record stands, Mr. Spitzer personally authorized the lawsuit. As the Court noted above, there remain questions of fact surrounding the motivation for filing that lawsuit. Accordingly, Mr. Spitzer's motion for summary judgment must be denied.
Defendants' motions for summary judgment are resolved as detailed herein. To the extent that Defendants' also sought summary judgment on solely the issue of punitive damages, that motion is DENIED. A jury will ultimately determine the proper remedy in this matter, and Spitzer is of course free to revisit this issue during Rule 50 motion practice during trial.
IT IS SO ORDERED.
