ALGENON L. MARBLEY, District Judge.
This matter is before the Court on Defendant's Motion for Summary judgment, ECF No. 43,
Plaintiff Bellur G. Shiva Prasad, Ph.D., was employed by GE for approximately four (4) months in 2012, assigned to work on the analytical modeling of air and fluid flow through jet engines as a senior staff engineer/technologist. Following the termination of his employment, he initiated this action without the assistance of counsel, asserting claims under "Title VII of the Civil Rights Act of 1964 including ADEA and retaliation and the Ohio Law," as well as a state law claim of wrongful termination in violation of public policy. Complaint, ECF No. 2, PageID# 3. Counsel thereafter entered an appearance on behalf of plaintiff, Notice of Appearance, ECF No. 3, and filed an Amended Complaint, ECF No. 4.
Id. at ¶ 9.
GE moved to compel arbitration of the state law claims, pursuant to the parties' arbitration agreement, and to stay proceedings on the Title VII claim pending resolution of the state law claims in arbitration. Motion to Compel Arbitration and Stay Proceedings, ECF No. 7. The Court granted that motion, but also noted that plaintiff's claims of retaliation under federal and state law were co-extensive:
Amended Opinion & Order, ECF No. 14, PageID# 116 (citation omitted).
In the arbitration proceedings, where he was represented by yet different counsel, plaintiff objected to the arbitration of the state retaliation claim on the ground that resolution of that claim by the arbitrator would effectively also resolve the federal retaliation claim, which had been reserved for resolution by this Court. Excerpts from Plaintiff's Arbitration Closing Brief, ECF No. 43-3, PageID# 383-84. The arbitrator agreed and declined to consider plaintiff's state law retaliation claim.
Arbitrator's Decision, ECF No. 43-4, PageID# 386-87. The arbitrator ultimately concluded that plaintiff had not established his claim that his employment was wrongfully terminated in violation of Ohio's public policy. Id. at PageID# 394. The Court thereafter granted plaintiff's motion to lift the stay "so that the parties may proceed to resolve the remaining claim." Order, ECF No. 31. Some months later, plaintiff's counsel was granted leave to withdraw, Order, ECF No. 41, and plaintiff has been proceeding without the assistance of counsel since that time. Following the conclusion of the discovery period, GE filed the motion for summary judgment.
The standard for summary judgment is found in Rule 56 of the Federal Rules of Civil Procedure, which provides in pertinent part:
Fed. R. Civ. P. 56(a). In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment is not warranted if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). However, summary judgment is appropriate if the opposing party 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 mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251.
The party moving for summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Catrett, 477 U.S. at 323. Once the moving party has met its initial burden, 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. "Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert the previous allegations. It is not sufficient to `simply show that there is some metaphysical doubt as to the material facts.'" Glover v. Speedway Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003)(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the non-moving party must support the assertion that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1).
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." Glover, 284 F.Supp. 2d at 862 (citing InteRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)). Instead, a "court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties." Id. See also Fed. R. Civ. P. 56(c)(3).
Title VII of the Civil Rights Act of 1964, as amended, prohibits, inter alia, the discharge of any individual "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The Act also prohibits retaliation because an individual "has made a charge, testified, assisted, or participated in any manner in an investigation, proceedings, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a). Title VII does not prohibit discrimination on the basis of age. It is the Age Discrimination in Employment Act (hereinafter "ADEA"), 29 U.S.C. § 621 et seq., that is the federal law prohibiting employment discrimination based on age, see 29 U.S.C. § 623(a), and retaliation for having "participated in any manner in an investigation, proceeding, or litigation under" the ADEA. See 29 U.S.C. § 623(d). Ohio law, O.R.C. § 4112.02(A), is broader than either Title VII or the ADEA in this regard. That state statute prohibits discrimination on the basis of "race, color, religion, sex, military status, national origin, disability, age, or ancestry." O.R.C. § 4112.02(A). Ohio law also prohibits retaliation for having "participated in any manner in any investigation, proceeding, or hearing under" O.R.C. § 4112.01 et seq. O.R.C. § 4112.02(I). As noted supra, the Amended Complaint asserts claims of retaliatory termination "for making a Civil Rights violation complaint to the EEOC/Ohio Civil Rights Commission" in violation of Title VII and § 4112.02(I). Amended Complaint, ¶ 15.
The Court previously referred all of plaintiff's state law claims to arbitration and stayed only the Title VII retaliation claim. Amended Opinion & Order, ECF No. 14. However, the arbitrator declined — at plaintiff's request — to consider plaintiff's retaliation claim under O.R.C. § 4112.02(I) so as to preserve plaintiff's retaliation claim under Title VII for the Court's resolution. Arbitrator's Decision, ECF No. 43-4, PageID# 386-87. Plaintiff's Title VII retaliation claim is therefore ripe for resolution by this Court.
A plaintiff claiming unlawful retaliation in violation of Title VII must establish that his protected activity was the "but-for cause" of the alleged adverse action by the employer. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). Unless the plaintiff can establish that the employer would not have taken the adverse employment action but for its intention to retaliate, the claim will fail.
A retaliation claim may be established either by direct evidence of retaliation or by circumstantial evidence sufficient to give rise to an inference of retaliation. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 538 (6th Cir. 2008). In the latter circumstance, "[c]ourts analyzing retaliation claims apply the McDonnell Douglas framework of shifting burdens of production and proof." Dixon V. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In order to establish a prima facie claim of retaliation based on circumstantial evidence, a plaintiff must prove (1) that he engaged in protected activity under Title VII, (2) that his exercise of protected rights was known to the employer, (3) that the employer thereafter took an adverse employment action against the plaintiff, and (4) a causal connection exists between the protected activity and the adverse employment action. Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000). If the plaintiff meets this initial burden, the burden of production then shifts to the employer to articulate a legitimate, nonretaliatory reason for its actions. Id. at 793. At that point, it is the plaintiff, who always bears the ultimate burden of persuasion, who must prove that the protected activity was the but-for cause of the adverse employment action.
Plaintiff offers no direct evidence of unlawful retaliation in this action. GE contends that plaintiff cannot establish a prima facie case of retaliation based on circumstantial evidence because, "at the time of Plaintiff's termination, GE [] had no knowledge of him contacting the EEOC." Defendant's Motion for Summary Judgment, PageID# 245. In any event, GE argues, plaintiff's deficient performance as an employee provided a legitimate, non-retaliatory reason for the termination of his employment.
Plaintiff was hired by GE in January 2012 and began working in February 2012. Arbitration Hearing Transcript (hereinafter "Tr. p. __"), p. 34.
During the arbitration proceeding, plaintiff acknowledged that he "didn't communicate to anyone at GE [] that [he] had contacted the EEOC." Id. Specifically, plaintiff testified that he "didn't communicate anything about national origin discrimination to anyone at GE [], . . . about color discrimination, . . . [or] about religious discrimination." Tr. pp. 210-11. However, plaintiff also testified that he had told GE's human resource manager that a GE employee had called plaintiff "old," Tr. p. 211. This apparently referred to a May 8, 2012, incident involving one Rob Athans, who introduced plaintiff at a group presentation as "older than many of the people and so [he has] more experience than many of the people there in the group." Tr. p. 88. Plaintiff was offended by the reference to his age, and he so advised Athans. May 8, 2012, Email to Rob Athans, ECF No. 46-5, PageID# 809.
GE contends that, because GE had no knowledge of plaintiff's contact with the EEOC, it could not have retaliated against him because of that contact. In his response, plaintiff continues to emphasize his efforts to report and "rectify" GE's "unsafe product design." Memo. in Opp., PageID# 410. Of course, any such efforts — although relevant to plaintiff's public policy claim — are irrelevant to his remaining claim of unlawful retaliation under Title VII. Moreover, plaintiff appears to confuse unpleasant treatment in the work-place with unlawful discrimination:
Memo. in Opp., PageID# 412. When plaintiff asserts that he reported discriminatory actions to GE managers,
Plaintiff also refers to the May 8 incident during which Rob Athans referred to him as "old;" plaintiff testified at the arbitration proceeding that he reported this incident to GE's human resources manager. There are two reasons why this incident is insufficient to overcome the motion for summary judgment. First, plaintiff's federal claim is based on Title VII, which does not address age-related employment practices. The Amended Complaint makes no mention of the ADEA and plaintiff will not be permitted to assert, in his response to the motion for summary judgment, an entirely new claim based on an entirely different federal statute.
In short, the Court concludes that plaintiff has failed to establish a prima facie case of retaliation under Title VII and that GE is therefore entitled to summary judgment.
