JAMES S. GWIN, District Judge.
On November 11, 2016, Plaintiff Joe W. Lumpkin filed Title VII employment discrimination claims against Defendant Adalet/Scott Fetzer Company.
On April 17, 2017, Defendant filed a motion for summary judgment.
Defendant Adalet/Scott Fetzer Company ("Adalet") fired Plaintiff Joe Lumpkin. This case stems from Lumpkin's termination from Adalet. Defendant argues it fired Plaintiff for taking unauthorized smoke breaks in a non-smoking area. Plaintiff, an African American, argues that his Caucasian coworkers did the same and suffered no consequences.
On July 16, 2014, Defendant Adalet hired Plaintiff Lumpkin as a foundry custodian.
During orientation, Defendant told Lumpkin of its Progressive Discipline Policy.
Adalet work rule violations include "[i]ncurring more than two incidents of leaving work early or arriving late, or losing over four lost work time hours due to arriving late or leaving early in any one month period."
Defendant Adalet also informed Lumpkin of its anti-harassment and discrimination policies.
Relatedly, Plaintiff's Supervisor Mark Ambrose received training on "recognizing and preventing racial harassment in the workplace."
Plaintiff Lumpkin says coworkers and supervisors called him racist nicknames and made derogatory comments toward him at work. He alleges Caucasian supervisors told him "you clean up real good," "clean that shit up," and "you've got to get that fucking sand up."
Supervisor Ambrose called Lumpkin "Joe Dirt" and "Smoking Joe."
Plaintiff Lumpkin claims Supervisor Ambrose witnessed Caucasian coworkers laughing at Lumpkin and did not intervene.
In early-mid October 2014, Plaintiff committed two attendance violations.
Accordingly, on November 5, 2014, Defendant assessed Plaintiff for two demerits.
On April 2, 2015, Plaintiff received two more demerits for smoking in a non-smoking area while on the clock.
Plaintiff states that Caucasian coworkers were similarly smoking with him and. Simpson.
After Operations Director James saw Plaintiff and Simpson smoking, James emailed Supervisor Ambrose and told Ambrose to issue Plaintiff and Simpson demerits.
Because these demerits brought Plaintiff to a total of four infractions within twelve months, Defendant Adalet terminated Plaintiff on April 7, 2015.
The day Defendant terminated Plaintiff Lumpkin, the Union filed a grievance on Lumpkin's behalf.
In May 2015, Lumpkin filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). On August 15, 2016, the EEOC issued Lumpkin a right to sue letter.
On November 11, 2016, Lumpkin filed Title VII employment discrimination and related state claims against Defendant Adalet in this Court.
On April 17, 2017, Defendant filed a motion for summary judgment.
Under
When parties present competing versions of the facts on summary judgment, a district court adopts the non-movant's version of the facts unless the record before the court directly contradicts them.
Plaintiffs brings both a federal Title VII claim and an Ohio claim for wrongful termination under Ohio Revised Code §4112.02. Because the federal analysis is also used for the state claim,
Under Title VII, an employer may not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
To survive summary judgment, Plaintiff Lumpkin must first make out a prima facie case of race discrimination.
If Plaintiff makes out a prima facie case, the burden shifts to Defendant Adalet "to proffer a legitimate, nondiscriminatory reason for its decision."
The parties only dispute whether Plaintiff satisfies the fourth prong.
Defendant argues that Plaintiff fails to show disparate treatment.
Plaintiff responds that there is no supporting documentation for these alleged demerits and Caucasian coworkers were never written up.
The Court finds a genuine dispute as to whether non-African American employees have been reprimanded for smoking violations. DuBreuil's affidavit generally says that three non-African American employees were cited for smoking outside break time. But she does not give their names and gives no further evidence supports that statement.
The Court acknowledges that some doubt exists as to Plaintiff's story. Plaintiff states that Caucasian coworkers were smoking with him and Mr. Simpson the morning of April 2, 2015 and did not receive demerits.
Defendant's argument is supported by the record—three of the four individuals alleged to be smoking with Plaintiff and Simpson could not have been there on that particular morning.
However, even if those employees were not with Plaintiff on the morning in question, Plaintiff states that Caucasian coworkers and Supervisor Mark Ambrose regularly smoked outside formal break times.
Whether Defendant Adalet fired Plaintiff Lumpkin for smoking during non-break times and allowed Caucasian coworkers to do the same with no consequences is a question for trial.
Because Plaintiff shows genuine disputes of material fact in his prima facie case, Defendant must show a nondiscriminatory reason for firing Lumpkin. Plaintiff Lumpkin violated Defendant's progressive disciplinary policy
Plaintiff therefore has the burden of proving "by a preponderance of the evidence that the reasons offered by the employer were pretextual."
A plaintiff can establish pretext by showing "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his [discipline], or (3) that they were insufficient to motivate discharge."
"The third category of pretext consists of evidence that other employees, particularly employees outside the protected class, were not disciplined even though they engaged in substantially identical conduct to that which the employer contends motivated its discipline of the plaintiff."
If Plaintiff Lumpkin makes a showing under the third category, the Court can but is not required "to infer illegal discrimination from the plaintiff's prima facie case."
As discussed above, whether employees "outside the protected class" were disciplined for smoking outside of break time or in a non-smoking area is unclear—neither side presents hard evidence. Therefore, a genuine issue of material fact exists.
However, Plaintiff must also establish that a racially-motivated actor was "the decision maker with regard to the relevant adverse employment action."
Plaintiff Lumpkin argues that Supervisor Ambrose demonstrated racial animus by calling Lumpkin racial nicknames like "Smoking Joe" and tolerating other employees doing the same.
Defendant argues that Ambrose's involvement in Plaintiff's termination is insufficient. Director of Operations Tom James saw Plaintiff smoking and ordered Ambrose to write the demerits. Defendant reasons that James was the relevant decision maker.
While it is a close call, the Court finds that Ambrose was sufficiently involved in Plaintiff's termination. James witnessed Plaintiff smoking and ordered Ambrose to write the demerits. However, Plaintiff has suggested that Ambrose often smoked with Plaintiff during nonbreak times and encouraged employees to do so.
Accordingly, the Court
Defendant Adalet argues that Plaintiff's hostile work environment claim fails.
To show a hostile work environment, "a plaintiff must demonstrate that (1) he belonged to a protected group, (2) he was subject 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."
The fourth and fifth factors are disputed here.
To discern whether comments are "sufficiently severe," courts consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."
In the Sixth Circuit, even where comments are "socially repulsive," "deporable" and racially-charged, they do not create a hostile work environment if they are "too infrequently made" and "neither physically threatening nor humiliating."
Defendant argues that nicknames, however offensive, do not generally create a hostile work environment.
Defendant does not appear to dispute that certain nicknames, such as "Django" or "Coolio," are racially charged and at least potentially offensive.
Plaintiff argues that "an ordinary reasonable person would find the pervasive ridiculing [Plaintiff suffered] to be abusive."
Here, nearly all
While the parties may bicker over whether "Smoking Joe" is a compliment or an insult, it is clear that nicknames used for Plaintiff Lumpkin were associated with his race.
While some nicknames were only used a few times,
This case presents a close question. Although the Sixth Circuit sets a "relatively high bar"
Furthermore, Plaintiff's claim should proceed to trial for practical purposes. Because the wrongful termination claim will be submitted to a jury, it is more efficient for the jury to consider the case in its entirety.
Under the fifth prong, "an employer's liability . . . may depend on the status of the harasser." The Supreme Court has held:
Defendant Adalet argues that it is not liable for harassment from Lumpkin's coworkers
Plaintiff states that he "went to" Supervisor Ambrose but never reported any of these incidents.
"An employer is deemed to have notice of harassment reported to any supervisor or department head who has been authorized—or is reasonably believed by a complaining employee to have been authorized—to receive and respond to or forward such complaints to management."
Supervisor Ambrose was charged with reporting harassment to management.
Because there is a genuine dispute over whether Defendant negligently failed to address coworkers' racially charged nicknames, Defendant's motion for summary judgment is
Defendant Adalet also argues it is not responsible for Supervisor Ambrose's comments. Defendant states that Ambrose was not involved in Lumpkin's termination except for preparing the written demerits at Director of Operations Tom James' order.
Plaintiff responds that Ambrose's preparation of the demerits is sufficient involvement in Lumpkin's termination.
As discussed above, evidence suggests Ambrose repeatedly allowed and participated in smoking outside break time. When James contacted Ambrose to complain about Lumpkin's smoking, Ambrose should have clarified the situation.
Evidence also suggests Ambrose repeatedly directed racially-charged nicknames at Plaintiff and witnessed others do the same. Furthermore, Plaintiff submits that he "went to" Ambrose about the nicknames. Despite his obligation, Ambrose did not report the harassment.
Accordingly, there is sufficient evidence showing Supervisor Ambrose's harassment "culminated" in a tangible employment action.
Even if Supervisor Ambrose's harassment is not sufficiently tied to Plaintiff's termination, it is questionable whether Defendant Adalet can establish an affirmative defense.
Adalet argues it took affirmative steps to prevent any harassment through its antidiscrimination and anti-harassment policies.
Importantly, the policy says the victim is to "immediately bring the complaint to the attention of their Supervisor or the Human Resources Manager. Anyone uncomfortable with reporting a complaint of harassment to their Supervisor or the HR Manager needs to immediately report the complaint to the General Manager . . . Any Supervisor who learns of a complaint involving harassment is to notify the HR Manager immediately."
While Plaintiff Lumpkin could have reported the situation to the General Manager if he was uncomfortable going to Supervisor Ambrose, Ambrose also had an ongoing duty to report harassment himself. Therefore, according to Plaintiff's version of events, there is some doubt that Defendant Adalet "exercised reasonable care to prevent and correct" harassing behavior.
Accordingly, the Court
For the reasons above, this Court
IT IS SO ORDERED.
