STEPHEN J. MURPHY, III, District Judge.
Plaintiff Kim Wilson filed this action alleging that Defendants Budco, a Michigan
Because the Court must view all facts in the light most favorable to the non-moving party when considering a summary judgment motion, to the extent that any facts are disputed, the facts set forth below represent Wilson's version of the events at issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Further, the facts below only recount those facts not presented in filings stricken by the Court, see, Analysis, Section A, infra.
Wilson, an African-American male, began working at Budco in 1993 as a temporary employee through Kelly Services, a temporary employment agency. In 1995, Wilson was hired by Budco as a full-time machine operator. Pl. Dep. 129. Wilson alleges that white employees, with similar backgrounds, were hired as permanent employees after working for only a few months at Budco, while African-Americans, including Wilson, worked for years before being hired as permanent employees. Id. at 37; Pl. Aff. ¶¶ 4, 6 (docket no. 19 ex. A).
By 1997, Wilson was working on the night-shift as a machine operator in the DCXOM department, producing automotive owner's manuals for Chrysler. Pl. Dep. 130. In 2000, Wilson's shift had the highest output of all the shifts at Budco, and Wilson was promoted to the position of Level 3 Machine Operator. Id. at 132-34; Wilson Perf. Eval. at 23 (docket no. 19, ex. F). As a Level 3 Machine Operator, Wilson was tasked with supervising other workers and was responsible for the "set-up, operation, maintenance, and repair of machinery on the production floor." Job Description (docket no. 14, ex. E).
In 2003, J.T. Holtzman was transferred to DCXOM and became Wilson's supervisor. Wilson's job evaluations generally indicated that he met or exceeded expectations and often praised his work quality and production output, though evaluations from 2003-2006 consistently noted that Wilson needed to improve his mechanical and trouble-shooting skills. Wilson Job Evaluations 2003-2006 (docket no. 14, ex. F). Wilson's job evaluations further noted that Wilson needed to "understand the importance" of attending all mandatory and scheduled Budco University classes. Id.
In the summer of 2007, Budco learned that Chrysler had contracted with another company to prepare its owner's manuals. As a result, Budco prepared to dissolve several of its departments, including DCXOM. Pl. Dep. 78-79. At that time, Keith Foether, Budco's general manager of operations, advised Wilson and another employee, Jeremy Page, that DCXOM would be dissolved by July 2008, but that Wilson and Page would be transferred to letter shop/bindery.
In October 2007, Wilson transferred to a night-shift position in the bindery. Wilson remained a Level 3 Machine Operator, but, because the bindery department already had a supervisor, Leslie Peeples, Wilson no longer supervised other workers. Id. at 232, 234. Thus, Wilson was strictly responsible for troubleshooting and repairing the machines in the bindery department. Id. Raymond, who was an operations manager and Wilson's supervisor in bindery, stated that Wilson struggled in the bindery department and that he "never really fulfilled the responsibilities of an operator within the department. He still struggled with some of the setup responsibilities within the department." Raymond Dep. 21-22. Wilson alleges, however, that while he worked in bindery, Peeples assigned him to tasks such as taking out the garbage and loading books into the machines, which frustrated his ability to perform his job of keeping the machines running. Pl. Dep. 249-251. Although Wilson spoke with Raymond about the issues that frustrated him, and was told that he was not responsible for these tasks, id., Wilson later discovered that Raymond was actually instructing Peeples to have him perform these duties. Id. at 254-55.
Further, Raymond often spoke to Wilson in a disrespectful manner. Raymond called him stupid, a "shithead," and also said "you fucking people" to him. Id. at 297. When Wilson approached Raymond about an incident in which Raymond failed to relay a message that Wilson did not need to come into work early, Raymond responded that he did not want to hear it. Id. at 263. At one point, when Wilson asked Raymond what happened to Raymond's motorcycle, Raymond responded that he had sold his motorcycle for a Glock pistol, which he kept in his car "just in case," in a manner Wilson believed to be threatening. Id. at 298, 409. Other employees, including Adria Hampton, Kenneth Adams, and Sherman Levingston
In December 2007, Wilson sent Holtzman and Foether an email indicating that he was having problems with Raymond. Pl. Dep. 325, 330. Wilson acknowledges that he sent this letter to Holtzman despite the fact that he believed Holtzman was a racist and treated white employees preferentially. Id. Holtzman approached Wilson after receiving the letter and told him that Raymond had a different managing style than Holtzman, and that Wilson needed to treat the bindery department as if he was at a different job than when he was working in DCXOM with Holtzman as his supervisor. Id. at 331. When the issues had still not resolved by January 2008, however, a meeting was set up between Wilson, Holtzman, and Foether. Id. at 293. When Wilson arrived to the meeting, Raymond was also present. Id. at 295. According to Wilson, he attempted to explain to Holtzman and Foether the problems he was having with Raymond, including that Raymond had threatened him with a gun. Id. at 295-99. Wilson alleges that in response, Foether merely stated that he was not going to "tolerate this" and that Wilson needed to go out and do
A few days later, Raymond approached Wilson and said that he needed a "favor." Id. at 300. According to Wilson, Raymond told him that production had gone down in DCXOM since Wilson left, and that Raymond needed Wilson to transfer back to DCXOM until it closed down, at which time he could return to a position in letter shop/bindery for which he had applied. Id. at 300. Defendants assert that this decision was made because Wilson was struggling in bindery and was unhappy, and because the supervisor of DCXOM had poor supervisory skills and let employees take longer lunch breaks than permitted by company policy. Foether Dep. 23; Holtzman Dep. 36-37; Raymond Dep. 44-48. Wilson believed he was only temporarily moving to DCXOM, but Raymond had, in fact, transferred him without his knowledge. After Wilson was back in DCXOM, Raymond approached him and held a bullet to his face stating "these bullets tear shit up". Pl. Dep. 409-10.
In May 2008, the night-shift of the bindery department was shut down, and Wilson was transferred to the day-shift. Id. at 82, 334. In July 2008, the DCXOM department was shut down entirely and 11 permanent and temporary employees were laid off, including Wilson. All 11 employees were black. Wilson learned for the first time that morning that he was losing his job. Id. at 78. At that time, Wilson alleges that Holtzman gave him a handout for Kelly Services and wished him good-luck. Wilson Aff. ¶ 44 (docket no. 19, ex. A). Wilson also signed a change of status form, indicating that he was laid off as a result of Budco losing Chrysler's business, and that he was eligible for rehire. Pl. Dep. 374; Foether's Dep. 33-34; Status Change Form (docket no. 14, ex. K). When he contacted Select Staffing, another temporary employment agency through which Budco was posting its jobs, he was informed that he could not reapply because he was a former employee of the company. Wilson Aff. ¶ 45 (docket no. 19, ex. A).
A substantial portion of Wilson's claims are based on the assertion that he was treated differently than Jeremy Page, a white employee. Page worked the day shift as a Level 3 Machine Operator in the DCXOM department along with Wilson from 2003-2007. According to Wilson, Page was transferred to DCXOM because his supervisor in the letter shop department, where he initially worked, wanted to fire him. Pl. Dep. 345-46; Pl. Aff. ¶¶ 9-10.
Prior to working at Budco, Page attended approximately one and one-half years of college, and worked as a supervisor and a machine operator for various companies since 1994. Page Application (docket no. 14, ex. G). While working at Budco, Page utilized Budco's tuition reimbursement program and took classes at Oakland Community College in the Associate Business Program, including a class in Software Engineering. Page Request Form (docket no. 14, ex. J). Page's performance evaluations often praised his mechanical skills, stating that they were "outstanding," that he had "improv[ed] the performance" of the stream-feed machine, and that he had mastered all the "little nuances of the DCXOM program, computer software and equipment." Page's Evaluations 2005-2006 (docket no. 14, ex. H).
The evaluations also noted, however, that Page needed to improve his communication skills and the quality of his work. Id. One evaluation stated that "As a supervisor, [Page] must hold his team more accountable for the quality of the product
According to Wilson, when Page did not meet his production quotas, Holtzman instructed Page to "tweak his numbers" so that he would appear to be meeting quotas. Wilson Aff. ¶ 20 (docket no. 19, ex. A). Tweaking the numbers required Wilson to "make up" the numbers, and thus, Wilson was also told to tweak his numbers. Id. ¶ 21. In 2007, Wilson became frustrated with Page's performance and told Carol Kapron, the head of the department, where Page had hid defective products that he made during his shift, but no action was taken. Id. ¶¶ 22-24. Further, while Wilson and Page were working in DCXOM, they each worked a few days in the bindery department, and Wilson asserts that he produced nearly six times as many units each night. Id. ¶¶ 25-26.
Page left Budco to work for a competitor after he was informed that DCXOM would be dissolving. Wilson alleges that the competitor terminated Page. Pl. Dep. 343. Page was subsequently rehired by Budco in February 2008 as a temporary employee and was given the title of Level 3 Machine Operator. Foether Dep. 26-27. Page was then given a position in letter shop/bindery, the same position for which Wilson had previously applied, during the same week that Wilson was transferred back to DCXOM. Pl. Dep. 312, 340-41. Defendants admit that at the time of Wilson's termination, Page, was being paid more than Wilson, though they assert that Page was working as a Level 3 Supervisor while Wilson was working as a Level 3 Machine Operator.
Federal Rule of Civil Procedure 56(c)(4) provides that an affidavit offered in opposition to a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). In considering a motion to strike, the Court must "use a scalpel, not a butcher knife" and only strike portions that are inadmissible under Fed.R.Civ.P. 56(c)(4). Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir.2009) (internal citation omitted) (analyzing Fed. R. Civ. P.(e), provisions of which are incorporated into 56(c)(4) by the 2010 amendments to the Federal Rules of Civil Procedure). In other words, the Court must only strike the inadmissible portions of an affidavit, rather than the whole affidavit. It is the burden of the party submitting the affidavits to demonstrate that the witness has personal knowledge of the statements contained in the affidavit. Long v. Procter & Gamble Mfg. Co., No. 03-1097, 2005 WL 1631033, *1 (W.D.Tenn. July 8, 2005). Further, hearsay evidence cannot be considered on a motion for summary judgment. Wiley v.
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment may be granted "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). A fact is "material" for purposes of summary judgment if proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, when a reasonable jury could not find that the nonmoving party is entitled to a verdict, there is no genuine issue for trial and summary judgment is appropriate. Id.; Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir.1993). In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences in a light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The Court is not required or permitted, however, to judge the evidence or make findings of fact. Id. at 1435-36.
In support of his opposition to Defendants' summary judgment motion, Wilson submitted affidavits from himself, Hampton, Adams, and Levingston. Defendants seek to strike the affidavits because: they are not based on personal knowledge; they contain inadmissible hearsay, speculation, opinion and conjecture; Wilson's affidavit contradicts his prior deposition testimony; and the affidavits violate the statutes of limitations applicable to this action.
Defendants cite specific paragraphs in their motion to strike. In doing so they also assert that relevant paragraphs in the affidavit which should be struck are not limited to those cited in the brief. It is Defendants' obligation to specifically identify which statements in the affidavits should be struck. See AT & T v. Shared Comm'ns Servs., No. 93-3492, 1995 WL 555868, at *3, 1995 U.S. Dist. LEXIS 13706, *9 (E.D.PA., Sept. 13, 1995) ("Although AT & T asserts that the paragraphs it points to are only examples of the inadmissible nature of the entire ... affidavit, it is AT & T's burden as the party moving to strike the affidavit to show the inadmissibility of each statement in the affidavit.") (emphasis added); Ernst Seidelman Corp. v. Mollison, 10 F.R.D. 426, 428 (S.D.Ohio 1950) ("The Court cannot and should not be expected to go through the ... affidavit with a fine-tooth comb and pick out the certain portions which defendants ... feel should be stricken.") (internal quotations omitted). Therefore, the Court here will only consider striking statements that Defendants both specifically identify and support with authority for striking. See Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F.Supp.2d 948, 958 n. 14 (S.D.Ohio 2000) ("Because [Defendant] has not provided any argument in support of its request to strike the paragraphs cited in footnotes, the Court does not deem those paragraphs properly challenged and will not address them."). The Court will address each paragraph cited by Defendants in turn below.
Defendants argue that Wilson does not establish personal knowledge for this claim, fails to name any of the individuals, and does not give a relevant time period. The Court disagrees and will not strike paragraph 4. Wilson establishes that he has personal knowledge of his claim in his supplemental affidavit, by explaining that he knew who was hired full-time because, when an employee was hired as a full-time employee at Budco, they spent a day doing a walking tour of the shop floor. Wilson Supp. Aff. ¶ 7. "When defective affidavits are submitted, the submission of additional affidavits is sufficient to cure any defect which may have existed in the original affidavit." United States v. Macomb Contracting Corp., No. 3-84-1095, 1988 U.S. Dist. LEXIS 17608, * 41 (M.D.Tenn. Oct. 14, 1988) (internal citations omitted).
Defendants also assert that the Court should strike paragraph 4 because it is vague and unrelated to the discrimination against Wilson. In support of this assertion, Defendants rely on Bailey v. Youth Villages, Inc., 239 F.R.D. 483, 486 (M.D.Tenn.2006), in which the district court struck statements that had occurred two years before the alleged events giving rise to plaintiff's discrimination claim and involved employers totally unrelated to the alleged discriminatory incident involving the plaintiff. Id. The Court will not strike paragraph 4 for this reason, despite the fact that Wilson cannot remember specific information, including the names of employees. In Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356-57 (6th Cir.1998), the Sixth Circuit stated:
Id. (internal citations and quotations omitted). Thus, the Court does not view evidence of racial discrimination in hiring practices at Budco as irrelevant to Wilson's claim that he was discriminated against by being transferred back to DCXOM and by not being hired for a job ultimately given to Page.
Defendants assert that the Court should strike paragraph 5 for lack of personal knowledge. In his supplemental affidavit, Wilson explained that he knew this information because he was told by the employees why they were quitting. Wilson lacks personal knowledge of information that he received from these employees. See Sperle v. Mich. Dep't of Corr., 297 F.3d 483, 495-96 (6th Cir.2002) (holding that plaintiff-affiant did not have personal knowledge of statements made to him by a third party); Weberg v. Franks, 229 F.3d 514, 526 n. 13 (6th Cir.2000) (disregarding several of plaintiff's allegations because they were based on hearsay,
Defendants assert that this statement should be struck because it is vague and irrelevant in accordance with Bailey, cited above. The Court disagrees because, as stated above, evidence of discrimination in hiring practices at Budco is relevant to Wilson's claim of discrimination.
Defendants move to strike paragraphs 7 and 8 from Wilson's affidavit because they contain inadmissible hearsay, speculation, opinion, and conjecture. The Court will not strike these statements on those grounds. The statements were made directly to Wilson, and are not statements offered for the truth of the matter asserted. The Court will, however, strike them because, as Defendants assert, they are unrelated to the alleged discrimination against Wilson. The statements made by Labon happened in 1998 and 2000 respectively, and there is no allegation that Labon had anything to do with the decision to transfer or to not hire Wilson. Bailey, 239 F.R.D. at 486. ("vague and unrelated allegations of discrimination made by an individual regarding another employee who had nothing to do with the alleged discrimination against Plaintiff are irrelevant and inadmissible."); See also Smith v. Leggett Wire Co., 220 F.3d 752, 759-60 (6th Cir. 2000) (finding district court committed reversible error by admitting evidence of racial statements made by co-workers of African-American employee long before his termination, none of whom were responsible for the decision to terminate).
Defendants argue that paragraph 10 should be struck because it contains hearsay. Although the statement is offered as proof that Page was a bad employee, as Wilson argues, it is admissible as nonhearsay under Federal Rule of Evidence 801(d)(2)(D). Rule 801(d)(2)(D) provides that "statement(s) by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" are admissible as nonhearsay. Fed. R.Evid. 801(d)(2)(D). Defendants argue that this exception does not apply because McComb was not a decision-maker with
Defendants' reading of Rule 802(d)(2)(D) is too narrow. Whether something is within an employee's scope of employment extends beyond matters involving direct decisionmakers. Carter v. Univ. of Toledo, 349 F.3d 269, 275 (6th Cir.2003). As Wilson argues, McComb's comments about Page fall squarely within the scope of her employment because she was a supervisor, who gave evaluations of those working under her, including Page. Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 722 (6th Cir.2005) (citing Barner v. Pilkington N. Am. Inc., 399 F.3d 745, 750 (6th Cir.2005)) (holding that employee charged with managing the promotional process, was within his authority when he spoke on the matter of promotions). Further, although comments made by individuals not involved in the decision-making process cannot constitute direct evidence of discrimination, Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir.2002), Wilson does not offer the statement as direct evidence of discrimination with regards to the adverse actions taken against him; rather, he offers the statement as proof that Page was a poor employee and as circumstantial evidence of discrimination.
Defendants argue that Wilson lacks personal knowledge for these statements, citing Jackson v. Boatman, No. 4:06-cv-75, 2007 WL 2320531, *7 n. 1 (W.D.Mich. Aug. 10, 2007), in which the district court held that the plaintiff did not have personal knowledge of events which happened outside of his presence. See also Buchanan v. City of Bolivar, 99 F.3d 1352, 1355 n. 2 (6th Cir.1996) (finding that although plaintiff stated in certified complaint that her son washed three police vehicles, she was not present at time and therefore, did not have personal knowledge of matter asserted).
Wilson's supplemental affidavit addresses the problem. He explains that production quotas were listed on the board shop floor, and both the number of kits that Page and Wilson were required to produce, and the number they actually produced, were available in the computer. Pl. Supp. Aff. ¶¶ 16-17. Further, paragraph 14 of Wilson's affidavit provides specific details as to how many kits Wilson and Page produced.
Defendants assert that Wilson lacks personal knowledge for the foregoing statements, and the Court largely agrees. The first half of paragraph 15 and all of paragraphs 16 and 19 will be struck for lack of personal knowledge. Though Wilson explains in his supplemental affidavit how he knew that Page "messed up" products, Wilson does not sufficiently demonstrate knowledge for the conclusory and vague assertions that Page messed up "all the time" or that it was "usually his entire production run." Further, though Wilson asserts that he knew that Page spent a "lot" of time fixing errors because Holtzman told him that information, Pl. Supp. Aff. ¶ 29, as discussed above, one does not have personal knowledge of information obtained through a third-party. Therefore, the Court will strike paragraphs 16 and 19 and the first clause of paragraph 15 from Wilson's first affidavit, and paragraph 29 of the supplemental affidavit.
Defendants assert that paragraph 20 should be struck for lack of personal knowledge. The Court disagrees and finds that Wilson demonstrates personal knowledge by asserting that he heard Holtzman instruct Page to tweak his numbers. Pl. Supp. Aff. ¶¶ 31-33. Further, Wilson also had to tweak his own numbers as a result of Page tweaking his.
Defendants also argue that paragraph 20 should be struck because it contradicts Wilson's previous sworn deposition testimony. Defendants argue that at the deposition, Wilson was asked several times to describe the conduct that he perceived as discriminatory at Budco. In response to these questions, Wilson failed to mention that Holtzman instructed Page and Wilson to tweak their numbers. See Wilson Dep. at 382 (Asking Wilson to state "Any additional reasons why you thought you were treated unfairly that would lead you to believe that your race had something to do with your termination?"); Wilson Aff. ¶¶ 20-21 (docket no. 19, ex. 2).
The Sixth Circuit has held that a party cannot file an affidavit, after a motion for summary judgment has been made, which contradicts his earlier deposition testimony. Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986). When deciding the admissibility of a post-deposition affidavit at the summary judgment stage, the court must first determine whether the affidavit directly contradicts the non-moving party's prior sworn testimony. Aerel, S.R.L. v. PCC Airfoils, LLC., 448 F.3d 899, 908 (6th Cir.2006). When there is no direct contradiction, the court should "not strike or disregard the affidavit unless the court determines that the affidavit constitutes an attempt to create a sham fact." Id. at 909. Whether something is a "sham fact" turns on
The statement in Wilson's affidavit are not directly contradictory to his prior deposition testimony. Further, the Court does not find that they are "sham facts." Wilson was never directly questioned about the instances recounted in his affidavit, and he was under no obligation to volunteer information. Thus, he should not now be prevented from providing greater detail as to events which support his claims. See Briggs v. Potter, 463 F.3d 507, 513 (6th Cir.2006) (when plaintiff was questioned generally about a conversation but was not asked specifically what was said to him, he was "under no obligation to volunteer" anything said during the conversation and "should not be prevented from providing greater detail in a later affidavit.").
Defendants assert that paragraphs 30-31 should be struck because they are merely conjecture and opinion. The statement that "Larry was an abusive manager" and the statement in paragraph 31 are opinion testimony, and, therefore, admissible. See Fed.R.Evid. 701. The second half of paragraph 30, however, which states that Raymond was trying to get a rise out of Wilson is a conclusory speculation of what Raymond's intentions were and is inadmissible. See Jones v. Butler Metropolitan Housing Authority, 40 Fed.Appx. 131, 135 (6th Cir.2002) (affidavits that recount hearsay, impressions of what others in organization were thinking, and opinions of those impressions must be struck).
Defendants also assert that several additional statements in Wilson's supplemental affidavit should be struck.
Defendants argue that these paragraphs should be struck because they are irrelevant according to the Bailey decision. As discussed previously, following the law of Ercegovich, 154 F.3d at 356, the Court disagrees and finds evidence that Budco considered race in its hiring decisions as relevant to Wilson's claim that adverse employment actions were taken against him. Further, Wilson demonstrates how he knew that white employees were hired faster—he states that saw groups of newly hired employees touring the shop floor.
Defendants first assert that this statement should be struck because it is inadmissible under Bailey because it is vague and irrelevant. Second, Defendants argue it should be struck in accordance with Jones, 40 Fed.Appx. at 135, because it purports to show personal knowledge of the thoughts and opinions of someone else who had authority over Wilson. Finally, Defendants argue that it is hearsay. As discussed previously in connection with the Court's discussion of paragraph 10 of Wilson's first affidavit, the Court does not find that this statement is hearsay or irrelevant. Further, the statement does not give an impression of what McComb said, it relates what McComb actually said, and, therefore, will not be struck under Jones.
Defendants argue these paragraphs should be struck because they constitute inadmissible hearsay and because they are unrelated to alleged acts of discrimination against Wilson, under the analysis of Bailey. The Court will strike paragraph 31, but not paragraphs 32 through 33.
Page's statement is hearsay. Holtzman's statement, however, is nonhearsay under Rule 801(d)(2)(D) because Holtzman was the manager in DCXOM, and therefore, statements regarding production numbers in DCXOM were within his purview. Further, evidence that Holtzman, who was involved in the decision to transfer Wilson back to the DCXOM department, treated Page preferentially, is relevant to the claim Wilson makes in that regard.
Finally, Defendants assert that Wilson's affidavit, along with the other three affidavits, must be struck because the statements reference actions which violate the applicable statute of limitations period. Defendants' argument, however,
Defendants argue that this statement should be struck in accordance with the decision in Jones. The Court disagrees. Hampton explains that she worked under the supervision of Page from 2003 through 2005,
Defendants argue that these statements are not based on personal knowledge because Hampton did not work under Page's supervision. Hampton's supplemental affidavit, however, affirms that her statements were based on personal knowledge, that she worked under the supervision of Page from 2003 through 2005, that she knew that the kits were run incorrectly because the kits had to be reworked, and that she heard Holtzman tell Page to write up Johnson. Hampton Supp. Aff. ¶¶ 3-8. Thus, the Court will not strike these statements for lack of personal knowledge.
Defendants argue that the statements must nevertheless be struck in accordance with Jones. The Court disagrees and finds that the paragraphs merely describe daily activities at Budco and recount instances when Holtzman appeared to treat Page preferentially.
Again, Defendants assert that this paragraph should be struck pursuant to Jones. The Court reiterates its conclusion that the statement does not express an impression of what Page was thinking, but rather, recounts Hampton's experiences working under Page.
Defendants argue that paragraph 13 of Hampton's affidavit should be struck because it contains inadmissible hearsay, speculation, opinion, and conjecture. Defendants further argue it should be struck on the authority of Jones. The Court disagrees. This statement is not an opinion or an impression, but rather, is a factual recounting of an event in which Hampton was involved.
Defendants argue that this statement should be struck in accord with the Jones analysis cited above, and the Court will strike the statement in part. Hampton's assertion that Wilson was being "picked on" is an opinion and it is admissible in accordance with Fed R. Evid. 701. The portion of the statement which asserts that the reason Wilson was being picked on was for "issues created by the day shift," is merely Hampton's impression of what Holtzman and Raymond were thinking, and it will be struck.
Defendants argue that this statement also purports to show the personal knowledge of others' thoughts and opinions and should be struck under Jones. The Court disagrees, since no part of the statement asserts personal knowledge of anyone else's thoughts or opinions.
Defendants argue that paragraph 16 of Hampton's affidavit should be struck because it is irrelevant and inadmissible under FRE Rule 403. In support of this assertion, Defendants rely on Schrand v. Federal Pacific Electric Co., 851 F.2d 152 (6th Cir.1988), in which the Sixth Circuit held that the testimony of two employees about allegedly discriminatory statements made to them were irrelevant and inadmissible because the person who made the decision to terminate the plaintiff was not involved in the decision to terminate the two employees. Id. at 156. Further, Defendants assert that the statement should be struck as irrelevant pursuant to Bailey, 239 F.R.D. at 486.
The Court will not strike paragraph 16 because the present case is distinguishable from both Schrand and Bailey. First, the testimony is not irrelevant, as it recounts statements allegedly made by Raymond, who is a defendant in the action and was part of the personnel decisions regarding Wilson. Further, the probative value of these statements is not outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. Rather, the fact that Raymond made derogatory statements to African-American employees is highly probative of Wilson's race discrimination claim, particularly when Defendants admit that Raymond did not speak in a derogatory manner to white employees.
Finally, Defendants assert that this statement also purports to disclose knowledge of other's thoughts and opinions and should be struck pursuant to Jones. The Court will not strike the statements on this ground, since the statement is nothing more than a recounting of alleged statements made by Raymond.
Defendants argue that the foregoing statements should be struck under Bailey because they are vague and unrelated to allegations of discrimination against Wilson. The Court disagrees. The statements are not vague, nor do the assert any incidents of discrimination. The Court also rejects Defendants' argument that paragraphs 5 and 6 should be struck pursuant to Jones. The statements do not give impressions of what others were thinking or opinions of those impressions. They merely provide a basis of personal knowledge for statements in Adams's affidavit regarding Raymond's interactions with his employees.
Defendants assert that these paragraphs should be struck as inadmissible under Rule 403 because the statements they contain are irrelevant and their probative value is outweighed by the danger of unfair prejudice. The Court disagrees, and finds that statements made by Raymond to African-American employees are relevant to Wilson's claims, and that the potentially prejudicial nature of the statements are not outweighed by their probative value.
Defendants also assert that these paragraphs should be struck under Bailey. As discussed previously however, allegations that Raymond spoke to black employees in a derogatory manner is not irrelevant to Wilson's claim because Raymond was involved in the decision to transfer Wilson back to DCXOM.
Finally, Defendants assert that the statements should be struck on the authority of Jones. The Court disagrees. The paragraphs recount alleged statements made by Raymond, and Adams's opinion that Raymond spoke in a derogatory and demeaning fashion, which is admissible under Fed.R.Evid. 701.
Defendants assert that the Court should strike the statements because Adams did not have personal knowledge of the facts recited, and because the statements are untrue and unreliable. The Court will not strike on the ground that the statements are untrue or unreliable because whether or not they are is a question of fact for the jury.
The Court will, however, strike the statements based on a lack of personal knowledge by Adams. The statements
Defendants assert that this statement is irrelevant, vague, and states only an impression, and should be struck under Bailey and Jones. The Court disagrees. Raymond's treatment of African-Americans is relevant. Further, stating that he did not speak in a "derogatory manner" is opinion testimony clearly admissible under Rule 701.
Defendants again assert the foregoing statements should be struck pursuant to Rule 403 and in accordance with the decision in Bailey. By the analysis set forth above, however, the Court disagrees as to the portions of the statements pertaining to Raymond. The Court will, however, strike the portion of the claim asserting that "other Budco managers" spoke in a derogatory tone because Wilson does not specify whether these managers were involved in any discriminatory personnel decisions.
Defendants also assert that the statements should be struck pursuant to the Jones decision because the statements merely give impressions of what others were thinking. The Court agrees as to paragraph 12 because it is merely Adams's impression of why Raymond would not speak to him. The Court disagrees as to paragraphs 13-15, and finds that, the opinion testimony is admissible under Rule 701.
Defendants argue that these statements should be struck for lack of personal
The Court will not strike the statements for a lack of personal knowledge. As to paragraphs 8-11, Levingston demonstrates that he had personal knowledge of Page's duties and of the errors in kits produced by Page, by asserting that he worked under Page and was responsible for pulling completed kits off the line.
Finally, as to paragraph 12, Defendants' argument that this statement should be struck for lack of personal knowledge is baseless because Levingston clearly has personal knowledge of incidents in which he was directly involved.
Defendants also assert that the statements should be struck in accordance with the law of Jones. The argument is without merit, however, because the statements are a factual recounting of certain events and they do not set forth impressions of what others were thinking or opinions of those impressions. The same analysis is applicable to paragraph 13 of the affidavit.
Defendants assert that the foregoing statements should be struck under authority of Fed.R.Evid. 403 and Schrand. The Court agrees. The statement asserts only vaguely that "managers" at Budco used abusive language toward African-Americans and not toward white employees. There is no assertion that these managers played any part in the decisions regarding Wilson.
Defendants move for summary judgment as to Wilson's entire complaint. Wilson asserts that there are at least two triable claims: 1) that Page, a less qualified white employee, was hired for a position, for which Wilson had also applied, on the day-shift of letter shop / bindery and 2) that Wilson was transferred back to DCXOM because Defendants wanted to get rid of him.
Wilson alleges claims of race discrimination pursuant to Title VII, the ELCRA, and 42 U.S.C. § 1981 against Budco and Raymond. As Wilson conceded during a hearing on the motion, an individual who does not qualify as an "employer" is not subject to individual liability under Title VII. Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.1997) ("We now hold that an individual employee/supervisor, who does not otherwise qualify as an `employer' may not be held personally liable under Title VII."). Individual liability may, however, be imposed pursuant to § 1981 and the ELCRA. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (6th Cir.2000) (internal citations omitted) (holding that individuals may be held liable under § 1981 provided there is affirmative link connecting actor with discriminatory action); Elezovic v. Ford Motor Co., 472 Mich. 408, 411, 697 N.W.2d 851 (2004) ("We hold that an agent may be individually sued under § 37.2202(1)(a) of the [Civil Rights Act]"). Therefore, Raymond may not be held individually liable for discrimination under Title VII, and the
Absent direct evidence of discrimination, single-motive discrimination claims brought pursuant to Title VII, § 1981, and the ELCRA are analyzed under the McDonnell Douglas / Burdine burden-shifting framework.
First, the Court examines whether Wilson has met his burden of establishing a prima facie case. This burden is "not onerous." Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Because there is no assertion that Wilson was replaced in the bindery department by Page, Wilson must be able to establish that he was similarly situated to meet the fourth prong of a prima facie case. To be deemed "similarly situated", "the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in `all relevant aspects'" of their respective employment circumstances. McMillan v. Castro, 405 F.3d 405, 414 (6th Cir.2005) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994)) (emphasis in McMillan). The plaintiff has the burden of demonstrating "that all of the relevant aspects of his employment are nearly identical to those of the [non-protected] employees who he alleges were treated more favorably." Pierce, 40 F.3d at 802. Summary judgment is inappropriate if a rational fact-finder could conclude, upon construing the evidence in the light most favorable to the non-moving party, that the two employees were similarly situated. Benjamin v. Schuller, 400 F.Supp.2d 1055, 1079 (S.D.Ohio 2005) (citing Ercegovich v. Goodyear Tire & Rubber., 154 F.3d 344, 349 (6th Cir.1998)).
Defendants assert that Wilson is unable to make out a prima facie case of discrimination because he has not demonstrated that he was treated differently than a similarly situated employee.
The Court finds that based on the evidence available in this case, a rational fact finder could find that Page and Wilson were similarly situated. First, the Court considers Page's additional education to be irrelevant to the issues in dispute. Page and Wilson were both employed as Level-3 Machine Operators during their tenures at Budco, and the job description for a Level-3 Machine Operator states under education: "as required to perform essential functions of the job." Job Description at 2 (Docket no. 14, ex. E).
Further, although Budco asserts that Wilson struggled with machine operation and that Page was more qualified for the job based on his ability to work with machines, a reasonable factfinder could find, based on the evidence, that they were similarly situated with respect to their qualifications. Both performed the job of a level-3 machine operator in DCXOM. The job evaluations generally showed that Wilson met or exceeded expectations during this time. Wilson asserts that he was a superior producer during that time.
The Court is not persuaded by Defendants' argument that the job in bindery was different than the job in DCXOM because it did not require Wilson to supervise other employees, but only required him to work with machines, which Page was better at. Although job evaluations do indicate that Page worked well with the machinery and that Wilson needed to improve in this area, a factfinder could still find that they were similarly situated. Wilson was deemed to meet expectations on his job evaluations in DCXOM despite his noted need for improvement with machine operation, and Wilson asserts that he did not have problems with the machines. In fact, Wilson asserts, during the two days he and Page worked on Raymond's shift in bindery in early 2007, Wilson produced six times the number of units per night that Page did. Further, Wilson, relying on his own deposition testimony and Adams's affidavit, also asserts that Page's superior mechanical skills are irrelevant because neither Page nor Wilson were responsible for fixing the machines. The arguments all support a finding that the jobs were not different.
Defendants next assert that based on the time-line of events, Page and Wilson could not have been similarly situated because
The Court is unpersuaded by Defendants' argument regarding the time-line of events. First, Wilson and Page did perform the same job, at the same time, in the DCXOM department until Page quit and went to work for another company. Although Defendant's argue that any activity from that time period is irrelevant because the relevant time period of events in this case is from October 2007 through February 2008, when Wilson worked in the bindery department, the Court finds that evidence from when Page and Wilson worked in the DCXOM department is relevant in determining whether Page and Wilson were similarly situated with regards to their qualifications. Further, while it is true that Page did not return to Budco until after Wilson had transferred back to DCXOM, Page came back within the very same week that Wilson transferred, and remained there until Wilson was laid off, despite Wilson having applied for the same job that Page was given in the letter shop / bindery department. Wilson's theory is that Page was given the job over Wilson, who was transferred back to the closing DCXOM department. There is also a material issue of fact as to whether Page and Wilson were being paid different amounts for performing the same job at the time that Wilson was laid off.
Therefore, the Court finds that there is a material issue of fact as to whether Wilson and Page were similarly situated employees, and that Wilson has made out a prima facie case of discrimination. Because Wilson made out a prima facie case, Defendants have the burden of articulating a legitimate, non-discriminatory reason for their actions.
Defendants assert that Wilson was transferred back to DCXOM because he was struggling with the machines in bindery, because production in the DCXOM department had decreased, and because the supervision in the DCXOM department was lacking. Further, Defendants assert that Wilson was laid-off because of the loss of business at Chrysler, and that Page was hired into the bindery department, instead of Wilson, because Page had superior mechanical skills. Defendants have produced evidence to support their proffered reasons. Poor work-performance and layoffs due to loss of business requiring layoffs are legitimate, non-discriminatory reasons for an adverse employment action, and therefore, Defendants have met their burden.
Given that Defendants have asserted a legitimate non-discriminatory reason, Wilson assumes the burden of demonstrating that the reasons given were pretext. To meet this burden, the plaintiff "need only produce enough evidence to support a prima facie case and to rebut, but not to disprove, the defendant's proffered rationale." Blair v. Henry Filters Inc., 505 F.3d 517, 532 (6th Cir.2007),
Pretext may be shown by demonstrating that an employer's stated reason for an adverse employment action either "(1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer's action." Bartlett v. Gates, No. 09-3823, ___ Fed.Appx. ___, ___, 2010 WL 4723786, at *7, 2010 U.S.App. LEXIS 23559, *21 (6th Cir. Nov. 15, 2010) (citing White, 533 F.3d at 393). Pretext may not be shown merely by demonstrating that the employer's proffered reason was untrue, rather, the plaintiff must show "both, that the reason was false, and that discrimination was the real reason." Thomas v. Hoyt, Brumm, & Link, Inc., 910 F.Supp. 1280, 1288 (E.D.Mich. 1994) (emphasis in original). But, the "factfinder's disbelief of the reasons put forward by the defendant, may, together with the elements of the prima facie case, suffice to show intentional discrimination." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Finally, the soundness of an employer's business judgment may not be questioned as a means of showing pretext. Chappell v. GTE Prods. Corp., 803 F.2d 261, 266 (6th Cir.1986).
Wilson attempts to show pretext with evidence that he was a superior producer than Page, through further evidence that supervision in DCXOM was not lacking, and through evidence of racial animus at Budco. Defendants assert that Wilson has not met his burden because he offers merely his own unsupported, conclusory beliefs regarding Defendants' intent, which are insufficient to defeat summary judgment. See Brennan v. Tractor Supply Co., 237 Fed.Appx. 9, 19-20 (6th Cir.2007) ("[M]ere conjecture that [the] employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment."). While Defendants are correct that mere conjecture is not enough to survive a motion for summary judgment, the Court finds Wilson's evidence is not mere conjecture, and that Wilson has met his burden of rebutting Defendants' proffered motives.
First, as discussed above, there is a material issue of fact as to whether Page was more qualified to work in the bindery department based on his mechanical skills, and whether Wilson was performing poorly in the bindery department, particularly given Wilson's assertion that he was informed that he would be returning to bindery / letter shop once DCXOM closed. This issue draws into question the factual basis for Budco's offered reasons for transferring Wilson back to a closing department and hiring Page into letter shop / bindery. Further, Hampton's affidavit presents evidence rebutting Budco's assertion that Wilson was transferred back to DCXOM because there was poor supervision in the DCXOM department because she had allowed employees to take longer lunch breaks than were mandated by company policy. Hampton asserts that she received an email in December 2007 regarding lunch breaks and her supervision of DCXOM, and that, immediately after receiving the email, she became compliant with company policies. Hampton Aff. ¶¶ 17-18. Thus, Hampton asserts, she was never written up and that all employees in DCXOM were already conforming with company policy by the time that Wilson was transferred back to DCXOM in 2008. Id. ¶¶ 19-20.
Adams, who is white, further asserts that Raymond never spoke to him, or other white employees, in that fashion. Id. ¶¶ 11. Levingston also asserted that he was written up for errors made by Page during production. Id. ¶ 12. Deposition testimony and affidavits from Wilson himself also describe alleged discrepancies in hiring practices for white and black employees, the demeaning manner in which Wilson and others were treated, and Raymond's allegedly threatening statements toward Wilson. Finally, Defendants admit that all the employees laid off when the DCXOM department closed were black. Taken together, this testimony provides enough evidence for a reasonable jury to conclude that there was racial animus at Budco, and that is was the sole cause of Wilson's layoff.
The Court concludes that a jury could find that Defendants discriminated against Wilson because of his race, and, therefore, summary judgment is inappropriate as to Wilson's claims for racial discrimination pursuant to Title VII
Wilson's response brief failed to address Defendants' claims that the Court should grant summary judgment as to his hostile work environment, retaliation, and wrongful discharge claims. Wilson's wrongful discharge claim is premised on a theory of breach of contract. During the hearing conducted on the motion, Wilson's counsel conceded that the breach of contract claim was not viable. The Court, therefore, grants summary judgment for Defendants on Wilson's wrongful discharge claim.
As for the retaliation and hostile work environment claims, Wilson's counsel asked the Court to grant additional time to further brief these claims. The Court does not find that additional briefing would benefit the Court, as these claims are meritless.
Further, Wilson's hostile work environment claim fails because Wilson has not produced evidence to demonstrate that there was "repeated conduct [and that] the workplace [was] permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment." Hunter v. Sec'y of U.S. Army, 565 F.3d 986, 994 (6th Cir.2009) (internal citations omitted). Though the Court finds that evidence of racial animus exists, there is not sufficient evidence that it was severe and pervasive enough to alter the conditions of Wilson's employment, particularly given the fact that Wilson did not quit and even attempted to reapply for a position at Budco.
Based on the foregoing analysis the Court will strike paragraphs 5, 7, 8, 16, and 19 and portions of paragraphs 15 and 30 of Wilson's first affidavit; paragraphs 11, 29, 31, 39, and 41 of his second affidavit;
Moreover, the Court grants summary judgment in favor of Raymond as to the Title VII discrimination claim, and grants summary judgment in favor of all Defendants on the retaliation, hostile work environment, and wrongful discharge claim. The Court denies summary judgment with respect to the Title VII discrimination claim against Budco, and to the § 1981 and ELCRA claims against all Defendants.
