Opinion
CIVIL ACTION NO. 3:98CV-703-S.
December 21, 2001
MEMORANDUM OPINION
This matter is before the court on defendants' motions for summary judgment. For the reasons stated below, these motions will be granted. Defendant Auto Rail Services of LAP, Inc. ("Auto Rail") has also moved to strike exhibits to plaintiff's response memorandum. As we will grant its motion for summary judgment, Auto Rail's motion to strike will be denied as moot.
FACTS
Plaintiff's pro se Complaint alleges violations of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, 1985 by both defendants. Plantiff also alleges a violation of 42 U.S.C. § 1986 by defendant General Drivers Warehouseman Helpers Local Union #89 ("the Union"). Finally, plaintiff alleges a violation of the National Labor Relations Act.
Plaintiff, an African-American, was employed by Auto Rail to drive vehicles from the Ford Assembly Plant to an adjoining yard where the vehicles are loaded onto trucks or rail cars for delivery to Ford dealers. He was a member of the Union and thus a party to a collective bargaining agreement, the National Masters Automobile Transporters Agreement ("NMATA"). Plaintiff's supervisor at Auto Rail was Steve Franken ("Franken"), a Caucasian.
Plaintiff's allegations are based on several instances of perceived racial harassment that began in June, 1997 and culminated in his discharge on July 21, 1998. They include being made to walk and pick up vehicles while others rode in a van, being assigned to a supervised work group consisting of a majority of African-American employees, being assigned various tasks despite having seniority over other available employees, being told to get off the telephone at the end of a break period, and not receiving responses to requests for time off. He also cited one discriminatory comment by Franken that "black men marrying white women [was] diluting [the white] race." (Pltf. Dep. at 69). Plaintiff filed grievances with the Union regarding several of the allegedly harassing incidents. He also filed a Charge of Discrimination against Auto Rail with the Equal Opportunity Employment Commission ("EEOC") on November 7, 1997. The charge was dismissed and plaintiff received a right to sue letter on August 13, 1998.
On July 21, 1998, plaintiff was discharged after a confrontation with Franken. Plaintiff admittedly called Franken a "punk" several times. Franken alleged plaintiff spit on and struck him, which plaintiff denies. Plaintiff was discharged for assaulting a fellow employee pursuant to Article 40, Rule 8(g) of the NMATA. Plaintiff filed a grievance with the Union regarding his discharge. A local level hearing was conducted and the Union concluded Auto Rail would not rescind the discharge. Plaintiff then appealed to an arbitration panel consisting of representatives from the Union and NMATA signatory employers. The panel decided to uphold the discharge. Plaintiff filed a second Charge of Discrimination against Auto Rail with the EEOC on October 5, 1998. This charge claimed his termination was in retaliation for his November 7, 1997 EEOC charge. A right to sue letter was issued on May 26, 2000.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
However, the moving party's burden may be discharged by demonstrating there is an absence of evidence to support an essential element of the nonmoving party's case for which he has the burden of proof. Id. at 323, 106 S.Ct. at 2552. Once the moving party demonstrates this lack of evidence, the burden passes to the nonmoving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element essential to his case with respect to which he bears the burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Title VII
"It is well settled that a party not named in an EEOC charge may not be sued under Title VII unless there is a clear identity of interest between it and a party named in the EEOC charge or it has unfairly prevented the filing of an EEOC charge." Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083, 1086 (6th Cir. 1984) (citations omitted). Neither of plaintiff's EEOC charges named the Union. (Pltf. Dep. Exhs. 2, 4). Further, the Union and Auto Rail did not have similar interests and there is no evidence the Union prevented the plaintiff from filing a charge against it. We therefore find plaintiff has failed to exhaust his administrative remedies and the Union is entitled to summary judgment on his Title VII claim.
Regarding the Title VII claim against Auto Rail, plaintiff first claims Auto Rail harassed him due to his race. Title VII is violated when racially motivated harassment is "sufficiently severe or pervasive to alter conditions of the victim's employment and create an abusive working environment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal brackets and quotation marks omitted). Further the work environment must be perceived as abusive to an objective, reasonable person and the subjective plaintiff. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). In making this determination, we must consider the totality of the circumstances, including "the frequency of 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 performance." Id. at 23.
Plaintiff presents no evidence that Auto Rail's alleged harassment was provoked by race. While it is not required that harassing treatment be specifically racial, there must be some proof that "it would not have occurred but for the fact that the plaintiff was African-American." Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999). Plaintiff testified as to each incident and was unable to identify any racial motivation other than Franken's isolated comment regarding race dilution. Although general derogatory comments are sufficient to establish a hostile work environment, one comment over the course of plaintiff's employment fails to "create an inference that racial animus motivated other conduct as well." Id. (quoting Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999)). We therefore find no genuine issue of material fact regarding plaintiff's claim of racial harassment under Title VII.
Second, plaintiff claims he was discharged from employment due to his race. In order to show discriminatory discharge, plaintiff must first establish a prima facie case by showing that 1) he is a member of a protected class; 2) he was qualified for his position; 3) he suffered an adverse employment action; and 4) he was replaced by a person outside the class or a comparable, non-protected person received better treatment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1972); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
Alternatively, plaintiff may establish a prima facie case by showing discriminatory intent. However, as plaintiff has produced no credible, direct evidence of this, we will proceed under McDonnell Douglas. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 n. 4 (6th Cir. 1991).
We find plaintiff has failed to establish the fourth element of a prima facie case. Plaintiff argues that several non-protected employees had their assault discharges rescinded by the arbitration board and therefore received better treatment. Initially, it is not clear these employees are similarly situated to plaintiff. "[T]o be `similarly-situated', the individuals with whom the plaintiff seeks to compare his/her treatment must . . . have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Id. at 583 (citations omitted). Plaintiff's conduct was arguably more severe as he assaulted a supervisor while the "comparable" employees assaulted co-workers. (Auto Rail Resp. Summ. J. 21 n. 5; Sadler Aff. ¶¶ 14, 15).
Further, even if these employees are considered comparable to plaintiff, he fails to show Auto Rail treated them favorably. In all but one of their cases, the discharges were upheld at the local level hearing. (Sadler Aff. ¶¶ 14-17). Upon appeal to an arbitration panel, Auto Rail argued in each case that discharge was proper. Id. As Auto Rail has taken a consistent position in all assault discharge cases, plaintiff cannot show they treated comparable, non-protected employees better than he. Various neutral arbitration panels decided to rescind the non-protected employees' discharges and uphold plaintiff's. Id. Auto Rail cannot be held liable for the arbitration panels' decisions. We therefore find Auto Rail is entitled to summary judgment on plaintiff's claim of discriminatory discharge under Title VII.
In one of the cases plaintiff cites, the discharge was not upheld at the local level hearing because the employees involved agreed there was no assault. (Sadler Aff. ¶ 13). We find this case is not comparable because an assault is actually claimed here.
Third, plaintiff claims his discharge was in retaliation for filing the November 7, 1997 Charge of Discrimination with the EEOC. Auto Rail argues this claim is not properly before the court because plaintiff has not amended his complaint to include it. Although plaintiff never formally amended his complaint to include a retaliation claim, his original complaint states his intent to do so upon receiving a right to sue letter for his EEOC retaliation charge filed October 5, 1998. (Pltf. Compl. at 2). As plaintiff is proceeding pro se, we must liberally construe his pleadings and find that his complaint effectively raises a retaliation claim. Failure to obtain a right to sue letter prior to filing suit is not a jurisdictional defect but a condition precedent that was cured when the letter was issued on May 26, 2000. See Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 309-10 (6th Cir. 2000). Further, Auto Rail has addressed the merits of this claim in its motion and thus will not be prejudiced by our consideration of it. To prove a prima facie retaliation claim, plaintiff must establish that 1) he engaged in a protected activity; 2) Auto Rail knew of this activity; 3) Auto Rail took an employment action adverse to plaintiff; and 4) there was a causal connection between the protected activity and the employment action. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000). Plaintiff has failed to show a causal connection between his November, 1997 EEOC charge and his July, 1998 termination. Most of the alleged harassment cited in plaintiff's complaint occurred before he filed the charge. (Pltf. Compl.at 1-2) Further, he testified that no other harassment occurred between his charge and termination. (Pltf. Dep.at 280-85). Therefore the only evidence that connects the two is temporal proximity. It is well settled that causal connection for a retaliation claim cannot be established solely by temporal proximity. See, e.g., Ngyuen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000); Cooper v. City of North Olmsted, 795 F.2d 1265 (6th Cir. 1986). We therefore find there is no genuine issue of material fact regarding plaintiff's claim of retaliatory discharge under Title VII.
The only instance that occurred after the charge was filed was on November 26, 1997 when plaintiff submitted a request for time off and did not receive a response.
The elements for a prima facie case under § 1981 are the same as those for a Title VII discrimination claim. See Betkurer v. Aultman Hosp. Assn., 78 F.3d 1079, 1094 (6th Cir. 1996). As discussed above, plaintiff has failed to establish a prima facie case against Auto Rail because he has not shown it treated comparable, non-protected employees better than he. He has also failed to produce such evidence against the Union. Plaintiff has no evidence that the Union handled his discharge before the arbitration panel differently than discharges of comparable, non-protected employees. He merely states that "[a]ll of [the non-protected employees] have . . . been reinstated with full seniority . . . ." (Pltf. Dep. Vol. II at 22). The Union was no more responsible for the arbitration panels' decisions than Auto Rail. (Thompson Aff. ¶ 6). Further, he alleges no other instances in which the Union subjected him to disparate treatment. Defendants are therefore entitled to summary judgment on plaintiff's § 1981 claim.
42 U.S.C. § 1985Plaintiff claims defendants conspired to discriminate against him due to his race. To prove conspiracy under § 1985(3) plaintiff must show 1) a conspiracy involving two or more persons; 2) for the purpose of depriving, directly or indirectly, a person or class of persons the equal protection of the laws; and 3) an act in furtherance of that conspiracy; 4) that causes injury or deprivation of a right or privilege of a United States citizen. See Collyer v. Darling, 98 F.3d 211, 233 (6th Cir. 1996) (citations omitted). Plaintiff must also show the conspiracy was racially motivated. Id. There is no evidence that defendants conspired to deprive plaintiff of his rights. Plaintiff merely speculates that a conspiracy existed because other employees discharged for assault were reinstated while he was not. (Pltf. Dep. Vol. II at 102). Defendants are therefore entitled to summary judgment.
42 U.S.C. § 1986Plaintiff alleges the Union violated § 1986 "because the union did nothing to help [him]." (Pltf. Compl. at 4). A claim under § 1986 exists when the defendant knows of and fails to prevent a § 1985 violation. See 42 U.S.C. § 1986. A § 1985 violation is thus a prerequisite for a § 1986 claim. See, e.g., Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994); Abercrombie v. Cantoosa, 896 F.2d 1228 (10th Cir. 1990); Loy v. Clemme, 804 F.2d 405 (7th Cir. 1986). As discussed above, plaintiff does not have a valid § 1985 claim. Defendants are therefore entitled to summary judgment on his § 1986 claim.
National Labor Relations Act
Finally, plaintiff claims a National Labor Relations Act violation. Pursuant to the Act, such claims must first be filed with the National Labor Relations Board ("NLRB"). See 29 U.S.C. § 160. The Regional Director or General Counsel then decides whether to issue a complaint. Id. Plaintiff filed claims against defendants with the NLRB. (Pltf. Dep. Exhs. 9, 12). The Regional Director declined to issue a complaint on both claims. (Pltf. Dep. at 294-95, Exh. 10). These decisions were upheld on appeal to the General Counsel. (Pltf. Dep.at 295-96, Exh. 11). "[D]istrict courts may not review the refusal of the Board's General Counsel to investigate or file a complaint concerning unfair labor practice charges." Tensing v. N.L.R.B., 519 F.2d 365 (6th Cir. 1975) (citing Mayer v. Ordman, 391 F.2d 889 (6th Cir. 1968), cert. denied, 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261 (1968)). Plaintiff's claim is therefore improper and defendants are entitled to summary judgment.
CONCLUSION
For the reasons stated above, we find defendants are entitled to summary judgment on all claims. Defendants' motions will therefore be granted by separate order entered this date.
ORDER
Motions having been made by the defendants for summary judgment, and for the reasons set forth in the memorandum opinion entered herein this date, and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the defendants' motions are GRANTED and the plaintiff's claims will be DISMISSED. The Motion to Strike made by defendant Auto Rail Services of LAP, Inc. is DENIED as moot. The court having dismissed all claims in this case , this is a final and appealable order.
IT IS SO ORDERED.