The opinion of the court was delivered by: District Judge Susan J. Dlott
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's Motion for Summary Judgment. (Doc. #39.) Defendant Penske Logistics ("Penske") contends that there are no material facts in dispute and that it is entitled to judgment as a matter of law on Plaintiff's employment discrimination claims. For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART Penske's motion.
Plaintiff Al-Mahdi Mohammed is an African-American male and former employee of Penske. (Am. Cmplt. ¶ 5; Ans. ¶ 5.) Prior to his employment with Penske, Mohammed had worked as an over-the-road truck driver for a logistics company called Transpersonnel from 1989 to 1999. (Mohammed Dep. at 32-33.) Transpersonnel had a shipping contract with GE Aircraft Engines ("GE") during the time of Mohammed's employment. (Id. at 33.) In January 2000, Transpersonnel lost the GE contract to Penske. (Id.) Penske offered positions to all former Transpersonnel drivers when it took over the contract, but Mohammed declined to accept employment at that time. (Id. at 33-34.)
Mohammed asserts that he first applied for employment with Penske in April 2000, and then filed an updated application on February 9, 2001. (Id. 37-38, 41.) Penske's records do not contain an application prior to the one completed on February 9, 2001. (Peters Aff. ¶ 8.) On February 16, 2001, Mohammed filed a charge of racial discrimination jointly with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission (jointly referred to herein as the "OCRC charge"). (Am. Cmplt. ¶ 7; Ans. ¶ 7.) The parties negotiated a settlement of the charge through the OCRC. (Mohammed Dep. at 83.) A brief discussion of the organization of Penske is necessary to understand the terms of the settlement. Penske employs both local drivers represented by Teamsters Local Union No. 100 and over-the-road, or longer-haul, drivers represented by Teamsters' Local Union No. 114. (Peters Aff. ¶ 4-5.) The drivers on the Local or City Board, and the Road Board, as the two groups of drivers are respectively known, have separate collective bargaining agreements ("CBAs"), pay, and seniority rights. (Id. ¶ 4.)
As part of the settlement, Penske hired Mohammed onto the Local Board with the understanding that he would be placed on the Road Board when a position came open. (Id. ¶ 10; Mohammed Dep. at 78-79.) It is undisputed that Mohammed, pursuant to the settlement, signed a standard OCRC form called a "Request for Withdrawal of Charge of Discrimination" ("the first withdrawal") on June 5, 2001. (Kautzmann Aff. ex. A; Mohammed Dep. at 83-84.) The undisputed first withdrawal is the only Request for Withdrawal found in the official OCRC file. (Kautzmann Aff. ¶ 3.) It contains no facts specific to Mohammed's dispute, but merely states that Mohammed "request[s] the withdrawal of [the] charges because the issues of my charge have been resolved." (Id. ex. A.)
Other crucial facts regarding settlement of the OCRC charge are disputed. Mohammed testified at his deposition that, during the negotiations leading to the settlement, he requested that Penske give him full seniority rights as if he had been hired in April 2000, the date he contends he first applied for employment. (Id. at 78-80, 84.) He admitted that the OCRC representative told him that the OCRC did not have the authority to impose that requirement on Penske and that he would have to file a court case to have the seniority provision imposed on Penske. (Id. at 82.) Mohammed also testified that it was discussed that the union would have to be involved in any issues regarding seniority. (Id. at 82, 176.) Pursuant to the CBAs, Penske determined seniority based on the date an employee was hired into a position within the union. (Peters Aff. ¶ 10, 12.) However, Mohammed also testified at his deposition that he and Penske had agreed that he would join "the local board with the intention of going to the road board with my seniority." (Mohammed Dep. at 174.) Mohammed clarified again in later testimony that he intended seniority to mean the April 2000 date. (Id. at 222-23.)
In a subsequent affidavit, Mohammed again asserted that obtaining seniority based on the April 2000 application date was a prerequisite to his agreeing to settle and withdraw the OCRC charge. (Mohammed 2/10/06 Aff. ¶ 7.) Mohammed asserted that he signed the undisputed withdrawal on June 5, 2001 without realizing that it did not contain the seniority provision. (Mohammed 3/3/06 Aff. ¶ 4.) He stated that he requested the OCRC investigator to revise the withdrawal form and he presents into evidence a second Request for Withdrawal of Charge of Discrimination ("the second withdrawal") similar to the undisputed withdrawal, but with the addition of a seniority provision. (Mohammed 3/03/06 Aff. ¶ 4 & ex. 1.) The signed second withdrawal states that "Penske Logistics and I have agreed that once they place me on the Road- Board in which the position I first applied and with my proper seniority, I will withdrawal [sic] my charge." (Mohammed 3/3/06 Aff. ex. 1.)
Mohammed began work at Penske in late May 2001 on the Local Board with seniority rights effective for that union as of May 29, 2001. (Mohammed Dep. at 85, 87 & ex. 4.) Penske transferred Mohammed to the Road Board in June 2001 and assigned him seniority based on the transfer date. (Peters Aff. ¶ 12; Mohammed Dep. 175-76.) Mohammed testified that a Caucasian driver, Allen Hicks, was hired onto the Road Board in a manner that unfairly gave him greater seniority than Mohammed. (Mohammed Dep. at 216, 219 & ex. 7.)
In February 2002, Penske laid off Mohammed and Hicks, along with other drivers, due to a lack of work. (Id. at 213-14, 219; Peters Aff. ¶ 4.) Both drivers later were offered the opportunity to transfer employment to the Local Board; Mohammed returned to work on the Local Board in or around September 2002 following a medical surgery. (Mohammed Dep. at 213-220; Peters Aff. ¶ 15.) Before his return to work, Mohammed filed a second charge of discrimination with the OCRC on March 19, 2002 ("the second OCRC charge") alleging that he was discharged based on his race and religion and in retaliation for filing the first OCRC charge. (Id. at 215 & ex. 7.) He filed a third OCRC charge on May 6, 2002 alleging that he was denied recall to the Road Board in April 2002 based on his race and religion and in retaliation for filing the previous charges. (Id. ex. 9.) He testified in his deposition that a driver named Dave Smith was recalled despite the fact that Mohammed should have had greater seniority based on the purported April 2000 job application. (Id. at 230-31.) Penske admits that one Caucasian employee was recalled, but states that he had greater seniority rights than Mohammed. (Ans. ¶ 10; Peters Aff. ¶ 14.)
Subsequently, Mohammed was disciplined in January 2004 and terminated in February 2004 for his failure to follow protocol in regard to the delivery of two jet engines to a GE facility. (Peters Aff. ¶ 17-19.) An investigation of the incident determined that the engines had not been damaged during the delivery, but Penske concluded that Mohammed could have "likely caused serious property damage." (Id. ¶ 19 & ex. 5.) Mohammed denied that he acted in an improper manner and grieved his termination. (Mohammed Dep. at 236-253, 260; Peters Aff. ¶ 20.) The grievance procedure resulted in Penske returning Mohammed to work on the Local Board with back pay. (Mohammed Dep. at 262-63 & ex. 14; Peters Aff. ¶ 20-21 & ex. 6.) Mohammed and Penske signed a written settlement agreement specifying his back pay award and stating that "Al-Mahdi Mohammed agrees that this will release the company from any further claim with regard to his discharge on 2/12/04." (Mohammed Dep. at 266-67 & ex. 14; Peters Aff. ¶ 20-21 & ex. 6.)
Upon his return to work, Penkse informed Mohammed that he would not be permitted to make any deliveries on the GE contract without re-training on proper procedures for securing jet engines. (Peters Aff. ¶ 21.) Mohammed objected to the training on the grounds that re-training was not part of the grievance settlement agreement. (Mohammed Dep. at 262-63, 267-68.) Mohammed asserts that he nevertheless requested to take the re-training, but that he was not told when it would be offered and was not permitted to take it. (Id. at 267; Mohammed 2/10/06 Aff. ¶ 11.)
Mohammed also alleges that after he returned to work that he was limited to eight-hour shifts, denied overtime, and prohibited from bidding on certain work. (Mohammed Dep. at 263; Mohammed 2/10/06 Aff. ¶ 11.) He asserts that the net result of Penske's actions was to reduce his pay by 20% as compared to before the GE Aircraft Engines incident. (Mohammed 2/10/06 Aff. ¶ 12.) Penske, for its part, points to the fact that Mohammed had a significant number of absences from work following his return from suspension on March 8, 2004. (Peters Aff. ¶ 21.) Penske's records indicate that Mohammed worked only eight days between March 8, 2004 and April 12, 2004, the date he began taking Family and Medical Leave Act leave following a hernia surgery. (Peters Aff. ¶ 21-22.) Additionally, Mohammed had accepted employment with another shipping company after the GE incident suspension and he maintained that employment at least part-time following his reinstatement at Penske. (Mohammed Dep. at 281-83.) Penske learned that Mohammed was working for the other company during his period of FMLA leave. (Peters Aff. ¶ 23.) There is some factual dispute in the record whether, upon learning about Mohammed's other employment, Penske suspended Mohammed, terminated Mohammed, or only intended to take action against Mohammed. (Mohammed Dep. at 297, 299-300; Peters Aff. ¶ 24.) Regardless, Mohammed resigned from Penske on or about June 9, 2004. (Mohammed Dep. at 297-98; Mohammed 2/10/06 Aff. ex. C.)
Mohammed filed a Complaint (doc. #1) against Penske in November 2002 after he was not recalled to the Road Board, and he filed an Amended Complaint (doc. #19) in August 2004 after he resigned from Penske. In the Amended Complaint, he alleges racial discrimination and retaliation in violation of Title VII. Penske filed an Answer (doc. #20) denying the discrimination and retaliation allegations and now has moved for summary judgment. After Mohammed's resignation and during discovery in this case, Penske uncovered evidence that Mohammed had a criminal record when he ...