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Crawley v. State

November 6, 2006

MARIE CRAWLEY, PLAINTIFF,
v.
STATE OF OHIO, DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Judge Smith

Magistrate Judge Kemp

OPINION AND ORDER

Plaintiff, Marie Crawley, asserts claims of discrimination, hostile work environment, and retaliation under the Civil Rights Act of 1964. This matter is before the Court on Defendant State of Ohio, Department of Transportation's Motion for Summary Judgment (Doc 21). Based on the following, Defendant's Motion for Summary Judgment is GRANTED.

I. FACTS

Plaintiff, Marie Crawley, is an African-American female who currently resides in Steubenville, Ohio. The Ohio Department of Transportation ("ODOT") is the sole defendant. ODOT is an agency of the State of Ohio established by, and whose duties are described by, inter alia, O.R.C. Chapter 5501.

Plaintiff was hired by Defendant State of Ohio, Department of Transportation ("ODOT") on April 1, 1985, as a Highway Maintenance Worker 1 ("HW1"). HW1's were basically laborers for ODOT, but they occasionally functioned as relief drivers for heavy equipment, such as snow plows and dump trucks. The operation of heavy equipment is a higher-ranked, more important duty of Highway Maintenance Worker 2 ("HW2") although that classification also can function as laborers. Ms. Crawley, during fair weather, would provide traffic control as a flagger for road projects. If no construction was happening, Ms. Crawley would patrol the roads in a pick-up truck removing litter, picking up parts, or performing other menial tasks. During the "snow and ice" season, at the time when the Jefferson County Garage maintained around-the-clock two-way radio coverage, Ms. Crawley operated the radio from 11:00 p.m. to 7:00 a.m. Unless snow removal crews were actually on the road, this job involved very minimal responsibilities and the operator would sit around, watch television, empty the trash and tidy up.

Throughout her 17-year career, Ms. Crawley was assigned to the Wintersville Garage in Jefferson County, Ohio as a HW1. Jefferson County is in ODOT District 11, which consists of Tuscarawas, Jefferson, Columbiana, Belmont, Harrison, Carroll and Holmes Counties. District 11 is headquartered in New Philadelphia, Ohio.

There were about 30 ODOT employees in Jefferson County at any one time. During the time Ms. Crawley worked at the Wintersville Garage, other African-American employees included Greg McGowan, Rod Collins, Ernie Fleshman and Robert Safford. McGowan and Collins were HW2's, Fleshman was a Project Inspector who worked in the Wintersville Garage during snow and ice season, and Safford was a custodial worker at the Wintersville Garage. In 1996, McGowan became Chief Steward and President of the Jefferson County Chapter of the Ohio Civil Services Employees Association, Local 11, AFSCME, AFL-CIO. Collins left in 1996, Fleshman started reporting to the Wintersville Garage in 1999, and Safford retired in 2000 at the age of 70.

In 1985, when Ms. Crawley began with ODOT, the Jefferson County Superintendent was Tony Silvini and the Assistant Superintendent was Lou Phillippi. For a brief period in 1993, Silvini was replaced by Ron Bovetsky on an acting basis. Silvini was permanently replaced by Billy Hupp. Rick Newbold became Superintendent in 1994. In 1997, ODOT reorganized and County Superintendents were replaced by County Managers, whose duties became enlarged. Don Bennett became County Manager in 1997. His assistants were Rick Newbold and Terry Hartman. In 2000, Bennett retired. Hartman transferred to a position in the District 11 office, and Newbold became Jefferson County Manager. His assistant became Harry Scott. In 2001, Newbold got two new assistants, John Petrisko and Lois Wright.

Ed Flynn has been ODOT's Assistant Administrator for Labor Relations since 1994, a position housed in ODOT's Central Office in Columbus that reports to Labor Relations Administrator Jim Miller. Mr. Flynn is responsible for attending pre-arbitration labor grievance mediations on behalf of ODOT. Since 1985, Pete Applegarth has been District 11's Labor Relations Officer, reporting to the District 11 Deputy Director. Mr. Applegarth provides advice to District 11 managers on labor contract administration and handles all discipline administered to bargaining unit members in the district.

In 1985, when Ms. Crawley began her employment with ODOT, she claims she was denied heavy equipment training. Ms. Crawley stated that George Eny offered and began to informally teach her to drive the dump truck. Ms. Crawley actually used his training to pick up loads of grit and dump it. Ms. Crawley testified that Mr. Eny told her that one employee, a crew leader, called Mr. Eny a "nigger lover" for training Ms. Crawley. Soon after, Tony Silvini, Ms. Crawley's supervisor, brought her into his office and told her that the guys did not want her driving a truck. (Crawley Depo. at 75). Mr. Silvini said since the guys don't want you out there driving a truck, it would be best for you to not even go in there to do that. Id. Ms. Crawley testified that Silvini was not a racist and was nice to her. Id. 81-82. Ms. Crawley also testified that she did not think that the denial of training was racially motivated. Rather, she felt the guys did not want her to learn to drive heavy equipment because "[f]or some reason, they thought I was coming to take someone's job. They said she's just here to take somebody's job." Id.

Ms. Crawley maintains that this denial of training effectively denied her of any opportunity to be promoted to HW2. (Pl's Memo. in Opp. at 5). Defendant ODOT maintains that the career path from HW1 to HW2 was to apply for a vacant HW2 position, then, if the employee met the minimum qualifications, he or she would be selected on the basis of seniority. (Def.'s Mot for Summ. J. at 5-6). Proficiency in the operation of heavy equipment was not treated as a minimum qualification for HW2, and a HW2 could receive heavy equipment training after being promoted. Id. ODOT maintains that Ms. Crawley never applied for HW2. Id. citing McGowen Depo.. at 15-16.

During the late 1980s, Ms. Crawley testified that one crew leader would drive around in the middle of winter with the windows down and smoke one cigarette after another so that she would freeze. (Crawley Depo. at 83). Crawley testified that she sometimes complained to Lou Phillippi, the superintendent, who told her he would talk to this guy. Crawley said that after she complained, it would sometimes change for a little while, but then it would go back to the same thing. One day (also in the late 1980's), when Ms. Crawley was serving as a traffic control person, this same guy took her out 10-20 miles from the garage, and 2 miles from the nearest ODOT crew. Id. at 84. At the end of Ms. Crawley's shift, the crew leader did not pick Ms. Crawley up. Ms. Crawley walked 5 miles until she ran into Lou Phillipi, the superintendent. Mr. Phillippi saw her and wanted to know what she was doing out there. When Ms. Crawley explained what had happened to the superintendent, he was very upset. Ms. Crawley testified that when the crew leader was confronted by the superintendent about the incident, he just hunched his shoulders and said he thought somebody would pick her up. Following this incident, Ms. Crawley was taken off of that crew leader and put with someone else. The total amount of time Ms. Crawley worked with this guy was a couple of months. When Ms. Crawley was asked whether or not she thought these acts were racially motivated, she testified, "it could not have been, but I believe it was." Id. at 197. Ms. Crawley thinks the crew leader's actions were racially motivated because of some things that were said at the time, but she no longer remembers what was said. Id. at 197-98.

In 1988 or 1989, Ms. Crawley testified that John Otto, a Bridge Worker, was in the lunchroom with her and was talking to her about how white her socks were and said "[b]lack people can make socks white, but I -- every time when we buy them, that's the last time they're white." (Crawley Depo.. at 90). He proceeded to show her his dingy socks. Id. She told him to try Clorox and then the conversation moved on to other things and all of the sudden he says, "you're nothing but a black nigger anyhow." Id. Ms. Crawley testified she went to Tony Silvini, the superintendent at the time, and told him what happened. Id. Mr. Silvini immediately brought Mr. Otto into his office and told him "we were not going to tolerate it, we're not going to have this here." Id. Mr. Silvini had John Otto apologize to Crawley. Id. at 91. Ms. Crawley further testified that after they got out the door, Mr. Otto rescinded the apology. Id. Ms. Crawley did not report that Mr. Otto rescinded his apology. Id. Ms. Crawley described Mr. Otto as a bridgeworker who mostly worked "in his own orbit," but occasionally worked with Ms. Crawley whenever he didn't have another job to do. Ms. Crawley testified she got along okay with him before and after the encounter and that she "considered the source" because "he didn't care what he said to people and he was an alcoholic . . . ." Id. at 92. Ms. Crawley testified that Mr. Otto used the term "nigger" in her presence after this incident, but that she tried not to pay attention. Id. Ms. Crawley explained that she did not report Mr. Otto's continued use of this word in her presence to Mr. Silvini or anyone else in management because Mr. Otto was a problem person and had many problems with many people and she did not feel anything would be done if she reported it. Id. at 93. Ms. Crawley testified Mr. Otto left ODOT in 1999 or 2000. Id. at 105.

One day during the summer of 1992, Ms. Crawley met Mike Sciarra, a HW2. Ms. Crawley testified that Mr. Sciarra was a person that almost no one liked and consequently, ODOT placed him in the Georgesrun outpost where he worked by himself. Crawley Depo. at 94. Ms. Crawley's crew was doing work in that area, so they went in for lunch and Sciarra was there. Id. at94. Dennis Moore, a white man, was with her. Id. Crawley was told Mr. Sciarra works at the Georgesrun outpost by himself because he cannot work with anyone else and nobody wants to work with him. Id. Crawley offered to work with him. Id. at 95. When Ms. Crawley told Mr. Sciarra that she would work with him, he said "no, you won't." Id. When Ms. Crawley asked why, Mr. Sciarra told her "because I'm a bigot." Id. Ms. Crawley says she is really good friends with Dennis Moore and that Dennis Moore got mad at Mr. Sciarra telling Ms. Crawley he was a bigot and wanted to fight Mr. Sciarra. Id. Ms. Crawley convinced Dennis Moore to leave. Id. Ms. Crawley reported this incident to Mr. Silvini. Id. Mr. Silvini called Mr. Sciarra in and talked to him. Id. at 97. After Mr. Silvini's meeting with Mr. Sciarra, Mr. Sciarra never again told Ms. Crawley he was a bigot, nor did he ever make racially derogatory comments to her. Id. Dennis Moore told Ms. Crawley that Mr. Sciarra told him he didn't like black people and was a bigot because his dad was a bigot. Id. Ms. Crawley said that she just did not care and thought he had a problem. Id. at99.

One night in the winter of 1993, when Ms. Crawley was working as radio dispatcher, Mr. Sciarra called to report a problem. Id. at 100. Ms. Crawley admits that the proper procedure was to recognize the truck number, say it and tell the driver to go ahead with their response. Id. Ms. Crawley explained that this way it is clear who she is talking to because she has an open channel with a bunch of people on it. Id. Ms. Crawleyadmits that this particular time she failed to follow the proper procedure and instead just told Mr. Sciarra to go ahead with his message. Id. at 101. When Mr. Sciarra called in, Mr. Sciarra told her to either "do her God damn job or go the hell home." Id.

Ms. Crawley reported this incidence by filing a grievance. See Id., Ex. 17. Ms. Crawley met with Ron Bovetsky, the temporary superintendent, and the union rep about this grievance. Id. at103.

Mr. Bovetsky said there was nothing he could do about it and that it wasn't in violation of FCC rules where this was not considered a curse word. Id. Ms. Crawley told the union rep that she wanted an apology or for Mr. Sciarra to get time off. Id. at 103. The union rep and Mr. Bovetsky called Mr. Sciarra into their office and talked to him. Id. The union rep reported that Mr. Sciarra said he would rather loose his job than apologize. Id. at 104. Soon after that, Ms. Crawley spoke with a union investigator and Mr. Bovetsky and suggested that they needed to move him out of this county because she felt other things would happen if he stayed. Id. at 105. Consequently, Mr. Sciarra was moved to Cadiz. Id. at 105. Ms. Crawley had no other unpleasant dealings with Sciarra. Id. at 106.

In 1998 or 1999, Ms. Crawley testified that Terry Sines, crew leader, asked Ms. Crawley what part of Africa she came from. (Crawley Depo. at 113). Ms. Crawley further testified that Mr. Sines told her she looked as if she came from some African tribe. Id. Ms. Crawley says she might have reported this, but cannot remember to who or what she said. Id. at 116. Ms. Crawley also alleges that on one occasion in 2000, Mr. Sines wanted her to walk on the highway with all of her equipment instead of driving the pick-up to try out an invention of his. Id. at 119. Ms. Crawley testified the invention was a type of cart with a place for your water and lunch and signs. Id. The cart was designed by Mr. Sines for traffic control people and other highway jobs so that they would not use the pickup trucks to do the jobs. Id. Though Crawley testified that she did not have a problem with the cart if it was a job that did not require a lot of walking (like most of the jobs she had), sherefused to use Mr. Sines cart-invention stating that she did not want to walk 4-5 miles in the sun and it was unsafe. Id. Mr. Sines reported her refusal and asked for her to be moved off her crew and she was. Id. A white woman replaced Crawley and she too was asked to and did pull Mr. Sines' cart-invention. Id. at 121. The white woman did not like pulling the cart either and went back to being a truck driver. Id. at 122. After the white woman quit, the other guys in the garage took and hid Mr. Sines cart-invention because they thought it was nasty too. Id. Even though it was a white woman who ultimately tested Mr. Sines' cart-invention, Ms. Crawley testified she thought Mr. Sines wanted her to test the cart out because of her race. Id. Ms. Crawley testified that she bases this opinion on the fact that Mr. Sines would single her out to do stuff on his jobs. Id. Ms. Crawley was unable to think of any examples where Mr. Sines singled her out. Id. at 123.

In February of 1999, during the night shift, mechanic Brent Rose hung a noose from the rafters of the mechanic's bay in the Wintersville Garage. The noose was evidently tied by either Mr. Rose or John Petrisko. Allen Whanger was a non-participating observer. When supervision arrived, he made Mr. Rose take it down. (Crawley Depo. at 135-136).

One of Ms. Crawley's co-workers came in and told her about the noose after it was taken down. Id. at 128. Ms. Crawley provided a statement about it to management. Id. at 130. A co-worker named Allen Whanger told Ms. Crawley it was done on the anniversary of the signing of the emancipation proclamation.*fn1 Id. at 133. Whanger also told her it was done as a joke. Id. at 134. Other co-workers of Ms. Crawley, including Pam Vanezalous, Evelyn Parise and Mark Sprouse, a mechanic, filed a complaint. Id. at 134. They all gave her copies of their reports. Id. at 135. Ms. Crawley says all management did about it was to say it was done as a joke and that they didn't think the perpetrators meant anything by it. Id. at 135.

Ms. Crawley testified she felt threatened and that the noose hanging was a racial slur because of the fact of it being done on the anniversary of the Emancipation Proclamation. Id. at 136 and 142. Ms. Crawley also thought it was racially motivated because Brent Rose "had always made it clear he did not like black people." Id. at 137. Ms. Crawley could not recall anything specific that Mr. Rose had ever said that was racist. Id. Ms. Crawley says that Mr. Stafford told her that Brent Rose told Mr. Stafford that the noose was meant for him. Id. at 139.

Between February 18th and 25th, Mr. Bennett collected statements from Crawley, Petrisko, Rose, Safford, Sutherin and Whanger. Rose, Petrisko, Sutherin and Whanger denied that the noose was intended to convey racial hatred or threats of violence and instead claimed it was an "anti-management" joke. Mr. Whanger said the Emancipation Proclamation had come up because Ms. Parise had commented that February 18 was the "day of freedom for the slaves." Mr. Bennett and Mr. Hartman testified that Mr. Safford, when interviewed by them, appeared nervous, but specifically denied that he felt the noose was directed towards him or African-Americans, that he felt threatened, or that he had been the object of racial remarks. (Hartman Depo. at 29-33; Bennet Depo. Ex. 2). On or about February 26, 1999, statements materialized from Mses. Vanezalos, Parise and mechanic Mark Sprouse. Mses. Vanezalos and Sprouse opined that Mr. Safford seemed upset about the noose, even though he wouldn't admit it, and reported that the noose may have been directed towards the "round table," a group of employees who ate lunch together. Mr. Parise claimed the noose upset her, and alleged that Mr. Rose had piled the contents of Mr. Safford's desk atop it, turned down the heat in the lunch room where Mr. Safford's desk was situated and replaced Mr. Safford's more comfortable chair with a hard oak one. These statements were given to or solicited by Mr. McGowan. (McGowan Depo. at 95-96). These statements, however, were not provided to Mr. Applegarth, Mr. Bennett or Mr. Newbold, nor did their authors tell the managers anything of the kind. (Applegarth Depo. at 29-30; Bennett Depo. at 95-97; Newbold Depo. at 44-45).

Mr. Applegarth came to Jefferson County from District 11 headquarters and interviewed Mr. Rose and Mr. Whanger on March 4, 1999. These statements added no new information, except that Mr. Whanger indicated that Ms. Vanezalos, Ms. Parise and Mr. Sprouse thought that the noose was directed towards them as members of the so-called "round table." (Applegarth Depo. at 37-40, 86-89, 91-94; Applegarth Depo.. Exs. 6 and 7).

Mr. Bennett concluded that the noose had not been intended to convey a message of racial hatred. (Bennett Depo. at 89-90). Mr. McGowan claims that Mr. Rose, Mr. Petrisko and Mr. Whanger were "relieved" that they would not be disciplined for the noose--that they "didn't have to worry about anything." (McGowan Depo. at 102-103, 142-143).

Mr. Rose was not suspended, but instead was reprimanded at least twice, and admitted that the incident was a "stupid mistake" and "wrong." (Applegarth Depo. at 32-33; Hartman Depo. at 20-22, 25, 27-28). In addition, at a meeting attended by virtually all employees of the Wintersville Garage, Mr. Bennett announced that such incidents would not be tolerated in the future. (Bennett Depo.. at 106-07). After the noose incident, Mr. Rose exhibited no more additional behavior in Jefferson County, except for the allegation that he did not properly maintain the truck used by Ms. Crawley. (McGowan Depo. at 104-06).

In 1999 or 2000, Mr. Rose was assigned to maintain the pick-up truck that Ms. Crawley operated to perform her work duties. (Crawley Depo. at 157). During this time, Ms. Crawley alleges that there were incidents of defective workmanship including twice the radio fuse was missing and the radio would not play and she also experienced problems with the clutch, fuel gauge and brakes. Id. at 159. Ms. Crawley asked for a different mechanic, but Mr. Newbold and Mr. Bennett told her that Rose was going to stay her mechanic. Id. at 162-63. None of the involved managers recall Ms. Crawley's having expressed any dissatisfaction with Mr. Rose's work as a mechanic. (Bennett Depo. at 111-13; Newbold Depo. at 55-56; Hartman Depo. at 36-37). Although each mechanic was assigned heavy equipment to maintain, there was no such assignment for light trucks -- a lower maintenance priority because they were interchangeable and easily replaced. Mr. Bennett testified that Ms. Crawley was assigned no particular pick-up truck and drove several of them. (Bennett Depo. at 111-12). Mr. McGowan does not know whether there was any "assignment" of pick-up trucks to drivers, but believes that Ms. Crawley used one truck in particular for flagging duties because the equipment was stored in it, and he observed Ms. Crawley cleaning and fueling the vehicle. (McGowan Depo. at 104-106). In 2000, Mr. Rose left the Wintersville Garage, and soon afterward, Ms. Crawley was given a newer pick-up truck to drive. (Crawley Depo. at 164-65).

When Mr. Rose was transferred to a HW2 position in Columbiana County, he was given a promotion which he was entitled to under the collective bargaining agreement because of his seniority. (Crawley Depo. at 139-140; Applegarth Depo. at 47-48; Newbold Depo. at 36; Hartman Depo. at 36; McGowan Depo. at 147-48, 173). Mr. McGowan was later told that Herman Moxley, a black mechanic in the Columbiana County garage, had found a noose near to his work area, and suspected that Mr. Rose was the culprit. (McGowan Deop at 149-51, 174-75). Mr. Applegarth investigated the matter briefly, then passed it to Bette Mendenhall, an investigator from ODOT's Central Office in Columbus who completed the investigation. (Applegarth Depo. at 48-54). The investigator could not determine who was responsible, and contrary to Mr. McGowan's testimony, Mr. Moxley's written statement provided to the investigator did not indicate he believed Mr. Rose, or any other specific person, to have been involved or to have had a motive. (Applegarth Depo., Ex. 2).

In 1998 or 1999, Ms. Crawley testified that Terry Hartman indicated to her that he wanted to eliminate the radio operators because he wanted the office space for his own office. (Crawley Depo. at 124). Ms. Crawley told Mr. Hartman that he was going to have to wait until she got out of there for it to be his office. Id. at 124. Mr. Hartman responded to her that there would be a lot of changes and that if it got too hot in the kitchen, whoever was in there had to get out of the kitchen. Id. at 125. Ms. Crawley believes Mr. Hartman's statements were racially motivated because she was the only one who used that office space. Mr. Hartman did not get the office and the radio operating equipment remained there. Id. at 127.

In the summer of 1999, Ms. Crawley was sent out on a job with John Dunkle, a crew leader. (Crawley Depo. at 143). College workers were also sent out ono this particular job. Id. When Ms. Crawley arrived at the job, Mr. Dunkle took the college students out and put them on jobs. Id. Ms. Crawley says there was no job left for her to do. Id. Ms. Crawley testifies that when she asked Mr. Dunkle what to do, he told her he did not care and did not know what she was going to do. Id. at 144. Ms. Crawley went and sat in the truck, put her head back and watched through the rearview mirror. Id. When Mr. Dunkle drove up behind her, she closed her eyes and reopened them as he was walking around the truck. Id. Ms. Crawley says she knew that Mr. Dunkle was going to report her to Don Bennett for sleeping in the truck. Id. Ms. Crawley claims it was obvious she was not sleeping. Id. Ms. Crawley sat in the truck for 5-10 more minutes and Don Bennett arrived. Ms. Crawley told Don Bennett the story about not having anything to do. Id. at 146-147. Don Bennett told the crew leader to give her something to do. Id. at 147. Ms. Crawley was not given a reprimand and did not receive any other disciplinary action. Id. at 147-148.

In 1999, Ms. Crawley was working traffic control and she stopped a lady on her way to the hospital. (Crawley Depo. at 149). Ms. Crawley refused to let her through and she became irate. Ms. Crawley called Rick Newbold and relayed the situation. Id. The woman told Mr. Newbold that Ms. Crawley was not doing her job. Id. at 150. Ms. Crawley alleges that Mr. Newbold called Don Bennett and told him that Ms. Crawley upset a driver. Id. Ms. Crawley was not punished or disciplined and nothing happened to her as a result of this incident. Id. at 152.

In 1999, Ms. Crawley alleges that Mr. Bennett called her into his office, asked her to sit down, and then leaned back and smiled at her. (Crawley Depo. at 198). Crawley testified that she believes he smiled at her for 30 seconds to one minute before she got up and walked out. Id. at 198-99. Then, at 3:00 that day, as her shift was ending, Mr. Bennett came out to the garage and asked Ms. Crawley why she left his office. Id. Ms. Crawley told Mr. Bennett it was apparent he had nothing to say except to smile. Id. Mr. Bennett then told her he did have something to say. Id. Ms. Crawley told him she didn't care what it was, that it was 3:00 and she was out of there. Id. at 200. Mr. Bennett then yelled out to Ms. Crawley that she was supposed to report to New Philladelphia for computer classes. Id. at 201. These classes were classes that Ms. Crawley had been signing up for, but that she alleges "they" were taking her name off the list. Id. Ms. Crawley finally "began to raise a big squawk" and that's when "they" put her on the schedule to go to the computer classes. Id. at 202. Ms. Crawley stated that she eventually attended the training. Id. at 201-02. When Ms. Crawley was asked if she believed Mr. Bennett staring at her was racially motivated, Ms. Crawley responded that she did not know if it was racially motivated, but that it was harassing and she felt as though he wanted her angered. Id. at 203. Ms. Crawley refused to ever enter Mr. Bennett's office again. Id. at 201. Friction developed between Ms. Crawley and Mr. Bennett and reached the point that Ms. Crawley refused to talk to Mr. Bennett without Mr. McGowan present. (Bennett Depo. at 21-23, 115). Defendant ODOT maintains that Mr. Bennett's less than glowing estimation of Ms. Crawley's work and her ability to get along with others is due, to a great extent, to Ms. Crawley's own admitted behavior. (Def.'s Mot. for Summ. J. at 16).

Ms. Crawley says that she observed Mr. Safford, a custodial worker, get harassed and discriminated against. (Crawley Depo. at 203). Ms. Crawley says she believes this occurred because of his age, "I felt that he was discriminated [against because] he's the oldest employee in the State of Ohio." Id. Ms. Crawley thought the fact that Mr. Safford didn't have a classification, didn't get a raise one year (according to him) and did menial duties such as pick up lunch and sweep floors and wash windows was degrading. Id. at 204. Also, Ms. Crawley said her co-workers would move Mr. Safford's office and once moved it into the garage, which was not heated, because they were trying to conserve energy. Id. at 209. Ms. Crawley said Mr. Safford had a desk with a nice chair, and the superintendent decided he wanted Mr. Safford's chair, so he took it and put a chair in Mr. Safford's room that was broke and would flip him onto the floor if he didn't sit in it the right way. Id. at 211-12. Ms. Crawley believes this treatment of Mr. Safford was racially motivated because he was a passive black man who didn't complain. Id. at 215. ODOT points out that management was not made aware of some of the alleged harassment of Mr. Safford, and in fact, Mr. Safford himself kept telling ODOT management that he was not being harassed. (Def.'s Reply at 6 citing Hartman Depo. at 29-33; Bennett Depo. at Ex. 2; McGowan Depo. at 82-83, 97-99). Mr. Safford retired in 2000 at the age of 70.

On June 16, 2000, Ms. Crawley testified that Cory Curtis, an African-American summer student, heard Mark Beebe refer to Ms. Crawley as a "dumb nigger." (Crawley Depo. at 165). Cory Curtis reported this to Ms. Crawley. Id. at 166. Cory Curtis then reported this to Mr. Newbold who told him to take the rest of the day off, that they would pay him for the balance of the day. Id. at 167. Ms. Crawley testified that Mr. Beebe then came to see her at her jobsite. Id. Ms. Crawley testified that Mr. Beebe was petrified. Id. Mr. Beebe asked to talk to her, admitted to calling her the name, apologized and asked her to accept his apology. Id. Ms. Crawley asked Mr. Beebe why he was apologizing and if he was afraid of losing his job. Mr. Beebe said "yes." Id. Ms. Crawley told him she did not accept his apology. Id. at 168. Mr. Newbold reprimanded Mr. Beebe and suspended him for one day. Id. at 168-69. Ms. Crawley testified that she had no more trouble with Mr. Beebe after that incident. Id. at 169.

In July of 2000, Ms. Crawley testified that Pete Vain was supposed to give her a ride to the jobsite, but did not. Id. at 173. Ms. Crawley caught a ride with another co-worker, and Ms. Crawley and the other co-worker caught Pete Vain hiding out with his girlfriend. Id. at 173-74. Soon after, Pete Vain made two comments to Ms. Crawley including "go back where you came from" and "all you people need to go back where you came from." Id. at 173-176. Ms. Crawley understood this to mean to go back to Africa; Pete Vain understood it to mean to go back to Sixth Street in Steubenville where many blacks live. Id. Ms. Crawley reported either one or both of the comments to Mr. McGowan, union rep, who reported them to supervision. Id. at 176. Ms. Crawley does not know what management said or did to Pete Vain. Id. at 178.

Soon after Ms. Crawley caught Pete Vain hiding out with his girlfriend, Pete Vain was operating a sweeping machine on the freeway and she was doing traffic control. (Crawley Depo. at 178-179). Ms. Crawley testified that Pete Vain went past her with the sweeping machine and the machine completely covered her with dirt such that she couldn't see. Id. at 179. Ms. Crawley reported this incident to Terry Hartman and told Mr. Hartman she was so angry that she would have hit Pete Vain if he got any closer to her. Id. at 180. Ms. Crawley testified that Mr. Hartman replied, "do what you have to do." Id. Ms. Crawley asked Mr. Hartman if he wanted her to end up like another black employee who acted out in violence and was fired, and Ms. Crawley alleges that Mr. Hartman again said "do what you have to do." Id. Ms. Crawley testified that Pete Vain again covered her in dirt with the sweeping machine. Id. Ms. Crawly again reported the incident to Mr. Hartman and she refused to work with Pete Vain again. Id. at 182. Mr. Hartman told Pete Vain he was not allowed to go past Ms. Crawley with the machine or to even get close enough to Ms. Crawley that he could get dirt on her. Id. at 182-183. Pete Vain never went past Ms. Crawley with the sweeping machine after this, but Ms. Crawley alleges that twice more Pete Vain got "as close as he dared" without causing the dust to completely cover her. Id. at 183. For a third time, Ms. Crawley reported to Mr. Hartman and Mr. McGowen that Pete Vain was coming close with his sweeping machine. Id. at 184. This time, Mr. Hartman took Pete Vain off the job. Id. at 184-185. Ms. Crawley did not have any more trouble with Pete Vain after this. Id. at 185.

There are four instances or groups of instances in which Ms. Crawley claims she was denied overtime. (Crawley Depo. at 47-48; Crawley Depo. Ex. 3 at 13-14). On each occasion, Ms. Crawley filed a grievance, and on each occasion, that grievance was settled. Id.; (Crawley Depo. at 34-37, 40-41; Crawley Depo. Exs. 9-12).

The collective bargaining agreement in effect from March 1, 1997 through February 29, 2000, provided:

Insofar as practicable, overtime opportunity hours shall be equitably distributed on a rotating basis by seniority among those who normally perform the work defined in [sic] overtime, and if a sufficient number of employees is not secured through the above provisions, the Employer shall have the right to require the least senior employee(s) who normally performs the work to perform said overtime . . . . (Crawley Depo. at 70-71; Crawley Depo. Ex.16 at 392-93). The corresponding provision of the successor agreement provided:

Insofar as practicable, overtime opportunity hours shall be equitably distributed on a rotating basis by seniority among those who normally perform the work as defined in the classification specification and/or position description. In the event the Employer has determined the need for overtime, and if a sufficient number of employees is not secured through the above provisions, the Employer shall have the right to require the least senior employee(s) who normally performs the work to perform said overtime . . . . (Crawley Depo. at 69-70; Crawley Depo. Ex.15 at 227).

During most of Ms. Crawley's employment with ODOT, Virgnia Bonomo was the regular two-way radio operator for the Wintersville Garage during the day shift. Ms. Bonomo also operated the radio on other shifts on an overtime basis. (Crawley Depo. at 56-57).

In November of 1993, Ms. Bonomo became ill and, after filing a grievance, Ms. Crawley took over her duties. Ms. Crawley was given a temporary working level increase to Radio Operator 5 along with a pay increase from November of 1993 to December of 1994. Id. at 14-15. Though Ms. Crawley remained a HW1, she considered herself entitled to replace Ms. Bonomo during miscellaneous absences as her "backup." Id. at 57.

During the construction season, the two-way radio was staffed eight hours per day, when most of the employees were at work and on the roads. From the time Ms. Crawley started at ODOT until 2001, the Wintersville Garage staffed its two-way radio around the clock during "snow and ice season." "Snow and ice season" typically ran from November or December to early or mid-April, as declared by the County Manager. (Newbold Depo. at 54). When this arrangement was in place, Ms. Bonomo operated the radio during the day, Ms. Crawley operated it over the night shift, from 11:00pm to 7:00am, and two so-called "thousand hour transfers" from other departments watched the radio during the afternoon shift. (Crawley Depo. at 63-64; Bennett Depo. at 48-49; Newbold Depo. at 51-53). These included Ernie Fleshman and Rick Piskorik, who were both Project Inspectors. Fleshman was black, Piskoirk white. (Newbold Depo. at 100-02) Ms. Crawley had volunteered to work the night shift, and the assignment gave Ms. Crawley something to do, since she could not operate heavy snow removal equipment. (Bennett Depo. at 47). Unless a snow and ice emergency was occurring, Ms. Crawley had next to nothing to do during the night shift. (Hartman Depo. at 14-15).

Ms. Crawley filed two grievances in 1996. The first is unrelated to the radio operation and claims that Ms. Crawley was not offered overtime in the proper rotation, when overtime was required as the result of a highway accident. This grievance was settled, a settlement agreement signed and Ms. Crawley received a monetary payment. (Crawley Depo. at 34). Ms. Crawley's second overtime grievance in 1996 alleged that ODOT was aware that the regular radio operator would be absent for a long period of time, but that the employer failed to fill the "vacancy" as had been done in the past. The apparently referred to the prior occasion when Ms. Crawley received a temporary working level increase when Ms. Bonomo was ill. Again, the grievance was settled and Ms. Crawley received a monetary payment. (Crawley Depo. at 34-35).

In the late 1990's, Payroll Clerk Pam Vanezalos and Storekeeper Evelyn Parise were also utilized to operate the radio on days when Ms. Bonomo was absent. (Crawley Depo. at 58-60; Bennett Depo. at 52). Mses. Bonomo, Vanezalos and Parise were white. (Bennett Depo. at 49).

Mr. Bennett planned to offer overtime to Ms. Bonomo first, because she was the regular operator, and then rotate any remaining opportunities among Mses. Crawley, Vanezalos and Parise, since all of them "normally perform[ed] the work." (Bennett Depo. at 52-53, 54-56, 71). Ms. Crawley claimed at this point, ...


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