The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge
This matter is before the Court on Defendants' Amended Motion for Summary Judgment (doc. 53), Plaintiff's Memorandum in Opposition (doc. 57), and Defendants' Reply (doc. 61).
Defendant ABX Air, Inc., is an all-cargo express airline that ships time-sensitive packages around the country (doc. 53). ABX employed Plaintiff Martin Gaston at its Wilmington, Ohio, facility, for roughly three years, first as a part-time package sorter but primarily as a storekeeper (doc. 1). Plaintiff, who is African American, alleges in his Complaint that from the time ABX hired him he sensed racial tensions (Id.). According to Plaintiff, Defendants singled him out for menial tasks, falsely accused him of making mistakes, and subjected him to hostility, which culminated in his termination on March 28, 2002 (Id.). Plaintiff brings claims pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e, et. seq., 42 U.S.C. § 1981, Ohio Rev. Code § 4112, and Ohio public policy (Id.). In response, Defendants argue they terminated Plaintiff not due to his race, but for a host of performance-related issues (doc. 53). Defendants argue Gaston had three different supervisors during his tenure at ABX, and all three counseled and trained Plaintiff for performance problems during his employment (Id.). According to Defendants, Gaston's performance deteriorated, culminating in a series of errors relating to the shipping of hazardous materials (Id.). In fact, argue Defendants, in the last months of his employment, Plaintiff's errors resulted in hazardous material shipping violations that Plaintiff does not dispute (doc. 61). Plaintiff responds that the errors in question were caught such that no harm resulted, and that two Caucasian employees who made similar errors that resulted in fines to the company were not terminated (doc. 57).
Defendants filed their Amended Motion for Summary Judgment on August 22, 2006, Plaintiff responded, and Defendants replied, such that this matter is ripe for the Court's consideration. For the reasons indicated herein, the Court DENIES in part Defendants' Motion as to Plaintiff's federal and state law discrimination claims, but GRANTS in part such motion as to Plaintiff's Ohio public policy claims, and as to Plaintiff's claims against individual Defendant Donna Scott.*fn1
The basic facts of the case are essentially uncontested. However, the parties offer different interpretations of the facts, as Plaintiff alleges the facts support his claims for discrimination, and as Defendant argues the facts show it justifiably terminated Plaintiff's employment for poor performance. The following facts are drawn from the pleadings, the motions, depositions, and other filings in this matter.
Plaintiff started working for Defendant on February 1, 1999, as a package sorter (doc. 53). Plaintiff came to the position with background and experience with jets and planes, including service in the U.S. Air Force, and some sixteen months as a parts manager (doc. 57). Ultimately Plaintiff would spend the most of his tenure with Defendant managing parts, but for the first four months of his employment at ABX, he sorted packages under the supervision of Tim Stirr (Id.). This initial position required Plaintiff to quickly sort through packages coming at him on conveyor belts that were unloading planes, and to put the packages into correct chutes respective to their destinations.
Gaston alleges that Stirr treated the African-American employees differently by not sending them help when they were overwhelmed with the volume of packages (doc. 57). According to Plaintiff, Stirr let the African-American employees struggle, while helping the Caucasian employees succeed (Id.). In Defendant's view, Plaintiff had trouble keeping up with the speed at which packages came down the conveyor belt for sorting (doc. 53). Plaintiff suggests that the speed at which he was forced to work was unreasonable and caused him on one occasion to drop a mail bag down the wrong chute (doc. 57). When Plaintiff approached Stirr to rectify the problem, Stirr issued a written reprimand (Id.). Plaintiff alleges that "in his experience" Stirr did not reprimand Caucasion employees in the same manner (Id.). Defendant indicates that Plaintiff's allegation is unsubstantiated, and that Plaintiff admitted in his deposition that he did not know whether Stirr reprimanded Caucasian employees for similar infractions (doc. 61).
On or around May 31, 1999, Plaintiff transferred to a second-shift position as storekeeper, became a full-time employee with benefits, and received a $0.55 per hour raise (doc. 53). In his new position, Plaintiff reported to Donna Scott, and worked at a parts window, issuing airplane parts to mechanics, tracking the parts inventory and shipping and receiving parts (Id.).
Plaintiff alleges that Scott wrote him up for errors that were caused by a defective scanner that sometimes did not pick up part numbers or note their issuance (doc. 57). Frustrated, Plaintiff transferred to third shift, under Dan Bogard, where Plaintiff alleges he had further problems due in part to Caucasian employees who spoke quickly over the radio using non-standard language he could not understand (Id.). Plaintiff alleges he did not succeed in his attempt to get Bogard to address this issue (Id.). Gaston alleges that Bogard constantly nitpicked him and imposed requirements on him that no Caucasian employee was forced to accept (Id.). Specifically, Gaston indicates Bogard made him initial certain lists, called "pick lists," but did not make any other storekeepers, all who were white, do the same (Id.). Defendant argues that it is inaccurate for Plaintiff to say that Bogard imposed different requirements, as deposition testimony shows that all shifts were required to follow same procedures, and Bogard was simply not sure whether he had told everyone to comply (doc. 61).
In November 2000, Plaintiff met with Jennifer Miesse, the third-shift employee relations supervisor, to discuss Bogard's warnings and Plaintiff's feeling that Bogard treated him differently than other employees on third shift (doc. 57). After investigating, Miesse concluded that Bogard should have informally coached Plaintiff instead of reprimanding him, that cultural and dialectical differences could not be blamed on Plaintiff alone, and that Bogard did not hold five other employees equally accountable who had similar performance concerns (Id.). Throughout most of his time working under Bogard, Plaintiff was the only African American subordinate of Bogard (Id.). Defendant argues that Plaintiff fails to identify the race or identities of the five other employees who allegedly had similar performance issues but received no written warnings (doc. 61). In any event, Defendant indicates it removed Bogard's written warning and changed Bogard's performance evaluation of Plaintiff subsequent to Miesse's investigation (Id.).
By January 2001, Plaintiff transferred yet again, this time back to work under Donna Scott, the second-shift supervisor. According to Defendant, Scott personally provided Plaintiff with more training, and also arranged for one-on-one training with the Receiving and Training Supervisor in Aircraft Stores, Betty Yates (doc. 53). Despite this training, Defendant indicates Plaintiff's performance declined (Id.).
Plaintiff indicates that in November 2001 Scott rated him "good" overall, that he had improved in job knowledge, error rate, and cooperation, but that he needed improvement in his performance (doc. 57). As Scott testified in her deposition that she put a lot of thought into Plaintiff's evaluations, Plaintiff felt he was singled out from among other employees (Id.).
Scott warned Plaintiff on December 18, 2001, about a number of errors in the shipping and receiving of parts, and informed Plaintiff he needed immediate improvement (doc. 53). Immediately thereafter, Plaintiff states Scott called him into her office every night to talk about alleged performance issues, berated him for using a restroom when the closest to his work area was occupied, and removed stools despite his request to continue to use one when processing paperwork (doc. 57). Plaintiff indicates Scott left one stool to be used by a Caucasian co-worker (Id.).
The record is unclear as to exactly when, but at some point prior to Plaintiff's termination, two ABX employees, Steve Fender and Gary Johnson made errors in the shipping of hazardous materials that resulted in fines being levied against ABX (doc. 61). Neither of these two Caucasian employees were fired for their errors (doc. 57). Defendant indicates that as a result of ...