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Lumpkin v. Adalet/Scott Fetzer Co.

United States District Court, N.D. Ohio

May 15, 2017

JOE W. LUMPKIN, Plaintiff,
v.
ADALET/SCOTT FETZER CO., Defendant.

          OPINION & ORDER [RESOLVING DOC. 17]

          JAMES S. GWIN UNITED STATES DISTRICT JUDGE.

         On November 11, 2016, Plaintiff Joe W. Lumpkin filed Title VII employment discrimination claims against Defendant Adalet/Scott Fetzer Company.[1] Lumpkin claims Defendant unlawfully terminated him due to his race and subjected him to a hostile work environment.

         On April 17, 2017, Defendant filed a motion for summary judgment.[2] For the reasons below, this Court DENIES the Defendant's motion for summary judgment.

         I. BACKGROUND

         Defendant Adalet/Scott Fetzer Company (“Adalet”) fired Plaintiff Joe Lumpkin. This case stems from Lumpkin's termination from Adalet. Defendant argues it fired Plaintiff for taking unauthorized smoke breaks in a non-smoking area. Plaintiff, an African American, argues that his Caucasian coworkers did the same and suffered no consequences.

         On July 16, 2014, Defendant Adalet hired Plaintiff Lumpkin as a foundry custodian.[3]Lumpkin primarily reported to Foundry Supervisor Mark Ambrose, a Caucasian.[4]

         During orientation, Defendant told Lumpkin of its Progressive Discipline Policy.[5] The policy states that “[a]ny employee who accumulates four demerits for any combination of violations [of policies or shop rules] within any twelve-month period will be terminated.”[6]

         Adalet work rule violations include “[i]ncurring more than two incidents of leaving work early or arriving late, or losing over four lost work time hours due to arriving late or leaving early in any one month period.”[7] Further, “[a]rriving late and leaving early in the same day count as two different incidents.”[8] “Failure to deliver a productive effort” is also against company policy.[9]

         Defendant Adalet also informed Lumpkin of its anti-harassment and discrimination policies.[10] This policy directs employees to bring harassment complaints to a supervisor or human resources “immediately.”[11] Plaintiff Lumpkin acknowledges receiving these policies.[12]

         Relatedly, Plaintiff's Supervisor Mark Ambrose received training on “recognizing and preventing racial harassment in the workplace.”[13] Supervisors are required to report racial harassment when they witness it.[14]

         Harassment Allegations

         Plaintiff Lumpkin says coworkers and supervisors called him racist nicknames and made derogatory comments toward him at work. He alleges Caucasian supervisors told him “you clean up real good, ” “clean that shit up, ” and “you've got to get that fucking sand up.”[15]

         Supervisor Ambrose called Lumpkin “Joe Dirt” and “Smoking Joe.”[16] Another supervisor called him “Coolio.”[17] Coworkers called him “Michael Jackson, ” “Cheeto-head, ” “Django, ” and “Goldie the Mack, ” among other names.[18]

         Plaintiff Lumpkin claims Supervisor Ambrose witnessed Caucasian coworkers laughing at Lumpkin and did not intervene.[19] Although Plaintiff Lumpkin never formally reported these comments, he “went to” supervisor Ambrose about them.[20] Plaintiff states that Ambrose previously told him that “[w]hatever happens in the foundry stays in the foundry.”[21]

         Demerits

         In early-mid October 2014, Plaintiff committed two attendance violations.[22] Then, on October 31, 2014, he both arrived late and left work early.[23] Lumpkin therefore “[i]ncurr[ed] more than two incidents of leaving work early or arriving late . . . in any one month period.”[24]

         Accordingly, on November 5, 2014, Defendant assessed Plaintiff for two demerits.[25]

         On April 2, 2015, Plaintiff received two more demerits for smoking in a non-smoking area while on the clock.[26] On that morning, Director of Operations Tom James saw Plaintiff and his African-American coworker Michael Simpson smoking in a non-smoking area.[27]

         Plaintiff states that Caucasian coworkers were similarly smoking with him and. Simpson.[28] Defendant states that none of the white co-workers could have been smoking with Plaintiff on that day because they were off work or no longer employed by Adalet.[29]

         After Operations Director James saw Plaintiff and Simpson smoking, James emailed Supervisor Ambrose and told Ambrose to issue Plaintiff and Simpson demerits.[30] James saw Plaintiff smoking again in the same area later that afternoon.[31]

         Because these demerits brought Plaintiff to a total of four infractions within twelve months, Defendant Adalet terminated Plaintiff on April 7, 2015.[32]

         Procedural History

         The day Defendant terminated Plaintiff Lumpkin, the Union filed a grievance on Lumpkin's behalf.[33] The grievance was denied on April 13, 2015.[34]

         In May 2015, Lumpkin filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). On August 15, 2016, the EEOC issued Lumpkin a right to sue letter.[35]

         On November 11, 2016, Lumpkin filed Title VII employment discrimination and related state claims against Defendant Adalet in this Court.[36]

         On April 17, 2017, Defendant filed a motion for summary judgment.[37]

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'”[38] The moving party must first demonstrate that there is an absence of a genuine dispute as to a material fact entitling it to judgment.[39] Once the moving party has done so, the non-moving party must set forth specific facts in the record-not its allegations or denials in pleadings- showing a triable issue.[40] The existence of some doubt as to the material facts is insufficient to defeat a motion for summary judgment.[41] But the Court views the facts and all reasonable inferences from those facts in favor of the non-moving party.[42]

         When parties present competing versions of the facts on summary judgment, a district court adopts the non-movant's version of the facts unless the record before the court directly contradicts them.[43] Otherwise, a district court does not weigh competing evidence or make credibility determinations.[44]

         III. DISCUSSION

         A. Termination Claim

         Plaintiffs brings both a federal Title VII claim and an Ohio claim for wrongful termination under Ohio Revised Code §4112.02. Because the federal analysis is also used for the state claim, [45] the Court analyzes them together under the federal framework.

         Under Title VII, an employer may not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”[46]

         To survive summary judgment, Plaintiff Lumpkin must first make out a prima facie case of race discrimination.[47] To establish a prima facie case, Lumpkin must show that: “1) he is a member of a protected class; 2) [he] was qualified for the job; 3) he suffered an adverse employment decision; and 4) [he] was replaced by a person outside the protected class or treated differently than similarly non-protected employees.”[48]

         If Plaintiff makes out a prima facie case, the burden shifts to Defendant Adalet “to proffer a legitimate, nondiscriminatory reason for its decision.”[49] If Defendant carries its burden, Plaintiff Lumpkin “must then prove by a preponderance of the evidence that the reasons offered by the employer were pretextual.”[50]

         1. Prima Facie Case

         The parties only dispute whether Plaintiff satisfies the fourth prong.[51] Because Defendant did not replace Plaintiff's position after Plaintiff was terminated, [52] Plaintiff must show he was “treated differently than similarly non-protected employees.” Defendant argues that Plaintiff fails to show disparate treatment.[53] Specifically, Defendant states that “at least three non-African American employees have received demerits . . . for smoking outside of their break time or for smoking in non-smoking areas.”[54]

         Plaintiff responds that there is no supporting documentation for these alleged demerits and Caucasian coworkers were never written up.[55] Plaintiff also points to HR Manager Bonetta DuBreuil's testimony that Supervisor Ambrose had not previously written up foundry employees for smoking in the courtyard before writing up Plaintiff at Tom James' direction.[56]

         The Court finds a genuine dispute as to whether non-African American employees have been reprimanded for smoking violations. DuBreuil's affidavit generally says that three non-African American employees were cited for smoking outside break time. But she does not give their names and gives no further evidence supports that statement.[57]A jury should consider the competing testimony.

         The Court acknowledges that some doubt exists as to Plaintiff's story. Plaintiff states that Caucasian coworkers were smoking with him and Mr. Simpson the morning of April 2, 2015 and did not receive demerits.[58] Defendant argues that none of those individuals were with Plaintiff on that day because they were either off work or no longer employed by Adalet.[59]

         Defendant's argument is supported by the record-three of the four individuals alleged to be smoking with Plaintiff and Simpson could not have been there on that particular morning.[60]

         However, even if those employees were not with Plaintiff on the morning in question, Plaintiff states that Caucasian coworkers and Supervisor Mark Ambrose regularly smoked outside formal break times.[61] Ambrose even offered Lumpkin cigarettes.[62] If that is true-and Defendant submits no evidence suggesting it is not-Ambrose repeatedly witnessed violations of company policy without issuing demerits.

         Whether Defendant Adalet fired Plaintiff Lumpkin for smoking during non-break times and allowed Caucasian coworkers to do the same with no consequences is a question for trial.

         2. Nondiscriminatory Motive and Pretext

         Because Plaintiff shows genuine disputes of material fact in his prima facie case, Defendant must show a nondiscriminatory reason for firing Lumpkin. Plaintiff Lumpkin violated Defendant's progressive disciplinary policy[63]-a policy that Lumpkin acknowledges receiving.[64]This violation is a nondiscriminatory motivation for firing Lumpkin.

         Plaintiff therefore has the burden of proving “by a preponderance of the evidence that the reasons offered by the employer were pretextual.”[65]

         A plaintiff can establish pretext by showing “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his [discipline], or (3) that they were insufficient to motivate discharge.”[66]

         “The third category of pretext consists of evidence that other employees, particularly employees outside the protected class, were not disciplined even though they engaged in substantially identical conduct to that which the employer contends motivated its discipline of the plaintiff.”[67] This case fits into the third category.

         If Plaintiff Lumpkin makes a showing under the third category, the Court can but is not required “to infer illegal discrimination from the plaintiff's prima facie case.”[68] “In other words, it creates a genuine, triable issue of material fact.”[69]

         As discussed above, whether employees “outside the protected class” were disciplined for smoking outside of break time or in a non-smoking area is unclear-neither side presents hard evidence. Therefore, a genuine issue of material fact exists.

         However, Plaintiff must also establish that a racially-motivated actor was “the decision maker with regard to the relevant adverse employment action.”[70]

         Plaintiff Lumpkin argues that Supervisor Ambrose demonstrated racial animus by calling Lumpkin racial nicknames like “Smoking Joe” and tolerating other employees doing the same.[71]Further, Ambrose “wrote and signed the write-up for the two demerits in one day against Mr. Lumpkin resulting in his termination.”[72]

         Defendant argues that Ambrose's involvement in Plaintiff's termination is insufficient. Director of Operations Tom James saw Plaintiff smoking and ordered Ambrose to write the demerits. Defendant reasons that James was the relevant decision maker.[73]

         While it is a close call, the Court finds that Ambrose was sufficiently involved in Plaintiff's termination. James witnessed Plaintiff smoking and ordered Ambrose to write the demerits. However, Plaintiff has suggested that Ambrose often smoked with Plaintiff during non-break times and encouraged employees to do so.[74] If that is true, Ambrose could have told James that the rule was not regularly enforced. Ambrose is sufficiently implicated in the decision to fire Plaintiff Lumpkin.

         Accordingly, the Court DENIES summary judgment on Plaintiff's termination claim.

         B. Hostile Work Environment Claim

         Defendant Adalet argues that Plaintiff's hostile work environment claim fails.[75]To show a hostile work environment, “a plaintiff must demonstrate that (1) he belonged to a protected group, (2) he was subject to unwelcome harassment, (3) the harassment was based on race, (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (5) the defendant knew or should have known about the harassment and failed to act.”[76]

The fourth and fifth factors are disputed here.

         1. Severe or Pervasive

         To discern whether comments are “sufficiently severe, ” courts consider “the frequency of the 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 work performance.”[77] ...


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