United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on Defendant Greater Cleveland
Regional Transit Authority's (“RTA”) Motion
for Summary Judgment. (ECF # 34). For the following reasons,
the Court denies Defendant's Motion.
Plaintiff's
Amended Complaint
According
to his Amended Complaint, Plaintiff Bryan McIntosh
(“McIntosh”) was hired by RTA as a Quality
Assurance Associate (“QA”) in August of 2014.
McIntosh is an African-American male and a Muslim. McIntosh
was one of four QA's who reported to supervisor Frank
Campbell (“Campbell”). The other three QA's
were Caucasian. McIntosh alleges Campbell treated him
differently than his Caucasian counterparts. McIntosh alleges
Campbell required him to submit weekly QA visit forms for the
entire time he was under Campbell' supervision. McIntosh
contends that either Campbell did not require the visit forms
from the Caucasian QA's at all or did not require the
forms from the Caucasian QA's after they had been
employed for six months. Campbell reprimanded McIntosh for QA
visit form violations.
Campbell
attempted to enforce a strict start time policy with McIntosh
even though McIntosh was a salaried employee exempt from a
rigid start time under RTA's flex time policy. Under the
flex time policy, exempt employees may start their work days
between the hours of 6:00 and 9:00 a.m. so long as they
worked a full eight hour day. In spite of this policy,
Campbell reprimanded McIntosh for attendance or tardiness
issues. RTA policy prohibited taking adverse actions against
salaried employees for attendance/tardiness issues. Campbell
did not reprimand Caucasian QA's for attendance/tardiness
issues.
McIntosh
alleges Campbell “spied” on him during work,
monitoring him more closely than the Caucasian QA's. This
was noticed by other RTA employees. Campbell also monitored
McIntosh's social media posts, commenting on them at work
and even printing one and showing it to others at RTA.
Campbell did not review the social media posts of the
Caucasian QA's.
In
March of 2015, McIntosh was on a business trip with Campbell
when Campbell allegedly made remarks in McIntosh's
presence disparaging Muslims. According to McIntosh, Campbell
stated that the “Quran is going to replace the
Bible” and that “Muslims are taking over the
world and they should all just be nuked and wiped out.”
In April of 2015, McIntosh filed a Complaint with the EEOC
alleging that Campbell harassed and discriminated against
McIntosh based on McIntosh's religion. McIntosh
subsequently amended his EEOC Complaint to add a claim of
race discrimination. On May 7, 2015, RTA and Campbell were
notified of the McIntosh Complaint. Upon being notified of
McIntosh's EEOC Complaint, RTA suspended McIntosh the
following day based on an unsubstantiated charge and set a
pre-termination hearing. McIntosh had the charge dismissed,
returned to work and subsequently filed a retaliation claim
with the EEOC against RTA. RTA placed McIntosh on
decision-making leave (“DML”)which McIntosh
contends was the equivalent of a final written warning.
McIntosh alleges he had no prior disciplinary actions that
would justify such disciplinary action. Thereafter, McIntosh
requested a transfer but was denied.
The
EEOC investigation found Campbell had trouble communicating
with minority employees, many of whom felt disrespected by
Campbell. As a result of the investigation, Campbell was
required to attend professional development courses.
As part
of his job duties, McIntosh was scheduled to go to California
to inspect buses that RTA intended to purchase. After denying
his transfer, McIntosh contends RTA further retaliated
against him by cancelling his California trips, sending three
other Quality Assurance representatives to California and
placing McIntosh on lower valued work.
McIntosh
was required to report to Dan Dietrich in addition to
Campbell. McIntosh knew Dietrich and Campbell were friends.
Dietrich, as Campbell before him, tried to discipline
McIntosh for attendance/tardiness issues but was told by RTA
management McIntosh was not subject to discipline for alleged
attendance concerns. Dietrich instead assigned McIntosh lower
value work. McIntosh contends a Caucasian employee refused to
do a specs review job but was not disciplined. Instead, RTA
made McIntosh do the job the Caucasian employee refused to
do. In September 2015, after another suspension,
McIntosh's employment with RTA was terminated for
purportedly approving a shipment of brakes without inspecting
them. The brakes were either defective or the wrong size.
McIntosh asserts the claim was never substantiated. McIntosh
alleges retaliation, race and religious discrimination claims
under federal and Ohio law. McIntosh subsequently dismissed
with prejudice his religious discrimination claims under
federal and Ohio law.
RTA's
Motion for Summary Judgment
According
to RTA, McIntosh was terminated for poor performance, not for
any unlawful discriminatory or retaliatory motive. RTA's
Motion provides in great detail McIntosh's alleged
attendance/tardiness violations. According to RTA, McIntosh
was subject to the RTA's flex-time policy. That policy
allows employees to choose a start time between 6:00-9:00
a.m. It does not allow employees to come in whenever they
choose between those hours on any given day. McIntosh chose a
start time of 6:00 a.m. Within the first three weeks he was
late five of his first twelve days. Over his one year
employment, RTA contends McIntosh was late or absent over
fifty times. Within one month of McIntosh's employment,
Campbell issued him a written warning for performance and
attendance infractions. McIntosh kept pushing his start time
later and later and had several discussions with Campbell for
his routine tardiness and failure to timely provide weekly
visit reports. Campbell assigned McIntosh a project that
after one year McIntosh still had failed to complete. Dan
Dietrich asked McIntosh why he failed to show up for work on
March 23, 2015, without calling in. McIntosh told Dietrich he
used it as a comp day, which Dietrich informed McIntosh
required prior approval. Campbell issued another written
reprimand on April 14, 2015, for McIntosh missing deadlines,
McIntosh then filed his EEOC Complaint. On April 30, 2015,
before he knew that McIntosh had filed a Complaint with the
EEOC against him, Campbell requested that McIntosh be placed
on Decision Making Leave (“DML”). A DML is a last
chance agreement wherein an employee must meet all the
requirements of his or her job for twelve months or face
termination. After a meeting between Campbell, his supervisor
and RTA's Labor Relations representatives to discuss
placing McIntosh on DML, Labor Relations recommended
termination. However, before termination was implemented, RTA
learned of McIntosh's EEOC Complaint. On May 8, 2015, RTA
suspended McIntosh pending a pre-termination hearing, which
was held May 13, 2015. As a result, RTA placed McIntosh on a
DML and had him report to Dan Dietrich while McIntosh's
EEOC Complaint was investigated. In July 2015, Dietrich
reported little or no improvement in McIntosh's
performance. In August, Dietrich gave McIntosh a written
performance directives memo outlining expectations for
McIntosh. Dietrich told McIntosh he was not meeting
expectations. McIntosh's attendance and performance
issues persisted during Dietrich's supervision of
McIntosh. The final straw was McIntosh approved brake kits
that video evidence shows he failed to even open, let alone
inspect. He was subsequently terminated.
According
to RTA, the above attendance and performance issues provided
sufficient non-discriminatory and non-retaliatory reasons for
McIntosh's termination. RTA argues McIntosh has no direct
evidence of discrimination or retaliation. RTA concedes
McIntosh may be able to meet his prima facie burden but
contends that McIntosh is unable to demonstrate pretext under
any of the three accepted methods. Because its reasons for
terminating McIntosh relate to his performance and attendance
issues and not his race or his engaging in protected
activities, RTA is entitled to summary judgment on
McIntosh's claims.
McIntosh's
Brief in Opposition
McIntosh
does not assert that he has direct evidence of
discrimination, but instead relies on indirect evidence to
establish his claims. McIntosh challenges the very basis of
his discipline under the RTA flex-time policy which he
contends he did not violate. McIntosh describes the policy as
“Under RTA's flex time schedule I had to complete
eight hours per day. Whether I completed those eight hours
starting at 6:00 a.m. in the morning or at 9:00 a.m. in the
morning or in between.” (McIntosh aff. at para 5). In
an interoffice memo dated April 30, 2013 from Joseph
Calabrese, CEO of RTA, to all non-bargaining, exempt
employees, it reads in pertinent part:
...RTA will allow non-bargaining exempt employees to choose,
within specified limits of your department and supervisor,
the daily hours of work preferred.
Thus, employees in a particular department or section may
have different starting and finishing times, but will, of
course, be required to complete the necesssary
(sic) work of their position....
Also, exempt employees will not be held to the tardy, leave
early and occurrence provisions of the attendance Policy
should they need to adjust their daily schedule to attend to
non-RTA business related concerns.
Supervisors need to approve any schedule adjustments prior to
any employees changing their regularly scheduled hours...
In
interpreting this policy, McIntosh argues he understood this
to mean he could report on any given day between 6:00 a.m.
and 9:00 a.m. so long as he worked eight hours. This
understanding was echoed by other RTA employees. Furthermore,
McIntosh contends the flex-time policy's plain language
says he should not have been disciplined for violating the
Attendance Policy, yet his being placed on DML was largely
related to his attendance issues. But for being on DML,
McIntosh claims he would not have been terminated for failing
to inspect brake pads.
McIntosh
further contends his fellow Caucasian QA's were not
written up for attendance or tardiness violations even though
the record shows they incurred a number of such infractions.
Also, they were not required to submit weekly visit forms
like McIntosh. Furthermore, Campbell's heightened
observation of McIntosh and scrutiny of McIntosh's social
media posts, which Campbell reportedly found racist, show an
animus towards McIntosh based on his race.
RTA
placed McIntosh on DML one week after they learned of his
EEOC Complaint. According to McIntosh, this proximity in time
evidences a retaliatory intent. Finally, ...