McIntosh v. Greater Cleveland Regional Transit Authority

          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, ...