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Jackson v. Old Dominion Freight Line

United States District Court, S.D. Ohio, Eastern Division

March 28, 2018

DISHAWN A. JACKSON, Plaintiff,
v.
OLD DOMINION FREIGHT LINE, Defendant.

          Magistrate Judge Vascura

          OPINION AND ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motion for Summary Judgment of Defendant Old Dominion Freight Line, Inc. (ECF No. 60), Plaintiff's Motion for Leave to File Sur-Reply in Opposition to the Defendant's Motion Summary Judgment (ECF No. 68), and Plaintiff's Motion to Strike Affidavit of Ricardo Colon (ECF No. 66). For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART, and Plaintiff's Motions to Strike Affidavit and File Sur-Reply are DENIED.

         I. BACKGROUND

         A. Factual Background

         Defendant Old Dominion Freight Line, Inc. (“OD”) is a less-than-truckload motor carrier that operates a network of Service Centers (“SC”), one of which is located in Columbus, Ohio (the “COH” Service Center). OD hired Plaintiff Dishawn Jackson as a dockworker at COH on October 6, 2003. (ECF No. 60-1 at 107-08). Jackson's job duties included breaking down and organizing freight that came into the S.C. and loading freight onto trailers leaving the SC. (Id. at 110, 130, Ex. G).

         During his employment at OD, Mr. Jackson took two separate leaves under the FMLA, one intermittently for the care of his mother and one for the birth of his child from November 10, 2015 to January 1, 2016. (Id. at 213-14). Mr. Jackson testified that after he returned from FMLA leave after the birth of his son, he experienced tension with his supervisors, including William Pressler, Tony Green, and Robbie Smith. (Id. at 214). He contends that the supervisors were writing him up for coming in late, but not writing anyone else up for the same behavior. (Id. at 214-215).

         Also during his employment at OD, Mr. Jackson worked on his passion outside of work-music. Mr. Jackson raps and writes his own lyrics and beats. (Id. at 49-50). He has also shot music videos. (Id.). Carlos McNair was a co-worker of Mr. Jackson's at OD and shared his interest in rap music. (Id. at 186). Mr. McNair went to the studio Mr. Jackson used and rapped in two of Mr. Jackson's videos. (Id. at 187). In early March of 2016, Mr. McNair asked Mr. Jackson for a beat pattern that Mr. Jackson created, and Mr. Jackson agreed to send it to him electronically. (ECF No. 63-1 at PageID 1387; ECF No. 60-1 at 188-89). On March 18, 2016, Mr. Jackson learned through a co-worker that Mr. McNair was upset with him because he never got the beat that Mr. Jackson said he would send. (ECF No. 60-1 at 189). Mr. Jackson concluded that the electronic attachment must have failed, but decided that he would not associate with Mr. McNair any longer because he jumped to an incorrect conclusion without confronting Mr. Jackson about it first. (ECF No. 63-1 at PageID 1387).

         On March 30, 2016, Mr. McNair came into the break room at OD and sat down next to Mr. Jackson and said: “What's up, rapper?” (ECF No. 60-1 at 194-95). Mr. Jackson ignored him and put his headphones in, and did not hear anything else that Mr. McNair said, though Mr. Jackson believes Mr. McNair continued to make comments to him. (Id.). The next day, Mr. McNair yelled at Mr. Jackson because someone told him that Mr. Jackson was spreading a rumor that Mr. McNair was posting things on his Facebook page about Mr. Jackson. (Id. at 196). Mr. Jackson testified that he did not tell anyone that Mr. McNair was posting anything on Facebook about him, and he was unsure whether Mr. McNair did so. (Id. at 196-97). Mr. Jackson stated that a supervisor, Maurice Tuff, was standing next to him when Mr. McNair yelled at him and heard the commotion. (Id. at 197).

         On Friday, April 1, 2016, Mr. Jackson and Mr. McNair got into two altercations at work. Around 10:00 a.m., the first altercation ensued on the dock outside of a break room. (Id. at 166). Mr. Jackson testified that he and Mr. McNair were driving their forklifts in opposite directions on the dock and Mr. McNair called him a “sucker” and said he was “soft.” (Id. at 167). Mr. Jackson kept driving, picked up his next assignment, and then headed to the break room to get something to drink. (Id. at 168). Mr. McNair was standing in front of the break room door and talking to another co-worker, making remarks about Mr. Jackson such as “Your boy is soft. He's a sucker” and “You know it's a sucker-free Friday.” (Id. at 169). Mr. Jackson then asked Mr. McNair why he was putting on a show for everybody, and Mr. McNair responded that they could “step outside.” (Id.). Mr. Jackson asked if Mr. McNair was threatening him, and then another employee, Ricardo Colon, grabbed Mr. McNair and took him into the break room to interrupt the argument. (Id. at 169-70). Mr. Jackson then went on to finish his route. (Id. at 170).

         Then, around 10:30 a.m., the second incident began on the dock. Mr. Jackson was driving a forklift and Mr. McNair was walking toward his equipment. (Id. at 171). Mr. McNair again called Mr. Jackson “soft” and a “sucker.” (Id. at 172). Mr. Jackson asked him why he was acting that way, and inquired into whether it was because he was upset about not receiving the beat pattern or because they had not been working or speaking to each other anymore. (Id.). Mr. McNair then started clapping and Mr. Jackson told Mr. McNair that he had done a lot for him. (Id.). Mr. Jackson testified that Mr. McNair then made a hand gesture with two fingers pointing out to simulate a gun close to Mr. Jackson's face, and said he “had bullets for niggers like [Mr. Jackson].” (Id. at 173-74). Mr. Jackson stopped the forklift and got down from the machine. (Id. at 174-75). He asked Mr. McNair, “How are you going to pull a gun on me and I had done a lot for you, you're in my videos, and I have been there for you as a friend. And you going to try to pull a gun out on me. You done been in my house. You done been around my family.” (Id. at 175). Mr. McNair was then pushed away by employees David Pompi and Ricardo Colon. (Id. at 176). After putting his last skid on the trailer, Mr. Jackson reported the incident to Maurice Tuff, a dock supervisor. (Id. at 177).

         Other employees witnessed both of these incidents. As to the first incident, dockworker Daniel Hayes testified that he witnessed both Mr. McNair and Mr. Jackson cursing, and using profanity such as “bitch, ” “bitches, ” and the “N-word”. (ECF No. 60-5 at 9, 14). He did not hear Mr. Jackson make any threats of violence toward Mr. McNair, and he did not observe any physical fighting. (Id. at 7, 8). Mr. Hayes testified that profanity is commonly used on the dock, including the N-word by black employees, but that although it “gets hostile” at times, “the level that happened that day, no we don't, get that - that rambunctious, no.” (Id. at 17-18). Mr. Hayes did not feel the need to report the incident to management, and he did not feel that his life was in jeopardy or threatened in any way. (Id. at 16-17).

         Another employee, Mr. Jody Messer, also witnessed the altercation outside the break room, and testified he heard “yelling and cussing and the N word flying.” (ECF No. 60-6 at 7). He first testified that he did not personally hear Mr. Jackson say the “the N word” but later stated he could not say whether or not Mr. Jackson used the racial slur, though he knew for a fact Mr. McNair did. (Id. at 8-19, 14). Mr. Messer testified that it appeared that Mr. McNair was “more of the aggressor, ” as he was louder and using the “N word” and “lots of curse words.” (Id. at 8- 9). He stated that he saw Mr. McNair using gang signs, such as pretending to shoot a gun. (Id. at 14). Mr. Messer waited around because he was not sure if he would need to separate Mr. McNair and Mr. Jackson, as he did not want anyone to get seriously injured.” (Id. at 8, 15). They ended up calming down, so Mr. Messer left and continued his work. (Id. at 8).

         As to the second incident, dockworker David Pompi observed Mr. McNair walking next to Mr. Jackson's forklift, and saw Mr. Jackson get off the lift during the confrontation. (ECF No. 60-7 at 9). Mr. Pompi testified that Mr. McNair and Mr. Jackson were maybe a foot or two apart during the most heated part of the argument. (Id. at 9). Mr. Pompi saw Mr. Colon-the dockworker who broke up the first altercation-pull Mr. McNair away. Mr. Pompi then stepped in to “separate them before it . . . got a chance to get out of hand.” (Id. at 21). Mr. Colon then walked away with Mr. McNair, and Mr. Pompi walked away with Mr. Jackson. (Id. at 9). Mr. Pompi testified that he did not feel like his life was in danger, but that it was a pretty serious argument. (Id. at 25). He further testified that he did not feel the need to report the incident to management, and that he honestly believed that both men would keep their jobs. (Id.).

         The Monday following the two altercations, at the suggestion of his wife, Mr. Messer reported the break room incident to management because of safety concerns. (ECF No. 60-6 at 9-10). Mr. Messer reported the incident to Mr. Tony Green, Assistant Service Center Manager, and there is a factual dispute over whether Mr. Messer's report was the first Mr. Green had heard of the incident, or whether other employees had already reported the altercation to Mr. Green. (Compare ECF No. 60-6 (Mr. Messer testified that Mr. Green told him he had already heard of the incident from others) with (ECF No. 60-2 (Mr. Green testified that Mr. Messer made him aware of the incident)). In any event, after Mr. Messer's report, Mr. Green reported the altercation to Mr. Bill Pressler, Service Center Manager. (ECF No. 60-2 at 14; ECF No. 60-3 at 12). Mr. Green and Mr. Pressler then conducted an investigation that included interviewing several employees, which led to Mr. Green and Mr. Pressler uncovering the second incident on the dock that Mr. Messer had not witnessed. (ECF No. 60-2 at 30; id. at Ex. 1). Some of the employees told Mr. Pressler and/or Mr. Green that the fights involved profanity, racial slurs, and threats of violence. (ECF No. 60-3, 18-19; ECF No. 60-2 at 16). No. one stated the fights ever became physical, and everyone agrees that co-workers stepped in to separate Mr. McNair and Mr. Jackson before any physical altercation occurred. (ECF No. 60-2 at 18; ECF No. 60-4 at 57). In addition to conducting interviews, Mr. Green and Mr. Pressler reviewed security footage of the second altercation on the dock. (ECF No. 60-3 at 13; ECF No. 60-2 at 14, 29).

         Also on Monday, April 4, Mr. Green sent an email to Mr. John Collins, an Human Resources (“HR”) supervisor, explaining that there was an altercation on the dock between Mr. McNair and Mr. Jackson. (ECF No. 62-2, Ex. 2). The email states that Mr. Messer informed Mr. Green that Mr. Jackson told him that Mr. McNair threatened to shoot him and his family. (Id.). The email also states that Mr. Messer said he told Ms. Tina Stone (a Human Resources employee) that “they were pushing and had to be separated.” (Id.). Mr. Messer testified that he never spoke to Ms. Stone about the incident. (ECF No. 60-6 at 12-13). After reviewing the security footage, Mr. Green sent a follow up email to Mr. Collins, stating that the video shows that Mr. McNair “track[ed]” Mr. Jackson down, and that Mr. McNair “put his hand in [Mr. Jackson's] face which prompted [Mr. Jackson] to get off his lift . . . .”. (ECF No. 62-2, Ex. 2).

         The next day, on April 5, Mr. Pressler and Mr. Green met with Mr. Jackson and informed him that they were suspending him pending OD's investigation into the two altercations between him and Mr. McNair. (ECF No. 60-1 at 161-62). Around 6:30 in the morning on April 5, Mr. Jackson called Mr. Green and asked for the basis of his suspension. (Id. at 164). Mr. Green told him that he understood it to be harassment and threats of violence, to which Mr. Jackson responded that he was the one threatened and harassed. (Id.). Mr. Green responded that it was out of his hands, and that it was Mr. Pressler's decision. (Id.). Mr. Pressler called Mr. Jackson later that day and Mr. Jackson again asked why he was suspended. (Id. at 163). Mr. Pressler stated that he had not gotten word back from corporate on their decision and he was waiting to hear from them. (Id.).

         On April 6, Mr. Collins spoke to Mr. Jackson and Mr. McNair separately by telephone to hear their version of events. (Id. at 226, Ex J, K). Mr. Jackson and Mr. McNair's versions of events conflicted. (Id. at Ex. J, K). Later that day, Mr. Pressler called Mr. Jackson to tell him that that he was being terminated. (Id. at 163-64). Mr. McNair was also terminated. (ECF No. 60-4, Ex. D). Mr. Pressler told Mr. Jackson that he was terminated for “fighting on company property and causing a hostile work environment.” (ECF No. 60-1 at 160). Dissatisfied with the decision, Mr. Jackson followed up with Mr. Pressler's boss, Regional Vice President Craig Evans. (ECF No. 60-8 at 28-29). On April 11, Mr. Evans returned Mr. Jackson's phone call, and Mr. Jackson told him that he felt as though he was wrongfully terminated, but Mr. Evans stated that the termination of both parties would stand. (Id. at 29). Mr. Evans testified that he felt the investigation was thorough and handled properly, and an internal email from April 8 states that he agrees that both men should have been terminated. (Id. at 30; Ex. E).

         Following his termination, Mr. Jackson did not receive a notice that he was entitled to continue his health-insurance benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), so he contacted the U.S. Department of Labor (“DOL”). (ECF No. 60-1 at Ex. O). DOL then contacted OD. (ECF No. 6 at 15-16). OD typically uses a third-party vendor to send COBRA notices, as it did in Mr. Jackson's case, so after receiving notice from DOL, OD followed-up with the third-party vendor and learned that the notice was inadvertently sent only to the address provided for child support garnishments. (Id.). No. copy was sent to Mr. Jackson. OD then instructed its vendor to send notice to Mr. Jackson, and extended the COBRA election period to begin on the date the notice was sent. (Id.). Mr. Jackson declined COBRA coverage. (ECF No. 60-1 at 21-22).

         B. Procedural Background

         Mr. Jackson filed this lawsuit in the Franklin County Common Pleas Court on September 9, 2016. (ECF No. 1). OD removed the lawsuit to this Court on October 10, 2016. (Id.). In his complaint, Mr. Jackson alleges the following causes of action: (1) Family Medical Leave Act (“FMLA”) retaliation; (2) defamation; (3) racial discrimination in the form of disparate treatment; and (4) violations of COBRA. (ECF No. 3). On August 14, 2017, OD filed the instant Motion for Summary Judgment. (ECF No. 60). Mr. Jackson filed a Response on September 5, 2017 (ECF No. 63) and OD filed its Reply on September 20, 2017 (ECF No. 65). OD attached an affidavit by employee Ricardo Colon to its Reply. (ECF No. 65-1). On September 26, 2017, Mr. Jackson filed a Motion to Strike the Affidavit of Ricardo Colon (ECF No. 66). The Motion to Strike also purported to be a Sur-Reply to the Motion for Summary Judgment. (Id.). Mr. Jackson then officially moved for Leave to File Sur-Reply in Opposition to Defendant's Motion Summary Judgment on October 6, 2017. (ECF No. 68). The Motions for Summary Judgment, Leave to File Sur-Reply, and to Strike the Affidavit of Ricardo Colon are now fully briefed and ripe for decision.

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment is appropriate “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986)). The nonmoving party must then present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc.,8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital,964 F.2d 577, 582 (6th Cir. 1992). Summary ...


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