United States District Court, S.D. Ohio, Eastern Division
DISHAWN A. JACKSON, Plaintiff,
OLD DOMINION FREIGHT LINE, Defendant.
Magistrate Judge Vascura
OPINION AND ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
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.
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).
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.
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).
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).
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
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).
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).
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).
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
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).
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).
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.).
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).
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).
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.
STANDARD OF REVIEW
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 ...