Coleman v. City of Toledo

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

SAMMIE L. COLEMAN, CASE NO. 3:21 CV 1834

Plaintiff,

v. JUDGE JAMES R. KNEPP II

CITY OF TOLEDO,

MEMORANDUM OPINION AND

Defendant. ORDER

INTRODUCTION

This action arises out of Plaintiff Sammie L. Coleman’s claim that his employer, Defendant

City of Toledo (“the City”) discriminated and retaliated against him based on his race and

subjected him to a hostile work environment in violation of Title VII of the Civil Rights Act of

1964 and Ohio Revised Code § 4112.02. The matter now before the Court is Defendant’s Motion

for Summary Judgment (Doc. 28-1). Plaintiff opposed (Doc. 34), and Defendant replied (Doc. 38).

For the reasons set forth below, Defendant’s motion (Doc. 28-1) is granted in part and

denied in part.

BACKGROUND

Viewing the facts in the light most favorable to Plaintiff, the background of this case is as

follows:

Parties Involved

Plaintiff, an African American male, is a Street Maintenance Technician employed by

Defendant in the Division of Streets, Bridges, and Harbor. (Plaintiff Depo., at 16, 152)1. In this

role, Plaintiff maintains street surfaces and ensures crewmember safety. Id. at 15. Plaintiff is a

member of AFSCME Local 7 union. Id. at 16.

History of Complaints

Plaintiff began working for Defendant on October 24, 1994. Id. at 14. Allegations of

disparate treatment first arose on February 4, 2013, when Plaintiff filed a charge with the Ohio

Civil Rights Commission (“OCRC”) alleging he was denied promotion in favor of a less-qualified

Caucasian candidate. (Doc. 36, at 1). The second OCRC charge filed by Plaintiff, dated August 6,

2013, alleged Defendant unjustly discriminated and retaliated against Plaintiff in response to his

filing of the February 2013 OCRC charge. Id. at 2. On April 2, 2014, Plaintiff filed a charge with

the OCRC alleging he was treated differently than Caucasian coworkers because of his race and

in retaliation for filing previous charges against Defendant. Id. at 4. On July 5, 2017, Plaintiff filed

a charge with the OCRC alleging race discrimination and retaliation were causes of his advanced

discipline for behavior of which Caucasian coworkers committed but were not punished. Id. at 6.

On May 3, 2017, Plaintiff filed a charge with the OCRC alleging race discrimination and retaliation

were reasons why he was denied promotion in favor of a less-qualified Caucasian coworker. Id. at

7.

Alternate General Foreman

In October 2019, Defendant sought to fill an alternate general foreman position for a one-

day appointment. (Doc. 28-26, at 1). Alternate general foreman is a temporary position where an

1. Plaintiff’s Deposition is located at ECF Doc. 27.

employee assumes the duties and compensation of a general foreman when the general foreman is

unavailable. (Plaintiff Depo., at 20-21). Citing Plaintiff’s advanced discipline status, Defendant

denied him promotion to alternate on October 7, 2019. (Doc. 28-26, at 2). Later that same month,

Plaintiff filed a charge with the OCRC alleging race discrimination and retaliation as reasons he

was denied promotion to the position of alternate in favor a Caucasian coworker on a similar level

of advanced discipline. (Doc. 36, at 8). The OCRC found “probable cause” existed to believe

Defendant discriminated as Plaintiff alleged. (Doc. 18-1, at 3).

General Foreman

In November 2019, Defendant held structured oral interviews to establish a list of qualified

candidates for the position of General Foreman – Streets. (Doc. 28-10, at 2-3). The questions were

approved by Human Resources prior to the interviews. (Doc. 28-33, at 4). Sixteen candidates,

including Plaintiff, participated in the oral interviews. Plaintiff’s score of 38 placed him in a three-

way tie for third place. (Doc. 28-21). Defendant maintains a Position Control Committee, which

is responsible for final approval of all hiring and promotional appointments. (Doc. 28-28, at ¶ 5).

In December 2019, Deputy Chief of Staff Abby Arnold, who sat on the Position Control

Committee, received a memo from the Department of Public Service requesting approval to

promote two candidates from the oral interview list to the position of General Foreman – Streets.

Id. at ¶ 9. In response, Arnold placed a hold on filling the positions, citing her dissatisfaction with

the nature of the questions used in the interviews as the reason for her decision. Id. at ¶¶ 10-11.

Specifically, Arnold was concerned the questions were “lacking with regard to leadership ability”

and that she was not afforded the opportunity to approve the questions in advance. Id. She

thereafter learned of allegations that the structured interview questions from November 2019 may

have been improperly disseminated prior to the interviews. Id. at ¶ 12. The parties agree the

allegations of cheating were never substantiated. See Doc. 38, at 10; Doc. 34, at 16. Arnold ordered

the interviews be reconducted to include leadership questions. (Doc. 28-28, at 3). Because of

COVID-19, the interviews were postponed until January 2021. Id.

Of the fourteen candidates who interviewed in January 2021, Plaintiff ranked tenth with a

score of 15. (Doc. 25-25). Three of the top-ranking candidates, all Caucasian men, were

subsequently promoted to General Foreman – Streets: Jeffrey Neeper (scoring first); Douglas

McNulty (scoring third); and Robert Lawecki (tied for fourth). (Doc. 28-10, at 3). Plaintiff filed a

charge with the OCRC on February 17, 2021, alleging Defendant’s failure to promote him to

general foreman was due to race discrimination and retaliation. (Doc. 36, at 9).

Harassment

Plaintiff also brings claim of hostile work environment under 42 U.S.C. § 1981, Ohio

Revised Code § 4112.02, and 42 U.S.C. § 2000(e). (Doc. 18, ¶¶ 64, 67, 76, 82). Plaintiff testified

workplace harassment began in 2014, where several general foremen first used the nicknames

“Mokey” and “Don King” to refer to Plaintiff. (Plaintiff Depo., at 157). The use of these nicknames

continued for years, based on the appearance of Plaintiff’s hair. Id. at 136. Furthermore, Plaintiff

says he was told he would never be promoted while he wore his hair in an afro style. Id. at 134,

137. Plaintiff complained internally to Defendant about the harassment, but Defendant took no

action. Id. at 156-57.

STANDARD OF REVIEW

“Summary judgment is proper if the evidence, taken in the light most favorable to the

nonmoving party, shows that there are no genuine issues of material fact and that the moving party

is entitled to a judgment as a matter of law.” Hartman v. Great Seneca Fin. Corp., 569 F.3d 606,

611 (6th Cir. 2009) (internal quotation marks omitted); See, also, Fed. R. Civ. P. 56(a). This court

observes that when “reviewing a summary judgment motion, credibility judgments and weighing

the evidence are prohibited.” Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir. 2010) (internal

citations omitted). “The evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986).

DISCUSSION

Plaintiff alleges Defendant committed race discrimination, retaliation, and subjected him

to a hostile work environment in violation of Title VII and Ohio Revised Code § 4112.02. For the

reasons discussed below, Defendant’s motion is granted in part and denied in part as to the

discrimination and retaliation claims and granted in full on the hostile work environment claims.

Discrimination

Plaintiff brings claims of discrimination under Title VII and Ohio Revised Code § 4112.02.

“[F]ederal case law governing Title VII actions is generally applicable to cases involving alleged

violations of Chapter 4112.” Williams v. Ford Motor Co., 187 F.3d 533, 538 (6th Cir. 1999).

Title VII expressly prohibits employers from discriminating against employees based on

their race. See 42 U.S.C. § 2000e-2(a)(1). A Title VII discrimination claim “can be established

‘either by introducing direct evidence of [discrimination] or by proffering circumstantial evidence

that would support an inference of [discrimination].’” Laster v. City of Kalamazoo, 746 F.3d 714,

730 (6th Cir. 2014) (quoting Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 538 (6th

Cir. 2008)).

When Plaintiff puts forth circumstantial evidence of racial discrimination, the Court applies

the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under this framework, Plaintiff has the initial burden of establishing a prima facie case of

discrimination. To establish a prima facie case, Plaintiff must show by preponderance of the

evidence that (1) he was a member of a protected class; (2) he was qualified for the position; (3)

he suffered an adverse employment action; and (4) he was replaced by someone outside the

protected class or was treated differently than similarly situated, non-protected employees. Wright

v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006).

When Plaintiff establishes a prima facie case of discrimination, the burden shifts to

Defendant to articulate a legitimate, non-discriminatory reason for its action. Tex. Dep’t of Cmty

Affairs v. Burdine, 450 U.S. 248, 253 (1981) (quoting McDonnell, 411 U.S. at 802). Assuming

Defendant asserts a legitimate, nondiscriminatory reason, Plaintiff must show, by a preponderance

of the evidence, that Defendant’s proffered legitimate reasons were not its true reasons but were

instead pretext for discrimination. Id. at 253.

Defendant asserts it is entitled to summary judgment because there is no evidence to create

a genuine issue of material fact that (1) denial of promotion to the alternate general foreman

position in 2019 was not an adverse employment action, (2) Defendant had a legitimate,

nondiscriminatory reason to not promote Plaintiff to the general foreman position in 2021, and (3)

the use of nicknames to refer to Plaintiff did not create a hostile work environment. (Doc. 28-1, at

6-7). Defendant alternatively argues that even if Plaintiff satisfies his prima facie case, it is entitled

to summary judgment because Plaintiff failed to show pretext under the McDonnell Douglas

framework. (Doc. 28-1, at 20-21). Plaintiff contends there is evidence to overcome summary

judgment and references his deposition testimony describing “a pattern of discrimination”

spanning several years, as well as OCRC findings of probable cause, which constitute an adverse

employment action. (Doc. 34, at 14).

“At the outset, [the Court] notes that, while [Plaintiff] asserts a history of [discrimination]

dating back [to 2013], those prior claims are not properly before [the Court].” Schnapp v. FCA US

LLC, 2022 U.S. Dist. LEXIS 162426, *8 (N.D. Ohio). “Further, his OCRC charge only mentions

two specific instances of promotion denial –” those being, discrimination and retaliation charges

related to the (1) failure to promote to alternate general foreman in 2019 (Doc. 18, at ¶¶ 2-3); and

(2) failure to promote to general foreman in 2021 (id. at ¶ 11). Schnapp, 2022 U.S. Dist. LEXIS

162426, at *8. To assert a Title VII claim, the EEOC or OCRC “charge must be ‘sufficiently

precise to identify the parties, and to describe generally the action or practices complained of.’”

Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010) (quoting 29 C.F.R. §

1601.12(b)). And, “[a]s a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that

were not included in his EEOC charge.” Id.

Thus, Plaintiff’s argument – that the history of discrimination dating back to 2013, and the

associated probable cause findings by the OCRC, satisfies his prima facie case of discrimination

– is insufficient, as his claims are limited to those charges included in the EEOC and OCRC that

form the basis of Plaintiff’s amended complaint (Doc. 18). Id. (“[A]n employee alleging

employment discrimination in violation of the statute must first file an administrative charge with

the EEOC within a certain time after the alleged wrongful act or acts.”). For this Court’s

consideration, Plaintiff’s prima facie case is limited to the circumstances of the 2019 and 2021

charges submitted to the OCRC and EEOC.

2019 Alternate General Foreman

In relation to the 2019 charge for failure to promote to the alternate general foreman

position, Defendant “agree[s] that for purposes of summary judgment, Coleman meets the first,

second and fourth prongs (he is a member of a protected class, is qualified to work as an alternate

general foreman, and Kohne is not a member of a protected class).” (Doc. 28-1, at 18). However,

Defendant argues Plaintiff is unable to satisfy the final prong of his prima facie case because

“denial of a one-day assignment” is de minimis and does not rise to the level of an adverse

employment action under the Sixth Circuit framework. Id. at 18-19.

Under the applicable collective bargaining agreement, an “alternate is an employee who is

temporarily assigned to perform duties outside the employee’s regular classification.” (Doc. 28-4,

at 5). Alternates may be temporarily assigned to replace an employee who has time off, to fill a

vacant position, to temporarily supplement the staffing level authorized in the budget, and to

provide training opportunities and credit. Id. When selecting an alternate, “[c]onsideration shall be

given to seniority, experience, work record/performance, attendance, disciplinary record,

education/training, demonstrated ability to perform the job and divisional training needs.” Id. at 6.

The alternate general foreman position is temporary, lasting only “a couple days” in Plaintiff’s

experience with the role. (Plaintiff Depo., at 21). In terms of benefits, the position affords

approximately six dollars more per hour than Plaintiff’s standard pay rate. Id. at 103. An employee

in the alternate foreman position is paid $50-$100 more per day, depending on the number of hours

worked, than standard pay. Id. at 104.

“There can be no question that denial of a promotion, even if it is only to a temporary

position, can constitute an adverse employment action.” Elam v. D.C. Fire & EMS Dep’t, 2005

U.S. Dist. LEXIS 16936, *17 (D.D.C. 2005) (citing Hunt v. City of Markham, 219 F.3d 649, 654

(7th Cir. 2000)). However, the “loss of a bonus is not an adverse employment action in a case

where the employee is not automatically entitled to the bonus[.]” Miller v. American Family Mut.

Ins. Co., 203 F.3d 997, 1006 (7th Cir. 2000) (cleaned up).

The Sixth Circuit’s holding in Jordan v. City of Cleveland, although considered under the

similar but distinct “materially adverse action” standard used in Title VII retaliation claims,

provides guidance on whether denial of a temporary assignment constitutes an adverse

employment action. 464 F.3d 584 (6th Cir. 2006). The plaintiff in Jordan was an African American

firefighter working for Cleveland’s Division of Fire. Id. at 589. He submitted complaints detailing

racial harassment and discrimination for, inter alia, the denial of “acting time”. Id. at 595. “Acting

time . . . occurs when there is no officer designated to work on a shift. According to Division

policy, acting time is granted on the basis of (1) vacancy and (2) seniority. Jordan was denied

acting time, despite being the senior firefighter on his shift, on three specific occasions identified

in the record.” Id. When a firefighter “‘acts’ as a Lieutenant, he gets paid as a Lieutenant for the

entire shift.” Id. at 596. The Jordan court held “[t]hat denial of money would more than amply

qualify as a materially adverse action as to any reasonable employee for Title VII purposes.” Id.;

see also Conti v. Am. Axle & Mfg., 326 F. App’x 900, 912 (6th Cir. 2009) (citing Jordan with

approval in the Title VII discrimination context where an employee was denied benefits and

promotion compared to employees outside of the protected class).

In Bowman v. Shawnee State University, the Sixth Circuit recognized “de minimis

employment actions are not materially adverse and, thus, not actionable.”220 F.3d 456, 462 (6th

Cir. 2000). Bowman held that “[s]imilar to cases where the employment action is not significant

enough to rise to the level of a materially adverse employment action, cases where the employment

action, while perhaps being materially adverse if permanent, is very temporary also do not

constitute materially adverse employment actions.” Id. The court supported this proposition with

the following authority:

Jacklyn v. Schering-Plough HealthCare Prod., 176 F.3d 921, 930 (6th Cir. 1999)

(holding that “neither requiring plaintiff to work at home while she was recovering

from out-patient surgery, nor rejecting computer expenses that previously had been

approved, were materially adverse employment actions”); Jackson v. City of

Columbus, 194 F.3d 737 (6th Cir. 1999) (holding that police chief’s suspension

with pay was not an adverse employment action); Hollins v. Atlantic Co., 188 F.3d

at 662 (6th Cir. 1999) (holding that “satisfactory ratings in an overall evaluation,

although lower than a previous evaluation, will not constitute an adverse

employment action where the employee receives a merit raise”); Kocsis v. Multi-

Care Management, 97 F.3d 876, 885 (6th Cir. 1996) (holding that “reassignments

without salary or work changes do not ordinarily constitute adverse employment

decisions in employment discrimination claims”).

Id. The Bowman court concluded “the removal of [the plaintiff] from the Coordinator position for

only approximately ten days with no loss of income is properly characterized as a de minimis

employment action that does not rise to the level of a materially adverse employment decision.”

Id.

The Court finds the adverse employment action at issue here is more analogous to Jordan

than Bowman, and therefore is not de minimis. In Bowman and the cases upon which it relies, the

temporary employment actions did not entail monetary loss. Conversely, Defendant passing over

Plaintiff in favor of an employee outside of the protected class who had less experience and

seniority, and thus preventing Plaintiff from earning alternate general foreman wages, is analogous

to facts of Jordan and Conti.

Because Plaintiff has shown an adverse employment action, he has satisfied his prima facie

case for summary judgment purposes.

Legitimate, Non-discriminatory Reason

The burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for its

action. Burdine, 450 U.S. at 253. Defendant fails to do so here.

“[Defendant’s] explanation of its legitimate reasons must be clear and reasonably specific

and supported by admissible evidence which would allow the trier of fact rationally to conclude

that the employment decision was not motivated by discriminatory animus.” Russell v. Three

Pillars, 2022 U.S. App. LEXIS 3565, *7 (6th Cir.). Defendant’s explanation is based upon

Plaintiff’s testimony that Calzone selected Kohne for the alternate general foreman position

because Calzone thought Kohne was best for the job. (Doc. 28-1, at 20). However, this does not

explain why Plaintiff, who was on the same disciplinary step as Kohne, was excluded from

consideration for the alternate general foreman position.

Defendant has not provided a clear and reasonably specific legitimate reason for the

employment decision that is supported by admissible evidence and is therefore not entitled to

summary judgment on the discrimination claim related to the 2019 alternate general foreman

position.

2021 General Foreman

Defendant argues Plaintiff is unable to establish his prima facie case concerning the failure

to promote him to general foreman in 2021.

To establish a prima facie case in the context of a failure to promote claim, Plaintiff must

prove that “(1) [he] is a member of a protected class; (2) [he] applied for and was qualified for a

promotion; (3) [he] was considered for and denied the promotion; and (4) other employees of

similar qualifications who were not members of the protected class received promotions at the

same time [his] request for promotion was denied.” Warf v. United States VA, 713 F.3d 874, 879

(6th Cir. 2013) (citing Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000)).

Defendant agrees that Plaintiff satisfies the first three elements: (1) he is a member of a protected

class, (2) he applied for and was qualified for the position, and (3) he was considered for and

denied the position. (Doc. 28-1, at 15-16). Defendant contends Plaintiff is unable to satisfy the

fourth prong – that other employees of similar qualifications who are not members of his protected

class received the promotion.

Plaintiff’s opposition brief does not address Defendant’s arguments for summary judgment

regarding the discrimination claims based on the failure to promote to general foreman. See Doc.

34, at 13-15. In the Sixth Circuit, when a nonmovant fails to substantively respond to a motion for

summary judgment, the nonmovant forfeits the issues and arguments. Hill v. Whitford, 2021 U.S.

App. LEXIS 24897, *8 (6th Cir.); Lyons v. Mackey, 615 F.2d 1361, 1361 (6th Cir. 1980). However,

“a district court may not use a party’s failure to respond (in whole or in part) as a reason for

granting summary judgment without first examining all the materials properly before it under Rule

56(c).” Hill, 2021 U.S. App. LEXIS 24897, at *8. (internal quotation omitted). But a district court

need not “comb the record from the partisan perspective of an advocate for the non-moving

party[.]” Id. at *9 (quoting Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 410 (6th Cir. 1992)).

Defendant contends Plaintiff was not similarly qualified to the members outside of his

protected class who received the promotion because all promoted employees scored better on the

2021 interviews. (Doc. 28-1, at 21). Defendant relies on the interview score results which are

attached to the declaration of Kelly Murphy, a manager in Defendant’s Department of Human

Resources. (Doc. 28-25). Defendant has thus pointed to evidence establishing Plaintiff was not

similarly qualified. Plaintiff has not provided evidence to contradict this. Because Plaintiff bears

the initial burden to demonstrate a prima facie case of discrimination, and he has not done so in

the context of the alleged failure to promote to the general foreman position, Defendants are

accordingly entitled to summary judgment.

Retaliation

Plaintiff argues Defendant illegally retaliated against him after he filed a charge of

discrimination on October 24, 2019, by failing to promote him to general foreman following the

December 2019 testing and interview process. (Doc. 34, at 15). Defendant contends Plaintiff is

unable to show a causal connection between the protected activity and its decision to not promote

Plaintiff. (Doc. 28-1, at 26-27). In reply, Defendant argues none of Plaintiff’s evidence shows

pretext. (Doc. 38, at 10-11).

“Because [Plaintiff] did not present any direct evidence of discrimination or retaliation on

the part of the defendants, [the Court] must analyze [his] . . . retaliation claims in accordance with

the burden-shifting framework set forth in [McDonnell Douglas.]” Wohadlo v. TentCraft, Inc.,

2022 U.S. App. LEXIS 14621, *10 (6th Cir.). To show a prima facie case of retaliation, Plaintiff

must show (1) he engaged in protected activity under Title VII, (2) his employer knew about it,

(3) his employer took an adverse employment action against him, and (4) the adverse action was

causally related to the protected activity. Id. “If a plaintiff establishes a prima facie case, the burden

then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse

employment action. If the defendant satisfies its burden, the burden then shifts back to the plaintiff

to establish that the stated reason was pretextual.” Id. at *10-11 (internal citation omitted).

Plaintiff argues that he can show a question of fact regarding a causal relationship by

temporal proximity, perceived prejudicial comments made by examiners, the decision to disqualify

the first round of test scores at which Plaintiff scored third, the removal of the African American

examiner on the testing panel for the second round of interviews, and unsubstantiated reasons for

administering a second test. (Doc. 34, at 15-16). 2

The parties agree Plaintiff filed a charge with the OCRC on October 24, 2019, alleging he

was denied promotion to the alternate general foreman position as a result of racial discrimination.

See Doc. 28-1, at 8; Doc. 34, at 2.

2. Defendant argues Plaintiff cannot meet the materially adverse action prong regarding the failure

to promote to alternate general foreman. Plaintiff does not identify any prima facie elements related

to that claim, and instead singularly argues retaliation related to the failure to promote to general

foreman position. See Doc. 34. Therefore, insofar as Plaintiff pled retaliation claims related to the

alternate foreman position, he has not satisfied his prima facie case, and Defendant is entitled to

judgment accordingly.

In 2019, Defendant sought to fill a general foreman position. (Doc. 28-10, at ¶ 9).

Interviews were conducted in November 2019. Id. The interviews involved an oral examination

where interviewees’ answers were scored based upon pre-determined best responses. Id. During

the November interviews, one of the interviewers made a comment to the interviewing panel that

two Caucasian employees were good guys, but commented Plaintiff was a troublemaker shortly

before he entered the room. (Doc. 36, at 23). One interviewer, Mark Riley, averred the comments

were inappropriate. Id.

Plaintiff’s score of 38.00 points on the interview placed him in a tie for third-highest score

with Paul Cooper and Anthony Foster and at a lower score than Robert Lawecki and Richard

Mowery. (Doc. 28-21). Douglas McNulty and Jeffrey Neeper scored lower than Plaintiff. Id. A

memorandum requesting promotion based upon those scores was sent to Arnold, who found the

interview questions were “lacking with regard to leadership ability” and placed a hold on the

promotions. (Doc. 28-28, at 1-2). She thereafter learned of the allegations that the structured

interview questions may have been compromised and ordered the interviews be reconducted. Id.

at 3. Those allegations were never substantiated.

Plaintiff scored tenth on the January 2021 structured interviews. (Doc. 28-25). Mark Riley,

the African American panelist who complained of inappropriate comments during the November

2019 interview process, was not included on the panel for the readministered interviews. (Doc. 36,

at 23). Three Caucasian employees, Jeffrey Neeper, Douglas McNulty, and Robert Lawecki, were

promoted to general foreman based upon the 2021 interviews. (Doc. 28-10, at 3).

Prima Facie Case

To satisfy the causation prong, “[Plaintiff] must demonstrate that there was a causal

connection between [his] protected activity and the adverse employment action taken against

[him], meaning that but-for [his] protected activity,” he would have been promoted to general

foreman. Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 348-349 (6th Cir. 2021). “At the

prima facie stage, this burden ‘is not onerous,’ and can be met through ‘evidence that defendant

treated the plaintiff differently from similarly situated employees or that the adverse action was

taken shortly after the plaintiff’s exercise of protected rights.’” Id. at 349 (quoting George v.

Youngstown State Univ., 966 F.3d 446, 460 (6th Cir. 2020)).

Plaintiff has produced evidence sufficient to create a genuine issue of material fact

regarding the “causal relationship” prong for purposes of overcoming summary judgment. By

scoring third during the November interviews, Plaintiff was qualified for promotion, given three

candidates were ultimately promoted. Further, he scored higher on the November interview than

two of the candidates who were ultimately promoted. The decision to vacate Plaintiff’s qualifying

score and to readminister the interviews occurred just two months after he filed a claim of

discrimination. Coupled with the comments by the interview panelist that Plaintiff was a

“troublemaker” – which a jury could find refers to engagement in a protected activity shortly prior

to the interviews – a jury could find under the non-onerous standard that but for Plaintiff’s

protected activity, he would have been promoted to general foreman.

Legitimate, Non-Discriminatory Reason

The burden shifts to Defendant to articulate a legitimate, non-discriminatory reason for its

action. Burdine, 450 U.S. at 253. “[Defendant’s] explanation of its legitimate reasons must be clear

and reasonably specific and supported by admissible evidence which would allow the trier of fact

rationally to conclude that the employment decision was not motivated by discriminatory animus.”

Russell, 2022 U.S. App. LEXIS 3565, *7.

Defendant attempts to satisfy its burden by contending the December 2019 interview

results were disregarded for two non-discriminatory reasons, those being (1) the questions failed

to test leadership qualities, and (2) because of allegations the first interviews were compromised.

(Doc. 28-1, at 21). Each of these reasons provide a clear legitimate reason as to why Defendant

chose to disregard the first interviews, and both are likewise supported by admissible evidence.

See Doc. 28-28. Defendant has satisfied its burden which now shifts to Plaintiff to show the

proffered reasons are pretextual.

Pretext for Discrimination

To overcome summary judgment, Plaintiff must show the proffered reasons were not the

actual reasons but were instead pretext for discrimination. Buggs v. FCA US, LLC, 2023 U.S. App.

LEXIS 1591, *9 (6th Cir.). A plaintiff can establish pretext by showing that the proffered reasons

“(1) had no basis in fact; (2) did not actually motivate the [adverse employment] action; or (3)

[were] insufficient to warrant the [adverse employment] action.” Brown v. Kelsey-Hayes Co., 814

F. App’x 72, 80 (6th Cir. 2020) (quoting Hostettler v. Coll. of Wooster, 895 F.3d 844, 858 (6th

Cir. 2018)). Plaintiff “must produce ‘sufficient evidence from which a jury could reasonably reject

[the employer’s] explanation’” for its actions. Id. (quoting Chen v. Dow Chem. Co., 580 F.3d 394,

400 (6th Cir. 2009)). The Sixth Circuit has held that “[m]ere conjecture that the employer’s

explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary

judgment.” Lindsay v. Yates, 578 F.3d 407, 421 (6th Cir. 2009) (quoting Peters v. Elec. Co., 285

F.3d 456, 470 (6th Cir. 2002)). “[S]ummary judgment is appropriate . . . if the plaintiff only created

a weak issue of fact as to whether the defendant’s reason was untrue and there is ample evidence

to support the employers position.” Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496,

504 (6th Cir. 2007).

Although Plaintiff does not specify, the Court interprets his brief as to argue under the “did

not actually motivate” method for showing pretext. See Doc. 34, at 16. “Plaintiff can establish

pretext by showing that it was more likely than not that Defendants terminated Plaintiff based on

an illegal motivation. Put another way, Plaintiff must show that the sheer weight of the

circumstantial evidence of discrimination makes it more likely than not that the employer’s

explanation is a pretext, or coverup.” Abdulnour, 502 F.3d at 503.

Plaintiff has produced sufficient evidence for a reasonable juror to find it more likely than

not that Defendant’s decision to not promote him was based on retaliatory intent. This evidence

includes (1) temporal proximity to the protected activity; (2) inappropriate comments made by a

panelist; (3) suspect timing of the decision to readminister the interviews; and (4) the lack of

substantiating evidence showing the interview questions were compromised.

Temporal Proximity

“While temporal proximity may be sufficient to show causation, it alone is not sufficient

to demonstrate pretext.” Green v. Wal-Mart Stores, East, L.P., 2013 U.S. Dist. LEXIS 89019, *22

(S.D. Ohio). However, “[t]emporal proximity combined with other evidence also supports a

finding of []pretext.” Stout v. Berry Ins. Grp., 2021 U.S. Dist. LEXIS 154420, *15 (S.D. Ohio).

The Sixth Circuit has held “suspicious timing is a strong indicator of pretext when accompanied

by some other, independent evidence.” Bell v. Prefix, Inc., 321 F. App’x 423, 431 (6th Cir. 2009).

The parties agree Plaintiff engaged in the protected activity of filing a discrimination

complaint in October 2019. See Doc. 28-1, at 8; Doc. 34, at 2. The decision to disregard Plaintiff’s

qualifying score occurred less than two months later in December 2019. (Doc. 28-28, at 3). The

suspect timing of the action therefore weighs in favor of finding Defendant’s purported reason to

be pretext for discrimination.

Inappropriate Comments

As stated above, one interviewer described Plaintiff as a troublemaker to the other

interviewers shortly before Plaintiff’s interview began. (Doc. 36, at 23). The interviews were

conducted in November 2019, just weeks after Plaintiff filed a charge of discrimination. (Doc. 28-

10, at ¶ 9). The inappropriate nature of the comment garnered a complaint from another

interviewer. (Doc. 36, at 23). Plaintiff’s disciplinary record shows he had not been disciplined in

over a year. (Doc. 28-8). He was last disciplined for failure to provide medical proof of illness

after using sick pay benefits in 2018. Id. Given the timing of Plaintiff’s last discipline and the close

temporal proximity to his protected activity, a reasonable juror could find comments that Plaintiff

was a “troublemaker” (thus implying he is not suitable for promotion) as pretext for retaliatory

intent because the comments could be in reference to the protected activity.

Suspect Timing

In tandem with the suspect timing discussed above, the timing of Arnold’s decision to

reconduct the interviews is also suspect. That decision occurred after the first interviews were

scored and submitted to the Department of Public Service in a request to promote two employees

to general foreman. (Doc. 28-28, at 2). The record shows the November interview questions had

previously been approved by Human Resources. (Doc. 28-33, at 4). That preapproved questions

were deemed unsatisfactory only after candidates were scored and ranked raises an inference of

nonlegitimate motivations. A reasonable juror could conclude the decision to reconduct the

interviews was made because management was dissatisfied with the candidates who scored

highest.

Compromised Interview Questions

One of the nondiscriminatory reasons offered by Defendant is that the questions to the first

interviewees had been circulated prior to the interview and the process was therefore

compromised. (Doc. 28-1, at 13). However, the record does not show that this purported reason

was a significant motivating factor in Defendant’s decision to reconduct the interviews. First,

Defendant had already placed a hold on filling the positions prior to the allegations of cheating.

(Doc. 28-28, at 12). Second, the purported allegation is limited to a complaint from an employee,

Nancy Macias, that she heard rumors Paul Cooper and Robert Lawecki had conversations about

the test questions prior to the November interviews. (Doc. 28-30). The record shows Macias did

not have firsthand knowledge of the conversation, the allegations were never substantiated, no

employee was ever disciplined, and there is no evidence those allegations were ever investigated.

Cf., id.

In the Sixth Circuit, “summary judgment is appropriate . . . if the plaintiff only created a

weak issue of fact as to whether the defendant’s reason was untrue and there is ample evidence to

support the employer’s position.” Abdulnour, 502 F.3d at 504. Because Plaintiff created an issue

of fact supported by evidence of temporal proximity, suspect timing, and inappropriate comments

related to his interview, and because Defendant did not provide ample evidence supporting its

position, a reasonable juror could find it was more likely than not that Defendant’s decision to

disregard Plaintiff’s score and deprive him of promotion to be rooted in retaliatory intent.

Defendant’s motion is accordingly denied.

Hostile Work Environment

Plaintiff claims Defendant created a hostile work environment based on race under Title

VII and Ohio Revised Code § 4112.02. To establish a prima facie case, Plaintiff must show that

“(1) he belongs to a protected group; (2) he was subject to unwelcomed harassment; (3) that

harassment was based on race; (4) the harassment was sufficiently severe or pervasive to alter the

conditions of his employment; (5) the employer knew or should have known about the harassment

and failed to take appropriate remedial action.” Strickland v. City of Detroit, 995 F.3d 495, 503

(6th Cir. 2021) (citing Khalaf v. Ford Motor Co., 973 F.3d 469, 482 (6th Cir. 2020)).

Prima Facie Case

In its motion for summary judgment, Defendant stipulates Plaintiff is a member of a

protected class and was subject to unwelcomed harassment. (Doc. 28-1, at 28). Defendant contends

there is no evidence the alleged harassment was race-based or sufficiently severe or pervasive to

alter the conditions of employment and create an abusive work environment. Id.

Harassment Based on Race

Plaintiff can demonstrate discriminatory harassment by either pointing to the use of race-

specific and derogatory terms or by “offer[ing] direct comparative evidence about how the alleged

harasser treated members” of other racers. Strickland, 995 F.3d at 503 (quoting Oracle v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998)). Defendant argues that the nicknames

“Mokey” and “Don King” used toward Plaintiff were not race-based because three of the foremen

using the nicknames are the same race as Plaintiff. (Doc. 28-1, at 28). However, “there can . . . be

racial discrimination within the same race. . . .” Williams v. Wendler, 530 F.3d 584, 587 (7th Cir.

2008). Plaintiff testified “Mokey” is a derogatory term used in reference to an African American

person’s hair (Plaintiff Depo., at 28). “Don King” is a comparison to American boxing promoter

Don King, who was also African American. Id. at 137. Defendant maintains the comparison was

made in reference to Plaintiff’s hair, not his race. (Doc. 28-1, at 28). This court has held that

nicknames are racially charged when they refer to Plaintiff’s identity as an African American.

Lumpkin v. Adalet/Scott Fetzer Co., 2017 U.S. Dist. LEXIS 73594, *13 (N.D. Ohio). Recognizing

Plaintiff’s hairstyle is a part of his identity, this Court find at least one of the nicknames, “Don

King,” to be race-based.

Sufficiently Severe or Pervasive

To the extent Plaintiff establishes the alleged harassment was race-based, Defendant argues

the name calling was not sufficiently severe or pervasive enough to create an abusive work

environment. To satisfy this prong, the harassment must create a hostile work environment, which

exists when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that

is sufficiently severe or pervasive to alter the conditions of the victim’s employment . . . .” Smith

v. Rock-Tenn Servs., Inc., 813 F.3d 289, 309 (6th Cir. 2016) (quoting Harris v. Forklift Sys., 510

U.S. 17, 21 (1993)). In the instant case, Plaintiff claims the name calling began in 2014 and

continued until the present action. (Plaintiff Depo., at 157). Factors to consider include “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.” Williams v. CSX Transp. Co., 643 F.3d 502, 512 (6th Cir. 2011).

In his deposition, Plaintiff categorized the nicknames as “jokes,” occurring “here and

there.” (Plaintiff Depo., at 157). He claims he complained internally regarding the name calling

but “was not one to go crying because someone called [him] ‘Mokey’ or ‘Don King.’” Id. The

evidence suggests the nicknames, while not isolated, are more similar to an offensive utterance

than physical threats or humiliation. There is no evidence in the record to indicate the comments

made by the foremen unreasonably interfered with Plaintiff’s work performance. The Sixth Circuit

has held that occasional offensive utterances are do not meet the threshold of creating a hostile

work environment. Grace v. USCAR, 521 F.3d 655, 679 (6th Cir. 2008). “To hold otherwise would

risk changing Title VII into a code of workplace civility, a result we have previously rejected.” Id.

(internal quotation marks omitted). Although offensive to Plaintiff, the alleged statements are not

sufficiently severe or pervasive to satisfy the fourth prong of Plaintiff’s prima facie case.

Defendant is therefore entitled to summary judgment on Plaintiff’s hostile work environment

claim.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendant’s Motion for Summary Judgment (Doc. 28-1) be, and the same

hereby is, GRANTED IN PART AND DENIED IN PART as set forth herein. Plaintiff’s

discrimination claim based on failure to promote to alternate general foreman in 2019 and

Plaintiff’s retaliation claim based on failure to promote to general foreman in 2021 remain.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE