Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JEREMIE MONTGOMERY, )

)

Plaintiff, )

)

v. )

) Case No. 3:23-cv-01262

INTERNATIONAL BROTHERHOOD ) Judge Aleta A. Trauger

OF ELECTRICAL WORKERS )

AFL-CIO (IBEW) LOCAL 429 and )

CONTI CORPORATION, )

)

Defendants. )

MEMORANDUM

Pro se plaintiff Jeremie Montgomery, a former electrical worker for Conti Corporation

(“Conti”), brings suit against Conti and the International Brotherhood of Electrical Workers Local

429 (the “Union”), asserting claims of race discrimination and retaliation in violation of Title VII

of the Civil Rights Act of 1964 (“Title VII) and 42 U.S.C. § 1981. (Am. Compl., Doc. No. 52.)

The case was referred to the Magistrate Judge for the disposition or recommended disposition of

any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B). (Doc. No. 7.)1

Pursuant to that referral, the Magistrate Judge has issued a Report & Recommendation

(“R&R”) (Doc. No. 119), recommending that (1) the Motion for Summary Judgment filed the

1 The original Complaint (Doc. No. 1) also asserted a claim under § 301 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 183, for breach of the collective bargaining

agreement between Conti and the Union. In an earlier phase of this litigation, the court accepted

the Magistrate Judge’s recommendation to dismiss the LMRA claim against both defendants as

time-barred and to dismiss the Title VII claim and the § 1981 retaliation claim against the Union

for failure to state a claim for which relief may be granted. (Doc. Nos. 41, 42.) The Amended

Complaint sets forth a § 1981 discrimination claim against the Union and Title VII and § 1981

discrimination and retaliation claims against Conti.

Union (Doc. No. 89) be granted; and (2) the Motion for Summary Judgment filed by Conti (Doc.

No. 96) be granted in part and denied in part.

Now before the court are (1) plaintiff Jeremie Montgomery’s Objections to both

recommendations, filed with a supporting Memorandum (Doc. Nos. 123, 124); and (2) Conti’s

“Partial Objection” (Doc. No. 125), objecting to that part of the R&R recommending that summary

judgment be denied as to the plaintiff’s retaliation claim against Conti. The Union and Conti both

filed Responses to the plaintiff’s Objections, and the plaintiff filed a Response to Conti’s Partial

Objection. (Doc. Nos. 126, 127, 128.) For the reasons set forth herein, the court will overrule the

plaintiff’s Objections and sustain Conti’s. The R&R will be accepted in part and rejected in part,

and both Motions for Summary Judgment will be granted in their entirety.

I. STANDARD OF REVIEW

A. Review of Report and Recommendation

Within fourteen days after being served with a report and recommendation as to a

dispositive matter, any “party may serve and file specific written objections to [a magistrate

judge’s] proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). The district court

must review de novo any portion of the report and recommendation “that has been properly

objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, the district court “may accept,

reject, or modify the recommended disposition; receive further evidence; or return the matter to

the magistrate judge with instructions.” Id. However, the district court is not required to review—

under a de novo or any other standard—those aspects of the report and recommendation to which

no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt

the magistrate judge’s findings and rulings to which no specific objection is filed. Id. at 151.

Although pro se pleadings and filings are held to less stringent standards than those drafted

by lawyers, see, e.g., Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro se litigants are not

entirely exempt from the requirements of the Federal Rules of Civil Procedure. See, e.g., Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989).

B. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, any party “may move for summary judgment,

identifying each claim or defense . . . on which summary judgment is sought.” Fed. R. Civ. P.

56(a). “The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.

In moving for or responding to a motion for summary judgment, the “party asserting that

a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts

of materials in the record” or by “showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.” Fed. R. Civ. P. 56(c)(1). “A party may object that the material cited to support

or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ.

P. 56(c)(2).

By its very terms, Rule 56 anticipates “that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). In other words, even if genuine,

a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating

a motion for summary judgment. On the other hand, “summary judgment will not lie if the dispute

about a material fact is ‘genuine.’” Id. at 248.

“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect

the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d

718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). A dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the non-moving party.” Peeples v. City of

Detroit, 891 F.3d 622, 630 (6th Cir. 2018).

In ruling on a motion for summary judgment, it is not the judge’s function to make

credibility determinations, “weigh the evidence[,] and determine the truth of the matter, but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In determining

whether a genuine issue of material fact exists, the court must assume as true the evidence of the

nonmoving party and draw all reasonable inferences in that party’s favor. Id. at 255; Tolan v.

Cotton, 572 U.S. 650, 660 (2014). However, the “mere existence of a scintilla of evidence in

support of the” nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S.

at 252. “There must be evidence on which the jury could reasonably find for the [nonmoving

party].” Id. The inquiry, therefore, “asks whether reasonable jurors could find by a preponderance

of the evidence that the” nonmoving party is entitled to a verdict. Id.

II. BACKGROUND

Montgomery, who is Black, alleges that he was a Union member covered by a collective

bargaining agreement (“CBA”) and that he was employed as an electrician by Conti on the Federal

Courthouse project in downtown Nashville, from March 3, 2021 until he was wrongfully

terminated on May 26, 2021. (Doc. No. 52 ¶ 1.) He alleges that he was terminated immediately

after he made a verbal grievance against a foreman, Jimmy Allen. (Id. ¶¶ 2, 109–10.) Montgomery

alleges that Allen had “an ongoing pattern of bullying and harassing union employees,” making

“racially insensitive statements praising the KKK,” and “blatantly disrespect[ing] Montgomery.”

(Id. at 2.)

Montgomery reported a verbal altercation with Allen to “NJACT [Joint Apprenticeship

and Training Committee] director Stephen Hall.” (Id.) Hall asked Montgomery if he wanted to be

moved to a different work site. Montgomery objected that he should not be the one moved; he

wanted Allen to be reprimanded. Hall called Conti’s Director of Operations for Nashville, Todd

Roberts. Roberts allegedly told Hall that the Federal Courthouse project was nearing completion,

that Allen’s “experience was needed at the courthouse to complete the project,” and that Conti

“could not afford to discipline Allen prior to the project deadline.” (Id.) Montgomery alleges that

“Roberts chose to terminate Montgomery’s contract against his will.” (Id. at 2–3.) Based on these

actions, Montgomery alleges that he was terminated illegally, without just cause and in violation

of the CBA. He asserts race discrimination and retaliation claims under Title VII and § 1981

against Conti and a race discrimination claim against the Union under § 1981. (Id. at 24–30.)

Montgomery filed a discrimination complaint with the Tennessee Human Rights

Commission and EEOC in May 2021 and received his Notice of Right to Sue in September 2023.

(See Doc. No. 1-1.)

Following contentious discovery and motion practice, the Union now seeks summary

judgment on the single § 1981 claim against it on the grounds that (1) the actions of Stephen Hall,

as an agent of the NJACT cannot be attributed to the Union; (2) Montgomery did not bring his

requests to file a race-related grievance against Conti to Union representatives within the time limit

set forth in the CBA for filing grievances; and (3) Montgomery has no evidence that Hall or any

Union representative was motivated by discriminatory animus against Montgomery. (See

generally Doc. No. 90.)

The R&R, after a comprehensive review of Montgomery’s arguments in opposition to the

Union’s motion, the evidence in the record, and the applicable legal standards, recommends that

the Union’s motion be granted. The R&R specifically finds that (1) the NJATC is an independent

legal entity, and the plaintiff has not presented any evidence suggesting that Hall, as assistant

director of the NJACT, acted as an agent of the Union under ordinary common-law agency

principles; (2) Montgomery brought his complaints about Conti to Union representatives long after

the ten-day deadline for doing so set forth in the CBA, such that their failure to pursue the

grievance cannot be deemed discriminatory; and (3) the plaintiff has presented no evidence, direct

or circumstantial, that would permit a reasonable jury to find that Hall or the Union representatives

were motivated by a discriminatory animus. (Doc. No. 119 at 10–11.)

Conti seeks summary judgment on all claims against it as well. (Doc. No. 96.) It argues

that (1) the plaintiff fails to present evidence sufficient to establish the existence of a hostile work

environment; (2) the discrimination claims under both Title VII and § 1981 fail because the

plaintiff lacks evidence of disparate treatment; and (3) Conti is entitled to summary judgment on

the retaliation claims under both statutes because (a) Montgomery lacks sufficient evidence to

establish a causal connection between his protected activity and any adverse employment action

by Conti on May 26, 2021 or anytime after that, and (b) he cannot show that Conti’s legitimate,

non-retaliatory reasons for laying off the plaintiff are pretextual. (See generally Doc. No. 97.)

Based on an equally thorough review of the factual support for Conti’s motion, the

plaintiff’s countervailing evidence, and the applicable law, the R&R recommends that Conti’s

motion be granted in part. Specifically, it recommends summary judgment for Conti on the

plaintiff’s discrimination claims (under both Title VII and § 1981) arising from his termination—

which Conti characterized as a layoff—based on the plaintiff’s failure to show that Conti’s

proffered legitimate, non-discriminatory reasons for his termination/layoff are pretext for

discrimination. (Doc. No. 119 at 18.) The R&R recommends summary judgment on the plaintiff’s

hostile work environment claim based on the plaintiff’s failure to allege facts showing that he was

subjected to an objectively hostile work environment. (Id. at 19–20.) Regarding the plaintiff’s

retaliation claim, however, the R&R finds that the plaintiff has presented sufficient evidence to

state a prima facie case, including sufficient evidence from which a reasonable jury could draw

the inference that the plaintiff’s position was terminated because he engaged in protected activity,

and sufficient evidence that Conti’s proffered reasons for laying him off are pretextual. (Id. at 21–

22.) However, the R&R recommends that the plaintiff’s retaliation claim based on Conti’s

allegedly interfering with Montgomery’s subsequent employment opportunities or his relationship

with the Union be dismissed for lack of evidence. (Id. at 23.)

Both Montgomery and Conti have filed Objections to the R&R (Doc. Nos. 123, 125), and

the Union and Conti filed Responses to the plaintiff’s Objections (Doc. Nos. 126, 127).

III. DISCUSSION

A. The Union’s Motion for Summary Judgment

Montgomery objects to the recommendation that the Union’s motion for summary

judgment on the § 1981 claim against it be granted. He contends that the R&R erroneously

concludes that Hall, as NJACT assistant director, was not acting as an agent for the Union and that

Hall failed to inform the plaintiff of his right to fair representation, which would have included

telling him he had only ten days to bring a grievance against Conti. (Doc. No. 123 at 4–5.) The

Union filed a Response to the plaintiff’s Objections, arguing that (1) the plaintiff fails to specify

the portions of the R&R to which he objects; (2) the plaintiff fails to identify any evidence that

creates a material factual dispute; (3) the plaintiff cites non-existent cases and misrepresents the

factual record; and (4) the plaintiff cannot establish the necessary elements of his claim. (See Doc.

No. 126 at 1–2.)

The court finds on de novo review that the Union is entitled to summary judgment. To

establish a race discrimination claim against a union that does not directly employ the plaintiff,

premised on the failure to file a grievance, a plaintiff typically must show that “(1) the employer

violated the collective bargaining agreement with respect to plaintiff; (2) the union permitted the

violation to go unrepaired, thereby breaching the union’s duty of fair representation; and (3) the

union’s actions were motivated by discriminatory animus.” Wimpye v. Int’l Ass’n of Machinists &

Aerospace Workers, AFL-CIO/CLC, Loc. Lodge 1943, No. 1:11-cv-845, 2012 WL 1340363, at *3

(S.D. Ohio Apr. 17, 2012) (citing York v. AT & T Co., 95 F.3d 948, 955–56 (10th Cir. 1996)),

report and recommendation adopted, No. C-1-11-845, 2012 WL 3070814 (S.D. Ohio July 30,

2012). “The duty of fair representation does not require that a union fully pursue every grievance

filed,” and “a union’s decision not to pursue a grievance, based on thorough investigation of the

employee’s complaint and a reasonable conclusion that the complaint does not merit further use

of the grievance procedure, does not necessarily violate the union’s duty of fair representation”

Driver v. U.S. Postal Serv., Inc., 328 F.3d 863, 869 (6th Cir. 2003) (citing Williams v. Molpus, 171

F.3d 360, 366–67 (6th Cir .1999) (“[A] union does not have to process a grievance that it deems

lacks merit, as long as it makes that determination in good faith.”)).

The Magistrate Judge found that the plaintiff’s claim against the Union failed on three

fronts: (1) Montgomery failed to show that Stephen Hall acted as an agent of the Union; (2)

Montgomery brought his complaints about Conti to actual Union representatives long after the

expiration of the ten-day deadline for doing so set forth in the CBA; and (3) Montgomery presented

no evidence that Hall or the Union representatives were motivated by a discriminatory animus.

The plaintiff has failed to show that any of these conclusions was erroneous as a matter of fact or

law.

First, as the Union points out, several of the plaintiff’s case citations are simply non-

existent.2 And those that do exist either do not support the proposition for which the plaintiff cites

2 These include the plaintiff’s references to Operating Engineers Local 406 JATC, 271

NLRB 1396 (1984) (which the plaintiff claims held a “union accountable when its JATC expelled

apprentices and impacted referrals”); IBEW Local 212 (Cincinnati JATC), 331 NLRB 152 (2000)

them or are otherwise irrelevant. Regardless, the plaintiff has failed to present any facts showing

that Stephen Hall, as assistant director of the NJATC, acted as an agent of the Union or was

directed by the Union in his dealings with the plaintiff, based on ordinary principles of agency law.

Accord NLRB v. Int’l Bhd. of Elec. Workers, Local 429, 514 F.3d 646, 650–51 (6th Cir. 2008)

(reversing NLRB’s determination that the JATC acted as an agent for the union under “common

law agency principles,” because “NLRB did not discuss or apply principles of agency law in its

decision”); Int’l Bhd. of Elec. Workers, Local 429, Case 26-CB-4240, 357 NLRB 332, 333 (2011)

(following remand by the Sixth Circuit, finding that an agency relationship existed based on record

evidence that the actions taken by the JATC were directed by union officials and agents and that

the union-appointed members of the committee did not act as trustees but acted to “advance only

union interests”). Consequently, any action or inaction by Hall cannot be attributed to the Union,

for purposes of the plaintiff’s discrimination claim against the Union. More importantly, aside

from rank speculation, the plaintiff presents no evidence, circumstantial or direct, from which

racial animus on the part of Hall or any actual agent of the Union could be inferred.

Consequently, the court will accept the recommendation that the Union’s Motion for

Summary Judgment be granted, overrule the plaintiff’s objections, and grant the Union’s motion.

(which the plaintiff says held that a union “was liable when the JATC discriminated in referrals,

even though the JATC was partly independent”); and EEOC v. Ironworkers Local 28, 2012 WL

4339035 (S.D.N.Y. 2012) (which the plaintiff says held that a “union could not avoid liability

simply because complaints were made to a joint training committee, not directly to a steward”).

(See Doc. No. 124 at 3.) The plaintiff’s citations are incorrect, and the court has not located these

cases elsewhere. It is unclear whether the plaintiff relied on AI for drafting assistance, which may

have resulted in “hallucinations.”

B. Conti’s Motion for Summary Judgment

1. The Plaintiff’s Objections

a) Hostile Work Environment Claim

The plaintiff objects to the recommendation that Conti’s motion be granted with respect to

his discrimination and hostile work environment claims. First, he refutes what he characterizes as

the R&R’s finding that he “conceded” his hostile work environment claims, and he maintains that

the facts establish that a “Conti Supervisor racially harassed and created a hostile environment for

him as well as other Conti Corp employees.” (Doc. No. 123 at 9.) Second, he insists that the

Magistrate Judge erred in failing to consider the Declaration and deposition testimony of third-

party witness John DeLaFuente which, the plaintiff claims, create a material factual dispute that

should preclude summary judgment as to this claim. (Id. at 9–10.) He also argues that Jimmy

Allen’s acts, because he was a supervisor, can be attributed to Conti. (Id. at 13.)

Conti argues in its Response that nothing in the record indicates that the Magistrate Judge

overlooked Delafuente’s Declaration, that the Declaration has “zero evidentiary value given that

Plaintiff deposed Mr. DeLaFuente . . . after Plaintiff produced the declaration,” and, moreover,

that the Declaration is “so vague and self-serving that it has no meaningful evidentiary value and

certainly does not help establish Plaintiff’s hostile work environment claim.” (Doc. No. 127 at 2–

3.)

As set forth above, the Magistrate Judge concluded that the plaintiff failed to present facts

from which a reasonable jury could conclude that he suffered a hostile work environment. To be

clear, although Conti argued that the plaintiff had “conceded” his hostile work environment claim

(see Doc. No. 97 at 16), the Magistrate Judge did not make that finding and considered the claim

on its merits (see Doc. No. 119 at 18–19). The plaintiff’s other Objections are also without merit.

To establish a hostile work environment claim, a plaintiff must establish that “(1) [he] was

a member of a protected class; (2) [he] was subjected to unwelcome . . . harassment; (3) the

harassment complained of was based on [race]; (4) the charged [racial] harassment created a hostile

work environment; and (5) the employer is liable.” Schlosser v. VRHabilis, LLC, 113 F.4th 674,

683 (6th Cir. 2024) (quoting Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir.

2006)).

For the fourth element, a hostile work environment occurs “[w]hen 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 and create an abusive working

environment.” Id. (internal quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993)). To make this showing, the plaintiff must show that the conduct complained

of was objectively “so severe or pervasive as to constitute a hostile or abusive working

environment” to a reasonable person and, subjectively perceived as such by the victim. Id. at 687

(citations omitted). “As part of this evaluation, [the court] must consider the ‘totality of the

circumstances,’ rather than each event complained of in isolation.” Id. (quoting Randolph, 453

F.3d at 732). Specifically, the court must consider “the frequency of the discriminatory conduct;

its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interfere[d] with an employee’s performance.” Randolph, 453 F.3d

at 733 (quoting Harris, 510 U.S. at 23). “[S]imple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to discriminatory changes in the terms and

conditions of employment.” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998)).

In this case, the plaintiff testified that he experienced three instances of racist comments

while working for Conti, all by Jimmy Allen. (Doc. No. 97-1 at 23–27, Montgomery Dep. 86–89.)

The first incident involved an argument between Allen and Montgomery about the role and the

history of the KKK, shortly after the plaintiff began working for Conti, with Allen defending the

KKK as having “policed bad people and restored order to the South during the Reconstruction

era.” (Doc. No. 52 at 2; Doc. No. 97-1 at 26, Montgomery Dep. 89.) Allen was apparently not a

supervisor at the time, and the plaintiff did not contemporaneously report the altercation to any

Conti supervisor. The second incident did not involve the plaintiff directly. He simply overheard

Allen and other Conti employees joke about whipping and beating anyone who voted for liberal

politicians and the liberal politicians themselves, including Joe Biden, Kamala Harris, Nancy

Pelosi, the Clintons, and Barack Obama. (Doc. No. 52 ¶ 27; Doc. No. 97-1 at 239, Montgomery

Dep. 86.) The third instance took place the morning of May 26, 2021, by which time Allen was

the foreman for the Federal Courthouse project, which the plaintiff did report to Conti. (See Doc.

No. 97-4, at 6.) The plaintiff testified that Allen humiliated him and asked him if he was high on

crack in front of other workers and told him to move faster and, more specifically, to run down an

unsafe stairway. The plaintiff refused and accused Allen of being racist, based on Allen’s “prior

statements” and how Allen treated Montgomery generally. (Doc. No. 52 ¶ 67; Doc. No. 97-1 at

45–46; Montgomery Dep. 162–63.)

The first incident, though Allen’s position was objectively offensive, was not severe. It did

not involve physically threatening conduct, and it was an isolated incident. The second incident

did not overtly involve race at all; instead, it involved party politics. Although the plaintiff

perceived it as race-related, it consisted of offhand comments that were not directed to the plaintiff.

The plaintiff subjectively perceived the third incident as race-based as well, but the plaintiff admits

that he was the one who brought up the issue of racism, and his perception that it was race-based

arose from his prior interactions with Allen and his belief that Allen is racist. Regardless, these

three incidents consisted of offensive statements alone, and such incidents did not occur frequently

or pervasively. Applying the totality of the circumstances test, the court finds that the three

incidents about which the plaintiff complains were objectively not sufficiently “severe or

pervasive” to create a hostile work environment.

On this basis, the court agrees that Conti is entitled to summary judgment on the plaintiff’s

hostile work environment claim. The plaintiff’s objection regarding Conti’s treatment of a different

employee, John DeLaFuente, is simply beside the point. The question is whether Montgomery

experienced a racially hostile work environment. During his deposition, he described only the three

incidents discussed above in support of his claim. The fact that DeLaFuente also allegedly suffered

harassment by Allen that he perceived as race-based has no bearing on Montgomery’s claim.3

b) Race Discrimination Claim

The Magistrate Judge concluded that the plaintiff’s race discrimination claims under Title

VII and § 1981 failed because, even assuming that Montgomery could establish a prima facie case

of discrimination, he failed to show that the defendant’s proffered reason for its action was pretext

for discrimination, under the burden-shifting framework established by McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973). (See Doc. No. 119 at 17–18.)

The plaintiff objects that the evidence established that Allen targeted the plaintiff,

“forc[ing] him to run as a form of discipline, while white employees who are inexperienced or

3 The court notes that DeLaFuente claims to have been subjected to “racist” statements by

Allen, but he does not describe them, though he does claim that Allen harassed him about his age

and medical condition. (Doc. No. 103-2 ¶¶ 9–10.) DeLaFuente’s “belief” that Allen’s harassment

was “racially motivated” is entirely conclusory and unsupported by actual facts.

slow were never forced to run downstairs as punishment.” (Doc. No. 123 at 15.) The adverse

employment action in this case is not Allen’s treatment of the plaintiff, but Conti’s termination of

the plaintiff. In the context of addressing the R&R’s recommendation that the claim against the

Union be dismissed, the plaintiff also argues that pretext is established by the fact that “Conti

Corp’s project manager Kevin Och . . . lies about Montgomery requesting a layoff so he could

transfer to another contractor,” while Todd Roberts “claims that the plaintiff was laid off due to

lack of work.” (Doc. No. 123 at 6.) The plaintiff fails to present actual evidence to support this

purported discrepancy.

Regardless, as the Magistrate Judge found, the evidence shows that Montgomery refused

to return to work with Allen—even temporarily while Conti investigated his complaint. Because

the Federal Courthouse project was winding down, Conti laid off Montgomery so that he could go

work for a different contractor. (See Doc. No. 97-4, Thompson Decl. ¶ 6; see also Doc. No. 97-4

at 11 (Conti Notice of Termination showing “Layoff–Reduction in Force” as reason for

termination).) Conti expressly told Montgomery that he was not barred from working for Conti on

other projects. (Doc. No. 97-1 at 17, Montgomery Dep. 58; see also Doc. No. 97-4, Thompson

Decl. ¶ 9.) The court agrees with the Magistrate Judge that Conti has met its burden of proving

that it had no racial or retaliatory animus related to Montgomery’s layoff, and the plaintiff has not

satisfied his burden of proving pretext. The court, therefore, will accept the recommendation that

the plaintiff’s discrimination claims be dismissed.

c) Retaliation Claim

Part of the plaintiff’s retaliation claim against Conti is based on allegations that Conti

targeted or blackballed him after his termination, speculating that his termination from other jobs

and being denied acceptance to an apprenticeship school were somehow Conti’s fault. The

Magistrate Judge finds that this part of the plaintiff’s retaliation claim fails as a matter of law for

lack of evidence. The plaintiff has not objected to that finding, and the court will accept it without

further discussion.

2. Conti’s Objections

The plaintiff also claims that his termination from Conti was in retaliation for his having

submitted a complaint about Allen. The R&R recommends that summary judgment as to this claim

be denied. Specifically, the Magistrate Judge found that the plaintiff successfully made out a prima

facie case of retaliation, largely based on the timing of his termination in relation to his complaint

about Allen, and that there was sufficient evidence from which a jury could find that Conti’s

reasons for its action (laying off the plaintiff) were pretext for retaliation. (See Doc. No. 119 at 23

(“The decision to terminate Plaintiff’s work on the job site appears to be merely a convenient

excuse to terminate his employment because he made the complaint. While the evidence regarding

his damages may be limited based on mitigation, that does not defeat his claim for retaliation

related to the termination of his employment on the courthouse job site.”).) Conti objects that the

evidence in the record does not support this conclusion. (Doc. No. 128.) The plaintiff responds

that Conti’s witnesses are not credible and that the record does not support Conti’s position (Doc.

No. 128).4 Upon de novo review of this claim, the court will sustain Conti’s objection.

4 Montgomery also argues in his Response that he has been “blacklisted” by both Conti

and the Union “because he refuses to compromise his position on racism and tolerate workplace

bullying,” as a result of which “the adverse actions of both defendants are continuous and

ongoing.” (Doc. No. 128 at 2–3.) As noted above, however, Montgomery’s own Objections do not

address the R&R’s recommendation that summary judgment for Conti be granted on

Montgomery’s retaliation claim based on events that occurred after his termination, for lack of

evidence. The plaintiff admitted during his deposition that he had no evidence, aside from his own

speculation, that Conti or the Union had interfered in his subsequent employment or the denial of

his application to the NJACT “school” for an apprenticeship. (See Doc. No. 97-1 at 8–12,

Montgomery Dep. 48–52.)

The plaintiff testified that, immediately after his altercation with Allen on May 26, 2021,

he left the job site. (Doc. No. 97-1 at 46, Montgomery Dep. 163.) Before he left the courthouse,

he called Stephen Hall, the NJACT representative, and told him that Allen was making “racist

comments” and generally insulting him, “talking to [him] crazy, trying to make [him] run up and

down the stairs.” (Id. at 48, Montgomery Dep. 166.) Hall told him to come down and talk about it.

(Id.) So Montgomery went to Hall’s office and told him again what happened. Hall called Todd

Roberts. While the plaintiff could hear Hall’s side of the conversation, he did not remember

hearing what Roberts said. (Id. at 48–50, Montgomery Dep. 166–68.)

The plaintiff claims that, ordinarily, “they’re supposed to call the union steward to mediate”

a dispute like the one he had with Allen, but that did not happen. (Id. at 50, 51, Montgomery Dep.

168, 171.) Montgomery confirmed that, until the issue was resolved, he would not have gone back

to work with Allen. (Id. at 51,53–54, Montgomery Dep. 171, 173–74.) He would have been “open

to the idea,” but not until “the issue was resolved.” (Id. at 54, Montgomery Dep. 174.) He refused

to work with Allen as his supervisor unless Allen sincerely apologized and showed remorse. (Id.

at 55, Montgomery Dep. 175.) Conti did not give him the option to transfer to a different job site,

and Montgomery does not know whether there was any discussion between the Union and Conti

about transferring him to a different site. (Id. at 52, Montgomery Dep. 172.)

According to Caitlynn Thompson, Conti’s Safety Manager at the Federal Courthouse

project at the time, she spoke on the phone with Montgomery at 12:19 p.m. on May 26, 2021, the

day of his altercation with Allen. (Doc. No. 97-4, Thompson Decl. ¶¶ 4–5.) This conversation was

“part of [her] investigation into Mr. Montgomery’s complaint about the incident.” (Id. ¶ 5.)

According to Thompson, following this incident, Montgomery “chose to be laid off from Conti so

he could work for a different contractor.” (Id. ¶ 6 & Ex. B, Doc. No. 97-4 at 8.) Conti documented

Montgomery’s departure as a “layoff.” (Doc No. 97-4 at 11.) Following Thompson’s investigation,

Conti directed Allen to take diversity and inclusion training. (Id. ¶ 7.) Thompson informed

Montgomery by text message on June 4, 2021 that he was not permanently discharged from Conti

and was eligible for rehire. (Id. ¶ 9 & Ex. C, Doc. No. 97-4 at 11.)

According to Conti, work on the Federal Courthouse project was winding down by the

spring of 2021, and Conti laid off other electrical workers around the same time as the plaintiff,

including one White electrical worker in the plaintiff’s same classification the very next day. (Doc.

No. 97-5, Podrasky Decl. ¶ 8 & Ex. A, Doc. No. 97-5 at 6–7.)

Conti argues that the plaintiff’s refusal to return to work with Allen as his supervisor until

their issue was resolved and Allen apologized was “tantamount to Plaintiff refusing to work at the

Federal Courthouse project because Allen was foreman at the time, and it was unreasonable for

Plaintiff to expect that the issues would be resolved immediately.” (Doc. No. 97 at 12.) It contends

that Montgomery was laid off because he would not go back to work at the courthouse, and he and

the Union reached an agreement for him to work for a different contractor. He was referred for a

different job the next day and began working for a different contractor within a week after leaving

Conti. (See id. at 13; see also Doc. No. 97-1 at 57, Montgomery Dep. 178; Doc. No. 97-6 at 6,

Montgomery 2nd Dep. 19.)

When a retaliation claim is based on circumstantial evidence, courts apply the McDonnell

Douglas burden-shifting framework to analyze the claim. See, e.g., Kenney v. Aspen Techs., Inc.,

965 F.3d 443, 448 (6th Cir. 2020).5 Conti does not object to the R&R’s finding that the plaintiff

has established a prima facie claim of retaliation, but it argues that there is “no reasonable dispute

that Conti had legitimate, non-discriminatory and non-retaliatory reasons for laying off Plaintiff”

5 The plaintiff does not contend that the claim is supported by direct evidence.

and that Montgomery cannot rebut its reasons. In particular, “Plaintiff would not go back to work

with Allen,” who was important to the completion of the project, and “the Federal Courthouse job

was winding down with layoffs occurring regularly, so Conti laid off Plaintiff to allow him to go

work for a different contractor (which Plaintiff ended up doing exactly that just mere days later).”

(Doc. No. 97 at 24.) Montgomery argues in response that Conti’s claim that he was “transferred

due to lack of work” constitutes “pretext,” because other electricians and apprentices continued to

work at the courthouse after his assignment was terminated. (Doc. No. 103 at 4–5.)6

The R&R rejected Conti’s argument, finding, first, that Montgomery’s “desire not to work

with a person he both believed to be racist and had reported to the company as engaging in

discriminatory conduct is not unreasonable” and that Montgomery should not have had to choose

to continue to work under the supervision of such a person or lose his job. (Doc. No. 119 at 23.)

And second, the R&R found that the evidence that the courthouse work was winding down was

“less than compelling,” because Conti did not make the decision to lay off the plaintiff until after

he complained. (Id.)

A plaintiff “can show pretext in three interrelated ways: (1) that the proffered reason[] had

no basis in fact, (2) that the proffered reason[] did not actually motivate the employer’s action, or

(3) that [the proffered reason was] insufficient to motivate the employer’s action.” Jackson v.

Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 350–51 (6th Cir. 2021) (quoting Chen v. Dow Chem.

Co., 580 F.3d 394, 400 (6th Cir. 2009)). “At its core, ‘[p]retext is a commonsense inquiry: did the

employer fire the employee for the stated reason or not?’” Id. at 351 (quoting Chen, 580 F.3d at

400 n.4). The Sixth Circuit has repeatedly cautioned that the plaintiff’s “burden is not heavy” and

6 As set forth above, he apparently also contends that Conti has offered conflicting reasons

for the action, but he has not proffered actual evidence of this conflict.

that “summary judgment is warranted only if no reasonable juror could conclude that the

employer’s offered reason was pretextual.” Id. (collecting cases). “Where . . . there are two

reasonable interpretations of the evidence, [the court] must allow the jury to resolve the issue of

whether the evidence [the plaintiff] cites is sufficient evidence to conclude that [the defendant]

retaliated against [him] for opposing an unlawful employment practice.” Id. (citation omitted).

Here, the defendant articulated a legitimate non-discriminatory reason for its action,

meaning that the burden of production shifts back to Montgomery to demonstrate that Conti’s

proffered reason was a mere pretext for discrimination. Kenney, 965 F.3d at 448. It is undisputed

that Montgomery refused to go back to work with Allen unless Allen apologized and was

remorseful.7 Moreover, expecting immediate resolution of his complaint against a supervisor who

was important to the project was clearly unreasonable on Montgomery’s part, and the “inability to

get along with a supervisor is a legitimate reason for discharge.” Kurtzman v. Univ. of Cincinnati,

No. 1:09-CV-580-HJW, 2012 WL 1805486, at *13 (S.D. Ohio May 17, 2012); see also Arnold v.

Marous Bros. Constr., Inc., 211 F. App’x 377, 381 (6th Cir. Nov.17, 2006) (observing that an

employee’s refusal of a work order was a legitimate, non-discriminatory reason for the employer

to force the employee to resign); Allen v. Henry Ford Health Sys., No. 08-14106, 2010 WL 525059,

at *11 (E.D. Mich. Feb. 8, 2010) (“Forcing an employee to resign when she questions and refuses

a supervisor’s work assignment is a legitimate, nondiscriminatory reason for that employment

action.” (citing Arnold)). Montgomery also did not present actual evidence to rebut the defendant’s

evidence that it was winding down the courthouse project and regularly laying off electricians.

7 The plaintiff argues in his Response to Conti’s Partial Objection that he did not refuse to

return to work, but he also reaffirms that he refused to return to work unless his problems with

Allen were resolved. (Doc. No. 128 at 8–10.)

20

And it is undisputed that Montgomery was referred for work with a different contractor the next

day and was back at work within a week.

The plaintiff has not shown that Conti’s proffered reasons for its action had no basis in fact,

did not actually motivate the action, or were insufficient to motivate it. Jackson, 999 F.3d at 350-

51. Under the circumstances, no reasonable jury could find that Conti’s reasons for laying off the

plaintiff were not its real reasons and, instead, were pretext for retaliating against Montgomery for

lodging a complaint against Allen. In light of Conti’s need to investigate Montgomery’s claims

prior to taking any disciplinary action against Allen, it seems clear that Conti did not discharge the

plaintiff because of his complaint against Allen but, instead, because of his refusal to work with

Allen, coupled with the fact that he would have eventually been laid off anyway, even if not

immediately.

Because the plaintiff has not presented evidence that would permit a reasonable jury to

conclude that Conti’s reasons for laying off the plaintiff were pretext for retaliation, Conti is

entitled to summary judgment on the plaintiff's retaliation claim.

IV. CONCLUSION AND ORDER

For the reasons set forth herein, plaintiff Jeremie Montgomery’s Objections to the R&R

(Doc. No. 123) will be overruled; Conti’s “Partial Objection” (Doc. No. 125), will be sustained;

the R&R will be accepted in part and rejected in part; and both Motions for Summary Judgment

(Doc. Nos. 89, 96) will be granted in their entirety.

An appropriate Order is filed herewith.

Ltd bag —

United States District Judge