Groover

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICHAEL GROOVER,

Plaintiff, Case No. 3:25-cv-152

V. : Judge Walter H. Rice

KETTERING TRANS.

SERVS., LLC,

Defendants.

DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY

JUDGMENT OF DEFENDANT KETTERING TRANSPORT SERVICES,

LLC (DOC. #26); JUDGMENT TO ENTER IN FAVOR OF DEFENDANT

AND AGAINST PLAINTIFF MICHAEL GROOVER; TERMINATION

ENTRY

Before the Court is the Motion for Summary Judgment of Defendant

Kettering Transportation Services, LLC (“Defendant” or “KTS”). (Doc. #26). For

the reasons set forth below, the Motion is SUSTAINED.

I. Factual Background and Procedural History

At the summary judgment stage, the facts are viewed and inferences are

resolved in the light most favorable to Plaintiff as the non-moving party.

Washington v. Newsom, 977 F.2d 991, 996 (6th Cir. 1992). Plaintiff Michael

Groover, an African-American male, began his employment with KTS’s

predecessor company in 2019, and continued to work as a Communications

Assistant working night shift continuously after KTS assumed operations. (PItf.

Dep., Doc. #18, PAGEID 102, 103). In late 2021 or early 2022, Defendant promoted

James (“Jim”) Reynolds’, a Caucasian male, to serve as Communications

Manager and, consequently, as Plaintiff's supervisor. (J. Reynolds Dep., Doc. #22,

PAGEID 427). Reynolds, in turn, reported to Robert Kidd, Ill, a Caucasian male and

Defendant’s Operations Director. (R. Kidd Dep., Doc. #20, PAGEID 250; Doc. #22,

PAGEID 439). During his employment, Groover claims that he was consistently

targeted by his coworkers due to his race, and that his supervisor Ennis Conyers,

a Black Puerto Rican-American, told Plaintiff that “he should just quit” if he could

not handle the racially-hostile environment. (Memo. in Opp., Doc. #27, PAGEID

619-20, citing Doc. #18, PAGEID 100, 101, 105, 112, 115, 116-17; Doc. #22, PAGEID

433). Groover states that he consistently complained “to Defendant’s Human

Resources, Kidd, Ennis and his other supervisor Chuck Reynolds that he was

being treated differently by his co-workers due to his race.” (/d. at PAGEID 620,

citing Doc. #18, PAGEID 151-53). During a February 2024 meeting between

Plaintiff and Reynolds, Plaintiff again complained of racial discrimination; despite

promising to talk to human resources on Plaintiff's behalf, Reynolds never did.

citing Doc. #20, PAGEID 265; Doc. #22, PAGEID 430, 431, 432, 442; Doc. #22-

21, PAGEID 585).?

1 All subsequent references to “Reynolds” are to James Reynolds, unless otherwise specified.

2 Plaintiff gave inconsistent testimony as to whether he brought up race-based discrimination to

Reynolds. (Compare Doc. #18, PAGEID 156 (stating that he did use the word “race” in the

February 2024 complaint) with jo. at PAGEID 117(stating that he could not recall specifically

whether he conveyed to Reynolds his belief that the hostile treatment was race-based)). At the

summary judgment stage, the Court must resolve this ambiguity in favor of Plaintiff. Anderson v.

From August 2022 through March 2024, Plaintiff was assessed five

warnings for violations of Defendant's attendance policy. (Doc. #22-6, PAGEID

501-02; Doc. #22-7, PAGEID 503-04; Doc. #22-8, PAGEID 505-06; Doc. #22-11,

PAGEID 511-12; Doc. #22-12, PAGEID 513-14; Doc. #22-13, PAGEID 515-16). By

March 2024, Plaintiff had accumulated 7.5 attendance “occurrences” within the

previous twelve months, as specified in Defendant's discipline policy, which

resulted in a final written warning. (Doc. #22-13, PAGEID 515-16). Plaintiff argues

that he should not have been assessed the 0.5 occurrences each for leaving early

on July 18 and 25, 2023, and on November 16 and 20, 2023, as he left on those

days due to the workplace’s racially-hostile environment. (Doc. #27, PAGEID 620-

21, citing Doc. #18, PAGEID 143; Doc. #20-14, PAGEID 344; Doc. #22-13, PAGEID

513-14).

On April 22, 2024, Plaintiff called off work again, bringing his total

occurrences to 8.5, above the 8.0 occurrence threshold for termination, and Jim

Reynolds made the decision to terminate Plaintiff on April 25, 2024. (Doc. #22,

PAGEID 42; Doc. #22-13, PAGEID 515-16). After Plaintiff's termination, Defendant

hired two white communication assistants to replace him.? (Doc. #27, PAGEID

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, it is only complaints that Plaintiff made to

Reynolds that are relevant, since Plaintiff concedes that he has not raised a claim for hostile work

environment. (Doc. #27, PAGEID 631 n.1).

3 Defendant argues that Plaintiff’s “position - including his job duties and his shift — was given to

Joy Blackburn, another African-American employee of KTS.” (Doc. #26, PAGEID 605, citing Doc.

#20, PAGEID 283-87). For the purposes of this Motion, the Court must construe this factual dispute

in favor of Plaintiff. Anderson, 477 U.S. at 255. However, for the reasons set forth below, the race

of Plaintiff's replacement has no bearing on the outcome.

621, citing Doc. #22, PAGEID 462; Doc. #22-19, PAGEID 557). Plaintiff appealed

Reynolds’s decision to Kidd via letter, wherein he stated that he “previously had

spoken to HR representatives about the issues | have been dealing with at work.”

(Doc. #18-1, PAGEID 172). However, he stated that the reason for his termination

was “for points that | have acquired from calling off or leaving work early.” (/d1).

His letter focused on the validity of three of his occurrences, a “he said he said”

issue of whether he was singled out in the office because nobody liked him, and

his belief that at least one other employee attempted to make him the only KTS

employee answering calls between 1:30 a.m. and 4:30 a.m. on his shifts. (Doc.

#18-1, PAGEID 172). Plaintiff concedes that he did not raise with Kidd his belief

that Plaintiff’s discipline and termination were racially motivated, as he “thought it

would be something else for them to use as justification as [s/c] not to rehire me.”

(Doc. #18, PAGEID 141). On May 15, 2024, Kidd denied Plaintiff's appeal, after a

review of call logs and transport requests while Plaintiff was on duty, and after

interviewing several KTS employees and concluding that they were more credible

than Plaintiff. (Doc. #18-4, PAGEID 186-87). Kidd also stated that Plaintiff

“acknowledged that [he] left [work] due to being required to answer calls and

complete call aheads.” (/a. at PAGEID 187).

On May 8, 2025, Plaintiff filed the Complaint, alleging that Defendant

discriminated against him in his employment and termination therefrom based on

his African-American race, in violation of Title VII of the Civil Rights Act of 1964

(Claim One) and Ohio civil rights law. (Claim Two). (Doc. #1, PAGEID 9-10, {| 133-

50, citing 42 U.S.C. § 2000(e); OHIO REv. Cope 8 4112.02(A), et seq.). Plaintiff also

alleges that Defendant retaliated against him by not excusing absences and

ultimately terminating him in response to Plaintiff's protected conduct of

complaining of racial discrimination on the job, also in violation of Title Vil and

Ohio law. (/a. at PAGEID 10-11, (ff 151-60, citing 42 U.S.C. § 2000(e); OHIO Rev.

CobDE 8 4112.02(A), et seq.).

On March 16, 2026, Defendant filed the instant Motion, arguing that Plaintiff

cannot meet his prima facie burden on Claims One and Two, racial discrimination,

because he cannot show that he was otherwise qualified for the position. (Doc.

#26, PAGEID 608-09, citing Wingo v. Mich. Bell Tel. Co., 815 F. App’x 43,45 (6th Cir.

2020)). Specifically, Defendant claims that Plaintiff's repeated unapproved

absences meant that Plaintiff was not “performing his job ‘at a level which met his

employer's legitimate expectations.’” (/ad. at PAGEID 609, quoting McDonald v.

Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990), holding limited by Wexler

v. White’s Fine Furniture, Inc., 317 F.3d 564, 575 (6th Cir. 2003)). “KTS’s Conduct

and Discipline Policy clearly set forth the attendance requirements for successful

employment at KTS, and clearly articulates that these are mandatory

requirements that must be met in order to be qualified for continued employment.

Plaintiff concedes that he failed to meet this threshold qualification.” (/d.).

Defendant further asserts that, even if Plaintiff could meet his prima facie

burden, he does not contest Defendant's proffered, nondiscriminatory reason for

discipline and termination, and he cannot establish pretext, because Plaintiff

cannot “show that: (1) KTS’s stated reason for his termination has no basis in fact;

(2) the reasons did not actually motivate KTS; or (3) the proffered reasons were

not sufficient to warrant the action.” (Doc. #26, PAGEID 610, citing Finch v. Xavier

Univ., 689 F. Supp. 2d 955, 963 (S.D. Ohio 2010) (Beckwith, J.)).

As to Claims Three and Four Defendant argues that Plaintiff cannot meet his

prima facie burden for retaliatory termination, for two reasons. (Doc. #26, PAGEID

614, citing 42 U.S.C. § 2000e-3; Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53 (2006)). First, Defendant claims that Plaintiff did not engage in protected

activity, as the latter’s complaints to Reynolds and Kidd centered on “various

management practices in his workplace, and about the unfriendly conduct of

some of his coworkers. At no point did he make a complaint about any specific

act or omission that he identified as race-based.” (/d. at PAGEID 615). Second,

Plaintiff was issued numerous warnings for his attendance violations both before

and after his complaints to Reynolds, human resources, and others; thus,

Defendant argues, even if Plaintiff had engaged in protected activity, he cannot

establish a causal link between that activity and the issuance of occurrences and

warnings that, pursuant to Defendant's progressive discipline policy, culminated

in his April 2024 termination. (/ad. at PAGEID 615-16).

In his memorandum contra, Plaintiff argues that several times during his

employment, he made complaints to management about race-based

discrimination. (Memo. in Opp., Doc. #27, PAGEID 622-23, citing Doc. #18,

PAGEID 151-53, 156; Doc. #22, PAGEID 430, 431, 432, 442). In Plaintiff's most

recent complaint in February 2024, Plaintiff specifically told Reynolds that he

(Plaintiff) believed his “[B]lack skin” was the reason he was being treated

differently. (/ad. at PAGEID 623, citing Doc. #22-21, PAGEID 585). Plaintiff claims

that, because only two months elapsed between his most recent race-based

complaint to Reynolds and termination by Reynolds, there is a plausible causal

connection between Plaintiff's protected activity and the adverse employment

action. (/d. at PAGEID 623-25). Thus, Plaintiff concludes, he has met his modest

prima facie burden on his retaliation claims. (/d. at PAGEID 624, 625, citing Mickey

v. Zeidler Tool and Die Co., 516 F.3d 516, 523 (6th Cir. 2008); Nguyen v. City of

Cleveland, 229 F.3d 559, 566 (6th Cir. 2000); Grubbs v. Delphi Auto. Sys., LLC, 11th

Dist. Trumbull No. 2017-T-0097, 2018-Ohio-2352, J 41 (Jun. 18, 2018).)

As to Claims One and Two, Plaintiff argues that it is undisputed that he is a

member of a protected class and that he suffered an adverse employment action.

He also claims there is no evidence that Plaintiff was unqualified for the position,

as Plaintiff was never subject to discipline during his nearly five years working for

Defendant. (Doc. #27, PAGEID 626). Plaintiff further asserts that Defendant's

argument that Plaintiff's absences rendered him unqualified for the position is

legally unsupported. (/d. at PAGEID 626-27). Moreover, he argues that “there is at

the very least a question of fact of who actually replaced Groover” (/d. at PAGEID

627 (emphasis in original)), and whether the person or persons who replaced him

is Caucasian. Thus, Plaintiff concludes, he has made a prima facie case of

employment discrimination. (/d.). As to pretext, Plaintiff argues that the issuance

of occurrences are discretionary, meaning that, had Reynolds decided to excuse

even some of Plaintiff's absences, Plaintiff would not have been terminated

pursuant to Defendant's progressive discipline policy. (/d. at PAGEID 629-30,

citing Doc. #22, PAGEID 463). Plaintiff testified that Kidd informed him that even

reaching 8.0 occurrences, as Plaintiff did, does not automatically result in

termination; the difference, Plaintiff argues, between treatment of other

delinquent employees and himself is his history of race-based complaints. (/d. at

PAGEID 630, citing Doc. #18, PAGEID 143-44). “Therefore,” Plaintiff concludes,

“questions of fact remain regarding whether Defendant's ‘attendance’ excuse (a)

is based on facts, (b) actually motivated Groover’s termination or (c) warranted

termination even if true.” (/d.).

In Reply, Defendant notes that Plaintiff's sole basis for his contention that

accumulating 8.0 occurrences is not grounds for automatic termination was a

meeting Kidd supposedly had with Plaintiff and other employees several months

before his termination. (Doc. #29, PAGEID 709-11, quoting Doc. #18, PAGEID 143-

44). Defendant claims that Plaintiff’s testimony is irrelevant, because it was

Reynolds, not Kidd, who made the termination decision, and Reynolds testified

that, if an employee had 8.0 occurrences within twelve months, he always

terminated them. (/a. at PAGEID 711-12, quoting Doc. #22, PAGEID 436-37).

Moreover, Defendant asserts that any failure of Reynolds issuing occurrences for

Plaintiff leaving early on the four instances, even if discretionary, is not actionable.

Defendant argues that Plaintiff testified that his reasons for leaving were based on

work allocation during his shifts, but he never asserted that the work allocation

was racially-motivated. (/d. at PAGEID 712-13, citing Doc. #18, PAGEID 120-21).

The matter is now ripe for decision.

Il. Legal Standards

A. Summary Judgment

Summary judgment shall be granted “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.” FeD.R.Civ.P. 56(a). Summary judgment must be entered

“against a party who fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Ce/otex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

moving party always bears the initial responsibility of informing the court of the

basis for its motion, and identifying those portions of the record which it believes

demonstrate the absence of a genuine issue of material fact. /d. at 323; see also

Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).

Once the moving party has met its initial burden, the nonmoving party must

present evidence that creates a genuine issue of material fact making it necessary

to resolve the difference at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). Once the burden has so shifted, the party opposing summary judgment

cannot rest on its pleadings or merely reassert its previous allegations. It is not

sufficient to “simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). Rule 56 “requires the nonmoving party to go beyond the pleadings,”

and present some type of evidentiary material in support of its position. Celotex,

477 U.S. at 324. “The plaintiff must present more than a scintilla of evidence in

support of his position; the evidence must be such that a jury could reasonably

find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337,

341 (6th Cir. 1994).

“Summary judgment will not lie if the dispute about a material fact is

‘genuine,’ that is, if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In determining

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

evidence of the nonmoving party and draw all reasonable inferences in favor of

that party. /d. at 255. If the parties present conflicting evidence, a court may not

decide which evidence to believe. Credibility determinations must be left to the

fact-finder. 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL

PRACTICE AND PROCEDURE CIVIL 8 2726 (3d ed. 1998).

In determining whether a genuine dispute of material fact exists, a court

need only consider the materials cited by the parties. FeD.R.Civ.P. 56(c)(3). “A

district court is not... obligated to wade through and search the entire record for

some specific facts that might support the nonmoving party’s claim.” /nterRoyal

Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). If it so chooses, however,

the court may also consider other properly presented materials in the record.

Feb.R.Civ.P. 56(c)(3).

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B. Employment Discrimination and Retaliation

A plaintiff may produce evidence of employment discrimination under the

direct or indirect evidence approach Plaintiff's claims are based on indirect

evidence of racial discrimination and retaliation by Defendants, meaning that the

well-established McDonnell! Douglas “burden-shifting” framework applies.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Tepper v. Potter, 505 F.3d

508, 515-16 (6th Cir. 2007), overruled on other grounds by E.£.0.C. v. Abercrombie

& Fitch Co., 575 U.S. 768 (2015). Employment discrimination and retaliation

claims arising under OHIO REV. CODE § 4112.02 et seq. and relying on indirect

evidence of discrimination follow the same burden-shifting analysis. Coryell v.

Bank One Trust Co., N.A., 101 Ohio St. 3d 175, 2004-Ohio-723, | 9; Mauzy v. Kelly

Servs., Inc., 75 Ohio St. 3d 578, 582 (1996).

For racial discrimination in termination, a plaintiff employee must make a

prima facie showing that: (1) he is a member of a protected class; (2) he suffered

an adverse employment action; (3) he is qualified for position; and (4) he was

replaced by someone outside the protected class or was treated differently than

similarly-situated employees. Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 142 (2000). If the plaintiff makes such a showing, then the burden shifts to

the defendant employer to “articulate a legitimate, nondiscriminatory reason for

the adverse employment action” it undertook. 7epper, 505 F.3d at 515, citing

McDonnell Douglas, 411 U.S. at 802. “If the defendant meets this burden, then

the burden shifts back to the plaintiff[,] who must show that the defendant's

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proffered reason is a pretext for discrimination.” /d. at 515-16, citing McDonnell

Douglas, 411 U.S. at 804. However, “[t]he ultimate burden of persuading the trier

of fact that the defendant intentionally discriminated against the plaintiff remains

at all times with the plaintiff." Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981) (emphasis added).

Pretext may be shown “either directly by persuading the [trier of fact] that a

discriminatory reason more likely motivated the employer or indirectly by

showing that the employer's proffered explanation is unworthy of credence.”

Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1082 (6th Cir. 1994)

(brackets in original), quoting Burdine, 450 U.S. at 256, overruled on other

grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). “[A] plaintiff

can show pretext in three interrelated ways: (1) that the proffered reasons had no

basis in fact, (2) that the proffered reasons did not actually motivate the

employer’s action, or (3) that they were insufficient to motivate the employer's

action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). “To carry her

burden in opposing summary judgment, [a plaintiff] must produce sufficient

evidence from which a jury could reasonably reject [the employer's] explanation

of why it fired her.” /a.; accord: Montell v. Diversified Clinical Servs., Inc., 757 F.3d

497, 504 (6th Cir. 2014), quoting Chen, 580 F.3d at 400 (“At the summary judgment

stage, the issue is whether the plaintiff has produced evidence from which a jury

could reasonably doubt the employer's explanation.”).

12

For retaliation, a plaintiff must show that: (1) she engaged in protected

activity; (2) the defendant employer knew of the activity; (3) the defendant

thereafter subjected the plaintiff to an adverse employment action; and (4) there is

a causal connection between the protected activity and adverse action. Montell,

757 F.3d at 504. “The burden of establishing a prima facie case in a retaliation

action is not onerous, but one easily met.” Nguyen 229 F.3d at 563. At the

summary judgment stage, “all facts must be viewed in the light most favorable to

[the plaintiff] and all reasonable inferences must be made in her favor” with

respect to the prima facie case. Montell, 757 F.3d at 505. The second and third

stages of the burden-shifting analysis are the same as those for discrimination.

Montell, 757 F.3d at 504. As with discrimination, retaliation claims arising under

Ohio law and Title VII are analyzed identically using the above burden-shifting

framework. Moody v. Ohio Dep’t of Mental Health & Addiction Servs., 2021-Ohio-

4578, 14 35-36, 183 N.E.3d 21 (10th Dist.).

Ill. Analysis

While the parties disagree over whether Plaintiff can make a prima facie

case for discrimination or retaliation, Plaintiff does not dispute that Defendant has

met its burden at stage two—/e., that Plaintiff accumulating at least 8.0

attendance occurrences within twelve months was a legitimate, nondiscriminatory

reason for termination. (Doc. #27, PAGEID 627-28). Thus, the burden shifts back

to Plaintiff to show pretext, which he cannot do even at the summary judgment

stage. Consequently, his claims fail as matters of law.

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As discussed above, Plaintiff may show pretext by presenting a genuine

issue of material fact that Defendant's proffered, nondiscriminatory reason: (a)

was factually baseless; (b) did not actually motivate Defendant; or (c) the proffered

reason was insufficient to warrant Defendant terminating Plaintiff. Chen, 580 F.3d

at 400. Plaintiff does not dispute that: (1) he was aware of Defendant's

progressive discipline policy, including that incurring 8.0 occurrences in a twelve-

month period was grounds for termination; (2) he actually did call off work or

leave work early on days for which he was assessed occurrences; or that (3) he

received progressive discipline, including termination, at the correct number of

occurrences. (Doc. #18, PAGEID 146; Doc. #18-5, PAGEID 188-89; Doc. #18-6,

PAGEID 190-96; Doc. #26, PAGEID 602). Thus, Plaintiff cannot meet his burden to

show that Defendant's proffered reason was factually baseless.

Plaintiff advances three arguments for the “did not actually motivate” and

“insufficient reasons” categories. First, he claims that, because Reynolds could

have elected not to assess occurrences on days when Plaintiff left work early,

there is an issue of material fact as to whether Reynolds’s decision fo assess

occurrences was based on racial or retaliatory animus. (Doc. #27, PAGEID 629-30,

citing Doc. #22, PAGEID 438, 463). In his testimony, Reynolds conceded that he

did not “always give people half an occurrence when they left early, even if it was

because they were sick or [had] some family emergency].]” (Doc. #22, PAGEID

438). However, Reynolds did not testify that the decision as to whether to assess

the 0.5 occurrence for leaving early was wholly discretionary, and no reasonable

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reading of that section Defendant’s conduct and discipline handbook (Doc. #18-6,

PAGEID 193) permits such an inference.

Moreover, while Plaintiff was assessed occurrences for instances when he

called off or left early due to illness, those all occurred prior to August 1, 2022

(Doc. #22-7, PAGEID 503); as those occurrences happened more than twelve

months prior to his termination, they did not count toward the 8.0 occurrences

when Reynolds terminated him. (See Doc. #22-13, PAGEID 515 (occurrences

began on July 18, 2023, and go through April 22, 2024)). Also, the example

Plaintiff cites of Reynolds having discretion in a non-illness or family emergency

situation is Reynolds testifying that an employee may not be subject to discipline

if he or she justifiably clocked out late. (Doc. #22, PAGEID 463). Such an

infraction is different in kind than calling off or leaving early; consequently, any

discretion Reynolds may have is not sufficient reason to doubt Defendant's

proffered reason for termination. Chen, 580 F.3d at 400.

Second, as discussed above, Plaintiff argues that four instances between

July and November 2023, in which he left work early and was assessed a total of

2.0 occurrences, should not have been counted, because he left work on those

days to avoid the racist treatment from his coworkers that Defendant had been

unwilling or unable to eliminate. “Had Reynolds excused Groover leaving work

early (like he did for other employees) instead of giving him a point, Groover

would not have been terminated. This fact is undisputed.” (Doc #27, PAGEID

629-30 (emphasis in original)). Plaintiff, by his own admission, “did not plead a

15

hostile work environment claim[.]” (/a. at PAGEID 631 n.1). Thus, the Court's

analysis is confined to Reynolds’s decision to terminate him. Moreover, Plaintiff

does not identify any instance in which he expressly made AReyno/ds aware of

racially discriminatory treatment by his coworkers until February 2024—several

months after he received the occurrences. (Doc. #27, PAGEID 620, citing Doc. #22-

21, PAGEID 585). Moreover, there is no evidence that Plaintiff made ever

Reynolds aware that racially hostile or discriminatory treatment was Plaintiff's

reason for leaving work early on those days, or that Plaintiff asked Reynolds to

rescind the 2.0 occurrences for that reason. Thus, even assuming that racial

animus was the reason for P/aintiff leaving work early, there is no evidence that

Reynolds was acting pretextually in assessing otherwise-valid 0.5 occurrences on

those days.

Third, Plaintiff testified that Kidd told him in a meeting that “not all people

get terminated at eight points” (Doc. #18, PAGEID 143-44), and, thus, argues that

Plaintiff merely reaching 8.0 occurrences was insufficient to warrant termination.

(Doc. #27, PAGEID 630). Plaintiff's relaying of Kidd’s purported statement is an

out-of-court assertion made by another being offered for the truth of the matter

asserted—in other words, textbook hearsay, FED.R.Evip. 801(c)—and “[hlearsay

evidence may not be considered on summary judgment.” Jacklyn v. Schering-

Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir.1999). However,

even assuming arguendo that Kidd was acting in an official capacity in that

meeting, such that the party-opponent exclusion to the hearsay rule applies to

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Kidd’s statement, FeD.R.Evib. 801(d)(2), Defendant is correct that Kidd’s statement

is irrelevant in this case. (Doc. #29, PAGEID 711). It was Reynolds, not Kidd, who

made the decision to terminate Plaintiff for reaching 8.0 occurrences, and

Reynolds testified that he always followed Defendant’s progressive discipline

policy, which always led to termination if an employee received 8.0 occurrences

within a twelve-month period.* (Doc. #22, PAGEID 437). Reynolds, in terminating

Plaintiff and any other employee who reached 8.0 occurrences in that span,

adhered to Defendant’s conduct and discipline policy directing him to do precisely

that. (Doc. #18-6, PAGEID 194). Thus, Defendant's proffered, nondiscriminatory

reason was sufficient to motivate its termination of Plaintiff.

As failure to set forth a material issue of fact on pretext is fatal to Plaintiff's

federal and Ohio discrimination and retaliation claims, Claims One through Four

must be dismissed in their entireties.

IV. Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment

(Doc. #26) is SUSTAINED. Judgment shall enter in favor of Defendant and against

Plaintiff on all claims.

4 While Kidd oversaw Plaintiff's appeal and upheld Plaintiff's termination (Doc. #18-4, PAGEID 186-

87), Plaintiff, in his appeal letter, did not raise racial animus or discrimination as a reason for why

he left work early in July and November 2023 or as a contributor to the “hostile environment that

my co- workers were creating.” (Doc. #18-1, PAGEID 172). Rather, Plaintiff stated that “| was told

by one of my co-workers | get left alone” to answer all incoming calls, along with his other job

duties, “because no one likes me in the office.” In other words, Plaintiff framed the hostility of his

coworkers as motivated by personality differences, rather than race-based animus.

17

The captioned case is hereby ordered terminated upon the docket records

of the United States District Court for the Southern District of Ohio, Western

Division, at Dayton.

IT IS SO ORDERED.

by N. ace

WALTER H. RICE, JUDGE

June 25, 2026 UNITED STATES DISTRICT COURT

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