Opinion
No. 00-10016-BC
November 7, 2001
The plaintiff, Robert S. Tagget, was a new, probationary employee working as a machine operator in the Spring of 1999 when the defendant fired him for excessive absenteeism. Tagget claims that a motivating factor in his termination was his involvement in protected activities: attending jury duty and participating in military reservist exercises. The issue presented to the Court for decision by the defendant's motion for summary judgment is whether there is evidence in the record which creates a genuine issue upon which reasonable minds might differ that Eaton considered Tagget's involvement in these protected activities when it decided to end his employment.
I.
Eaton Corporation manufactures component parts for the automotive and aircraft industries. Rodney Tagget was hired as an hourly employee by Eaton on February 8, 1999 to be a first shift Gisholt trainee. A Gisholt machine grinds the bottom of hydraulic value lifters which contact a camshaft during engine operations. It also breaks the edge giving the lifter a smooth finish. The machine is operated by one person who controls the overhead loading system and changes the grinding wheels.
Eaton employs about 600 people at its Saginaw plant which manufactures hydraulic valve lifters. The hourly employees are represented by the Paper Allied-Industrial, Chemical Energy Workers International Union and are eligible to join the union after completing a sixty-working-day probationary period. Probationary employees are not covered by the collective bargaining agreement's "for cause" requirement for termination. Rather, they are employed at will. They are not entitled to vacation or personal days, with some limited exceptions. Probationary employee are allowed time off for jury duty and military leave, however. Eaton pays probationary employees for time missed due to jury duty.
Probationary employees are evaluated after 15, 30, and 50 working days. The evaluation process rates employees in five categories: people skills, safety, work quality, productivity, and housekeeping. Eaton states that it dismisses employees during the probationary period who are not performing up to Eaton's standards.
Eaton considers attendance an important part of the employee's performance; it outlines this expectation during orientation for new workers. As proof, Eaton stated that only one out of eighty-six probationary employees during 1998 and 1999 obtained seniority after having missed two days' work for unapproved reasons, and in the case of the one, advancement occurred because the absences went undetected by Human Resources. Eaton states that the policy has since changed and now supervisors must immediately report any absences to Human Resources.
Tagget was first evaluated on March 16, 1999 by his supervisor, Lyle Hafer. He received an overall rating of "3" on a "1 to 5" scale, with "1" being the lowest and "5" the highest rating. Eaton's form does not give word designations to the numbered levels. Hafer commented that "Rodney is just getting started on training on Gisholt."
On March 24, 1999, Tagget was absent one full day because he was sick with the flu.
On March 29, 1999, Hafer completed his second evaluation. Tagget's overall rating was a "2." Hafer commented that Tagget "did not know how [to change a bolt] and that he was not going to do any more than he had to and went over and sat down." This prompted Hafer to recommend that Tagget be terminated. Instead of terminating Tagget, he was transferred from first shift trainee to second shift Gisholt operator on March 30, 1999.
Tagget received notice on April 8, 1999 that he was to report for duty in the Michigan Air National Guard, a military reserve unit, to conduct exercises beginning May 23, 1999 through June 5, 1999. He filed a leave request with Human Resources on April 21, 1999 and the request was granted that same day.
Eaton claims Tagget's performance did not improve on second shift. On April 28, 1999, the day before his jury service, plaintiff left work about one hour after his meal break. Tagget claims he was given permission by Scott Becker, his supervisor; Eaton claims that Tagget said he was sick only after he was not permitted to leave the first time he asked. Lisa Hanney, Human Resources supervisor, states that she spoke with Tagget when he returned from his meal break and he did not appear to be ill.
The next day, Becker spoke with Hanney. They decided to recommend termination because of Tagget's absenteeism, performance, and attitude. Shawn Bowen, Human Resources Manager, accepted that recommendation. Bowen claims that he did not know Tagget was currently on leave for jury duty or that he had upcoming military leave scheduled. Because Tagget was on jury duty April 29 and 30, Hanney met with Tagget on Monday, May 3, 1999 to inform him of the decision. When Tagget requested written notification, Hanney prepared a letter listing only absenteeism as the reason for termination. Hanney states that she only listed absenteeism to avoid hindering Tagget's future employment opportunities.
Tagget filed this lawsuit claiming he was terminated because of his upcoming leave for military reserve duty and his time off for jury duty. The defendant answered and filed its motion for summary judgment on August 25, 2000. The defendant claims that Tagget's military and jury duty obligations did not play a role in the decision to terminate his employment. Rather, Eaton claims that it exercised its prerogative to terminate a probationary employee whose performance was substandard. The plaintiff filed a timely response to the motion and the Court heard oral argument on January 12, 2001. On October 19, 2001, the plaintiff filed a supplemental brief. Because the brief was filed out of time, without leave of court, and in violation of E.D. Mich LR 7.1(f), the Court will not consider it and hereby ORDERS it stricken from the record. The matter is otherwise ready for decision.
II.
The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted). A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party opposing the motion may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. If, after sufficient opportunity for discovery, the non-moving party is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
The Court may grant summary judgment on the issue of causation when warranted. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997). Reliance solely on the fact that an adverse employment decision occurred after the alleged protected conduct is insufficient. Id. at 144-45. "A mere scintilla of evidence is [likewise] insufficient" to create a genuine issue of material fact. Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 622 (6th Cir. 2000).
A.
Thousands of men and women participate in the defense of our country through service as reservists in the several branches of the military. Reserve status does not constitute full-time employment by the military, and therefore reservists are generally employed in a multitude of occupations and professions, while devoting monthly and annual time to training and other military activity. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301, et seq., was enacted by Congress to "prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). Its scope "is very broad, covering discrimination in initial employment, reemployment, retention in employment, and promotion." Curby v. Archon, 216 F.3d 549, 557 (6th Cir. 2000). The USERRA was in part a congressional response to the Supreme Court's decision in Monroe v. Standard Oil Co., 452 U.S. 549 (1981), in which the Court held that the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) "was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status." Id. at 559 (emphasis added). The USERRA thus amended the VEVRRA and broadened its protections.
Section 4311(b) of the USERRA states that "[a]n employer may not discriminate in employment against or take any adverse employment action against any person because such person . . . has exercised a right provided for in this chapter." 38 U.S.C. § 4311(b). Section 4311(a) states: "A person who is a member of. . . a uniform service shall not be denied . . . retention in employment on the basis of that membership . . . performance of service, application for service, or obligation." 38 U.S.C. § 4311(a). Finally, § 4311(c) provides that "[am employer shall be considered to have engaged in actions prohibited under subsection (a) [of the Act], if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service." 38 U.S.C. § 4311(c)(1).
In order to withstand summary judgment, the plaintiff must establish a prima facie case at this stage of the proceedings by coming forth with some evidence that creates a triable issue that his scheduled reserve duty was "a motivating factor," even if it was not the sole factor, in his dismissal. Curby, 216 F.3d at 557; Palmatier v. Michigan Dept. of State Police, 981 F. Supp. 529, 532 (W.D. Mich. 1997); 38 U.S.C. § 4311(c)(2). In Curby, the Court affirmed the district court's dismissal of the plaintiff's claim because he failed to present any evidence to show that the decision not to reemploy him at the same level after his return from military service was motivated by his participation in the military. Curby, 216 F.3d at 557.
Absence of direct evidence of improper motivation is not fatal to a plaintiff's case. "Improper employer motivation may be inferred from circumstantial as well as direct evidence." Cf. W.F. Bolin Co. v. Nat'l Labor Relations Bd., 70 F.3d 863, 871 (6th Cir. 1995) (holding in the unfair labor practices context).
Discriminatory motivation under the USERRA may be reasonably inferred from a variety of factors, including proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.Sheehan v. Dept. of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (citing W.F. Bolin, 70 F.3d at 871).
If the plaintiff proves a prima facie case, Eaton may still avoid liability if it proves that the "action would have been taken in the absence of such. . . service. . . or obligation for service." 38 U.S.C. § 4311(c)(1)(a). The Federal Circuit has held that the procedural framework in the USERRA is different from discrimination cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Sheehan, 240 F.3d at 1014. Under the McDonnell Douglas construct, once the plaintiff establishes a prima facie case, only the burden of production shifts to the employer to offer a nondiscriminatory reason for the adverse employment action. Under the USERRA, the Federal Circuit held that both the burden of production and the burden of persuasion shift to the employer when a prima facie case is established. Sheehan, 240 F.3d at 1014. This Court agrees that the plain language of the statute compels this result. An employer's avoidance of liability once a prima facie case has been established turns on its ability to "prove" a valid, nondiscriminatory reason for discharge. In other words, a nonpretextual, permissible reason for termination notwithstanding military service is an affirmative defense on which the employer carries the burden of proof.
The allocation of the burden of proof for Eaton's affirmative defense in not determinative here, however, because the plaintiff has not established a prima facie violation of the USERRA. A review of the record does not disclose evidence from which a fact finder could reasonable infer that Tagget's impending National Guard duty played any role in Eaton's decision to fire him. The undisputed evidence establishes that the same day Tagget request a leave of absence for military service from the Human Resources Department, his requested was granted. That request occurred almost two weeks before Tagget was fired. His duty date had not yet arrived; his reserve service would not begin for three weeks. There is no evidence that any management personnel expressed hostility toward or even disapproval of Tagget's reservist activity, and there is no suggestion in this record that future absenteeism was a motivating factor, Rather, Eaton's stated reason for termination was absenteeism during Tagget's sixty-day probationary period. Nor is there any evidence that other employees who were not obligated to military service were treated differently.
The plaintiff contends that the combined effect of his absence for jury duty and concern about future and continued absences for reserve obligations motivated Eaton to fire him. However, there is no evidence, circumstantial or otherwise, from which a rational fact finder could draw that conclusion, which must be relegated to the category of speculation. To survive summary judgment, the plaintiff must come forth with more. Kraft, 991 F.2d at 296 (factual dispute which "is merely colorable or is not significantly probative" will not defeat summary judgment). The Court will therefore dismiss count one of plaintiff's first amended complaint which is based on a violation of the USERRA.
B.
Count two of the first amended complaint is based on a violation of state law which plaintiff claims prohibits adverse employment based on jury service.
Under the Michigan Elliot-Larsen Civil Rights Act, retaliatory discharge occurs when (1) the plaintiff participated in an activity protected by the Act and (2) his participation was a "significant factor" in his termination. Moore v. Kuka Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999). A prima facie case exists when the plaintiff offers evidence to show that (1) the plaintiff engaged in a protected activity, (2) the defendant knew about the protected activity, (3) the plaintiff suffered an adverse employment action, and (4) there is a "causal connection" between the protected activity and the adverse employment action. Polk v. Yellow Freight Sys., Inc., 876 F.2d 527, 531 (6th Cir. 1989).
It is a misdemeanor in Michigan to discharge an employee because he or she is summoned for jury duty or serves on a jury. Mich. Comp. Laws § 600.1348. Tagget's "participation" injury duty is thus protected by the Elliot-Larsen Act. It is undisputed that Tagget informed Eaton that he was selected to serve on jury duty. Tagget Aff ¶ 4. Tagget was terminated on May 3, 1999. The only element in contention, therefore, is the causal connection between Tagget's jury service and his termination.
In determining whether a plaintiff has established the causation element of his or her claim, the Michigan courts often turn for guidance to federal precedent in the context of Title VII of the federal Civil Rights Act when evaluating claims brought under the Michigan Elliot-Larsen Civil Rights Act. See Sumner v. Goodyear Tire Rubber Co., 427 Mich. 505, 525, 398 N.W.2d 368, 376 (1986); Jenkins v. Southeastern Mich. Chapter, Am. Red Cross, 141 Mich. App. 785, 793 n. 2, 369 N.W.2d 223, 227 n. 2 (1985).
A plaintiff may establish a claim for discrimination by direct or circumstantial evidence of causation. Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). If the plaintiff establishes a claim by direct evidence, the Court employs the framework established in Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989), which, like cases decided under the USERRA described above, shifts the burden of persuasion to the employer "to prove that it would have terminated the plaintiff even had it not been motivated by discrimination." Johnson v. City of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000). If the plaintiff establishes causation by circumstantial evidence, the Court employs the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Johnson, 215 F.3d at 572. Under McDonnell Douglas, the defendant is only required to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 573. However, the burden of persuasion always remains with the plaintiff.
"Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Weberg v. Franks, 229 F.3d 514, 522 (6th Cir. 2000) (internal quotes omitted). Tagget claims that he was fired because he failed to report to work on April 29, 1999, a day he was on jury duty. It is undisputed that the decision to terminate Tagget was made on April 29, 1999. However, that alone does not "require the conclusion that unlawful discrimination" occurred. For example, Tagget does not present affirmative evidence that the reason his supervisor met with Human Resources was because Tagget failed to report on April 29, 1999. Instead, he infers this conclusion. Thus, in the instant case, the plaintiff's evidence is circumstantial and is analyzed under the McDonnell-Douglas framework.
When establishing causation by circumstantial evidence at the summary judgment stage, the "causal connection" is proved only when there is "sufficient evidence from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not [engaged in a protected activity]." Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (addressing a claim under Title VII). The task of establishing the prima facie case is generally is easy to meet as long as there is some evidence that takes the case beyond the realm of speculation. Id. In Nguyen, the plaintiff was a Vietnamese national working as a Level I Air Pollution Control Engineer (APC). When he was promoted to Level II APC, he was dissatisfied with the pay increase he received and he filed a grievance. When his grievance was denied, he filed an EEOC claim which was dismissed. In the subsequent years, he bid for, but was denied, additional promotional opportunities. He filed a lawsuit alleging retaliation and discrimination based on national origin. The only evidence the plaintiff provided was that the four bids he made after filing an EEOC claim were denied. The Court reiterated that "temporal proximity alone will not support an inference of retaliatory discrimination when there is no other compelling evidence." Id. at 566.
In this case, Tagget contends that his failure to come to work on April 29, 1999 when he was in court for jury duty was the cause of his termination. Eaton counters that it was Tagget's half-day absence on April 28, 1999 (combined with his previous unexcused absence on March 24) that prompted the termination. However, there is a conflict in the record over why Tagget left work on April 28, 1999, and whether he had Becker's permission to leave. Tagget claims he asked Becker only once to leave because he had to report to jury duty the next morning; he alleges Becker granted his request and that Becker would "write it up different so it `does not go on the record.'" Tagget Aff. ¶ 15-17. Eaton, on the other hand, alleges Tagget asked Becker to leave and was denied because he was a probationary employee with no vacation entitlement. Tagget then allegedly claimed he was sick and went home three hours early. Becker's deposition testimony or affidavit is not attached to any pleadings. Though there is a conflict, it does not appear to be over a material issue. Tagget alleges he was terminated because of jury duty. The leave on the evening of April 28, 1999, whether approved or not, was not necessary for Tagget to fulfill his jury service.
Nonetheless, the timing of Tagget's firing upon his return from an absence due to jury duty, coupled with testimony by Scott Becker, the second shift supervisor, that Tagget's absence on April 29 prompted him to report the absence to the human resources department, provides a sufficient basis to support an inference that jury duty played a role in Eaton's decision. Eaton has demonstrated a nondiscriminatory reason for the adverse employment action, claiming that the termination was prompted by absenteeism, attitude and poor performance. Tagget must then point to evidence which creates a factual issue as to whether Eaton's reason was a pretext.
Pretext may be established by evidence showing that the proffered reasons have no basis in fact, did not actually motivate the plaintiff's discharge, or were insufficient to motivate discharge. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). Evidence offering different reasons at different times as justification for termination raises a genuine issue of material fact as to whether the employer's reasons are pretextual. Tinker v. Sears, Roebuck Co., 127 F.3d 519, 523-24 (6th Cir. 1997). The proffered reasons are insufficient to motivate discharge if the evidence shows inconsistent treatment of similarly situated employees. Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th Cir 2000).
In this case, according to the termination letter, Tagget was terminated only for absenteeism. That decision was made on April 29, 1999. When Tagget applied for unemployment benefits, Eaton responded to the Michigan Employment Security Commission that Tagget had voluntarily quit. Eaton states in this Court that Tagget's performance and attitude were poor and these were additional reasons to terminate Tagget. Eaton explains that performance and attitude were not included in the termination letter to not "unnecessarily interfere with his chances with prospective employers." Hanney states she decided to let Tagget continue his employment before his second absence, despite his performance and attitude. Tagget alleges his performance was adequate, citing the qualifications checklist and his promotion from first-shift trainee to second-shift operator. Further, Tagget's shift supervisors, Hafer and Becker, testified that Tagget's performance was acceptable, although Hafer's written evaluation suggests otherwise.
In addition, in answers to interrogatories, Eaton identified three other individuals who were absent without approval at least one day during their probationary period but were not terminated: Scott Carpenter, Victor Moorer, and Julian Frayer. Tagget claims he was treated differently than these similarly situated employees. "Similar situation" between employees requires similarity "in all relevant aspects of their respective employment circumstances." Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994). However, Moorer and Frayer had only one absence. Carpenter had two unexcused absences, but Eaton explains that Carpenter's situation was different because the human resources department was not aware of his two absences before he attained seniority. Eaton further claims that the policy was changed to require supervisors to notify Human Resources of any absences by probationary employees. Eaton alleges that Tagget was "similarly situated" to Harold Cage, who was also terminated for two absences before attaining seniority.
Viewing the evidence in the light most favorable to the nonmoving party, as is required, the Court concludes that there is a sufficient showing so as to create a fact issue as to whether Eaton's proffered reason for terminating the plaintiff was a pretext. Eaton has offered inconsistent reasons for its decision to fire Tagget. There are conflicts in the testimony as to Tagget's work quality. And although Eaton's explanation of the reason another similarly situated employee was not fired is plausible if believed, it is not sufficient as a matter of law. The trier of fact must therefore resolve the issue, and defendant's motion for summary judgment must be denied as to the count two of the first amended complaint.
III.
Although the Court finds that the defendant is entitled to judgment as a matter of law on count one of the first amended complaint which pleads a claim under the USERRA, resolution of the claim based on the Elliott-Larsen Act in count two must be resolved by a jury.
Accordingly, it is ORDERED that the defendant's motion for summary judgment [dkt #29] is GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that count one of the first amended complaint is DISMISSED WITH PREJUDICE.
It is further ORDERED that plaintiff's supplemental brief filed October 19, 2001 [dkt #44] is STRICKEN. The document in the court filed shall be stamped "STRICKEN" on the front page and deemed not a part of the record in this case.
It is further ORDERED that plaintiff's motion to extend time to file a response [dkt #33] is DENIED as moot.
It is further ORDERED that the parties shall appear through counsel at a status conference to be conducted by the Court on Thursday, December 13, 2001 at 3:30 p.m. to discuss further proceedings in this matter.