Summary
In Wessel, the plaintiff male employee was terminated after a compliant was filed that the plaintiff violated the employer's zero tolerance policy regarding sexual harassment.
Summary of this case from Kimble v. Intermetro IndustriesOpinion
Case No. 3:01 CV 7514
November 21, 2002
ORDER
Plaintiff Richard Wessel brings this suit against defendant The Goodyear Tire Rubber Company ("Goodyear") for breach of contract under § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), and for gender discrimination under Ohio Rev. Code § 4112.01 et seq. This court has jurisdiction pursuant to 28 U.S.C. § 1331. Pending is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, defendant's motion shall be granted.
BACKGROUND
Plaintiff worked for Goodyear at its production facility in St. Mary's, Ohio, for approximately twenty-seven years until his discharge on February 22, 2001. When discharged, plaintiff was a janitor and a member of the United Steelworkers of America, Local 200L (the "Union"). His employment was therefore subject to a collective bargaining agreement ("CBA") between the Union and defendant. The CBA provided a detailed four step grievance procedure which culminated in final and binding arbitration before an impartial umpire.
In November, 2000, Vickie Fowler, another Goodyear employee, reported to the Union that plaintiff had tried to touch and kiss her and he had been calling and visiting her at home. Union Vice President Jim Clark subsequently told plaintiff to stay away from Fowler. The matter was not reported to Goodyear.
In February, 2001, Mike Stolzenburg, another Goodyear employee, reported to Goodyear's Human Resources Manager, Randy Henkener, that he was concerned plaintiff had acted inappropriately toward female employees. Stolzenburg provided the names of three employees — Mary Poppe, Vickie Fowler, and Sally Mass. — with whom Henkener should speak concerning Plaintiff's conduct. Henkener approached and interviewed these women, as well as another employee, Dorothy Lininger, about whom Henkener learned in subsequent interviews.
Fowler told Henkener about the advances plaintiff made toward her in November, 2000. Poppe stated plaintiff frequently came to her home; called her at home while he was working at Goodyear; told her that he thought she wanted him; sat with her in the break room while sharing her food and giving others the impression they were romantically involved; rubbed up against her at work; and told her he loved her. Poppe also told Henkener that plaintiff was possessive and constantly watched her. Poppe later stated that she used different doors and different routes around the plant to avoid seeing and talking to Wessel. Maas told Henkener she had no complaints about plaintiff. Lininger complained that plaintiff attempted to hug and kiss her.
On February 14, 2001, Henkener told plaintiff that he had been accused of sexual harassment. Plaintiff was sent on a "two day cool," which is required under the CBA whenever Goodyear is considering terminating an employee. Following the guidelines in the CBA, the Union requested and scheduled a meeting with Goodyear during the two day cool to discuss the circumstances of the potential discharge. The meeting was scheduled for February 19, 2001.
Sometime after February 14, 2001, the Union conducted its own investigation into the allegations against plaintiff. The Union obtained written statements from Fowler, Lininger, and Poppe. Each statement was consistent with the incidents the women reported to Henkener. One of the women even wrote that "Mr. Wessel should be released from his job before anyone else gets sexually harassed or assaulted by him." Plaintiff's Ex. 4.
Immediately prior to the February 19, 2001, meeting, plaintiff met with Union representatives who would be with him at the meeting. They included Local President Gary Glass, Local Vice President Gary McMullen, and a representative of the United Steelworkers Union International, John Rigling, among others. Union officials informed plaintiff that Henkener wanted to fire him and that plaintiff should admit to the allegations and accept counseling. Plaintiff insisted that he did not sexually harass anyone, and asked the Union to assert his innocence.
During the February 19, 2001, meeting with Henkener (a step one meeting under the grievance procedure), Henkener confirmed Goodyear's decision to fire plaintiff, effective February 22, 2001, for violation of Goodyear's zero tolerance policy on sexual harassment. Relevant portions of that policy provide:
Sexual Harassment
The company will not tolerate conduct that creates a hostile work environment through unwelcome sexual advances or other offensive and unwelcome conduct of a sexual nature. Demanding or proposing sexual favors in return for a promotion, better pay, getting or keeping a job, or any other benefit is also specifically prohibited. Examples of other offensive conduct include crude, off-color jokes, sexually explicit or demeaning photographs or drawings, foul or obscene language, gestures of a sexual nature, or physical conduct such as fondling, rubbing, or pinching another person's body.
Reporting Violations
Any Associate who knows of discrimination or harassment, or who feels that he or she has been subjected to, or falsely accused of, discrimination or harassment should report it immediately to the person with immediate authority over the workplace, or to his or her human resource representative. All complaints will be investigated promptly. The human resource manager at the affected location will be notified of the complaint. Depending on the allegations of a complaint, the local human resource manager will conduct the investigation with guidance from the corporate human resource practices department and the law department or contract with an external investigator such as S. J. Bashen Corporation. Corrective action must be taken when warranted. Where conduct complained of is severe or pervasive, disciplinary action up to and including discharge will be taken. No reprisal, retaliation, or other adverse action will be taken against any associate who in good faith reports any discrimination or harassment, or assists in the investigation of any such matter.
Defendant's Br. at 3.
Plaintiff had attended at least two training sessions on Goodyear's zero tolerance policy — one in March, 1999, and the second in December, 2000.
During the February 19th meeting with Goodyear, plaintiff claims he defended himself against the accusations, but Union representatives remained virtually silent in his defense.
Plaintiff was officially terminated by letter on February 22, 2001. By this time, Henkener had the reports of his own investigation and the Union's investigation. Plaintiff filed a formal grievance challenging his discharge on February 23, 2001. A step two grievance procedure was skipped by the Union. A step three meeting with Goodyear was scheduled for March 13, 2001.
Plaintiff met with Union representatives on March 9, 2001. According to plaintiff, Union representatives Glass and McMullen both agreed that Vickie Fowler regularly exhibited flirtatious and openly sexual behavior. The Union representatives, however, stated without explanation that they would not acknowledge Fowler's sexual behavior at the step three grievance meeting.
Plaintiff met with Union representatives again immediately before the step three meeting. Plaintiff claims the Union representatives offered no assistance on how plaintiff could defend himself and suggested only that plaintiff should admit to the allegations.
During the step three meeting, the grievance between plaintiff and defendant was not resolved; Goodyear still intended to discharge plaintiff. According to plaintiff, Union representatives said little, if anything, in his defense. Plaintiff defended himself by reading a handwritten statement denying the allegations against him and alleging sexually harassing behavior by Vickie Fowler.
The Union claims they argued on behalf of plaintiff to save his job. President Glass contends that Union representation acknowledged plaintiff's good employment record of twenty-seven years, pointed out there were no witnesses to the incidents, and tried to convince Henkener to consider suspension and counseling rather than discharge.
The CBA provides that if there is no resolution after the step three meeting, either party can submit the issue to an impartial umpire — an arbitrator — under step four of the grievance procedure. Under Union rules, the Bargaining Committee of the Union initially votes on whether to accept the employer's third-step answer or to proceed to arbitration. The local Union's Executive Board must then approve this decision.
The Bargaining Committee of Local 200L voted to take plaintiff's grievance to arbitration. The Executive Board, however, voted to accept Goodyear's third step answer and not to proceed to arbitration. According to Glass, the Executive Board elected not to proceed to arbitration because:
one of the questions was how can you rip apart three union members to defend one? And also the executive board had talked to John Rigling and asked his opinion. And John Rigling said that there was no way you could win it in arbitration. And the board itself must have felt that you couldn't win in arbitration.
Glass Depo. at 33.
According to Rigling, plaintiff's case was a "loser" (Rigling's Depo. at 18) because of the evidence against plaintiff and the fact that Goodyear's zero tolerance policy had not been tested for sexual harassment cases. In responding to what possible defenses the Union could have raised on behalf of plaintiff, Rigling stated: "Very little. There's no history. There's zero tolerance in the policy. And if it's between this person and that person, it's one thing. In this particular case, there was three." Id. at 13.
On April 2, 2001, Rigling informed plaintiff that the Union decided to drop his grievance.
In September, 2001, plaintiff brought this lawsuit against Goodyear alleging breach of contract under § 301 of the LMRA and gender discrimination under Ohio law. Defendant has moved for summary judgment on both claims.
STANDARD OF REVIEW
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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] 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). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION I. Hybrid § 301 Claim
Section 301 of the LMRA provides the means to enforce agreements between unions and employers:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.29 U.S.C. § 185(a).
The Supreme Court has long established that an individual employee may bring suit against his or her employer for breach of a collective bargaining agreement. Smith v. Evening News Assn., 371 U.S. 195 (1962). The employee is required, however, to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 655 (1965).
In Vaca v. Sipes, 386 U.S. 171, 186 (1967) and Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 565 (1976), the Supreme Court recognized that the exhaustion requirement works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such situation, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. Del Costello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983).
Suits brought under these circumstances have been labeled "hybrid § 301" claims. The Supreme Court stated in Del Costello:
Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union's duty of fair representation, which is implied under the scheme of the National Labor Relations Act. Yet the two claims are inextricably interdependent. "To prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union." The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach-of-contract suit under § 301 . . . but a hybrid § 301/fair representation claim. . . .462 U.S. at 164 (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67 (1981)) (Stewart, J. concurring in judgment) (quoting Hines, 424 U.S. at 570-71).
The Sixth Circuit has likewise recognized the elements of a hybrid § 301 claim. In Bagsby v. Lewis Bros., Inc. of Tennessee, 820 F.2d 799, 801 (6th Cir. 1987), the court declared:
In this hybrid suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, to recover against either the Company or the Union, Bagsby must show that the Company breached its duty of fair representation. Unless Bagsby demonstrates both violations, he can not succeed against either party.
Thus, a hybrid § 301 action involves two constituent claims: 1) breach of the duty of fair representation by the union; and 2) breach of a collective bargaining agreement by the employer.
Therefore, for plaintiff to survive summary judgment, he must set forth evidence with respect to whether Goodyear breached the collective bargaining agreement and he must raise a question of material fact regarding a breach of duty by the Union.
A. Breach of the Duty of Fair Representation
The duty of fair representation "is a federal obligation which has been judicially fashioned from national labor statutes." Abrams v. Carrier Corp., 434 F.2d 1234, 1251 (2d Cir. 1970). In Vaca, the Supreme Court specifically defined the judicially developed doctrine. A breach of the duty of fair representation occurs "only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Id. at 190.
In cases involving a union's handling of a grievance, the critical focus is the union's good faith. A breach of the duty during the grievance procedure "is not established merely by proof that the underlying grievance was meritorious." Id. at 194.
With regard to extent of the duty of fair representation during the grievance process, the Supreme Court noted in Vaca:
Some have suggested that every individual employee should have the right to have his grievance taken to arbitration. Others have urged that the union be given substantial discretion (if the collective bargaining agreement so provides) to decide whether a grievance should be taken to arbitration, subject only to the duty to refrain from patently wrongful conduct such as racial discrimination or personal hostility.
Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have this grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement.
Id. at 190-91.
Since Vaca, the Court has elaborated on the nature of this duty. In Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991) (citations omitted), the Court explained: "a union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a `wide range of reasonableness,' as to be irrational."
The Sixth Circuit has likewise elaborated on the extent of the duty of fair representation. In Whitten v. Anchor Motor Freight, Inc., 521 F.2d 1335 (6th Cir. 1975), a discharged employee brought suit under § 301 against his union for breach of its duty of fair representation in refusing to process his grievance to an arbitration hearing. Id. at 1337. The court found that a union does not have to process a grievance that it deems lacks merit, as long as it makes that determination in good faith. Id. at 1341. The Court in Vaca encouraged settlement of meritorious grievances in an honest and sensible way. In addition, the law "recognizes the Union's right to preserve its own integrity in good faith representation of its members by freeing it from an obligation to pursue meritless claims." Id. at 1342.
In Whitten, the employee further argued the union breached its duty of fair representation because it did not inform plaintiff of the meeting when his grievance was discussed and it did not respond to his letters inquiring about the status of his grievance. The Sixth Circuit found that even if this were true, it did not amount to a breach of the union's duty. The court stated:
The Union may have acted negligently or exercised poor judgment in failing to keep Whitten informed of the status of his grievance, but this is not sufficient to support a claim of unfair representation. A section 301 remedy against the Union, under Vaca v. Sipes is premised upon proof of "the union's wrongful refusal to process the grievance," Vaca v. Sipes, 386 U.S. at 185. We conceive that wrongful refusal to process a grievance is properly judged in the light of the Union's undoubted obligation, as the statutory and contractual agent of the employee, to represent his interests honestly and in good faith, and thus to refrain from discriminatory conduct which effectively prevents the employee from pursuing his legitimate claim that the employer breached the contract.
Id. at 1342.
Even a mistaken evaluation of the probability of success on the merits does not establish a breach of the duty of fair representation. In Poole v. The Budd Co., 706 F.2d 181 (6th Cir. 1983), the Sixth Circuit stated that, when handling a grievance:
A union's conduct may be sufficiently arbitrary to establish a breach of its duty to fairly represent its members when it handles a grievance in a `perfunctory' manner, with caprice or without rational explanation. The employee need not necessarily show bad faith, yet mere negligence or mistaken judgment is insufficient to establish a breach of the union's duty."
Id. at 183. See also Milstead v. Int'l Bhd. of Teamsters, Inc., 580 F.2d 232, 235 (6th Cir. 1978) (finding that bad faith is not a "necessary element of proof when alleging arbitrary or discriminatory conduct"); cf. Ruzicka v. General Motors, Corp., 649 F.2d 1207, 1212 (6th Cir. 1981) (holding that a showing of bad faith is required where the allegation is simply that an employee's grievance was without merit).
Thus, failure to raise certain arguments on behalf of grievants or even take the case to arbitration, even if amounting to negligence or poor judgment does not, without more, constitute a breach of the duty of fair representation. See Poole, 706 F.2d at 183.
Even more, in the Sixth Circuit, proof that the union acted in bad faith or in an arbitrary or discriminatory manner is not enough to prove a breach of the duty of fair representation. In addition, "the plaintiff must also prove that the Union's actions tainted the grievance procedure such that the outcome was more than likely affected by the Union's breach." Dushaw v. Roadway Express, Inc., 66 F.3d 129, 132 (6th Cir. 1995)
Plaintiff alleges that the Union handled his grievance in a perfunctory fashion. Plaintiff argues that Union representatives were under the impression that plaintiff's accusers came to management on their own. In fact, Henkener had sought out the female employees. This, according to plaintiff, affected Union decision-makers' impression of the merits of his case. Furthermore, once the Union's representation knew the women had not come forward on their own, they should have known that Goodyear was under no real threat of legal liability from any of the women. Therefore, a lesser action other than discharge could have corrected the behavior. According to plaintiff, had the Union investigated these misconceptions and discovered their falsity, his job would likely have been saved.
The record is, however, undisputed that the Union conducted an adequate investigation and fairly represented plaintiff during the grievance process. Moreover, the Union had reasonable grounds for not proceeding with plaintiff's case.
After Union officials heard about the allegations against plaintiff, Union representatives obtained their own statements from the women. After the Union spoke with plaintiff and allowed him to explain himself, President Glass spoke again with some of the accusers. Union representatives accompanied plaintiff to meetings with defendant and advised plaintiff to accept responsibility and counseling. They also asked Goodyear either to suspend plaintiff or allow early retirement instead of discharging him. Only after fully, yet unsuccessfully, pressing plaintiff's claim directly with the defendant did the union decide that the grievance was not sufficiently meritorious to warrant arbitration.
The Union clearly had rational grounds for its decision not to not press on with plaintiff's grievance. The Executive Board of the Union believed the grievance was unsuitable for arbitration because: 1) the evidence was against plaintiff — three union members would testify about plaintiff's behavior; and 2) Rigling recommended dropping the case based on the company's zero tolerance policy.
The fact that Union officials did not initially realize the accusers did not come forward on their own is not determinative. Under the zero tolerance policy, anyone can report the inappropriate conduct, not just the alleged victim. The fact that the women did not approach Goodyear themselves may demonstrate that they were less likely to sue the defendant. But this did not ensure that the defendant would be clear of legal liability in the future — especially if Goodyear continued to employ plaintiff.
Even if plaintiff was correct and defendant was not exposed to liability, "[m]ere negligent misunderstanding of legal standard does not constitute arbitrariness or reckless disregard required to establish union's breach of its duty of fair representation." Poole, 706 F.2d at 185.
Plaintiff further argues that the Union arbitrarily accepted Goodyear's zero tolerance policy. According to the plaintiff, discharge was not the only option. When the Union attempted to "deal down" another employee's violation of the zero tolerance policy, that employee was not discharged. The Union, plaintiff claims, arbitrarily failed to expend the same effort for him as it did for another similarly situated employee.
Plaintiff's argument is unpersuasive. Although the record is unclear, the other employee that plaintiff is referring to was disciplined for harassment, not sexual harassment — although they are both covered under the zero tolerance policy. Also, Union officials have testified that they attempted to deal down plaintiff's discharge to suspension or early retirement. (Rigling Depo. at 8; Glass Depo. at 40.) Furthermore, there cannot be an obligation on the Union to "deal down" every grievance. If the Union believes the case lacks merit and is not obligated to arbitrate the grievance, it cannot still be required to "deal it down."
Most importantly, it was reasonable for union officials to conclude that zero tolerance meant exactly what it says, especially because the policy was untested at the time of plaintiff's grievance. (Henkener Depo. at 88).
In this case, the Union did not act arbitrarily in failing to arbitrate the grievance and the Union had sound reasons for its decision. Therefore, construing the facts in a light most favorable to plaintiff, the plaintiff is unable to raise a question of material fact with respect to whether the union breached its duty of fair representation. The record is void of any convincing evidence that the Union did not handle plaintiff's grievance in good faith or that the Union treated plaintiff's grievance in an arbitrary or discriminatory manner.
Even if the Union believed the women came forward on their own or that the Union should have attempted to deal down plaintiff's discharge, this would be classified as negligent behavior by the Union. As the Sixth Circuit concluded in Poole, "[t]he grievance process is not expected to be error free and the courts should hesitate to interfere with legitimate internal union decisions which fairly evaluate whether a claim warrants resort to the arbitral machinery." Poole, 706 F.2d at 184.
Finally, even if it could be inferred that the Union acted in an arbitrary or discriminatory manner, there is no evidence to support a finding that such actions tainted the grievance procedure. Plaintiff was given a full opportunity to argue his case, which he did to Henkener in the step three meeting.
B. Breach of the Collective Bargaining Agreement
Plaintiff claims his termination breached the Preamble to Article V, entitled Grievance Procedure, of the CBA. It reads:
It is recognized that the maintenance of discipline is essential to the orderly operation of the plants and also that the invoking of disciplinary action should be designed to correct the conduct of the employees involved rather than to punish.
In the great majority of infractions of rules, termination of employment for disciplinary reasons is justified only after the employee has been given the opportunity to correct his behavior and had failed to respond to disciplinary measures.
Plaintiff's Ex. A.
Plaintiff argues he was given no opportunity prior to discharge to correct his alleged behavior. Plaintiff further argues that this language combined with his contention that a violation of the zero tolerance policy on sexual harassment does not automatically result in discharge, demonstrates a breach of the CBA.
Goodyear's zero tolerance policy specifically states: "Where conduct complained of is severe or pervasive, disciplinary action up to and including discharge will be taken." Thus, under this policy, an employee who violates the policy is subject to immediate discharge without any other type of disciplinary action. This court will not second guess defendant's about which conduct is so severe or pervasive as to require discharge. Because zero tolerance of sexual harassment is the policy, it was completely reasonable for defendant to discharge plaintiff based on the reports obtained by Henkener.
The CBA's general policy of encouraging disciplinary actions designed to correct an employee's conduct do not trump the specific wording of the zero tolerance policy on sexual harassment.
Because plaintiff is unable to show the Union breached its duty of fair representation or that defendant breached the CBA, his hybrid § 301 claim fails.
II. Sex Discrimination
It is unlawful in Ohio for "any employer, because of the . . . sex . . . of any person, to discharge without just cause, . . . or otherwise to discriminate against that person . . . with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." O.R.C. § 4112.02(A). The Ohio Supreme Court has held that the scope of § 4112.02(A) is identical to that of federal anti-discrimination statutes. Thus, evidence sufficient to support a finding of discrimination under Title VII of the Civil Rights Act of 1964 is necessary before a violation of § 4112.02(A) can be found. Plumbers Steamfitters Comm. v. Ohio Civil Rights Comm'n., 66 Ohio St.2d 192, 196 (1981).
Under Title VII, a disparate treatment case is subject to a tripartite analysis, with the burden of proof remaining with the plaintiff at all times: 1) the plaintiff must establish a prima facie case of discrimination; 2) the employer must offer evidence of a legitimate, nondiscriminatory reason for its actions; and 3) the plaintiff must prove that the reason offered is in fact a pretext for intentional discrimination. Kent County Sheriff's Ass'n v. County of Kent, 826 F.2d 1485, 1492 (6th Cir. 1987) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973)).
Plaintiff claims this is a direct evidence case; thus, the burden shifting approach is not applicable. Plaintiff can hardly contend, however, that defendant's alleged unequal application of the zero tolerance policy is direct evidence of disparate treatment. Plaintiff informed Henkener of Fowler's alleged inappropriate conduct during the step three grievance. Henkener admits in his deposition that plaintiff talked about Fowler's conduct and that Henkener did not investigate the allegations. This is not direct evidence of a discriminatory intent on the part of Goodyear.
In McDonnell Douglas, the Supreme Court set forth the general elements required for a plaintiff to prove a prima facie case:
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.411 U.S. at 802.
Consistent with the Supreme Court's admonition that the above standard should be modified to accommodate different employment discrimination contexts, the Sixth Circuit has altered the test for a prima facie case under Title VII for plaintiffs alleging reverse discrimination. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 801 (6th Cir. 1994). In Murray v. Thistledown Racing Club, 770 F.2d 63 (6th Cir. 1985), the Sixth Circuit explained:
In our view, the "reverse discrimination" complainant bears the burden of demonstrating that he was intentionally discriminated against "despite his majority status." We agree with the district court that a prima facie case of "reverse discrimination" is established upon a showing [1] that "background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority," and upon a showing [2] that the employer treated differently employees who were similarly situated but not members of the protected group.770 F.2d at 67 (citations omitted).
Thus, to establish a prima facie case against Goodyear, plaintiff must not only show that defendant is the unusual employer that discriminates against male employees, he must also produce evidence that similarly situated female employees were treated more favorably than he.
Plaintiff wants this court to use the prima facie test set forth in Green v. Armstrong Rubber Co., 612 F.2d 967 (5th Cir. 1980), which required that, with respect to discharge for violation of a work rule, "the plaintiff must first demonstrate by a preponderance of the evidence either that he did not violate that rule or that, if he did, male employees who engaged in similar acts were not punished similarly." Id. at 968.
The Sixth Circuit has not adopted the Green "work rule" standard. See Payne v. Frank, 735 F. Supp. 719, 723 (E.D.Mich. 1990). Regardless, plaintiff has not demonstrated by a preponderance of the evidence that a female employee who engaged in similar acts was not punished similarly as plaintiff was.
Although plaintiff does not mention this legal standard, he appears to argue he has demonstrated a prima facie case of reverse discrimination in that he was terminated for violating defendant's sexual harassment policy while Fowler, a similarly-situated female employee, was not even investigated despite the defendant's knowledge that she was also engaging in behavior that would violate the policy. Basically, plaintiff claims defendant's use of the zero tolerance policy was unequal between a similarly-situated male and female employee.
A. Background Circumstances
Although the Sixth Circuit has not provided a precise description of what a plaintiff must prove to establish "background circumstance" essential to a reverse discrimination claim, the District Court for the Eastern District of Michigan cited a number of examples of what would constitute such special circumstances:
For cases in which plaintiffs did establish this first element of their reverse discrimination cases, see, e.g., Reynolds v. School Dist. No. 1, 69 F.3d 1523 (10th Cir. 1995) (the plaintiff was the only white employee in an otherwise all-Hispanic department and Hispanic supervisors made most employment decisions); Bishopp v. District of Columbia, 252 U.S. App. D.C. 156, 788 F.2d 781 (D.C. Cir. 1986) (the defendant promoted less qualified minority employee; use of subjective rather than objective criteria; internal and external pressure to favor minorities); Lanphear v. Prokop, 227 U.S. App. D.C. 89, 703 F.2d 1311 (D.C. Cir. 1983) (qualified white passed over for black whose qualifications were not fully checked; pressure to increase minority percentages). We . . . cite [these Title VII] cases to illustrate the kind of evidence plaintiff might have brought forward, if it had been available, to satisfy the first element of his prima facie case.
[Allen v. Comprehensive Health Servs.,] 222 Mich. App. 426, 424, n. 6 [(1997)]. See also, Murray v. Thistledown Racing, supra,770 F.2d [63] at 68 [(6th Cir. 1985)] (suggesting that reverse discrimination plaintiff might have satisfied the "background circumstances" prong of the test had he been able to show that the employment practices at issue were grounded in an affirmative action program.)
Comiskey v. Automotive Indus. Action Group, 40 F. Supp.2d 877, 892 (E.D.Mich. 1999).
Plaintiff has not even attempted to offer background circumstances suggesting that defendant is the unusual employer who discriminates against the majority. Because plaintiff cannot establish sufficient background circumstances showing that defendant is the unusual employer who discriminates against males, he cannot establish this prong of the prima facie case of reverse sex discrimination.
B. Different Treatment
As the Sixth Circuit stated in Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992):
[T]o be deemed "similarly-situated", the individual with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.
The District Court for the Western District of Tennessee has also explained this requirement:
In order for two or more employees to be considered similarly-situated for the purpose of creating an inference of disparate treatment in a Title VII case, the plaintiff must prove that all of the relevant aspects of his employment situation are "nearly identical" to those of the non-minority employees who he alleges were treated more favorably. The similarity between the compared employees must exist in all relevant aspects of their respective employment circumstances.
Payne v. Illinois Central Gulf R.R., 665 F. Supp. 1308, 1333 (W.D.Tenn. 1987).
While plaintiff and Fowler had the same job at Goodyear, they are not similarly situated for the application of this prima facie test. There was no evidence that Fowler violated the zero tolerance policy. Before plaintiff's discharge, neither plaintiff nor anyone else complained to defendant that Fowler or any other female was sexually harassing her co-workers. In fact, plaintiff was the first case to arise under the zero tolerance policy. Thus, plaintiff cannot argue he was treated differently than a similarly situated female employee.
Plaintiff cannot now assert that the statements he made during the step three grievance meeting with Henkener provided defendant with the notice that Fowler was violating the zero tolerance policy. By this time, plaintiff knew he was going to be discharged. In any event, the Union investigated the complaints about Fowler and found that no employees would corroborate plaintiff's allegations about Fowler's misconduct.
See e.g., Raleigh v. Snowbird Corp., 1999 U.S. App. LEXIS 3375 (10th Cir. Mar. 2, 1999). In Raleigh, a case with similar facts — a reverse discrimination suit based on discharge for sexual harassment — the Tenth Circuit concluded:
[Plaintiff's] contention that female employees engaged in the same kind of consensual conduct, joking, teasing, hugging, and other gestures, without being suspended or terminated misses the point. In order to be "similarly-situated," there must have been a complaint against a female employee for such conduct, or conduct of comparable seriousness, as there was against [plaintiff]. We are not concerned with whether the allegation in [the female employee's] complaint are true. We are concerned with whether [defendant] discriminated against [plaintiff] in its termination decision based on his gender in violation of Title VII.
Id. at *7-8.
Even if plaintiff's statements to Henkener at the step three meeting could be characterized as a legitimate complaint of sexual harassment against Fowler, Title VII only requires that female employees not be treated more favorably than similarly situated male employees. Title VII does not require that an employer take the exact same investigative steps in every single allegation of harassment. Title VII does not require that an employer conduct a full-blown investigation into an uncorroborated complaint of harassment only because it investigated allegations of repeated instances of sexual harassment. See e.g., Hamm v. Delta Airlines, Inc., 2001 U.S. Dist. LEXIS 2006, at * 12-13 (S.D.Ind. Jan. 10, 2001).
Because there were no complaints against Fowler (or any other female employee) under the sexual harassment policy comparable to those against the plaintiff, no reasonable jury could conclude that he was treated less favorably than a female employee.
Thus, because plaintiff has presented no evidence of background circumstances or of disparate treatment of employees who are truly similarly situated, he has failed to satisfy the elements of a prima facie case.
C. Pretext
Even assuming that plaintiff could establish a prima facie case, plaintiff can offer no evidence that defendant's proffered, non-discriminatory justification for discharging plaintiff was a pretext concealing discrimination. Because defendant has articulated a legitimate nondiscriminatory reason for the termination — a violation of the zero tolerance policy — plaintiff must, to withstand summary judgment, establish that the proffered reason was pretextual.
Additionally, as the Supreme Court stated in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), establishing that the employer's reason was a pretext requires the plaintiff to do more than simply impugn the legitimacy of the asserted justification. The plaintiff must also adduce evidence of the employer's discriminatory animus. The Court explained: "a reason cannot be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Id. at 515.
In an attempt to show that defendant's proffered reason was pretextual, plaintiff cites cases holding that inequitable application of work rules shows pretext under the McDonnell Douglas approach. See Delgado v. Lockheed-Georgia Co., 815 F.2d 641, 645 (11th Cir. 1987) (finding that "plaintiff may prove pretext by showing `either that he did not violate the work rule or that, if he did, other employees not within the protected class who engaged in similar acts were not similarly treated.").
In this case, as noted above, there is no evidence — aside from plaintiff's own self-serving affidavit and testimony — that the zero tolerance policy was inequitably applied.
Additionally, in evaluating whether a proffered reason for discharge is in fact a pretext, summary judgment is appropriate if the employer can show it reasonably relied on the facts as known to it when it took the adverse employment action. See Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). If the employer honestly believed in the nondiscriminatory reason in making its employment decision, and that honest belief was reasonably based on particularized facts, not on ignorance or prejudice, then the employer lacked discriminatory intent. Id. at 806. Thus, even if Goodyear incorrectly believed that plaintiff sexually harassed fellow employees, this error does not constitute evidence of pretext. Defendant's reason for discharging plaintiff was based on a reasonable and honest belief that plaintiff was guilty of sexual harassment.
Consequently, even if plaintiff established a prima facie case, summary judgment in favor of defendant is proper because plaintiff failed to present evidence that raises a triable issue of fact concerning the issue of pretext.
CONCLUSION
It is, therefore,
Ordered that the defendant's motion for summary judgment be, and hereby is, granted.
So ordered.