Angel Ortiz v. Jerre Riggle
677 F. App'x 261
| 6th Cir. | 2017Background
- AO Construction & Restoration (AO) is an Ohio corporation owned by Angel Ortiz (Puerto Rican); Ortiz and his wife also own Chimney & Fireplace Restoration and AO Rentals. Many AO employees are Latin American.
- Bricklayers Local No. 8 and an umbrella Agency administer a collective bargaining agreement (CBA) and collect fringe-benefit contributions. Jerre Riggle was the business agent enforcing the CBA.
- Riggle investigated whether AO was performing union-covered work through its allegedly nonunion "alter egos" (Chimney & Fireplace, AO Rentals); AO alleges Riggle used racial epithets during the investigation.
- AO sued Riggle and Local 8 under 42 U.S.C. § 1981 (equal contractual rights), alleging Riggle maliciously initiated an alter-ego investigation and subjected AO to an unnecessary fringe-benefit audit.
- The district court granted summary judgment to defendants, finding Riggle was not the decisionmaker who caused the Agency’s audit/assessments and that AO had not proved intentional discrimination.
- On appeal AO limited its argument to contending that Riggle’s alter-ego investigation itself violated AO’s § 1981 rights; the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Riggle’s alter-ego investigation violated AO’s § 1981 rights | Riggle’s initiation/pursuit of the investigation (and related statements) unlawfully infringed AO’s contractual rights under the CBA | Riggle had nondiscriminatory, investigatory reasons to probe alter-ego conduct; investigations do not infringe § 1981 contract rights | Held for defendants: Riggle rebutted discriminatory intent and the investigation did not violate § 1981 |
| Whether direct evidence of racial animus (epithets) shifts burden to Riggle to prove the investigation would have occurred absent discrimination | Epithets are direct evidence of intent, so AO contends Riggle must not avoid liability | Defendants: even if epithets are proved, Riggle shows he would have investigated based on objective indicia of alter-ego activity | Held for defendants: burden shifted and Riggle met it by showing nondiscriminatory reasons |
| Whether an alter-ego investigation alone (separate from Agency audit) is a cognizable § 1981 injury | The investigation itself is the challenged adverse act independent of any audit or fees | Defendants: CBA signatories are subject to investigations; AO presented no evidence signatories were immune | Held for defendants: AO produced no evidence investigations were barred; no § 1981 violation shown |
| Whether AO may assert a "cat’s paw" theory that Riggle’s investigation caused the Agency’s discriminatory audit on appeal | AO suggests in reply that Riggle’s conduct triggered the Agency’s discriminatory assessment | Defendants: the cat’s paw theory was not raised below or in the opening brief; forfeited | Held for defendants: theory forfeited and in any event district court found Riggle not the Agency’s decisionmaker |
Key Cases Cited
- Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir.) (when plaintiff presents direct evidence, burden shifts to defendant to show action would have occurred absent discrimination)
- Amini v. Oberlin College, 440 F.3d 350 (6th Cir.) (§ 1981 claim requires proof of intentional discrimination)
- Scottsdale Ins. Co. v. Flowers, 513 F.3d 546 (6th Cir.) (arguments raised first in reply briefs are forfeited)
- In re Anheuser–Busch Beer Labeling Marketing & Sales Practices Litig., [citation="633 F. App'x 515"] (6th Cir.) (litigant’s failure to clearly raise an argument in district court results in forfeiture)