Lead Opinion
Plaintiff Eric D. White appeals the district court’s grant of summary judgment in favor of Defendant Duke Energy-Kentucky, Inc. (“Duke Energy”). For the reasons stated below, we REVERSE the district court’s grant of Duke Energy’s motion for summary judgment and REMAND for further proceedings.
BACKGROUND
I. Factual Background
From 1990 to 2011, White was employed by Duke Energy or its predecessors at the corporation’s East Bend Station in Kentucky. (R. 19-1 Pg. ID #240, ¶2). For most of his time with the company, White was a unionized employee with the formal job designation of Instrumentation Technician. (Id. at ¶¶ 2-3). In 2009, White was promoted to the non-union position of Work Management Planner. (Id,, at Pg. ID # 242 ¶ 11). At that time, White was the only African-American at the East Bend Station to hold such a position. (Id. at Pg. ID. # 40 ¶ 2). No one directly reported to White in his capacity as Work Management Planner. (Appellee’s Br. at 2).
On the afternoon of November 23, 2011, the day before Thanksgiving, White observed two Caucasian employees at the East Bend Station, Duane Doyle and Daryl Duty, while they were engaged in a verbal altercation. (R. 32 Pg. ID # 630; see also R. 19 Pg. ID #236 (alluding to the race of the employees)). White told Doyle and Duty to “break it up,” at which point the two men separated, and White prepared to leave work for the day. (White Deposition, R. 17 Pg. ID # 127-28). On his way to clock out, White was stopped by Duty, who asked White to ensure that Doyle did not tamper with Duty’s car. White then followed Doyle as both men clocked out of work. (Id. at Pg. ID # 128). White did not observe Doyle make any moves toward Duty’s ear, but he did ask Doyle for an explanation of the earlier incident. (Id. at Pg. ID # 128-29). Doyle explained that he had been looking through a storage area for a copper fitting when Duty had challenged him. The two began to argue and eventually Doyle had pushed him to the ground. (White Affidavit, R. 19-1 Pg. ID # 242-43). At some point, the argument moved to the maintenance area, where the two men were observed by White. (Id.) Doyle suggested that he may have been injured during the confrontation. (White Deposition, R. 17 Pg. ID # 129).
Immediately after this exchange, White went back inside the facility and heard Duty’s version of events. (Id.) Duty claimed that, after an initial exchange of words, Doyle had kicked a garbage can at him and that the two men had wrestled with each other. Duty also claimed that his pants had been torn during the altercation. (Id. at Pg. ID # 93). White was able to see that Duty’s pants were torn; White also saw what he interpreted to be a scratch on Duty’s leg. (Id. at Pg. ID # 93-94). White then left the facility and did not return until five days later, on November 29, 2011. (R. 32 Pg. ID # 631).
When he returned to work after the Thanksgiving holiday, White learned that
White consented to Doyle’s request and relayed Doyle’s desire for a dátente to Duty. None of the three men made any effort to report the fight or to report any injuries sustained during the altercation. (White Deposition, R. 17 Pg. ID # 135-36). Both Doyle and Duty had reason to fear any disciplinary action. Doyle had a Last-Chance Letter in his file for previously falsifying company documents. (Human Resources Investigation, App. # 7). Duty also had a Last-Chance Letter as a result of an earlier fight with a coworker. (Id.)
On December 6, 2011, Teresa Taylor, the Human Resources manager for East Bend Station, was informed of the Doyle-Duty altercation by Bill Hyland, the Maintenance Supervisor at the facility. (Documentation [of] Maintenance Issue, App. #5-6). Hyland had learned about the fight from employee Mark House. (Doyle Deposition, R. 21 Pg. ID #371, 373-74). Taylor convened a committee to investigate the incident and called White to testify on the morning of December 8. The investigation committee consisted of Taylor, Hyland, and George Dilz, White’s direct supervisor.
During his initial meeting with the investigation committee, White was asked, “Did you see or do you have any information pertaining to the physical confrontation between Daryl Duty and Duane Doyle on Wednesday, November 23, 2011?” (Fact Finding Meeting Notes # 1, App. # 1). White’s response was as follows:
I was going to the refrigerator to get food and heard yelling. Walked out and saw Daryl and Duane about 4 feet apart yelling at each other. I heard f-bombs and I heard Duane tell Daryl that he would kick his fat ass and Daryl said come on. I said break it up. Duane grabbed his lunch box and walked away. Daryl Duty left also into the ICE break room. Mark House headed into the maintenance break room.
(Id.). White was also asked, “... what action did you take concerning this event, if any?” White responded, “I said break it up!” (Id.). White was subsequently asked, “Is there any information that you know about that is important to this matter?” White’s response was a simple “no.” (Id.)
Later that day, White informed Hyland that White did in fact have additional information about the incident. During his second meeting with the investigative committee, White related both versions of events that he had received from Doyle and Duty, including their claims of injuries resulting from the encounter. (Fact Finding Meeting Notes # 2, App. # 2). White also acknowledged his role as an intermediary between the two men after the holiday break. (Id.)
The investigatory committee concluded that White had previous knowledge about the altercation between Doyle and Duty yet failed to report the incident to manage
White challenged his termination internally through Duke Energy’s Recourse Policy, but was ultimately denied. The Recourse Investigation Report recommended that White’s termination be upheld, but also “recommended that management re-examine the decision regarding Duane Doyle and that he, too, may not have fully lived up to management expectations as it relates to reporting an injury.” (Id. at App. # 79).
II. Procedural Background
White filed a charge with the Equal Employment Opportunity Commissions alleging race discrimination and obtained a right to sue letter. (R. 32 Pg. ID # 633). White later filed a complaint in the Southern District of Ohio alleging that Duke Energy’s termination of his employment was based on racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act. (Id.)
The district court granted summary judgment to Duke Energy. While it found that White had established a prima facie case for racial discrimination under state and federal law (Id. at Pg. ID # 639), it held that White had not created a genuine issue of material fact as to whether the proffered legitimate reason for his termination — White’s failure to report the fight — was a mere pretext. A key underpinning of the court’s decision was its characterization of White’s role as a manager: “Here, Plaintiff has proffered no evidence of other management employees who were not fired but who failed to report a fight.... Plaintiff was a manager, and his role in enforcing workplace rules was key.” (Id. at Pg. ID #641). Because White failed to identify any comparable managers and because the essential underlying facts of White’s own conduct were undisputed, the district court found that no reasonable jury could conclude that White was a victim of racial discrimination. (Id. at Pg. ID # 642).
DISCUSSION
“We review a [district court’s] grant of summary judgment de novo, construing the evidence and drawing all reasonable
I. White’s Title VII Claim
White’s first claim is that his termination by Duke Energy was an act of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. To successfully prosecute a Title VII claim, “a plaintiff must either provide direct evidence of discrimination or establish a prima facie case, which creates an inference of discrimination based on circumstantial evidence.” Seay v. Tenn. Valley Auth.,
If the plaintiff can establish a prima facie case, the burden shifts to the defendant, who must then offer a legitimate, nondiscriminatory reason for the adverse employment action at issue. Tex. Dep’t of Cmty. Affairs v. Burdine,
The district court correctly ruled that White had established a prima facie case of racial discrimination under Title VII. Duke Energy does not dispute that: (1) White was an African-American and therefore a member of a protected class; (2) White suffered an adverse employment action in the form of a termination; (3) at the time of his termination White was qualified for his position of Work Management Planner; and (4) White’s replacement was Caucasian.
Duke Energy argues on appeal that it proffered the legitimate, non-discriminatory reasons that White “failed to report the fight or that injuries had been sustained during the fight and he failed to report what he had been told about the fight during his initial interview.” (Appellee’s Br. at 13). In granting the motion for summary judgment, the district court characterized the proffered reason in a slightly different way: “Plaintiff failed in his management capacity to report a fight, in violation of a number of company rules.” White v. Duke Energy Kentucky, Inc.,
The main issue on appeal is whether White created a genuine issue of material fact so that a reasonable jury could conclude Duke Energy’s proffered reason was pretextual. White argues that Duke Energy’s proffered reason was pretextual. (Appellant’s Br. at 21). He contends that he was treated less favorably than similarly-situated, non-protected employees. (Id.) Duke Energy’s response is that White “cannot identify a single non-minority who was similarly situated in all re
When showing that a proffered reason for a termination was pretextual, a plaintiff can rely on “evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.” Madden v. Chattanooga City Wide Serv. Dep’t,
In ruling that White had not identified any similarly situated employees, the district court’s key finding was that White had not proffered any evidence of other management employees who were not fired but failed to report a fight. As a factual matter, this finding is essentially correct. White has conceded that he is a management employee, and the only management employee that White proffered as a similarly situated employee was Hyland, the Maintenance Supervisor. But White can only argue that Hyland was somewhat’ dilatory in reporting the altercation to Human Resources (see Appellant’s Br. at 9); he cannot dispute the fact that Hyland was the individual who ultimately informed Taylor about the altercation and indirectly triggered the internal investigation.
But White’s failure to proffer other management employees as similarly situated comparators is only fatal to his claim if he is legally unable to proffer non-management employees as similarly situated comparators. Courts “should make an independent determination as to the relevancy of a particular aspect of the plaintiffs employment status and that of the non-protected employee [being offered for comparison].” McMillan v. Castro,
Although he has conceded his status as a member of management, White has contested whether his management status was relevant to his actions and the proceedings that led to his termination. Based on the limited record before us, none of the company policies cited in connection with the decision to terminate White appear to make meaningful distinctions between management and other union or non-union employees. The district court claimed that as a manager, White’s “role in enforcing workplace rules was key” (R. 32 Pg. ID # 641), but this bare assertion contains no citation to the record and Duke Energy has not pointed to any support, for a blanket obligation of rule enforcement common to all management employees.
Of course, if White has failed to proffer non-management employees who are otherwise similarly situated, then any premature restriction of comparators to management employees has no effect on the disposition of White’s claims. White has pointed to four non-management employees as potential comparators: Don Calhoun, Norb Lankheit, Mark House, and Duane Doyle. All four of those individuals were Caucasian union members who were not disciplined by Duke Energy for their involvement with the altercation and subsequent investigation.
Calhoun and Lankheit were' employees who heard rumors about the altercation. Neither of them had first-hand knowledge of the altercation or direct interactions with the parties involved. Neither of them ‘failed to be forthcoming with the committee, although they were unable to contribute much information to the investigation. (See Appellee’s Br. at 17-18). Calhoun and Lankheit’s actions are not substantially similar to those of White, and therefore they are not similarly situated employees.
House was a coworker of Doyle. Several days after Doyle’s altercation with Duty, House noticed bruises on Doyle and inquired about their origin. Doyle told House about the altercation, and House in turn reported the altercation to Hyland. White argues that if Hyland was not dilatory in reporting the matter to Taylor-,
The strongest candidate for comparison among non-management employees is Duane Doyle. Like White, Doyle arguably failed to report the altercation to management. Duke Energy argues that Doyle fulfilled his reporting responsibility by reporting the matter to White. (See Appellee’s Br. at 19). But a reasonable factfinder might not characterize White’s observation of the altercation and subsequent inquiries as a “report” made by Doyle. Doyle’s abortive efforts to enlist White in an effort to sweep the incident under the rug could also be reasonably construed as a violation of his responsibility to report the altercation.
Furthermore, there is also evidence to suggest that Doyle, like White, was not completely forthcoming in his initial meeting with the investigative committee. While Doyle did provide his version of the altercation (see Fact Finding Investigation Notes, App. # 67), he did not tell the committee about his direct and indirect efforts to hide the severity of the incident from management and his attempts to enlist White in those efforts. Despite this omission, when directly asked if he had any other important information about the matter, Doyle said, “No.” (Id. at # 68). Therefore, a reasonable factfinder might be able to conclude that Doyle’s behavior during his initial committee interview was comparable to White’s behavior, particularly when coupled with Doyle’s arguable failure to report the incident to management.
Finally, Doyle’s employment history and past issues with dishonesty are comparable with White’s history. While these issues were not mentioned in White’s official termination notice (see Non-Union Corrective Action Notice, App. # 35), and Taylor later said that White would have been terminated even without the letters in his employment file (see HR Investigation Interview Documentation, App. # 72-73), there is evidence to suggest that the perception of White’s past dishonesty carried weight with the Investigative Committee. (Taylor Deposition, R. 20 Pg. ID # 327 (“he had a history of not telling the truth”); Dilz Deposition, R. 22 Pg. ID # 440 (referring to a “trend” of falsification by White)). According to this Circuit’s “modified honest-belief’ rule, the Committee was entitled to “reasonable reliance on the particularized facts that were before it at the time the decision was made,” see Wright v. Murray Guard, Inc.,
Perhaps the most significant and probative evidence that Doyle could be a similarly-situated comparator comes from the Recourse Investigation into White’s termination. Though HR consultant Joyce
Since a reasonable factfinder could conclude that White was similarly situated in all relevant aspects to Doyle and that White was treated less favorably than Doyle, a reasonable factfinder could conclude that Duke Energy’s proffered reason for termination was pretextual — but only if non-management employees can be considered similarly situated for purposes of White’s Title VII claim. Because the present record does not allow us to determine whether White’s status as a management employee was a relevant aspect of his employment for the purpose of limiting the pool of possible comparators, the district court erred by discounting the possibility that Doyle was a similarly situated employee and proper comparator.
Therefore, the grant of summary judgment on White’s Title VII claim was erroneous. On remand, the district court should develop and expand the record on the relevant distinctions between Duke Energy management and employees at East Bend Station, including but not necessarily limited to: (1) whether the Duke Energy policies cited in connection with White’s termination apply equally to management and union employees; (2) whether White possessed training or responsibilities that would make his management status relevant to an inquiry as to whether he could be properly compared to non-management employees; and (3) whether union members or other non-management employees enjoyed additional protections or opportunities for recourse in the wake of internal investigations such as the one that led to White’s termination.
II. White’s Kentucky Civil Rights Act Claim
White’s second claim is that his termination was an act of racial discrimination in violation of the Kentucky Civil Rights Act, K.R.S. §§ 344.040(l)(a) and 844.450 (“KCRA”). In interpreting and enforcing these state provisions, the Supreme Court of Kentucky has embraced the McDonnell Douglas-Burdine burden shifting analysis and cited Sixth Circuit precedent on the issue of pretext. See Williams v. Wal-Mart Stores, Inc.,
CONCLUSION
For the reasons stated above, we REVERSE the district court’s grant of summary judgment for Duke Energy and REMAND for further proceedings to develop the factual record.
Notes
. At worst, it appears that Hyland waited roughly a week, until Taylor visited East Bend Station on unrelated business, before informing her.
. Nor was such a management-specific obligation cited in the course of White’s termination.
Dissenting Opinion
dissenting.
I respectfully dissent. I would affirm the district court’s ruling that plaintiff Eric White failed to sustain his burden of demonstrating pretext in defendant Duke Energy’s legitimate, nondiscriminatory reason for terminating White’s employment. The undisputed facts are that White, as a member of management, not only failed to report a fight between two employees that resulted in one of the employees being
Under the McDonnell Douglas burden-shifting framework, White may demonstrate pretext by showing that Duke Energy’s proffered reason (1) has no basis in fact, (2) did not actually motivate his discharge, or (3) was insufficient to warrant the challenged conduct. Martinez v. Cracker Barrel Old Country Store, Inc.,
Here, White asserts that Duke Energy’s proffered reason was insufficient to justify his termination. This method usually “ ‘consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.’ ” Johnson,
Our court has explained that the plaintiff and a comparable employee must be similar in all of the relevant aspects in order to be similarly situated. Johnson,
In the present case, the district court determined that the proper comparators were other management employees and held that “[pjlaintiff has proffered no evidence of other management employees who were not fired but who failed to report a fight.” The majority concludes that the district court’s finding “is essentially correct” because “White has conceded that he
White’s management position is clearly relevant to the disciplinary action taken in this case. White testified at his deposition that as a member of management, he was responsible for understanding Duke Energy’s rules of conduct and disciplinary policies and enforcing them, including reporting harassment, safety threats or incidents, and violence. Significantly, he admitted that he failed to report the altercation between Duty and Doyle and, further, that he initially withheld information during the investigation, thus providing a legitimate, nondiscriminatory ground for his termination.
Moreover, White was not similarly situated to Doyle in all relevant respects. White was an at-will management employee and reported to George Dilz. White is not comparable to Doyle, who was a member of the union covered by a collective bargaining agreement, did not report to the same supervisor as White, did not undergo the same management training, or share the same management responsibilities as White.' The district court aptly observed that “[p]laintiff was a manager, and his role in enforcing workplace rules was key.” As noted above, White himself acknowledged that as a manager, he should have — but did not — carry out his managerial duties to report the altercation.
The significance of management status has been recognized by our court in several cases in which we have held that supervisory and non-supervisory personnel are not similarly situated. See Martinez,
Likewise, Duke Energy had good reason to expect that White, as a manager, had greater responsibilities than Doyle to enforce the code of conduct at the facility: “[White’s] role as a manager ... could reasonably justify holding [him] to a more stringent standard of conduct than that applied to [Doyle].” Martinez,
Although White argues that Duty and Doyle also failed to report their fight to management, this is not supported by the record — they both told White, who was a manager. The fact that they told White about the fight, that White failed to do anything about it, and that White lied to the investigatory committee is exactly what led to White’s termination.
In sum, because the district court properly held that White failed to demonstrate that the reason for termination was pre-textual, I would affirm the summary judgment granted in favor of Duke Energy.