OPINION & ORDER
Plaintiff Reginald Laughlin alleges that Defendant City of Cleveland, his former employer, illegally fired him in retaliation for complaining about racially and sexually harassing comments made by his foreman, Defendant Dominic Santora. Defendants now move for summary judgment.
For the reasons below, the Court GRANTS Defendants’ motion for summary judgment.
I. Background
Defendant City of Cleveland hired Plaintiff Laughlin, an African American, in October 2012 as a sewer service worker with the City’s Department of Public Utilities.
In the slightly more than three months Laughlin worked for the City, he worked on three different work crews run by three different foremen.
Laughlin alleges that Santora “regularly” made comments about young black women the crew saw while working.
Santora admits that he would “point out” or comment on “nice-looking lad[ies] walking down.the street,” but denies singling out black women.
Plaintiff Laughlin says he twice spoke to Santora about these comments and asked him to stop.
On December 27, 2012, Laughlin spoke to Superintendent Tomko. Tomko gave Laughlin an incident complaint report form to fill out. Laughlin completed the form,
On December 28, 2012, the day after he spoke to Tomko, Laughlin was transferred to a different crew run by foreman Phillip Lewis,
On January 31, 2013, the City fired Laughlin, finding his work during the first 90 days of his 180 day probationary period to have been “unsatisfactory.”
By the time he was fired, Laughlin’s had received three written performance reviews. These reviews explain the Commissioner’s negative view of Laughlin’s work. The first review rated him as an average worker who was “continu[ing] to get a better understanding of the job.”
At the meeting where he was terminated, Laughlin stated that he felt the firing was in retaliation for complaining about Santora.
After receiving a right to sue letter from the EEOC,
II. Legal Standards
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ”
Title VII prohibits an employer from “discriminatfing] against any individual ... because he has opposed any ... unlawful employment practice,”
III. Analysis
Laughlin’s claim boils down to this argument: Santora created a hostile work environment by making racist and; sexist comments, and when Laughlin complained about it, Santora gave him negative performance reviews and the City fired him in retaliation. Both Title VII and Ohio law use a burden-shifting framework to analyze retaliation claims that rely on circumstantial rather than direct evidence.
If the plaintiff-makes out his prima facie case, the defendant then has the burden of producing a legitimate nondiscriminatory reason for the action it took. If the defendant meets this burden, the burden shifts back to the plaintiff to demonstrate both that the asserted reason is pretextual and that retaliation was the real reason for the action.
According to Defendants, Laughlin cannot even make out a prima facie case.
A. Protected Activity
A successful- hostile work environment claim requires the plaintiff show “conduct [that is] severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive arid the victim must subjectively regard that environment as abusive.”
Defendants argue that Laughlin could not have experienced a hostile work environment because Santora’s remarks were about black women on, the street rather than about Laughlin or his co-workers. The case Defendants primarily rely on is inapposite. The plaintiff police officers in Wimmer v. Suffolk County Police Department overheard their co-workers make racist remarks to citizens.
Still, it is unlikely that Laughlin was actually subjected to an actionable hostile work environment, even though he was the 'recipient of sexist, and potentially racist, remarks. While Santora’s comments were inappropriate and offensive, they do not seem to have affected the workplace to such a degree that a reasonable person would have found it more difficult to do Laughlin’s job. “Title VII is not a ■‘general civility code,’ and thus conduct is not illegal just because it is uncomfortable, or inappropriate,”
But that does not end this action — that Laughlin did not actually experience a hostile work environment does not mean his retaliation claim must fail.,' “Under Title VII, an employee is protected against employer retaliation for opposing any practice that the employee reasonably believes to be a violation of Title VII.”
Laughlin was obviously offended by Santora’s comments. Laughlin “let [Santora] know the stuff [Santora] was saying” made Laughlin “uncomfortable with' the way [Santora]- was saying things and what [Santora] was saying.”
But even though Laughlin complained in good faith, only reasonable complaints are considered “protected activity.” While employees should be encouraged to report this sort of boorish behavior to their superiors, they are not immediately protected from any adverse employment action whenever they complain about their coworkers. Although this is a close case, the Court concludes that it was objectively unreasonable for Laughlin to believe that Defendant Sántora’s remarks constituted illegal discrimination. Laughlin is not held to know exactly what would or would not constitute discrimination under the law.
Because Laughlin has not established that he engaged in protected activity, his claim fails. As explained in the next section, however,' even if Laughlin’s complaints did constitute protected activity, they were not the but-for cause of his termination.
Defendants also argue that even if Laughlin engaged in protected activity by complaining about discrimination, it was not the reason he was given bad reviews or fired. They say he was simply an inadequate worker. The evidence supports Defendants’ position.
To make out a prima facie case of retaliation, the plaintiff must prove “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”
The City relied on Laughlin’s bad performance reviews in making the decision to terminate him. Superintendent Tomko also recommended, based on the second performance evaluation and the related recommendation of Maintenance Supervisor Smith, that the Commissioner fire Laughlin.
Defendant Santora wrote Laughlin’s second, and most negative, performance review around December 14, 2012, about two weeks before Laughlin approached Superintendent Tomko about filing a written complaint against Santora. In that review, Santora gave Laughlin uniformly bad scores, concluding that Laughlin “wasn’t retaining the knowledge needed to perform job duties,” “always walked away [from] difficult tasks,” and “was not open to constructive criticism.”
Laughlin also points to an incident report Santora wrote on December 27, 2012, as evidence that Santora retaliated against Laughlin.
Laughlin’s third performance review, completed by foreman Phillip Lewis after Laughlin had been on his crew for about a week, also describes Laughlin as a below-average worker. Lewis ranked Laughlin’s performance to be unsatisfactory in fhree of six categories, including job knowledge, motivation, and quality of work.
These performance reviews fit into a broader narrative of Laughlin-as someone who started out well enough, but simply did not improve as much as needed to justify keeping him as an employee. The statements of Laughlin’s co-workers that were obtained during the post-termination investigation also support this. Stephen Skapura, a sewer service worker on Defendant Santora’s crew, said that he “tried to show [Laughlin] some things, but [Laughlin] did not appear motivated.”
Although the Court must take all reasonable inferences in favor of the non-moving party, the evidence does not permit the inference that impermissible retaliation was the sole motivating factor in the City’s decision to fire Laughlin. Foreman Lewis’s performance review is highly probative, as it shows that Laughlin had not adequately progressed in his job performance to merit continued employment. The City thus had a legitimate reason for firing Laughlin, based on his failure to learn the skills necessary for the job.
Similarly, even if there were some retaliatory motive for Santora’s second review, that is not enough for Laughlin to win. No reasonable jury could say that retaliation was the sole, but-for cause of the bad review. Laughlin’s poor work — as described by foreman Lewis and Laughlin’s co-workers — -was an adequate and legitimate reason for the bad review. And to the extent that the City’s decision to fire Laughlin flowed from the bad review, again, it would have been based at least in part on the City’s legitimate concerns about Laughlin’s poor work.
IV. Conclusion
For the reasons above, the Court GRANTS Defendants’ "motion for summary judgment.
IT IS SO ORDERED.
Notes
. Doc. 17. Laughlin opposes. Doc. 18. Defendants have replied. Doc.19.
. Doc. 17-6 at 40-41.
. Id. at 54.
. Id.
. Id.
. Rotating between crews likes this was standard operating procedure: new employees would periodically move between crews to ensure they were learning, necessary skills and to "determine the best fit.” Doc. 17-2 at 20; Doc. 18-3 at 3.
. Doc. 17-2 at 25.
. Id. at 24-25.
. Id. at 24.
. Doc. 17-3 at 28-29.
. Id. at 25; Doc. 17-2 at 25 (Laughlin described Santora berating him by saying to “get on the fucking truck,” but admitted that Santora did not make any inappropriate racial comments “directly” to Laughlin.).
. Doc. 17-2 at 27-28.
. Id. at 26-27; Doc. 17-6 at 68.
.Doc. 17-2 at 27.
. Id. at 26, 29.
. Doc. 17-6 at 71-74.
. Doc. 17-2 at 31-32; Doc. 17-6 at 70.
. Doc. 17-1 at 22-23.
. Doc. 17-2 at 32; Doc. 17-6 at 36, 68.
. See Doc. 17-2 at 32;
. Doc. 17-6 at 37.
. See id.; Doc. 17-4 at 19.
. Doc. 17-6 at 37.
. Id. at 1.
. Id. at 3.
. See id. at 5-6 ("Employee needs to show what he knows [and] can do.”).
. Doc. 17-2 at 13; Doc. 17-4 at 21-22.
. Doc. 17-4 at 23-26.
. Doc. 17-6 at 68-70.
. See Doc. 17-4 at 23.
.Doc. 1-2 at 10.
. Killion v. KeHE Distribs., LLC,
. See Celotex Corp. v. Catrett,
. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
. Id. at 586,
. Killion,
. 42 U.S.C. § 2000e-3(a).
. 42 U.S.C. § 2000e-2(a)(l).
. Ohio Rev.Code § 4112.02(1).
. See id. § 4112.02(A).
. See Genaro v. Cent. Transp., Inc.,
. See Imwalle v. Reliance Med. Prods., Inc.,
. Defendants have not challenged that Laughlin experienced an "adverse action.”
. Neither party has addressed the second and third stages of the burden-shifting framework applicable to this case. Instead, they focus only on Laughlin's ability to make out a prima facie case. As such, any arguments related to these issues have been forfeited, and the Court will also focus its attention only on the prima facie case. But since Laughlin fails to make out a prima facie case, the Court would not have had to reach the second and third stages anyway.
. Bowman v. Shawnee State Univ.,
. Harris v. Forklift Sys., Inc.,
. Oncale v. Sundowner Offshore Servs., Inc.,
.
. EEOC Compliance Manual on Race and Color Discrimination, át 15-36 (2006), available at www.eeoc.gov/policy/docs/race-color. pdf (citing Oncale,
. See, e.g., Faragher v. City of Boca Raton,
. Johnson v. Univ. of Cincinnati,
. Id.
. See Wasek v. Arrow Energy Servs.,
. See Williams v. Gen. Motors Corp.,
. Doc. 17-2 at 17-28.
. Id. at 28.
. See Wasek,
. Cf., e.g., Trujillo v. Henniges Auto. Sealing Sys. N. Am., Inc., 495 Fed.Appx, 651, 656 (6th Cir.2012) (“A reasonable person in [the plaintiff's] position, particularly one without legal training, could conclude that [his manager’s] comments constituted hostile environment discrimination in violation of Title VII.” (emphasis added)).
. See Harris,
. Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S.-,
. Seoane-Vazquez v. Ohio State Univ.,
. Goodsite v. Norfolk S. Ry. Co.,
. Id. (citations omitted).
. Doc. 17-1 at 21-22, 33-35.
.' Doc. 17-6 at 2-3.
. See Doc. 18 at 20.
. Doc. 17-6 at 33-34.
. Doc. 17-3 at 18; Doc. 17-6 at 70.
.. Doc. 17-6 at 1-2.
. Id. at 5-6.
. Cf. Doc. 17-3 at 56-58 (Santora described having had only a few sociál interactions with Lewis).
. Doc. 17-6 at 69.
. Id.
. See id.
