ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Memphis Light, Gas, & Water Company (“MLG &
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1985, Plaintiff, a 55 year-old African-American male, began working for Defendant. Pl.’s Am. Resp. To Def.’s Mot. For Summ. J.(“Pl.’s Am. Resp.”) p. 1. For approximately two years, Plaintiff performed the job of a pre-apprentice mechanic’s helper (“mechanic’s helper”) in MLG & W’s Department of Transportation (“DOT”). Id. Thereafter, Plaintiff completed a four-year apprentice mechanic program, and then progressed to the position of journeyman mechanic (“mechanic”) after successfully completing the Mechanic’s Top Out Test (“MTOT”) and the Hands On Test. Id. Plaintiff worked as a mechanic from 1991 through December 31, 1997. Id. From August 26, 1985 through December 31, 1997 Plaintiff received satisfactory job performance evaluations, with the exception of one written reprimand in 1991 for the unauthorized use of a company vehicle and leaving the workplace without permission. Id., Ex. B.
On February 19, 1997, Plaintiff passed the MTOT a second time. Id. at 2. A passing score on the MTOT remained valid for five years. Id. On December 18, 1997, a crew leader mechanic (“crew leader”) position became available. Id. To be a crew leader, an employee was required to successfully complete the MTOT and be in the “line of progression.” 1 Id. Effective January 1, 1998, Defendant promoted Plaintiff to the vacant position of second shift, crew leader of the Heavy Equipment Shop because he passed the MTOT and was next in the line of progression. Id. Matt Brown, a Caucasian male, had more seniority than Plaintiff at the time position became available, however, Mr. Brown did not have a current, passing score on the MTOT. Id, Ex. D.
Tim Dunahoo was Plaintiffs foreman at the Heavy Equipment Shop, and George Slager was Mr. Dunahoo’s supervisor.
Id
Both individuals are Caucasian.
Id
On June 8, 1998, Plaintiff applied for a foreman position in MLG & W’s DOT.
Id.
Plaintiff maintains that he made repeated verbal and written inquiries to management about attending the Foreman Development Training class. Plaintiff alleges, however, that he received no response to his inquiries for several months.
Id.
Plaintiff contends that he later received an impromptu telephone call from Mr. Slager, advising him to report to the training center.
Id
at 2-3. Plaintiff asserts, however, that he was informed that he was to take a test rather than receive training after reporting to the training center.
Id
at 3. As
From June through October 1998, Mr. Dunahoo wrote a series of personal notations, which were added to Plaintiffs file, memorializing complaints and concerns that Mr. Dunahoo had about Plaintiffs documentation abilities. Id., Ex. F. Plaintiffs employment file indicates that on October 12, 1998, Mr. Dunahoo gave Plaintiff a typewritten note which stated that “it is [Plaintiffs] responsibility to make sure that your paper work [sic] is correct. Please put more effort into this area of your job.” Id. On November 11, 1998, Plaintiff received an oral reprimand from Mr. Dunahoo for turning in incomplete or incorrect paperwork. Id.
On December 15, 1998, and January 5, 1999, Plaintiff received overall ratings of “effective” on performance appraisals. Mr. Dunahoo noted, however, that Plaintiff needed to continue his improvement in the areas of paperwork and decision-making. Id. On March 31, 1999, Mr. Dunahoo issued Plaintiff a written reprimand, also signed by Mr. Slager, for improperly modifying equipment. Aff. of Timothy D. Du-nahoo (“Dunahoo”) ¶ 9, Ex. 6.
On April 12, 1999, Mr. Dunahoo performed Two Minute Review of Plaintiffs performance in which he rated Plaintiffs performance as “effective,” with a notation that Plaintiffs paperwork was much improved. Pl.’s Am. Resp. p. 3, Ex. J. Mr. Dunahoo attested that he performed Two Minute Reviews and other performance appraisals of all mechanics and crew leaders that he supervised and that the purpose of the reviews was to allow the employees to know their performance level. Aff. of Dunahoo ¶ 4. On June 23, 1999, Mr. Dunahoo performed another Two Minute Review of Plaintiff, in which he gave Plaintiff an overall performance rating of “effective,” but noted that Plaintiff needed improvement in the areas of leadership, problem analysis and decision-making, and paperwork. Pl.’s Am. Resp. p. 3, Ex. J. Specifically, Mr. Dunahoo opined that Plaintiff “[did] not leave details on ongoing work ... [but] seem[ed] to be making efforts to improve.” Id.
On July 22, 1999, Plaintiff received a written reprimand for failure to 1) install a windshield control module, delay and 2) leave a note informing Mr. Dunahoo of the location of the module. Aff. of George M. Slager (“Slager”) ¶ 9. Plaintiff challenged the written reprimand through his union grievance procedure. Pl.’s Am. Resp. p. 3, Ex. K. Plaintiff, Mr. Slager, Mr. Dunahoo, and Rick Rethea, the Union Steward, were present during grievance hearing which was held on March 23, 2000. Id. After the hearing, the reprimand was downgraded to an oral reprimand. Aff. of Slager ¶ 9. Plaintiff asserts that, after the hearing, Mr. Slager told him that he “had better dot every T and cross every ‘t.’ ” Pl.’s Am. Resp. p. 3, Ex. K. Plaintiff also asserts that, after this hearing, his performance evaluations began to steadily decline and that other employees knew that George Slager was out to “get him.” Id.
On September 21, 1999, Plaintiff replaced the break pads on a vehicle, but did not pump the break pedal after finishing. Aff. of Slager ¶ 10. When Plaintiff moved the vehicle, the breaks failed to work, causing the vehicle to crash into a wall. Id. On October 1, 1999, Mr. Dunahoo performed a Two Minute Review in which he found that Plaintiff “need[ed] improvement” in several areas, including quality of work, quantity of work, leadership, and paperwork. Pl.’s Am. Resp. p. 3, Ex. K. Plaintiff received an overall performance rating of “needs improvement.” Id.
On October 25, 1999, Plaintiff, John Collins (then Manager of MLG & W’s DOT), Paul Brasfield (MLG & W’s DOT Training Coordinator), Mr. Dunahoo, and Mr. Slag-
Plaintiff, however, disagrees with Mr. Collins’ account of the October 25, 1999 meeting and the occurrence of events thereafter. Pl.’s Am. Resp., Ex. N, Aff. of PI. ¶ 7. With respect to the proposed training discussed by Mr. Collins at the October 25, 1999 meeting, Plaintiff asserts that Mr. Slager advised him to report to Frances Brewer, a Training Coordinator at MLG & W, to receive paperwork training. Id., Ex. N, Aff. of PI. ¶ 1. Plaintiff reported to the training center on December 16, 1999. Id., Ex. N, Brewer Ex. 1. Ms. Brewer indicated that Plaintiff told her that he was not informed of the reason he was to report to the training center. Id. At the training session, Ms. Brewer administered “some” McGraw-Hill tests to Plaintiff. Id. Mr. Slager asserted in an affidavit that, on December 22, 1999, he received Ms. Brewer’s written assessment of Plaintiffs December 16, 1999 training session, which also indicated that Mr. Slag-er has spoken with Ms. Brewer about Plaintiffs training session. Id. at 12, Ex. J. However, Mr. Slager denied during deposition testimony that he saw Ms. Brewer’s assessment of Plaintiffs December 16, 1999 training session or that he spoke with Ms. Brewer about Plaintiffs training session. Pl.’s Am. Resp., Ex. 0, Slager Dep. pp. 81-82. The assessment indicated that Plaintiff did not follow directions well. Id.
Ms. Brewer testified that she discarded all documents related to Plaintiffs training when she moved to a new office. Id., Ex. N, Brewer Dep. pp. 10-14. Ms. Brewer stated, however, that she did not know of Plaintiffs pending litigation when she discarded the documents. Id.
Plaintiff attested that the training he received from Ms. Brewer “consisted of her giving [him] a piece of paper and asking [him] to follow instructions and complete the assignment.” Id., Ex. O, Aff. of PI. ¶ 3. Moreover, Plaintiff maintained that Ms. Brewer never pointed out his errors, nor did she provide him feedback. Id. at ¶ 5. Likewise, Plaintiff stated that he was never provided any equipment repair training as indicated by Mr. Collins, except for training on the “digger derrick,” which all mechanics received following a serious accident involving the operation of such a machine. Id. at ¶ 6.
At some time during or after the October 25, 1999 meeting, Mr. Collins asserts that he told Mr. Dunahoo and Mr. Slager, as Plaintiffs immediate supervisors, to document Plaintiffs performance so he could determine whether Plaintiff was capable of performing the job of crew leader and whether Mr. Slager and Mr. Dunahoo made appropriate efforts to help Plaintiff improve his performance. Aff. of Collins ¶ 4. On October 27, 1999, Plaintiff received
On December 20, 1999, Mr. Dunahoo completed a performance appraisal of Plaintiff. Aff. of Dunahoo ¶ 11, Ex. 8. Plaintiff received an overall rating of “needs improvement,” and the appraisal noted that Plaintiff needed to improve his written communication skills, paperwork, and technical knowledge required to repair automotive vehicles. Id.
Mr. Collins decided in fall of 1999 to eliminate the second shift of the Heavy Equipment garage. Aff. of Slager ¶ 14. Plaintiff was initially reassigned to the first shift of the Heavy Equipment garage, however, it was later determined that a crew leader was not needed on the first shift. Id. Plaintiff therefore was transferred in mid-December 1999 to Defendant’s North Service Center garage in the position of crew leader of the third shift. Id. at 15. From the time of Plaintiffs transfer until March 1, 2000, Plaintiffs immediate supervisor/foreman , was Kevin Jackson, a Caucasian male. Id.
On February 14, 2000, Mr. Slager suspended Plaintiff for one day (February 16, 2000) for failure to perform preventative maintenance (“PM”) inspections satisfactorily. The letter suspending Plaintiff was dated January 14, 2000, however, the word “January” was marked thru and the word “February” was handwritten underneath. Id. at ¶ 16, Ex. L. The letter stated that Mr. Slager inspected three trenchers at the North Service Center on February 9, 2000, and found all three to have worn out components. Id. Furthermore, Mr. Slager asserted that Plaintiff had inspected the trenchers on January 20-21, 2000, indicating that the preventative maintenance (“PM”) inspections were not performed satisfactorily. Id. Mr. Slager later testified that the trenchers had not been moved since January 20-21, 2000. Dep. of Slager pp. 63-67. One of the trenchers, however, apparently had been moved because Defendant’s records indicate that from January 20, 2000, through February 8, 2000, the equipment had an increase of 20 meter hours. Pl.’s Am. Resp., Ex. Q. Stewart Webb, William McBride, and Clifton Milton, all Caucasians, performed repairs on the trencher on February 8-9, 2000. Id. Plaintiff asserted that all of the trenchers had been in service in excess of twenty-five hours, before Mr. Slager performed the February 9, 2000 inspection. Dep. of PI. pp. 179-80. Mr. Dunahoo also stated that Mr. Slager normally did not perform PMs. Dep. of Dunahoo pp. 48-49.
On February 9, 2000, Kevin Jackson gave Plaintiff a performance appraisal of “needs improvement” on a Two Minute Review. Pl.’s Am. Resp., Ex. V. The review indicated that Plaintiff “did not complete PM list” in one instance, but later states that Plaintiff. “did complete PM list.” Id. Mr. Jackson also wrote a letter, dated February 3, 2000, to Mr. Slager in which he told Mr. Slager that Plaintiff and the third shift of the North Service Center failed to complete the PMs for January 2000. Id. Defendant’s computerized printouts indicate that there were no incomplete PMs at the North Service Center during January 2000 or February 2000. Id.
On March 1, 2000, Mr. Collins demoted Plaintiff from crew leader to mechanic.
Id.,
Ex. W. Mr. Collins asserted that Plain
On March 8, 2000, Matt Brown replaced Plaintiff in the position of crew leader of the third shift. Pl.’s Am. Resp. p. 5. Mr. Brown did not have a valid MTOT score when he assumed the position. Id., Ex. D. On March 13, 2000, Plaintiff filed a grievance challenging his demotion from crew leader to mechanic. Id., Ex. X. The grievance was denied on April 3, 2000. Id.
From March 8, 2000 through October 30, 2000, Mr. Williams made numerous written, notes, concerning Plaintiffs performance and activities. Aff. of Robert Allen Williams, Jr. (“Williams”) ¶¶4-38. Mr. Williams attested that he made notes regarding all mechanics who he supervised and then referred to his notes to complete Two Minute Reviews and performance appraisals. Id. at ¶ 38. Mr. Williams also stated that of the mechanics he supervised Plaintiffs performance was most frequently inadequate. Id.
Mr. Williams also performed numerous Two Minute Reviews and two performance appraisals of Plaintiff between March 2000 and March 2001. Id. at 1Í 39. Plaintiffs Two Minute Reviews, dated March 31 and May 5, 2000, indicate that he received overall performance ratings of “needs improvement” and that Plaintiff needed improvement in the areas of work quality, work quantity, job knowledge, and dependability. Id. On April 25, 2000, Mr. Slager suspended Plaintiff for five-days because of poor diagnosis of problems needing repairs. Aff. of Slager ¶ 18, Ex. N. The suspension form stated that the incidents for which Plaintiff was being disciplined were “two examples of [his] poor diagnostic skills and workmanship that cause[d] [Defendant’s] customers not to have their equipment when they need[ed] it.” Id. On April 26, 2000, Plaintiff filed an internal charge of race discrimination with the Equal Employment Compliance (“EEC”), alleging harassment, failure to promote, and refusal to provide training. Pl.’s Am. Resp., Ex. 1. Plaintiff alleged that Mr. Slager, Mr. Dunahoo, Mr. Williams, and Mr. Collins were the perpetrators of the discrimination against him. Id.
Mr. Williams performed additional Two Minute Reviews of Plaintiff on June 12, July 12 and September 8, 2000. Plaintiffs overall performance ratings on these reviews were listed as “effective” with the comment “showing some improvement in job performance” — June 12, 2000; “effective” with the comment “needs to continue with improvements on job performance and attendance” — July 12, 2000; and “unsatisfactory” — September 8, 2000. Aff. of Williams ¶ 39, Exs. 29-35. On October 31, 2000, Mr. Williams completed a performance appraisal of Plaintiff, which Mr. Slager approved, for the period of March 1, 2000 to October 31, 2000. Id. at ¶ 40, Ex. 37; Aff. of Slager ¶ 19. Mr. Williams rated Plaintiffs overall performance as “unsatisfactory.” Id. Plaintiff received a rating of “unsatisfactory” in the areas of quality of work, quantity of work, job knowledge, and dependability. Aff. of Williams ¶ 40, Ex. .37. Mr. Williams’ comments on the appraisal include statements such as “quality of repairs are not up to standard’s due to come back’s [sic],” “has a very limited knowledge,” and “needs more training in trouble shooting and diagnostic skills.” Id. Mr. Williams also stated that Plaintiff was offered additional training but refused it. Id. Plaintiff, however, indicated on the employee comment section of the review that he was not offered additional training. Id.
On November 13, 2000, Mary Helen Lo-vett, the acting DOT Manager; Plaintiff; Mr. Slager; Mr. Williams; and other members of management and personnel met to discuss Plaintiffs most recent performance. Aff. of Slager ¶ 20, Ex. P. On November, 20, 2000, Ms. Lovett memorialized the discussion from the November 13, 2000 meeting in a letter. Id. The letter stated that Plaintiff had 90 days to improve his ability to 1) evaluate the equipment and make the necessary repairs; 2) order parts necessary for repair at the beginning of the job; 3) use all available diagnostic equipment; 4) make repairs in a timely manner; and 5) make the proper repairs. Id. Furthermore, the letter indicated that Plaintiff stated that he needed a new supervisor and foreman, and training on all equipment, specifically the Terex crane and the digger derrick “c” PMs, when asked what he needed in order to improve his performance. Id. The letter also stated that, to help Plaintiff improve his performance, management would 1) ask Plaintiff questions when he ordered parts in order to determine that proper diagnosis was occurring, 2) immediately discuss with Plaintiff any problems when an incident occurred instead of waiting until Plaintiffs review, 3) train Plaintiff for the “c” PMs, 4) for a three month period, place Plaintiff on a different shift with a different manager, and 5) assist Plaintiff during repair evaluation. Id. A written notation on the letter indicates that Plaintiff refused to move to a different shift with a different foreman. Id.
After the 90 day period ended, on March 1, 2001, Mr. Williams completed a performance evaluation of Plaintiff for the period of November 1, 2000 to February 28, 2001. Aff. of Williams, Ex. 37. Plaintiff received an overall performance evaluation of “unsatisfactory.” Id. In the areas of quality of work, quantity of work, dependability, and material utilization, Plaintiff received a rating of “unsatisfactory.” Id. Mr. Williams stated that Plaintiffs quality of repairs were not up to standard because of Plaintiffs “come back” work, poor diagnosis, and troubleshooting skills. Id. The evaluation also stated that Plaintiff had a very limited knowledge, and needed training in troubleshooting, diagnostic skills, and basic electrical repairs. Id. Effective March 1, 2000, Ms. Lovett recommended to MLG & W’s Personnel Department that Plaintiff be demoted from mechanic to mechanic’s helper and reassigned to Defendant’s Brunswick Service Center garage. Aff. of Slager 24, Ex. R. The Personnel Department approved the demotion. Id.
Plaintiff asserts that sometime during 2001, after' his transfer to the Brunswick Road Garage and demotion to mechanic’s helper, Kevin Jackson, Plaintiffs previous foreman, told him that “[y]ou can be right and although you’re right, you’ll be wrong.” Dep. of Pl. p. 49. Manuel Luna, a Hispanic-American, stated that he recalled an instance in 2001 when Kevin Jackson made the comment, while discussing Mr. Jackson’s former residence, that “as soon as one of the blacks moved in to [sic] that neighborhood he knew that the neighborhood was going to go down.... ” Dep. of Luna pp. 8-9. Mr. Luna also asserted that a mechanic once called him an “F-ing wetback.”
Id.
at 10. No supervisor nor foreman was present when the mechanic made the comment, and Mr.
Likewise, James Summers, an African-American mechanic, maintained that midyear 2000 he heard Chris Proctor say that Mr. Proctor heard someone make the- comment that “[i]f it wasn’t for these dumb-ass n[.] we would have a better place to work.” Dep. of Summers p. 10. Mr. Summers further stated that he did not know whether Mr. Proctor’s statement was trae or whether Mr. Proctor was trying to stir up trouble. Id. The incident, however, was never reported to a member of management. Id. at 10-13. Mr. Summers also stated that Kevin Jackson once made the statement that “the Civil War wasn’t over.” Id.
Huberto Tagavilla, a Filipino-American foreman, asserted that during the 1970’s and/or early 1980’s he heard people at work make racially derogatory phrases, such as “a dumb n[.].” Dep. of Taga-villa pp. 8-13. Mr. Tagavilla further maintained that he had not heard any racial remarks in the last ten years. Id. at 10. Mr. Tagavilla did opine, however, that he felt that he was being harassed and that the work environment appeared to be reverting back to a 1960’s mentality. Id at 13. Mr. Tagavilla stated that he did not have any facts to support his feelings. Id.
Kevin Jackson admitted that he heard that James Fowinkle, a Caucasian crew leader who Mr. Jackson supervised, came to work intoxicated and was taken home by Roy Brown, an African-American Supervisor. Dep. of Jackson pp. 21-22. Mr. Jackson apparently was not Mr. Fowin-kle’s foreman at the time of the incident. Id. Mr. Jackson stated that during the time that he supervised Mr. Fowinkle, Mr. Fowinkle had attendance problems because of personal issues. Id. at 24. According to Mr. Jackson, Mr. Fowinkle told Mr. Slager, the then-acting Supervisor, about his personal problems, and Mr. Slag-er “handled” the situation. Id. at 24. Mr. Jackson stated that a performance evaluation of Mr. Fowinkle may not have been completed during the time period when Mr. Fowinkle was having personal problems, but that he could not recall without reviewing Mr. Fowinkle’s file. Id. at 25.
Mr. Dunahoo served as the foreman and Mr. Slager served as the supervisor of Daniel Theriault, a Caucasian mechanic. PI. Resp. To Def. Mot. For Summ. J., Ex. 14. Mr. Theriault received numerous safety violations, negative performance evaluations, and “to file” complaints from October 2000 through February 2002. Id. Mr. Slager suspended Mr. Theriault two times in 2001 — the first time on May 3rd for a period of one day and the second time on October 2nd for a period of three days. Id. Mr. Dunahoo admitted in deposition testimony that Mr. Theriault was not demoted from mechanic to mechanic’s helper. Id.
On February 6, 2001, Plaintiff filed a charge of discrimination with the EEOC, alleging that his demotion from crew leader to mechanic and the discipline he had received was because of his race or in retaliation for the filing grievances. PL’s Resp. Def.’s, Ex. 6. On February 15, 2001, Defendant received notice of Plaintiffs initial EEOC Charge. Id. After Plaintiffs demotion on March 1, 2001, Plaintiff filed a second EEOC Charge on March 7, 2001, which asserted that Defendant retaliated against Plaintiff by demoting him from mechanic to mechanic’s helper because he filed an EEOC Charge on February 6, 2001. Id, Ex. 9.; Aff. of Samuel L. Tune 113.
Plaintiff received a Right to Sue Letter from the EEOC on October 11, 2001. Pl.’s Am. Resp. p. 7. On January 7, 2002, Plaintiff filed suit in this Court, asserting claims
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment may be granted if no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are those facts which are defined by substantive law and are necessary in order to apply the law.
Anderson v. Liberty Lobby, Inc.,
In evaluating
a
motion for summary judgment, the evidence, facts, and any inferences must be viewed in a light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
III. ANALYSIS
A. Equitable Tolling
As an initial matter, pursuant to 42 U.S.C. § 2000e-5(e)(l), Defendant argues that Plaintiffs claims premised upon discrete acts occurring more than 300 days prior to the filing of Plaintiffs initial EEOC Charge are time-barred. Plaintiff filed his initial charge with the EEOC on February 6, 2001. Defendant therefore maintains that Plaintiff is barred from pursuing any claims for discrimination or retaliation based on any discrete acts occurring before April 18, 2000. Plaintiff, however, ásserts that the Court should apply the doctrine of equitable tolling to any discrete acts that were untimely filed with EEOC. For the following reasons, the Court finds that Plaintiff is prohibited from premising his claims for retaliation or discrimination on any discrete acts occurring prior to April 18, 2000 — 300 days before his initial filing of an EEOC charge — absent the application of equitable tolling. The Court must, therefore, determine whether this case presents a situation where equitable tolling is appropriate.
1. Discrete Acts of Retaliation and/or Discrimination
In
National Railroad Passenger Corp. v. Morgan,
Moreover, the Court noted that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.
Id.
at 123,
Courts have held that equitable tolling is appropriate in cases of active deception such as where an employee has been “ ‘lulled into inaction by her past employer, state or federal agencies, or the courts.’ ”
EEOC v. Dillard’s Dep’t Stores, Inc.,
In the instant action, Plaintiff filed his initial EEOC Charge on February 6, 2001, alleging discrimination and retaliation. On April 26, 2000, Plaintiff filed an internal charge of race discrimination with Defendant’s EEC, alleging harassment, failure to promote, and refusal to provide training. On October 10, 2000, the EEC of MLG & W issued a letter finding no cause. The letter further notified Plaintiff that he had 300 days from the date of the alleged occurrence to file a charge with the EEOC.
These facts do not indicate that Defendant lulled Plaintiff into inaction or actively misled or prevented Plaintiff from asserting his rights. As such, the Court finds that equitable tolling is not appropriate in this case. Plaintiff, therefore, cannot premise his claims for discrimination or retaliation on discrete acts occurring before April 18, 2000. Such acts, however, may be considered as background evidence in support of a timely claim.
2. Timely Filing of Charge of Hostile Work Environment
Plaintiff argues that he was subject to hostile work environment/racial harassment.
2
Plaintiff appears to rely in
In
Bray v. Palm Beach Co.,
Plaintiff alleged in his first EEOC Charge that Defendant discriminated against him based on race and in retaliation. The charge specifically states:
I have been demoted and subjected to discipline since March 2000. I have filed grievance [sic] in those regards. In retaliation for filing those grievances, I have been issued unsatisfactory performance evaluations. During the period in which I was discriminated against, I was the only Black employee in my job classification.
I believe that I have been discriminated against because of my race, Black[,] and retaliated [against] for complaining about race discrimination in grievances in violation of Title VII....
The second EEOC Charge filed by Plaintiff only asserts a claim for retaliation for filing the first EEOC Charge. Thus, Plaintiff did not explicitly assert in either EEOC charge that he was subject to a hostile work environment. The Court finds, however, that the cause of action stated in the complaint falls within the scope of the EEOC investigation that was reasonably expected to grow out of the charge of discrimination from the initial EEOC Charge. Plaintiff asserted that he was demoted and subjected to discipline as a result of race discrimination. An investigation of these allegations would have led the EEOC to examine whether a hostile work environment existed. The Court now must determine whether Plaintiff has timely filed a charge of hostile work environment with the EEOC.
In
Morgan,
the Court stated that “the incidents comprising a hostile work environment are part of one unlawful employment practice, [therefore,] the employer may be liable for all acts-that are part of [the] single claim.”
Morgan,
In the instant action, on February 6, 2001, Plaintiff filed a charge alleging discrimination based on the discipline and demotion he had received. The discipline and negative evaluations were ongoing. Furthermore, this Court determined previously that Plaintiffs claim for hostile work environment was within the scope of the February 6, 2001 EEOC Charge. Accordingly, Plaintiff has satisfied the requirement of filing a timely charge of hostile work environment. All of Defendant’s allegedly harassing acts may be considered, therefore, when evaluating whether Plaintiff established a prima facie case of hostile work environment/racial harassment.
Plaintiff alleges that Defendant discriminated against him when it negatively disciplined, evaluated, and demoted him. Specifically, Plaintiff asserts that his demotions to mechanic and then to mechanic’s helper were the result of discrimination. As discussed previously, however, Plaintiff may not rely on his demotion to crew leader on March 1, 2000, to establish a prima facie case of discrimination because the demotion was a discrete act not timely filed. To prevail on a claim of disparate treatment discrimination, a plaintiff must show discriminatory animus.
Huguley v. General Motors Corp.,
1. Direct Evidence
“[D]ireet evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor” in the adverse employment decision at issue.
Price Waterhouse v. Hopkins,
In the instant action, the adverse employment actions at issue which the Court may consider as timely filed include Plaintiffs April 25, 2000 suspension by Mr. Slager for five-days and his demotion from mechanic to mechanic’s helper on March 1, 2001. Plaintiff offers the following as direct evidence of Defendant’s discriminatory animus:
1) Kevin Jackson’s alleged statement to Plaintiff, after Plaintiffs transfer to the Brunswick Road Garage and demotion to mechanic’s helper in 2001, that “[y]ou can be right and although you’re right, you’ll be wrong;”
2) Manuel Luna’s assertion that he recalled an instance in 2001 when Kevin Jackson made the comment, while discussing Mr. Jackson’s former residence, that “as soon as one of the blacks moved in to [sic] that neighborhood he knew that the neighborhood was going to go down...;”
3) Mr. Luna’s statement that a mechanic once called him a “F-ing wetback;”
4) James Summers’ assertion that midyear 2000 he heard Chris Proctor say that Mr. Proctor heard someone make the comment that “[i]f it wasn’t for these dumb-ass n[-] we would have a better place to work;”
5) Mr. Summers’ statement that he heard Kevin Jackson once make the statement that “the Civil War wasn’t over;” and
6) Huberto Tagavilla’s assertion that during the 1970’s and/or early 1980’s he heard people at work make racially derogatory phrases, such as “a dumb n[-].”
Likewise, the racial slur directed toward Mr. Luna is not direct evidence that discriminatory animus motivated Defendant’s decisions to suspend Plaintiff on April 25, 2000, or to demote him on March 1, 2001, because the statement was made by a mechanic, and not a decision maker. Additionally, Mr. Summers’ assertion that he heard Chris Proctor say that he heard someone make a discriminatory statement about African-Americans may not be used in determining whether discriminatory animus motivated Defendant’s decisions because it constitutes double hearsay. Furthermore, Mr. Summers admitted that he did not know who the “someone” was that allegedly made the statement or whether the statement was in fact made. Finally, Mr. Summers’ assertion that Mr. Jackson made the comment that “the Civil War wasn’t over,” while potentially indicative of discriminatory animus generally, may not be considered as direct evidence that unlawful discriinination was at least a motivating factor in Mr. Williams’, Mr. Slag-er’s, Mr. Collins’, or Ms. Lovett’s collective or independent decisions to suspend Plaintiff on April 25, 2000, or demote him on March 1, 2001. Having determined that no direct evidence of discriminatory animus exists with respect to Plaintiffs suspension or his second demotion, the Court must determine whether Plaintiff has established a prima facie case of race discrimination.
2. Prima Facie Case
A plaintiff may establish a prima facie case of race discrimination by showing by a preponderance of the evidence that he 1) is a member of a protected group, 2) was subject to an adverse employment action, 3) was qualified for the position, and 4) was replaced by an individual outside of the protected class or. was treated less favorably than a similarly-situated employee outside of the protected class.
Clayton v. Meijer, Inc.,
Plaintiff, an African-American, is a member of a protected class. Furthermore, Plaintiff was demoted from a mechanic to mechanic’s helper on March 1, 2001. Plaintiff has presented evidence that Mr. Dunahoo, Mr. Jackson, and Mr. Williams thought that Plaintiff was qualified to perform the job of mechanic, and Defendant has not attempted to argue that Plaintiff was unqualified. Prior to Plaintiffs promotion to crew leader, Plaintiff received satisfactory performance evaluations as a mechanic. The Court finds that Plaintiff has established by a preponderance of the evidence the first three elements of a prima facie case of race discrimination.
Defendant argues, however, that Plaintiff failed to establish that any persons similarly situated to Plaintiff, i.e., who had the frequency and extent of performance problems that Plaintiff had, were treated more favorably than Plaintiff. In response to Defendant’s argument, Plaintiff presented the employment file of Daniel Theriault, a Caucasian mechanic whose foreman was Mr. Dunahoo and whose supervisor was Mr. Slager. A review of Mr. Theriault’s file indicates that Mr. Theriault had numerous safety violations, negative performance evaluations, and “to file” complaints from October 2000 through February 2002. Mr. Slager also suspended Mr. Theriault two times in 2001 — the first time on May 3rd for one day and the second time on October 2nd for three days. Despite his negative performance- documentation and suspensions, Mr. Theriault was not demoted from mechanic to mechanic’s helper. The Court recognizes that Ms. Lovett made the final recommendation to demote Plaintiff from -mechanic to mechanic’s helper. The decision to demote Plaintiff, however, was premised apparently in large part on recommendations, reviews, and disciplinary actions either approved or instigated by Mr. Slager. The Court finds that Plaintiff has established by a preponderance of the evidence that he was treated less favorably than a similarly-situated employee outside of the protected class because Mr. Slager did not recommend or instigate the demotion of Mr. Theriault, who had a performance record as a mechanic similar to that of Plaintiff. Plaintiff has proved, therefore, a prima facie case of race discrimination.
Defendant asserts that it has articulated a legitimate, nondiscriminatory reason for Plaintiffs demotion from mechanic to mechanic’s helper, which is that Plaintiffs performance as a mechanic was so unsatisfactory as to warrant his demotion. Defendant argues that Plaintiff failed to establish that its reason is pretextual. Plaintiff maintains that his performance as a mechanic was not so unsatisfactory as to warrant a demotion because other mechanics have not been demoted for similar performance, as evidenced by Defendant’s failure to demote Mr. Theriault. The Court finds that Plaintiff has provided sufficient evidence to establish that Plaintiffs performance was insufficient to motivate his demotion because Mr. Theriault’s similarly documented poor performance did not result in his demotion. Accordingly, Defendant’s motion for summary judgment with respect to Plaintiffs claim of race discrimination based on his demotion from mechanic to mechanic’s helper is denied.
C. Retaliation Claim
Plaintiff asserts that Defendant retaliated against him in violation of Title VII.
3
In
Morris v. Oldham County Fiscal
Plaintiff filed his first EEOC Charge on February 6, 2001, and he was subsequently demoted on March 1, 2001, from mechanic to mechanic’s helper. Defendant received notice of Plaintiffs EEOC Charge on February 15, 2001. The Court finds that Plaintiff has established that he engaged in activity protected by Title VII, the exercise of protected rights was known to Defendant, and Defendant subsequently took adverse employment action against Plaintiff.
Defendant asserts that Plaintiff failed to establish the fourth element of a prima facie case of retaliation, i.e., that a causal connection exists between the protected activity and the adverse employment decision. To establish a causal connection, the plaintiff - must produce sufficient evidence from which an inference can be drawn that the adverse action would not have been taken absent participation in the protected activity.
Id.
(citations omitted). Temporal proximity between the adverse action and the protected activity is insufficient to support an inference of retaliation when no other compelling evidence has been presented.
Moon v. Transport Drivers, Inc.,
Defendant argues in effect that Plaintiff relies on temporal proximity alone to establish the “causal connection” element of retaliation. Defendant maintains that Plaintiff was informed as early as March 1, 2000, the date of Plaintiffs demotion from crew leader to mechanic, that if he failed to perform at an acceptable level he could face further disciplinary action. The only discrete act that occurred after April 18, 2000, 300 days prior to Plaintiffs timely EEOC filing of retaliation on February 6, 2001, was Plaintiffs demotion from mechanic to mechanic’s helper on March 15, 2001. 4
Thereafter, Mr. Williams performed Two Minute Reviews of Plaintiff on June 12, July 12 and September 8, 2000. Plaintiffs overall performance ratings on these reviews were listed as “effective” with the comment “showing some improvement in job performance” — June 12, 2000; “effective” with the comment “needs to continue with improvements on [sic] job performance and attendance” — July 12, 2000; and “unsatisfactory” — September 8, 2000. On October 10, 2000, the EEC of MLG & W issued a letter finding no cause. On October 31, 2000, Mr. Williams completed a performance appraisal of Plaintiff, which Mr. Slager approved, for the period of March 1, 2000 to October 31, 2000. Despite two overall performance evaluations of “effective” during this time period, Mr. Williams rated Plaintiffs overall performance as “unsatisfactory.” Mr. Williams’ comments on the appraisal include statements such as “quality of repairs are not up to standard’s [sic] due to come back’s [sic],” “has a very limited knowledge,” and “needs more training in trouble shooting and diagnostic skills.” Furthermore, Mr. Williams also stated that Plaintiff was offered additional training but refused it. Plaintiff, however, indicated on the employee comment section of the review that he was not offered additional training.
Moreover, on November 13, 2000, Ms. Lovett, Plaintiff, Mr. Slager, Mr. Williams, and other members of management and personnel met to discuss Plaintiffs most recent performance evaluation. On November, 20, 2000, Plaintiff was given 90 days to improve his work performance. After the 90 day time period ended, on March 1, 2001, Mr. Williams completed another performance evaluation of Plaintiff for the period of November 1, 2000 to February 28, 2001. Plaintiff received an overall performance evaluation of “unsatisfactory.” In the areas of quality of work, quantity of work, dependability, and material utilization, Plaintiff received a rating of “unsatisfactory.” Effective March 1, 2000, Ms. Lovett recommended to MLG & W’s Personnel Department that Plaintiff be demoted from mechanic to mechanic’s helper and reassigned to Defendant’s Brunswick Service Center garage.
Thus, after Plaintiffs filing of an internal discrimination complaint, he received an overall unsatisfactory performance evaluation despite evaluations of effective during the time period. This negative performance evaluation appears to have culminated in Plaintiffs 90 day probation period. The probation period concluded with Plaintiffs demotion to mechanic’s helper, less than fifteen days after the filing of an EEOC Charge. These facts, viewed in the light most favorable to Plaintiff, raise sufficient evidence for the Court
The Court must now determine whether Defendant has articulated some legitimate, nondiscriminatory reason for its action. Defendant asserts in effect that Plaintiffs demotion to mechanic’s helper was based on his poor work performance as evidenced by numerous poor' performance evaluations and notations to his file. Plaintiff maintains, however, that Defendant’s reason is pretextual because Michael Theriault, a mechanic who was also supervised by Mr. Slager, had as many poor performance evaluations and notations to his file but was not demoted to mechanic’s helper. Based on this, the Court finds that Plaintiff has demonstrated by a preponderance of the evidence that Defendant’s legitimate, nondiscriminatory reason was insufficient to motivate his demotion to mechanic’s helper. Accordingly, Defendant’s motion for summary judgment as to Plaintiffs claim for retaliation is denied.
D. Hostile Work Environment/Racial Harassment
Plaintiff alleges that he was subjected to a hostile work environment based on his race. To establish a claim for hostile work environment/racial harassment, the plaintiff must prove that (1) he belongs to a protected group; (2) he was subject to unwelcome harassment; (3) the harassment was based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) defendant knew or should have known about the harassment and failed to take action.
Moore v. KUKA Welding Sys.,
Plaintiff asserts that an atmosphere of racial intolerance, replete with stereotypical epithets from management and employees, permeated Defendant’s workplace. Plaintiff introduced the deposition testimony of Manuel Luna, James Summers, and Huberto Tagavilla. Mr. Luna stated that Kevin Jackson made the comment, while discussing Mr. Jackson’s former residence, that “as soon as one of the blacks moved in to [sic] that neighborhood he knew that the neighborhood was going to go down....” Mr. Luna also stated that a mechanic once called him an “F-ing wetback.” No supervisor nor foreman was present, however, when the mechanic made the comment. Furthermore, Mr. Luna did not report the incident to anyone. Mr. Luna also asserted that there were rumors of racial remarks being made, although he could not recall specifically what they were.
Mr. Summers stated that he heard Chris Proctor say that Mr. Proctor heard someone make the comment that “[i]f it wasn’t for these dumb-ass n[-] we would have a better place to work.” As the Court noted earlier, however, this cannot be used as evidence because it is clearly hearsay. Mr. Summers even stated that he did not know whether Mr. Proctor’s statement was trae or whether Mr. Proctor was trying to “stir up trouble.” Additionally, the incident was never reported to a member of management. Mr. Summers did assert, however, that Kevin Jackson once made the statement that “the Civil War wasn’t over.”
Mr. Tagavilla stated that during the 1970’s and/or early 1980’s he heard people at work use racially derogatory labels, such as “a dumb n[.].” Mr. Tagavilla further asserted that he had not heard any racial remarks in the last ten years. Mr. Tagavilla did opine, however, that he felt that he was being harassed and that the work environment appeared to be reverting back to a 1960’s mentality. Mr. Taga-
Plaintiff also contends that he was subject to unwelcome harassment because he was subject to harsher discipline than his Caucasian counterparts and because he received an overwhelming amount of negative documentation. Plaintiff cannot rely, however, on the number of written documents/evaluations alone to establish that he was subject to unwelcome harassment. Plaintiffs managers maintained detailed records of the performance of all of the employees who they managed. Furthermore, it is apparent that such documentation, whether positive or negative, also was performed on Caucasian employees, as evidenced by the voluminous personnel file of Mr. Theriault. As such, the Court cannot conclude that the documentation itself was based on race. The question that arises, however, is whether the negative evaluations were based on Plaintiffs race.
Given the inconsistencies presented regarding the facts and circumstances surrounding some of Plaintiffs performance evaluations and disciplinary actions, the Court finds that the negative documentation may be considered as evidence that at least some of Plaintiffs negative performance evaluations were based on race. For instance, Mr. Slager in deposition testimony stated that three trenchers that he inspected on which Plaintiff had performed PMs had not been moved since Plaintiffs PMs. Mr. Slager suspended Plaintiff as a result of his inspection. At least one of the trenchers, however, apparently was moved because Defendant’s records indicate that from January 20, 2000, through February 8, 2000, the equipment had an increase of 20 meter hours. Furthermore, Plaintiff asserted that all of the trenchers had been in service in excess of twenty-five hours, before Mr. Slager performed the February 9, 2000 inspection. Likewise, a review performed by Kevin Jackson indicated that Plaintiff did not complete his PMs in January 2000. On February 3, 2000, Mr. Jackson reiterated to Mr. Slager that Plaintiff and the third shift of the North Service Center failed to complete the PMs for January 2000. Defendant’s computerized printouts indicate, however, that there were no incomplete PMs at the North Service Center during January or February 2000. Based on the foregoing, the Court concludes that Plaintiff has established by a preponderance the first three elements of a prima facie case of hostile work environment, i.e., Plaintiff is an African American who was subject to unwelcome harassment based on race.
Defendant appears to argue, however, that the alleged harassment did not affect a term, condition, or privilege of employment. Harassment affects a “term, condition or privilege of employment” if it is sufficiently severe or pervasive to alter the conditions of the plaintiffs employment and to create an abusive working environment.
Moore,
Courts must consider the totality of the circumstances in determining whether, objectively, the alleged harassment constitutes a hostile work environment.
Williams v. General Motors Corp.,
Plaintiff asserts that as a result of the negative performance evaluations and disciplinary actions, he could not sleep at night and would return to the workplace to make certain that he had not made mistakes. Furthermore, Plaintiff maintains that his anxiety level increased to the point of requiring medication. Based on the totality of the circumstances, the Court finds that sufficient evidence exists for a reasonable person to find Plaintiffs work environment hostile or abusive. The Court’s determination is based on the number of negative evaluations and the severity of the resulting disciplinary actions which could be found by the trier of fact to have been motivated by race, when viewed in light of Defendant’s inconsistent assertions. Moreover, the Court notes that the conduct is of the type that could be found to unreasonably interfere with an employee’s work performance. While the comments allegedly heard by other employees are for the most part inadmissible or irrelevant when determining whether the harassment was so severe or pervasive to alter the terms or conditions of employment, the Court recognizes that comments by Mr. Jackson, such as the Civil War comment, bolster Plaintiffs assertion that a hostile work environment existed. The Court concludes that Plaintiff has established that Defendant’s conduct could be found to be so severe or pervasive as to alter the conditions of the Plaintiffs employment. The Court also finds that Plaintiff has proven by a preponderance of the evidence that Defendant knew or should have known about the conduct in light of the fact that managers, supervisors, and department heads were involved in the disciplinary actions. Accordingly, the Court finds that Plaintiff has sufficiently alleged a prima facie case of hostile work environment such that Defendant’s motion for summary judgment must be denied.
IV. CONCLUSION
For the reasons stated herein, Defendant’s motion for summary judgment is granted with respect to Plaintiffs claims for race discrimination and retaliation premised on discrete acts occurring before April 18, 2000. Defendant’s motion for summary judgment is denied, however, as to Plaintiffs claims for race discrimination and retaliation based on Plaintiffs demotion on March 1, 2001, from mechanic to mechanic’s helper. Furthermore, the Court denies Defendant’s motion for summary judgment with respect to Plaintiffs claim for hostile work environment/racial harassment.
Notes
. Based on the record, the Court presumes that "line of progression" refers to seniority.
. Plaintiff does not specifically assert a cause of action in the complaint for hostile work environment. Plaintiff does allege, however, that “the hostility levied against the Plaintiff in the workplace continued to intensify, including the utterances of racial remarks by foreman, Alan Williams, white male.” Compl. ¶ 23. Furthermore, Defendant does not argue that Plaintiff failed to satisfy the jurisdictional requirement of asserting a claim for hostile work environment that was within the scope of the EEOC Charges. Instead, Defendant appears to assert that Plaintiff did not allege a claim of hostile work environment in the complaint. The Court finds, however, that Plaintiff alleged sufficient facts in the complaint to state a cause of action for hostile work environment/racial harassment.
. Plaintiff does not specifically assert a cause of action in the complaint for retaliation In
. Based on
Morris,
when deciding whether the employee has established a prima facie
case
of “retaliation,” the Court may be required to determine whether the employee has established a prima facie case of "retaliatory hostile work environment/harassment.” Given the holdings in
Morris
and
Morgan,
it