Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc.

• Decision Date: 06 April 1999
• Docket Number: No. 98-5361,98-5361
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 699, 75 Empl. Prac. Dec. P 45,821 Fred E. TETRO, Jr., Plaintiff-Appellant, v. ELLIOTT POPHAM PONTIAC, OLDSMOBILE, BUICK, AND GMC TRUCKS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 988

173 F.3d 988

79 Fair Empl.Prac.Cas. (BNA) 699,

75 Empl. Prac. Dec. P 45,821

Fred E. TETRO, Jr., Plaintiff-Appellant, v. ELLIOTT POPHAM PONTIAC, OLDSMOBILE, BUICK, AND GMC TRUCKS, INC., Defendant-Appellee.

No. 98-5361.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted March 10, 1999.

Decided April 6, 1999.

James L. Harris (briefed), Nashville, Tennessee, for Plaintiff-Appellant.

John T. Feeney, III (argued and briefed), Feeney & Murray, Nashville, Tennessee, for Appellee.

Before: SILER, DAUGHTREY, and GILMAN, Circuit Judges.

GILMAN, Circuit Judge.

Fred E. Tetro, a Caucasian male, claims that Elliott Popham Pontiac, Oldsmobile, Buick and GMC Trucks, Inc. (the "dealership") discriminated against him because he has a biracial child. The district court denied the dealership's motion for summary judgment on Tetro's racial discrimination claim, but subsequently dismissed Tetro's action with prejudice due to his counsel's failure to appear and prepare for the final pretrial conference. For the reasons set forth below, we REVERSE the district court's dismissal of Tetro's action, AFFIRM its denial of summary judgment to the dealership, and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Elliott Popham hired Tetro as the finance manager for his automobile dealership on July 28, 1996. Tetro came highly recommended by Popham's General Manager, Brian McDonald. According to Tetro, he immediately began receiving praise from Popham and his coworkers for his job performance. All went well until the day that Tetro's family visited him at work. It was during this visit that Popham observed Tetro's biracial daughter for the first time. Tetro contends that the work atmosphere suddenly changed for the worse.

According to the affidavit of Wallace Scott McDonald, Tetro's former coworker at the dealership, Popham rolled his eyes in a derogatory manner and immediately walked back into the dealership upon seeing Tetro's family. Tetro alleges that Popham soon began ridiculing and insulting him about his weight in front of employees and customers. In addition, Tetro claims that he and Wallace Scott McDonald overheard Popham talking on the telephone approximately one month after Tetro's family visited the dealership. During that telephone conversation, Popham allegedly stated that "no one ever told me that he had a mixed race child and that this was going to hurt his [Popham's] image in the community and his dealership" and "I can't believe he has a mixed child and Brian [the General Sales Manager who recommended Tetro to Popham] didn't tell [me]." Wallace Scott McDonald's affidavit corroborates Tetro's allegations.

On November 5, 1996, Tetro arrived at work wearing casual clothes. He claims that he dressed casually because he had scheduled a doctor's appointment, which the General Manager had already approved. Popham confronted Tetro regarding his casual attire. Tetro alleges that a heated argument quickly ensued regarding his clothes and his medical appointment. He admits that he became angry and called Popham a thief, liar, cheat, and hypocrite. Much of this argument took place in the showroom in the presence of other employees and customers. Tetro claims that Popham advised him that he should "get his fat a--out of the dealership" or else he would call the police. Tetro left the dealership and never returned. Wallace Scott McDonald's affidavit states that Popham's racially charged statements were made several days prior to Tetro's alleged discharge.

Tetro filed the instant action on April 18, 1997, alleging that the dealership discriminated against him because of Popham's racial animus directed at Tetro's having a biracial daughter. His claims are based on the dealership's alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e(1)-e(17) ("Title VII"), the Tennessee Human Rights Act, Tenn.Code Ann. §§ 4-21-101 to 4-21-1004 ("THRA"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA").

Both parties attended the initial case management conference on June 13, 1997, at which time the final pretrial conference was set for February 9, 1998. In late September of 1997, the dealership moved for summary judgment on all claims. Tetro contested the challenge to his racial discrimination claim, but stated in his response that he no longer wished to pursue his ADA cause of action. The district court thereafter granted the dealership's motion for summary judgment as to the ADA claim. Without any analysis, the district court ruled in the same order that genuine issues of material fact precluded summary judgment on Tetro's allegations of racial discrimination. The dealership has filed a cross-appeal of this ruling.

On February 9, 1998, Tetro's counsel failed to appear for the final pretrial conference. He also failed to initiate preparation of the pretrial order as required by the district court. As a consequence of these two failures, the district court, without any warning, dismissed Tetro's action with prejudice. Tetro's counsel explained that the failures were the result of an erroneous entry on his calendar regarding the date of the pretrial conference. As soon as Tetro's counsel was informed of his mistake by the dealership's attorney, he immediately proceeded to the district court, arriving one hour late for the conference. He discovered that Tetro's action had already been dismissed. Tetro filed a motion to reconsider, which the district court denied. He now appeals the district court's dismissal of his action.

II. ANALYSIS

A. The district court's dismissal of Tetro's action

1. Standard of review

We "will reverse a dismissal for noncompliance with local rules only upon a finding of abuse of discretion." Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir.1998). An abuse of discretion exists when the district court's action leaves us with "a definite and firm conviction that the trial court committed a clear error of judgment." Id. (citation omitted).

2. The district court abused its discretion when it

dismissed Tetro's action

The local rules of the Middle District of Tennessee required Tetro's attorney to initiate preparation of a pretrial order. In addition, Rule 16(f) of the Federal Rules of Civil Procedure provides for sanctions in the event that a party fails to appear at a scheduling or pretrial conference. When Tetro's counsel failed to prepare for or attend the pretrial conference, the district court sanctioned Tetro in the most severe manner possible--dismissal of his complaint with prejudice.

In Carver v. Bunch, 946 F.2d 451, 453 (6th Cir.1991), this court acknowledged that district courts possess broad discretion to sanction parties for failing to comply with procedural requirements. Carver cautioned, however, that the sanction of dismissal for failure to prosecute "is a harsh sanction which the court should order only in extreme situations showing a 'clear record of delay or contumacious conduct by the plaintiff.' " Id. at 454 (quoting Carter v. City of Memphis, 636 F.2d 159 161 (6th Cir.1980)). As this court explained in Stough, 138 F.3d at 615, the Carver court concluded that a district court can dismiss an action for noncompliance with a local rule only if the behavior of the noncomplying party rises to the level of a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.

When contemplating dismissal of an action under Rule 41(b), a court must consider:

(1) whether the party's failure to cooperate is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dilatory conduct of the party; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered.

Stough, 138 F.3d at 615 (citing Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir.1988)). In the instant action, the district court did not conduct any analysis concerning Tetro's procedural deficiencies, much less the analysis required by Stough.

An examination of the above elements as applied to the facts of the present case convinces us that the district court abused its discretion when it dismissed Tetro's action. First, the district court did not find that Tetro's counsel acted willfully or in bad faith. Rather, Tetro's counsel explained that the reason for his failure to appear at the pretrial conference was due to his erroneous entry of the date into his calendar. The behavior of Tetro's counsel clearly does not rise to the level of contumacious conduct. Second, there is no evidence that the dealership suffered any prejudice beyond wasting approximately one hour waiting for Tetro and his counsel to appear. Third, the district court failed to provide Tetro with any warning that a failure to comply with the procedural requirements could result in dismissal. Finally, despite the fact that his conduct surrounding the pretrial conference was the only incident of procedural noncompliance committed by Tetro's counsel, the district court did not even consider a less drastic sanction before it ordered that the case be dismissed with prejudice. For all of these reasons, we conclude that the district court committed a clear error of judgment when it dismissed Tetro's action.

B. Appellate jurisdiction over the dealership's cross-appeal

The dealership's cross-appeal arises in an unusual procedural posture. Ordinarily, a defendant who attempts to appeal a denial of summary judgment is either (1) barred from appealing the denial before a final judgment is entered because the denial is a non-appealable, interlocutory order, see Pacific Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1306, 98 S.Ct. 2, 54 L.Ed.2d 17 (1977), (2) allowed to appeal the interlocutory denial because it presents an appealable...