Murphy v. Centerior Energy Corp.

Decision Date17 October 1994
Docket NumberNo. 93-4281,93-4281
Citation38 F.3d 1216
PartiesNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. James MURPHY, Plaintiff-Appellant, v. CENTERIOR ENERGY CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Before: CONTIE, MILBURN and DAUGHTREY, Circuit Judges.

MILBURN, Circuit Judge.

Plaintiff James E. Murphy appeals the district court's grant of summary judgment for defendant Centerior Energy Corporation on his 42 U.S.C. Sec. 1981 claim and his claim for retaliatory discharge under Title VII, 42 U.S.C. Sec. 2000e-5. On appeal, the issues are (1) whether the district court erroneously awarded summary judgment for defendant on plaintiff's race discrimination claim under 42 U.S.C. Sec. 1981, (2) whether the district court erroneously awarded summary judgment for defendant on plaintiff's claim for retaliatory discharge, and (3) whether the district court erroneously denied plaintiff due process by dismissing plaintiff's pendent state law claims. For the reasons that follow, we affirm.

I.
A.

On October 31, 1966, plaintiff James E. Murphy was hired as a union worker by The Toledo Edison Company ("the Company"), an operating company of defendant Centerior Energy Corporation. In 1984, plaintiff was promoted from electrical apprentice to the management position of Power Systems Foreman, which required that plaintiff relinquish his union membership. At that time, plaintiff was given a handbook that explained his employee benefits and stated that he was an "at will" employee. In 1987, plaintiff was assigned a new supervisor, James Carter. Because only non-union employees at the Company received performance appraisals, plaintiff was given his first appraisal in 1985. It is undisputed that from 1985 until 1990, plaintiff was given very good performance appraisals and received corresponding merit increases in pay. These appraisals were allegedly based solely upon technical skills. In 1990, the Company significantly changed its appraisal system to encompass not only technical skills, but an employee's ability to get along with others and accountability to the Company. Managers were trained in a management relations procedure called MARC (Management, Action, Response, Checklists). Supervisor Carter states in his affidavit that the new appraisal system, when applied to plaintiff, demonstrated a decline in plaintiff's performance.

In February 1991, plaintiff met with Carter and another manager to discuss a 10 percent pay differential that plaintiff believed he was entitled to receive. Carter explained to plaintiff that the pay differential had not yet been received by other employees. At the meeting, plaintiff was told that confidential management information had been improperly leaked to union employees and that two union employees had identified plaintiff as the source of the information. In addition, plaintiff was noted for not participating in a company sponsored team building exercise designed to improve the efficiency of the department.

On June 10, 1991, plaintiff was given his first appraisal under the new MARC guidelines. Plaintiff's rating decreased from a four on a scale of seven to a two on a scale of seven, which was still considered satisfactory. Carter gave the following reasons for the evaluation: plaintiff had not made a clear-cut transition from union to management; plaintiff had not established proper channels of communication with other departments; plaintiff did not properly document or coordinate test schedules of equipment; plaintiff lacked knowledge in the communication system to control the budget and costs; and on several occasions, plaintiff had engaged in conduct that bordered on insubordination. Following the evaluation, on June 18, 1991, plaintiff received a special assignment of locating spare electrical parts to be used at a nuclear power station. Carter states that plaintiff was given this task because he possessed the necessary technical skills, and it would give plaintiff an opportunity to prove that he could communicate with other departments and document effectively, areas identified as weaknesses in the evaluation.

According to the Company, plaintiff's job performance continued to deteriorate following the review on June 10, 1991. On October, 23, 1991, it was learned that plaintiff had not purchased raincoats for his crews in accordance with normal Company procedures. On October 29, 1991, plaintiff engaged in a public argument with another management employee over labor issues. On October 30, 1991, a union steward informed Carter that plaintiff had shared confidential information with him. There were also two incidents in November 1991, where plaintiff could not locate equipment necessary to complete a special project, which Carter concluded were due to plaintiff's failure to make thorough inspections. Finally, on January 2, 1992, plaintiff sent crews to a maintenance job even though the job had been crossed off as "complete." In Carter's affidavit, he stated that plaintiff had been informed that the special project at the nuclear power station had not been satisfactorily completed because plaintiff failed to provide accurate lists of spare parts, failed to list items stored at a warehouse by location, and failed to document the current status of the customer substation inspection program.

On March 25, 1992, plaintiff was informed that he no longer had a position as a Power Systems Foreman and was offered the opportunity to interview for another position, which he was not awarded. The Company terminated plaintiff as an employee on April 15, 1992. On June 24, 1992, plaintiff filed a complaint in the district court alleging violations of Title VII along with pendent state law claims. It appears that this action stemmed from a charge of discrimination that was filed with the Ohio Civil Rights Commission ("OCRC") and the Equal Employment Opportunity Commission ("EEOC") on January 9, 1992. Plaintiff received a right-to-sue letter for this charge on September 17, 1992, after his employment was terminated. Plaintiff's action was dismissed without prejudice on November 23, 1992, because plaintiff had not obtained a right-to-sue letter regarding his Title VII claims at the time the his action was filed, and the district court declined to exercise pendent jurisdiction over the state law claims.

B.

On July 23, 1993, plaintiff James E. Murphy filed the action which is the subject of this appeal. Plaintiff alleges that he was terminated from his employment with the Company because of his race in violation of 42 U.S.C. Sec. 1981 and that he was terminated in retaliation for filing a previous civil rights claim, and he also sues for intentional infliction of emotional distress and breach of implied contract. On September 9, 1993, defendant Centerior Energy Corporation filed a motion for summary judgment, which was supported by the deposition of plaintiff and affidavits of Denise Hasbrook and James Carter. Plaintiff filed a memorandum in opposition on October 6, 1993, which was supported by plaintiff's affidavit, the affidavits of twelve of plaintiff's subordinates, and the affidavit of a psychologist. On October 13, 1993, defendant filed a reply memorandum and filed a motion to strike certain portions of the affidavits supporting plaintiff's memorandum in opposition.

On October 20, 1993, the district court issued a memorandum opinion finding that plaintiff failed to establish a prima facie case for race discrimination and retaliation. It dismissed plaintiff's Sec. 1981 discrimination claim and retaliation claim with prejudice and dismissed the pendent state law claims without prejudice. The accompanying judgment entry correctly stated that the Sec. 1981 claim was dismissed with prejudice, but it incorrectly stated that the retaliation claim and state law claims were dismissed without prejudice. Defendant moved the district court to correct its typographical error concerning the retaliation claim. On November 12, 1993, the district court entered an Order that reflected that the district court granted defendant's motion for summary judgment on the Sec. 1981 and retaliation claims, and dismissed plaintiff's state law claims "without prejudice." J.A. 39. The accompanying amended judgment entry, however, provided that the summary judgment was granted on the discrimination and retaliation claims, but that plaintiff's state law claims were dismissed "with prejudice." J.A. 40. On November 19, 1993, before the district court had an opportunity to correct the typographical error in the amended judgment entry, plaintiff filed a timely notice of appeal.

II.
A.

This court reviews a district court's grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). On appeal, we must consider all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, 369 U.S. 654, 655 (1962)); 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987).

Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper "if the pleadings, deposition, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." F.R.C.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial...

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