Bell v. Csx Transp., Inc.

• Decision Date: 13 November 2001
• Docket Number: No. 00-40264.,00-40264.
• Parties: Antoine BELL, Plaintiff, v. CSX TRANSP., INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

172 F.Supp.2d 933

Antoine BELL, Plaintiff, v. CSX TRANSP., INC., Defendant.

No. 00-40264.

United States District Court, E.D. Michigan, Southern Division.

November 13, 2001.

COPYRIGHT MATERIAL OMITTED

Arvin J. Pearlman, Elaine L. Livingway, Pearlman & Pianin, Southfield, MI, for plaintiff.

Virginia F. Metz, Bernice M. McReynolds, Vercruysse, Metz, for defendant.

OPINION AND ORDER

GADOLA, District Judge.

Before the Court is Defendant's motion for summary judgment [docket entry 28]. The Court entertained oral argument regarding this motion on October 10, 2001. For the reasons set forth below, the Court will grant in part and deny in part Defendant's motion.

I BACKGROUND

Plaintiff filed a complaint in the Circuit Court for the County of Wayne on June 1, 2000. Under that complaint, Plaintiff alleges three causes of action. First is that Defendant violated the Elliot-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq. ("the Act") by engaging in disparate treatment of Plaintiff because of his race. Second is Plaintiff's claim that Defendant violated the Act when it intentionally discriminated against Plaintiff. Third, Plaintiff claims that Defendant violated the Act by subjecting Plaintiff to a hostile work environment because of his race. Defendant properly removed this action to this Court. As per this Court's order of May 14, 2001, this Court exercises diversity jurisdiction over this case.

Defendant is a transportation company that operates a rail yard in Dearborn, Michigan. Plaintiff is a black man whom Defendant employed as a carman¹ at that rail yard from 1977 until June, 1997. Plaintiff has adduced evidence that he was subject to the following racially-discriminatory treatment during those years. First, Plaintiff adduces his deposition testimony to the effect that, between 1993 and the end of 1996, someone placed a Ku Klux Klan poster in his locker at work and placed "hundreds" of such posters in Defendant's locker room. (Bell Dep. at 369-70.)

Second, Plaintiff offers his deposition testimony to the effect that a fellow employee assaulted Plaintiff in Defendant's locker room during 1994 or 1995. (Bell Dep. at 276-82; 293-96.) According to Plaintiff's deposition testimony, this employee had started to call Plaintiff a "nigger," but caught himself and instead referred to Plaintiff with a racially-neutral slur. (Bell Dep. at 297.) According to Plaintiff's deposition testimony, Defendant never punished Plaintiff's attacker; instead, Defendant's foreman threatened to fire Plaintiff if Plaintiff demanded that his attacker face disciplinary action. (Bell Dep. at 371-72.) Plaintiff adduces evidence that his attacker, in light of Defendant's inaction, later bragged that he was "able to get that nigger" with impunity.

Third, Plaintiff puts forth his deposition testimony to the effect that "[t]hroughout the 1990's" Plaintiff's co-workers subjected him to racist comments at work. (Pl. Resp. Br. at 2; Bell Dep. at 223; 224-25; 323.) Despite Plaintiff's complaints to Defendant's management and the management's overhearing some of these alleged comments, Plaintiff's deposition testimony indicates that Defendant took no action. To support this point, Plaintiff also adduces the testimony of a co-worker, Cedric McCarrall.

Fourth, Plaintiff offers his deposition testimony to the effect that, from 1995 through 1997, Defendant's management subjected him to a type of scrutiny to which it did not subject Plaintiff's white counterparts. (Bell Dep. at 130-31; 174; 289.) Plaintiff also adduces testimony from another of Defendant's employees, Paul Branum, to buttress this point.

Fifth, Plaintiff puts forth his deposition testimony and the deposition testimony of Mr. Branum to the effect that in "June of 1997," Defendant treated him differently because of race when it denied Plaintiff's request for two additional vacation days to attend funerals of his relatives. (Pl. Resp. Br. at 5; Bell Dep. at 264-58.) Defendant's uncontradicted evidence on this point, however, is that it did, in fact, provide Plaintiff with the two additional vacation days that he had requested. (Mahan Dep. at 56-58; 70.) Defendant admits that it provided Plaintiff with this vacation time after initially telling him that it would not do so.

Finally, Plaintiff offers the deposition testimony of Mr. McCarrall to the effect that Plaintiff's foreman tried to provoke Plaintiff into a fight, and then falsely claimed that Plaintiff threatened the foreman. (Pl. Resp. Br. at 5-6.)

II LEGAL STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Martin v. Ohio Turnpike Commission, 968 F.2d 606, 608 (6th Cir.1992).

In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The Court is not required or permitted, however, to judge the evidence or make findings of fact. Id. at 1435-36. The moving party has the burden of showing conclusively that no genuine issue of material fact exists. Id. at 1435.

A fact is "material" for purposes of summary judgment where proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, where a reasonable jury could not find that the nonmoving party is entitled to a verdict, there is no genuine issue for trial and summary judgment is appropriate. Id.; Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir.1993).

Once the moving party carries the initial burden of demonstrating that no genuine issues of material fact are in dispute, the burden shifts to the nonmoving party to present specific facts to prove that there is a genuine issue for trial. To create a genuine issue of material fact, the nonmoving party must present more than just some evidence of a disputed issue. As the United States Supreme Court has stated, "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmoving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted); see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Consequently, the nonmoving party must do more than raise some doubt as to the existence of a fact; the nonmoving party must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transportation Service, Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see Cox v. Kentucky Department of Transportation, 53 F.3d 146, 150 (6th Cir.1995).

III ANALYSIS

Defendant argues that Plaintiff's claims are time-barred. Causes of action under the Act are subject to a three-year statute of limitations. Meek v. Michigan Bell Tel. Co., 193 Mich.App. 340, 483 N.W.2d 407, 409 (1991) (citing M.C.L. § 600.5805(8)). At oral argument, Plaintiff's counsel could only point to evidence in the record that would show that two alleged acts of discrimination occurred within the limitations period. Those allegations were (1) the alleged denial of two additional vacation days and (2) that Plaintiff's foreman tried to provoke Plaintiff into a fight, and then falsely claimed that Plaintiff threatened the foreman.

Plaintiff nonetheless argues that the remainder of his claims are not time barred because of the continuing violation doctrine, which the Supreme Court of Michigan has developed from federal courts. Under this doctrine, a plaintiff may sue on the basis of a defendant's actions that occurred outside of the limitations period if those actions were part of a continuing course of conduct. The Court will begin its analysis by deciding whether the continuing violation doctrine allows Plaintiff to sue on the basis of alleged conduct that occurred outside of the limitations period.

Whether a continuing course of discriminatory conduct exists depends upon factors that Michigan's Supreme Court set forth in Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505, 398 N.W.2d 368 (1986):

The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an...