Francis v. Davis H. Elliot Constr. Co.
| Decision Date | 11 March 2013 |
| Docket Number | Case No. 3:12-cv-87 |
| Parties | EARNEST FRANCIS, JR., Plaintiff, v. DAVIS H. ELLIOT CONSTRUCTION CO., INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. #15)
After being terminated from his job, Earnest Francis, Jr., filed suit against his former employer, Davis H. Elliot Construction Company, Inc. ("DHE Construction"), Davis H. Elliot Company, Inc. ("DHE"), and his former supervisors Clyde Legg, Brian Sarrett and Mark Baker. His Amended Complaint alleges state law claims of race discrimination, hostile work environment and retaliation, and claims of race discrimination and retaliation under 42 U.S.C. § 1981. This matter is currently before the Court on Defendants' Motion for Summary Judgment, Doc. #15. For the reasons set forth below, that motion is sustained in part and overruled in part.
Earnest Francis, Jr., an African-American, began working in Tennessee as a lineman for DHE Construction, an electrical construction contractor, in 2007.2 In March of 2009, he transferred to Dayton, Ohio, where he served as a foreman, typically leading a crew of four employees. Legg Decl. ¶2; Sarrett Dep. at 13. General Foremen Clyde Legg and Mark Baker, both Caucasian, were his direct supervisors. They reported to Vice President Brian Sarrett, who was headquartered in Kentucky. Pl. Dep. at 16-18.
There were very few African-American employees at the Dayton facility. Francis maintains that Legg harbored a discriminatory animus toward African-Americans. When Legg found out that Francis was being transferred to Dayton, Legg told another foreman that "there was a nigger on the way" and that "there ain't no way he could be worth a damn 'cause he was just a nigger." Phares Aff. ¶4.
Once Francis started working there, Legg often referred to him as a "stupid nigger" and a "porch monkey." Phares Aff. ¶5. Legg also referred to him as "banjo lips." Thomas Aff. ¶3. Legg assigned Francis's crew the least desirable jobs, and assigned Francis the oldest pickup truck and the crew members that no one else wanted. Phares Aff. at ¶5; Pl. Dep. at 50-51. Other white employees,including Rich Stewart, Tim Stults, Travis White, "Fred," and Howard Hall, also openly referred to Francis and other African-Americans as "niggers." Pl. Dep. at 36-38, 46.
Francis maintains that he complained to Legg about the racially derogatory comments at least once a week, but nothing changed.3 Francis also tried to contact Sarrett by phone to voice his complaints, but was not able to reach him. Id. at 19-20.
In early December of 2010, Rich Stewart, one of Francis's crew members, found a dirty baby doll at one of the work sites, and placed it in one of the work bins. Francis discovered the doll one morning when it fell to the ground. He maintains that the doll was black and had a string or rope tied around its neck. Id. at 41-42.4 When Francis asked Stewart what kind of a sick joke it was, Stewart just grinned at him. Francis left to report the incident to Mark Baker. Id. Baker immediately met with the crew. Stewart took full responsibility, but denied that he meant anything racial by it. Baker told the crew that such behavior would not be tolerated, and threatened to take further action if any similar incidents occurred. Baker then talked to Francis and "asked him if what I had done was good enough, and he said everything was cool." Baker Dep. at 18-22.
In January of 2011, African-American Devon Nelloms was hired by DHE Construction as a groundsman and assigned to Francis's crew. On February 2, 2011, after working just a couple of weeks, Nelloms turned in his uniform and told Legg that he was quitting because he was tired of the way Francis was treating him. Nelloms Dep. at 41-42.
Sarrett happened to be in the Dayton office that day. He asked Legg what was going on. Sarrett and Legg then talked to Nelloms about Francis. Nelloms, who was visibly upset, told Sarrett that Francis regularly talked to him like a dog, cussed at him, publicly demeaned him, told him he would never amount to anything, and threatened him. Francis allegedly told Nelloms that complaining about it would do no good because Francis would "use the race card" and the company would take no action against him. Sarrett told Nelloms that he did not want him to quit. He promised to move him to a different crew, and to conduct an investigation into his complaints about Francis. Sarrett Dep. at 34-37.
Sarrett then asked Legg to investigate the complaint. Id. at 37. That same day, Legg interviewed five employees who worked with Francis and reported back to Sarrett. The employees told Legg that Francis treated his crew members in a very disrespectful and abusive manner, regularly calling them "dumb asses" and "mother fuckers." Francis also told one employee that if he wanted to get into the apprentice program, he would have to get down on his knees and suck [Francis's] dick." The crew members told Legg that Francis often referred to his race, statingthat he could treat them however he wanted without any fear of discipline. Sarrett Decl. ¶5; Sarrett Dep. at 42, 45, 65-66; Ex. 1 5 and 17 to Sarrett Dep.
That same day, Sarrett also talked to Mark Baker, Rich Stewart and Jeremy Ferrell about Francis. Baker told Sarrett that, in the past, when employees had complained about Francis, Baker did his best to resolve the situation informally, but did not document those complaints or discipline Francis. Because Francis was African-American, Baker was afraid to take any action against him. According to Baker, Francis "routinely referenced the color of his skin by pointing at his arm, moving his finger up and down, saying you guys are never going to be able to touch me, because of this, referring to the color of his skin." Sarrett Dep. at 38-40, 46.
Sarrett found that Francis's conduct toward his crew members violated two sections of the company's policy concerning inappropriate conduct/harassment. First, it was a violation of the company's sexual harassment policy to condition a crew member's entrance into the apprenticeship program on submission to a demand for oral sex. Second, Francis's treatment of his crew members violated the policy prohibiting conduct that creates an intimidating, hostile or offensive work environment. Ex. 16 to Sarrett Dep.; Ex. 4 to Pl. Dep. Sarrett found that Francis's conduct was so egregious that it warranted immediate termination. Sarrett Dep. at 46-47; Sarrett Decl. ¶6.
On February 3, 2011, Sarrett met with Francis and told him that he could either resign or be terminated. Francis chose to resign. Sarrett Decl. ¶8. OnFebruary 28, 2012, Francis filed suit in the Montgomery County Court of Common Pleas, alleging state law claims of race discrimination, hostile work environment, and retaliation under Ohio Revised Code Chapter 4112. Defendants removed the case to federal court based on diversity of citizenship. Francis later amended his complaint, adding claims of race discrimination and retaliation under 42 U.S.C. § 1 981. Defendants have now moved for summary judgment on all claims.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).
"Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., All U.S. 242, 250 (1986). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previousallegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. "The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff." Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Id. at 255. If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure Civil 3d § 2726 (1998).
In determining whether a genuine dispute of material fact exists, a court need only consider...
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