Garraway v. Diversified Material Handling Inc.

• Decision Date: 25 July 1997
• Docket Number: No. 3:96 CV 7393.,3:96 CV 7393.
• Citation: 975 F.Supp. 1026
• Parties: Derick GARRAWAY, Plaintiff, v. DIVERSIFIED MATERIAL HANDLING INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

975 F.Supp. 1026

Derick GARRAWAY, Plaintiff, v. DIVERSIFIED MATERIAL HANDLING INC., et al., Defendants.

No. 3:96 CV 7393.

United States District Court, N.D. Ohio, Western Division.

July 25, 1997.

Kevin J. Kenney, Bruce D. Lazar, Bischoff, Kenney, Drescher & Niehaus, Sylvania, OH, for Derick Garraway.

Thomas T. Schell, Schell & Schaefer, Toledo, OH, Stephen A. Schaefer, Law Offices of Stephen A. Schaefer, Maumee, OH, for Diversified Material Handling Inc.

Robert Z. Kaplan, Samuel Z. Kaplan, Kaplan & Lipson, Toledo, OH, for Sam Ladd.

Ann Marie Hawkins, Cleveland, OH, for ILT Diversified Material Handling, Inc.

AMENDED MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Defendant Sam Ladd's motion for partial summary judgment. Defendant's motion for partial summary judgment will be granted in part and denied in part.

I. BACKGROUND

Plaintiff Derick Garraway, a black Guyanese living in the United States, was employed as a mechanic by Defendant Diversified Materials Handling (DMH) from October 3, 1983 until his termination on March 29, 1996. Defendant Sam Ladd was DMH's Vice President of Operations at all times pertinent to this action. Plaintiff alleges that Defendants discriminated against him on the basis of his race by denying him training and promotion opportunities; that Defendant Ladd engaged in a pattern of harassment and racial slurs; and that Defendant DMH terminated him in retaliation for his filing of a discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") and the Ohio Civil Rights Commission ("OCRC").

Plaintiff alleges that during his twelve-and-a-half years of employment at DMH, Ladd engaged in an ongoing pattern of racial discrimination and harassment against him. He alleges that Ladd prevented him from attending mechanic training seminars, unfairly found fault with his work, and repeatedly subjected him to derogatory remarks such as: "chicken-bone-in-the-nose motherfucking nigger;" "I should ship you back to Africa;" and "everyone knows how I hate niggers like Derick." Ladd admits that he used the word "nigger" in the workplace, but says he never used it in a derogatory manner.

Effective April 1, 1996, DMH sold all of its assets to ILT Diversified Materials Handling, Inc. ("ILT"). Ownership and top management of the corporation changed, but company staff and operations otherwise remained basically the same. Incident to the asset sale, DMH terminated all of its employees effective March 29, 1996.¹ ILT rehired all of DMH's employees except for Plaintiff and a white mechanic named David Gettan. Gettan is described as being such a bad employee that "we could write a book on how bad." (Ladd Dep., Vol. 1 at 102.) No reason was given for ILT's failure to rehire Plaintiff.

On May 21, 1996, Plaintiff filed the instant action in the Lucas County, Ohio Court of Common Pleas, and Defendants removed to this Court. Four counts of Plaintiff's amended complaint raise claims against Defendant Ladd. In Count V, Plaintiff alleges that Defendant Ladd verbally harassed him and discriminated against him on the basis of his race in violation of Title VII of the Civil Rights Act of 1964. In Count VI, Plaintiff alleges that Defendant Ladd denied him training opportunities on the basis of his race in violation of Title VII. In Count VIII, Plaintiff alleges that Defendant Ladd verbally harassed him and discriminated against him and denied him training opportunities on the basis of his race in violation of the Ohio Civil Rights Act. In Count IX, he raises a defamation claim against Ladd.

Defendant Ladd has moved for summary judgment on all Counts pertaining to him. As to Counts V, VI, and VII, he argues (1) that there can be no individual liability under Title VII or the Ohio Civil Rights Act, and (2) that even if there can be individual liability under either statute, no reasonable jury could find his acts towards Plaintiff to be discriminatory. As to Count IX, he argues that mere racial epithets and insults do not constitute defamation as a matter of law.

II. DISCUSSION

A. Summary Judgment Standard

As an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. 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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Of course, 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 pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] 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, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "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, 106 S.Ct. at 2553. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

B. Counts V, VI, and VIII: Employment Discrimination

1. Individual Liability Under Title VII and the Ohio Civil Rights Act

a. Individual Liability Under Title VII

It is clear under recent Sixth Circuit precedent that there can be no liability for Defendant Ladd under Title VII if he does not, himself, qualify as an "employer" for Title VII purposes. The Sixth Circuit has held that "an individual employee/supervisor, who does not otherwise qualify as an `employer,' may not be held personally liable under Title VII." Wathen v. General Elec. Co., 115 F.3d 400, 405 (1997). Plaintiff argues, however, that Ladd qualifies as an "employer" independent of his supervisory capacity, because he exercised significant control over hiring, firing, and other conditions of employment in his capacity as vice president of DMH. Since the Sixth Circuit did not expressly hold that a supervisor who exercises significant control over hiring, firing, and other conditions of employment cannot be an "employer" for purposes of Title VII liability, the Court looks to the statutory language and decisions of other Federal Courts for guidance in deciding this issue.

Every Circuit Court to address the issue of individual liability since 1991 has held that the sole purpose of the provision in Title VII extending liability to the employer's agents was to incorporate respondeat superior liability into the statute, and that an agent cannot be sued for damages in his individual capacity. See, e.g., Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996); Tomka v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir.1995); Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir.1995), cert. denied, ___ U.S. ___, 117 S.Ct. 110, 136 L.Ed.2d 63 (1996); Gary v. Long, 59 F.3d 1391, 1400 (D.C.Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 569, 133 L.Ed.2d 493 (1995); U.S. E.E.O.C. v. AIC Security Investigations, 55 F.3d 1276, 1281 (7th Cir.1995); Lenhardt v. Basic Inst. of Tech., 55 F.3d 377, 381 (8th Cir.1995); Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.1993); Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (per curiam). These Courts have used both Title VII's statutory scheme and its remedial provisions to support that conclusion. The fact that liability under Title VII is expressly limited to employers with fifteen or more employees indicates that Congress intended to limit liability to employer-entities — not individual defendants. In light of the protection Congress gave to small entities with limited resources to defend against discrimination claims, it is reasonable to suppose that Congress would intend this same protection to extend to individual defendants as well. See Tomka, 66 F.3d at 1314; Miller, 991 F.2d at 587.

The Fourth Circuit, while generally rejecting the concept of individual liability under Title VII, has held that a supervisory employee may be personally liable under Title VII if he "serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment." Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), rev'd in part on other grounds, 900 F.2d 27 (4th Cir.1990) (en banc). That holding relies on the statutory language permitting "employer" status for an agent of a statutory employer under certain circumstances, and the Sixth Circuit has expressly rejected that position. Furthermore, the Paroline holding is questionable even in the Fourth Circuit in light of that Circuit's subsequent decision in Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.1994), which rejected supervisory employee liability under the Age Discrimination in Employment Act.

This Court agrees with the reasoning of the majority of Courts of Appeals. Part...