Mcneil v. Metro

• Decision Date: 25 October 2010
• Docket Number: Case No. 4:10cv0233 TCM.
• Parties: Charles A. McNEIL, Plaintiff,v.METRO, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

748 F.Supp.2d 1047

Charles A. McNEIL, Plaintiff,

v.METRO, Defendant.

Case No. 4:10cv0233 TCM.

United States District Court, E.D. Missouri, Eastern Division.

Oct. 25, 2010.

Charles A. McNeil, Florissant, MO, pro se.Mark J. Bremer, Kohn and Shands, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

THOMAS C. MUMMERT, III, United States Magistrate Judge.

This matter is before the Court ¹ on the motion of defendant, Metro, to dismiss and for summary judgment on the claims of Plaintiff, Charles A. McNeil, that his employment was terminated because of his race, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e–17; his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621– 634; and his disability, in violation of the American with Disabilities Act (ADA), 42 U.S.C. §§ 12101– 12213, and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794. Plaintiff further claims that he was intimidated, harassed, and retaliated against. Plaintiff, proceeding pro se, opposes the motion.

Background

Plaintiff was terminated on December 2, 2008, from his position as bus driver for Metro. (Compl. at 6; Def. Stip.² ¶ 7.) The reason given was:

[Plaintiff] failed to provide sick leave paper work to cover time off from 10/20/08 to present. [Plaintiff] was given notification via certified mail to return to work or provide the documents as to why he cannot perform his job duties. He failed to comply with instructions. [Plaintiff] was in violation of Rule 02.24 flagrant conduct,³ which results in termination.

(Def. Stip. ¶ 8.) Plaintiff alleges that the true reasons for his termination were because of his race; because of his age in that he would have become vested in the pension system in six months; and because of a disabling injury sustained at work on August 8, 2008, and aggravated when he returned too soon to work on October 20, 2008. (Compl. at 5–6.)

Plaintiff began working as a bus driver for Metro in May 1999. ( Id. at 5.) On August 8, 2008, he “suffered a disabling injury” when the bus he was driving was rear-ended by a school bus. ( Id.; McNeil Dep., Def. Ex. K, at 32.) On October 9, Sherwyn J. Wayne, M.D., a physician with Orthopedic & Sports Medicine, Inc., released Plaintiff to return to his regular duty. (Def. Ex. G. at [4]; Def. Ex. K at 50.) The diagnosis was low back pain and leg pain. ( Id.) Plaintiff testified in a deposition taken pursuant to his worker's compensation claim that his lower back pain was worse when he returned to driving a bus on October 20.⁴ (Def. Ex. K at 44–45.) When on a return route that day, his back pain was so intense that he called Metro and told them he needed help. (Def. Ex. H at 121.) An ambulance was sent to meet him at a transfer center. ( Id.) He was taken to the hospital and released that same day. ( Id.) He did not return to work. ( Id. at 123–24.)

On November 26, Plaintiff was sent a letter from Leslie Nations, Metro's superintendent of operations, with the following text:

According to Metro records, you have not performed your job duties since October 20, 2008, and have not provided sick leave application paperwork. Therefore, this letter is instructing you to report to work, [sic] no later than Tuesday, December 2, 2008, or provide acceptable medical verification as to why you cannot perform your job duties.

Failure to comply with the above instructions may result n termination of your employment with Metro.

(Pl. Resp. Ex. at [4].) It was Plaintiff's understanding that the letter meant he had to either provide medical documentation or return to work. (Def. Ex. H at 127.)

Plaintiff reported to work at approximately 3:30 in the morning of December 2. ( Id. at 128.) He did not have any documentation with him. ( Id. at 111.) The dispatcher telephoned Donna Holmes, the transit service manager, who then spoke with Plaintiff. ( Id. at 129.) At a later arbitration hearing, Holmes and Plaintiff recounted the conversation differently. Essentially, it was the position of Holmes and other testifying Metro management personnel that Plaintiff knew that he needed to report to work with a medical release in hand. ( Id. at 44, 48, 64–66, 84, 104, 111.) It was Plaintiff's position that he did not know this and that he had been caught in a Catch–22 because his private physician would not treat him without a release from the workers' compensation doctor and that he was refused such a release by Metro. ( Id. at 127, 129, 151, 154.)

Holmes met later that day with Plaintiff and his union representative. ⁵ ( Id. at 103, 150.) At some point, when Holmes was out of the room and on the telephone, Plaintiff left the building. ( Id. at 87–88.) He later returned and tried to give Merlin Streate, the transit service manager then on duty, a form dated December 2, 2008, and signed by Peggy Boyd Taylor, D.O. ( Id. at 34–36, 132; Pl. Ex. 1.) Dr. Taylor reported that Plaintiff was currently under her care and was unable to work from October 21, 2008, to January 1, 2009. (Pl. Ex. 1.) The diagnosis was acute lumbar sprain and a possible herniated disc.⁶ ( Id.) Streate rejected the form and informed Plaintiff that Tony LaFata, the station director, had terminated his employment. (Def. Ex. H at 132.)

Plaintiff grieved his termination on the grounds that it was without cause. (Def. Ex. E.) He had been told by his union representative that LaFata did not like him, he had been told to return to work and then not allowed to when he timely reported, he had been refused workers' compensation treatment for his August 2008 injury, and he had been pressured to change his injury-related absences to sick leave. ( Id.) He further alleged that LaFata did not like him because of his union activities and his race, black. ( Id.)

The union took Plaintiff's grievance straight to arbitration, bypassing the preceding grievance steps. (Pl. Response Ex. at [12].) Following a hearing at which Streate, Holmes, Nations, another Metro representative, Plaintiff, and a union officer testified and the submission of the deposition of Plaintiff's union representative, the arbitrator found, in relevant part, as follows.

I am not persuaded that Grievant [Plaintiff] legitimately believed that he was still on workers comp. He had not received workers comp payments during the month he was off. He had been released on the August 28 incident by the Agency doctor, and instructed to see his personal doctor.... He had been informed numerous times by Agency supervisory and management personnel that he was not on workers comp; yet he continued to insist that he was although there was no factual basis for him to believe that.... No matter how ardently he believed he should be on workers comp, the fact is that he was not and he had been told so by the Agency numerous times....

Even if his Agency superiors were mistaken about his workers comp status or if a later hearing had placed him in that status, it does not excuse his refusal to comply with Agency rules and procedures for return to work.

Concluding that Plaintiff “knew the return to work rules quite well” and “had used them several times,” the arbitrator found that Plaintiff was wrong in not returning to work with the necessary medical documentation in violation of Metro's flagrant conduct rules. ( Id. at 16, 18.) The arbitrator further found that the discipline imposed on Plaintiff, who had an otherwise clean disciplinary record during his nearly ten-year employment and who had been described by witnesses as a “good employee,” was too harsh. ( Id.) He ordered Plaintiff “reinstated in his former position in accordance with his seniority, conditioned on securing the appropriate medical releases and passing a return to work physical examination by the Agency doctors.” ( Id. at 19.) He was awarded no back pay and no seniority or benefit credit for the time missed. ( Id.)

Plaintiff returned to work full-time for Metro as a bus driver in October 2009. (Def. Ex. at 62.) He also works for another company driving limousines on the weekends. ( Id. at 62–63.)

In February 2010, Plaintiff filed the instant lawsuit. Attached to his complaint is a copy of the charge of discrimination he filed with the Missouri Commission on Human Rights. (Compl. Ex. 2.) He marked the boxes labeled “Race” and “Disability” as the basis of the discrimination. ( Id.) The box labeled “Age” was not marked, nor was the box labeled “Retaliation.” ( Id.) In the space provided for the particulars of the charge, Plaintiff first summarized the injury-related events and Metro's refusal on October 20, 2008, to have him treated at a hospital and by Metro's physician. ( Id.) He then stated that “I believe I was denied treatment and forced off employment due to my disability because other employees without disabilities were treated and allowed to return to work.” ( Id.) He next stated:

On December 2, 2008 I was discharged for not following policy of submitting documentation as to why I was not going to work.

I believe I was discharged due to my disability because:

(a) I was denied treatment and

(b) I was not allowed to return to work

(c) [Metro] knew I was injured[.]

On December 3, 2008 I was appealed [sic] [Metro's] decision to discharge me. During this meeting I was told by a Union Representative that I was discharged because ... “[Metro] did not care about me because I was black.”

I believe I was discharged due to my race, black because of the comments made by ... [Metro].

( Id.) In support of his racial discrimination claim, Plaintiff states in his complaint that “On December 3, 2008 I was told by my union president that Metro termination [sic] of me was because I'm black.” (Compl. at 6.)

In its pending motion, Metro argues that it is entitled to summary judgment (1) on Plaintiff's racial discrimination claim because(a) the arbitration award is preclusive and bars the claim and (b) Metro had legitimate non-discriminatory reasons to discipline Plaintiff,...