Middleton v. Voigt

• Decision Date: 24 August 2021
• Docket Number: 2:20-cv-02015-TLP-atc
• Court: U.S. District Court — Western District of Tennessee
• Parties: WILBERT FRANK MIDDLETON, Plaintiff, v. VOIGT & SCHWEITZER LLC, MEMPHIS GALVANIZING, Defendant.

WILBERT FRANK MIDDLETON, Plaintiff,
v.
VOIGT & SCHWEITZER LLC, MEMPHIS GALVANIZING, Defendant.

No. 2:20-cv-02015-TLP-atc

United States District Court, W.D. Tennessee, Western Division

August 24, 2021

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

ANNIE T. CHRISTOFF UNITED STATES MAGISTRATE JUDGE

Before the Court are Defendant V&S Memphis Galvanizing, LLC's (“Defendant” or “V&S Memphis”)^[1] Motion to Dismiss, filed on September 14, 2020 (ECF No. 31), and Motion for Summary Judgment, filed on February 23, 2021 (ECF No. 45).^[2] Pro Se Plaintiff Wilbert Frank Middleton failed to timely respond to the Motion to Dismiss and was ordered to show cause by November 5, 2020, as to why the Motion to Dismiss should not be granted. Plaintiff failed to meet this deadline. Plaintiff subsequently served his Response to the Motion to Dismiss on Defendant on November 23, 2020, and eventually filed his Response with the Court on December 18, 2020. (ECF No. 41.) Despite Plaintiff's failure to timely serve and file his Response to the Motion to Dismiss, the Court will consider Plaintiff's Response. Plaintiff timely filed his Response to the Motion for Summary Judgment on March 22, 2021. (ECF No. 48.)

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Defendant filed its Reply to Plaintiff's Response to the Motion for Summary Judgment on April 6, 2021. (ECF No. 49.) For the following reasons, it is recommended that Defendant's Motion to Dismiss and Motion for Summary Judgment be granted.

PROPOSED FINDINGS OF FACT

I. Undisputed Material Facts Relating to the Motion for Summary Judgment

As a threshold matter, the Court must address which facts are undisputed for purposes of ruling on the Motion for Summary Judgment. Contemporaneous with the Motion and the accompanying memorandum (ECF No. 45-2), Defendant filed a statement of sixty-eight undisputed material facts (“Defendant's Facts”) (ECF No. 45-1). Defendant's Facts are supported by the declarations of Defendant's employees Tammy Kinsey, William Martin, and Thomas Ness (ECF Nos. 45-3, 45-4, 45-5), as well as excerpts and exhibits from Plaintiff's deposition (ECF No. 45-6).

In his Response (ECF No. 48), Plaintiff fails to offer any facts or evidence in the record to refute or dispute those offered by Defendant. Plaintiff generally argues that Defendant's Facts are “hearsay statements offered by the opposing attorney” and that “Defendants offer no evidence of testimony under oath by way of depositions, declarations, or sworn statements to disprove any of the facts alleged in Plaintiff's Complaint.” (Id. at 2.) Plaintiff's arguments miss the mark. Federal Rule of Civil Procedure 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Defendant's Facts are supported by Plaintiff's deposition testimony and by declarations that comply with the rules set forth in 28 U.S.C. § 1746 governing unsworn declarations under penalty of perjury. Defendant's Facts are thus consistent with Rule 56(c)(4)

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and will be considered in ruling on the Motion for Summary Judgment. See Haywood v. Brennan, No. 2:18-cv-02473-MSN-cgc, 2020 WL 7480807, at *5 n.7 (W.D. Tenn. Dec. 18, 2020) (discussing how courts may rely on “unsworn, signed declarations as evidence in deciding motions for summary judgment under Rule 56 if the declaration is: 1) in writing, 2) dated, and 3) verifies that its content is ‘true under penalty of perjury'”) (citing Vanguard Transp. Sys., Inc. v. Volvo Trucks of N. Am., Inc., No. 2:04-cv-889, 2006 WL 2373273, at *6 (S.D. Ohio Aug. 14, 2006)); see also Pollock v. Pollock, 154 F.3d 601, 611 n.20 (6th Cir. 1998) (noting the statutory exemption under 28 U.S.C. § 1746 that “permits an unsworn declaration to substitute for a conventional affidavit if the statement contained in the declaration is made under penalty of perjury, certified as true and correct, dated, and signed”).

Because Plaintiff has only argued that Defendant's Facts are invalid and has failed to offer any facts of his own based on record evidence, he has failed to properly dispute any of the facts presented in Defendant's Facts. See Elvis Presley Enter. v. City of Memphis, Tenn., No. 2:18-cv-2718-SHM-atc, 2020 WL 6163564, at *3 (W.D. Tenn. Oct. 21, 2020) (explaining that, when responding to a properly supported summary judgment motion, “[t]he non-moving party has the duty to point out specific evidence sufficient to justify a jury decision in its favor”) (citing Fed.R.Civ.P. 56(c)(1); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)); see also Local Rule 56.1(b) (“Each disputed fact must be supported by specific citation to the record.”); Local Rule 56.1(d) (“Failure to respond to a moving party's statement of material facts . . . within the time periods provided by these rules shall indicate that the asserted facts are not disputed for purposes of summary judgment.”).

As a result, Defendant's Facts are undisputed for purposes of ruling on the Motion for Summary Judgment. See Fed. R. Civ. P. 56(e) (providing that, if a party fails to properly address

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an assertion of fact, the court can consider the fact undisputed for purposes of the motion); see also Sanders v. Baptist Mem'l Hosp., No. 14-cv-2414-SHL-tmp, 2015 WL 5797607, at *1 (W.D. Tenn. Aug. 19, 2015), report and recommendation adopted, 2015 WL 5797618 (W.D. Tenn. Oct. 1, 2015), aff'd, No. 15-6136 (6th Cir. Apr. 11, 2016) (collecting cases in which courts in this district deemed facts undisputed when plaintiffs failed to respond to them consistent with Local Rule 56.1(b)).

Plaintiff's assertion that none of the declarants relied upon in Defendant's Facts have been deposed is of no consequence. (ECF No. 48, at 2.) Discovery in this case closed on January 23, 2021, and the time for Plaintiff to gather information to refute Defendant's proof has passed. (ECF No. 27.) To the extent Plaintiff has failed to demonstrate a dispute with Defendant's Facts because he lacks sufficient information to do so, those facts are deemed undisputed. See Baxter Bailey Invs., Inc. v. Mars Petcare US, Inc., No. 11-cv-2860-STA-dkv, 2012 WL 1965612, at *1 n.1, *2-3 (W.D. Tenn. May 31, 2012) (denying the plaintiff's motion for additional discovery and deeming certain facts admitted when the plaintiff claimed he lacked sufficient information to respond but discovery had closed); Dodd v. Chrysler Grp. LLC, No. 1:11-cv-01073-JDB, 2012 WL 1565640, at *2 nn.2-3 (W.D. Tenn. May 1, 2012) (deeming certain facts admitted for the purposes of summary judgment after the plaintiff asserted that he was “without sufficient information to admit or deny” them); Doe v. Belmont Univ., 367 F.Supp.3d 732, 747 n.13 (M.D. Tenn. 2019), case dismissed, No. 19-5369, 2019 WL 5079251 (6th Cir. Sept. 18, 2019) (accepting as undisputed those facts that were objectively verifiable, despite the plaintiff's assertion that he lacked sufficient information to assess their truth but made no attempt to offer contrary evidence).

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Given the foregoing, the Court finds the following facts are undisputed for purposes of the Motion for Summary Judgment:

Defendant operates a hot-dip galvanizing facility in Millington, Tennessee (the “Millington Plant”); is registered to do business in the State of Tennessee; and is a limited liability company organized under the laws of the state of Ohio with its principal place of business in Columbus, Ohio. (ECF No. 45-1 ¶¶ 1-2.) Voigt & Schweitzer, LLC (“V&S LLC”) is a Delaware limited liability company with its principal place of business in Columbus, Ohio, and is the sole member of Defendant. (Id. ¶¶ 2-3.)

V&S Memphis hired Plaintiff, who is African-American, on March 16, 2015, as a Plant Foreman/Supervisor to work in the Millington Plant. (Id. ¶ 5.) Plaintiff never worked for V&S LLC. (Id. at ¶ 6.) Plaintiff was interviewed by Tom Ness, Defendant's Plant Manager at the time, and Ness played a role in Plaintiff's hiring. (Id. ¶ 7.)

Plaintiff received a copy of Defendant's Employee Handbook at the outset of his employment and received safety training. (Id. ¶ 8.) Defendant's Employee Handbook contained, among other things, a Non-Discrimination and Sexual Harassment Policy (which also prohibits other forms of harassment) and a complaint procedure. (Id. ¶ 9.) Plaintiff received training in OSHA safety rules and knew what the safety rules were for the Plant. (Id. ¶ 10.)

Plaintiff performed the duties set forth in the job description for the Plant Foreman position, as well as those he was instructed to perform. (Id. ¶ 11.) Plaintiff had no employment agreement that specified he would perform certain duties as Plant Foreman, and he signed no employment agreement to work for Defendant. (Id. ¶ 12.) As Plant Foreman, Plaintiff supervised twelve to thirteen full-time employees and was responsible for, among other things, making sure his employees followed safety rules. (Id. ¶¶ 13-14.) Plaintiff was the only Plant

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Foreman, and there were no supervisors below him. (Id. ¶ 15.) No. one else in the Plant did work that was similar to the work he performed as Plant Foreman. (Id. ¶ 44.) Ness later became Operations Manager at the Plant, and William Martin became Plant Manager. (Id. ¶ 16.) Plaintiff had good relationships with Ness and Martin and other more senior management employees. (Id. ¶ 17.)

During his employment, Plaintiff was formally disciplined on four occasions (including for the incident that led to his termination), in addition to receiving verbal counseling. (Id. ¶ 18.) On April 13, 2016, Plaintiff received written discipline for failure to follow instructions and for violation of safety rules, specifically for failure to supervise the daily crane and forklift inspections. (Id. ¶ 19.) On April 16, 2016, he was...