Perkins v. Lake County Dept. of Utilities, 1:92CV0725.

• Citation: 860 F. Supp. 1262
• Decision Date: 11 August 1994
• Docket Number: No. 1:92CV0725.,1:92CV0725.
• Parties: Arthur PERKINS, Plaintiff, v. LAKE COUNTY DEPARTMENT OF UTILITIES, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

860 F. Supp. 1262

Arthur PERKINS, Plaintiff, v. LAKE COUNTY DEPARTMENT OF UTILITIES, et al., Defendants.

No. 1:92CV0725.

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

August 11, 1994.

Frederick D. Middleton, Jr., Cleveland, OH, for plaintiff.

Michael P. Brown, Office Of The Pros. Atty., Painesville, OH, for defendants.

MEMORANDUM OPINION AND ORDER

PERELMAN, United States Magistrate Judge.

In this action this Court is confronted with the issue of the extent to which provable genetic/hereditary classification controls on the proposition of membership in a protected class within the meaning of Title VII, a question which may well be one of first impression.

This action, brought pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII), was filed on April 10, 1992, alleging disparate treatment in the workplace due to Plaintiff's status as an American Indian. Plaintiff, Arthur Perkins, is employed as a Laborer for the Lake County Department of Utilities (hereinafter the Department). Defendants are the Department and three of its commissioners, John Platz, Robert Gardner and Mildred Teuscher.

Plaintiff alleges in his complaint that:

8. During the course of his employment Plaintiff was continually subjected to racial comments and discrimination by not being allowed to work overtime, only work the worse type of positions and not being promoted or allowed to test for promotions because of his race. Plaintiff's submission to this racial discrimination was imposed as a term or condition of employment.

9. Specifically on or about July 2, 1990 until the present, Plaintiff was subjected to the following acts of racial discrimination. He was denied as to a promotion to the position Site Supervisor I and a white male was placed in that position. He was denied opportunities to be tested to become a supervisor and improve his position in the company and this action was done in a manner and it resulted in a disproportionate number of minorities being adversely affected as compared to the white employees. In July, 1990, he was denied a promotion even though he was senior and more skilled at the job than the white employee who received this promotion. He was subjected to derogatory names or comments regarding his race, American Indian. He has been denied opportunities for employment in other departments of the Utilities Department which cause a disparate impact on the number of minorities employed at the department in supervisory and management positions. Plaintiff was denied the opportunities to be promoted or to apply for supervisory positions because of his race, an American Indian.

10. Other employees of the company have been given opportunities to acquire promotions to Chief Operator I and other administrative positions, while the minority employees such as Plaintiff were denied the opportunity and/or demoted to lower grade jobs. Plaintiff was denied promotions or offers to apply for open positions because of his race. Defendant had notice of the harassment and disparate treatment because it was pervasive and obvious.

11. The disparate treatment described above had a substantial detrimental effect on Plaintiff's employment, physical and psychological well being.

12. On or about July 2, 1991, Plaintiff was denied a promotion and a white male was given a supervisory position for which Plaintiff was qualified. This opening was available for white males but he was never given an opportunity to be considered for the position and he is the only minority of American Indian descent in the Lake County Utilities Department.

13. The acts of Defendant described above in this Complaint were done willfully, maliciously, outrageously, deliberately and purposely with the intention to inflict emotional distress upon Plaintiff and/or were done in reckless disregard of the probability of causing Plaintiff emotional distress. These acts did in fact result in severe and extreme emotional distress.

14. As a direct and proximate result of the Defendant's acts alleged herein, Plaintiff was caused to incur severe and grievous mental and emotional suffering, shock, nervousness, anxiety and loss of wages and benefits. For this harm, Plaintiff demands compensatory damages in the sum of Seven Hundred Forty-Five Thousand Dollars ($745,000.00).

Defendants have filed two motions for summary judgment. The first seeks partial summary judgment on Plaintiff's allegations that he was unlawfully denied promotions and promotion opportunities by reason of his national origin, on the basis that under Ohio law he is disqualified from holding the positions he sought.

Defendants' second motion for summary judgment presents the philosophic and pragmatic question alluded to in the introduction to this opinion. That motion attacks Plaintiff's Title VII claims on the ground that Plaintiff is not, in fact, an American Indian and, therefore, not being a member of a class protected by Title VII cannot make out a prima facie case of discrimination thereunder.¹ It is this motion which will be first addressed in this ruling.

The disposition of a motion for summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides for the granting of such motion where, "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." It is the court's function under such a motion to determine whether a genuine issue of material fact exists, as opposed to endeavoring to resolve any such factual issues. Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974); 6 Moore's Federal Practice ¶ 56.151.-0.

In Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir.1989), the Sixth Circuit Court of Appeals reviewed the related decisions of the Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), which addressed summary judgment practice, referring to those rulings as establishing a "new era" of "dramatic change" in that area of practice, one in which summary judgment is to be viewed with "more favorable regard". The court summarized those rulings as standing for a number of new principles in summary judgment practice, including the fact that cases involving considerations of state of mind issues are not automatically inappropriate for summary judgment; that a federal directed verdict standard ("whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law") should be applied to summary judgment motions; that a non-moving party must provide "more than a mere scintilla of evidence" to avoid summary judgment; that the substantive law applicable to the cause of action will govern the materiality of the issues of fact; that the court has no duty to search the record to determine the existence of genuine issues of material fact; and, perhaps most significant, that the "new era" allows a trial court more discretion in weighing the evidence offered by the non-moving party, considered in light of the whole record, to determine whether that party's evidence does "more than simply show that there is some metaphysical doubt as to the material facts" or whether it demonstrates that the non-moving party's claims are "implausible". Id. at 1479-1480 (Foot-notes and citations omitted.)

Title VII provides in part:

(a) It shall be an unlawful employment practice for an employer —

(1) to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

Plaintiff seeks relief under Title VII on the basis of alleged discrimination by reason of national origin. Under the standards articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in order to proceed on such a claim Plaintiff must make out a prima facie case of discrimination, which includes evidence that he is a member of a protected class within the reach of Title VII.

Defendant's motion presents this Court with two questions: (1) whether Plaintiff is an American Indian, for Title VII purposes; and, (2) if not, whether he can nevertheless obtain Title VII relief for discrimination based upon his and his employer's mistaken belief that he is an American Indian.

As will appear hereinafter, this Court must find the present answer to the first question to be an equivocal "maybe." As to the second, the answer turns upon a number of considerations also relevant to the first, and, in the exercise of literary license, this Court will withhold that answer for the time being.²

Defendants offer as proof of their contention that Plaintiff is not a member of the class for which he seeks Title VII protection the affidavit of Paula Shepherd in which Ms. Shepherd avers in pertinent part:

1. Affiant is a resident of Burton, Ohio and is expert in the field of tracing family ancestry and race.

2. Affiant's resume is attached hereto establishing my credentials as an expert in such field, Exhibit 1.³

3. Affiant has detailed experience in tracing ancestry back through native American Indians.

4. Affiant was retained by the Lake County Board of Commissioners and Lake County Department of Utilities to research the ancestry and racial composition of Arthur Perkins, Jr. (hereafter "Perkins"), an employee of the Lake County Department of Utilities.

5. Affiant performed exhaustive research of said ancestry and racial composition through the U.S. census, birth and death records, Bureau of Indian

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