Powell-Pickett v. AK Steel Corp.

• Decision Date: 24 October 2012
• Docket Number: Civil Action No. 2010–336 (WOB–JGW).
• Citation: 904 F.Supp.2d 767
• Parties: Angela POWELL–PICKETT, Plaintiff v. AK STEEL CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Ohio

904 F.Supp.2d 767

Angela POWELL–PICKETT, Plaintiff

v.AK STEEL CORPORATION, Defendant.

Civil Action No. 2010–336 (WOB–JGW).

United States District Court,

S.D. Ohio,

Western Division.

Oct. 24, 2012.

John Joseph Scaccia, Dayton, OH, for Plaintiff.

Gregory Parker Rogers, Aisha H. Monem, Taft, Stettinius & Hollister, Cincinnati, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

WILLIAM O. BERTELSMAN, District Judge.

This matter is before the Court on the motion of defendant for summary judgment (Doc. 37), the motion of defendant to strike the declaration of plaintiff Angela Powell–Pickett (Doc. 53), and the motion of plaintiff for leave to file the declaration of Lucy Freeman (Doc. 55).

The Court heard oral argument on these motions on September 20, 2012, and thereafter took them under submission (Doc. 58).

Having reviewed this matter further, the Court now issues the following Memorandum Opinion and Order.

Factual and Procedural Background

On February 28, 2006, defendant AK Steel Corporation's collective bargaining agreement with the Armco Employees Independent Federation expired, and AK Steel lawfully locked out the union. Amy Hull Declaration at ¶¶ 1, 2, attached as Ex. B to Doc. 37. Plaintiff Angela Powell–Pickett, an African–American female, was hired as a temporary replacement worker on May 3, 2006. Id. at ¶ 3. Prior to her employment, Plaintiff was required to pass a physical examination and complete a medical history questionnaire. Id. In part, the medical history questionnaire asks the applicant for any prior medical issues and any prior workplace injuries. Id. at Attachment 1. Plaintiff did not list any prior medical issues or any prior workplace injuries. Id. A number of former AK Steel employees describe the medical examination process as “rushed” or “hurried.” See Joe Lee Quarles Declaration at ¶ 6—Doc. 51; Bryant Pickens Declaration at ¶ 4—Doc. 47–1; Anthony Webb Declaration at ¶ 6. Additionally, Plaintiff, and other former employees, state that a nurse assisting the medical examinations advised the prospective employees to only include five (5) years of medical history. See Deposition of Angela Powell–Pickett, Volume III at 70; Quarles Decl. at ¶ 6; Pickens Decl. at ¶ 4.

AK Steel has various steel manufacturing “lines” that require inspection, and the lines run days, nights, and weekends. Plaintiff worked on the “pickler” line. Inspectorslike Plaintiff reported to the “shift manager/supervisor,” who in turn reported to William Belding, a higher-level supervisory manager.¹See William Belding Declaration at ¶¶ 1–3–Doc. 54–2; Webb Decl. at ¶ 7. “Shift manager” is AK Steel's “first level salaried position.” See Doc. 37 at pg. 3.

The lockout lasted until March 15, 2007, when a new collective bargaining agreement was reached and the regular employees began to return to the steel mill. Hull Decl. at ¶ 2. On July 8, 2007, Plaintiff reapplied to be hired as a regular full-time employee, and Belding selected her for hire. She remained working in her same “inspector” capacity. See, e.g., Complaint at ¶ 15; Doc. 35–3 at 46–54 (Exhs. 32–35); Belding Decl. at ¶ 3; Webb Decl. at ¶¶ 8–9. As part of her application to become a full-time employee, Plaintiff asserts that she was required to take a new physical. Doc. 47 at pg. 6. Plaintiff claims that she disclosed her medical issues to the doctor at this second physical examination. Id.

Shortly after she became a full-time employee, in September 2007, Plaintiff applied to Belding for a shift-manager position. Doc. 35–3, Ex. 36. It was around this same time that Plaintiff claims she began to experience racial and sexual discrimination at AK Steel. Specifically, the declarations submitted by Plaintiff describe three specific instances of harassment towards Plaintiff: (1) an incident where an unidentified co-worker ran his fingers through Plaintiff's hair; ² (2) co-workers placed a bottle of urine on an air conditioner above Plaintiff's work station so the bottle would leak on her; ³ and (3) a noose made out of electrical tape was placed above Plaintiff's chair.⁴ As for specific comments, Anthony Webb, a former shift manager at AK Steel, recalls that after the strike ended, shift manager Tim Swindell called Plaintiff “Buckwheat” and this manager and another spread rumors that Plaintiff formerly worked as a “hooker in Alaska.” Webb Decl. at ¶ 13. Lucy Freeman, a former temporary worker at AK Steel, stated that, after the strike ended, racially derogatory comments appeared on the wall of the “unisex bathroom in the manager's area ... ‘nigger,’ ‘go back to Africa,’ ‘monkeys.’ ” Lucy Freeman Declaration at ¶ 10. Lastly, Bryant Pickens, who, like Plaintiff, was later hired as a regular employee, asserts that, while he was a temporary worker, “Caucasian supervisors, as well as Department Manager Bill Belding, frequently ma[de] racially derogatory statements loud enough for black African American workers (like myself) to hear.” Pickens Decl. at ¶ 11. Pickens does not specify the nature of these comments and, in particular, does not mention what Belding said.

In late November of 2007, Plaintiff alleges that Belding altered her work schedule and she was demoted to the position of “floater.” See Doc. 1 at ¶ 22; Hull Decl. at ¶ 6. Shortly thereafter, on January 18, 2008, Belding awarded the shift-manager position Plaintiff had applied for to Ramenia Chisholm, an African–American female who was also a former temporary worker. Belding Decl. at ¶ 2; Hull Decl. at ¶ 5. That same day, Plaintiff lodged a complaint with AK Steel's Ethics Hotline alleging Belding passed over her due to favoritism for Chisholm. Hull Decl. at ¶ 5; Powell–Pickett Depo. Volume III at 82 (stating that Belding discriminated against her because, “[h]e trained Ramenia”). Amy Hull, a representative in AK Steel's Labor Relations Department, states that AK Steel conducted an investigation and found no merit to the complaint. Id.

On March 27, 2008, Plaintiff filed an EEOC charge.⁵Id. at ¶ 6. According to Hull's declaration and an email attachment that summarizes Plaintiff's “issues,” her EEOC charge included complaints about scheduling, not being selected for the shift-manager position, and retaliation for lodging a complaint with the Ethics Hotline. Id. at ¶¶ 5–7; Belding Decl. (Ex. A, email from Belding dated 11/12/2008 and from Hull dated 10/6/08). A few months after Plaintiff filed her EEOC charge, Anthony Webb sent an email to Bill Belding, Greg Glodowski, and Kelly Higgins, reporting a number of complaints on Plaintiff's behalf. Doc. 48–2. These complaints all referenced Plaintiff's perceived unfairness in scheduling.⁶Id.

On September 12, 2008, Plaintiff submitted a request for leave under the Family Medical Leave Act (FMLA). See Doc. 48–4. Plaintiff's doctor recommended FMLA leave from 9/10/2008 until 9/26/2008 because Plaintiff's daughter had surgery to repair an ACL tear in her knee. Id. Plaintiff's doctor also recommended intermittent FMLA leave for 6 additional months so that Plaintiff could take her daughter to and from physical therapy appointments. Id. The doctor suggested that Plaintiff would need the intermittent leave 1–2 times per month for 6 months. Id. Plaintiff claims that she was thereafter denied FMLA leave for that purpose. See Doc. 47 at pg. 12; Webb Decl. at ¶ 32.

On September 30, 2008, Plaintiff complained directly to Hull that she was being harassed and retaliated against because she was a replacement worker. See Hull Decl. at ¶ 7. Hull states that she met again with Plaintiff on October 3, 2008, so that she could further understand Plaintiff's complaints. Id. Hull asserts that she investigated the complaints, and on December 22, 2008, she informed Plaintiff that she had not uncovered a violation of any policy. Id.

Eventually, on January 27, 2009, the EEOC invited Plaintiff and AK Steel to a mediation in reference to the charge she had filed in March of 2008. See Hull Decl. at ¶ 8. At this mediation, the parties executed a settlement where Plaintiff agreed not to initiate a lawsuit and AK Steel agreed the EEOC proceedings “will not be held against her regarding future assignments and career development.” Id., Ex. 2.

Beginning February 27, 2009, Plaintiff took a leave of absence based on Dr. Terrence Conti's assessment that several physical and mental conditions would render her “totally disabled” for a month, but “able to return to work 3/28/09.” Doc. 35–3 at 3 (Ex. 10).⁷ She also “applied for benefits under the company's Sickness & Accident policy.” Complaint at ¶ 24. Prior to her return to work, and pursuant to AK Steel's policy, a company physician examined Plaintiff on March 23, 2009. See Hull Decl. at ¶ 9. At this examination, Plaintiff disclosed to the examining physician that she had a thyroid issue and that she previously had a cyst removed. Id. Additionally, Plaintiff disclosed a prior work-related injury she had sustained while employed with General Electric. Id.

Shortly after being notified of the inconsistencies in the medical questionnaire, Plaintiff was suspended and, on April 15, 2009, AK Steel terminated her for the same reason. Soon thereafter, Plaintiff filed a charge with the EEOC in regards to her termination from AK Steel. Plaintiff's union also challenged AK Steel's decision to terminate her, but it did not take the matter to arbitration. Id. at ¶¶ 11–13; see also Complaint, ¶¶ 27–29.

According to Hull, during the almost decade preceding Plaintiff's termination, AK Steel has discharged a total of twenty-nine employees for “falsification.” This group includes: twenty-one white males; six white females; one African–American male; and one African–American female, Plaintiff. See Hull Decl. ¶ 10; Doc. 54–1 at 1–2, ¶ 2 (“Hull Supp. Decl.”) compare Pickens Decl., ¶ 7 (“While working at AK Steel, I had regular contact with numerous temporary employees and none were questioned, disciplined or terminated because of any discrepancies with their job application...