Romans v. Michigan Dep't of Human Servs.
| Decision Date | 06 April 2012 |
| Docket Number | No. 10–2174.,10–2174. |
| Citation | 668 F.3d 826,114 Fair Empl.Prac.Cas. (BNA) 1404,18 Wage & Hour Cas.2d (BNA) 1321,162 Lab.Cas. P 35994 |
| Parties | Jerry ROMANS, Plaintiff–Appellant, v. MICHIGAN DEPARTMENT OF HUMAN SERVICES, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Liisa R. Speaker, Speaker Law Firm, PLLC, Lansing, Michigan, for Appellant. Jeanmarie Miller, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Liisa R. Speaker, Speaker Law Firm, PLLC, Lansing, Michigan, for Appellant. Jeanmarie Miller, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.Before: SUHRHEINRICH, GIBBONS, and McKEAGUE, Circuit Judges.
Plaintiff Jerry Romans, a Caucasian male, alleges that Defendant Michigan Department of Human Services violated Title VII by discriminating against him based on his race. Plaintiff further alleges that Defendant violated the Family and Medical Leave Act (“FMLA”) by interfering with his FMLA-leave rights and retaliating against him for his exercise of FMLA-protected rights. The district court granted summary judgment to Defendant as to both Plaintiff's Title VII and FMLA claims. Plaintiff appeals. For the reasons that follow, we affirm the district court's decision to grant summary judgment with regard to Plaintiff's Title VII claims, but vacate and remand for further proceedings with regard to Plaintiff's FMLA claims.
Plaintiff began working for Defendant as a Fire and Safety Officer at the W.J. Maxey Training School for Boys (“Maxey”) in Whitmore Lake, Michigan on May 15, 2000. He was supervised by Assistant Chief Walter Easley and Chief of Security Terry Blackburn. Maxey houses juveniles in the State's custody for delinquency. Fire and Safety Officers provide security for the facility and are subject to numerous work rules. Among other assignments, at the time Plaintiff worked at Maxey, Fire and Safety Officers could be assigned to the Control Center # 1 post (“CC1”) or the Control Center # 2 post (“CC2”). As their names imply, CC1 was the primary post responsible for monitoring the closed-circuit television cameras and operating the access system that opens locked doors throughout the facility, whereas CC2 acted as a back-up to CC1. A CC1 officer could not leave his position unless relieved.
Plaintiff was a member of the Michigan State Employees Association Union and could only be terminated for cause. Maxey's employment policies provide for employer intervention at four different levels: informal counseling, formal counseling, reprimand, and suspension. Pursuant to the Union Contract, neither formal nor informal counseling is considered a disciplinary action or a precursor to a disciplinary action. Formal counselings and disciplinary actions, i.e., reprimands or suspensions, become stale and must be removed from an employee's record after twelve months unless the employee has engaged in subsequent, similar conduct within that time period.
Historically, the Michigan Department of Corrections engaged in an affirmative-action hiring process. See Crawford v. Dept. of Civil Serv., 466 Mich. 250, 645 N.W.2d 6, 7–8 (2002). This hiring process treated racial minorities, women, and handicapped persons as though they scored higher on performance examinations than they actually did and has been abandoned by the department. Id. Plaintiff has presented evidence that Maxey used to have a policy of hiring eighty percent African Americans in order to mirror the racial composition of the facility's juvenile population.
A timeline of employment actions taken against Plaintiff, construed in the light most favorable to Plaintiff as the non-moving party, is as follows:
May 11, 2005 Suspension (one day): Plaintiff was suspended after a timely investigation that substantiated a social worker's allegations that he had made derogatory and sexually inappropriate comments to youths housed at the facility. The investigation substantiated claims that Plaintiff directed the words “bitch” and “slut” towards male youth, referred to a youth as “Tito,” asked if he had been to the Neverland Ranch, and referred to the television show Fear Factor as “queer factor.” Plaintiff claims that foul language was fairly commonplace among Maxey employees.
2006 Formal Counselings: Plaintiff received three formal counselings in 2006: one for failing to report for scheduled overtime, another for failure to timely report an absence, and another for failure to remain alert to job duties and work cooperatively. It bears repeating that, pursuant to the union contract, such formal counseling and informal counseling were not to be considered disciplinary actions.
May 15, 2007 Suspension (one day): Plaintiff was suspended for “leaving the facility and abandoning [his] shift.” Plaintiff states that he was working a 3 p.m. to 11 p.m. shift on April 4, 2006 when he received a call from his sister, who told him that his mother—who suffered from lung cancer and renal failure—was unlikely to survive the night, and decisions needed to be made about her care including whether to keep her on life support. Prior to this incident, Plaintiff had submitted Department of Human Services paperwork certifying that he was a health care provider and power of attorney for his mother and had acquired permission to use a cell phone while at work so that he could be alerted of emergencies. Plaintiff intended to go to the hospital immediately after his shift, which was scheduled to end at 11 p.m. However, at 10:30 p.m. a night shift employee called in sick, and Plaintiff was told that he had to stay on for a double shift.1 Plaintiff states that he had found another coworker to cover the additional shift, but that his supervisor, Walter Easley, told him that the rules would not allow the proposed switch. Plaintiff claims that he told Easley but that Easley responded “I'll have you fired if you leave.” Plaintiff says that at that point he punched out, left the facility, and drove to the nearby University of Michigan Hospital. However, Plaintiff states that he became worried he would lose his job and did not know what to do, so he turned around to go back to work as soon as he got to the hospital and returned to his shift. Eventually, Chief Blackburn allowed Plaintiff to leave later in the course of his extra shift.
June 26, 2007 Suspension (three days): Plaintiff was suspended after he admitted to calling his then-friend and coworker Tyrone Perteet a “motherfucker” twice over the facility's intercom system. Although Perteet was not offended by the language, another worker in the control room heard the cursing and was offended. Perteet was encouraged to document the incident as well, an action that Defendant claims led to subsequent problems between Plaintiff and Perteet.
February 28, 2008 Suspension (five days): Plaintiff was suspended for failing to follow an order. The background on this suspension began on September 1, 2007, when Plaintiff witnessed Perteet enter a single-stall bathroom with a female employee over the cameras from his CC1 post. Plaintiff claims that he was concerned about the female employee and, after having his CC2 officer relieve him, went to check on them. The female employee said that she was there of her own free will. Plaintiff filed an incident report about that event, and Perteet received an adverse employment action as a result.
Then, in December 2007, another officer filed an unusual incident report (“UIR”) accusing Plaintiff of using the facility's security cameras to watch Perteet while he worked, allegedly for the purpose of catching Perteet violating a work rule and filing workplace complaints against him. The UIR also stated that Plaintiff said he “wished they would hurry up and fire him, so he can sue the hell out of their ass.” Plaintiff states that, on February 8, 2008, he was working as the CC1 when Easley walked in and noticed that one of the security cameras was directed toward Maxey's front security counter where Perteet was stationed. Easley asked Plaintiff to move the camera. Plaintiff claims that before he could actually change the camera, Easley told him to go home instead. While exiting Plaintiff called Easley a racist. On February 21, 2008, Plaintiff received a five-day suspension resulting from this incident.
March 2008 Formal Counseling and April 2008 Written Reprimand: Plaintiff received three formal counselings for alleged misuse of the internal workplace complaint system. Between September 2007 and April 2008, Plaintiff filed a series of UIRs against Perteet, other coworkers, and his supervisors. Among them were the following: Plaintiff alleged that Perteet had threatened him on several occasions, and on one occasion followed Plaintiff in his car flashing his lights. Plaintiff also filed a report with the state police regarding the latter incident. Another UIR alleged that Plaintiff had heard Perteet and Easley discussing a female employee in a derogatory manner. In addition, Plaintiff encouraged two female employees to file complaints of sexual harassment against Perteet. Later, Plaintiff filed a UIR against Easley on the basis that Easley had not sufficiently investigated Plaintiff's grievances.
Plaintiff was issued two formal counselings and a written reprimand for failing to follow appropriate procedures for the UIRs because, contrary to Maxey protocol, he had not alerted anyone to the problems during his shifts before filing UIRs. In the counseling reports, Easley expressed concern that Plaintiff was using UIRs to disrupt the workplace in violation of a work rule that requires cooperation with coworkers.
On September 11, 2007, Perteet filed a Confidential...
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