Santino v. Columbus Pub. Sch.

• Decision Date: 24 June 2011
• Docket Number: Case No. 2:10–cv–184.
• Parties: Nick A. SANTINO, Plaintiff, v. COLUMBUS PUBLIC SCHOOLS, Defendant.
• Court: U.S. District Court — Southern District of Ohio

833 F.Supp.2d 780

280 Ed. Law Rep. 240

Nick A. SANTINO, Plaintiff,

v.COLUMBUS PUBLIC SCHOOLS, Defendant.

Case No. 2:10–cv–184.

United States District Court,

S.D. Ohio,

Eastern Division.

June 24, 2011.

Nick A. Santino, Worthington, OH, pro se.

John Curtis Albert, Columbus, OH, for Defendant.

OPINION AND ORDER

JAMES L. GRAHAM, District Judge.

This is an employment discrimination action under 42 U.S.C. § 1983 brought by plaintiff Nick A. Santino against his former employer, defendant Columbus Public Schools. Plaintiff, a naturalized United States citizen of Iranian origin, was employed by defendant as a school bus driver. Plaintiff alleges that during his employment with defendant, he was subjected to hostile comments by his co-workers based on his national origin. He further alleges that he was disparately treated and retaliated against in violation of his equal protection rights.

This matter is before the court on the defendant's motion for summary judgment.¹ The procedure for granting summary judgment is found in Fed.R.Civ.P. 56(c), which provides:

The judgment sought shall be rendered forthwith if 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.

The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The Sixth Circuit Court of Appeals has recognized that Liberty Lobby,Celotex and Matsushita effected “a decided change in summary judgment practice,” ushering in a “new era” in summary judgments. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party “cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ” Id. (quoting Liberty Lobby, 477 U.S. at 257, 106 S.Ct. 2505). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely “ ‘show that there is some metaphysical doubt as to the material facts.’ ” Id. (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348). Moreover, “[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.

I. Background

Plaintiff began his employment with defendant in September of 2004. Defendant's Ex. 1. In a letter dated March 25, 2006, plaintiff informed Greg McCandless, his supervisor at the Morse Road school bus compound, that on Friday, March 25, 2006, Monique Myles, a co-worker, scolded plaintiff for driving too fast on Morse Road, and Diane Ledsome, another co-worker, said, “yes you better watch out or we do not care and we tell you where you go and some other S.O.B.” Defendant's Ex. 23. Plaintiff claimed that in the past, one of these ladies told him that he looked like a Somalian gangster, and that the “other lady” told him that he could not wash his bus until she permitted him to do so, since she had to wash several other buses. Plaintiff testified in his deposition that when he discussed the matter with McCandless and his immediate supervisor, Martha Moore, McCandless asked plaintiff what he had done to them to have them talking like that. Santino Dep., p. 65. However, Moore stated, “That's not right.” Moore called three women over and talked with them. Santino Dep., p. 66.

A year later, in a letter dated April 28, 2007, plaintiff reported to McCandless that he had heard a few co-workers calling him a terrorist and “other names.” he claimed that he was experiencing “so much stress” and that he was “uneasy about the whole unwanted accusation[.]” Defendant's Ex. 23. Plaintiff testified that when he informed Moore about his complaint, she stated, “That's ridiculous, I know I talked to them,” and she told him to report the incidents to McCandless. Santino Dep. p. 67. Plaintiff claimed that McCandless just asked plaintiff what he had done to the co-workers to provoke these statements.

Plaintiff gave another letter to McCandless and Moore on May 9, 2007, stating that some co-workers had been “calling names and making my like very stressful [.]” Defendant's Ex. 23. Plaintiff alleged that Monica Myles and another co-worker named Tina got money from other drivers to wash their buses, and that when he tried to wash his own bus, they yelled at him aggressively and almost hit him and called him a foreigner. They stated that he could not wash his bus until they were done with the other buses. Moore told plaintiff that Myles had no right to say that, and further stated that since Myles was getting money to wash buses, she could wait until after plaintiff and the other drivers washed their buses. Santino Dep. pp. 71–72. Moore said she would talk with the women. Santino Dep. p. 73.

A year later, plaintiff addressed another letter to McCandless dated May 2, 2008. Defendant's Ex. 23. Plaintiff complained about “receiving harassment from co-workers” and stated that he did not believe that anyone “should take any insults[.]” Plaintiff further stated that “if they think I am a foreigner and other thing they know better I am much civilize [sic] than those individuals[.]” Plaintiff spoke with McCandless and indicated that the problems were being caused by the same three women. Santino Dep. p. 73–74. Plaintiff then gave a letter dated May 12, 2008, to McCandless and Moore, stating that the co-workers were still calling him “terrorist, gangster and other SOBs.” Plaintiff stated that “in few occasions I have heard them giving remarks and made [sic] accusations such as ‘He got bomb in the bus for suicide purposes.’ ” Plaintiff stated in the letter that the harassment made him “very stressful and uneasy.” Plaintiff testified that Moore shook her head and stated “I talked to these people, I don't know what's going on here [.]” Santino Dep. p. 77. According to plaintiff, McCandless stated, “[W]ell, you want me to send you downtown (presumably a reference to someone in higher authority), you guys” and plaintiff responded, “If you have to, you have to.” Santino Dep. p. 76.

Plaintiff also kept a journal during this period. The entry for March 22, 2007, states that Brian McCauley, a co-worker, informed plaintiff that he heard “a few people” calling plaintiff a terrorist. One person said that plaintiff was going the wrong way (in his bus) because he was carrying a bomb to blow something up or make a suicide attack. Defendant's Ex. 24. An entry on March 27, 2007, stated that a lady in the garage (plaintiff did not know her name) asked him where he was from. Plaintiff told her he was from the U.S.A., and she replied that he was a terrorist. Plaintiff noted on April 3, 2007, that Martha Moore called him into her office and stated, “I am going to talk to those [people] calling you [a] terrorist and other thing[s] ... like [foreigner].” On March 6, 2008, plaintiff had a discussion with an employee named Jay about the bus route, and Jay told him that some people in the office were calling plaintiff a terrorist, and he asked, “What's the problem?”

Some of the entries are not clear and do not specifically refer to acts of harassment based on national origin, but rather to generic quarrels or slights. For example, plaintiff noted on May 3, 2007, that he went into McCandless's office and extended his hand to shake McCandless's hand, but McCandless ignored the gesture and said something about plaintiff having to record his license plate number with places on his assigned routes for security purposes. On September 5, 2007, a union person asked plaintiff, “Did you drive your car to this side of [the] building?” When plaintiff said, “No,” the person replied that he needed to change his glasses. Plaintiff wrote that this “was kind of strange.” On September 12, 2007, plaintiff noted that he was walking from his bus to the office at 5:20 p.m., when he heard a male voice from between the buses loudly say, “You go home.” No facts were recorded to indicate that this person was talking to plaintiff, or that the statement meant anything other than to say that it was the end of the work day and time to go home.

On September 19, 2007, plaintiff noted in his journal that he was telling Mike, a mechanic at the garage, that the fan didn't work, when another mechanic plaintiff referred to as “Robin” asked him if he had a problem with the bus. When plaintiff said, “Yes,” Robin said “fuck you.” Mike then fixed the fan. Plaintiff wrote that the previous year, as plain...