Opinion
Civil Action No. 3:99CV-350-S.
November 1, 1999.
MEMORANDUM OPINION
This matter is before the court on motion of the defendant, Fullbach Services, Inc. ("Fullbach"), for summary judgment in this action alleging racial discrimination in employment. The plaintiff, Ronnie Blair ("Blair"), pro se, failed to file a response to the motion, which was due to be filed September 18, 1999. See LR 7.1(c)(1) of the Joint Local Civil Rules for the Eastern and Western Districts of Kentucky. On October 18, 1999, Ramon McGee, Esq. filed a notice of appearance for Blair, a motion seeking amendment to the court's scheduling order, and a response to Fullbach's motion for summary judgment. The response was unaccompanied by any motion for leave to file it out of time.
Blair filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq. after he was discharged from his employment with Fullbach. He filed an EEOC complaint and received a right to sue letter on June 2, 1999.
Fullbach has filed a motion for summary judgment claiming that Blair was discharged for a legitimate non-discriminatory reason. Fullbach contends, and Blair admits, that Blair assaulted his supervisor after a heated discussion concerning Blair's performance review.
Failure to file an opposing memorandum may be sufficient grounds for granting the requested relief. See LR 7.1(c)(1). Nevertheless, in the interests of justice, this court will review and address the merits of the defendant's motion for summary judgment and will consider the tardy responsive brief.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
However, the moving party's burden may be discharged by demonstrating that there is an absence of evidence to support an essential element of the nonmoving party's case for which he or she has the burden of proof. Celotex Corp., 477 U.S. at 323. Once the moving party demonstrates this lack of evidence, the burden passes to the nonmoving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element essential to his or her case with respect to which he or she bears the burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Blair contends that racial slurs were uttered by his supervisor on a number of occasions during his employment, directed at him and at co-workers. Blair did not report these incidents, although a policy existed at Fullbach, of which Blair was aware, that racial discrimination should be reported and would not be tolerated by the company. After Blair received an unfavorable performance evaluation signed by his supervisor, Blair questioned him about it. When the discussion became heated, the supervisor responded that he didn't lie, pointed a finger at Blair and uttered the epithet "n____r," at which time Blair struck him.
In the responsive brief filed by counsel, it is suggested that Blair told Chris Brockman, the Director of Human Resources for Fullbach, about the racial slurs. This suggestion is unsupported by any evidence in the record, by affidavit in support of the response, nor does such an assertion appear in the EEOC complaint or the Title VII complaint herein. Brockman's affidavit definitively denies at ¶ 5 that Blair reported any racial slurs used by his supervisor. As such, the evidence offered by Fullbach that Blair failed to report misconduct by his supervisor stands uncontroverted.
Taking these uncontroverted allegations as true, we conclude that Fullbach is entitled to summary judgment. We conclude that Blair's failure to report the earlier incidents of harassment deprived Fullbach of the opportunity to correct the situation and constituted an unreasonable failure to take advantage of a preventive or corrective opportunity provided by his employer. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998). Fullbach has come forward with evidence that it had a mechanism in place, a form for the documentation of allegations of harassment, which was made available to its employees. Brockman avers that had Blair reported the incidents, he would have instructed him to fill out the form. The company policy regarding discriminatory conduct was contained in the employee handbook which Blair acknowledged in writing that he received, read, and understood. Fullbach has also offered evidence of the steps it took when it was made aware of discriminatory conduct occurring among its employees. Only a few months prior to the incidents allegedly occurring against Blair, Fullbach had discharged an employee for similar conduct which had been reported. Thus Blair's decision not to report the incidents deprived Fullbach of the ability to implement corrective action. Under these circumstances, Blair cannot establish a claim against Fullbach for maintaining or condoning a hostile work environment. Faragher, 118 S.Ct. at 2293.
Fullbach's rules of conduct for its employees also appeared in the handbook. The provisions stated that "assaulting anyone" or "failure to report known rule violations" could "result in immediate termination." Regardless of the unpalatable nature of his antagonist's conduct, Blair clearly violated the company's rules of conduct when he did not report the purported abusive behavior on May 17, 1999, but instead resorted to physical violence against his supervisor.
Fullbach has come forward with evidence of a legitimate non-discriminatory basis for Blair's termination. See, Allen v. Michigan Department of Corrections, 165 F.3d 405 (6th Cir. 1999); Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992). Blair has failed to refute this evidence with evidence of pretext. Allen v. Michigan Department of Corrections, 165 F.3d 405 (6th Cir. 1999); Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir. 1994).
Alternatively, were the plaintiff's new allegations regarding his reporting of racial slurs contained in the complaint and supported by some evidence in the record, the court would conclude, nonetheless, that the claim against Fullbach is deficient as a matter of law.
Blair initially proceeded in this action pro se. He did not allege in his EEOC complaint or in the complaint in this case that he reported the abusive conduct of his supervisor. Since the filing of the summary judgment motion against him, Blair has retained counsel. Counsel has filed a response to the motion in which certain new facts are suggested, but are unsupported in the record. Counsel has not moved to amend the complaint. In an effort to afford a fulsome review to this plaintiff, we have included by way of additional explanation that we would find such amendment futile.
According to counsel's representations in the responsive brief, Blair endured a hostile work environment from March 15th until May 14th without reporting the conduct. Counsel states that Blair reported the incidents to Chris Brockman on May 14, 1999, and that Brockman told him that he would address the problem with company officials during the following work week. Before Fullbach was afforded that opportunity, Blair took the matter into his own hands, confronting his supervisor, and ultimately striking him. Although Blair apparently claims that he was told that the matter would be handled by company officials in the following week, three days after reporting the matter, Blair decided not to wait for the company's intervention.
Thus by Blair's own representations, he eventually reported the wrongful conduct of his supervisor and the company responded to his complaint with a plan to actively and promptly address the problem. Blair has not suggested that the response of the company was unreasonable or inadequate. He simply asserts that the altercation occurred prior to the company taking action. Were the facts offered by counsel established in the record, we would find that Blair failed to state a cognizable claim against Fullbach.
For the reasons stated above, we conclude that no genuine issue of material fact exists, the motion of the defendant for summary judgment must be granted and the action dismissed. A separate order will be entered this date in accordance with this opinion.