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Sykes v. Fed Ex Freight East

United States District Court, E.D. Michigan, Southern Division

August 3, 2019

KEITH SYKES, Plaintiff,


          Stephen J. Murphy, III United States District Judge

         On September 6, 2017, Plaintiff Keith Sykes brought an action against his former employer, Defendant Fed Ex Freight East, for violations of Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq. ("Elliott-Larsen"). Plaintiff alleged race discrimination, hostile work environment, and retaliation. See ECF 26, PgID 948-54.[1] On October 31, 2018, Defendant filed a motion for summary judgment. ECF 18. The Court determined that oral argument is unnecessary. ECF 27. For the reasons below, the Court grants in part and denies in part Defendant's motion for summary judgment.


         Plaintiff is an African-American male who was employed by Defendant as a dock worker in Romulus, Michigan. ECF 22-2, PgID 715. He began working for FedEx National in 2010. Id. Plaintiff noticed a "culture of racism" in 2012, after FedEx National "merged" with Defendant. Id. at 721. Plaintiff's narrative can be broken down into three themes: (1) racial slurs at the workplace, (2) different treatment of black and white employees, and (3) attendance issues leading up to his termination.

         As an initial matter, Plaintiff faced racial slurs at work. Beginning in 2012, Defendant's employee, a driver named Dave Braugher, called Plaintiff a racial epithet, the N-word, several times. ECF 22-2, PgID 721, 723-24. Braugher called Plaintiff the epithet "[e]very time he [saw]" him, which was not every day. Id. at 721- 22. Braugher was white. Id. at 721. Plaintiff recalled that three other dock workers- Chris "C Moe," Raymond McGee, and "Russell"-witnessed Braugher calling Plaintiff the epithet. Id. at 723. In March 2017, Plaintiff reported the behavior for the first time to LaZonja Smith in Defendant's human resources department. Id. Plaintiff testified that he did not make a complaint earlier because he did not "trust management" and did not wish to lose his job. Id. at 724. After making the complaint, Plaintiff's shifts were moved to a different time and he no longer encountered Braugher at work. Id. at 723, 726. Plaintiff did not hear any assurances from Smith about Braugher and was unsure whether she was responsible for his no longer encountering Braugher. Id. at 726.

         According to Smith, Plaintiff failed to cooperate with her investigation into the usage of the epithet because he did not identify Braugher and suggested that the incidents had occurred years ago. See ECF 18-2, PgID 306. She did not know the identity of the individual until Plaintiff filed his complaint. Id.[3]

         Another one of Defendant's employees, terminal manager Joe Pollock, referred to another black employee, Charles Bailey, as "Flava Flav." ECF 22-2, PgID 724. Plaintiff witnessed Pollock refer to Bailey as "Flava Flav" twice. Id. at 724. Plaintiff saw Mike Carter and a supervisor named Doug standing nearby when Pollock made the comments the first time. Id. Plaintiff remembered that people were present on the dock during the second incident. Id. Plaintiff believed that Pollock and Bailey had a "friendly" relationship. Id. at 725.

         Plaintiff mentions other alleged incidents of the use of slurs or epithets. Plaintiff did not witness all of these events. For example, Plaintiff alleges that Pollock referred to a black employee as "monkey," but did not see it firsthand. Id. And Defendant issued an improvement letter to Plaintiff's supervisor, John McNamee, regarding incidents between McNamee and black employees, including McNamee's comment that another's employee's badge photograph looked "cracked out." ECF 22-7, PgID 827. According to the letter, McNamee denied that the remark was racially motivated. Id. McNamee also allegedly insulted the same black employee's "fro" as "fucked up." See ECF 22-5, PgID 816. Plaintiff did not witness the remarks, and McNamee did not make the remarks about Plaintiff.

         The second theme in the alleged facts is differential treatment between black and white employees. Plaintiff never observed Pollock sending white employees home early even though he saw Pollock send black employees home early "several times". ECF 22-2, PgID 727. Plaintiff was not sent home early. Id.

         Plaintiff believes he was "passed up" for promotions. ECF 26, PgID 950. Plaintiff applied for a supervisor position for which he believed he was eligible; he did not receive an interview. ECF 22-2, PgID 729-30. Plaintiff observed that Pollock promoted no black employees but did promote white employees. Id. at 729. Plaintiff recalled that Smith said he had submitted the application incorrectly because he did not use the company computer. Id. at 730. According to Smith, Plaintiff was also ineligible for supervisor positions because of his attendance issues. ECF 18-2, PgID 306. An email exchange between Smith and Plaintiff reflects her explaining that the attendance issues rendered Plaintiff ineligible for transfer. ECF 25, PgID 917-19. Plaintiff's attendance issues are discussed in more detail below.

         At some time before June 12, 2017 and after not receiving an interview for the supervisor position, Plaintiff filed an EEOC complaint. ECF 22-12. Plaintiff testified that after he filed the EEOC complaint, his hours were reduced and he was given "faulty equipment" including the "worst forklift" with "bent forks" and an uncomfortable seat. ECF 22-2, PgID 739. Plaintiff complained about the reduced hours and faulty equipment to his supervisor, Todd, but nothing changed. Id.

         As a third matter, although Plaintiff had documented attendance issues during his employment with Defendant, he disputes the details of the attendance issues.

         Plaintiff noticed that white employees took a Saturday off to watch a hockey game and did not receive attendance points, even though he received points when he took a Saturday off. Id. at 727. Plaintiff did not know whether the white employees provided proper notice. Id. Deposed white employees stated that they had no unwarranted write-ups. See ECF 22, PgID 702.

         Plaintiff received attendance points for not working on Saturdays. ECF 22-2, PgID 731. Plaintiff asserts that he previously did not receive attendance points for not working on Saturdays. Id. at 732, 758. McNamee reported Plaintiff's absences, even though Plaintiff believed-based on his conversations with McNamee-that the absences were excused. Id. at 758. Plaintiff recalled calling McNamee to inform him in advance he was not available on a given Saturday, and McNamee telling him he was "good" and "covered." Id. Beginning around February 23, 2017, after conversing with Pollock, Plaintiff was on-call on Saturdays to accommodate his schedule. See ECF 22-15, PgID 854. Defendant represents that Plaintiff went back onto a regular schedule in March 2017. ECF 25, PgID 888. But the conversation Defendant cites demonstrated that Plaintiff expressed a desire to go back onto a regular schedule and some reservations about doing so. Id. at 900-02. It is unclear whether and when Plaintiff returned to the regular schedule, because, on March 14, 2017, he stated that he was still on-call. See Id. at 904-05.

         Plaintiff's "exception tracking" record from November 30, 2015 to November 30, 2016, reflects five "absences" and two "no call, no show[s]" on (Saturday) September 24, 2016 and (Wednesday) November 30, 2016. ECF 22-3, PgID 761. A "notification form" states that Plaintiff had unexcused absences on (Saturday) October 29, 2016, (Saturday) November 19, 2016, (Wednesday) November 30, 2016, (Tuesday) February 7, 2017, and (Saturday) March 25, 2017, with verbal attendance notification on February 7 and written notification on March 25. ECF 22-16, PgID 856. A "corrective action recap" shows five absences and one no-call, no-show from October 29, 2016 to May 15, 2017, with two "critical written notification[s]" and one "written notification." ECF 22-14, PgID 852. One of the critical written notifications was for (Saturday) March 25, 2017. Id.

         Plaintiff received his first attendance notification on November 30, 2016. ECF 22-11. Plaintiff received several attendance notifications, including for November 30, 2016, February 7, 2017 and an "unexcused absence" on March 25, 2017, but Plaintiff maintains that at least some of these were excused absences. ECF 22-2, PgID 737- 38. Plaintiff was on a "written critical" period for attendance until April 29, 2017, which he completed. See ECF 22-17; ECF 22-2, PgID 735. On May 5, 2017, Smith informed Plaintiff that he was not eligible for promotion or transfer for a period of six months due to his attendance issues. ECF 25, PgID 919. On May 8, 2017, Smith congratulated Plaintiff on cleaning up his attendance record. ECF 22-17.

         On May 15, 2017, Plaintiff called Defendant's employee, terminal manager Teon Price, to tell him he would not work the next day. ECF 26, PgID 951. On May 17, 2017, Defendant terminated Plaintiff for a "no call/no show" the previous day. ECF 22-2, PgID 740.


         The Court must grant summary judgment "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To show that a fact is, or is not, genuinely disputed, both parties are required to either "cit[e] to particular parts of materials in the record" or "show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).

         A fact is "material" for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over material facts is "genuine" "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 (1986). When determining whether the movant has met his burden, the court views the evidence in the light most favorable to the nonmoving party. Smith Wholesale Co., Inc. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). But the Court may not judge the evidence or make findings of fact. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435-36 (6th Cir. 1987).

         The moving party has the burden of showing that no genuine issue of material fact exists. Id. at 1435. Once the moving party carries the initial burden of demonstrating that there are no genuine issues of material fact, the burden shifts to the nonmoving party to present specific facts to prove that there is a genuine issue for trial. Anderson, 477 U.S. at 256.


         In its motion for summary judgment, Defendant raises five arguments. First, Defendant raises a new "time-barred" argument. ECF 18, PgID 219.[4] Defendant also argues that Plaintiff fails to establish a prima facie case of race-based harassment, race discrimination, or retaliation, and that Plaintiff fails to prove that Defendant's actions were pretextual. ECF 18, PgID 221, 225, 227, 228.

         I. Contractual Limitations Period

         Defendant asserts that a statement in Plaintiff's 2010 employment application bars claims based on "interactions or events" before March 6, 2017. ECF 18, PgID 219-20. The argument is unconvincing because many incidents occurred within the contractual limitations period.

         The employment application states, "To the extent the law allows me to bring legal action against the company, I agree to file any charge or complaint or commence any legal action relating to my . . . employment with FedEx National no later than 6 months from the date of the employment action forming the basis of my lawsuit[.]". ECF 22-19, PgID 870. Under Michigan law, terms in an employment application are part of an employee's contract of employment. Thurman v. DaimlerChrysler, Inc., 397 F.3d 352, 356 (6th Cir. 2004) (citing Timko v. Oakwood Custom Coating, Inc., 244 Mich.App. 234, 244 (2001)).[5]

         But according to the evidence, several events and employment actions underlying Plaintiff's complaint occurred after March 6, 2017, within the contractual limitations period. Defendant terminated Plaintiff in May 2017. And it is not clear exactly when in March Plaintiff reported the N-word incidents to Defendant's human resources department and to the EEOC. Two attendance incidents occurred after March 6, 2017. See ECF 22-16, PgID 856; ECF 22-14, PgID 852. The record shows that Smith emailed Plaintiff on May 5, 2017 about his ineligibility for promotion or transfer. ECF 25, PgID 919. And some of Plaintiff's communications with Defendant regarding his attendance and schedule occurred after March 6, 2017. See ECF 25, PgID 894-911 (texts between Plaintiff and Smith after March 6, 2017 regarding Plaintiff's schedule and showing Plaintiff disputing his attendance record); id. at 917 (email dated May 8, 2017 regarding Plaintiff's attendance record).

         The evidence therefore reflects several relevant events within the contractual limitations period. Accordingly, although Plaintiff will need to show that incidents or employment actions occur within the contractual limitations period, the statement in the ...

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