United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Stephen J. Murphy, III United States District Judge
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. 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.
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.
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.
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.
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.
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
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
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
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.
third matter, although Plaintiff had documented attendance
issues during his employment with Defendant, he disputes the
details of the attendance issues.
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.
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.
"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.
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.
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.
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).
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).
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.
motion for summary judgment, Defendant raises five arguments.
First, Defendant raises a new "time-barred"
argument. ECF 18, PgID 219. 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.
Contractual Limitations Period
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.
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)).
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).
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 ...