[Cite as Dukes v. Associated Materials, L.L.C., 2014-Ohio-4322.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
DE'WAYNE L. DUKES, SR. C.A. No. 27091
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE ASSOCIATED MATERIALS, LLC, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2012 10 5713
DECISION AND JOURNAL ENTRY
Dated: September 30, 2014
MOORE, Judge.
{¶1} Plaintiff, De’Wayne L. Dukes, Sr., appeals the ruling of the Summit County Court
of Common Pleas. For the reasons set forth below, we reverse and remand this matter for further
proceedings consistent with this opinion.
I.
{¶2} At the times relevant to this case, Mr. Dukes worked through a temporary
personnel agency, Select Staffing (“Select”), and was placed at a window-manufacturing facility
known as Alside, which is a division of Associated Materials, LLC (“Associated”). In 2008, Mr.
Dukes’ placement at Alside was terminated. Thereafter, Mr. Dukes filed an action against Select
and Associated (collectively “Appellees”), claiming employment discrimination and retaliation
for having engaged in a protected activity pursuant to R.C. 4112.02(A) and (I). Appellees each
filed motions for summary judgment. Thereafter, Mr. Dukes responded in opposition to the
summary judgment motions. Appellees filed a joint reply. On August 30, 2013, the trial court 2
granted Appellees’ motions for summary judgment and dismissed Mr. Dukes’ claims. Mr.
Dukes timely appealed from the August 30, 2013 order, and he now presents two assignments of
error for our review. We have consolidated the assignments of error to facilitate our discussion.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING THAT [MR. DUKES] DID NOT ESTABLISH A PRIMA FACIE CASE OF RACE DISCRIMINATION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN FINDING THAT [MR. DUKES] FAILED TO ESTABLISH THAT APPELLEES’ STATED BASIS FOR TERMINATION OF [MR. DUKES] WAS PRETEXT FOR DISCRIMINATION.
{¶3} In Mr. Dukes’ assignments of error, he challenges the trial court’s two bases for
granting summary judgment to Appellees. In his first assignment of error, Mr. Dukes argues that
the trial court erred in determining that Mr. Dukes did not establish a prima facie case of race
discrimination. In his second assignment of error, Mr. Dukes argues that the trial court erred in
determining that no triable issue existed as to whether Appellees’ stated basis for his termination
was pretext for discrimination.
{¶4} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts
of the case in the light most favorable to the non-moving party and resolving any doubt in favor
of the non-moving party. Viock v. Stow-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶5} Pursuant to Civ.R. 56(C), summary judgment is proper only if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. 3
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶6} The party seeking summary judgment bears the initial burden of informing the
trial court of the basis for the motion and identifying portions of the record that demonstrate an
absence of a genuine issue of material fact as to some essential element of the non-moving
party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “If the moving party fails to
satisfy its initial burden, the motion for summary judgment must be denied.” Id. at 293. If the
moving party fulfills this burden, then the burden shifts to the nonmoving party to prove that a
genuine issue of material fact exists. Id. In doing so, the non-moving party may not rest upon
the mere allegations and denials in the pleadings, but instead must point to or submit some
evidentiary material to demonstrate a genuine dispute over the material facts. Id.
{¶7} Here, Mr. Dukes’ claim pertains to R.C. 4112.02(A), which provides that it is “an
unlawful discriminatory practice[ ][f]or any employer, because of the race * * * of any person, to
discharge without just cause * * * or otherwise to discriminate against that person with respect
to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or
indirectly related to employment.”1 Where a plaintiff relies on indirect evidence of
discrimination, the claim is “analyzed under a burden-shifting framework. ‘Once a plaintiff
establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.’” Rivers v. Cashland, 9th Dist.
Summit No. 26373, 2013-Ohio-1225, ¶ 16, quoting Smith v. Kelly, 2d Dist. Clark No. 2011 CA
77, 2012-Ohio-2547, ¶ 19. “[A] plaintiff may make a prima facie showing of discrimination by
1 In its order awarding summary judgment to Appellees, the trial court determined that, although Mr. Dukes also had alleged retaliation in his complaint, he failed to set forth the necessary elements of the claim, and the trial court dismissed the claim on that basis. Mr. Dukes does not challenge the trial court’s ruling in this regard. Accordingly, we will limit our discussion to Mr. Dukes’ claim for employment discrimination. 4
establishing that he (1) was a member of a protected class, (2) suffered an adverse employment
action, (3) was qualified for the position, and that (4) a comparable nonprotected person received
better treatment.” Williams v. Spitzer Auto World Amherst, Inc., 9th Dist. Lorain No.
07CA009098, 2008-Ohio-1467, ¶ 16. “Once the employer states a nondiscriminatory reason for
the action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the
evidence that the reason articulated by the defendant was mere pretext.” Rivers at ¶ 16, quoting
Smith at ¶ 19.
{¶8} As part of their motion for summary judgment, Appellees maintained that Mr.
Dukes could not establish a prima facie case of race discrimination. Further, Appellees
maintained that, even if Mr. Dukes could establish a prima facie case, Appellees had a
nondiscriminatory basis for removing him from his placement, and Mr. Dukes could not
demonstrate pretext. In support of their arguments, Appellees pointed to Mr. Dukes’ deposition,
deposition exhibits, and an affidavit of an Alside employee Michelle Reif, which incorporated
time records for another Select employee, Jose Flores, whom Mr. Dukes alleged was a
comparable employee outside of his protected class that received disparate treatment.2
2 We note that Appellees filed portions of Mr. Dukes’ transcript with the trial court, and there exists no full transcript or certification of the court reporter in the file. “[A] deposition transcript must be authenticated before it can be considered as legally acceptable evidence for summary judgment purposes.” King v. Rubber City Arches, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 19, citing Putka v. Parma, 90 Ohio App.3d 647, 649 (8th Dist.1993). “If a document is not of the type enumerated in Civ.R. 56(C), a trial court may consider that document when ruling on a motion for summary judgment if there is no objection.” King at ¶ 19, citing Wayne Sav. Community Bank v. Gardner, 9th Dist. Wayne No. 08CA0016, 2008-Ohio-5926, ¶ 17, citing Richardson v. Auto-Owners Mut. Ins. Co., 9th Dist. Summit No. 21697, 2004-Ohio- 1878, ¶ 29. Here, Mr. Dukes made no objection to the trial court’s consideration of the partial, uncertified deposition transcript, and we conclude it was in the trial court’s discretion to consider the deposition for purposes of summary judgment. 5
{¶9} The portions of Mr. Dukes’ deposition on which Appellees rely in support of
summary judgment establish the following facts which were undisputed for summary judgment
purposes. Mr. Dukes, an African American man, worked through Select at Alside. Mr. Dukes
worked on several manufacturing lines at Alside, and ultimately worked on the “Geneva and
Preservation lines.” He typically began work at 3:30 p.m. However, in May of 2007, an Alside
supervisor notified Mr. Dukes’ line that the line’s shift would begin at 4:30 p.m. instead of 3:30
p.m. That December, another supervisor informed Mr. Dukes and his coworkers that, after the
Christmas shutdown, the Geneva and Preservation line shift would return to its 3:30 p.m. start
time.
{¶10} In December 2007, after Mr. Dukes learned that his start time was returning to
3:30 p.m. after the Christmas shutdown, he asked Manning Johnson, his supervisor who worked
for Associated, and John Tultz, his second shift supervisor who worked for Select, for a fifteen
minute adjustment to his start time due to childcare issues. After checking into the issue, both
Mr. Johnson and Mr. Tultz informed Mr. Dukes that his schedule could not be changed. In
January 2008, Mr. Dukes again asked Mr. Johnson to adjust his start time to delay it by fifteen
minutes, and Mr. Johnson refused. Around this time, Mr. Dukes spoke with Ta’Meeka
McCloud, a line leader in a different department. Ms. McCloud informed Mr. Dukes that one of
her line members had his schedule adjusted due to childcare issues in November of 2007. Mr.
Dukes then again requested Mr. Tultz to change his start time, and Mr. Tultz responded that he
would try to find Mr. Dukes a different position, but was unable to do so.
{¶11} Alside had an attendance policy through which employees accumulated
attendance points as a result of absences and tardiness. Pursuant to this policy, an employee who
earned six attendance points in one calendar year was subject to employment termination. All 6
points were reset to zero at the beginning of each calendar year. Employees received one-half
point for each instance of tardiness, and they received one point for each absence that was not
approved leave. However, an exception existed where, if the employee missed two or more
consecutive days and provided the company with a doctor’s note for the days missed, then all of
the days covered by the medical excuse would be counted as only one point.
{¶12} On eight occasions in January 2008, Mr. Dukes was tardy. On January 22, 2008,
Mr. Dukes was absent, and he believed that he might have requested a vacation day on that day.
On January 29, 30, and 31, 2008, Mr. Dukes claimed that he was out sick from work. A Select
employee told him to bring in a doctor’s excuse on his next scheduled work day, February 5,
2008. However, on February 4, 2008, the day before returning for his next shift, a Select
employee called Mr. Dukes and told him that he had exceeded the maximum points under the
attendance policy and was being let go by Alside. She informed Mr. Dukes that Select could
attempt to find him another job. He responded that “it wasn’t going down like that. I did
nothing to lose this job.” Thereafter, Select never offered Mr. Dukes another position, and Mr.
Dukes did not inquire as to another position.
{¶13} In their motions for summary judgment, Appellees did not dispute that Mr. Dukes
is a member of a protected class and that he was qualified for the position he held. Instead, they
maintained, as to Mr. Dukes’ prima facie case, that there was no question of fact that (1) Mr.
Dukes did not suffer an adverse employment action, and (2) a comparable employee3 outside of
Mr. Dukes’ protected class did not receive better treatment. See Williams, 2008-Ohio-1467, at ¶
16. Appellees further argued that, even if Mr. Dukes could establish a prima facie case of
3 We note that Appellees did not dispute that Mr. Flores is a comparable employee for purposes of this litigation. 7
discrimination, they had a legitimate reason for terminating his assignment at Alside, and Mr.
Dukes could not establish pretext.
{¶14} First, as to the adverse employment action, Appellees maintained that Mr. Dukes
was not fired from Select, and, instead, they interpret his response of “it wasn’t going down like
that” to be a refusal of further placements. From the context of the statement, it is not clear
whether Mr. Dukes was responding to the statement that he was being terminated, or to the offer
to find another placement. However, where his statement could be interpreted as expressing
disagreement with Select’s decision to release him and declaring his intention to contest the
employment action, we are required to resolve any factual matters in his favor at the summary
judgment stage of proceedings. See Taylor v. Uhl, 9th Dist. Lorain No. 13CA010441, 2014-
Ohio-3090, ¶ 5 (“In ruling on a motion for summary judgment the trial court is not permitted to
weigh the evidence or choose among reasonable inferences. Instead, the trial court should view
the facts of the case in the light most favorable to the non-moving party and resolve any doubt in
favor of the non-moving party, and we apply the same standard to our review.” (Quotation and
citation omitted)).
{¶15} Accordingly, as Appellees’ summary judgment argument that Mr. Dukes suffered
no adverse employment action was based solely upon their characterization of his statement as
refusing further positions, we conclude that they failed to meet their initial Dresher burden of
demonstrating that no question of fact remained on this issue.
{¶16} Next, as to Appellees’ contention that there existed no triable issue as to whether
a comparable non-protected employee was treated differently, they maintained in their motions
for summary judgment that Mr. Dukes had no firsthand knowledge of Mr. Flores’ altered start
time, as he stated as much in his deposition. Further, Associated presented the affidavit of Ms. 8
Reif that contained Mr. Flores’ timesheet. In Ms. Reif’s affidavit, she averred that she is the
human resources manager for Associated. Ms. Reif specifically averred that Mr. Flores never
received an adjustment to his 3:30 p.m. start time. She attached Mr. Flores’ records
demonstrating his punch in and out times from November 1, 2007, through January 27, 2008.
Pursuant to those records, Mr. Flores punched in after 3:30 p.m. on only three occasions and on
each occasion was marked as tardy. Based upon this, we conclude that Appellees met their
initial burden of establishing the absence of a question of fact as to whether Mr. Flores received
more favorable treatment.
{¶17} However, in his response to summary judgment, Mr. Dukes provided the affidavit
of Ms. McCloud. Ms. McCloud averred that she worked as a line lead on the second shift on the
“screen line.” Ms. McCloud supervised Select employees who worked on her line. As part of
her job, she informed Select when one of the line employees were in violation of Associated’s
attendance policies. Mr. Flores worked on the screen line under Ms. McCloud’s supervision in
2007. During this time, he was consistently five to thirty minutes late for work. Ms. McCloud
repeatedly reported the attendance violations to Select’s on-site managers. Ms. McCloud knew
that Mr. Flores’ wife worked first shift at Alside, and that Mr. Flores would wait with the
couple’s children in the parking lot until his wife had finished her shift, causing Mr. Flores’
tardiness, and that Mr. Flores had requested a modification in his start time so that he could wait
with his children until his wife had finished her shift. In an email dated November 8, 2007, a
Select employee informed Ms. Reif that Mr. Flores’ schedule was to be modified, to which Ms.
Reif responded, “Why is this exactly – this is not a normal practice. Just a reminder – if this
happens for 1 person, you need to make sure if anyone has the same issue it is done for all. I 9
don’t think this is a good idea.” Ms. McCloud then averred that Mr. Flores was allowed to work
an altered schedule due to his childcare issues; although he was still late for work on occasion.
{¶18} Viewed in the light most favorable to Mr. Dukes, Ms. McCloud’s affidavit
provides that a question of fact remained as to whether Appellees extended to Mr. Flores a
modification of his start time, whether or not he opted to take advantage of the accommodation.
Further, although the time records submitted with Ms. Reif’s affidavit indicate that Mr. Flores
generally arrived before the 3:30 p.m. scheduled start-time of his line, Ms. McCloud averred in
her affidavit that Mr. Flores was permitted to work an altered schedule, and, despite this, he was
still late to work on occasion. Thus, a question of fact remained as to whether Mr. Dukes was
treated differently from Mr. Flores.
{¶19} Therefore, the trial court erred in concluding that no triable issue remained as to
adverse employment action and disparate treatment of a comparator insofar as those issues
pertain to Mr. Dukes’ prima facie case of discrimination.
{¶20} However, Appellees maintained that even if Mr. Dukes could prove a prima facie
case of discrimination, there was no question of fact that they had a legitimate reason for
terminating him from Alside: he exceeded the points for attendance. Appellees argued that Mr.
Dukes could not demonstrate that his removal from his placement based upon attendance policy
violations was pretext for discrimination.
{¶21} “In order to demonstrate that an employer’s reasons for the adverse employment
action were merely pretextual, the plaintiff must show one of the following: (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the adverse
employment action, or (3) that the employer’s reasons were insufficient to motivate the adverse
employment action.” Chiancone v. City of Akron, 9th Dist. Summit No. 26596, 2014-Ohio- 10
1500, ¶ 18, citing Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir.1994),
citing McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir.1993). Under the first
Manzer showing, the plaintiff must set forth evidence that “the proffered bases for the plaintiff’s
discharge never happened, i.e. that they are ‘factually false.’” Manzer at 1084. Under the
second Manzer showing, the plaintiff must “admit[] the factual basis underlying the employer’s
proffered explanation and further admit[] that such conduct could motivate dismissal. * * * In
such cases, the plaintiff attempts to indict the credibility of his employer’s explanation by
showing circumstances which tend to prove that an illegal motivation was more likely than that
offered by the defendant.” (Emphasis sic.) Id. Under the third Manzer showing, the plaintiff
must present evidence “that similarly situated employees were treated differently [in order to]
lend support to a pretext argument.” Chiancone at ¶ 18, citing Smith v. Leggett Wire Co., 220
F.3d 752, 762 (6th Cir.2000).
{¶22} Here, Appellees maintained that Mr. Dukes’ placement was terminated because
he acquired eight points in January 2008, and they cited Mr. Dukes’ deposition in support. In his
deposition, Mr. Dukes acknowledged that four of his attendance points resulted from eight
instances of tardiness. The other four points resulted from absences on January 22, 29, 30, and
31. In his deposition, Mr. Dukes did not deny his absences or dispute the applicability of the
point system as contained in the attendance policy. Therefore, we conclude that Appellees met
their initial Dresher burden of establishing that their actions were not based upon discriminatory
intent.
{¶23} In his response in opposition to summary judgment, Mr. Dukes maintained that he
was denied an exception to the start time which had been made for Mr. Flores, and that Mr.
Dukes had incorrectly been assessed points for an approved vacation day and for his three-day 11
medical leave. In regard to the points accumulated for tardiness, we note that all eight instances
of tardiness exceeded the fifteen minute delay to Mr. Dukes’ start-time that he had requested. Be
that as it may, as set forth in our discussion of Mr. Dukes’ prima facie case, it appears that a
question of fact existed as to whether Mr. Flores was offered a one-half hour altered start-time,
an accommodation that was not offered to Mr. Dukes.
{¶24} As to the purported vacation day, in their motions for summary judgment,
Appellees maintained that Mr. Dukes had no documentation showing that he was approved to
take off on January 22, 2008, as a vacation day, and Appellees pointed to Ms. Reif’s affidavit,
wherein she averred that Associated had no record of any vacation request made by Mr. Dukes
for that day. However, in his deposition testimony, Mr. Dukes claimed that he may have used a
vacation day for his absence on January 22, 2008, for which he would not have accumulated a
point. Mr. Dukes recalled that he had submitted a form requesting three vacation days in
January, and that his supervisor had acknowledged receipt of the form when he called Mr. Dukes
and inquired as to his whereabouts on a day he was absent in January. Although Mr. Dukes
could not specifically recollect if January 22, 2008, was the day that he used a vacation day and
his supervisor telephoned him, other than the three days Mr. Dukes was absent purportedly due
to illness, January 22, 2008, was the only day he was absent in January. Accordingly, there is a
genuine dispute of fact as to whether Mr. Dukes took a vacation day on January 22, 2008.
Therefore, resolving doubt in Mr. Dukes’ favor, we conclude that a genuine issue of material fact
existed as to whether Mr. Dukes’ absence on January 22, 2008, was the result of a pre-approved
vacation day.
{¶25} Lastly, Mr. Dukes repeatedly maintained that his absences on January 29, 30, and
31 were the result of illness, and that he had a doctor’s excuse for these days. Appellees have 12
maintained that they never received the doctor’s excuse. However, there exists no timeframe in
the attendance policy for submitting the doctor’s excuse, and Mr. Dukes maintained that the
Select employee told him to bring in the excuse on his next workday, but he was let go prior to
the next work day. Also, it does appear from the deposition testimony that Appellees at some
point acquired the doctor’s excuse, as they refer to it as a deposition exhibit, although the
deposition exhibit itself is not contained in the record. Therefore, viewing these facts in Mr.
Dukes’ favor, he would have received only one attendance point for his doctor’s appointments at
the end of January.
{¶26} Accordingly, viewing the above in the light most favorable to Mr. Dukes, we
conclude that a genuine issue of fact remained as to whether Mr. Dukes was terminated from his
placement due to a violation of the attendance policy, or whether this reason was utilized as
pretext. See Chiancone, 2014-Ohio-1500, at ¶ 18.
{¶27} Accordingly, the trial court erred in granting summary judgment to Appellees,
and Mr. Dukes’ assignments of error are sustained.
III.
{¶28} Mr. Dukes’ assignments of error are sustained. The judgment of the Summit
County Court of Common Pleas is reversed, and this cause is remanded for further proceedings
consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal. 13
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CARLA MOORE FOR THE COURT
HENSAL, P. J. CARR, J. CONCUR.
APPEARANCES:
JOHN F. MYERS, Attorney at Law, for Appellant.
MARIO GAITANOS, Attorney at Law, for Appellee.
JAMES M. STONE, PATRICIA F. KREWSON and STEPHEN R. BEITING, Attorneys at Law, for Appellee.