Gregg v. SBC/Ameritech

321 F. App'x 442
Court of Appeals for the Sixth Circuit·Decided April 15, 2009·No. 05-3995·Unpublished·Cited by 2 cases

Opinions

PER CURIAM.

The plaintiff, Kevin Gregg, filed numerous lawsuits — now consolidated — against defendants SBC/Ameritech and SBC/Am-eritech employees Mike Hay, Dan Wiley, Joel Hall, and Tom Keenan. In those pro se filings, Gregg raised claims of racial discrimination and retaliation under Title VII, 42 U.S.C. §§ 2000e-2000e-17, under 42 U.S.C. § 1981, and under Ohio Revised Code § 4112.02; claims of breach of contract and breach of the duty of fair representation under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185; claims of unpaid overtime and retaliation in violation of section 207(a)(1) of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1); and a claim of intentional infliction of emotional distress under Ohio state law. The district court eventually granted summary judgment to the defendants on each of Gregg’s substantive law claims arising from employment decisions rendered, and various activities undertaken, during Gregg’s tenure as a telephone technician with SBC/Ameritech. The plaintiff now appeals that ruling, as well as numerous procedural rulings made by the district court during the pendency of this litigation.

The 25 issues set out by Gregg on appeal can be categorized into procedural issues challenging numerous non-disposi-tive rulings made by the district judge and substantive issues challenging the district court’s grant of summary judgment on the plaintiffs claims arising under Title VII; 42 U.S.C. § 1981; anti-discrimination provisions in Ohio Revised Code § 4112.02; breach of contract and of the duty-of-fair-representation provisions of 29 U.S.C. § 185; unpaid overtime and retaliation provisions in 29 U.S.C. § 207(a)(1); and Ohio tort law. The district court issued a 40-page opinion addressing the parties’ summary judgment motions that recounted the facts pertinent to the substantive issues now before this court and applied the relevant law to those facts. Because the district court’s analysis is largely correct and, certainly, reached the correct result with regard to the merits of the issues raised in that court, a detailed recapitulation of the necessary background in[445]*445formation and of the legal analysis to be employed in the resolution of the issues raised would be largely duplicative and would serve no useful or precedential purpose. See Gregg v. SBC/Ameritech, Nos. 2:02-CV-980, 2:02-CV-1232, 2:03-CV-636, 2005 WL 1514114 (S.D.Ohio June 24, 2005).

We nevertheless are at pains to address one of the issues raised below that was properly addressed by the district court simply because it received so much emphasis on appeal. The plaintiff contends that the district court’s treatment of his racial discrimination claim regarding his ultimate termination was flawed. Specifically, Gregg argues that although he was initially disciplined for making an extraordinarily high number of long-distance calls on company cell phones — in comparison with other SBC/Ameritech technicians — no evidence of the severity of discipline meted out to similarly-situated employees for abuse of local cell-phone privileges was introduced. We find no merit to this argument.

First, because the allegation of disparate treatment among similarly-situated employees is an element of the plaintiffs prima. fade case, it was Gregg, not SBC/Ameritech, who bore the burden of undertaking that analysis. Second, the record makes clear that the lack of such evidence was less a function of the failure to offer available proof than it was an impossibility. The simple fact is that no other employee under the direction of Gregg’s supervisor had compiled a comparable record of unauthorized diversions from work activity, abuse of company policy regarding cell-phone usage, and misuse of customer telephone equipment. Under these circumstances, the absence of evidence regarding any discipline imposed on other employees for unauthorized local calls made on company cell phones does not call into question the district court’s summary judgment ruling, simply because no other employee was in fact similarly situated to Gregg.

Moreover, to the extent that Gregg’s argument can be construed to assert that his termination for making local calls on company time and company equipment was improper because he was not on notice of the impropriety of such usage, that argument is also without merit. In his deposition, Gregg testified that, after his suspension for making personal long-distance phone calls on company cell phones, his supervisor, Thomas Keenan, explained:

Personal calls are not supposed to be made and it’s considered a Code of Conduct violation and tech expectations, and then he turns right around and says but we [SBC/Ameritech management] understand that there are times you are going to need to make personal calls and if you have to call your wife and tell her you are going to be late, whatever, you know, you can make some personal calls, basically not to abuse it, or something to that effect.

Clearly, permission to inform family members of unanticipated, work-related delays was not tantamount to blanket permission to use company equipment for any purpose. Just as clearly, Keenan’s admonition extended to both local and long-distance phone calls, so that Gregg cannot now legitimately assert that he thought that there was no restriction on local cellphone usage for personal calls. Consequently, the “118 non-business related telephone calls” that the plaintiff made on a company cell phone after his ten-day suspension for making unauthorized long-distance calls more than justify the action taken by SBC/Ameritech against Gregg.

Having found that the substantive issues raised on appeal do not merit relief, we now direct our attention to the numerous [446]*446procedural aspects of this litigation that are challenged by the plaintiff.

District Court’s Refusal to Enforce Arbitration Agreement

Gregg first insists that the district court erred in an order entered on December 18, 2003, that failed to mandate enforcement of an alleged arbitration award in the plaintiffs favor. As explained by the district judge in his summary judgment opinion, following SBC/Ameritech’s suspension and then termination of the plaintiff, Gregg availed himself of the grievance procedure provided for in the collective bargaining agreement between the company and his union, the Communication Workers of America. Pursuant to that process, Gregg first submitted to an informal “neutral evaluation process” whereby an evaluator questioned both parties to the dispute and rendered an “advisory opinion.” Because the company chose to reject the evaluator’s opinion, however, the case was “deferred to the regular arbitration process,” of which Gregg never availed himself. Consequently, no true “arbitration award” has yet issued, and the district court thus did not err in refusing to enforce a non-existent award.

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Gregg v. SBC/Ameritech, 321 F. App'x 442 (6th Cir. 2009).

321 F. App'x 442 (Gregg v. SBC/Ameritech) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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