Jose Davis v. Omni-Care, Inc.

482 F. App'x 102
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 1, 2012
Docket10-3806
StatusUnpublished
Cited by11 cases

This text of 482 F. App'x 102 (Jose Davis v. Omni-Care, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jose Davis v. Omni-Care, Inc., 482 F. App'x 102 (6th Cir. 2012).

Opinions

OPINION

PER CURIAM.

Plaintiff-Appellant, Jose Davis (“Davis”), appeals the district court’s grant of summary judgment in favor of his for-[103]*103raer employer, Defendant-Appellee Omni-Care, Inc. (“Omni-Care”), on his claim of retaliation pursuant to Title VII of the Civil Rights Act of 1964 et seq. (“Title VII”) and Ohio Revised Code Section 4112.01 et seq.

Because the district court properly concluded that Davis failed to demonstrate that Omni-Care’s legitimate, non-discriminatory reason for terminating him was pretextual, we AFFIRM.

I.

Davis, an African-American male, is a former employee of Omni-Care. Omni-Care is a leading provider of pharmaceutical care to the elderly, as well as a provider of professional pharmacy and related consulting and data management services for skilled nursing, assisted living and other institutional healthcare providers. (R. 30-1, Calhoun Deck, at ¶¶ 3, 5).

During his employment with Omni-Care, Davis worked as a driver technician, delivering pharmaceuticals and medical supplies to both private consumers and medical service providers. (R. 31-1, Davis Depo., at 31). Davis reported directly to Joe Havrilla (“Havrilla”), the Distribution Manager, who reported to the facility General Manager, Dana Iacovetta (“Iacovet-ta”). (R. 30-5, Havrilla Deck, at ¶¶ 3-4); (R. 30-3, Iacovetta Deck, at ¶¶ 2-3). Davis received his route information at the beginning of each day from his router, although deliveries were typically supplemented throughout the day. (R. 31-1, Davis Depo, at 123).

In January 2008, Davis noticed what he perceived to be a noose hanging on a coworker’s bulletin board. (R. 32-1, Davis Aff., at ¶ 3). The noose was a piece of string, approximately six inches in length, which was tied in a slip knot with a loop on the end. (R. 30-3, Iacovetta Deck, at ¶ 9).1 Davis interpreted the noose as a sign of racial animosity and was offended. (R. 32-1, Davis Aff., at ¶4). The first day that he noticed the noose, he verbally complained to the router who sat nearby, and that individual instructed Davis to speak with the person who put it up. (Id. at ¶ 6).

On January 31, 2008, Davis wrote a letter formally complaining about the noose. (R. 31-1, Davis Depo., at 139-40). He provided this letter to several of the facility managers, but did not give it to Havril-la. (Id. at 140). Iacovetta received a copy of the letter, and she immediately removed the noose from where it was hanging and informed Davis that she had “handled it.” (R. 30-3, Iacovetta Deck, at ¶¶ 6-8); (R. 32-1, Davis Aff., at ¶ 8).

Iacovetta also alerted her supervisor, Area Director Gloria Calhoun Lewis (“Calhoun”), and the facility Human Resources representative, Tom Masters (“Masters”), as to what had occurred. (R. 30-3, Iaco-vetta Deck, at ¶ 10). They discussed the situation, as well as how to respond further. (Id. at ¶ 11); (R. 30-1, Calhoun Deck, at ¶¶ 12-13). They agreed that, due to Davis’s indication that he was unhappy with the facility management for “allowing” the noose to be displayed at all, someone from outside the facility should be involved. (R. 30-3, Iacovetta Deck, at ¶ 11); (R. 30-1, Calhoun Deck, at ¶ 13). Calhoun was chosen to meet with Davis, and the group agreed that no one from the facility would approach Davis regarding the situation until Calhoun met with him. (R. 30-3, Iacovetta Deck, at ¶¶ 12-13); (R. 30-1, Calhoun Deck, at ¶¶ 14-15).

[104]*104Havrilla also received a copy of Davis’s letter on the day it was initially circulated, although not from Davis. Havrilla sent Iacovetta an email indicating his concern with the letter’s effects, stating he felt that others were viewing him as a “monster.” (R. 32, Exhibit 15). He also expressed concern that he would be terminated. (R. 32, Exhibit 16). Iacovetta responded that the focus of the situation would be on Davis’s method of complaining outside the chain of command, not on the noose. (R. 33-2, Iacovetta Depo., at 30-31).

On February 1, 2008, a meeting was héld where, according to Davis, Havrilla slammed a copy of the policy and procedure handbook on a table, complained that he had been told that he did not follow it, and mandated that his drivers learn it. (R. 31-1, Davis Depo., at 160-61). Although Havrilla said nothing referencing Davis or the letter, Davis felt these comments were directed at him. (Id. at 162).

Calhoun ultimately visited the facility on February 21, 2008 and met with Davis the same day.2 (R. 31-1, Davis Depo., at 177-78); (R. 30-1, Calhoun Decl., at ¶ 17). During this meeting, they discussed what had occurred and Omni-Care’s potential responses. (R. 31-1, Davis Depo., at 184-85); (R. 30-1, Calhoun Decl., at ¶ 18). Calhoun eventually decided that sensitivity or diversity training should be provided, although Davis felt more serious measures were warranted, up to and including someone’s termination. (R. 31-1, Davis Depo., at 184-85); (R. 30-1, Calhoun Deck, at ¶¶ 18-20). Before the meeting ended, Calhoun provided Davis with her cell phone number, and encouraged him to contact her if he had any further issues. (R. 30-1, Calhoun Deck, at ¶ 22).

Davis called Calhoun later that evening. The parties dispute the tone, as well as the level of Davis’s agitation during the call, but Davis again conveyed his belief that this matter was serious and something more than diversity training should be done. (R. 31-1, Davis Depo., at 188-89). Calhoun reiterated her decision that she would not terminate anyone as a result of the incident, but confirmed that diversity training would occur. (R. 30-1, Calhoun Deck, at ¶¶ 23-24). Calhoun testified that while she found Davis’s behavior during the call to be insubordinate, she decided not to discipline him because of his good performance record and the fact that he was clearly upset about the incident. (Id. at ¶ 25).

On February 22, 2008, the day after Davis’s meeting with Calhoun, Omni-Care alleges, that Davis stopped answering or returning phone calls from his router and supervisor regarding deliveries. (R. 30-5, Havrilla Deck, at ¶¶ 5-8); (R. 30-2, Wilson Deck, at ¶ 6). Havrilla immediately informed Iacovetta of this “communication breakdown.” (R. 30-5, Havrilla Deck, at ¶ 11); (R. 30-3, Iacovetta Deck, at ¶¶ 16-17).

Iacovetta then alerted Calhoun and Masters to Davis’s lack of communication. (R. 30-3, Iacovetta Deck, at ¶ 18); (R. 30-1, Calhoun Deck, at ¶ 26). Omni-Care insists this was an issue of great concern, as it created a risk that medical equipment or supplies, which might be life sustaining, would not be delivered. (R. 30-1, Calhoun Deck, at ¶ 34).

Conversely, Davis contends that no communication breakdown occurred. He argues that his failure to respond to messages regarding deliveries was not a communication breakdown, but rather the usual course of business. Davis alleges that his practice had always been to respond to [105]*105a message only if he had a question about the order. (R. 32-1, Davis Aff., ¶ 20).

Although Davis disputes the existence of a communication breakdown, he does not dispute that he received two voicemails from Havrilla, and one voicemail from Ia-covetta, and that he responded to none of them.3 (R. 31-1, Davis Depo., at 178-80, 198-200). Havrilla’s first voicemail set a meeting for February 25, and the other changed the date of the meeting to February 26. (Id. at 178-79).

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Bluebook (online)
482 F. App'x 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jose-davis-v-omni-care-inc-ca6-2012.