Ozier v. RTM Enterprises of Georgia, Inc.

229 F. App'x 371
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 13, 2007
Docket05-2027
StatusUnpublished
Cited by5 cases

This text of 229 F. App'x 371 (Ozier v. RTM Enterprises of Georgia, 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
Ozier v. RTM Enterprises of Georgia, Inc., 229 F. App'x 371 (6th Cir. 2007).

Opinions

ALICE M. BATCHELDER, Circuit Judge.

Plaintiff-Appellant, Michael Ozier (“Ozier”), appeals the district court’s decision granting summary judgment in favor of Defendant-Appellee, RTM Enterprises of Georgia, Inc. (“RTM”), in this action in which Ozier claimed race and sex discrimination in violation of Michigan’s Elliott-Larsen Civil Rights Act and 42 U.S.C. § 1981; retaliation in violation of Michigan’s Elliott-Larsen Civil Rights Act and 42 U.S.C. § 1981; and violation of Michigan’s Bullard-Plawecki Employee Right to Know Act. Because we conclude that Ozier did not establish a prima facie case of discrimination or retaliation, and did not present sufficient evidence to raise a genuine issue of fact with respect to his Bullard-Plawecki claim, we affirm.

I.

RTM owns and operates Arby’s fast food restaurants nationwide, with two restaurants—one on Gull Road and one on Cork Street—in Kalamazoo, Michigan. On December 27, 2000, RTM hired Ozier, an African-American male, to work as an entry-level team member at the Cork Street Arby’s, making $8.00 per hour. Ozier generally received positive work performance reviews, and by early 2002, he had received several pay raises and had been made a team trainer, earning $8.60 per hour. Ozier’s first manager, Frank Davis, recommended to the area supervisor, Phil Morris, that Ozier should be promoted to shift manager. A subsequent manager, Basem Shamus, also recommended Ozier’s promotion to shift manager, but Ozier was never promoted.

In November 2001, D’Ann Tierney (“Tierney”), transferred from an Arby’s in Indiana to an assistant manager position with the Gull Road and Cork Street Arby’s. She became the store manager of the Cork Street restaurant in June 2002. Tierney observed that Ozier had “excellent customer service skills,” and she gave him positive evaluations early in her tenure, [373]*373observing that “he was rehable, he was always there.” Tierney’s evaluation of Ozier was not unmixed, however. Her chief criticism and concern was that Ozier was not a productive employee when left unsupervised. She testified that Ozier would do whatever was asked of him, but that she would have to ask him to do it, and he was not self-motivated. Tierney expressed her concern that “if I couldn’t trust him to do the maintenance position, then how would I trust him to run a shift, unsupervised?” She explained to Ozier that she would not simply promote him based on the number of years he had worked there, and that he needed to prove himself before being promoted. Tierney believed that Ozier’s work performance declined under her management because he was not working with a manager present, whereas under both Davis and Shamus, Ozier had worked along with a manager.

Previous store managers had promised Ozier that he would be promoted to shift manager. When she became store manager, Tierney talked with Ozier about his frustration at not being promoted; she said that she understood that frustration and provided him with the restaurant’s 44-page training manual for the shift manager position. This training program is largely driven by the employee, and the employee is expected to take the initiative to learn the material in the manual, and to complete the manual and present it to the manager.

Tierney assigned Bill Goodwin, an assistant manager, to advise Ozier during the training program. She stated that she met with Goodwin and Ozier to discuss the training program, but Ozier claims that they never discussed Goodwin’s helping him with the training. Rather, Ozier testified that Mr. Goodwin merely “showed me some paperwork that I was supposed to be learning ... just little odds and ends that would update me on the [shift manager’s] book.”

Tierney explained that Ozier was given verbal tests related to the shift manager position, on which he did not perform well, and that he failed to complete most of the sections of his training book, so he did not qualify for any written examinations, which were required to qualify for the promotion. Tierney claimed that Ozier began complaining to other employees in late 2002 that he was being passed over for promotion because he is African-American. Having heard about the complaints, Tierney confronted Ozier and he denied making them. Ozier claims that Tierney then said to him that no one is promoted unless they “kiss a little butt.” Tierney denies making that statement.

During this time, Tierney trained three other employees—all Caucasian women— for manager positions. Ozier claims that Tierney promised to train him after she was finished training Caralee Waswick, the first of the three, and that no one at RTM ever explained to him why he was not trained for the shift manager position. Tierney denies ever making such a promise. Ozier then complained to the other managers in the store, including Waswick, that Tierney was not training him because of his race. In January 2003, weeks before Ozier’s termination, Waswick informed Tierney of his comments.

RTM maintains that Ozier’s dismissal was unrelated to his comments and complaints about Tierney, and that he was fired because on four separate occasions, Ozier had end-of-the-day cash shortages in his cash register. Ozier claims he only remembers the third and fourth shortages. The third shortage, in the amount of $20.87, occurred on December 9, 2002, and Ozier received a written warning from Tierney, including notice that another shortage would result in his termination. The [374]*374fourth shortage, in the amount of $5.09, occurred on February 3, 2003. Tierney did not count the drawer herself, but Waswiek reported the shortage to her. Ozier denied that his drawer was short, but he did not count the money in the drawer at the end of the day.

After the fourth shortage, Tierney reported to Phil Morris, the area supervisor, that Ozier’s drawer was short again after he had been given a final warning, and Morris agreed that Ozier’s employment should be terminated. Tierney stated that the cash shortages were the only reason she had for firing Ozier.

When Ozier arrived at work after the fourth cash shortage, Tierney informed him that his drawer was short again and that he was being fired. Ozier claims that during this meeting, Tierney told him that “I heard you been talking about me behind my back.” Ozier denied that his drawer was short, and questioned whether he was being fired for comments he had made to Waswick. According to Ozier, Tierney responded that in fact his drawer was short and that was why “we’re getting rid of you.”

Shortly after he was fired, Ozier requested his personnel file. Ozier claims that he received only parts of the file, which did not include any performance reviews or disciplinary write-ups that would ordinarily be included in a personnel file. Ozier submitted a second request for his personnel file along with a letter from his attorney, but RTM has not given him the file, claiming that it cannot be located.

Ozier filed a three-count complaint against RTM in the Michigan state court, alleging that RTM’s failure to promote him was the result of race and sex discrimination and retaliation and that RTM’s failure to turn over his personnel file violated Michigan’s Bullard-Plawecki Act. RTM removed the action to the United States District Court for the Western District of Michigan, and moved for summary judgment on all claims.

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Bluebook (online)
229 F. App'x 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ozier-v-rtm-enterprises-of-georgia-inc-ca6-2007.