Tooson v. Roadway Express, Inc.

47 F. App'x 370
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 25, 2002
DocketNo. 00-4440
StatusPublished
Cited by4 cases

This text of 47 F. App'x 370 (Tooson v. Roadway Express, 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
Tooson v. Roadway Express, Inc., 47 F. App'x 370 (6th Cir. 2002).

Opinion

PER CURIAM.

Cornelius Tooson appeals the order of the district court granting judgment to his former employer, Roadway Express, Inc., [372]*372and several of its managers (collectively, “Roadway”). Tooson’s action for racial discrimination was heard by a jury, and the jury found for Roadway. Tooson argues that the district court erred in issuing several specific jury instructions and in making several evidentiary rulings and that such errors require that the jury’s verdict be reversed. For the following reasons, we affirm the district court’s judgment pursuant to the jury’s verdict in favor of Roadway.

I

Tooson, a black male, began working as a truck driver for Roadway in 1973. Between 1973 and 1994, Tooson’s tenure with Roadway was relatively uneventful. In 1994, Tom Brown became the relay manager of Roadway’s Cincinnati office, from which Tooson was dispatched, and the events that form the basis of Tooson’s action began. Tooson was disciplined for several motorist complaints, which, Tooson contends, are unremarkable occurrences and had never before been the grounds for disciplinary action. In March 1994, Too-son was informally reprimanded for falsifying his time and mileage logs.

Subsequently, Tooson’s driving was the subject of several more motorist complaints. Roadway pursued the complaints, requesting written descriptions of Tooson’s driving from the motorists. Tooson was discharged in January 1996. The Ohio Joint State Committee (“OJSC”), a panel comprised of equal numbers of management and union officials designated to hear grievances under Roadway’s collective bargaining agreement, reversed the discharge and recommended that Tooson be given remedial training.

After the training, in June 1996, Tooson was issued a speeding citation for traveling 70 in a 55 MPH zone, although the officer testified that he was actually traveling at 80. Tooson was again fired and reinstated by the OJSC. Roadway after additional warnings for speeding in 1997, had Tooson followed and videotaped. The videotape apparently revealed several driving infractions, and Tooson was fired in January 1998. The OJSC reduced this punishment to a final warning. Finally, a November 1998 videotape revealed several safety violations, almost one for every Vh miles, according to Roadway officials. Tooson was discharged again in November 1998 and has not been reinstated.

On July 11,1997, Tooson filed this action against Roadway and several of its officials claiming that the increased surveillance, reprimands, and the 1996 terminations that were later reversed by the OJSC were adverse employment actions motivated by racially discriminatory animus in violation of Title VII, 42 U.S.C. § 1983 (despite the absence of a state actor), and Ohio law. After Tooson was finally discharged in November 1998, Tooson amended his complaint, alleging that the discharge was also motivated by discriminatory animus and constituted illegal retaliation for his lawsuit.

The district court conducted a jury trial on Tooson’s claims in October 2000. On October 18, 2000, the jury returned a verdict for the defendant on all matters, and Tooson now appeals.

II

Tooson contends that the district court erred in issuing to the jury instructions and in making several evidentiary rulings during the trial. Having reviewed all of his arguments, we consider his five most substantial assignments of error separately below.

A. Race as “Determining Factor” Instruction

Tooson argues that the district court erred by instructing the jury that, in [373]*373order to find Roadway liable, race must have been a “determining factor,” rather than only a “motivating factor,” in Roadway’s decision to discipline or discharge the plaintiff. Tooson objected to the use of “determining factor” in the jury instructions, explaining to the court that the statute actually uses the term “motivating factor.” The district court issued the following instruction to the jury:

The plaintiff has the burden of proving by a preponderance of the evidence that plaintiffs race was a determining factor in the defendant’s decision to discipline or discharge plaintiff.... A determining factor is one that caused the reaching of a decision. Plaintiff need not show that race or retaliation was the sole or exclusive factor in the defendants’ decision to discipline or discharge him.... [Tjhere may have been more than one factor that motivated defendants. Plaintiff must prove by a preponderance of the legal evidence, however, that one such factor was race and/or retaliation and that factor made a difference in the determination of his discipline or discharge.

JA at 265-67 (emphasis added).

The word “determining factor” is not the precise term used in Title VII, at least as amended by the Civil Rights Act of 1991. In order to establish his case under the language of the statute, the plaintiff must show that race was a “motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). If the plaintiff establishes that race was a motivating factor in the adverse employment decision, then the burden shifts to the defendant to show by a preponderance of the evidence that it would have taken the employment action notwithstanding the plaintiffs race. See, e.g., Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 925 (6th Cir.1999). Even if the defendant satisfies this shifted burden, the plaintiff may recover attorneys’ fees and seek other injunctive relief. 42 U.S.C. § 2000e-5(g)(B)(1).

Tooson contends that the “determining factor” language establishes a more demanding burden than the “motivating factor” language. By requiring proof that race was a “determining factor,” the district court, according to Tooson, demanded that Tooson prove that race actually “caused” the adverse employment action, conflating the defendant’s subsequent burden and the plaintiffs initial burden. In support of his argument, Tooson turns to the dictionary, noting that “to motivate” is defined as “to impel, to provide with a motive,” while “to determine” as “to bring about a result.” Tooson also notes that the Second Circuit had decided that a district court erred by instructing the jury that the plaintiff was required to show that race was “the determinative factor” in the employment action. See Ostrowski v. Atlantic Mutual Ins. Co., 968 F.2d 171 (2d Cir.1992) (emphasis added).

Any risk that using “determining,” as opposed to the precise word in the statute, prejudicially raised the plaintiffs burden of proof was cured by the district court’s careful definition of “determining factor” in its instruction to the jury. The court made clear that the plaintiffs race need not have been the exclusive factor in the decision, it need only have “made a difference.” This definition is correct. If the plaintiffs race “made no difference” in Roadway’s decision, then the plaintiff cannot prevail.

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