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Davis v. Kohler Co.

United States District Court, W.D. Tennessee, Eastern Division

August 22, 2017

RICHARD DAVIS, Plaintiff,
v.
KOHLER CO., Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING JOINT MOTION TO CONTINUE AS MOOT

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Richard Davis filed this action against his former employer Kohler Co., alleging racial discrimination and retaliation in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Tennessee Human Rights Act, as codified at Tenn. Code Ann. § 4-21-101 et seq. (“THRA”). Defendant has filed a motion for summary judgment. (ECF No. 34.) Plaintiff has filed a response (ECF No. 38), and Defendant has filed a reply to the response. (ECF No. 40.) Defendant's motion is GRANTED. The joint motion to continue the trial of this matter (ECF No. 45) is DENIED as moot.

         Standard of Review

         Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When deciding a motion for summary judgment, the court must review all the evidence and draw all reasonable inferences in favor of the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party, and it “may not make credibility determinations or weigh the evidence.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). When the motion is supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Eastham v. Chesapeake Appalachia, L.L.C., 754 F.3d 356, 360 (6th Cir. 2014). These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         When determining if summary judgment is appropriate, the court should ask “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. The court must enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         Plaintiff's Objections to Defendant's Statement of Facts

         As an initial matter, Plaintiff objects to any reliance by Defendant on the witness statements or “Incident Reports” of Michelle Griffin, Brian Sorrell, Terry Hollingsworth, Kevin Hubble, Jeremy Alfter, and Brian Johnson and the interview notes of Jeff Bennett, Defendant's Human Resources Manager at the time of the relevant events, to prove that Plaintiff caused the incident that led to the termination of his employment. According to Plaintiff, the unsworn statements of these witnesses and Bennett's interview notes contain inadmissible hearsay and, thus, do not set out facts that would be admissible in evidence as required by Fed.R.Civ.P. 56(c)(4). Plaintiff also contends that the statements are unreliable because they do not show that the witnesses actually saw the events leading up to the incident in question.

         Federal Rule of Civil Procedure 56(c)(4) requires an affidavit to be based on personal knowledge:

An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c)(4); see Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (district court properly disregarded affidavit submitted in opposition to summary judgment that was not based on personal knowledge and that did not set forth facts that would be admissible into evidence). Accordingly, a Rule 56 affidavit must fairly present evidence that would be admissible at trial, and it is the burden of the party submitting the affidavits to demonstrate that the witness has personal knowledge of the statements contained therein. See Long v. Procter & Gamble Mfg. Co., 2005 WL 1631033 *1 (W.D. Tenn. July 8, 2005) (“Rule 56(e) requires that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. These three requirements are mandatory.” (citations omitted)). The court cannot rely on inadmissible hearsay as a basis for a summary judgment decision. See Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“Hearsay evidence ... must be disregarded.”)

         Defendant has responded that the witness statements and investigative report are not inadmissible hearsay because the statements are not offered for the truth of the matter asserted but, instead, as evidence of Defendant's good faith belief that Plaintiff was terminated for a legitimate, non-discriminatory reason. See Rhodes v. Standard Parking Corp., 599 F. App'x 500, 506 (6th Cir. 2014) (discussing that a “statement that is not offered to prove the truth of the matter asserted but offered to show its effect on the listener is not hearsay.”) The Court agrees with Defendant's position and will consider the statements objected to by Plaintiff only in determining the effect those statements had on Defendant when making the decision to terminate Plaintiff. That is, do the objected to statements show that Defendant had a good faith basis to terminate Plaintiff?

         Statement of Material Facts

         The parties have agreed that the following facts are undisputed for the purpose of deciding this motion only, except as noted. (Def's St'ment of Mat. Fcts (“SOF”), ECF No. 34-2; Pl's Add. St'ment of Mat. Fcts (“ASOF”), ECF No. 38-1; Def's Rep. to Pl's Add. St'ment of Mat. Fcts (“RASOF”), ECF No. 40-1.)

         Kohler manufactures shower doors and other bathroom accessories at its Union City, Tennessee, manufacturing plant. Kohler has written policies prohibiting race discrimination.

         Kohler has a progressive discipline policy involving several steps, from “Notification” to “Level I” to Level II” to “Level III with Suspension” to “Termination.” Discipline progresses along different paths for attendance and performance/misconduct. Disciplinary actions roll off after a period of twelve months, but only if no other discipline has been issued in the interim. Kohler may skip steps of discipline based on the nature, severity, and circumstances of the infraction but may not do so in a discriminatory manner.

         In addition to the progressive discipline policy, employee associates may be suspended pending investigation of an incident if this is done in a non-discriminatory manner. Such a suspension remains in effect until Kohler completes its investigation and decides whether to take disciplinary action.

         The term “PIV” refers to powered industrial vehicles like forklifts. A Kohler associate is required to have a PIV license and to undergo PIV training before being permitted to drive a PIV.

         Associates are required to immediately report any accident, including a PIV incident, to management. When an associate is involved in a PIV incident involving property damage, injury, or both, the associate involved in the incident is sent for a drug test, any associate injured is sent for medical treatment, and an investigation is conducted.

         Initially, the supervisor of the associate alleged to have caused the incident investigates the matter, at times with the assistance of Safety Specialist Brian Hays. Once the investigation is complete, the matter is brought to the attention of higher levels of management. Human Resources (“HR”) may be involved in a PIV investigation if there is an injury.

         As a general practice, if the investigation concludes that the associate followed appropriate guidelines but the incident happened anyway, the associate typically will not be disciplined. If the investigation concludes that the associate did not follow the appropriate guidelines and/or did something (or failed to do something) that caused the accident, the associate will be disciplined.

         While someone in HR usually signs off on written discipline, HR does not get involved in PIV investigations unless someone is injured during the accident or management seeks HR advice.

         When operating a PIV with a load that obstructs the driver's view, the driver is required to operate the vehicle backwards at a slow speed.

         Kohler hired Plaintiff, an African American male, on April 22, 2002, as a builder/packer. Beginning in 2008 or 2009 through March 11, 2015, Plaintiff wore his hair in long braids (“dreads” or “dreadlocks”) as a symbol of and in honor of his African-American heritage and culture.

         In November 2009, Plaintiff was moved to the Kohler Operating System Facilitator position (“KOS Facilitator”). Senior Project Analyst Buddy Thompson placed Plaintiff in the KOS Facilitator position.[1] As KOS Facilitator, Plaintiff reported to Thompson; beginning in 2010 or 2011, he reported to Brian Halford; and, at times, he also reported to the Plant Manager Matt Wright.

         In July 2013, Plaintiff was moved to the Team Leader 3 position. As a Team Leader, Plaintiff was responsible for leading and motivating a crew of associates to meet production goals while working safely and efficiently. Plaintiff was in a leadership position and viewed himself that way. In the Team Leader position, Plaintiff reported to George Rogers, who reported to Brian Halford. In his resume, Plaintiff identified and described the job duties of the KOS Facilitator and the Team Leader 3 as being the same.

         On October 28, 2013, Kohler issued a “notification” write-up to Plaintiff for an incident in which Plaintiff was operating a PIV in a manner that resulted in property damage - broken glass. Plaintiff contends that he should not have received this write-up because the incident was due to a pothole in the floor. The written statement Plaintiff provided to Kohler in connection with this incident does not reference a pothole although Plaintiff testified in his deposition that there was a pothole. George Rogers and Joe Chapman signed the notification write-up. Jeff Bennett was not involved in the decision to give Plaintiff this write-up.

         On September 19, 2014, Kohler issued a Level I write-up to Plaintiff in connection with an incident in which he was observed, on videotape, walking under a suspended load of materials, which was a safety violation. Plaintiff admits that he should have received the Level 1 write-up. The Level 1 write-up was signed by George Rogers and Randy Workman. Jeff Bennett was not involved in the decision to give Plaintiff this write-up.

         On or about October 8, 2014, Plaintiff was involved in another PIV incident which involved broken glass. Plaintiff did not receive any disciplinary action related to this incident because the investigation revealed that it was caused by a process failure and was not Plaintiff's fault.

         On March 11, 2015, there was another PIV incident in which Terry Hollingsworth, a Caucasian, reported to Barry Farley that, while he was on a pallet jack stopped in the aisle, Plaintiff was driving a forklift and hit the pallet jack from behind. Hollingsworth reported that the collision knocked him off the pallet jack and injured him. Hollingsworth's injury required first aid treatment but was not OSHA recordable.

         According to Plaintiff, he was operating a forklift to move a load of cartons when he felt a bump, which he assumed was the cargo shifting. Plaintiff maintains that his forklift was stationary and not moving when he felt the bump, although he was letting his forklift straight down vertically. According to Plaintiff, he did not report this incident to anyone at Kohler because he did not know that he had hit anyone.

         About forty-five minutes to one hour after the incident, Rogers and Brian Hays advised Plaintiff that Hollingsworth had reported that Plaintiff had hit him. They told Plaintiff that he needed to be drug tested. Plaintiff claims that he had no knowledge that he was involved in a PIV incident until this conversation.

         Kohler conducted an investigation into the incident. Initially, the investigation was conducted by Rogers and Hays. On March 11, 2015, Rogers obtained a written statement from Plaintiff regarding the incident in which Plaintiff stated:

I was dropping cartons off to cell in designated area lower forks while still under load I felt a bump. When I looked up I saw Terry H. with a load of tubs drive off. I pulled out from under the load while Corey S. pushed cartons into place.

         Also on March 11, 2015, Rogers and Hays obtained written statements from Hollingsworth and other associates Brian Sorrell, Kevin Hubble, Brian Johnson, Jeremy Alfter, and Michelle Griffin. Later, Bennett conducted interviews with Plaintiff, Hollingsworth, Sorrell, and Griffin.

         During his interview with Bennett, Sorrell reported that “Richard had a big load on his forks. There was no way Richard could see.”[2] Sorrell's written statement identified the parties to the incident as “Forklift Driver A” and “Forklift Driver B, ” without mentioning the names of Plaintiff or Hollingsworth. Although Sorrell's written statement does not name the drivers, during Bennett's interview of Sorrell, Sorrell named Plaintiff and Hollingsworth as the drivers.

         Griffin reported that she saw Plaintiff “on forklift with load of boxes driving forward (could not see over load).”[3] She also reported that she saw him looking to the side of his load. She saw that Plaintiff “was going to run into Terry's load, ” and she “hollered, ” but “it was too late.” She saw Hollingsworth “stumble” and then put his arm on his back.

         Hubble and Alfter reported that they did not see the collision but observed the immediate aftermath, including Hollingsworth yelling and/or grabbing his back. Johnson reported that he did not see the impact but heard the noise.

         Farley's report identified two direct causes of the incident - congestion in the area and Plaintiff's driving forward with an obstructed view.

         On March 11, 2015, Rogers presented Plaintiff with a write-up reflecting that he was being suspended pending investigation in connection with the alleged PIV incident. Plaintiff refused to sign the document because he stated that he did not know exactly what had happened.

         On March 12, 2015, Bennett interviewed Plaintiff concerning the incident and obtained a written statement. Randy Workman was present for part of the interview. During the interview, Plaintiff told Bennett, inter alia:

• He felt a bump. He didn't know if he was hit by Terry.
• Terry had a load of tubs on his lift. Didn't think anything about it.
• Backed out and no one was in the ...

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