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Radford v. Ebonite International, Inc.

United States District Court, W.D. Kentucky, Paducah Division

July 25, 2017

REGINALD RADFORD PLAINTIFF
v.
EBONITE INTERNATIONAL, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge.

         This matter is before the Court upon Defendant Ebonite International, Inc.'s motion for summary judgment. [DN 20.] Plaintiff Reginald Radford responded, [DN 31], and Ebonite replied, [DN 36]. Fully briefed, this matter is ripe for adjudication. For the following reasons, Ebonite's motion is GRANTED IN PART and DENIED IN PART.

         I. Facts and Procedural History

         Ebonite International is a leading manufacturer of bowling balls and equipment. Its primary manufacturing facilities are located in Hopkinsville, Kentucky. For a time, Plaintiff Reginald Radford was employed by Ebonite in its Hopkinsville factory, eventually attaining the “lead man” position in the foam cores department. [DN 29 at 5.] Radford was also a union steward. [Id.] In that role, he would write grievances on behalf of himself and other employees “if the company didn't go by the union book.” [Id.]

         Radford's supervisor, with whom he was often at odds, was Charlie Worsham. Conflict between the two stretches back to 2011, when Worsham, a white male, denied Radford's request for overtime. See [DN 36-1 at 8.] Worsham filed a harassment complaint, saying that Radford, an African-American, called him a “racist.” [Id.] It is unclear how Ebonite addressed Worsham's complaint.

         The events giving rise to this case began in early 2013 after Radford filed a series of grievances. On January 31, Radford complained that Worsham attempted to deny him a paid day of leave. [DN 20-2 at 86.] At Ebonite, employees who have perfect attendance for six months in a row are rewarded with a paid day off, known as a “goody day.” [DN 29 at 13.] According to Radford, he was entitled to a goody day, but Worsham altered Radford's paperwork to make it look like he was not. [Id.] In his grievance, Radford wrote that he was “[t]ired of the [lying], discrimination, and harassment.” [DN 20-2 at 86.] Worsham said he made a mistake, and Radford received his goody day. [Id.]

         Also on January 31, Radford requested that he be allowed to continue working an hour of overtime each day. [Id. at 87.] As a lead man, it was Radford's job to come in an hour early to prepare certain factory systems. [DN 29 at 6.] Radford testified the company increased his production quota, but took away his extra hour. [Id. at 14.] He said Ebonite also stopped allowing other African-American lead men to work overtime, although overtime was allowed for white lead men. [Id.] In response to Radford's grievance, Worsham wrote that there was “no need for overtime” because a “[t]ime study shows employee can complete all requirements in an 8 hr. period.” [DN 20-2 at 87.]

         About two weeks later, Radford filed another grievance against Worsham. He complained that on two successive days, Worsham cursed at another employee because of problems on the manufacturing line. [Id. at 88.] Radford said the employee was “tired of being stress[ed] out. [A]nd this is the 5th or 6th time this has happened.” [Id.] In response to each of Radford's three grievances, Regina Arnold, Ebonite's Personnel/HR Manager, wrote that Worsham was “disciplined” and new procedures were put in place to prevent future occurrences. [Id. at 86-88.]

         Radford made one final complaint about Worsham's behavior in early 2013. He alleged Worsham routinely allowed white employees to arrive late to work without consequence, but would not afford African-American employees the same leniency when they were tardy.[1] [Id. at 8-9.] Arnold investigated Radford's allegations and found that a white employee, David Hawkins, had indeed been allowed to change his schedule when he was late on nine occasions. [DN 20-4 at 2-3.] As a result of her findings and Radford's other grievances, “Ebonite suspended Worsham and required him to attend management training.” [Id. at 3.]

         Immediately after returning from his suspension, Radford says, Worsham began retaliating against Radford. Specifically, Radford alleges Worsham “increased Radford's work load, removed a partition that shielded Radford from flying debris . . . and asked a co-worker to watch for mistakes by Radford.” [DN 31 at 10.] According to Radford, the first day Worsham was back on the factory floor, Radford observed Worsham tell a union steward to “watch [him], ” ostensibly to make sure he was working. [DN 20-2 at 9.] Radford did not actually overhear the conversation, but instead testified he was able to read Worsham's lips and understand what he was saying to the steward. [Id.] He also says Worsham told another employee, Will Poindexter, not to assist Radford whenever Radford fell behind on his work. [DN 29 at 19-20.]

         Shortly thereafter, Radford met with Carl Rogers, Ebonite's CFO, and Arnold regarding Worsham's conduct. [DN 20-2 at 10.] During their meeting, Radford mentioned that his desk was partially surrounded by a welding shield. [Id.] Radford's desk was located “right next to a ball drilling machine [that] kicks off ball debris and dust.” [Id. at 14.] About two years earlier, Radford said an Ebonite maintenance employee hung an obsolete welding shield around his desk to protect him from the debris. [Id.] The day after his meeting with Arnold and Rogers, the shield was gone. [Id. at 10.]

         The parties dispute the reason the welding shield was removed. Ebonite points to a memo, dated March 6, 2013, in which the maintenance foreman explains that his department “need[s] [the welding shields] if we are going to weld for an extended amount of time. I am not sure who said you could have these but they were mistaken.” [Id. at 89.] For his part, Radford believes Ebonite manufactured a reason to have the shield removed, given that it had been hanging at his desk for two years without incident. [Id. at 10.] Radford filed a grievance on March 11, alleging the shield was removed in retaliation for his complaints regarding Worsham. [Id. at 90.] The welding shield was replaced by a clear curtain approximately two months later. [Id. at 11.] Radford filed a charge of discrimination with the EEOC relating to these events on April 29, 2013. [DN 33, Radford Ex. 0019.]

         Several months later, Ebonite sought to cut production volume, and invited employees to participate in a voluntary layoff. Radford took up Ebonite on its offer for the week beginning September 22, 2013. [DN 29 at 7; DN 20-2 at 81.] During past layoffs, Radford testified, the company made mass unemployment claims for all affected employees. [DN 29 at 8.] This time, however, Ebonite did not. [Id.] When Radford learned the company had not filed a claim for him, he filed one on his own behalf. [Id. at 9.] The unemployment office denied that claim as untimely, and Radford appealed. [Id.] Apparently, while that appeal was pending, Radford instructed his wife to file another claim on his behalf for the same voluntary layoff period. [Id. at 8-9.] Unfortunately, the office's automated phone system recorded that Radford was attempting to claim benefits for a two-week period beginning September 29 - weeks during which he worked. [DN 20-2 at 81-82.]

         The local unemployment office soon realized the error, and sent a notice to Ebonite stating Radford “knowingly made false statements to establish the right to or the amount of benefits. This appears to be a violation of KRS 341.990(5) and may be referred for criminal prosecution.” [DN 33, Ebonite Ex. 0067.] On December 12, 2013, Ebonite terminated Radford's employment. Radford's termination letter states that “[a]s the result of the fraudulent obtaining of Unemployment Insurance Benefits during weeks in which you were working here at Ebonite, a decision has been made to terminate your employment today.” [DN 20-2 at 84.] The letter specifically cites Ebonite Work Rule #10, which prohibits the “[v]iolation of any criminal law, ” including “stealing [and] making fraudulent records.” [Id.]

         Radford appealed the unemployment office's determination of fraud. Soon after his termination, Radford had a hearing before the Division of Unemployment Insurance Appeals Branch. [DN 33, Radford Ex. 0027.] The unemployment referee held Radford “did not knowingly make a false statement to obtain benefits, ” apparently accepting Radford's explanation that his wife had inadvertently applied for benefits beginning on the wrong date. [Id.] He ordered Radford to repay $830.00, the amount of extra benefits Radford received. [Id. at Radford Ex. 0028.] The referee's decision was upheld by the Kentucky Unemployment Insurance Commission. [Id. at Radford Ex. 0029.]

         Next, Radford proceeded to arbitration under the terms of the labor agreement between Ebonite and his union. Before the arbitrator, Ebonite argued Radford was justly terminated for filing a false claim for unemployment benefits. [DN 20-4 at 8.] The union asked for reinstatement and back pay, claiming Ebonite had no reason not to take Radford back after the state reversed its initial fraud determination. [Id. at 9.] The arbitrator sided with Ebonite, ruling that even though the referee determined there was no just cause for taking criminal action against Radford, the company was still justified in terminating Radford for violating its rules against theft. [Id. at 17.] Radford received his right-to-sue letter from the EEOC on December 31, 2014, and filed this suit on April 1, 2015. [DN 33, Radford Ex. 0031; DN 1.]

         Radford claims the actions of Worsham and Ebonite amount to unlawful race discrimination and retaliation. Specifically, he says other Ebonite employees, some of whom were white, also received unemployment overpayments but were not terminated. Radford also alleges that both his termination and Worsham's actions upon returning from suspension were retaliation for Radford's grievances and EEOC complaint. Ebonite now moves for summary judgment. [DN 20.]

         II. Standard of Review

         Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘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.'” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52). As the party moving for summary judgment, Ebonite must shoulder the burden of showing the absence of a genuine dispute of material fact as to at least one essential element of each of Radford's claims. Fed.R.Civ.P. 56(c); see Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming Ebonite satisfies its burden of production, Radford “must-by deposition, answers to interrogatories, affidavits, and admissions on file-show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp., 477 U.S. at 324).

         III. Discussion

         Two threshold issues bear mention. First, Ebonite argues Radford's Title VII claims are untimely. Title VII plaintiffs must file suit within ninety days of receiving a right-to-sue letter from the EEOC. See 42 U.S.C. § 20003-5(f)(1); Fuller v. Mich. Dept. of Transp., 580 F. App'x 416, 424 (6th Cir. 2014). Here, the EEOC issued Radford's right-to-sue letter on December 31, 2014. [DN 33, Radford Ex. 0031.] Radford filed this action on April 1, 2015, ninety-one days later. See [DN 1.] Courts in this circuit “presume[] that notice is given, and hence the ninety-day limitations term begins running, on the fifth day following the mailing of a right-to-sue notification to the claimant.” Rembisz v. Lew, 830 F.3d 681, 682 (6th Cir. 2016) ...


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