Coles v. Dearborn Midwest Co., Case No. 13-14450

GAYLAND BRION COLES, Plaintiff, v. DEARBORN MIDWEST CO., et al, Defendants.

Case No. 13-14450

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 9, 2015

Gerald E. Rosen United States District Judge

Michael Hluchaniuk United States Magistrate Judge

REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR SANCTIONS (Dkt 29, 40, 50)

I. PROCEDURAL HISTORY

Plaintiff filed this pro se employment civil rights action on October 23, 2013. (Dkt. 1). Defendants filed an answer to the complaint on November 13, 2013. (Dkt. 6). On December 23, 2013, District Judge Gerald E. Rosen referred this matter to the undersigned for all pretrial proceedings. (Dkt. 15). On April 2, 2014, defendants filed their motion for summary judgment. (Dkt. 29). Plaintiff filed a response on April 29, 2013 and defendants filed their reply on May 21, 2014. (Dkt. 39, 43). On May 9, 2014, plaintiff filed his motion for summary judgment. (Dkt. 40).¹ On June 19, 2014, defendants filed their response. (Dkt.58). Plaintiff's reply (Dkt. 63) was stricken as improperly filed. (Dkt. 82). The Court accepted Dkt. 72 as plaintiff's modified reply brief. (Dkt. 82). Finally, defendants filed a motion for Rule 11 sanctions on June 4, 2014. (Dkt. 50). Plaintiff filed three separate responses on June 16, 2014 and July 31, 2014. (Dkt. 57, 74, 77). Defendants filed a reply on July 21, 2014. (Dkt. 69).

These matters are now ready for report and recommendation. For the reasons set forth below, the undersigned RECOMMENDS that defendants' motion to dismiss or for summary judgment be GRANTED, that plaintiff's motion for summary judgment be DENIED, and that defendants' motion for Rule 11 sanctions be DENIED.

II. FACTUAL BACKGROUND

Plaintiff was hired by Defendant Dearborn Mid-West Company (DMW) on March 26, 2012, into the position of Fabricator 2. (Dkt. 29-2, Coles dep, p. 38). He remained employed in that classification after this lawsuit was filed.² According to DMW, this position is covered by a labor contract between DMW and Shopmen's Local Union 508 (Union). (Dkt. 29-4, Labor Contract; 29-5, Employee Manual). These labor contracts specify rates of pay for the covered job classifications, seniority, managerial rights, etc. They also contain an internaldispute resolution procedure for challenging any alleged violations of the labor contract.

When he was hired, Coles was issued an employee manual (Dkt. 29-5), which contains various Company policies. During his deposition, Coles acknowledged that he is bound by those policies. (Dkt. 29-2, Coles dep, pp. 37-38). In the Complaint, Coles alleges the DMW unlawfully breached the M-2 policy, which is part of this manual. DMW points out that this manual expressly disclaims any contractual obligations/rights. (Dkt. 29-5, § 1-1).

Coles also claims that one of his supervisors, defendant Willie Mitchell (Mitchell), who also is a black male, referred to him as "Elder Coles" at some point in 2012. (Dkt. 29-2, Coles dep, pp. 43-45). Coles interpreted this as a reference to his age, while Mitchell told Coles his reference was to Coles being a "prophet." (Dkt. 29-2, Coles dep, pp. 46, 48-49). According to his testimony, Coles did not object to Mitchell's reference on the first two occasions he said this to him. (Dkt. 29-2, Coles dep, p. 48). Coles also says that on another occasion, Mitchell told Coles to let a "young buck" perform a particular job task and also referred to him in this same conversation as "Elder Coles." (Dkt. 29-2, Coles dep, pp. 47-48). Coles said that Mitchell's reference to "young bucks" was directed at Cole's race because that's what "white men will call African-American men" and because "Will represents white men more than he do blacks." (Dkt. 29-2, Colesdep, pp. 50-51). Coles says that on this occasion, he told Mitchell that he did not want Mitchell to refer to him as "elder." (Dkt. 29-2, Coles dep, p. 47). Coles subsequently complained to DMW in January 2013 about Mitchell's remarks and, according to plaintiff's deposition testimony, there never was a recurrence involving such remarks. (Dkt. 29-2, Coles dep, p. 172).

On July 16, 2012, Coles filed a grievance under the labor contract, alleging that a first line supervisor, defendant Mike Johnson (Johnson), had made remarks to which he objected. (Dkt. 29-6). In his grievance, Coles alleged that Johnson had called him a "lazy SOB," had said he wished Coles "had a tight (A) [meaning "ass"] and had nice tits to go with that" and another occasion said "you're doing an excellent job, boy" and told Coles after he had asked for some equipment, "the B [meaning "bitch"] wants everything." Id. Coles spoke to Human Resources Director, defendant Kelly Schafer (Schafer), by telephone about the matters listed in his grievance, (Dkt. 29-2, Coles dep, p. 52), and subsequently withdrew his grievance on July 17, 2012. (Dkt. 29-7). Johnson never made any other allegedly objectionable comments to Coles until August 2012 when, on one occasion, Coles asked Johnson for some staples and Johnson said "bitch, bitch, bitch, bitch." (Dkt. 29-2, Coles dep, p. 54). According to Coles' deposition testimony, Johnson made no other comments Coles considered to be unlawful. (Dkt. 29-2, Coles dep, p. 55).

Coles claims that on December 5, 2012, a co-worker, who also is a Fabricator 2, Paul Chiado (Chiado), began "humping" him while they were together in the men's room. Coles reported this shortly afterwards to Mitchell but Coles does not recall Mitchell's response. (Dkt. 29-2, Coles dep, pp. 55-58). The next day, Mitchell and Johnson met with Coles and asked him if he wanted Chiado fired. Coles said he did not and just wanted them to speak to Chiado. They said they would do so. Chiado never had any physical contact with Coles subsequently. (Dkt. 29-2, Coles dep, pp. 59-60). Plaintiff testified that sometime in April 2013, Chiado and Coles were talking about the lottery and Chiado said if he, Chiado, won the lottery he would give all but $2 million to Coles if he, Coles, went to the hotel with him. (Dkt. 29-2, Coles dep, p. 63). Coles did not ask Chiado what he meant by this remark. (Dkt. 29-2, Coles dep, p. 64). Coles told Chiado he would report Chiado to management if Chiado didn't knock it off. (Dkt. 29-2, Coles dep, p. 66).

Coles reported Chiado four months later in August 2013, when another "event" occurred. (Dkt. 29-2, Coles dep, p. 67). Coles says that sometime in August 2013, Chiado asked Coles if he was "going to think of" Chiado while he was on his boat. In response, Coles called Chiado a "fag." (Dkt. 29-2, Coles dep, p. 67). Coles then relayed this exchange to his union steward, Calvin Logan. (Dkt. 29-2, Coles dep, pp. 67-68). On August 31, 2013, Coles reported Chiado's"boat" remark to Mitchell. Coles also told Mitchell that he had called Chiado a "fag." Mitchell then told Coles he, Mitchell, was going to have a meeting to see what was going on. (Dkt. 29-2, Coles dep, pp. 110-111). Later that day, August 31, 2013, Coles and several union representatives met with Mitchell. Mitchell advised Coles that he could be terminated for calling Chiado a "fag." (Dkt. 29-2, Coles dep, p. 113). Coles then told Mitchell that back in May 2013, Chiado said to Coles "that line is crooked as fuck boy." (Dkt. 29-2, Coles dep, pp. 114-115). Mitchell told Coles the word "boy" didn't mean anything. (Dkt. 29-2, Coles dep, p. 114).

When he was asked why he thought Johnson's lazy remark was race-based, Coles said that's how white men consider black men. (Dkt. 29-2, Coles dep, pp. 71-72). When he was asked if Johnson was joking when he made the remark about "ass" and "tits", Coles said he didn't know. (Dkt. 29-2, Coles dep, p. 74). When he was asked why he thinks Johnson's use of the word "boy" referred to his race, Coles concluded it was because the word has racial overtones. (Dkt. 29-2, Coles dep, p. 69). When he was asked why he objected to Johnson saying "the bitch wants everything" Coles said it was a homosexual based remark because he was "born to be a man, born to die a man." (Dkt. 29-2, Coles dep, p. 75).

Coles testified that his defamation claim is solely based on his allegation that someone (whom he cannot identify) wrote "faggit queer" on his January 26,2013 time sheet. These sheets are kept in a rack and are accessible to anyone in the shop. (Dkt. 29-2, Coles dep, pp. 78-79, 187). Coles believes this notation was in retaliation for his complaint to the Company CEO, defendant Anthony Rosati (Rosati) because it occurred after his complaint. (Dkt. 29-2, Coles dep, p. 81). Coles believes DMW should have hired a handwriting expert to track down the responsible person but he never said that to the Company. (Dkt. 29-2, Coles dep, p. 81).

Coles also described remarks from some of his co-workers that he believes are unlawfully age-based. Examples plaintiff gave include one employee telling Coles he is "over the hill;" he is "one nail closer to his coffin;" and "old people are stuck in their ways." (Dkt. 29-2, Coles dep, pp. 84-90). Coles also alleged that other younger employees were allowed to violate DMW's attendance policy without consequences. However, Coles also testified that he did not keep track of other employees' attendance nor does he know if any absences/tardies were excused or unexcused per DMW's policies. (Dkt. 29-2, Coles dep, pp. 102-103).

Coles also alleged throughout his Complaint that he was given work tasks or denied training (for a Fabricator 1 position) because he had complained about alleged co-worker misconduct. These chiefly consist of not being allowed to train to become a Fabricator 1 and not being assigned to work on a laser machine. When he was asked about these claims, Coles admitted at his deposition that hehas no evidence to support them. And, while he alleged in his complaint that he was taken off welding tasks, he testified at his deposition that he performs welding over 50% of the time. (Dkt. 29-2, Coles dep, p. 189). At the time of...