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Vess v. MTD Consumer Group, Inc.

United States District Court, N.D. Mississippi, Aberdeen Division

February 16, 2018




         This employment discrimination action is before the Court on MTD Consumer Group, Inc.'s motion for summary judgment. Doc. #59.


         Procedural History

         On May 11, 2016, Bill D. Vess filed a complaint against MTD Consumer Group, Inc. (“MTD Consumer”), alleging that he was retaliated against for taking leave under the Family Medical Leave Act (“FMLA”), and discriminated against based on his disability, age, race, and sex. Doc. #1 at ¶ 10. On July 27, 2016, MTD Consumer answered the complaint. Doc. #5. Following a period of discovery, on May 12, 2017, MTD Consumer filed a motion for summary judgment with a separate memorandum brief. Doc. #59; Doc. #60. Vess responded in opposition on May 26, 2017. Doc. #61; Doc. #62. On June 2, 2017, MTD Consumer replied. Doc. #64.


         Standard of Review

         Under Rule 56 of the Federal Rules of Civil Procedure, “[s]ummary judgment is proper only when the record demonstrates that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.” Luv N' Care Ltd. v. Groupo Rimar, 844 F.3d 442, 447 (5th Cir. 2016). “A factual issue is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party and material if its resolution could affect the outcome of the action.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 226 (5th Cir. 2015) (internal quotation marks omitted). On a motion for summary judgment, a court must “consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.” Edwards v. Cont'l Cas. Co., 841 F.3d 360, 363 (5th Cir. 2016).

         In seeking summary judgment, “[t]he moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (internal quotation marks and alterations omitted). If the moving party satisfies this burden, “the non-moving party must go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. (internal quotation marks omitted). “Where the nonmoving party bears the burden of proof at trial, the moving party satisfies this initial burden by demonstrating an absence of evidence to support the nonmoving party's case.” Celtic Marine Corp. v. James C. Justice Cos., Inc., 760 F.3d 477, 481 (5th Cir. 2014).


         Factual Background

         A. Vess' Employment with MTD Consumer

         Around the year 2000, Bill Vess, a Caucasian male, began working at MTD Consumer's Verona, Mississippi, location as a temporary press operator. Doc. #59-2 at Ex. B at ¶ 4; Doc. #62-1 at 21, 35-36. After approximately six months, MTD Consumer laid off Vess as part of a seasonal shutdown. Doc. #62-1 at 36.

         In September of 2001, Vess returned to MTD Consumer as a full-time press operator. Id. Approximately two months later, MTD Consumer transferred Vess from the press shop to the weld shop to work as a robotics operator. Id. at 50, 56.

         On March 7, 2002, Vess signed a form acknowledging receipt of a copy of the MTD Tupelo Division Employee Handbook and agreeing to “comply with the provisions in [the] Handbook and any revisions made to it.” Doc. #59-2 at Ex. B at ¶ 8; id. at Ex. B-2. The Handbook contains an “Employee Non-Harassment Policy, ” of which its “Policy Statement” provides:

The Company is committed to providing a work environment that is free of discrimination and unlawful harassment. Actions, words, jokes or comments based on an individual's race, color, gender, national origin, religion, age or disability or that of his/her relatives, friends or associates:
1. Which has the purpose or effect of creating an intimidating, hostile or offensive work environment;
2.Has the purpose or effect of unreasonably interfering with an individual's work performance; or
3. Otherwise adversely affects an individual's employment opportunities will not be tolerated by the Company.

         Harassment in any form, including sexual, verbal, physical or visual is prohibited. Doc. #59-2 at Ex. B-1 at 42-43.

         The next year, Vess became a robotics technician. Doc. #62-1 at 56. Around 2007, Vess became a lead person in the welding department. Id. at 56-57; Doc. #59-2 at Ex. B at ¶ 4. As a lead person, Vess supervised other employees and assisted them in reaching their goals. Doc. #62-1 at 57; Doc. #59-2 at Ex. B at ¶ 9. Vess remained a lead person in the welding department until his termination in May 2015. Doc. #59-2 at Ex. B at ¶ 4.

         B. Disciplinary Warnings

         On July 24, 2013, Vess received a verbal warning for not wearing required ear plugs. Doc. #59-2 at Ex. B at ¶ 10; id. at Ex. B-1 at 39; Doc. #62-1 at 82; Doc. #62-3. On November 5, 2013, Vess received a final disciplinary notice for walking off the job and threatening to quit when told that he would have to wear a welding jacket at all times. Doc. #59-2 at Ex. B at ¶ 11; Doc. #62-1 at 83-84; Doc. #62-4.

         C. Vess' Complaints of Sexual and Racial Harassment by Caron Ewing

         During Vess' employment, Caron Ewing, an African-American female employee, allegedly engaged in sexual and racial harassment of Vess.

         1. Sexual harassment

         According to Vess, Ewing sexually harassed him continuously by inappropriately grabbing his butt checks and his “front.” Doc. #62-1 at 71. In August 2012, Vess complained to Murry Blankenship, a manager, about Ewing's behavior and told him that it made him feel uncomfortable and incapable of performing his job. Id. at 72; Doc. #62-13. According to Blankenship, Vess informed him that he brought Ewing's behavior to the attention of previous supervisors-Walter Rock, Hunt Kirk, and Larry Tramel-and that they spoke with her about his complaint. Doc. #62-13. Blankenship testified that although Vess did not want him to, he reported Vess' complaint to William Talbert Cherry, the Human Resources Manager, who issued Ewing a verbal warning that “if she continues … further disciplinary action [would] be administered.” Id.; Doc. #62-14; Doc. #59-9 at 8-10. Vess testified that after the verbal warning, Ewing ceased the inappropriate grabbing. Doc. #62-1 at 73; Doc. #59-2 at Ex. B at ¶ 12.

         2. Racial harassment

         Around January 2015, Vess requested and received leave under the FMLA because of anxiety and a scheduled surgery for his deviated septum.[1] Doc. # 62-1 at 30, 94-95; Doc. #59-2 at Ex. B at ¶ 13. Approximately two weeks before he left work on medical leave, Vess and an African-American male employee, who goes by the nickname Blaq, had an altercation about a machine. Doc. #62-1 at 90-91, 93. While Vess and Blaq were arguing, Ewing stood in the background instigating the argument. Id. at 91. Vess recalls Ewing saying, “he ain't no man. He's a white man. They ain't never made a good white man ….” Id. Vess reported this incident to a member of management, David Hancock, who said it was considered a racial slur, but Vess never heard anything else about the situation. Id. at 89-90.

         D. Investigation of Racial Slurs

         On April 9, 2015, while Vess was on medical leave, David Hamblin, a 43-year-old Caucasian male electrical technician, made a formal complaint to Cherry about Vess, who was 59 years old at the time; Walter Rock, a 59-year-old Caucasian male weld shop supervisor; and Jamey Holland, a 43-year-old Caucasian male maintenance employee. Doc. #59-2 at Ex. B at ¶ 14; Doc. #62-11 at 4. Hamblin complained that Rock, Holland, and Vess frequently used racial slurs, including the “N-word, ” when referring to employees. Doc. #59-2 at Ex. B at ¶ 14; id. at Exs. B-7, B-8; Doc. #59-4 at 5-9. According to Hamblin, he asked them to stop using the word but they continued. Doc. #59-4 at 6. Hamblin asserted that Rock used the “N-word” approximately three to six times, including once calling a group of employees “a bunch of lazy [N-words].” Doc. #59-2 at Exs. B-7, B-8; Doc. #59-4 at 7. Hamblin reported that he heard Vess use the “N-word” a few times when referring to African-American employees shortly before he left on leave but could not recall the exact statements. Doc. #59-2 at Ex. B-7; Doc. #62-11 at 8-11. Finally, Hamblin reported that he heard Holland use the phrase “‘N-word' please” in “casual conversation” on two occasions. Doc. #59-2 at Ex. B at ¶ 15; id. at Ex. B-7; Doc. #62-11 at 11-12.

         Cherry began an investigation of Hamblin's complaint. Doc. #59-2 at Ex. B at ¶ 16. As part of the investigation, Cherry spoke with Rock, Holland, and Billy Coker, a 53-year-old Caucasian male employee who Hamblin reported witnessed the most recent use of the “N-word.” Id.; Doc. #59-2 at Ex. B-7. When questioned by Cherry, Coker admitted to hearing Rock, Vess, and Holland use the “N-word” on occasions. Doc. #59-2 at Ex. B at ¶ 16; id. at Ex. B-8; Doc. #62-10 at 8-9, 18-20. Holland admitted to using the statement “‘N-word' please” as slang and expressed remorse about it. Doc. #59-2 at Ex. B at ¶ 16; id. at Ex. B-8; Doc. #62-12 at 8. Rock initially denied using the “N-word” but eventually admitted to using it on a few occasions while in the office. Doc. #59-2 at Ex. B at ¶ 16; id. at Ex. B-8; Doc. #62-8 at 11-12.

         After speaking with Rock, Holland, and Coker, Cherry consulted with the plant's general manager, Barry Smith, a 55-year-old Caucasian male, and MTD Consumer's corporate HR department. Doc. #59-2 at Ex. B at ¶ 17. They agreed that the use of racial slurs by supervisors would not be tolerated and that Rock should be terminated. Id. Cherry, Smith, and MTD's corporate HR department also agreed that Holland should be terminated. Id. However, Cherry, Smith, and MTD's corporate HR department waited for Vess to return from leave before making a final decision regarding his employment. Id.

         On April 30, 2015, Vess returned to work and spoke with Cherry about the allegations. Id. at ¶ 21. Vess requested that Cherry and Jessica Baker, [2] the Employee Relations Supervisor, continue the investigation and ask other employees if they had ever heard him use the “N-word.” Id. at ¶ 21. As part of the continued investigation, Cherry spoke with Coker; Tommy White, a 55-year-old African-American male; and Hamblin about their knowledge of Vess' alleged use of the “N-word.” Id. at ¶¶ 22-25. When Cherry told Coker that Vess denied using the “N-Word, ” Coker shook his head and said, “he's not telling the truth.” Id. at ¶ 22. White informed Cherry that he heard Vess use the “N-Word” on more than one occasion. Id. at ¶ 23. Hamblin told Cherry that he knew Vess would deny using the “N-Word” and that he specifically recalled Vess using it right before he went on FMLA leave. Id. at ¶ 24. Baker also followed up with Coker, White, and Hamblin to confirm that Cherry had accurate notes of what the witnesses stated. Id. at ¶ 25. At the close of the investigation, and after consulting with Smith again, Cherry terminated Vess on May 4, 2015. Id. at ¶ 26. At that time, Cherry informed Vess that he could appeal through MTD Consumer's Employee Peer Review Board (“EPRB”). Id. at ¶ 27.

         E. Employee Peer Review Board

MTD Consumer's Employee Peer Review Board is a voluntary problem resolution program available at participating sites to hourly MTD employees who have completed their probationary period. The program offers employees the opportunity to present employment related cases to a group of peers for evaluation. After carefully considering the facts of a case, an EPRB panel decides whether to uphold or to overturn the original company action in a case.

Doc. #62-28 at 3. Because Vess and Holland were hourly employees, they were eligible to appeal their terminations.[3] Id. at 16; Doc. #59-2 at Ex. B at ¶ 18.

         Each EPRB panel consists of five panelists-four hourly employees and one management representative. Doc. #62-28 at 4. The members of each EPRB panel are chosen by the employee requesting the hearing randomly drawing eight employees-the first four employees drawn serve on the panel and the remaining four serve as alternates. Id. The employee then draws four management personnel-the first one drawn serves on the panel and the remaining three serve as alternates. Id. During the hearing, the employee may present company statements and witnesses. Id. After hearing the evidence, the EPRB deliberates and votes by secret ballot. Id. The EPRB can either overturn or uphold the original company action. Id.

         On April 14, 2015, the EPRB heard Holland's appeal and unanimously voted by secret ballot to overturn the termination. Doc. #59-2 at Ex. B-9. Holland served a three-day suspension and returned to work. Id. On May 11, 2015, the EPRB heard Vess' appeal and voted three to two to uphold the termination. Doc. #59-2 at Ex. B-11. Holland's EPRB panel and Vess' EPRB panel had the same racial makeup-four African-Americans and one Caucasian. Id. at Ex. B at ΒΆ 29. Vess' panel consisted of a 47-year-old, a 71-year-old, a ...

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