United States District Court, N.D. Mississippi, Aberdeen Division
BILL D. VESS PLAINTIFF
MTD CONSUMER GROUP, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
employment discrimination action is before the Court on MTD
Consumer Group, Inc.'s motion for summary judgment. Doc.
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.
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).
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).
Vess' Employment with MTD Consumer
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.
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.
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.
in any form, including sexual, verbal, physical or visual is
prohibited. Doc. #59-2 at Ex. B-1 at 42-43.
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.
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;
Vess' Complaints of Sexual and Racial Harassment by Caron
Vess' employment, Caron Ewing, an African-American female
employee, allegedly engaged in sexual and racial harassment
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.
January 2015, Vess requested and received leave under the
FMLA because of anxiety and a scheduled surgery for his
deviated septum. 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.
Investigation of Racial Slurs
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.
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.
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.
April 30, 2015, Vess returned to work and spoke with Cherry
about the allegations. Id. at ¶ 21. Vess
requested that Cherry and Jessica Baker,  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.
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. Id. at 16; Doc. #59-2 at Ex. B at
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.
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 ¶ 29. Vess' panel consisted
of a 47-year-old, a 71-year-old, a ...