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Tillery v. Piedmont Airlines, Inc.

United States District Court, E.D. Virginia, Alexandria Division

September 22, 2016

MICHAEL TILLERY, Plaintiff,
v.
PIEDMONT AIRLINES, INC., Defendant.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Plaintiff Michael Tillery ("plaintiff or "Tillery"), a 66-year-old African American male, filed this six-count[1] civil action against Piedmont Airlines, Inc. ("Piedmont" or "defendant"). alleging in Count I Age Discrimination under the Age Discrimination in Employment Act (ADEA); in Count II a hostile work environment under the ADEA; in Count III retaliation for engaging in protected Title VII activity; in Count IV discrimination on the basis of race in violation of 42 U.S.C. § 1981; in Count V a hostile work environment under § 1981; and in Count VI retaliation for engaging in protected § 1981 activity.

         Before the Court is defendant's Motion for Summary Judgment, to which plaintiff has responded and on which oral argument has been heard. For the reasons that follow, defendant's motion will be granted on all counts.

         I. BACKGROUND

         Piedmont hired plaintiff in 2006, when plaintiff was 57 years old, and fired him on March 19, 2014.[2] Def. Uncontested Facts, [Dkt. 35] ¶¶ 1, 41.[3] When he was fired, Tillery was a ground control agent at Ronald Reagan Washington National Airport (DCA), a position that included directing planes during taxiing and keeping records. Def. Uncontested Facts at ¶¶ 1, 2, According to Tillery, the job environment was "busy [and] stressful." Tillery Dep., [Dkt. 35-1] at 198:14. Shifts lasted 10 hours, and ground control agents had "information coming to [them] from practically everybody." Tillery Dep., [Dkt. 35-1] at 198:15-19.

         While employed by Piedmont, Tillery look an active role in the union representing ground crew workers. Beginning in 2012, Tillery served as vice-president of the union local. Tillery Dep., [Dkt. 35-1] at 54:11-13. Through his union work, Tillery raised frequent complaints about diverse subjects, including contract disputes and safety complaints. Def. Uncontested Facts ¶ 7. From 2011 to 2012, Tillery assisted three female employees alleging sexual harassment against Vincent Chambers, a ramp manager, and traveled with one of those employees to the Equal Employment Opportunity Commission (EEOC) offices in Washington, D.C., to help her file a complaint. Tillery Dep., [Dkt. 35-1] at 248:10-249:21; 85:11-86:19. Piedmont fired Chambers in August 2012. Def Uncontested Facts ¶ 8 & n.3. Tillery alleges that Chambers "threatened] him'' at some point "around Summer 2013, "[4] saying "Piedmont Airlines cannot afford to fire me because I know dirt on all of them. We will get you first, if not I would see to it personally. Nobody at Piedmont Airlines likes you now, because you encourage other employees to file claims against management at the EEOC." Tillery Aff., [Dkt. 41-15] ¶13.

         According to Tillery, Piedmont's regional and administrative manager. Lisa High, also repeatedly expressed frustration over the role that he played in these sexual harassment proceedings, as well as his union activity more generally. In an affidavit, a former Piedmont colleague, Eugene Howard, averred that at a "manager's meeting" sometime after the "Winter 2013, " High said "Piedmont Airlines should simply retire Mike, before the other black employees openly questioned ["sic] Piedmont airlines [sic] about their practices, their policies under the handbook and/or begin to assert their union, employment law or civil rights against Piedmont." [Dkt. 41-3] ¶ 2. In another affidavit, former Piedmont employee, Richard Gordon, stated that "[f]or the entire periods [sic] ¶ 2012-2013, Tillery's name would continually be brought up by Lisa High .... [High said that] Tillery was causing trouble again by advocating for Piedmont employees at union grievance hearings or with the EEOC." [Dkt. 41-4] ¶ 14.[5]

         Tillery alleges that aside from negative comments about his union activity, several employees made unwelcome comments about his age, race, or both during his time at Piedmont. With respect to age, at a minimum, manager Kenya Jones, an African-American, regularly referred to Tillery as "Granddad" (or, less frequently, "grandpa"). Def. Uncontested Facts ¶ 14; Ans. [Dkt. 22] ¶¶ 31-32. According to Howard's affidavit, High, who is 48 years old, and other unnamed Piedmont managers made similar remarks at meetings that Tillery did not attend. [Dkt. 41-3] at ¶¶ 4, 9.[6] Piedmont employees generally understood "Granddad" to refer to an African-American character called "Granddad" in The Boondocks, a comic strip and televised animated series. Ans. ¶ 31. Jones regularly performed a dance popularized by Granddad from The Boondocks when speaking about Tillery in his presence. Tillery Aff., [Dkt. 35-1] at 215:6- 22.

         Beyond the comparison to The Boondocks character, Tillery makes only one allegation of a racially charged comment, although his description of that comment has changed over time. In his First Amended Complaint. Tillery alleged that Danyelle Montivego, his immediate supervisor at the time, relayed to him a statement made by an unnamed member of management that "some of the younger black employees would follow 'grandpa's [Tillery's] lead' because 'monkey see, monkey do.'" First Amd. Compl., [Dkt. 15] ¶ 28. During Tillery's deposition he was not directly asked about the "monkey see, monkey do" comment; however, when defense counsel asked plaintiff whether Montivego had ever said anything racially offensive to his face, Tillery did not mention the "monkey see, monkey do" comment. See [Dkt. 35-1] at 214:14-19.[7]Nearly three months later, in an affidavit executed the day before his opposition to defendant's Motion for Summary Judgment was filed, Tillery asserted that it was Michelle Roper, another supervisor, who relayed the "monkey see, monkey do" comment to him, and specifically attributed the comment to Louden. [Dkt. 41 -15] ¶ 19. In the affidavit version, Tillery also recalled a statement considerably more profane than the one described in the First Amended Complaint, this time alleging that Louden, who is African-American, said he "was not going to let the union run this station . . . this is just some nigger shit, monkey see, monkey do shit that Michael is doing." [Dkt. 41-15] ¶ 19.

         Tillery's account of whether he complained about these comments has changed over time. In his deposition, he claimed that he challenged Jones' use of "Granddad" by asking "on a regular basis, [w]hat, you don't know my name[, ]" [Dkt. 35-1] at 217:19-20. Although he "didn't like" the name, he admitted that he was "not necessarily offended" by it and that "his feelings were not hurt." [Dkt 35-1] at 218:17-219:4. He claimed that Jones "was in a batch of managers that [he] complained to [Louden] about, " [Dkt. 35-1] at 224:21-22, but admitted that he could not recall speaking about the age-related comments with Louden. [Dkt. 35-1] at 230:5-7. On the other hand, in his post-deposition affidavit, Tillery contends that he "told Louden that [Jones'] remarks were hurtful and offensive and that it effected [sic] my concentration at work, " but Louden "brushed aside" these concerns. [Dkt. 41-15] ¶ 24.

         Tillery has not alleged that he reported the "monkey see, monkey do" comment to anyone, although he does claim that he had a conversation with Louden about race discrimination at Piedmont. See Tillery Dep., [Dkt. 41 -1 ] at 228:4. When asked at his deposition whether he "ever actually [told Louden] that [he] believed there was race discrimination going on, " Tillery did not provide a direct answer; instead, he replied "I would say-1 would say yes. But then it would be specific to individuals, individuals. Like it would be specific to what an individual had told me. And if more than one person told me, I would say we have an incidence of where we need to-we need to put a stop to it or curtail it." [Dkt. 41-1] at 228:1-9. Tillery could not remember the names of any of those employees, and when he was asked if he ever complained that he was personally treated unfairly because of race, his answer was: "Yeah. We-we talked about race and the fact that we were firing quite a few African-descent individuals, and we were hiring quite a few. So it would stand to reason, but-that since there were more of them, that we were-and there was more of them going out the door. So we had a conversation about that. We had a conversation about race." [Dkt 41-1] at 229:4-13. Tillery does not remember anything else about this conversation, including when it took place. [Dkt. 41-1] at 229:14-22.

         Piedmont's contemporaneous records show that it disciplined Tillery at least fourteen times between 2006 and January 2013. Def. Uncontested Facts ¶ 18. It is uncontested that defendant "follows a progressive disciplinary system, and looks to disciplinary incidents over a rolling twelve month period in making decisions on further discipline or discharge." Foose Aff., [Dkt. 35-9] ¶ 11. When an employee is disciplined, Piedmont creates a written form documenting the incident, which includes a list of all the employee's documented incidents over the preceding twelve months. Foose Aff., [Dkt, 35-9] ¶ 11. Infractions are rated on a scale from the least serious, level 1, to the most serious, level 3, a scale that Tillery testified he understood. Tillery Dep., [Dkt. 41-1] at 125:9-10. The incidents involving Tillery from 2006 to January 2013 ranged from level 1 to level 3 infractions, and included insubordination, failures to follow procedures, chronic tardiness, and failures to complete required training. Tillery Dep., [Dkt. 41-1] at 125:9-10.[8]

         Of significance to this case are Tillery's personnel records, which document six infractions in the twelve months leading up to his termination. Def. Uncontested Facts ¶ 20. The first, a level 1 infraction, occurred on April 18, 2013, when Tillery refused "to sign briefings [containing] important information about updates or safety issues in DCA." Tillery Dep., [Dkt. 35-1 ] Ex. 31. Tillery did not sign the disciplinary notice at the time and did not recall the incident at his deposition. Tillery Dep., [Dkt. 35-1] at 149:18-20. The second incident, a level 3 violation, occurred on April 25, 2013. As Tillery recalls, after Piedmont refused a request by Tillery for unscheduled time off, he called out sick, which Piedmont considers an "abuse" of its sick leave policy. Tillery Dep., [Dkt. 35-1] Ex. 32. Tillery signed the form, and noted that he was going to appeal, Tillery Dep., [Dkt. 35-1] at 151:9-152:21, but there is no evidence of any appeal in the record.

         The third incident during that twelve month period took place on May 18, 2013, when Tillery twice failed to keep accurate gate records. Tillery Dep., [Dkt. 35-1] Ex. 33. The two failures together constituted a level 2 infraction. Tillery Dep., [Dkt. 35-1] Ex. 33. Tillery unsuccessfully grieved this finding. Tillery Dep., [Dkt. 35-1] at 155:4-156:14. The fourth incident, a level 3, was documented on November 5, 2013, for Tillery's failure to complete online training by the October 31, 2013, deadline. Tillery Dep., [Dkt. 35-1] Ex. 34. In his deposition, Tillery testified, without supporting documentation, that he completed the training, but equivocated when asked whether he thought Piedmont's records were wrong. Tillery Dep., [Dkt. 35-1] at 159:16-160:3.[9]

         The fifth disciplinary action occurred on January 31, 2014. Tillery Dep., [Dkt. 35-1] Ex. 35. Management had put certain union workers on mandatory overtime using a procedure that Tillery felt violated the collective bargaining agreement. Tillery Dep., [Dkt. 35-1] Ex. 35. Tillery began to object to the overtime arrangement by complaining about it over the radio used for work communications. Tillery Dep., [Dkt. 35-1] Ex. 35. After being asked to stop using the radio for that purpose, Tillery "refused to comply and became argumentative, still over the radio." Tillery Dep., [Dkt. 35-1] Ex. 35. When Jones told Tillery he needed to follow the grievance process, Tillery "became argumentative . .. disturbing everyone in operations." Id. Although Tillery refused to sign the form documenting the incident, he did not deny the substance of the allegations in the incident report. Tillery Dep., [Dkt. 35-1] at 160:7-167:19. As a result of this incident, which was a level 3 infraction, Tillery was placed on a "Final Warning for being insubordinate[.]" Tillery Dep., [Dkt. 35-1] Ex. 35.

         On the same day he was placed on final warning, in an incident that did not result in formal discipline, Tillery was found briefing union agents in a break room during work hours while an aircraft was waiting to be parked. Tillery Dep., [Dkt. 35-1] Ex. 37. In an email describing his follow-up conversation with Tillery about the incident, Louden advised Tillery that "he was within his rights to speak with the agents in non-work areas when he was off the clock to the extent he desired to do [sic] but that debating provisions of the contract in real time with the unit managers was a non-starter and would not be allowed." [Dkt. 41-9.] Louden also warned Tillery that Piedmont "had no desire to experience the tumult arising from trying to separate a union officer from the company, or losing his value to the operation as a seasoned and competent employee, but would endure these scenarios if left with no choice." [Dkt. 41-9.]

         The precipitating event for Tillery's termination was a passenger miscount on Flight 4639 on March 18, 2014, that led to a 22-minute delayed departure and to four passengers being displaced. Tillery Dep., [Dkt. 35-1] Ex. 38. Tillery was working the "B side" for the ground crew assigned to that flight, meaning he was in charge of communicating with the gate agents and other ground personnel, while another African-American employee, Sidy Bah, worked the "A side, " meaning Bah was in charge of communicating with the flight crew. Tillery Dep., [Dkt. 35-1] at 176:18-21. Consequently, Tillery's role that day was to speak "with ramp, gate, load control, [and] other airlines who wanted to know where [Piedmont] planes [were]." Tillery Dep., [Dkt. 35-1] at 177:10-12. He was also expected to provide necessary assistance to the person working the A side if that person needed a break. Tillery Dep., [Dkt. 35-1] at 177:18-19. According to uncontradicted testimony from Bernard Kingara, an African-American who was Tillery's immediate supervisor on March 18, the B side is also responsible for "listening" to whatever the A side tells the flight crew and "automatically convey[ing] the information to whoever needs ... the information." Kingara Dep., [Dkt. 41-7] at 24:3-5.

         It is now undisputed that Bah told the Flight 4639 flight crew that they could keep on board four passengers who were continuing on to the plane's next destination (Raleigh-Durham). Tillery Dep. [Dkt. 31-1] at 176:9-13; Bah Dep., [Dkt. 41-6] at 25:6-8; 22:11. According to uncontradicted testimony from Kingara, as the B side worker, Tillery should have communicated that information to the gate agents. Kingara Dep., [Dkt. 35-6] at 21:1-3 ("B side keeps track of what A side is communicating with the crew and informs the rest of the company."). Kingara testified that the B side is supposed to use three methods to keep track of what the A side is doing: listening to what the A side says on the radio, monitoring requests from the flight crew on the radio, and checking computer print-outs. Kingara Dep., [Dkt. 35-6] at 24:9-28:13. Although it would be possible to miss a piece of information from any one of those three methods, "someone has to be completely off the game to miss all" three. Kingara Dep., [Dkt. 35-6] at 27:14-28:14. Bah's deposition testimony confirms that part of the "job requirement" was to "listen" to what the A side is doing. [Dkt. 41-6] at 28:14-16. It is uncontested that Tillery never passed on the information that Bah had authorized the flight crew to let the four passengers remain on board, which led the gate agents to assume that those passengers were no-shows. As a result, the gate agents permitted four stand-by passengers to board, displacing the original four passengers. Def. Uncontested Facts ¶ 26. The passenger mix-up caused the flight's take-off to be delayed 22 minutes and four passengers had to be removed from the plane. Def. Uncontested Facts at ¶¶ 25, 26. According to Kingara, when he approached Tillery about the situation, Tillery said "he was responsible for what had happened." Kingara Dep., [Dkt. 35-6] at 37:20-38:1.

         The next day, both Kingara and Kingara's supervisor, Lynnnis Julien, told Piedmont management that Tillery had admitted responsibility, which management took to mean that Tillery, rather than Bah, had authorized the flight crew to allow the four passengers to stay on board. Tillery Dep., [Dkt. 35-1] at 191:18-21. Tillery maintains that he "vehemently" disputed any responsibility at the time. Tillery Dep., [Dkt. 35-1] at 181:9. Tillery claims he does not know why Kingara and Julien concluded that he had admitted some degree of fault, although he concedes that he had "no problems" with Kingara and could "agree to disagree" with Julien. Tillery Dep., [Dkt. 35-1] at 184:17, 186:4. He did not recall either Kingara or Julien ever treating him in a discriminatory fashion. Tillery Dep., [Dkt. 35-1] at 186:7. Without any corroborating evidence, Tillery speculated that Kingara was "coached" to say that Tillery had implicated himself. Tillery Dep., [Dkt. 35-1] at 184:13, 182:14. Based on the representations of Kingara and Julien, [10] on March 19, 2014, four Piedmont managers, Michelle Foose, Freddie Louden, Robert Berg, and Glen Zacek (collectively, the "decisionmakers"), made the decision to terminate Tillery's employment.[11] PI. Disputed Facts, [Dkt. 42-2] ¶ 19. The four decisionmakers were all above 40 years old, and Louden is African-American. Def. Uncontested Facts ¶¶ 3, 4.

         Utilizing the union's collective bargaining agreement, Tillery challenged that decision and a grievance hearing was held on June 26, 2014. Def. Ans. to PL First Int. ("1st Int."), [Dkt. 42-3] at 13. In her position as the regional and administrative manager, High conducted that hearing. Before the hearing, she reviewed the audio recording of the communications between Bah and the flight crew on March 18. High Dep., [Dkt. 41 -2] at 32:17-19. High testified that Tillery did not say anything in his defense during the grievance hearing, High Dep., [Dkt. 41-2] at 36:14-16, but Tillery challenges that characterization, see Tillery Dep., [Dkt. 35-1] at 181:9. It is undisputed that Tillery1 s termination was upheld at the grievance hearing. High Dep., [Dkt. 41-2] at 36:4. After Tillery was fired. Piedmont did not replace him with "one single individual, " but the next "class" of people hired, who essentially replaced him, consisted of three black men, one of whom was born in 1968 and was, therefore, over the age of 40. Def. Ans. to PI. Second Int., [Dkt. 41-12] at 3.

         Tillery filed his initial charge with the EEOC on June 11, 2014, marking only the box for age discrimination. Def. Uncontested Facts ¶ 41. On December 14, 2014, the charge was amended to include a claim for Title VII retaliation relating to the sexual harassment complaints Tillery helped file against Chambers. Def. Uncontested Facts ¶ 42. On February 11, 2015, Tillery filed another amended charge with the EEOC that purported to add sex, race, and color discrimination. [Dkt. 41-13] at 1. In that communication, plaintiff also advised the EEOC that an attorney, A.J. Dhali. was representing him and requested that all future communications, including the right to sue letter, be directed only to counsel. [Dkt. 41-13] at 1. An EEOC official confirmed receipt of that communication on February 18, 2011. [Dkt. 41-14] at 1.

         On his EEOC forms, Tillery listed a mailing address in Bowie, Maryland. [Dkt. 41-13] at 1. Although Tillery was not living there at the time, he admits that he used this mailing address throughout the relevant period, and that he directed the post office to hold all his mail until he could pick it up. Tillery Aff., [Dkt. 35-1] at 14:8-15:11. At his deposition, Tillery stated that he did not frequently check the mail sent to the Bowie address. [Dkt. 35-1] at 113:5-14. The EEOC mailed the right to sue letter to both Tillery and his counsel on June 26, 2015. Def. Uncontested Facts ¶ 45. There is no evidence that Tillery himself ever actually received the letter, but Tillery's counsel has represented that he received it on July 3, 2015. PI. Opp., [Dkt. 41] at 13. Plaintiffs complaint was filed on September 29, 2015, which is 95 days after the EEOC sent the right to sue letter but only 88 days after defense counsel purportedly received it. See [Dkt. 1].

         II. DISCUSSION

         A. Stand ...


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