[Cite as Grubbs v. Delphi Automotive Sys., 2018-Ohio-2352.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


RONNIE GRUBBS,                                         :      OPINION

                 Plaintiff-Appellant,                  :
                                                              CASE NO. 2017-T-0097
        - vs -                                         :

DELPHI AUTOMOTIVE                                      :
SYSTEMS, LLC, et al.,
                                                       :
                 Defendants-Appellees.
                                                       :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV
01882.

Judgment: Reversed and remanded.


Brian D. Spitz and Fred M. Bean, The Spitz Law Firm, LLC, 25200 Chagrin Boulevard,
Suite 200, Beachwood, OH 44122 (For Plaintiff-Appellant).

Patrick O. Peters and Michael Joseph Kozimor, Jackson Lewis, P.C., Park Center
Plaza I, Suite 400, 6100 Oak Tree Boulevard, Cleveland, OH 44131 (For Defendants-
Appellees).


DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, Ronnie Grubbs, appeals the judgment of the Trumbull

County Court of Common Pleas, granting summary judgment in favor of defendants-

appellees, Delphi Automotive Systems, LLC, Thomas E. Flak, George (Geoffrey)

Svirbely, and Dominic Amato. The issue before this court is whether evidence that a

minority employee was treated less favorably than nonminority employees, received

disciplines that were either not merited or not proportionate to the alleged misconduct,
and was recalled to work after nonminority employees with less seniority, is sufficient to

raise a genuine issue of material fact with respect to claims of racial discrimination and

retaliation. For the following reasons, we reverse the decision of the court below and

remand this matter for further proceedings consistent with this opinion.

       {¶2}   On October 19, 2015, Grubbs filed a Complaint for Damages and

Injunctive Relief in the Trumbull County Court of Common Pleas against Delphi, Flak,

Svirbely, and Amato. Grubbs raised claims of Race Discrimination (Count I), Wrongful

Termination based on Race Discrimination (Count II), Retaliation (Count III), and

Intentional Infliction of Emotional Distress (Count IV).

       {¶3}   On December 18, 2015, the defendants collectively filed an Answer and

Affirmative Defenses to Plaintiff’s Complaint.

       {¶4}   On August 18, 2017, the defendants filed a Motion for Summary

Judgment.

       {¶5}   On September 7, 2017, Grubbs filed a Brief in Opposition.

       {¶6}   On September 11, 2017, the defendants with leave of court filed a Reply.

       {¶7}   The following pertinent evidence was presented by the parties:

       {¶8}   Grubbs is an African-American. In 1997, he began work as a tool and die

maker at Delphi’s Plant 11 in Warren and became a member of the Industrial Division of

the Communications Workers of America Local 717.           He was discharged in 2014.

Between 2007 and 2014, Grubbs was disciplined sixteen times.               Ten of these

disciplines were ultimately removed from his record generally through the union’s

grievance procedure. Grubbs returned to work in December 2015 as the result of an

agreement negotiated between the union and Delphi.




                                             2
       {¶9}   Defendant Flak was the general supervisor at Plant 11 from 2006 through

2013. According to Grubbs, Flak “always had it in for me and my race.” Grubbs also

claimed that several plant supervisors, including Amato and Paulette Clay, advised him

that Flak had a personal bias against him and sought opportunities to discipline him.

       {¶10} Defendant Svirbely was a labor relations representative at Plant 11

between 1995 and 2009 and again after 2011. Grubbs alleges that Svirbely has failed

to represent him impartially as a labor relations representative.

       {¶11} Defendant Amato was a supervisor at Plant 11 since 1999.             Grubbs

complains that Amato would address him as “bro” and “brother” rather than a proper

name. Grubbs alleges that Amato began to show bias towards him after he recorded

Amato being verbally abusive toward another Delphi employee.

       {¶12} In November 2008, Grubbs was disciplined by supervisor Bob Poweski for

violating Shop Rule 20 (“wasting time or loitering in toilets or on any company property

during work hours”) and sent home for the balance of his shift. On this occasion,

Grubbs explained that Flak had instructed another employee (Mike Long) to operate his

press while he was at lunch, although he was not authorized to have Long start a press

assigned to another employee. When the press produced bad parts, “they didn’t want

to admit that they ran the machine for 40 minutes without [him] signing off on it” so they

lied and claimed Grubbs had run the press. When the lie was exposed, Flak instructed

Poweski to write Grubbs up so that he would get “some kind of discipline.”

       {¶13} In January 2009, Grubbs was disciplined by Flak for violating Shop Rule

22 (“threatening, intimidating, coercing, or interfering with fellow employees on the

premises at any time”) and sent home for the balance of his shift plus fourteen days.

Grubbs explained that a supervisor from another area who was covering in Grubbs’

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department had instructed some employees to operate a machine that was not safe

and/or functioning properly. Grubbs advised the operators about the condition of the

machine and suggested that they contact a union representative.          When Grubbs

protested to Flak that the supervisor was misrepresenting the situation, Flak refused to

investigate and asserted that the “word of a supervisor” was “good enough” for him.

      {¶14} In December 2010, Grubbs wrote a letter to the labor relations department

at Delphi complaining about the disciplines he had received and that no action had been

taken on the grievances he had filed.

      {¶15} In September 2011, Grubbs was disciplined by an African-American

supervisor, Paulette Clay, for having a radio/antenna at his work bench which

purportedly violated a plant policy prohibiting laptops and video devices.      Grubbs

complained that he had not been warned that the radio/antenna violated the policy and

that Caucasian fellow-workers had not been disciplined for violating the policy. Grubbs

claimed (based on what Clay told him) that Flak instructed her to issue the discipline

although she was not directly involved in the incident.       Grubbs noted that other

employees were eventually disciplined for violating this policy but only after he

“screamed at the top of my lungs that everybody is doing this.”

      {¶16} Ultimately, the September 2011 discipline was removed from Grubbs’

record. Following this incident, Grubbs filed the first of two complaints with the Equal

Employment Opportunity Commission complaining that Flak was pursuing him

“personally without cause.” Grubbs also filed written complaints with Monica Haney of

Delphi’s labor relations and human resources department and with the National Labor

Relations Board.




                                           4
       {¶17} On two occasions in April 2012, Grubbs was disciplined by Flak for

violating Shop Rule 40 (“deportment not protected by the National Labor Relations Act,

which is contrary to the interests of fellow employees or the company”) for “fail[ing] to

report off as instructed in accordance with FMLA guidelines.” He was sent home for the

balance of his shift on each occasion plus seven and fourteen days respectively.

Grubbs spoke with other employees who used FMLA leave and learned that they

followed the same procedure he did but were not disciplined. Flak was unable to recall

or explain how Grubbs had violated the call-off procedures.

       {¶18} In July 2012, Grubbs filed a second complaint with the EEOC.

       {¶19} In August 2013, Grubbs was disciplined by Flak for violating Shop Rule 20

by “wast[ing] an excessive amount of time while assigned to press 807, including having

to be awoken from sleep two separate times,” and sent home for the balance of his shift

plus thirty days. Grubbs explained that another employee was assigned to the press

during the time that he was purportedly wasting time.

       {¶20} In March 2014, Grubbs was disciplined by Mark Anderson (Flak’s

replacement as general supervisor at Plant 11) for violating Shop Rule 20 by being out

of his assigned work area as reported by Amato. As a result of this discipline, Grubbs’

employment with Delphi was terminated.

       {¶21} During the investigation of the incident, Grubbs produced witnesses

disputing Amato’s charge that he was not in his assigned work area.1 Grubbs also

requested that Larry B. Peoples, Plant 11’s African-American human resources

manager, be present at the disciplinary hearing. Svirbely represented to Grubbs that


1. Grubbs’ appellant’s brief refers to the depositions of Doug Murphy and Danye Bunsie as witnesses
although these depositions have not been filed with the court. Written statements by Murphy and another
witness, Tiffany Wylie, were attached to the Brief in Opposition to Summary Judgment.

                                                  5
Peoples was unable to attend the hearing. In fact, Peoples was upset that Svirbely did

not advise him of the situation until after Grubbs’ termination (“if someone is discharged

from my plant, I want to know”).

       {¶22} In December 2015, Grubbs returned to work at Delphi Plant 47 in Vienna

pursuant to a Memorandum of Settlement, Last Chance Agreement negotiated between

the union and Delphi. The agreement provided that Grubbs would be returned to active

status after all permanently laid off tool and die makers had been made an offer to

return to work.     This provision allowed two Caucasian tool and die makers, John

Daugherty and Keith Zreliak, to return to work before Grubbs. Daugherty had been

terminated for physically threatening other employees and Zreliak for stealing from

Delphi and both had less seniority than Grubbs.

       {¶23} On September 14, 2017, the trial court granted the defendants’ Motion.

       {¶24} On October 10, 2017, Grubbs filed a Notice of Appeal.            On appeal,

Grubbs raises the following assignments of error:

       {¶25} “[1.] The trial court committed reversible error by wrongfully determining

that there were no genuine issues of material fact regarding Grubbs’ prima facie case

for race discrimination.”

       {¶26} “[2.] The trial court committed reversible error by wrongfully determining

that there were no genuine issues of material fact regarding Grubbs’ prima facie case

for retaliation.”

       {¶27} “[3.] The trial court committed reversible error by wrongfully holding that

there were no genuine issues of material fact regarding pretext.”

       {¶28} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated,

                                            6
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from

the evidence * * * that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Under this standard, the reviewing court

conducts an independent review of the evidence before the trial court and renders a

decision de novo, i.e., as a matter of law and without deference to the conclusions of

the lower court.” (Citation omitted.) Green v. Marc Glassman, Inc., 11th Dist. Portage

No. 2017-P-0041, 2017-Ohio-9343, ¶ 12.

       {¶29} In his first assignment of error, Grubbs challenges the trial court’s grant of

summary judgment with respect to his claims of racial discrimination.

       {¶30} Under Ohio Law, it is “an unlawful discriminatory practice * * * [f]or any

employer, because of the race * * * of any person, to discharge without just cause, to

refuse to hire, or otherwise to discriminate against that person with respect to hire,

tenure, terms, conditions, or privileges of employment, or any matter directly or

indirectly related to employment.” R.C. 4112.02(A).

       {¶31} “In order to prevail in an employment discrimination case, the plaintiff must

prove discriminatory intent.” Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 583, 664

N.E.2d 1272 (1996). The fact of discriminatory intent may be established directly or

indirectly. In the absence of direct evidence, the Ohio Supreme Court has recognized

that a plaintiff may establish a prima facie case of employment discrimination where it is

demonstrated that he is a member of a racial minority and has suffered adverse

                                            7
employment action while similarly situated, nonminority employees have been treated

more favorably. James v. Delphi Automotive Sys., 10th Dist. Franklin No. 04AP-215,

2004-Ohio-5493, ¶ 7.2

        {¶32} “[I]f a plaintiff establishes a prima facie case of disparate-treatment

employment discrimination under R.C. Chapter 4112, the burden of production shifts to

the employer to articulate a legitimate, nondiscriminatory reason for its treatment of the

plaintiff.”   Allen v. totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231, 915

N.E.2d 622, ¶ 4.          “If the employer carries its burden of articulating a legitimate,

nondiscriminatory reason for its employment decision, the plaintiff must prove that the

employer’s stated nondiscriminatory reasons were a pretext for impermissible

discrimination.” Id. at ¶ 5. “If an employment-discrimination plaintiff fails to establish a

triable factual issue on an essential element of her case, summary judgment for the

employer is appropriate.” Id.; McCarthy v. Lordstown, 11th Dist. Trumbull No. 2014-T-

0050, 2015-Ohio-955, ¶ 13 (“[t]he plaintiff’s burden is to prove that the employer’s

reason was false and that discrimination was the real reason for the employer’s

actions”).

        {¶33} Construing the evidence most strongly in Grubbs’ favor, we conclude that

he has established a prima facie case of employment discrimination based on race. It is

notable that Grubbs worked at Delphi for ten years without incurring significant



2. The elements necessary to establish a prima facie case of employment discrimination based on race
are variable depending on the particular circumstances of the case. Compare Plumbers & Steamfitters
Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 197, 421 N.E.2d 128 (1981)
(termination based on race) with Butler v. Lubrizol Corp., 11th Dist. Lake No. 2014-L-104, 2015-Ohio-
1216, ¶ 13 (reverse discrimination). As observed by the Ohio Supreme Court: “The importance of [the
test] lies, not in its specification of the discrete elements of proof there required, but in its recognition of
the general principle that any * * * plaintiff must carry the initial burden of offering evidence adequate to
create an inference that an employment decision was based on a discriminatory criterion * * *.” (Citation
omitted.) Mauzy at 584.

                                                       8
discipline. In the seven years that Flak was the general supervisor at Plant 11, Grubbs

was disciplined a total of sixteen times.       Although ten of those disciplines were

ultimately removed from his record, the result was his discharge under Delphi’s system

of progressive discipline.    There is evidence that similarly situated non-minority

employees were treated more favorably, particularly in respect to the discipline received

for violating the laptop and video device policy and the FMLA call-off procedures.

Grubbs’ return to work also evidences disparate treatment inasmuch as other tool and

die workers with less seniority and arguably more serious disciplinary infractions were

returned prior to Grubbs.

      {¶34} Delphi     has    submitted    evidence    that   there    were    legitimate,

nondiscriminatory reasons for Grubbs’ discipline.       In each instance Grubbs has

introduced some evidence that the reason for the discipline may have been pretextual.

The trial court found Grubbs’ evidence in this respect to be “conclusory” and “self-

serving,” but we disagree. There is evidence available or potentially available to either

corroborate or refute Grubbs’ claim of pretext. For example, Grubbs was disciplined

twice in a month for not following the proper call-off procedures. He claims that no other

employees of whom he is aware have been so disciplined. Delphi has failed to explain

the specific reason for the disciplines or identify other employees who have been

disciplined for the same infraction. The nature of the discipline, suspension for over

three weeks without pay, hardly seems proportionate to the seriousness of the alleged

misconduct.

      {¶35} The most serious deficiency in Grubbs’ claims is the lack of direct

evidence that Flak and his subordinates were motivated by a racial bias as opposed to

a personal dislike of Grubbs. That question, however, should properly be left for a jury

                                            9
to decide. Direct evidence of a racial motivation cannot be expected in every instance.

In the present case, Grubbs has introduced evidence of disparate treatment from which

a racial motivation may be inferred sufficient to overcome summary judgment. Williams

v. Spitzer Auto World, Inc., 9th Dist. Lorain No. 07CA009098, 2008-Ohio-1467, ¶ 18

(“the plaintiff’s race need not have been the exclusive factor in the decision, it need only

have ‘made a difference’”) (citation omitted).

       {¶36} The first assignment of error is with merit.

       {¶37} In the second assignment of error, Grubbs argues the trial court erred by

granting summary judgment on his claim of retaliation.

       {¶38} Under Ohio law, it is “an unlawful discriminatory practice * * * [f]or any

person to discriminate in any manner against any other person because that person has

opposed any unlawful discriminatory practice defined in this section or because that

person has made a charge, testified, assisted, or participated in any manner in any

investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised

Code.” R.C. 4112.02(I).

       {¶39} “To establish a case of retaliation, a claimant must prove that (1) she

engaged in a protected activity, (2) the defending party was aware that the claimant had

engaged in that activity, (3) the defending party took an adverse employment action

against the employee, and (4) there is a causal connection between the protected

activity and adverse action.” Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-

6442, 879 N.E.2d 174, ¶ 13. To establish a prima facie case of retaliation, “the plaintiff

is not required to conclusively prove all the elements of his claim,” however, “the plaintiff

must ultimately prove, by a preponderance of the evidence, that the plaintiff’s protected




                                             10
activity was the determinative factor in the employer’s adverse employment action.”

Wholf v. Tremco, Inc., 2015-Ohio-171, 26 N.E.3d 902, ¶ 43 (8th Dist.).

        {¶40} The trial court found that Grubbs had failed to establish a prima facie case

of retaliation noting (incorrectly) that he “filled out his paperwork with the EEOC in 2012”

but was not terminated until 2014.      The court expressly found “the length of time

between his EEOC complaint and the ultimate termination are too far removed in time to

justify any causal connection.” We disagree.

        {¶41} The 2012 EEOC complaint was the second which Grubbs had filed. The

first EEOC complaint was filed in October 2011, and within a year of that filing he was

disciplined two times for improperly following the call-off procedures to use FMLA leave.

Both these disciplines were materially adverse to Grubbs’ employment in that, on

account of the system of progressive discipline, they required Grubbs’ termination for

the discipline received in March 2014. Stated another way, if Grubbs had not received

these intervening disciplines, his termination in 2014 would not have been mandated.

Admittedly, “the less time that passes between the protected activity and the retaliatory

action, the more conspicuous the causal connection,” however, “retaliation has been

found when termination followed the protected activity by over one year.” (Citation

omitted.) Wholf at ¶ 54. In the present case, the evidence presents a record of sixteen

disciplines within a seven-year period during which Grubbs filed his EEOC complaints

and otherwise complained of retaliatory and/or discriminatory treatment.           For the

purposes of summary judgment, such evidence is sufficient to establish a prima facie

case.

        {¶42} The second assignment of error is with merit.




                                            11
      {¶43} In the third assignment of error, Grubbs argues that the trial court erred in

holding that there were not genuine issues of material fact regarding whether the

purported reasons for his disciplines and termination were pretextual.

      {¶44} Where an employer has articulated a legitimate, nondiscriminatory reason

for its adverse employment decision, a plaintiff may establish that the proffered

nondiscriminatory reason was a pretext for discrimination/retaliation by presenting

evidence that the proffered reason “(1) has no basis in fact, (2) did not actually motivate

the employer’s adverse employment action, or (3) was insufficient to motivate the

adverse employment action.” Ellis v. Jungle Jim’s Market, Inc., 2015-Ohio-4226, 44

N.E.3d 1034, ¶ 49 (12th Dist.).

      {¶45} Grubbs has presented evidence that the stated reasons for his disciplines

were pretextual. There is evidence Grubbs was disciplined for conduct for which other

employees were either not disciplined or not disciplined as severely, such as for

violating the laptop and video device policy and the FMLA call-off procedures discussed

above.    There is also evidence that Delphi supervisors failed to investigate the

underlying factual bases for the disciplines. Grubbs reported that Flak told him that

such investigation was unnecessary because a supervisor’s claim that a violation

occurred was sufficient to issue a discipline. Grubbs also reported that supervisors

confided that they issued disciplines because Flak had instructed them to do so, rather

than because they believed discipline was merited.

      {¶46} Grubbs’ final discipline resulting in his termination was for being out of his

assigned work area. Despite Grubbs having witnesses to dispute Amato’s claim, these

witnesses were not consulted prior to the discipline being issued. According to Svirbely,

it would have been the union’s responsibility to present witnesses on Grubbs’ behalf. It

                                            12
is also peculiar that, although Grubbs requested Peoples’ presence at his termination

hearing and although Peoples is normally advised of such occurrences, Svirbely did not

inform Peoples of the situation until after Grubbs’ termination yet told Grubbs’ that

Peoples was unavailable. This evidence is sufficient to raise an issue as to whether the

reasons for Grubbs’ disciplines were pretextual.

      {¶47} The third assignment of error is with merit.

      {¶48} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, granting summary judgment in favor of the defendants-appellees, is

reversed and this matter is remanded for further proceedings consistent with this

opinion. Costs to be taxed against the appellees.



THOMAS R. WRIGHT, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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