Gregg v. SBC/Ameritech

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0283n.06
Filed: April 15, 2009

05-3995

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

KEVIN M. GREGG, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
SBC/AMERITECH, et al., ) SOUTHERN DISTRICT OF OHIO
)
Defendants-Appellees. )

Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.

PER CURIAM. The plaintiff, Kevin Gregg, filed numerous lawsuits – now

consolidated – against defendants SBC/Ameritech and SBC/Ameritech employees Mike

Hay, Dan Wiley, Joel Hall, and Tom Keenan. In those pro se filings, Gregg raised claims

of racial discrimination and retaliation under Title VII, 42 U.S.C. §§ 2000e - 2000e-17,

under 42 U.S.C. § 1981, and under Ohio Revised Code § 4112.02; claims of breach of

contract and breach of the duty of fair representation under section 301 of the Labor

Management Relations Act, 29 U.S.C. § 185; claims of unpaid overtime and retaliation in

violation of section 207(a)(1) of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1); and

a claim of intentional infliction of emotional distress under Ohio state law. The district court

eventually granted summary judgment to the defendants on each of Gregg’s substantive

law claims arising from employment decisions rendered, and various activities undertaken,
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during Gregg’s tenure as a telephone technician with SBC/Ameritech. The plaintiff now

appeals that ruling, as well as numerous procedural rulings made by the district court

during the pendency of this litigation.

The 25 issues set out by Gregg on appeal can be categorized into procedural issues

challenging numerous non-dispositive rulings made by the district judge and substantive

issues challenging the district court’s grant of summary judgment on the plaintiff’s claims

arising under Title VII; 42 U.S.C. § 1981; anti-discrimination provisions in Ohio Revised

Code § 4112.02; breach of contract and of the duty-of-fair-representation provisions of 29

U.S.C. § 185; unpaid overtime and retaliation provisions in 29 U.S.C. § 207(a)(1); and Ohio

tort law. The district court issued a 40-page opinion addressing the parties’ summary

judgment motions that recounted the facts pertinent to the substantive issues now before

this court and applied the relevant law to those facts. Because the district court’s analysis

is largely correct and, certainly, reached the correct result with regard to the merits of the

issues raised in that court, a detailed recapitulation of the necessary background

information and of the legal analysis to be employed in the resolution of the issues raised

would be largely duplicative and would serve no useful or precedential purpose. See

Gregg v. SBC/Ameritech, Nos. 2:02-CV-980, 2:02-CV-1232, 2:03-CV-636, 2005 WL

1514114 (S.D. Ohio June 24, 2005).

We nevertheless are at pains to address one of the issues raised below that was

properly addressed by the district court simply because it received so much emphasis on

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appeal. The plaintiff contends that the district court’s treatment of his racial discrimination

claim regarding his ultimate termination was flawed. Specifically, Gregg argues that

although he was initially disciplined for making an extraordinarily high number of long-

distance calls on company cell phones – in comparison with other SBC/Americtech

technicians – no evidence of the severity of discipline meted out to similarly-situated

employees for abuse of local cell-phone privileges was introduced. We find no merit to this

argument.

First, because the allegation of disparate treatment among similarly-situated

employees is an element of the plaintiff’s prima facie case, it was Gregg, not

SBC/Ameritech, who bore the burden of undertaking that analysis. Second, the record

makes clear that the lack of such evidence was less a function of the failure to offer

available proof than it was an impossibility. The simple fact is that no other employee

under the direction of Gregg’s supervisor had compiled a comparable record of

unauthorized diversions from work activity, abuse of company policy regarding cell-phone

usage, and misuse of customer telephone equipment. Under these circumstances, the

absence of evidence regarding any discipline imposed on other employees for

unauthorized local calls made on company cell phones does not call into question the

district court’s summary judgment ruling, simply because no other employee was in fact

similarly situated to Gregg.

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Moreover, to the extent that Gregg’s argument can be construed to assert that his

termination for making local calls on company time and company equipment was improper

because he was not on notice of the impropriety of such usage, that argument is also

without merit. In his deposition, Gregg testified that, after his suspension for making

personal long-distance phone calls on company cell phones, his supervisor, Thomas

Keenan, explained:

Personal calls are not supposed to be made and it’s considered a Code of
Conduct violation and tech expectations, and then he turns right around and
says but we [SBC/Ameritech management] understand that there are times
you are going to need to make personal calls and if you have to call your wife
and tell her you are going to be late, whatever, you know, you can make
some personal calls, basically not to abuse it, or something to that effect.

Clearly, permission to inform family members of unanticipated, work-related delays was

not tantamount to blanket permission to use company equipment for any purpose. Just

as clearly, Keenan’s admonition extended to both local and long-distance phone calls, so

that Gregg cannot now legitimately assert that he thought that there was no restriction on

local cell-phone usage for personal calls. Consequently, the “118 non-business related

telephone calls” that the plaintiff made on a company cell phone after his ten-day

suspension for making unauthorized long-distance calls more than justify the action taken

by SBC/Ameritech against Gregg.

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Having found that the substantive issues raised on appeal do not merit relief, we

now direct our attention to the numerous procedural aspects of this litigation that are

challenged by the plaintiff.

District Court’s Refusal to Enforce Arbitration Agreement

Gregg first insists that the district court erred in an order entered on December 18,

2003, that failed to mandate enforcement of an alleged arbitration award in the plaintiff’s

favor. As explained by the district judge in his summary judgment opinion, following

SBC/Ameritech’s suspension and then termination of the plaintiff, Gregg availed himself

of the grievance procedure provided for in the collective bargaining agreement between

the company and his union, the Communication Workers of America. Pursuant to that

process, Gregg first submitted to an informal “neutral evaluation process” whereby an

evaluator questioned both parties to the dispute and rendered an “advisory opinion.”

Because the company chose to reject the evaluator’s opinion, however, the case was

“deferred to the regular arbitration process,” of which Gregg never availed himself.

Consequently, no true “arbitration award” has yet issued, and the district court thus did not

err in refusing to enforce a non-existent award.

On appeal, Gregg contends that the “advisory opinion” was never properly rejected

by SBC/Ameritech because the agreement between the company and union called for

written notification of a party’s refusal to abide by the terms of the opinion within two

working days of its issuance. Although SBC/Ameritech gave only an oral rejection of the

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advisory opinion within the appropriate two-day period, both the company and the union

agreed, even before Gregg’s case was heard, that such non-written notification “would be

sufficient. This has been the practice. Therefore, the fact that there is no such written

document is not meaningful.”

District Court’s Alleged Denial of Additional Discovery

After the Equal Employment Opportunity Commission (EEOC) issued Gregg a letter

granting him the right to sue SBC/Ameritech for failing to reinstate him to his position as

suggested by the neutral evaluator’s “advisory opinion,” Gregg filed an amended complaint

containing the same claim involved in the EEOC proceeding and a motion requesting

additional time for discovery. Specifically, the plaintiff requested “time to receive and

review any of the EEOC evidentiary submissions, via the [Freedom Of Information Act], so

he can be able to make a better informed decision as to whether or not to possibly include

his International union or Local as Defendants.” That motion was denied by the district

court, and Gregg now alleges error in that ruling.

We review a district court’s decision limiting discovery for an abuse of discretion.

See Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 304 (6th Cir.

2003). Because the amended complaint triggering the request for additional discovery in

this matter involved the plaintiff’s assertion that the terms of an advisory opinion should be

enforced, and because Gregg had filed a complaint containing just such an allegation six

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months previously, he already had enjoyed sufficient access to the necessary discovery

information. The district court thus did not abuse its discretion in denying the motion.

Denial of Motions to Strike

Plaintiff Gregg next asserts that the district court erred in failing to strike affidavits

offered by Diana Bottalla, an employee-relations manager at SBC/Ameritech, and Ronald

Wells, the vice-president of labor relations for SBC/Ameritech. The plaintiff contends that

Bottalla’s affidavit was improperly considered by the court because the information therein

was not limited to employees who were similarly situated to the plaintiff. Furthermore,

Gregg maintains that Wells’s name was not provided to him by the defendants in a timely

fashion and, thus, the affidavit authored by that individual should not have provided a basis

for the district court’s summary judgment ruling. Again, the district judge did not abuse his

considerable discretion in making these evidentiary rulings.

First, Bottalla’s affidavit merely attached a discipline report she “consulted when

discussing the proper discipline to be given to Kevin M. Gregg for misuse of his company-

issued cellular telephone with his manager, Tom Keenan.” The affidavit and attachments

do not purport, however, to reference discipline only of similarly-situated employees, but

rather seek to provide a framework for all discipline imposed “in SBC’s Midwest Region in

2001 for misuse of the Company cellular telephones.” There was no error in refusing to

strike such background information employed by the company in determining the

appropriate discipline to be imposed.

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Second, Wells’s affidavit, even if untimely, was merely cumulative of other

information already before the court. In the affidavit, the vice-president of labor relations

stated that SBC/Ameritech had timely rejected the advisory opinion issued by the neutral

evaluator pursuant to the collective bargaining agreement between the company and the

union. The court already had before it, however, the June 5, 2003, letter from the union

to Gregg clearly expressing the union’s recognition that the company rejected the advisory

opinion. Any error in this regard, therefore, did not affect the ultimate determination of the

district judge.

Denial of Motion for Leave to Amend and Alleged Grant of Motion to Strike

Gregg also insists that the district court should have allowed him to amend his filings

to provide additional authentication for exhibits offered. In fact, however, the district judge

ruled that the court “shall consider proper evidence to which it is directed in some

discernible manner,” even though the defendants moved “to strike all of the exhibits that

Gregg has attached to his memorandum in opposition ‘because none of the documents

have been authenticated or certified according to the requirements of Rules 901(b)(7),

902(4), and 44(a) of [the] Federal Rules of Evidence.’” The defendants’ motion thus was

not granted by the court, and Gregg has suffered no harm from the refusal of his request

to provide additional authentication.

Denial of Request for Court-Appointed Counsel

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Gregg contends that the district court further erred in refusing his request for court-

appointed counsel. We review such a denial for abuse of discretion. See Lavado v.

Keohane, 992 F.2d 601, 605 (6th Cir. 1993). Because this is a civil case, the plaintiff has

no constitutional right to have counsel appointed. See Shepherd v. Wellman, 313 F.3d

963, 970 (6th Cir. 2002); Lavado, 992 F.2d at 605. Indeed, only in exceptional

circumstances will the privilege of court-appointed counsel be justified in a civil case. See

Lavado, 992 F.2d at 606. As we noted in Lavado:

In determining whether “exceptional circumstances” exist, courts have
examined “the type of case and the abilities of the plaintiff to represent
himself.” This generally involves a determination of the “complexity of the
factual and legal issues involved.” Appointment of counsel . . . is not
appropriate when a pro se litigant’s claims are frivolous, or when the chances
of success are extremely slim.

Id. (citations omitted and paragraph formatting altered).

As clearly noted in the district court’s decisions in the substantive aspects of this

litigation, Gregg’s prospects for success on his claims of discrimination, retaliation, labor

law violations, and transgressions of state law were not good. Consequently, the district

judge did not abuse his discretion in denying the plaintiff’s request for appointed counsel.

Denial of Motion for Verification

Nine months prior to filing his motion for summary judgment, Gregg filed with the

district court a document styled “motion for verification.” In that motion, he asserted that

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three pages of SBC/Ameritech’s Asset Protection Report were not provided to the judge

for review prior to the court’s ruling on redaction of certain elements of the evidence. The

plaintiff now argues that denial of that motion constituted an abuse of the district court’s

discretion in this matter. As the district court ruled, however:

Plaintiff’s concern that a failure by Defendant SBC/Ameritech to have
properly disclosed all of the Asset Protection Report will result in an inability
to prove his claims reflect[s] a premature attempt at controverting Defendant
SBC/Ameritech’s evidence. If Plaintiff is correct and he indeed possesses
records that contain material different from that which Defendant
SBC/Ameritech represents to be a complete record of the same material,
then he can attack that evidence at trial using his records. He can also
attempt at trial to impeach witnesses based on the alleged discrepancies.
Further, should Defendant SBC/Ameritech rely upon incomplete material in
moving for summary judgment, Plaintiff can submit his copies of the material
in opposition to that motion. In other words, the time for impeachment or to
create an issue of fact is not yet ripe.

This resolution of the plaintiff’s challenge is certainly reasonable and does not amount to

an abuse of the district judge’s discretion.

Denial of Motion to Amend Claim for Spoliation

According to the district court’s own “incomplete count,” plaintiff Gregg had filed “at

least ten motions for leave to file an amended complaint, an original complaint, and five

amended complaints” in just one of the consolidated cases in this litigation. Eventually,

therefore, the court ordered that “Plaintiff shall file an amended complaint, which must

include all claims he seeks to assert, by August 20, 2004.” Gregg did file just such an

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amended complaint on August 19, 2004, although he “later sought to amend that filing by

adding documents that he asserted he forgot to attach to his pleading.” The district court

permitted the limited amendment, but the plaintiff then moved – after the August 20

deadline – to amend his pleadings by adding yet an additional claim alleging spoliation of

evidence by the defendants. Gregg now challenges the district judge’s denial of that

additional motion to amend.

Pursuant to the provisions of Rule 15(a) of the Federal Rules of Civil Procedure,

leave to amend “shall be freely given when justice so requires.” “Nevertheless, the party

requesting leave to amend must act with due diligence if it wants to take advantage of the

Rule’s liberality.” Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000)

(citation and internal quotation marks omitted). In this case, the district court noted that

“[t]he record is replete with evidence of Plaintiff’s bad faith.” Indeed, the district judge

explained that Gregg admitted he “knew of much of the purported basis for this claim at

least as far back as April 9, 2004,” but that he still failed “to include or to attempt to include

this claim in the three amended complaints he subsequently filed” or “to comply with the

Court’s specific directive to assert all his claims in his last permitted pleading.” Under such

circumstances, the district judge did not abuse his discretion in denying the motion to

amend his complaint. See id. (“We generally review a district court’s denial of a motion to

amend a complaint for abuse of discretion.”).

Imposition of Sanctions

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Despite a warning from the district court that any further redundant filings by the

plaintiff would result in sanctions, Gregg continued to paper the court with motions raising

issues and objections that had previously been lodged. Consequently, the district judge

determined that “Plaintiff has abused the process and has unnecessarily delayed these

proceedings” and imposed a $200 fine on Gregg. The propriety of such a sanction is

reviewed by this court only for an abuse of discretion. See Dixon v. Clem, 492 F.3d 665,

671 (6th Cir. 2007). Given the fact that the district judge “repeatedly warned” the plaintiff

about the need to cease his redundant filings, his determination “that Plaintiff’s tactics only

serve to harass opposing counsel and unnecessarily complicate this Court’s docket,” and

his conclusion that the “Plaintiff has abused the process and . . . unnecessarily delayed

these proceedings,” the district judge did not abuse his discretion in sanctioning Gregg in

this matter.

Motion for Recusal

Gregg also challenges an order of the district court denying the plaintiff’s motion

filed pursuant to 28 U.S.C. §§ 144, 455(a), and 455(b)(1) asking the district judge to

disqualify himself due to alleged bias. In that order, the district court carefully addressed

each of the plaintiff’s allegations of judicial bias, applied the relevant law, and correctly

concluded “that Plaintiff has presented insufficient grounds warranting the disqualification

of the . . . judge pursuant to 28 U.S.C. § 144” and that “[t]here are also no grounds for

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disqualification under 28 U.S.C. § 455.” For the reasons adequately detailed in the district

court’s order, we conclude that this issue is also without merit.

CONCLUSION

For the reasons set out above, we AFFIRM the judgment of the district court.

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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur

in this court’s judgment.

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