Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—S.D. Ohio: Fired window tinter failed to prove race discrimination, retaliation, (Jan 9, 2025)

By Jason Albright, J.D.

His employer’s owner accused him of “running around like a bitch, complaining to everybody about everybody.”

A biracial man who worked as a window tinter for a professional car care services provider, suspended and then fired after he left work to pick up his daughter with a car remaining in the shop to be tinted, and following ongoing conflicts with a coworker and with the company’s owner, failed to establish Title VII race discrimination or retaliation, a federal district court found. He did not adduce a valid comparator who was allowed to leave early without the same repercussions, and the decision to fire him was made after “a lengthy and undisputed period of degenerating respect between the parties” (Sanner v. Harris, No. 2:23-cv-1239 (S.D. Ohio Jan. 7, 2025)).

Ziebert. The plaintiff, a biracial man, was twice employed by Ziebert, a professional car care services provider, as a window tinter, from February to March 2017, and again from November 2020 until July 21, 2022.

Started off well. His employment with Ziebert started off well. Although he was disciplined in April 2021 for arriving late to work, he was awarded a $5 raise, and the following month, he was awarded a $1,000 bonus.

Deteriorating relationship. After the bonus, he alleged, his relationships at work began to deteriorate. He was allegedly discriminatorily scrutinized, harassed, and criticized by two of his managers had conflicts with a coworker.

He also alleged that, between June and December 2021, his managers interfered with his paychecks and prevented him from earning the money he felt he deserved. He conceded that mistakes on his paychecks may have been accidental, however, and when he brought the issue to management, they corrected the errors.

Another raise. Despite these issues, in November 2021, he was given a second $5 raise, and management agreed that “everything was going good” with his employment.

Tensions with coworker. Sometime around or after February 2022, tensions became so strained with the coworker that the coworker was transferred to another Ziebart location. And the day after the transfer, the plaintiff was written up for being five minutes late to work.

Warning for throwing, breaking tool. In May 2022, the tinter was issued a written warning for throwing and breaking a window tinting tool. According to the warning, he created a “hostile work environment” by throwing the tool, though he agreed to pay for a new one. According to the tinter, the incident was caused by the stress of his poor relationship with his managers.

Informal meeting. Shortly after that incident, and about a month before he was fired, the tinter had an informal meeting with his two managers. He stated that he did not feel he was “part of the Ziebart family,” according to the court, and that he was aware one of the managers did not like him. He also said that he did not like how he was scrutinized or the way his incorrect paychecks were handled. He did not allege, however, that he made any statements related to racial discrimination during the meeting.

Meeting with owner. Because of his meeting with the two managers, the tinter requested to meet with HR, but he was told to meet with the company’s owner instead. At that meeting, he told the owner of his concerns with how the two managers treated him and said that, if he had to get a lawyer, “so be it.” Again, he did not allege that he made any allegations of race discrimination to the owner.

Planning to sue. He then told other employees that he planned to sue the owner for “possession of two Ziebart locations,” according to the court. The owner responded by accusing the window tinter of “running around like a bitch, complaining to everybody about everybody.”

Left to pick up daughter. Then, on July 8, 2022, the tinter left work at 5:00 to pick up his daughter, leaving a car in the shop to be tinted. And though the parties disputed whether he was normally allowed to leave at 5:00 or 5:30, they agreed that he did not tint a car that one of the managers asked him to tint. The manager texted him 10 minutes after he left asking what happened, and the tinter responded that the manager “should have scheduled better.”

Suspended. When he returned to work the following Monday, he was suspended for three days.

Attempted email to HR. Before he left on July 11, the tinter attempted to send an email to HR with the subject line “Human Resources discrimination calm (sic).” The email stated, “I’m never fast enough or good enough and because of my skin color I’m always going to be the bad guy.” However, he initially sent it to the wrong email address, and the message was ultimately conveyed to the owner on July 14 at 9:19 a.m.

Recorded interaction. On July 14, he returned to work and recorded an interaction with the same manager and the owner. In the recording, the manager informed him that he was suspended for five more days. He told him that the three-day suspension was for leaving work without authorization, and that the five-day one was for refusing to work on the car that was in the shop when he left. The owner, in turn, warned him not to “walk up on” him or the owner would “knock [[the tinter’s]] ass out.” The recording ended when the tinter used his phone to show the owner the July 11 email that went to the wrong address.

Termination notice. Also on July 14, according to the court, someone drafted a final Employee Warning Notice, stating, “[[Plaintiff]] has made several false accusations against management staff about race and not having equal opportunity. He has also said we belittle him by simpley (sic) asking him to clean and take care of his area [and] tools all of which are false statements.”

In a section titled “Action Taken,” the notice states “Termination.” It is unclear whether this notice was provided to the window tinter.

Termination and lawsuit. Following his five-day suspension, he returned to work on July 21. He was terminated that day, timely filed a charge of discrimination with the EEOC, and received a right-to-sue letter. He originally filed suit in an Ohio court, asserting two claims for discrimination and retaliation under Title VII. The company’s owner removed the case to federal court and moved for summary judgment on both claims.

Discrimination. Turning first to the plaintiff’s race discrimination claim, the court observed that, though he met the first three elements of his prima facie case, the claim faltered on the fourth element. It was undisputed that he is biracial, was qualified for the job of window tinter, and was terminated, but he failed to show that he was treated less favorably than similarly situated individuals outside his protected class.

The window tinter attempted to compare himself to the coworker with whom he had conflicts, who he asserted is Caucasian, came in late without repercussions, and took off every Monday for two months, but he did not provide any evidence other than his own assertions and did not even provide the coworker’s last name. And his arguments as to other employees he alleged were treated more favorably were also “too vague to allow analysis of whether any of the other employees are appropriate comparators.”

Retaliation. His retaliation claim also faltered. Though the window tinter made out a prima facie case of retaliation, the owner provided a legitimate, nondiscriminatory reason for his termination, specifically that he was fired “due to the recent, multiple disciplinary actions including throwing his tool and creating a hostile work environment, walking off the job, and insubordination.”

Here, the window tinter failed to establish pretext. He offered his recording and argued that the proximity between his protected activity and his termination suggested pretext, but though the recording cast doubt on the owner’s stated reasons for suspending him, it did little, according to the court, to show that his stated reasons for the termination were pretextual.

The recording, said the court, highlighted a fact undisputed by the parties: The relationship between the window tinter and the owner had been deteriorating. In the recording, the owner stated that he did not know “what’s been going on” with the window tinter in the last year of employment and exclaimed, “you’re making 30 dollars and hour now and we ain’t good enough—you don’t like anybody!” There was never a mention of or allusion to the plaintiff’s race.

And though the decision to fire the window tinter came shortly after the receipt of the July 11 email, which did mention his race, the decision was also made shortly after an explosive argument between the owner and the plaintiff and following “a lengthy and undisputed period of degenerating respect between the parties.” A reasonable jury, said the court, could not conclude on these facts that the weight of the evidence made the owner’s stated reasons for termination more likely than not a pretext for unlawful retaliation.

The case is No. 2:23-cv-1239.

Judge: Morrison, S.

Attorneys: Alexander Robert Sanner, pro se. Alex Fredrick Freitag (Law Office of Shannon Smith) for Jim Harris.

Cases: RaceDiscrimination Discrimination Discharge Retaliation OhioNews