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O'Flynn v. Consumers Energy7/5/2005
UNPUBLISHED
Before: Cooper, P.J., and Jansen and Hoekstra, JJ.
Plaintiff Marvell O'Flynn appeals as of right from an order granting defendant Consumers Energy's motion for summary disposition pursuant to MCR 2.116(C)(10). The trial court determined that plaintiff's racial disparate treatment claims under the Elliott-Larsen Civil Rights Act (CRA) were preempted by ยง 301 of the federal Labor Management Relations Act (LMRA), and that plaintiff failed to establish a prima facie case of racial discrimination under a hostile work environment theory. Although we find that the trial court improperly determined that plaintiff's disparate treatment claims under the CRA were preempted by federal law, we find that dismissal of these claims would have been appropriate pursuant to MCR 2.116(C)(10). However, we reverse the trial court's dismissal of plaintiff's hostile work environment claims, as we find that plaintiff presented sufficient evidence to create a genuine issue of material fact and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
Plaintiff, an African-American, began working for defendant in 1986 as a janitor at its Palisades Nuclear Power Plant. In 1987, plaintiff transferred into the radiation waste department and was promoted to a senior radiation waste material handler (Radwaste Handler A) in 1990. In 2000, plaintiff became a Lead Radwaste Handler. Radwaste handlers undergo more direct, frequent, and continual exposure to radiation than most other positions at the plant. The handlers rotate positions to equalize radiation exposure among the employees and must continually monitor their dosage. Due to the dangers of radiation exposure, plaintiff, along with several other radwaste handlers, applied on several occasions for posted positions in the mechanical maintenance department. These positions were not only safer, but also provided higher pay and better advancement opportunities. According to the collective bargaining agreement, defendant was required to hire qualified applicants by seniority.
In 1999, a grievance was filed when defendant posted several temporary positions for "Mechanical Repair Worker B," hired workers from outside the company, and then immediately upgraded the positions to permanent tool keepers. In 2000, plaintiff applied for and was denied a position of "Mechanical Repair Worker A." In response to a grievance regarding the filling of the repair worker position, defendant indicated that plaintiff was only qualified for a "B" level position because he lacked the requisite experience in a "B" mechanical position. Plaintiff did, however, pass the required mechanical aptitude test. In 2001, plaintiff was denied a position of temporary tool keeper and denied a position of "Building Utility Worker A," which would have given him the necessary mechanical experience for future advancement. In his complaint, plaintiff alleged that defendants purposely promoted white employees into these desired positions and kept minorities in the radwaste department due to the higher level of danger and lower pay.
Plaintiff also alleged that defendant allowed for the existence of a racially hostile work environment. Plaintiff asserted that he saw racially negative graffiti in the locker rooms. He did not find it necessary to report the graffiti as other employees had already done so and it was being removed. A manager once called plaintiff, who has a muscular build, Arnold Schwarzenegger, pronouncing the name in a racially derogatory manner. Plaintiff was told that a supervisor was fired after using a racially derogatory word in front of Larry Ledesma, another plaintiff in these actions. Plaintiff w
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