Montgomery v. AFL-CIO, No. 3:23-cv-01262 (Nov. 14, 2025)

Case details
Full caption
Jeremie Montgomery v. AFL-CIO
Country
United States
Jurisdiction
Federal
Decided
Nov. 14, 2025
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3188737Only the Westlaw citation is currently available.United States District Court, M.D.Tennessee, Nashville Division.JEREMIE MONTGOMERY, Plaintiff,v.INTERNATIONAL BROTHERHOOD OFELECTRICAL WORKERS AFL-CIO (IBEW) LOCAL429 and CONTI CORPORATION, Defendants.Case No. 3:23-cv-01262|Filed 11/14/2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsJeremie Montgomery, Clanton, AL, Pro Se.Michael C. Iadevaia, R. Jan Jennings, Stranch, Jennings &Garvey, PLLC, Nashville, TN, Samuel K. Gladney, Stranch,Jennings & Garvey, PLLC, St. Louis, MO, for DefendantInternational Brotherhood of Electrical Workers AFL-CIO(IBEW) Local 429.David W. Schelberg, McDonald Hopkins PLC, BloomfieldHills, MI, Gordon J. Brady, Huie, Fernambucq & Stewart,LLP, Birmingham, AL, for Defendant Conti Corporation.MEMORANDUMALETA A. TRAUGER United States District Judge*1 Pro se plaintiff Jeremie Montgomery, a former electricalworker for Conti Corporation (“Conti”), brings suit againstConti and the International Brotherhood of ElectricalWorkers Local 429 (the “Union”), asserting claims of racediscrimination and retaliation in violation of Title VII ofthe Civil Rights Act of 1964 (“Title VII) and 42 U.S.C. §1981. (Am. Compl., Doc. No. 52.) The case was referredto the Magistrate Judge for the disposition or recommendeddisposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B). (Doc. No. 7.)1Pursuant to that referral, the Magistrate Judge has issueda Report & Recommendation (“R&R”) (Doc. No. 119),recommending that (1) the Motion for Summary Judgmentfiled the Union (Doc. No. 89) be granted; and (2) the Motionfor Summary Judgment filed by Conti (Doc. No. 96) begranted in part and denied in part.Now before the court are (1) plaintiff Jeremie Montgomery'sObjections to both recommendations, filed with a supportingMemorandum (Doc. Nos. 123, 124); and (2) Conti's “PartialObjection” (Doc. No. 125), objecting to that part of the R&Rrecommending that summary judgment be denied as to theplaintiff's retaliation claim against Conti. The Union andConti both filed Responses to the plaintiff's Objections, andthe plaintiff filed a Response to Conti's Partial Objection.(Doc. Nos. 126, 127, 128.) For the reasons set forth herein,the court will overrule the plaintiff's Objections and sustainConti's. The R&R will be accepted in part and rejected in part,and both Motions for Summary Judgment will be granted intheir entirety.I. STANDARD OF REVIEWA. Review of Report and RecommendationWithin fourteen days after being served with a report andrecommendation as to a dispositive matter, any “party mayserve and file specific written objections to [a magistratejudge's] proposed findings and recommendations.” Fed. R.Civ. P. 72(b)(2). The district court must review de novo anyportion of the report and recommendation “that has beenproperly objected to.” Fed. R. Civ. P. 72(b)(3). In conductingits review, the district court “may accept, reject, or modifythe recommended disposition; receive further evidence; orreturn the matter to the magistrate judge with instructions.” Id.However, the district court is not required to review—undera de novo or any other standard—those aspects of the reportand recommendation to which no objection is made. Thomasv. Arn, 474 U.S. 140, 150 (1985). The district court shouldadopt the magistrate judge's findings and rulings to which nospecific objection is filed. Id. at 151.*2 Although pro se pleadings and filings are held to lessstringent standards than those drafted by lawyers, see, e.g.,Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro selitigants are not entirely exempt from the requirements of the
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2Federal Rules of Civil Procedure. See, e.g., Wells v. Brown,891 F.2d 591, 594 (6th Cir. 1989).B. Summary Judgment StandardUnder Federal Rule of Civil Procedure 56, any party “maymove for summary judgment, identifying each claim ordefense ... on which summary judgment is sought.” Fed. R.Civ. P. 56(a). “The court shall grant summary judgment ifthe movant shows that there is no genuine dispute as to anymaterial fact and the movant is entitled to judgment as a matterof law.” Id.In moving for or responding to a motion for summaryjudgment, the “party asserting that a fact cannot be or isgenuinely disputed must support the assertion by ... citing toparticular parts of materials in the record” or by “showing thatthe materials cited do not establish the absence or presenceof a genuine dispute, or that an adverse party cannot produceadmissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “A party may object that the material cited to support ordispute a fact cannot be presented in a form that would beadmissible in evidence.” Fed. R. Civ. P. 56(c)(2).By its very terms, Rule 56 anticipates “that the mere existenceof some alleged factual dispute between the parties will notdefeat an otherwise properly supported motion for summaryjudgment; the requirement is that there be no genuine issue ofmaterial fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247–48 (1986) (emphasis in original). In other words, evenif genuine, a factual dispute that is irrelevant or unnecessaryunder applicable law is of no value in defeating a motion forsummary judgment. On the other hand, “summary judgmentwill not lie if the dispute about a material fact is ‘genuine.’” Id. at 248.“[A] fact is ‘material’ within the meaning of Rule 56(a) if thedispute over it might affect the outcome of the lawsuit underthe governing law.” O'Donnell v. City of Cleveland, 838 F.3d718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). Adispute is “genuine” “if the evidence is such that a reasonablejury could return a verdict for the non-moving party.” Peeplesv. City of Detroit, 891 F.3d 622, 630 (6th Cir. 2018).In ruling on a motion for summary judgment, it is not thejudge's function to make credibility determinations, “weighthe evidence[,] and determine the truth of the matter, butto determine whether there is a genuine issue for trial.”Anderson, 477 U.S. at 249. In determining whether a genuineissue of material fact exists, the court must assume as truethe evidence of the nonmoving party and draw all reasonableinferences in that party's favor. Id. at 255; Tolan v. Cotton,572 U.S. 650, 660 (2014). However, the “mere existence ofa scintilla of evidence in support of the” nonmoving partyis not sufficient to avoid summary judgment. Anderson, 477U.S. at 252. “There must be evidence on which the jury couldreasonably find for the [nonmoving party].” Id. The inquiry,therefore, “asks whether reasonable jurors could find by apreponderance of the evidence that the” nonmoving party isentitled to a verdict. Id.II. BACKGROUND*3 Montgomery, who is Black, alleges that he was aUnion member covered by a collective bargaining agreement(“CBA”) and that he was employed as an electrician by Contion the Federal Courthouse project in downtown Nashville,from March 3, 2021 until he was wrongfully terminatedon May 26, 2021. (Doc. No. 52 1.) He alleges thathe was terminated immediately after he made a verbalgrievance against a foreman, Jimmy Allen. (Id. ¶¶ 2, 109–10.)Montgomery alleges that Allen had “an ongoing pattern ofbullying and harassing union employees,” making “raciallyinsensitive statements praising the KKK,” and “blatantlydisrespect[ing] Montgomery.” (Id. at 2.)Montgomery reported a verbal altercation with Allen to“NJACT [Joint Apprenticeship and Training Committee]director Stephen Hall.” (Id.) Hall asked Montgomery if hewanted to be moved to a different work site. Montgomeryobjected that he should not be the one moved; he wanted Allento be reprimanded. Hall called Conti's Director of Operationsfor Nashville, Todd Roberts. Roberts allegedly told Hall thatthe Federal Courthouse project was nearing completion, thatAllen's “experience was needed at the courthouse to completethe project,” and that Conti “could not afford to disciplineAllen prior to the project deadline.” (Id.) Montgomery allegesthat “Roberts chose to terminate Montgomery's contractagainst his will.” (Id. at 2–3.) Based on these actions,Montgomery alleges that he was terminated illegally, withoutjust cause and in violation of the CBA. He asserts racediscrimination and retaliation claims under Title VII and §1981 against Conti and a race discrimination claim against theUnion under § 1981. (Id. at 24–30.)Montgomery filed a discrimination complaint with theTennessee Human Rights Commission and EEOC in May2021 and received his Notice of Right to Sue in September2023. (See Doc. No. 1-1.)
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3Following contentious discovery and motion practice, theUnion now seeks summary judgment on the single § 1981claim against it on the grounds that (1) the actions ofStephen Hall, as an agent of the NJACT cannot be attributedto the Union; (2) Montgomery did not bring his requeststo file a race-related grievance against Conti to Unionrepresentatives within the time limit set forth in the CBAfor filing grievances; and (3) Montgomery has no evidencethat Hall or any Union representative was motivated bydiscriminatory animus against Montgomery. (See generallyDoc. No. 90.)The R&R, after a comprehensive review of Montgomery'sarguments in opposition to the Union's motion, the evidencein the record, and the applicable legal standards, recommendsthat the Union's motion be granted. The R&R specificallyfinds that (1) the NJATC is an independent legal entity, andthe plaintiff has not presented any evidence suggesting thatHall, as assistant director of the NJACT, acted as an agentof the Union under ordinary common-law agency principles;(2) Montgomery brought his complaints about Conti to Unionrepresentatives long after the ten-day deadline for doingso set forth in the CBA, such that their failure to pursuethe grievance cannot be deemed discriminatory; and (3) theplaintiff has presented no evidence, direct or circumstantial,that would permit a reasonable jury to find that Hall or theUnion representatives were motivated by a discriminatoryanimus. (Doc. No. 119 at 10–11.)Conti seeks summary judgment on all claims against it aswell. (Doc. No. 96.) It argues that (1) the plaintiff fails topresent evidence sufficient to establish the existence of ahostile work environment; (2) the discrimination claims underboth Title VII and § 1981 fail because the plaintiff lacksevidence of disparate treatment; and (3) Conti is entitledto summary judgment on the retaliation claims under bothstatutes because (a) Montgomery lacks sufficient evidence toestablish a causal connection between his protected activityand any adverse employment action by Conti on May 26,2021 or anytime after that, and (b) he cannot show that Conti'slegitimate, non-retaliatory reasons for laying off the plaintiffare pretextual. (See generally Doc. No. 97.)*4 Based on an equally thorough review of the factualsupport for Conti's motion, the plaintiff's countervailingevidence, and the applicable law, the R&R recommends thatConti's motion be granted in part. Specifically, it recommendssummary judgment for Conti on the plaintiff's discriminationclaims (under both Title VII and § 1981) arising fromhis termination—which Conti characterized as a layoff—based on the plaintiff's failure to show that Conti's profferedlegitimate, non-discriminatory reasons for his termination/layoff are pretext for discrimination. (Doc. No. 119 at 18.)The R&R recommends summary judgment on the plaintiff'shostile work environment claim based on the plaintiff's failureto allege facts showing that he was subjected to an objectivelyhostile work environment. (Id. at 19–20.) Regarding theplaintiff's retaliation claim, however, the R&R finds thatthe plaintiff has presented sufficient evidence to state aprima facie case, including sufficient evidence from which areasonable jury could draw the inference that the plaintiff'sposition was terminated because he engaged in protectedactivity, and sufficient evidence that Conti's proffered reasonsfor laying him off are pretextual. (Id. at 21–22.) However,the R&R recommends that the plaintiff's retaliation claimbased on Conti's allegedly interfering with Montgomery'ssubsequent employment opportunities or his relationship withthe Union be dismissed for lack of evidence. (Id. at 23.)Both Montgomery and Conti have filed Objections to theR&R (Doc. Nos. 123, 125), and the Union and Conti filedResponses to the plaintiff's Objections (Doc. Nos. 126, 127).III. DISCUSSIONA. The Union's Motion for Summary JudgmentMontgomery objects to the recommendation that the Union'smotion for summary judgment on the § 1981 claim against itbe granted. He contends that the R&R erroneously concludesthat Hall, as NJACT assistant director, was not acting as anagent for the Union and that Hall failed to inform the plaintiffof his right to fair representation, which would have includedtelling him he had only ten days to bring a grievance againstConti. (Doc. No. 123 at 4–5.) The Union filed a Response tothe plaintiff's Objections, arguing that (1) the plaintiff fails tospecify the portions of the R&R to which he objects; (2) theplaintiff fails to identify any evidence that creates a materialfactual dispute; (3) the plaintiff cites non-existent cases andmisrepresents the factual record; and (4) the plaintiff cannotestablish the necessary elements of his claim. (See Doc. No.126 at 1–2.)The court finds on de novo review that the Union is entitledto summary judgment. To establish a race discriminationclaim against a union that does not directly employ theplaintiff, premised on the failure to file a grievance, a plaintifftypically must show that “(1) the employer violated thecollective bargaining agreement with respect to plaintiff; (2)
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4the union permitted the violation to go unrepaired, therebybreaching the union's duty of fair representation; and (3) theunion's actions were motivated by discriminatory animus.”Wimpye v. Int'l Ass'n of Machinists & Aerospace Workers,AFL-CIO/CLC, Loc. Lodge 1943, No. 1:11-cv-845, 2012WL 1340363, at *3 (S.D. Ohio Apr. 17, 2012) (citing Yorkv. AT & T Co., 95 F.3d 948, 955–56 (10th Cir. 1996)),report and recommendation adopted, No. C-1-11-845, 2012WL 3070814 (S.D. Ohio July 30, 2012). “The duty of fairrepresentation does not require that a union fully pursue everygrievance filed,” and “a union's decision not to pursue agrievance, based on thorough investigation of the employee'scomplaint and a reasonable conclusion that the complaintdoes not merit further use of the grievance procedure, doesnot necessarily violate the union's duty of fair representation”Driver v. U.S. Postal Serv., Inc., 328 F.3d 863, 869 (6thCir. 2003) (citing Williams v. Molpus, 171 F.3d 360, 366–67 (6th Cir .1999) (“[A] union does not have to process agrievance that it deems lacks merit, as long as it makes thatdetermination in good faith.”)).The Magistrate Judge found that the plaintiff's claim againstthe Union failed on three fronts: (1) Montgomery failed toshow that Stephen Hall acted as an agent of the Union; (2)Montgomery brought his complaints about Conti to actualUnion representatives long after the expiration of the ten-day deadline for doing so set forth in the CBA; and (3)Montgomery presented no evidence that Hall or the Unionrepresentatives were motivated by a discriminatory animus.The plaintiff has failed to show that any of these conclusionswas erroneous as a matter of fact or law.*5 First, as the Union points out, several of the plaintiff'scase citations are simply non-existent.2 And those that doexist either do not support the proposition for which theplaintiff cites them or are otherwise irrelevant. Regardless, theplaintiff has failed to present any facts showing that StephenHall, as assistant director of the NJATC, acted as an agentof the Union or was directed by the Union in his dealingswith the plaintiff, based on ordinary principles of agencylaw. Accord NLRB v. Int'l Bhd. of Elec. Workers, Local 429,514 F.3d 646, 650–51 (6th Cir. 2008) (reversing NLRB'sdetermination that the JATC acted as an agent for the unionunder “common law agency principles,” because “NLRB didnot discuss or apply principles of agency law in its decision”);Int'l Bhd. of Elec. Workers, Local 429, Case 26-CB-4240,357 NLRB 332, 333 (2011) (following remand by the SixthCircuit, finding that an agency relationship existed based onrecord evidence that the actions taken by the JATC weredirected by union officials and agents and that the union-appointed members of the committee did not act as trusteesbut acted to “advance only union interests”). Consequently,any action or inaction by Hall cannot be attributed tothe Union, for purposes of the plaintiff's discriminationclaim against the Union. More importantly, aside from rankspeculation, the plaintiff presents no evidence, circumstantialor direct, from which racial animus on the part of Hall or anyactual agent of the Union could be inferred.Consequently, the court will accept the recommendationthat the Union's Motion for Summary Judgment be granted,overrule the plaintiff's objections, and grant the Union'smotion.B. Conti's Motion for Summary Judgment1. The Plaintiff's Objectionsa) Hostile Work Environment ClaimThe plaintiff objects to the recommendation that Conti'smotion be granted with respect to his discrimination andhostile work environment claims. First, he refutes what hecharacterizes as the R&R's finding that he “conceded” hishostile work environment claims, and he maintains that thefacts establish that a “Conti Supervisor racially harassed andcreated a hostile environment for him as well as other ContiCorp employees.” (Doc. No. 123 at 9.) Second, he insiststhat the Magistrate Judge erred in failing to consider theDeclaration and deposition testimony of third-party witnessJohn DeLaFuente which, the plaintiff claims, create a materialfactual dispute that should preclude summary judgment as tothis claim. (Id. at 9–10.) He also argues that Jimmy Allen'sacts, because he was a supervisor, can be attributed to Conti.(Id. at 13.)Conti argues in its Response that nothing in the recordindicates that the Magistrate Judge overlooked Delafuente'sDeclaration, that the Declaration has “zero evidentiaryvalue given that Plaintiff deposed Mr. DeLaFuente ... afterPlaintiff produced the declaration,” and, moreover, that theDeclaration is “so vague and self-serving that it has nomeaningful evidentiary value and certainly does not helpestablish Plaintiff's hostile work environment claim.” (Doc.No. 127 at 2–3.)
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5As set forth above, the Magistrate Judge concluded that theplaintiff failed to present facts from which a reasonable jurycould conclude that he suffered a hostile work environment.To be clear, although Conti argued that the plaintiff had“conceded” his hostile work environment claim (see Doc. No.97 at 16), the Magistrate Judge did not make that finding andconsidered the claim on its merits (see Doc. No. 119 at 18–19). The plaintiff's other Objections are also without merit.*6 To establish a hostile work environment claim, a plaintiffmust establish that “(1) [he] was a member of a protectedclass; (2) [he] was subjected to unwelcome ... harassment;(3) the harassment complained of was based on [race];(4) the charged [racial] harassment created a hostile workenvironment; and (5) the employer is liable.” Schlosser v.VRHabilis, LLC, 113 F.4th 674, 683 (6th Cir. 2024) (quotingRandolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 733(6th Cir. 2006)).For the fourth element, a hostile work environment occurs“[w]hen the workplace is permeated with discriminatoryintimidation, ridicule, and insult ... that is sufficiently severeor pervasive to alter the conditions of the victim's employmentand create an abusive working environment.” Id. (internalquotation marks omitted) (quoting Harris v. Forklift Sys.,Inc., 510 U.S. 17, 21 (1993)). To make this showing, theplaintiff must show that the conduct complained of wasobjectively “so severe or pervasive as to constitute a hostileor abusive working environment” to a reasonable personand, subjectively perceived as such by the victim. Id. at687 (citations omitted). “As part of this evaluation, [thecourt] must consider the ‘totality of the circumstances,’rather than each event complained of in isolation.” Id.(quoting Randolph, 453 F.3d at 732). Specifically, the courtmust consider “the frequency of the discriminatory conduct;its severity; whether it [was] physically threatening orhumiliating, or a mere offensive utterance; and whether itunreasonably interfere[d] with an employee's performance.”Randolph, 453 F.3d at 733 (quoting Harris, 510 U.S. at 23).“[S]imple teasing, offhand comments, and isolated incidents(unless extremely serious) will not amount to discriminatorychanges in the terms and conditions of employment.” Id.(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788(1998)).In this case, the plaintiff testified that he experienced threeinstances of racist comments while working for Conti, all byJimmy Allen. (Doc. No. 97-1 at 23–27, Montgomery Dep.86–89.) The first incident involved an argument betweenAllen and Montgomery about the role and the history of theKKK, shortly after the plaintiff began working for Conti,with Allen defending the KKK as having “policed bad peopleand restored order to the South during the Reconstructionera.” (Doc. No. 52 at 2; Doc. No. 97-1 at 26, MontgomeryDep. 89.) Allen was apparently not a supervisor at thetime, and the plaintiff did not contemporaneously reportthe altercation to any Conti supervisor. The second incidentdid not involve the plaintiff directly. He simply overheardAllen and other Conti employees joke about whipping andbeating anyone who voted for liberal politicians and theliberal politicians themselves, including Joe Biden, KamalaHarris, Nancy Pelosi, the Clintons, and Barack Obama. (Doc.No. 52 27; Doc. No. 97-1 at 239, Montgomery Dep.86.) The third instance took place the morning of May26, 2021, by which time Allen was the foreman for theFederal Courthouse project, which the plaintiff did reportto Conti. (See Doc. No. 97-4, at 6.) The plaintiff testifiedthat Allen humiliated him and asked him if he was highon crack in front of other workers and told him to movefaster and, more specifically, to run down an unsafe stairway.The plaintiff refused and accused Allen of being racist,based on Allen's “prior statements” and how Allen treatedMontgomery generally. (Doc. No. 52 67; Doc. No. 97-1 at45–46; Montgomery Dep. 162–63.)*7 The first incident, though Allen's position wasobjectively offensive, was not severe. It did not involvephysically threatening conduct, and it was an isolatedincident. The second incident did not overtly involve raceat all; instead, it involved party politics. Although theplaintiff perceived it as race-related, it consisted of offhandcomments that were not directed to the plaintiff. The plaintiffsubjectively perceived the third incident as race-based as well,but the plaintiff admits that he was the one who brought upthe issue of racism, and his perception that it was race-basedarose from his prior interactions with Allen and his beliefthat Allen is racist. Regardless, these three incidents consistedof offensive statements alone, and such incidents did notoccur frequently or pervasively. Applying the totality of thecircumstances test, the court finds that the three incidentsabout which the plaintiff complains were objectively notsufficiently “severe or pervasive” to create a hostile workenvironment.On this basis, the court agrees that Conti is entitledto summary judgment on the plaintiff's hostile workenvironment claim. The plaintiff's objection regarding Conti'streatment of a different employee, John DeLaFuente, is
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6simply beside the point. The question is whether Montgomeryexperienced a racially hostile work environment. During hisdeposition, he described only the three incidents discussedabove in support of his claim. The fact that DeLaFuente alsoallegedly suffered harassment by Allen that he perceived asrace-based has no bearing on Montgomery's claim.3b) Race Discrimination ClaimThe Magistrate Judge concluded that the plaintiff's racediscrimination claims under Title VII and § 1981 failedbecause, even assuming that Montgomery could establish aprima facie case of discrimination, he failed to show thatthe defendant's proffered reason for its action was pretextfor discrimination, under the burden-shifting frameworkestablished by McDonnell Douglas Corp. v. Green, 411 U.S.792, 802 (1973). (See Doc. No. 119 at 17–18.)The plaintiff objects that the evidence established thatAllen targeted the plaintiff, “forc[ing] him to run asa form of discipline, while white employees who areinexperienced or slow were never forced to run downstairs aspunishment.” (Doc. No. 123 at 15.) The adverse employmentaction in this case is not Allen's treatment of the plaintiff,but Conti's termination of the plaintiff. In the context ofaddressing the R&R's recommendation that the claim againstthe Union be dismissed, the plaintiff also argues that pretextis established by the fact that “Conti Corp's project managerKevin Och ... lies about Montgomery requesting a layoffso he could transfer to another contractor,” while ToddRoberts “claims that the plaintiff was laid off due to lack ofwork.” (Doc. No. 123 at 6.) The plaintiff fails to present actualevidence to support this purported discrepancy.Regardless, as the Magistrate Judge found, the evidenceshows that Montgomery refused to return to work with Allen—even temporarily while Conti investigated his complaint.Because the Federal Courthouse project was winding down,Conti laid off Montgomery so that he could go workfor a different contractor. (See Doc. No. 97-4, ThompsonDecl. 6; see also Doc. No. 97-4 at 11 (Conti Notice ofTermination showing “Layoff–Reduction in Force” as reasonfor termination).) Conti expressly told Montgomery that hewas not barred from working for Conti on other projects.(Doc. No. 97-1 at 17, Montgomery Dep. 58; see also Doc.No. 97-4, Thompson Decl. 9.) The court agrees with theMagistrate Judge that Conti has met its burden of proving thatit had no racial or retaliatory animus related to Montgomery'slayoff, and the plaintiff has not satisfied his burden of provingpretext. The court, therefore, will accept the recommendationthat the plaintiff's discrimination claims be dismissed.c) Retaliation Claim*8 Part of the plaintiff's retaliation claim against Conti isbased on allegations that Conti targeted or blackballed himafter his termination, speculating that his termination fromother jobs and being denied acceptance to an apprenticeshipschool were somehow Conti's fault. The Magistrate Judgefinds that this part of the plaintiff's retaliation claim fails asa matter of law for lack of evidence. The plaintiff has notobjected to that finding, and the court will accept it withoutfurther discussion.2. Conti's ObjectionsThe plaintiff also claims that his termination from Conti wasin retaliation for his having submitted a complaint aboutAllen. The R&R recommends that summary judgment as tothis claim be denied. Specifically, the Magistrate Judge foundthat the plaintiff successfully made out a prima facie caseof retaliation, largely based on the timing of his terminationin relation to his complaint about Allen, and that there wassufficient evidence from which a jury could find that Conti'sreasons for its action (laying off the plaintiff) were pretextfor retaliation. (See Doc. No. 119 at 23 (“The decision toterminate Plaintiff's work on the job site appears to be merelya convenient excuse to terminate his employment becausehe made the complaint. While the evidence regarding hisdamages may be limited based on mitigation, that does notdefeat his claim for retaliation related to the termination of hisemployment on the courthouse job site.”).) Conti objects thatthe evidence in the record does not support this conclusion.(Doc. No. 128.) The plaintiff responds that Conti's witnessesare not credible and that the record does not support Conti'sposition (Doc. No. 128).4 Upon de novo review of this claim,the court will sustain Conti's objection.The plaintiff testified that, immediately after his altercationwith Allen on May 26, 2021, he left the job site.(Doc. No. 97-1 at 46, Montgomery Dep. 163.) Before heleft the courthouse, he called Stephen Hall, the NJACTrepresentative, and told him that Allen was making “racistcomments” and generally insulting him, “talking to [him]crazy, trying to make [him] run up and down the stairs.” (Id.
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7at 48, Montgomery Dep. 166.) Hall told him to come downand talk about it. (Id.) So Montgomery went to Hall's officeand told him again what happened. Hall called Todd Roberts.While the plaintiff could hear Hall's side of the conversation,he did not remember hearing what Roberts said. (Id. at 48–50, Montgomery Dep. 166–68.)The plaintiff claims that, ordinarily, “they're supposed tocall the union steward to mediate” a dispute like the onehe had with Allen, but that did not happen. (Id. at 50, 51,Montgomery Dep. 168, 171.) Montgomery confirmed that,until the issue was resolved, he would not have gone backto work with Allen. (Id. at 51,53–54, Montgomery Dep. 171,173–74.) He would have been “open to the idea,” but notuntil “the issue was resolved.” (Id. at 54, Montgomery Dep.174.) He refused to work with Allen as his supervisor unlessAllen sincerely apologized and showed remorse. (Id. at 55,Montgomery Dep. 175.) Conti did not give him the optionto transfer to a different job site, and Montgomery does notknow whether there was any discussion between the Unionand Conti about transferring him to a different site. (Id. at 52,Montgomery Dep. 172.)*9 According to Caitlynn Thompson, Conti's SafetyManager at the Federal Courthouse project at the time, shespoke on the phone with Montgomery at 12:19 p.m. on May26, 2021, the day of his altercation with Allen. (Doc. No. 97-4,Thompson Decl. ¶¶ 4–5.) This conversation was “part of [her]investigation into Mr. Montgomery's complaint about theincident.” (Id. 5.) According to Thompson, following thisincident, Montgomery “chose to be laid off from Conti so hecould work for a different contractor.” (Id. 6 & Ex. B, Doc.No. 97-4 at 8.) Conti documented Montgomery's departureas a “layoff.” (Doc No. 97-4 at 11.) Following Thompson'sinvestigation, Conti directed Allen to take diversity andinclusion training. (Id. 7.) Thompson informed Montgomeryby text message on June 4, 2021 that he was not permanentlydischarged from Conti and was eligible for rehire. (Id. 9 &Ex. C, Doc. No. 97-4 at 11.)According to Conti, work on the Federal Courthouse projectwas winding down by the spring of 2021, and Conti laid offother electrical workers around the same time as the plaintiff,including one White electrical worker in the plaintiff's sameclassification the very next day. (Doc. No. 97-5, PodraskyDecl. 8 & Ex. A, Doc. No. 97-5 at 6–7.)Conti argues that the plaintiff's refusal to return to work withAllen as his supervisor until their issue was resolved andAllen apologized was “tantamount to Plaintiff refusing towork at the Federal Courthouse project because Allen wasforeman at the time, and it was unreasonable for Plaintiff toexpect that the issues would be resolved immediately.” (Doc.No. 97 at 12.) It contends that Montgomery was laid offbecause he would not go back to work at the courthouse,and he and the Union reached an agreement for him to workfor a different contractor. He was referred for a different jobthe next day and began working for a different contractorwithin a week after leaving Conti. (See id. at 13; see also Doc.No. 97-1 at 57, Montgomery Dep. 178; Doc. No. 97-6 at 6,Montgomery 2nd Dep. 19.)When a retaliation claim is based on circumstantialevidence, courts apply the McDonnell Douglas burden-shifting framework to analyze the claim. See, e.g., Kenneyv. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir. 2020).5Conti does not object to the R&R's finding that the plaintiffhas established a prima facie claim of retaliation, but it arguesthat there is “no reasonable dispute that Conti had legitimate,non-discriminatory and non-retaliatory reasons for laying offPlaintiff” and that Montgomery cannot rebut its reasons. Inparticular, “Plaintiff would not go back to work with Allen,”who was important to the completion of the project, and“the Federal Courthouse job was winding down with layoffsoccurring regularly, so Conti laid off Plaintiff to allow himto go work for a different contractor (which Plaintiff endedup doing exactly that just mere days later).” (Doc. No. 97 at24.) Montgomery argues in response that Conti's claim that hewas “transferred due to lack of work” constitutes “pretext,”because other electricians and apprentices continued to workat the courthouse after his assignment was terminated. (Doc.No. 103 at 4–5.)6The R&R rejected Conti's argument, finding, first, thatMontgomery's “desire not to work with a person he bothbelieved to be racist and had reported to the company asengaging in discriminatory conduct is not unreasonable” andthat Montgomery should not have had to choose to continueto work under the supervision of such a person or lose hisjob. (Doc. No. 119 at 23.) And second, the R&R found thatthe evidence that the courthouse work was winding downwas “less than compelling,” because Conti did not make thedecision to lay off the plaintiff until after he complained. (Id.)*10 A plaintiff “can show pretext in three interrelated ways:(1) that the proffered reason[ ] had no basis in fact, (2) that theproffered reason[ ] did not actually motivate the employer'saction, or (3) that [the proffered reason was] insufficient to
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8motivate the employer's action.” Jackson v. Genesee Cnty.Rd. Comm'n, 999 F.3d 333, 350–51 (6th Cir. 2021) (quotingChen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)).“At its core, ‘[p]retext is a commonsense inquiry: did theemployer fire the employee for the stated reason or not?’ ”Id. at 351 (quoting Chen, 580 F.3d at 400 n.4). The SixthCircuit has repeatedly cautioned that the plaintiff's “burden isnot heavy” and that “summary judgment is warranted only ifno reasonable juror could conclude that the employer's offeredreason was pretextual.” Id. (collecting cases). “Where ...there are two reasonable interpretations of the evidence, [thecourt] must allow the jury to resolve the issue of whether theevidence [the plaintiff] cites is sufficient evidence to concludethat [the defendant] retaliated against [him] for opposing anunlawful employment practice.” Id. (citation omitted).Here, the defendant articulated a legitimate non-discriminatory reason for its action, meaning that the burdenof production shifts back to Montgomery to demonstratethat Conti's proffered reason was a mere pretext fordiscrimination. Kenney, 965 F.3d at 448. It is undisputed thatMontgomery refused to go back to work with Allen unlessAllen apologized and was remorseful.7 Moreover, expectingimmediate resolution of his complaint against a supervisorwho was important to the project was clearly unreasonableon Montgomery's part, and the “inability to get along witha supervisor is a legitimate reason for discharge.” Kurtzmanv. Univ. of Cincinnati, No. 1:09-CV-580-HJW, 2012 WL1805486, at *13 (S.D. Ohio May 17, 2012); see also Arnoldv. Marous Bros. Constr., Inc., 211 F. App'x 377, 381 (6thCir. Nov.17, 2006) (observing that an employee's refusal ofa work order was a legitimate, non-discriminatory reasonfor the employer to force the employee to resign); Allen v.Henry Ford Health Sys., No. 08-14106, 2010 WL 525059,at *11 (E.D. Mich. Feb. 8, 2010) (“Forcing an employee toresign when she questions and refuses a supervisor's workassignment is a legitimate, nondiscriminatory reason for thatemployment action.” (citing Arnold)). Montgomery also didnot present actual evidence to rebut the defendant's evidencethat it was winding down the courthouse project and regularlylaying off electricians. And it is undisputed that Montgomerywas referred for work with a different contractor the next dayand was back at work within a week.The plaintiff has not shown that Conti's proffered reasonsfor its action had no basis in fact, did not actually motivatethe action, or were insufficient to motivate it. Jackson, 999F.3d at 350–51. Under the circumstances, no reasonable jurycould find that Conti's reasons for laying off the plaintiff werenot its real reasons and, instead, were pretext for retaliatingagainst Montgomery for lodging a complaint against Allen.In light of Conti's need to investigate Montgomery's claimsprior to taking any disciplinary action against Allen, it seemsclear that Conti did not discharge the plaintiff because of hiscomplaint against Allen but, instead, because of his refusalto work with Allen, coupled with the fact that he would haveeventually been laid off anyway, even if not immediately.Because the plaintiff has not presented evidence that wouldpermit a reasonable jury to conclude that Conti's reasons forlaying off the plaintiff were pretext for retaliation, Conti isentitled to summary judgment on the plaintiff's retaliationclaim.IV. CONCLUSION AND ORDER*11 For the reasons set forth herein, plaintiff JeremieMontgomery's Objections to the R&R (Doc. No. 123) will beoverruled; Conti's “Partial Objection” (Doc. No. 125), will besustained; the R&R will be accepted in part and rejected inpart; and both Motions for Summary Judgment (Doc. Nos. 89,96) will be granted in their entirety.An appropriate Order is filed herewith.All CitationsSlip Copy, 2025 WL 3188737Footnotes1The original Complaint (Doc. No. 1) also asserted a claim under § 301 of the Labor Management RelationsAct (“LMRA”), 29 U.S.C. § 183, for breach of the collective bargaining agreement between Conti and theUnion. In an earlier phase of this litigation, the court accepted the Magistrate Judge's recommendation todismiss the LMRA claim against both defendants as time-barred and to dismiss the Title VII claim and the
JEREMIE MONTGOMERY, Plaintiff, v. INTERNATIONAL..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.9§ 1981 retaliation claim against the Union for failure to state a claim for which relief may be granted. (Doc.Nos. 41, 42.) The Amended Complaint sets forth a § 1981 discrimination claim against the Union and TitleVII and § 1981 discrimination and retaliation claims against Conti.2These include the plaintiff's references to Operating Engineers Local 406 JATC, 271 NLRB 1396 (1984)(which the plaintiff claims held a “union accountable when its JATC expelled apprentices and impactedreferrals”); IBEW Local 212 (Cincinnati JATC), 331 NLRB 152 (2000) (which the plaintiff says held that aunion “was liable when the JATC discriminated in referrals, even though the JATC was partly independent”);and EEOC v. Ironworkers Local 28, 2012 WL 4339035 (S.D.N.Y. 2012) (which the plaintiff says held thata “union could not avoid liability simply because complaints were made to a joint training committee, notdirectly to a steward”). (See Doc. No. 124 at 3.) The plaintiff's citations are incorrect, and the court has notlocated these cases elsewhere. It is unclear whether the plaintiff relied on AI for drafting assistance, whichmay have resulted in “hallucinations.”3The court notes that DeLaFuente claims to have been subjected to “racist” statements by Allen, but he doesnot describe them, though he does claim that Allen harassed him about his age and medical condition.(Doc. No. 103-2 ¶¶ 9–10.) DeLaFuente's “belief” that Allen's harassment was “racially motivated” is entirelyconclusory and unsupported by actual facts.4Montgomery also argues in his Response that he has been “blacklisted” by both Conti and the Union “becausehe refuses to compromise his position on racism and tolerate workplace bullying,” as a result of which “theadverse actions of both defendants are continuous and ongoing.” (Doc. No. 128 at 2–3.) As noted above,however, Montgomery's own Objections do not address the R&R's recommendation that summary judgmentfor Conti be granted on Montgomery's retaliation claim based on events that occurred after his termination,for lack of evidence. The plaintiff admitted during his deposition that he had no evidence, aside from hisown speculation, that Conti or the Union had interfered in his subsequent employment or the denial of hisapplication to the NJACT “school” for an apprenticeship. (See Doc. No. 97-1 at 8–12, Montgomery Dep. 48–52.)5The plaintiff does not contend that the claim is supported by direct evidence.6As set forth above, he apparently also contends that Conti has offered conflicting reasons for the action, buthe has not proffered actual evidence of this conflict.7The plaintiff argues in his Response to Conti's Partial Objection that he did not refuse to return to work, buthe also reaffirms that he refused to return to work unless his problems with Allen were resolved. (Doc. No.128 at 8–10.)End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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