NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0040n.06 No. 10-3985 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

PAUL L . J ONES, Plaintiff-Appellant,

v. WES TERN RESERVE TRANSI T AUTHO RI TY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT CO U RT F O R THE NORTHERN DI STRI CT OF OH I O

O P I N I O N

BEF ORE: MARTI

N, SUHRHEI

NRI CH, and COL E, Circuit J udg es. COL E, Circuit J u d ge. P aul J ones, a former bus driver for the Western Reserve Transit Authority (“WRTA”), filed suit ag ainst WR TA for what he claim s t o b e a violation of his civil rig hts. Contending that WR TA improperly terminated his employ ment, J ones complains of a mix ture of state and fede ral rac e and disability discrimination law violations. WR TA, in turn, arg ues that J ones’s poor work rec ord, an incident in which he came close to braw ling with another person while on duty , and his subsequent inability to complete ang er manag ement training nece ssitated its decision. Be cause the district court did not abus e i t s d i s cr etion in deny ing J ones’s proce dural motions, and J ones fails to produce any evidenc e of prete x t in WR TA’s rea son for its decision, we AFF I RM the judgments of the district court. I . BA CKGROUNDNo. 10-3985

Jones v . W

RTA WR TA employ ed J ones as a bus driver in Young stown, Ohio, since 1987, and as a full-time driver since 1990. During his tenure , he had a number of rela tively minor inciden t s re q u i ring disciplinary action. I n J anuar y 2006, WR TA disciplined J ones, who is black, for repe atedly ref err ing to a co-w orker as “whitey .” WR TA informed J ones that if he exhibi ted simil ar conduct in the future, he would be subje ct to “disciplinary action, which ma

y include ter

mination of employ

ment.” On April 25, 2008, J ones opera ted a WR TA bus and attempted to ma ke a stop in front of a Giant Eag le g roce ry store. A pick-up truck parke d in front of the stop obstructed J ones’s approa ch. J ones beg an y elling at the truck’s owner to move, and the two men beg an to arg ue, coming perilously close to fisticuffs. J ones eventua lly drove on, though not befor e calling the truck’s owner a “punk,” “punk-ass,” and “motherf ucker ,” and stating that once his shift was over, J ones would fin d t h e truck’s owner and assault him. Unfortuna tely for J ones, his bus’s video sy stem caug ht all of this on tape. F ollowing the inc ident, Giant Eag le contac ted WRTA and banned Jones from the pr operty

. WR TA did not immediately terminate J ones’s employ . Rather, it g ave J ones the option of completing an ang er manag ement assessment. WR TA informed J ones that he would be fired if he did not “satisfa ctorily complete all re q u i reme nts under the assessment.” There is no dispute that J ones rec eived this information. For the next month, J ones repe atedly met with a counselor, and WR TA rec eived updates that J ones “continue[d] to participa te in an ang er manag ement course . . . .” On Aug ust 11, 2008, the third-par ty administrator responsible for J ones’s trea tment notified WR TA that “Jones no-showed to a J uly 8, 2008 ang er m an ageme nt g roup session.” Multipl e attempts to contac t J ones proved unsucce ssful, and the administrator made clea r that “[a]t this time, Mr. J ones is not in compliance with the rec ommendations set forth by his counselor.” Another letter, - 2 -No. 10-3985

Jones v . W

RTA written three day s later, stated that J ones knew that “[t] here wer e to be 15 consec utive sessions held

once a wee k.” Acting on this information, WR TA notified J ones that due to his failure to attend the J uly 8 g roup t h er apy meeting , he was “immediately suspended pending a discipline hear ing to consider termination of [hi s] employ ment.” For his part, J ones insists that any continuing ang er manag ement sessions wer e complete ly optional. WR TA no t i fi ed J ones that pursuant to its decision at the hear ing, his employ ment with WR TA was immediately terminated. WR TA’s Direc tor of Transpor tation wrote to J ones that “[i] t is unfortunate that, g iven th e o p p o rtunity to maintain y our employ ment with WR TA, y ou did not honor y our ag ree ment with WR TA and a bide by the re quirements” pr eviously set forth. J ones sued WR TA, asser

ting that WR TA’s decision was rac ial or disability discrimination in violation of (1) Title VI I , 42 U.S.C. § 2000e-2; (2) Ohio Revised Code §§ 4112.02 and 4112.99; and (3) Ohio public policy . He a lso asserted a claim of reta liation unde r 42 U.S.C. § 1981. J ones later amende d his complaint, the only chang e being the repla ceme nt of the Ohio public policy claim with a claim under

the Amer icans with Disabilities Act (“ ADA” ). I n J anuar y of 2010, J ones filed a motion to amend his first amende d complaint, alleg ing that he re ceive d information t hat t he counse ling pr og ram’s third- party administrator wa s “inextricably complicit in” his termination, which somehow g ave ri se to a brea ch of a fiduciar y duty owed to J ones. J ones additionally alleg ed state law contra ct and neg lige nce claims, arising from the contra ct that J ones signe d with WRTA to beg in his counseling pr og ram. Thr ee da y s later, Jones w ithdrew that motion, and the day afte r that, filed anothe r motion to amend his complaint to remove fe dera l claims, or, in the alterna

tive, to dismiss the complaint without prejudice

. The district c ourt denied

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RTA both motions. I t noted that dismiss al without prejudice would cause WR TA t o “suff er plain leg al prejudice , ” an d that amending the complaint would be im proper beca use t he “new evidence” that J ones cla ims gives r ise to additional claims had bee n known to J ones for close to three months. WR TA then moved for summary judgme nt in its favor

. The district court found that J ones neither suffer ed from a dis ability nor wa s reg arde d as suffe ring from a disability , that J ones could not show evidenc e indicating that WR TA’s rea son for his termination was prete x tual, and that J ones could not show any evidenc e of reta liation. I n light of this, the district g rante d WR TA’s motion for summary judgme nt. J ones filed a

timely notice of a

ppeal. I I . ANAL YSI S J ones contends that the district court err ed in three way s. First, the district court improperly denied his motion to dismiss his complaint without prejudice

. Next, the d i s trict court im proper ly denied his motion to amend his c omplaint to remove his f eder al claims. Finally , J ones arg ues, the district court err ed in g ranting summary judgme nt beca use there wer e g enuine is s u e s o f ma te rial fac t. We discuss eac h of these in turn. A. Jone s’s Motion to Dismiss W

ithout Prejudice J ones first arg

ues that the district court e rre d in its decision on F ebrua ry 26, 2010, deny ing J ones’s motion to dismiss his complaint without prejudice under Rule 41(a) (2) of the Fe dera l Rules of Civil Procedur e. We revie w a district court’s decision on a Rule 41(a) (2) motion for an abuse of discretion. DW

G Corp. v. Granada Inve stments, Inc. , 9 6 2 F. 2d 1201, 1202 (6th Cir. 1992). The district court ab u ses its discretion when it relies on err oneous finding s of fac t, applies the wrong

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RTA leg al standard, misapplies the corr ect leg al standard, or makes a clea r err or in judgme nt. Bridgeport Music, Inc. v. Universal-M CA Music Pub., Inc. , 583 F.3d 948, 953 (6th Cir. 2009) (citation omitted). Rule 41 g overns the dismiss al of civil actions, either voluntari l y o r i n v o luntarily

. Fe d. R. Civ. P. 41. Rule 41(a) (2) provides that if the plaintiff’s motion for voluntary dismiss al is not filed before t h e d ef

en d ant responds, or without the defe ndant’s consent, then the action may be dismiss ed “only by court order , on terms that the court considers proper .” Fe d. R. Civ. P. 41(a) (2). “[T] he purpose of Rule 41(a) (2) is to protec t the nonmovant

. . . from unfair trea tment.” Bridgeport Music Inc. , 583 F.3d at 953. I n deter mining whether WR TA would have been unfairly trea ted, we must look t o wh et h er WR TA “would suffe r plain leg al prejudice ” by dismiss ing the complaint without prejudice

. Id. (citations and internal quotation marks omitted). The mere prospec t of having to fac e a second lawsuit does not satisfy this standard. Id

. Rather, we must look at “the defe ndant’s eff ort and ex pense of prepa

ration for trial, excessive delay and lac k of di lige nce on the part of t he plaintiff i n prosec uting the action, insufficient explanation for the need to take a dismiss al, and whether a motion for summary judgme nt has been filed by the defe ndant.” Grove r by Grove r v. Eli Lill y and Co. , 33 F.3d 716, 718 (6th Cir. 1994) (c itations omi tted). Considering the re cord in this

case , the district court wa s sound in its discretion to deny J ones’s motion.

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RTA All but the last fac tor weig h in favor of WR TA. The docket indicates that prior to the filing 1 of this motion, WR TA’s counsel participa ted in a t el ep h o n e confe renc e, filed at least seven proce dural notices, and filed two substantive documents with the district court. Be tween the filing of the motion to dismiss and the district court’s decision, WR TA’s counsel filed an additional twelve proce dural notices and three substantive documents. J ones does not dispute this, but instead states that WR TA’s filing s are completed in nea rly all civil case s, and ar e not, by themselves, enoug h to satisfy this first factor. This arg ument is n o t wi thout merit, though it is not ultimately succe ssful. I f WR TA’s expended eff

orts could have been applied in a subsequent Ohio action, this fac tor would be J ones’s to claim. But, WR TA’s eff orts wer e calibra ted to defe nd ag ainst state and fede ral discrimination claims. As J ones’s own motion to dismiss alludes to bring ing suit in Ohio courts under neg lige nce, fiduciar y duty , and contra ct theories, and abandoning all fede ral claims that had been previously p re s ented, littl e to none of WR TA’s work could be salvag ed. See Rosenthal v. Bridgestone/Firestone, Inc

. , 217 F. App’ x 498, 502 (6th Cir. 2007) (upholding t he dis trict court’ s g rant o f a Rule 41(a) (2) motion to dismiss beca use much of the defe ndants’ eff ort and expense would be usef

ul in a subsequent state a ction).

The district court weig hed the final fa ct or, whether the defe ndant had filed a motion for 1 summary judgme nt, in favor of WR TA beca use WR TA had alre ady started prepa ring a motion for summary judgme nt. Be cause t h e o t h er fac tors all weig h soundly in WR TA’s favor , we need not rea ch the question of whether the prepa ration of a motion for summary judgme nt, as opposed to the filing of that motion, satisfies the last factor of the Grove r by Grove r test. - 6 -No. 10-3985

Jones v . W

RTA The district court also noted that WR TA had been required t o fi l e, on more than one

occa sion, documentation to re s o l ve discovery disputes, sug g esting that J ones was dilatory in prosec uting his action. Whil e the rec ord prior to the filing is not clea r on this point, J ones does not dispute the district court’s statements, arg uing only that his decision to delay taking depositions was perha ps strateg ic. Yet, the new information that allege d l y i n fo rm ed J ones’s decision to file the motion to dismiss was not new; it was made known t o h i m at a November meeting with WR TA. Rather than filing his motion to dismiss immediately , he waited three months, and eventua lly only filed the motion bec ause a looming discovery deadline was about to pass. This f actor , too, w eig hs ag ainst J ones. Finally , J ones expressed no clea r rea soning as to why the dismiss al was neede d. The motion, while lacking in clar ity , essentially conce des that his fede ral claims have no merit. I n fac t, the only substantive discussion supporting a g rant of the motion is that doing so “would be in the substantial interest of justice an d j udicial economy . . . .” Given the dear th of rea soning by J ones, the eff ort expended by WR TA in defe nding itself, and J ones’s dilatoriness, the district court in no way abused its discretion in deny ing Jones’s motion to dis miss. B. Jone s’s Motion for Leave to Ame nd His Complaint J ones further contends that the district court err ed in deny ing his motion for leave to amend his complaint under Rule 15(a) (2). Under Rule 15, a party may amend its pleading as a matter of

course within the timeframe stipulated in Rule 15(a) (1), or outside of that timeframe “only with the opposing party ’s written consent or the court’s leave .” Fe d. R. Civ. P. 15(a) (2). Gene rally , we revie w a district court’s denial of a motion for leave to amend a claim under Rule 15(a) for an abuse - 7 -No. 10-3985

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RTA of di scre tion. Pulte Homes, Inc. v. Laborers’ Intern. Union of North America , 648 F.3d 295, 304 (6th Cir. 2011)

. I f, howeve r, the district court denied leave “bec ause the amende d pleading would not withstand a motion to dismiss ,” we revie w that denial de novo. Id. (citation and quotation marks omitted). The district court did not make such an assessment , s o t h e former standard of revie w applies. L eave to amend should be fre ely g iven when justice require s. Foman v. Davis , 371 U.S. 178, 182 (1962) (citation and internal quotation marks omitted). A district court should g rant the motion “[i] f the underly ing fac ts or circ umstances relied upon by a plaintiff may be a prop er subject of relief

. . . .” Id

. But, undue delay , bad faith, dilatory motives, a failure to cure defic iencies by prior amendments, or futility weig h ag ainst the plaintiff. Id

. J ones asser ts in his motion that the fac tual predic ate f

or hi s new state law cla ims was discovere d via interrog atories pr oduced on January 14, 2010

. These interrog atories alleg edly show that Moore Counseling and Mediation Service s (“Moor e”) was involved in the termination decision, and that this “collusive” conduct g ives rise to

a fiduciar y duty claim. This arg umen t fa ils. WR TA informed J ones, at a case manag ement confe renc e on November 9, 2009, almost three months befor e J ones filed his motion for leave , that its decision to terminate his employ ment “wa s the result of his unsucce ssful completion of the ang er manag ement thera

py .” I n fac t, J ones knew about Moore’ s involvement even befor e that. On Aug ust 14, 2008, almost a y ear and a half befor e the filing, WR TA notified J ones that “Moore Counseling has notified WR TA that [J ones is] not in compliance with the rec ommendations of [hi s] Counselor.” J ones unduly delay ed the filing of his motion for leave ; any new claims he wanted to put forth could have be en made in his original f iling whe n he commenc ed the suit.

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RTA The recor d sug g ests that J ones’s motion for lea ve wa s made in bad faith. J ones attempted to strip his complaint of any fede ral claims when he attache d a proposed amende d complaint to his motion, alleg ing only a violation of Ohio discrimination law. Whil e we cannot be cer tain, there is

no rea son to believe that J ones was attempting any thing other than making the district court decline supplemental jurisdiction under 28 U.S.C. 1367(c) (3), whic h permits it to dis miss a case if it “has dismiss ed all claims over which it has orig inal jurisdiction

. . . .” I ndeed, it woul d b e a p ec u l iar proce eding if the district court wer e to continu e t o ex er cise jurisdiction over the pendent claims. J ones eff ectively asked the district court to dismiss his complaint and, if it did not, to g rant him the ability to do indirectly

what he c ould not do directly

. J ones’s delay alone provides us with enoug h to deter mine that the district court did not abuse it s d i s cr eti on in deny

ing J ones’s motion for leave to amend his complaint. The Supreme Court’s dictate in Foman require s district courts to permit leave to amend complaints in order for the plaintiff to have the oppor

tunity to have his cla ims heard on the merits. J ones’s stra teg ic dec isions to s trip the district court of

jurisdiction wer e surely not what the Supreme Court had in mind. See, e.g. , Syme

v. Rowt o n , 5 55 F. Supp. 33, 35 (D. Mont. 1982) (deny ing a motion to add nondiverse defe ndants when the pla intiffs’ primary motive was to defe at the jurisdiction of the district cour t). C. W RTA’s Motion for Summary Judgm ent J ones’s final arg ument is that the d i s t ri ct court err ed in g ranting WR TA’s motion for summary judgme nt. We revie w the district court’s g rant of summary judgme nt de novo. Blackm ore

v. Kalamazoo , 390 F.3d 890, 894-95 (6th Cir. 2004) (citation omitted). Summary judgme nt is proper when there is no g enuine issue of materia l fac t and the moving party , WR TA, is entitled to judgme nt - 9 -No. 10-3985

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RTA

as a matter of law

. Fe d

. R

. Civ. P. 56(c)

. WR TA bear s the initial burden of demonstrating the absenc e of g enuine issues o f m at er i al fac t. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). WR TA may satisfy this burden by offe ring aff irmative evidenc e that neg ates an element of eac h of J ones’s claims or, as it attempts to do here , by pointing to an absenc e of evidenc e to support the nonmoving party ’s claim. I f WR TA satisfies its burden, J ones must then set forth the specific fac ts showing that there is a g enuine issue for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256-57 (1986). I n evalua

ting the evidenc e, we draw all rea sonable infere nces in favor of J ones. Blackm ore , 390 F.3d at 895 (citing Matsushita Elec

. Co. v

. Zenith Radio Corp. , 475 U.S. 574, 587 (1986))

. A

mere scintilla of evidenc e in support of J ones’s position will be insufficient for his claims to survive summary judgme nt. Rather, there must be enoug h evidenc e such that the jury could rea sonably find for him. Anderson , 477 U.S. at 251. The district cour

t addre ssed ea ch of Jones’s ADA, state disability law, Title VI I , state ra ce discrimination law, and fede ral re taliation claims separ ately . We need not do the same here. Our revie w of eac h of thes e claims applies the familiar tripartite burden- shifting fra mework of McD onnell Douglas Co r

p . v. Gree n , 411 U.S. 792 (1973), beca use J ones produce s, at best, only indirect evidenc e of discrimination. See Smith v. Chrysler Corp. , 155 F.3d 799, 805 (6th Cir. 1998) (apply ing McD onnell Douglas to ADA claims wher e only indirect evidenc e is prese nted); Hedrick

v. W estern Reserv e Care System , 355 F.3d 444, 452 n. 4 (6 t h Cir. 2004) (noting that beca use the elements of an ADA claim and the Ohio handica p discrimination statute are identical, our analy sis of the ADA c laim resolves the state law cla im as well); McD onnell Douglas , 411 U.S. at 802-804 - 10 -No. 10-3985

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RTA (apply ing the fra

mework to Title VI I claims); Mitchell v. Toledo Hosp. , 964 F.2d 577, 582 (6th Cir. 1992) (apply ing McD onnell Douglas to claims of di scrimination under Ohio state l aw gen erally ); Amini v. Oberlin College , 440 F.3d 350, 358 (6th Cir. 2006) (apply ing the fra mework to 42 U.S.C. § 1981 reta liation claims). Under McD onnell Douglas , once the plaintiff establishes a prima fac ie

case of dis cr imination, the defe ndant must produce evidenc e of a leg itimate, non-discriminatory

rea son for its actions. McD onnell Dougl a s Corp. , 411 U.S. at 802-03. At that point, the pl aintiff may only preva il if he can s how, by a pre p o n d er an ce of the evidence, “that the l eg itimate rea sons offe red by the defe ndant wer e not its true rea sons, but wer e a prete x t for discrimination.” Mitchell , 964 F.2d a t 584 n.6 (citation omitted). Assuming, arguendo , that J ones is able to establish a prima fac ie case for eac h of his claims, he still cannot preva il. WR TA puts forth J o n es ’s p er formanc e rec ord, including the April 2008 incident, as well as his failure to complet e the ang er manag ement course , as leg itimate and nondiscriminatory rea sons for its decision to terminate J ones’s employ ment. J ones fails, howeve r, to produce any evidenc e that WR TA’s stated rea sons ar e p re t ex t u al. I n his response to WR TA’s motion for summary judgme nt, Jones notes only that his a ffidavit identified two white co-w orker s who alleg edly eng ag ed i n phy sical alterc ations while on duty , and that neither colleag ue was terminated or require d to underg o ang er manag ement counseling. But, as the di strict court noted, th e c ir c u ms ta n c es surrounding the white co-w orker s’ employ me n t s it u a ti o n s a r e w h o ll y u

n e xp la in e d

. J ones does not state that these colleagues had prior incidents, as he did, that would require ang er manag ement sessions. Rather, he only states t hat he believed that t h e co-w orker s wer e “involved

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RTA in separ ate phy sical altera tions while on duty for WR TA.” This alleg ation, without more, is simply not enoug h to cre ate a

g enuine issue of

materia l fac t. J ones al s o n o tes that WR TA should not have terminated his employ ment for missing the counseling sessions, beca use J ones believed the subsequent se ssions to be optional. W hether this is true is i rre levant. We have adopted the hone st-belief r ule, pre cluding any

inquiry as to whether the employ er’ s decision was corr ect or optimal. Michae l v. Caterpillar Fin. Svcs. Corp. , 496 F.3d 587, 598-99 (6th Cir. 2007). I t is only those employ ment decisions based on impermissible fac tors, such as a n employ ee’ s rac e or disability , that are actionable

. WR TA has provided a leg itimate and nondiscriminatory rea son for its decision to terminate J ones. J ones produce s insufficient evidenc e that would permit a rea so n ab l e j u ro r to believe that WR TA’s decision was prete x tual. The district court was there fore corr ect in g ranting WR TA’s motion for summary

judgme nt. I I I . CONCL USI ON For the fore g oing r easons, we AFF I RM the judgments of the district court.

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