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Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc.

United States Court of Appeals for the Sixth Circuit

March 10, 1999, Argued and Submitted ; April 6, 1999, Decided ; April 6, 1999, Filed

No. 98-5361

Opinion

 [***2]  [*990]   OPINION

RONALD LEE GILMAN, Circuit Judge. Fred E. Tetro, a Caucasian male, claims that Elliott Popham Pontiac, Oldsmobile, Buick and GMC Trucks, Inc. (the "dealership") discriminated against him because he has a biracial child. The district court denied the dealership's motion for summary judgment on Tetro's racial discrimination claim, but subsequently dismissed Tetro's action with prejudice due to his counsel's failure to appear and prepare for the final pretrial conference. For the reasons set forth [**2]  below, we REVERSE the district court's dismissal of Tetro's action, AFFIRM its denial of summary judgment to the dealership, and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Elliott Popham hired Tetro as the finance manager for his automobile dealership on July 28, 1996. Tetro came highly recommended by Popham's General Manager, Brian McDonald. According to Tetro, he immediately began receiving praise from Popham and his coworkers for his job performance. All went well until the day that Tetro's family visited him at work. It was during this visit that Popham observed Tetro's biracial daughter for the first time. Tetro contends that the work atmosphere suddenly changed for the worse.

According to the affidavit of Wallace Scott McDonald, Tetro's former coworker at the dealership, Popham rolled his eyes in a derogatory manner and immediately walked back into the dealership upon seeing Tetro's family. Tetro alleges that Popham soon began ridiculing and insulting him about  [***3]  his weight in front of employees and customers. In addition, Tetro claims that he and Wallace Scott McDonald overheard Popham talking on the [**3]  telephone approximately one month after Tetro's family visited the dealership. During that telephone conversation, Popham allegedly stated that "no one ever told me that he had a mixed race child and that this was going to hurt his [Popham's] image in the community and his dealership" and "I can't believe he has a mixed child and Brian [the General Sales Manager who recommended Tetro to Popham] didn't tell [me]." Wallace Scott McDonald's affidavit corroborates Tetro's allegations.

On November 5, 1996, Tetro arrived at work wearing casual clothes. He claims that he dressed casually because he had scheduled a doctor's appointment, which the General Manager had already approved. Popham confronted Tetro regarding his casual attire. Tetro alleges that a heated argument quickly ensued regarding his clothes and his medical appointment. He admits that he became angry and called Popham a thief, liar, cheat, and hypocrite. Much of this argument took place in the showroom in the presence of other employees and customers. Tetro claims that Popham advised him that he should "get his fat a-- out of the dealership" or else he would call the police. Tetro left  [*991]  the dealership and [**4]  never returned. Wallace Scott McDonald's affidavit states that Popham's racially charged statements were made several days prior to Tetro's alleged discharge.

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173 F.3d 988 *; 1999 U.S. App. LEXIS 6098 **; 1999 FED App. 0128P (6th Cir.) ***; 79 Fair Empl. Prac. Cas. (BNA) 699; 75 Empl. Prac. Dec. (CCH) P45,821; 43 Fed. R. Serv. 3d (Callaghan) 1329

FRED E. TETRO, JR., Plaintiff-Appellant, v. ELLIOTT POPHAM PONTIAC, OLDSMOBILE, BUICK, AND GMC TRUCKS, INC., Defendant-Appellee.

Prior History:  [**1]  Appeal from the United States District Court for the Middle District of Tennessee at Columbia. No. 97-00049. Thomas A. Higgins, District Judge.

Disposition: REVERSED district's dismissal of Tetro's action, AFFIRMED its denial of summary judgment to the dealership, and REMANDED case for further proceedings consistent with opinion.

CORE TERMS

dealership, district court, discriminated, final judgment, pretrial conference, cross-appeal, allegations, daughter, racial discrimination, summary judgment, denial of summary judgment, interlocutory order, cause of action, full trial, biracial

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