John v. Core Brace, LLC et al

Filing 36

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that Plaintiff's Motion to Strike (Dkt. 27 ) is DENIED. Plaintiff's Motion for Leave to Supplement (Dkt. 28 ) is GRANTED. Defendant's Motion for Summary Judgment (Dkt. 20 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MAURICE JOHN,

Case No. 4:20-cv-00071-BLW
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
CORE BRACE, LLC,
and SME INDUSTRIES, INC.,
Defendant(s).

INTRODUCTION
Plaintiff, Maurice John, brought this action against Defendants, Core Brace,
LLC, and SME Industries, Inc., alleging racial discrimination, hostile work
environment, and retaliation in violation of 42 U.S.C § 1981, Title VII of the Civil
Rights Act of 1964, and the Idaho Human Rights Act. Before the Court is
Defendants’ motion for summary judgment (Dkt. 20), John’s motion to strike (Dkt.
27), and John’s motion to supplement the summary judgment record (Dkt. 28). For
the reasons discussed below, the Court will deny the motion to strike, grant the
motion to supplement, and deny the motion for summary judgment.

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BACKGROUND 1
John was hired by Defendants as a welder at their Pocatello facility on April
18, 2019. Some of the individuals in John’s chain of command during his
employment are Sean Cook (“S. Cook”), one of John’s direct supervisors during
his employment with Defendants; Jake Schnobrich, another direct supervisor and
the PIM lead over John; Nicholas Loertscher, the night shift supervisor at
CoreBrace during the last couple of months that John was employed by Defendants
and to whom Schnobrich reported; and Jerry Cook (“J. Cook”), the manager of the
CoreBrace Pocatello facility, and to whom Loertscher reported.
A. Weld Test
John was one of only two Black employees when he was hired by
CoreBrace. He was given one week of training on welding, and one chance to pass
a weld test which comprised of two welds, only one of which was reviewed. John

In deciding Defendants’ summary judgment motion, the Court must view
the facts, and all reasonable inferences that can be drawn from those facts, in the
light most favorable to John, the nonmoving party. See Devereaux v. Abbey, 263
F.3d 1070, 1074 (9th Cir. 2001) (“Viewing the evidence in the light most favorable
to the nonmoving party, we must determine whether there are any genuine issues
of material fact and whether the district court correctly applied the relevant
substantive law.”) (citing Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en
banc)). Thus, the Court’s recitation of the fact is based on the Court’s construing
the evidence in the light most favorable to John.
1

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did not pass the weld test and was not given any further opportunities for more
training, nor was he given another chance to pass the weld test. Instead, he was
moved to a physical labor job in PIM. Other similarly situated employees were
given multiple opportunities to pass the weld test.
One of the individuals who administered the weld test to John was Jesse
Huff. Huff, who was also one of John’s trainers, said to John, “What’s up my [nword]?” as he passed John. John found Huff’s comment to be offensive and
believed it violated company policy, but he did not report the incident because he
believed that if he reported every offensive remark he experienced, the company
would retaliate.
Another one of John’s trainers, Jack Tieken, wore a jacket to work with a
Confederate flag on the back and made sure that John saw it. John complained to
supervisor S. Cook about Tieken’s jacket, and S. Cook said to John that it was
“freedom of speech” and that John needs to just put his head down and get to work.
Shortly after Loertscher became John’s night manager, John reported to Loertscher
John’s concerns that his coworkers were prejudiced against him and were plotting
to get him fired.
B. Racially Demeaning and Derogatory Conditions
During his employment, John was subjected to an ongoing series of racially

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demeaning and derogatory conditions. First, there are the incidents, just discussed:
John being called, “What’s up my [n-word]?” by Huff, who was one of his welding
trainers and who also administered John’s weld test; John having another of his
welding trainers, Tieken, wear a jacket with a confederate flag on it and appearing
to intentionally make sure that John saw the flag; and supervisor S. Cook telling
John, in response to John’s complaint about the confederate flag jacket being worn
to work, that the coworker/trainer’s wearing of the confederate flag jacket was
merely freedom of speech. In addition, there were numerous other incidents that
occurred during the course of John’s employment.
On John’s first day on the job, S. Cook, one of John’s direct supervisors,
approached John and asked him, “Maurice, what do you think about the n-word?”
John said he did not like it.
Roger Davis, a co-worker of John’s, said, in the presence of John, that he
“wasn’t going to do any [n-word] work.” When Davis realized that John was
present, he apologized. John reported the incident to supervisor S. Cook. When
John did so, S. Cook again used the n-word in clarifying the incident. S. Cook then
said he would discuss the incident with Loertscher, but John reported it to
Loertscher himself, not trusting whatever report S. Cook might make. Loertscher
disciplined Davis by issuing him a verbal warning and also apparently sending him

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home for the rest of the shift. However, this was not documented through a writeup
like other employees who received time off without pay as part of a disciplinary
action. Further, the next day, Davis returned to work with a new CoreBrace hat,
which is generally given out as a reward. Loertscher also provided additional
training to employees on the company’s anti-discrimination policies, covering
multiple forms of discrimination so as not to single out John.
Supervisor Schnobrich also asked John how John felt about Schnobrich
saying the “n-word,” and John responded that he did not want Schnobrich to say
the “n-word.” Schnobrich then said, “Well, why don’t I call you shithole?” This
was an apparent reference to the statement by former President Trump, who
described Haiti, El Salvador, and African Nations as “shithole countries,” during a
meeting at the White House. See https://www.nytimes.com/2018/01/11/us/politics/t
rump-shithole-countries.html (accessed 7/23/2021). At the time, John did not
understand the significance of the “shithole” reference by Schnobrich.
On September 4, 2019, about a month before John’s employment was
terminated, supervisor Schnobrich called John “boy” several times. John had asked
Schnobrich where he should place some beams and Schnobrich responded, “Put
them right here boy. You hear me boy? I ain’t going to tell you no more, boy!”
Schnobrich’s tone made John feel like a slave. John complained to supervisor

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Loertscher about Schnobrich’s use of the term “boy,” explaining that the word
“boy” was offensive. When John complained to Loertscher about the “boy”
incident, Loertscher said to John, “Don’t make me fire you.” And, according to
Loertscher, Schnobrich was “off put” by John’s complaint about this “boy”
incident.
Supervisor Loertscher also called John “boy” over the radio, telling John to,
“hurry up, boy.” A co-worker heard Loertscher refer to John as “boy” over the
radio and it was apparent to this co-worker that, from the tone of voice Loertscher
used, the use of the term “boy” was meant to be demeaning. John never heard
either Loertscher or Schnobrich use the term “boy” for anyone but John.
J. Cook admitted that a Black man being called “boy” is offensive, and
conducted a short, general meeting with the night shift employees after the “boy”
incidents occurred. During that meeting, J. Cook merely stated in general terms
that discrimination is not tolerated.
On September 5, 2019, the day after John complained about being called
“boy” by his supervisors, John received a verbal warning for bending braces.2 The

John admits that he bent the brace. He explains that he was being trained
on the Combilift, which has a blind spot. John thought that he had the forks
(Continued)
2

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following day, September 6, 2019, these same supervisors that had called John
“boy”—Loertscher and Schnobrich—pulled John into the office and claimed that
they were getting a lot of complaints from John’s coworkers about John having a
“hostile attitude towards others,” and being “hostile and aggressive.” They told
John that he needed to “remain calm and professional” no matter how his
coworkers interacted with him; that “his job [entails] a lot of contact with a lot of
different personalit[ies]” in the shop; and that John needs to “conduct himself in a
professional manner.” Loertscher told John that John needed to “straighten up and
walk on a narrow path.” Neither Loertscher nor Schnobrich identified any specific
incidents during the meeting where John had acted inappropriately, and John
denied (and continues to deny) that he had engaged in any type of aggressive or
inappropriate behavior.
During his deposition, Loertscher claimed that he had received multiple
complaints about John being “aggressive” but when pressed for specifics,
Loertscher only identified two purported incidents. John denies that either of these
purported incidents ever occurred or that he was aggressive toward other

underneath the brace but because of the blind spot, he had only part of the brace on
the forks. As a result, when he lifted the forks, it bent the brace. When John
realized what had happened, he called his supervisor and told him about the
problem.

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employees.
During the September 6, 2019 meeting with Loertscher and Schnobrich,
John requested that he be removed from the Combilift position and be put back on
PIM. John explained that he requested this change because management was not
able to physically see him work when he was operating the Combilift and he felt he
was thus more vulnerable to false accusations while operating the Combilift. John
explained: “I wasn’t around a supervisor a lot, so people was making up stuff about
me and saying I wasn’t doing this and doing that. . . . [T]hey would say stuff like,
‘well, he almost hit this’ or ‘he was too fast, driving too fast doing this right here’
or ‘he wasn’t looking, doing this’ or ‘he had an angry face out here.’” John
believed a position in PIM would allow management to see more easily that he was
not engaging in any of the behaviors of which he had been accused. However,
despite this move back to PIM, Loertscher pushed to get John fired.
Joe Pompa, a former CoreBrace supervisory-level employee who worked at
CoreBrace during the relevant time, explained that he “frequently heard the n-word
used by both coworkers and managers” at CoreBrace and that, based on his
experience working there, the n-word was “used quite casually.” Pompa heard
Schnobrich “use the n-word on multiple occasions at work”; and heard Schnobrich
make statements to the effect that Schnobrich thought it was “funny to move Mr.

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John around from department to department just to mess with him,” and that
Schnobrich called John a “silly [n-word].” Pompa also believed, based on his own
observations, that Loertscher and Schnobrich treated John more harshly than other
employees, including being overly critical of John’s performance and actions, and
that they engaged in conduct just to mess with John because of his race. Finally,
based on his own observations and interactions, Pompa found John to be “a very
hard worker who did not cause any trouble or conflict,” and Pompa had never
observed any interactions between John and others where John acted in an
aggressive manner.
C. Employee Discipline
In mid-July 2019, Defendants wrote John up on the ground that John
allegedly “stabbed the wrong brace in the wrong core.” Even though this was
John’s first write up, Defendants suspended John for five days.
A co-employee, Cody Rasmussen, told John that he (John) had not stabbed
the wrong brace. Rasmussen also admitted that if the incident occurred as
Defendants asserted it did, other individuals besides John should have also been
written up but were not. Further, according to Rasmussen, Defendants never fixed
the brace that John allegedly damaged and the brace was sent out to a client. This
indicates that John did not actually damage the brace as claimed by Defendants.

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Finally, Noah Spradling, who was John’s co-worker and is now a supervisor at
CoreBrace, stated that John was right about being concerned that Defendants
would try to fire John for “nothing.”
On two occasions when John was operating the Combilift, he bent a brace
(one of those incidents has been discussed above). Bending a brace while operating
the Combilift is generally the result of not paying proper attention. However, there
is also a blind spot while operating the Combilift. As noted above, John was given
a verbal warning after the second incident.
D. The Termination
Shortly before John was fired, he overheard a couple of coworkers—Crystal,
Olivia and Marcello Jones (another Black employee)—discussing that they
disliked John and that they were going to try to get him fired.3 John complained to
his supervisors, Schnobrich and Loertscher, about what he had heard, and they told
John that he was being paranoid, to “[j]ust keep working. You’re doing a good
job.” Later that shift he saw these coworkers coming out of the supervisors’ office.
John then walked into the office and said, “Nic [Loertscher], I told you.”

John explained that Marcello Jones was, at the time, a relatively new
employee. John further explained that the other two coworkers—Crystal and
Olivia—had kind of taken Jones under their wing.
3

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Loertscher responded, “Listen, don’t even worry about what they say, Maurice.
I’m the boss here. You’re doing a good job. Just keep on doing what you are
doing.”
The day before Defendants terminated John’s employment, Marcello Jones
behaved in an aggressive manner toward John. Defendants claim that John was the
aggressor toward Jones, but John insists that the opposite is true. The incident
began when Jones told John to give him a shovel that John was holding. The
incident was entirely verbal and, although supervisor Schnobrich was in the area
when this incident occurred, he could not hear the exchange between John and
Jones.
John explained the incident as follows during his deposition:
Okay. Well, me and Norm was actually working together. We did a
lot of braces and I remember it was cold he [there] was a heater running.
And after work is over we have to clean up and everything. So I went and
got the shovel and I stood by the heater for . . . a couple of seconds. And
Jake [Schnobrich] had actually come walking by, and I forgot what I was
talking to Jake about, and [Jones] came up to me and he was just like: Since
you’re up here talking man, let me get that shovel. And I was like: Give me
one second. I’m going to ask him [Jake] another thing. I’m about to help my
partner get this right here . . . . [Jones] could have went and got another
shovel. There’s a lot of shovels actually around.
And he was just like: No, give it to me right now since you won’t –
and I told him: Man, get out of my face, man.
So he came up on me and he was like: Or what? And he’s a big guy,
you know.
So Jake [Schnobrich], he actually said: Man, you all just go back to
work. So I still had the shovel in my hand and I went to shovel it up, but it

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was bothering me so I called Jake over. I said: Man, I think something needs
to happen to this guy because I feel threatened, you know, the way he came
to me and you just let it go. Because I was feeling if it was me I would have
been in the office and it would have been a whole shebang.
So, [Schnobrich] called Nic [Loertscher] on the . . . radio and told
Nic: “Maurice and Marcello is having a problem and I’m tired of this right
here.”
(Dkt. 22-3 at 12.)
They—Schnobrich, Loertscher, John, and Jones—all went into the office
and John told Loertscher what had happened. Jones responded, “Yeah, but he told
me to get out of his face.” After that, the supervisors focused only on John.
Loertscher told John, “Well, Maurice, yeah, I get a lot of complaints about you.”
(Id. at 13.) John responded, “But you see that I’m working every day,” and “we
already discussed the complaints.” Loertscher responded that he was going to
make Jones and John work together for a week, explaining, “you all are acting like
are getting into it and stuff like that, I’m going to make you work together for a
week and you all are going to be friends.” (Id.)
John was so upset about what had happened and how it was handled that he
tried calling the Human Resources office (HR) as soon as he finished work.
However, because it was the middle of the night, he was unable to. He wanted to
call HR because he was fed up with everything and going through the chain of
command, in John’s view, wasn’t working, so he felt like he needed to take this to

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another level. He also really wanted to go to day shift because all of the
supervisors, all of the bosses, are there during the day shift, so “you really can’t
just make no false complaints about me and false accusations . . . .”
John called HR again the next morning, calling back several times before he
got through. John finally spoke with Kent Eden at 11:46 a.m. John reported to
Eden multiple incidents of racism that John had endured during his employment.
John explained that he wanted to be moved to the day shift. Eden asked John some
questions, then told John that he wanted John to talk to someone else in the
office—a woman named Debbie Nadeau—who handled those types of issues.
Eden testified that he passed John’s complaint on to Debbie Nadeau and had
no further involvement regarding John. However, Nadeau testified that Eden told
her that John had been terminated. Further, there is evidence indicating that
immediately after John reported these incidents of racism to HR, the HR
department began compiling information against John because they were
concerned about liability, indicating knowledge that John was about to be
terminated. John spoke with Nadeau later that day but, by then, he had already
been terminated.
After talking with Eden, John called J. Cook but got no answer. John called
J. Cook again and got in touch with him. John explained to J. Cook that he [John]

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had been having problems on the night shift and wanted to move to the day shift.
J. Cook responded that they did not have any positions on the day shift and that he
was going to have to let John go. John asked whether they had also let Jones go,
and J. Cook said that he could not discuss that with John as it was confidential.
J. Cook told John that the reason he was being terminated was because J. Cook was
tired of the “complaints.” John understood the “complaints” to which J. Cook was
referring to be John’s complaints of racial discrimination or the false complaints
that had been made against John.
J. Cook relied on Loertscher and Schnobrich’s input in deciding to terminate
John’s employment. J. Cook knew of John’s complaints of race discrimination,
such as John’s complaints about the use of the “n-word” and “boy,” including by
Loertscher and Schnobrich. Despite this knowledge, J. Cook never investigated
these incidents nor elevated them to HR like he did for White employees. For
example, on two occasions White women’s complaints of sexual harassment were
taken to HR and investigated, and employees were disciplined as a result of the
complained-of incidents. Non-Black workers were also given less severe discipline
and multiple chances to change their behavior.
On the morning John was terminated, Loertscher reported to J. Cook the
incident that had occurred the previous evening between John and Jones.

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Loertscher explained that he could not get a clear story out of either Jones or John,
but indicated that John, rather than Jones, was the aggressor, and that reports of
John acting aggressively were becoming a concern. J. Cook decided to terminate
John’s employment without ever hearing John’s version of the facts, and despite
knowledge of the use of racial slurs regarding John by the very people upon which
he was relying to terminate John’s employment.
ANALYSIS
A. Motion to Strike
1. Legal Standard
“It is improper for a moving party to introduce new facts or different legal
arguments in the reply brief than those presented in the moving papers.” United
States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (citing
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 894095 (1990)); see also Zamani v.
Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider
arguments raised for the first time in a reply brief.”). Further, Local Civil Rule 7.1
requires that the moving party must “file with the motion affidavits required or
permitted by Federal Rule of Civil Procedure 6(c), declarations submitted in
accordance with 28 U.S.C. § 1746, copies of all photographs, documentary
evidence and other supporting materials on which the moving party intends to
rely”. Id. Civ. L.R. 7.1(b)(2).
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This Court has the discretion to either allow or preclude the filing of a surreply. United States v. Venture One Mortg. Corp., Case No: 13-CV-1872 W (JLB),
2015 WL 12532139, at *2 (S.D. Cal. Feb. 26, 2015). Such discretion “should be
exercised in favor of allowing” a sur-reply “only where a valid reason for such
additional briefing exists, such as where the movant raises new arguments in its
reply brief.” Id. (citation omitted).
2. Discussion
In his motion to strike (Dkt. 27), John seeks to strike the second declaration
of Jetta Hatch (Dkt. 25-1) and Rebuttal Statement of Facts (Dkt. 25-2) submitted
by Defendants in support of their motion for summary judgment. John contends
that Defendants’ rebuttal statement of facts in support of summary judgment is
improper because, under Federal Rule of Civil Procedure 6(c)(2), the moving party
is to submit all supporting material with the original motion. John further contends
that Defendants’ submission of the second declaration and rebuttal statement of
facts is fundamentally unfair. Alternatively, John asks that if the second declaration
and the rebuttal statement of facts are not stricken, then John should be given an
opportunity to file a sur-reply and provides that sur-reply in the memorandum in
support of the motion to strike. (See Dkt. 27-1.)
Defendants respond that they have not raised new arguments or evidence in

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their reply brief but are instead merely responding to the arguments raised by John
in his opposition to summary judgment. They argue that accordingly the motion to
strike should be denied.
The Court will deny the motion to strike because the second declaration of
and the rebuttal statement of facts appear to respond to specific issues raised by
John in his response brief. Furthermore, although this evidence was available at the
time Defendants filed their initial motion, this does not preclude Defendants from
raising the evidence in their reply as long as it is being raised specifically in
response to arguments raised by John in his response. The Court will, however,
allow and consider John’s sur-reply to that additional evidence.
B. Motion to Supplement
1. Legal Standard
A district court has broad discretion to determine whether a party may
supplement a summary judgment record. See Navellier v. Sletten, 262 F.3d 923,
941 (9th Cir. 2001) (the Ninth Circuit “review[s]. . .challenges to trial court
management for abuse of discretion”); Moreno v. Ross Is. Sand & Gravel Co., No.
2:13-cv-00691-KJM-KJN, 2015 WL 5604443, at *5 (E.D. Cal. Sept. 23, 2015) (“A
district court has discretion to permit a litigant to supplement the summary
judgment record.”) (citing Betz v. Trainer Wortham & Co., 610 F.3d 1169, 1171

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(9th Cir. 2010)).
2. Discussion
John moves the Court for leave to supplement the summary judgment record
with a declaration of Joe Pompa, who is a former CoreBrace supervisory-level
employee who worked at CoreBrace during the relevant time. (Dkt 28.) John
contends that in late March, he ran into Pompa at a convenience store and
discovered that Pompa had personally observed action relevant to John’s case
against Defendants.
Defendants oppose the motion. Defendants contend that John did not timely
disclose Pompa as a witness because John could have obtained this evidence prior
to the close of discovery in January 2021, and prior to responding to the motion for
summary judgment in mid-March 2021. Defendants also argue that Pompa’s
declaration is hearsay, and no hearsay exception applies and thus is inadmissible.
The Court will grant the motion to supplement. First, as to timeliness, John
explains that he had not seen Pompa since he was terminated, and did not know
that Pompa had personal knowledge or observations relevant to this case, until
John bumped into Pompa at a convenience store in late March 2021. John
disclosed the information to Defendants a short time later. Moreover, Pompa was a
management-level employee with CoreBrace, working with both Loertscher and

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Schnobrich, and the majority of the conduct Pompa discusses in his declaration is
conduct in which Loertscher and Schnobrich allegedly engaged. Defendants thus
could have previously discovered the information provided by Pompa in his
declaration. The Court finds that the circumstances provide good cause for the late
disclosure of this evidence.
Second, the statements in the Pompa declaration are not excludable as
hearsay. Pompa’s statements regarding the use of the racist and derogatory words
are not being submitted for the truth of the matter and thus are not hearsay. See
Fed. R. Evid. 801(c). Further, Pompa’s statements regarding the alleged conduct
and statements by other employees, including management-level employees, are
admissible as an opposing party statement because it “was made by the party’s
agent or employee on a matter within the scope of that relationship and while it
existed.” Fed. R. Evid. 801(d)(2)(D).
The Court will grant the motion to supplement the record with the Pompa
declaration.
C. Motion for Summary Judgment
John brings claims under 42 U.S.C. § 1981, Title VII, and the Idaho Human
Rights Act. The Ninth Circuit has held that the same legal principles applicable to
a Title VII claim govern actions brought under § 1981. See Reynaga v. Roseburg

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Forest Products, 847 F.3d 678, 686 (9th Cir. 2017). Similarly, the Idaho Supreme
Court has held that the same legal standards applicable in Title VII cases govern
actions under the Idaho Human Rights Act. Bowles v. Keating, 606 P.2d 458, 462
(Idaho 1979). Accordingly, any discussion in this decision regarding John’s Title
VII claims also applies to his § 1981 and Idaho Human Rights Act claims.
1. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that may affect the
outcome of the case, and a dispute about a material fact is genuine if there is
sufficient evidence for a reasonable jury to return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
In deciding whether there is a genuine dispute of material fact, the Court
must view the facts in the light most favorable to the nonmoving party. Id. at 255.
The court is prohibited from weighing the evidence or resolving disputed issues in
the moving party’s favor. Tolan v. Cotton, 572 U.S. 650, 657 (2014).
2. Hostile Work Environment
Under Title VII, it is unlawful for an employer to discriminate against an
individual with respect to “compensation, terms, conditions, or privileges of

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employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. 2000e–2(a)(1). “This includes a prohibition against the creation
of a hostile work environment.” Reynaga, 847 F.3d at 686 (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993); Woods v. Graphic Comm’ns, 925 F.2d 1195,
1200 (9th Cir. 1991)).
To prevail on a race-based hostile work environment claim, a plaintiff must
demonstrate “(1) that he was subjected to verbal or physical conduct of a racial . . .
nature; (2) that the conduct was unwelcome; and (3) that the conduct was
sufficiently severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive work environment.” Vasquez v. Cty. of Los
Angeles, 349 F.3d 634, 642 (9th Cir. 2003).
Defendants do not dispute for purposes of summary judgment that the first
two elements are met here—that John was subjected to verbal or physical conduct
of a racial nature, and that the conduct was unwelcome. Instead, Defendants
dispute only the third element. They argue that the undisputed facts demonstrate
that the conduct was not sufficiently severe or pervasive to alter the conditions of
John’s employment and create an abusive work environment. Specifically, they
contend that the incidents of which John complains were merely offensive
utterance, offhand comments, and isolated incidents, and, as such, the incidents are

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insufficient to create a hostile work environment. The Court disagrees.
John has submitted evidence that, when viewed in the light most favorable to
him, as the non-moving party, shows the following: CoreBrace employees,
including supervisory-level employees, regularly and casually used the n-word in
the workplace and, on a few occasions, used the n-word around John and directed
that word at him. When a supervisor asked John if he could call John the n-word,
and John said “no,” the supervisor said that he could just call John “shithole”
instead. Supervisory-level employees also moved John around, from job to job,
and thought it was funny to move John around from department to department
“just to mess with him,” referring to John as a “silly [n-word].” Also, when John
complained to a supervisor that a co-worker wore a jacket to work that had a
confederate flag on the back, John was told by the supervisor that this was freedom
of speech and that John needed to just put his head down and get to work.
Supervisory-level employees also called John “boy” in a derogatory way
and, when John complained to his supervisors about being called “boy,” John was
told that one of his supervisors was “off put” by his complaint and another
supervisor said, “Don’t make me fire you.” In the days after John complained to
his supervisors about them calling him, “boy,” John was disciplined with a 5-day
suspension for bending a brace; and was told that there had been a lot of

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complaints about him being “hostile and aggressive,” even though no specific
incident was cited at the time, and even though John had not engaged in aggressive
or hostile conduct. John also overheard co-employees talking about trying to get
John fired and when John reported this to his supervisors, he was told that he was
being paranoid.
These facts, viewed in the light most favorable to John, are sufficient to raise
a genuine dispute of fact as to whether the conduct to which John was subjected
was sufficiently severe or pervasive to alter the conditions of his employment and
create an abusive work environment.
3. Racial Discrimination
To prevail in a Title VII case, a plaintiff must establish a prima facie case of
discrimination. Vasquez, 349 F.3d at 641. “If the plaintiff succeeds in doing so,
then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its allegedly discriminatory conduct. If the defendant provides such a
reason, the burden shifts back to the plaintiff to show that the employer's reason is
a pretext for discrimination.” Id. (citation omitted).
To establish a prima facie case, a plaintiff must provide evidence that creates
an inference of unlawful discrimination through either the framework set forth in

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),4 or direct or
circumstantial evidence of discriminatory intent. Vasquez, 349 F.3d at 641. “Direct
evidence is ‘evidence which, if believed, proves the fact [of discriminatory animus]
without inference or presumption.’” Id. (alterations in original) (citation omitted).
The Ninth Circuit “has set a high standard for the granting of summary
judgment in employment discrimination cases.” Schnidrig v. Columbia Mach.,
Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). Very little evidence is required “to
survive summary judgment in a discrimination case, because the ultimate question
is one that can only be resolved through a searching inquiry—one that is
appropriately conducted by the factfinder, upon a full record.” Id. (citation and
internal quotation marks omitted).
Here, Defendants contend that John has failed to meet his burden of
establishing a prima facie case of discrimination. The Court disagrees and finds
that, viewing the facts in the light most favorable to John, he established a prima
facie case and that there are genuine disputes of material fact that preclude granting

Under the McDonnell Douglas framework, “unlawful discrimination is
presumed if the plaintiff can show that (1) [he] belongs to a protected class, (2)
[he] was performing according to [his] employer’s legitimate expectations, (3) [he]
suffered an adverse employment action, and (4) other employees with
qualifications similar to [his] own were treated more favorably.” McDonnell
Douglas, 411 U.S. at 802.
4

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summary judgment.
For example, there is evidence that John was given only one week of
welding training and a single opportunity to pass the weld test while other, nonBlack employees were not only given more training but were also given multiple
opportunities to pass the test.
There is evidence that when John made complaints about racial incidents—
such as racial slurs and a co-worker wearing a jacket with a confederate flag—the
matters were, with one exception, 5 either dismissed, minimized, or not taken
seriously, and were not investigated or referred to HR. Indeed, even supervisory
personnel engaged in racial slurs. John was also told that he needed to remain
“calm” and “professional” no matter how he was treated or what was said to him.
Yet, when complaints regarding sexual harassment were made by White women,
those complaints were referred to HR for investigation.
There is evidence that John’s supervisors not only engaged in racial slurs,
but also moved John around, from job to job, because it was funny and in order to
“mess” with John, referring to John as a “silly [n-word].”
There is evidence that John was disciplined more harshly than his White co-

5

The one exception is the incident in the lunchroom when a co-worker said that he was
not going to do any “[n-word]” work.

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workers. John received a five-day suspension for his first disciplinary offense of
purportedly putting the wrong core in the brace. In contrast, White co-workers
were given less harsh discipline and multiple chances to change problem behavior.
Defendants contend, nonetheless, that because J. Cook both hired and fired
John, the “same actor” inference applies, and J. Cook’s actions cannot be deemed
to be discriminatory.
Generally, if the same person is responsible for both the hiring and the firing
of a plaintiff bringing a discrimination claim, a strong inference arises that the
firing was not discriminatory. Coghlan v. Am. Seafoods Co., LLC, 413 F.3d 1090,
1096 (9th Cir. 2005) (citing Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 271
(9th Cir. 1996)). The Court is required to consider this “strong inference” when
deciding a motion for summary judgment. Id. at 1098; see also Schechner v. KPIXTV, 686 F.3d 1018, 1026 (9th Cir. 2012) (the “same-actor inference is a strong
inference that a court must take into account on a summary judgment motion”)
(internal quotation marks omitted). If the inference applies, the plaintiff must
present a “strong case of bias” in order to “overcome this inference.” Coghlan, 413
F.3d at 1098. However, the inference may not apply when a biased subordinate
influences the judgment of the decisionmaker:
[I]f a subordinate, in response to a plaintiff's protected activity, sets in
motion a proceeding by an independent decisionmaker that leads to an

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adverse employment action, the subordinate’s bias is imputed to the
employer if the plaintiff can prove that the allegedly independent adverse
employment decision was not actually independent because the biased
subordinate influenced or was involved in the decision or decisionmaking
process.
Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007).
The Court finds that the “same actor” inference does not apply under the
facts of this case. As discussed above, in terminating John, J. Cook relied on
reports by Schnobrich and Loertscher. The evidence indicates that these
supervisory-level employees engaged in biased conduct, including the use of racial
slurs directed at John and moving John from job to job because it was “funny” and
to “mess with him.” The evidence also indicates that J. Cook knew that Schnobrich
and Loertscher had themselves engaged in discriminatory conduct toward John.
Thus, there is, at a minimum, a genuine dispute of material fact as to whether the
decision by J. Cook to terminate John was truly independent and thus whether John
was subjected to disparate treatment.
Finally, Defendants contend that John was terminated because of
performance issues 6 and conflicts with other workers. However, as already
discussed, the evidence shows that J. Cook relied on reports from two supervisors

6

John had been disciplined for improperly preparing braces in July 2019 and was given a
verbal warning for bending braces on two occasions prior to September 2019.

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that he knew had themselves engaged in racially discriminatory conduct directed at
John. The evidence also shows that other non-Black employees were not
terminated even though they had performance issues that equaled or exceeded
John’s performance issues. Finally, there is evidence that John did not act
aggressively toward his fellow workers; that he was fired because supervisors were
tired of John’s “complaints” about racial discrimination; and that complaints about
his behavior were the result of a concerted effort by co-workers and possibly
supervisors to get John fired, an effort that John specifically complained about to
his supervisors and upon which no action was taken.
These facts, viewed in the light most favorable to John, are sufficient to raise
a genuine dispute of fact as to whether John was treated less favorably than his
peers and whether Defendants’ reason for terminating John is pretext.
4. Retaliation
To establish a prima facie case of retaliation, a plaintiff must establish “(1) a
protected activity; (2) an adverse employment action; and (3) a causal link between
the protected activity and the adverse employment action.” Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1034 (9th Cir. 2006) (citation omitted).
“Causation sufficient to establish the third element of the prima facie case may be
inferred from . . . the proximity in time between the protected action and the
allegedly retaliatory employment decision.” Yartzoff v. Thomas, 809 F.2d 1371,
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1376 (9th Cir. 1987).
Here, Defendants do not dispute that John engaged in protected activity
when he complained about discrimination and that his termination was an adverse
employment action. Instead, Defendants challenge only the third element of a
retaliation claim, contending that John cannot establish the necessary causal link
between his protected activity and his termination. The Court disagrees.
John engaged in protected activity on numerous occasions. For example, he
complained about a co-worker wearing a jacket with a confederate flag. He
reported to his supervisors that he was concerned that his co-workers were biased
and were trying to get him fired. He complained to S. Cook and Loertscher about a
co-worker’s statement in the lunchroom regarding “[n-word] work.” He
complained about his supervisors calling him “boy.” Finally, he complained to HR
about the discriminatory conduct to which he had been subjected.
Shortly after many of these incidents, John was subjected to adverse
employment action. After John complained about Schnobrich calling him “boy,”
Loertscher and Schnobrich accused John of engaging in “hostile and aggressive”
actions, told him that they had received multiple complaints about him, and
advised him to change his attitude toward co-workers. Yet, when asked about the
complaints against John, Loertscher could only name two incidents, both of which

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John denies occurred. Moreover, Schnobrich was “off put” by John’s complaint
about the “boy” incident, and when John complained to Loertscher about the “boy”
incident, Loertscher said to John, “Don’t make me fire you.”
Further, John was terminated within hours of making a complaint to HR
about the discriminatory conduct to which he had been subjected. The Court
recognizes that Defendants have submitted evidence that J. Cook, who terminated
John, did not know of John’s complaint to HR. However, the timing of John’s
termination raises issues of fact that cannot be resolved on summary judgment.
In addition, there is an inconsistency between Eden’s testimony that he had
nothing further to do with John after John’s initial call and Nadeau’s testimony that
it was Eden who informed her later that same day that John had been terminated.
Further, although J. Cook testified that he did not know of John’s contact with HR
prior to the termination and relied primarily on the incident between John and
Jones the previous night, Loertscher testified that when he discussed that incident
with J. Cook, there was no mention or discussion of John being terminated.
In sum, there are genuine issues of material fact regarding causation that
preclude summary judgment on the retaliation claim.
5. Liability of SME Industries
Defendants also seek summary judgment as to all claims against SME
Industries, Inc., on the ground that CoreBrace employed John, and that SME is
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merely a parent corporation of CoreBrace that never contracted with nor employed
John. Defendants contend that, as a result, SME cannot be held liable for any Title
VII violations of CoreBrace.
Under Title VII, liability only attaches for discrimination if an entity is the
“employer” of the plaintiff. 42 U.S.C. § 2000e-2(a); see EEOC v. Global Horizons,
915 F.3d 631, 637 (9th Cir. 2019). However, it is also “well-settled that an
individual can have more than one employer for Title VII purposes.” Global
Horizons, 915 F.3d at 637. “The law recognizes that two entities may
simultaneously share control over the terms and conditions of employment, such
that both should be liable for discrimination relating to those terms and conditions.
The two entities in such circumstances are deemed to be joint employers of the
employees in question.” Id.; see Watson v. Gulf & Western Industries, 650 F.2d
990, 993 (9th Cir. 1981) (noting that, “[i]n the absence of special circumstances, a
parent corporation is not liable for the Title VII violations of its wholly owned
subsidiary,” and that such special circumstances allowing for parent corporation
liability include where the parent corporation “participated in or influenced the
employment policies” of the subsidiary).
The test for determining whether a parent corporation is a joint employer of
a subsidiary’s employee, and thus can be held liable as an employer under Title VII

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was recently clarified in Global Horizons as being the common-law agency test.7
915 F.3d at 638-39. The “principal guidepost” under this test is the elements of
control, i.e., “the extent of control that one may exercise over the details of the
work of the other.” Id. (quoting Clackamas Gastroenterology Associates, P.C. v.
Wells, 538 U.S. 440, 447 (2003) (internal quotation marks omitted)).
The factors to consider when analyzing whether the requisite level of control
exists include (but are not limited to):
the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the
parties; whether the hiring party has the right to assign additional
projects to the hired party; the extent of the hired party's discretion
over when and how long to work; the method of payment; the hired
party's role in hiring and paying assistants; whether the work is part of
the regular business of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax treatment of
the hired party.
Id. (quoting Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318,
323-24 (1992)).
“There is no shorthand formula for determining whether an

7

Both parties rely on the joint employer analysis adopted by the Ninth Circuit in Global
Horizons. When viewed together, Global Horizons and Watson establish that application of the
Global Horizons joint employer analysis is appropriate to determine whether, under Watson,
“special circumstances” exist that would make a parent corporation liable for Title VII violations
of its wholly owned subsidiary. See Global Horizons, 915 F.3d at 638-39; Watson, 650 F.3d at
993.

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employment relationship exists”; it is necessarily a “fact-intensive” exercise.
Id. at 638-39 (citation and internal quotation marks omitted).
Here, viewed in the light most favorable to John, the evidence demonstrates
that SME is the sole member of CoreBrace; that CoreBrace relies on SME for
much of its administrative functions including payroll, HR, accounting, legal,
purchasing, and even some safety and sales services. This means John’s method of
payment and employee benefits came from SME. All W-2s and tax reporting
documents for CoreBrace employees list SME as the employer. The HR personnel
that John contacted and who dealt with John’s complaints and termination were
provided by and paid for by SME. This is significant in the context of employment
discrimination because SME would have been primarily responsible for
establishing and implementing the company policies related to discrimination
training and reporting. Moreover, the employee handbook for CoreBrace lists SME
as the employer.
Additionally, SME and CoreBrace are consolidated for tax reporting
purposes and share use of the Pocatello facility. Indeed, many of CoreBrace’s
upper management and staff operate out of SME’s corporate office in West Jordan,
Utah. Simply put, CoreBrace was designed to function within the broader family of
SME-related companies, and many of the employment policies that influenced

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John’s employment were controlled by SME services.
Admittedly, as Defendants note, SME is a holding company with technically
no employees, and CoreBrace and J. Cook appear to operate autonomously in
many employment matters. John’s day-to-day work even appears to have been
solely controlled by CoreBrace personnel. But SME controlled some aspects of
John’s employment, most notably HR and payroll, and for purposes of summary
judgment, the Court cannot say with confidence that this fact-intensive exercise
definitively negates the possibility that SME was a joint employer of John.
In sum, the evidence raises a genuine issue of material fact as to whether
SME is a joint employer of John.
Finally, when the factors indicate that “a joint-employment relationship
exists, one joint employer is not automatically liable for the actions of the other.
Liability may be imposed for a co-employer's discriminatory conduct only if the
defendant employer knew or should have known about the other employer's
conduct and failed to undertake prompt corrective measures within its control.”
Global Horizons, 915 F.3d at 641 (internal citations and quotations omitted).
As discussed previously, precisely what J. Cook and other HR personnel
knew and when they knew it remains unclear. As such, the Court finds that there
are also genuine issues of material fact as to (1) whether SME knew or should have

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known about the alleged discriminatory conduct and (2) whether SME failed to
take remedial measures. Summary judgment on the joint employer issue is
therefore precluded.
6. Punitive Damages
Finally, Defendants seek summary judgment on John’s request for punitive
damages. Under Title XII, a plaintiff may recover punitive damages if they show
the defendant “engaged in a discriminatory practice or discriminatory practices
with malice or with reckless indifference to the federally protected rights of an
aggrieved individual.” 42 U.S.C. § 1981a(b)(1). While it is “unnecessary to show
actual malice to qualify for a punitive award . . . its intent standard, at a minimum,
require[s] recklessness in its subjective form.” Kolstad v. Am. Dental Ass’n., 527
U.S. 526, 536 (1999) (citing Smith v. Wade, 461 U.S. 30, 45-48 (1983)). In the
context of employment discrimination, “an employer must at least discriminate in
the face of a perceived risk that its actions will violate federal law to be liable in
punitive damages.” Id.
When an agent of the employer perpetrates the malicious or reckless
discrimination, “[t]he plaintiff must impute liability for punitive damages to [the
employer].” Id. at 539. One way in which a plaintiff may do so is by showing that
the discriminating agent served in a “managerial capacity . . . while acting in the
scope of employment[.]” Id. at 543 (citation and internal quotation marks omitted).
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However, “an employer may not be vicariously liable for the discriminatory
employment decisions of managerial agents where these decisions are contrary to
the employer’s good-faith efforts to comply with Title VII.” Id. at 545 (citation and
internal quotation marks omitted).
Defendants first argue that they did not engage in any discriminating
practice with malice or reckless indifference to John’s rights. Defendants claim
J. Cook never discriminated against John, had minimal knowledge of any racial
discrimination, and terminated John because of poor performance. Additionally,
Defendants claim their good faith efforts to implement non-discrimination policies
protect them from any discrimination by their employees being imputed to them.
However, viewing the evidence in John’s favor, the Court finds that a reasonable
juror could conclude otherwise. See Autozone, Inc. v. EEOC, 421 Fed. Appx. 740,
742 (9th Cir. 2011) (finding that defendant “was not immune from punitive
damages because a reasonable juror could certainly have determined that it had not
acted in good faith to comply with Title VII”).
As already explained, there is ample evidence to show that John’s
supervisors, Loertscher and Schnobrich, engaged in discriminating practices. Their
derogatory comments, unusual treatment of John compared to his peers, and
mishandling of his complaints create a genuine issue of fact as to their mental state

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and whether they engaged in their discriminatory conduct with malice or reckless
indifference to John’s rights. Moreover, because Loertscher and Schnobrich are
managerial agents of Defendants, their misconduct can be imputed to Defendants
for purposes of punitive damages. Additionally, whether Defendants made good
faith efforts to comply with Title VII remains unclear. For example, there is
evidence that Defendants handled John’s complaints less seriously than those of
his White coworkers. This casts doubt on whether Defendants earnestly
implemented their own non-discrimination policies.
In sum, there are genuine issues of material fact regarding punitive damages
that preclude summary judgment.
ORDER
IT IS ORDERED that:
1.

Plaintiff’s Motion to Strike (Dkt. 27) is DENIED.

2.

Plaintiff’s Motion for Leave to Supplement (Dkt. 28) is GRANTED.

3.

Defendant’s Motion for Summary Judgment (Dkt. 20) is DENIED.

DATED: July 26, 2021
_________________________
B. Lynn Winmill
U.S. District Court Judge

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