Williamson et al v. Graphic22 Inc
Filing
28
OPINION AND ORDER granting in part and denying in part 21 Motion for Summary Judgment, as set forth in order; denying as moot 24 Motion to Strike ; denying 27 Motion for a status conference. Signed by Senior Judge James T Moody on 7/21/14. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JAMES A. WILLIAMSON and
DAVID MITCHELL,
Plaintiffs,
v.
GRAPHIC 22, INC.,
an Indiana corporation,
Defendant.
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No. 2:11 CV 336
OPINION AND ORDER
This matter is before the court on defendant Graphic.22 Inc.’s (“defendant”)
motion for summary judgment on plaintiff James Williamson and David Mitchell’s
(“plaintiffs”) employment discrimination claims. (DE # 21.) Plaintiffs have filed a
response (DE # 23), and defendant has filed a reply (DE # 26). For the following
reasons, defendant’s motion is granted in part and denied in part.
I.
Background and Facts
Defendant
Defendant is an Indiana Corporation that operates a printing shop in Chesterton,
Indiana.1 (DE # 21-1 at 4; Busch Aff. ¶ 2.) Defendant creates promotional items,
1
The following facts are taken from defendant’s statement of material facts
(DE # 22 at 1) and portions of the record referenced in plaintiffs’ response brief
(DE # 23). As defendant correctly points out in its reply brief (DE # 26 at 2), plaintiffs’
response brief does not comply with N.D. IND. LOCAL RULE 56.1(b)(2), which
requires a summary judgment response brief to include a “section labeled ‘Statement of
Genuine Disputes’ that identifies the material facts that the party contends are
primarily specialty t-shirts, using silk screen printing. (DE # 21-1 at 4; Busch Aff. ¶ 2.)
Defendant has created a niche market in producing t-shirts and other promotional
materials for brewing companies and bands. (DE # 21-1 at 25; Hursey Aff. ¶ 2.)
Defendant’s employees are divided between three departments: the art
department, the pre-press department, and the production department. (DE # 21-1 at
25; Hursey Aff. ¶ 3.) The art department focuses on the creation of designs for t-shirts
and other promotional items; the pre-press department focuses on the recycling of silk
screens and the preparation of silk screens prior to production; and the production
department is responsible for creating the promotional items, packaging those items,
and shipping those items. (DE # 21-1 at 25; Hursey Aff. ¶ 2.)
The number of employees that defendant employs fluctuates depending on the
season and demand for the product. (DE # 21-1 at 26; Hursey Aff. ¶ 4) Defendant’s
business is usually the slowest between late winter and early spring. (DE # 21-1 at 26;
Hursey Aff. ¶ 4.) Defendant has no formal layoff or rehiring policy. (DE # 21-1 at 26;
Hursey Aff. ¶ 5.) In February of 2010, defendant moved into a larger facility. (DE # 21-1
at 4; Busch Aff. ¶ 3.) After moving to the new facility, one of defendant’s co-owners
genuinely disputed so as to make a trial necessary.” Plaintiffs’ response does not have a
section labeled “Statement of Genuine Disputes,” or any clear fact section at all. The
court would be within its discretion in requiring strict compliance with the local rules,
and striking defendant’s response (or considering defendant’s statement of facts
undisputed, as defendant requests (DE # 26 at 2-3)). Stevo v. Frasor, 662 F.3d 880, 886-87
(7th Cir. 2011). The court will not, however, penalize plaintiffs for their attorney’s
mistake. Unfortunately, plaintiffs’ response brief is scattered at times. The court will
therefore do its best to summarize the evidence presented in plaintiffs’ response brief
that plaintiffs contend creates a genuine issue of material fact.
2
created an “Employer-Employee Relations Policy (“the policy”) and required all
employees to attend a meeting on February 15, 2010 to discuss the policy. (DE # 21-1 at
4; Busch Aff. ¶ 4; DE # 21-1 at 7.) Both plaintiffs signed forms indicating that they had
received and read the policy. (DE # 21-1 at 80; DE # 21-1 at 101.)
The policy made clear that “verbal or physical conduct by any employee which
harasses, disrupts, or interferes with another’s work performance or which creates an
intimidating, offensive, or hostile environment” is prohibited. (DE # 21-1 at 8.) The
policy also states that any employee “who believes that another employee’s words or
actions constitute unwelcome harassment has a responsibility to report the situation as
soon as possible.” (Id.) Although the policy does not specify who an employee should
report harassment to, neither Williamson nor Mitchell ever reported any harassment to
either co-owner Marilyn Busch (DE # 21-1 at 4-6) or co-owner Iain Hursey (DE # 21-1 at
29-30.)
Plaintiff Williamson
Plaintiff Williamson, who is black, began his employment with defendant on
September 22, 2009. (DE # 23 at 6; DE # 21-1 at 26; Hursey Aff. ¶ 7.) Williamson
primarily worked as a heat press operator in the production department. (DE # 21-1 at
26-27; Hursey Aff. ¶ 7.) During his time in defendant’s employ, Williamson reported to
Scott Wood.2 (DE # 21-1 at 97; Williamson Dep. 20:17-18.)
2
Defendant contends that Williamson also reported to Scott Tubbs, but fails to
direct the court to anything in the record to support that assertion.
3
Plaintiffs and defendant have differing views on why plaintiffs were terminated.
Williamson alleges that he was terminated on account of his race. (DE # 1 at 7-8.)
Defendant contends that Williamson was terminated because his position was
eliminated. (DE # 22 at 3.) Williamson was originally hired as a heat press operator. (Id.;
see also DE # 21-1 at 96; Williamson Dep. 13:1-4.) Defendant, however, almost
completely stopped taking orders that required the use of a heat press in January 2010.
(DE # 21-1 at 27; Hursey Aff. ¶ 9.) Because the heat press was used very little,
Williamson began doing screen stretching in the pre-press department to fill his time.
(DE # 21-1 at 27; Hursey Aff. ¶ 7.)
Defendant’s overhead costs went up when it moved to a larger facility in
February 2010. (DE # 21-1 at 27; Hursey Aff. ¶ 8.) According to defendant, in an attempt
to save money, co-owner Hursey contacted production manager Scott Tubbs and
manager Scott Wood, and they decided to eliminate Williamson’s position due to the
reduced demand for products that required the use of the heat press. (DE # 21-1 at 27;
Hursey Aff. ¶ 8.) On March 17, 2010, Hursey informed Williamson that his employment
was terminated.3 (DE # 21-1 at 27; Hursey Aff. ¶ 9.)
Williamson never asked any of defendant’s employees about other job openings
with the company after he was terminated. (DE # 21-1 at 99; Williamson Dep. 30:7-24;
3
Defendant contends that Hursey also terminated a white employee (Barbara
Lauderback) from the production department that same day. (DE # 21-1 at 27; Hursey
Aff. ¶ 8.) Defendant’s records indicate, however, that Lauderback’s employment ended
several months after Williamson was terminated. (DE # 23-1 at 45.)
4
DE # 21-1 at 28; Hursey Aff. ¶ 11.) Co-owner Hursey provided Williamson with a letter
of reference, and Williamson had no further contact with any of defendant’s employees.
(DE # 21-1 at 28; Hursey Aff. ¶ 9; DE # 21-1 at 91.) After Williamson was terminated, the
company did not hire anyone to work solely as a heat press operator or as a screen
stretcher, two jobs which Williamson had done while at the company. (DE # 21-1 at 36.)
Around 2-3 hours of heat press work are now required each week, and an employee
hired in June of 2012 as a part-time artist handles the heat press work. (DE # 21-1 at 2728; Hursey Aff. ¶ 10.) Any screen stretching is done by existing employees. (DE # 21-1
at 27-28; Hursey Aff. ¶ 10.)
Plaintiff Mitchell
Plaintiff Mitchell, who is also black, began his employment with defendant on
September 18, 2009. (DE # 23 at 6; DE # 21-1 at 28; Hursey Aff. ¶ 12.) Mitchell began in
the production department, but was later moved to the pre-press department. (DE # 211 at 28; Hursey Aff. ¶ 12.) Mitchell initially reported to the weekday manager, Scott
Tubbs, but at the time of his termination, he reported to the weekend manager, Eric
Wilson. (DE # 21-1 at 28; Hursey Aff. ¶ 12.)
Like Williamson, Mitchell also alleges that he was terminated on account of his
race. (DE # 1 at 7.) Defendant, however, contends that as “a press operator, Mitchell
made numerous mistakes and was particularly messy, so he was moved to the prepress department, where he prepared screens for printing by cleaning the screens and
‘burning screens.’” (DE # 22 at 6; DE # 21-1 at 28; Hursey Aff. ¶ 10.) Mitchell eventually
5
requested to be put on the weekend shift, and was moved to that shift in August 2010.
(DE # 21-1 at 28-29; Hursey Aff. ¶ 13.) While on the weekend shift, Mitchell reported to
Eric Wilson, the weekend shift manager. (DE # 21-1 at 29; Hursey Aff. ¶ 13.) In this new
position, Mitchell worked with Angel Pineiro, another employee on the weekend crew.
(DE # 21-1 at 29; Hursey Aff. ¶ 14.)
Weekend shift manager Eric Wilson eventually reported to Hursey that both
Mitchell and Pineiro had made numerous mistakes and that complaints were made
about their work performance. (DE # 21-1 at 29; Hursey Aff. ¶ 14.) Specifically, Wilson
reported that weekday shift workers had complained that screens were burned upside
down, which caused delays in production. (DE # 21-1 at 29; Hursey Aff. ¶ 14.) After
learning about these mistakes, Hursey authorized Wilson to terminate both Mitchell
and Pineiro, and those two employees were terminated on September 10, 2010.
(DE # 21-1 at 29; Hursey Aff. ¶ 14.) The work that Mitchell and Pineiro had done was
distributed among existing employees. (DE # 21-1 at 29; Hursey Aff. ¶ 15.)
In addition to alleging that he was terminated on account of his race, Mitchell
also alleges that he was subjected to a hostile work environment due to his race and his
religion. This claim is based on the following incidents, most of which Mitchell did not
provide a specific date for:
•
While Mitchell was employed with defendant, co-worker Andrew Rowe
told Mitchell that he looked like “Kunta Kinte.” John Kaiser,4 who
4
In Mitchell’s deposition, Mitchell testified that he reported to John Kessler while
on the weekday shift, and that Kessler overheard this comment. (DE # 23-1 at 54;
6
•
•
•
•
•
•
Mitchell described as one of his supervisors, overheard the comment.
Mitchell was not aware of Rowe being given any reprimand as a result of
this incident. Mitchell did not recall when this statement was made.
(DE # 21-1 at 43-44; Mitchell Dep. 40-41.)
Prior to moving to the new building, John Kaiser showed Mitchell a
picture of a raccoon, and then stated: “Coons. Get it? Coons.” Mitchell
understood this to be “referring to blacks being called coons.” Mitchell did
not report this incident to anyone else. (DE # 21-1 at 49-52; Mitchell Dep.
48:24 - 50:16.)
Mitchell found a doll’s head with a noose made out of tape around it
attached to his work station. The doll’s head was made to look like a coworker who was “Caucasian and Cuban.” Mitchell did not remember a
precise date for this incident, and does not recall if he made a complaint to
anyone regarding this incident. (DE # 21-1 at 57-59, 62-63; Mitchell Dep.
58:19-22, 59:8-15, 74:21-75:18.)
Mitchell also reported seeing a tail that was hanging in the downstairs
work area. Mitchell’s co-workers would put the tail, which was made out
of rope, on the backs of other co-workers. Mitchell was offended by the
tail because “some people say black folks have tails.” (DE # 21-1 at 58-59;
Mitchell Dep. 59:17-21, 60:11-21.)
Mitchell testified that his co-worker, Andrew Rowe, wore a t-shirt
containing the words “Black Expo.” Mitchell was offended by Rowe
wearing this shirt because he perceived this as racism on Rowe’s part.
(DE # 21-1 at 60-61; Mitchell Dep. 72:15 - 73:6.)
There were also drawings posted on the walls near his workspace that
Mitchell found offensive, including a drawing of a woman flying on a
hang glider defecating into the open mouth of a shark and a drawing of
co-worker Andrew Rowe wearing his “Black Expo” shirt. (DE # 21-1 at 6568; Mitchell Dep. 86:13-89:6.)
While working on the weekend before he was fired, Mitchell found a note
at his work station that read as follows:
Dear Dayv,
Mitchell Dep. 23:20-23.) In its statement of material facts, defendant states that Mitchell
worked with a John Kaiser while on the weekday shift. (DE # 22 at 5.) Defendant’s
employment records only indicate that it employed a John Kaiser, and not a John
Kessler. (DE # 23-1 at 44-47.) In its reply brief, defendant recognizes this discrepancy as
well. (DE # 26 at 12.) Because it appears that Kessler and Kaiser are the same person John Kaiser, the court will refer only to Kaiser moving forward.
7
Do wut Jon sed. That shood keep you bizzy. Even no I wurk
today. Have a grate cat n nat.
Tubz
•
•
(DE # 21-1 at 82.) Mitchell believed that the note was directed at him, and
written in Ebonics, which he described as a “talking in a stereotypical
African-American way.” Mitchell does not know who wrote the note.
Mitchell used this work station on weekends, and John Kaiser used it on
weekdays. (DE # 21-1 at 44-45; Mitchell Dep. 41:19 - 42:25.)
The weekend before he was fired, Mitchell also found an image of a
monkey with a hand over its mouth at his workstation. The image was a
legitimate image used in a job for one of defendant’s customers.
Defendant reported the incident to manager Scott Tubbs, but does not
know if Tubbs took any action in response to learning this information.
(DE # 21-1 at 46-47; Mitchell Dep. 45:6 - 46:2; DE # 23-1 at 119.)
Mitchell found a third item at his desk on the weekend before he was fired
– a piece of paper with the phrase “I am prepared to hoist the black flag.
Giving me a reason will start a storm of violence in this country not seen
since 1776.” A customer had requested this saying to be printed on an
order of t-shirts. (DE # 21-1 at 55; Mitchell Dep. 54:3-24; DE # 21-1 at 30.)
Mitchell reported seeing these three items (the note, the monkey image,
and the black flag phrase) to manager Scott Tubbs. (DE # 22 at 9; DE # 211 at 56; Mitchell Dep. 55:6-8.)
Mitchell also alleges that he suffered harassment on account of his religion,
which he stated was Egyptianology, Rastafarianism, and Orthodox Christianity.
(DE # 21-1 at 47, 53, 64; Mitchell Dep. 46:6-10, 52:3-5, 76:16-21.) Mitchell testified to the
following incidents regarding his religion:
•
•
Mitchell testified that he found a pyramid made of tape on his work
station. Mitchell felt this was intended to discriminate against him on the
basis of his religion because his co-workers knew that he believed in
Egyptianology and the pyramid was a way to antagonize him. He found
the pyramid in August 2010. Mitchell did not report the pyramid to
anyone. (DE # 21-1 at 47-48; Mitchell Dep. 46:3-47:18.)
Mitchell also testified that he found an “Eye of Horus” taped to his work
station in August of 2010. Mitchell described the “Eye of Horus” as “a
8
•
•
religious symbol . . . . Horus is a figure like Jesus.” Mitchell did not report
this incident to anyone. (DE # 21-1 at 48-49; Mitchell Dep. 47:19-48:23.)
Mitchell also testified that he took offense to a poster of singer Bob Marley
being posted on one of the walls at his work station, and the fact that Bob
Marley music may have been played at some point at the facility. Mitchell
did not complain about the Bob Marley poster to anyone. (DE # 21-1 at 5255; Mitchell Dep. 51:17-54:2)
Mitchell also testified that he was subjected to other incidents which
resulted in a hostile work environment, but could not explain what these
incidents entailed, and did not remember whether he reported them or
not. (DE # 21-1 at 70; Mitchell Dep. 102:11-25.)
Facts Relevant to Both Plaintiffs’ Claims of Discriminatory Discharge
Both plaintiffs contend that they were terminated on account of their race. This
argument is primarily based on the behavior of one manager: Scott Wood. Wood, who
was one of the managers consulted when making the decision to terminate Williamson,
was rumored to be racist against black people. (DE # 23 at 7; DE # 23-1 at 52.)
Additionally, Wood was Williamson’s direct supervisor, but would not speak to or
assist Williamson with any questions that he had. (DE # 23 at 8; DE # 23-1 at 9-10;
Williamson Dep. 40:2-41:24.) Finally, while at a Christmas party, Williamson found
Scott Wood’s wallet on the ground, and when he returned it to Wood, Wood accused
Williamson of trying to steal his wallet and called Williamson a “black [mother
fucker].” Co-owner Iain Hursey heard Wood say this, but said nothing to Wood about
his comment. (DE # 23-1 at 15-21.; Williamson Dep. 114:13-120:10.)
Williamson first filed a charge of discrimination with the EEOC on July 10, 2010,
after being terminated. (DE # 22 at 11.) Williamson then filed a charge of discrimination
with the EEOC for alleged retaliation in March 2011. (DE # 1 at 1; DE # 22 at 11.)
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Mitchell filed a charge of discrimination with the EEOC in October of 2010. (DE # 22 at
11.) Plaintiffs were issued right to sue letters from the EEOC on June 15, 2011. (Id.)
Defendant has now moved for summary judgment on plaintiffs’ claims.
II.
Legal Standard
FEDERAL RULE OF CIVIL PROCEDURE 56 requires the entry of summary judgment, after
adequate time for discovery, against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“[S]ummary judgment is appropriate–in fact, is mandated–where there are no disputed
issues of material fact and the movant must prevail as a matter of law. In other words, the
record must reveal that no reasonable jury could find for the non-moving party.” Dempsey
v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and
quotation marks omitted).
The moving party bears the initial burden of demonstrating that these requirements
have been met; it may discharge this responsibility by showing that there is an absence of
evidence to support the non-moving party’s case. Carmichael v. Village of Palatine, Ill., 605
F.3d 451, 460 (7th Cir. 2010) (citing Celotex, 477 U.S. at 323). To overcome a motion for
summary judgment, the non-moving party must come forward with specific facts
demonstrating that there is a genuine issue for trial. Id. (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The existence of a mere scintilla of evidence,
however, is insufficient to fulfill this requirement. Id. (citing Anderson v. Liberty Lobby, Inc.,
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477 U.S. 242, 251-52 (1986)). The nonmoving party must show that there is evidence upon
which a jury reasonably could find for him. Id.
The court’s role in deciding a summary judgment motion is not to evaluate the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact.
Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.
1994). On summary judgment a court may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citing Anderson, 477 U.S. at 255). In
viewing the facts presented on a motion for summary judgment, the court must construe
all facts in a light most favorable to the non-moving party and draw all reasonable
inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966, 968 (7th Cir.
1998); Doe, 42 F.3d at 443. Importantly, the court is “not required to draw every conceivable
inference from the record [in favor of the non-movant]-only those inferences that are
reasonable.” Bank Leumi Le-Israel, B.M., v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) (emphasis
added).
III.
Analysis
A. Williamson
I. Discriminatory Discharge
In plaintiffs’ complaint, Williamson alleges that he was terminated because he is
black. (DE # 1 at 5.) Title VII forbids an employer “to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to [the
11
individual’s] compensation, terms, conditions, or privileges of employment, because of
such individual’s race . . . or national origin.” 42 U.S.C. § 2000e-2(a)(a). A plaintiff may
prove employment discrimination under Title VII using either the “direct method” or the
“indirect method.” See, e.g., Cerruti v. BASF Corp., 349 F.3d 1055, 1060-61 (7th Cir. 2003).
Under the direct method of proof, a plaintiff must show through the preponderance of
direct and/or circumstantial evidence that the employer’s decision to take an adverse job
action against the plaintiff was motivated by an unlawful purpose, such as race or national
origin. Id. at 1061. The indirect method provides a burden-shifting framework in which a
plaintiff who establishes a prima facie case enjoys a presumption of discrimination which
requires the defendant to articulate a legitimate non-discriminatory reason for its actions.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Williamson’s response brief does not indicate whether he is proceeding under the
direct or indirect method. The court will therefore analyze his claim under both, beginning
with the direct method. The direct method of proof utilizes both direct and circumstantial
evidence that goes straight to the issue of intent. Direct evidence of discrimination is,
essentially, an acknowledgment of discriminatory intent by the defendant or its agents,
without reliance on inference or presumption. Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088
(7th Cir. 2000); see also Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001);
Mojica v. Gannett Co., 7 F.3d 552, 561 (7th Cir. 1993). By way of example, the statement “I
fired Judy because she was an old woman” proves intentional discrimination against Judy
based on her age; thus it is direct evidence. Gorence, 242 F.3d at 762. In contrast, the
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statement “Old women are hard to deal with,” without more, does not prove intentional
discrimination against Judy based on her age, and thus it is circumstantial evidence. Id.; see
also Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003) (“Direct evidence essentially
requires an admission by the decision-maker that his actions were based upon the
prohibited animus.”) (citation and internal quotation marks omitted). A plaintiff can
survive summary judgment by producing either type of evidence as long as it creates a
triable issue on whether discrimination motivated the employment action. Diaz v. Kraft
Foods Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011).
With regard to his termination, Williamson argues that he and Mitchell have
“produced direct proof that [Iain Hursey, Scott Wood, and Scott Tubbs] violated Title VII
and rendered [defendant] vicariously liable for their conduct.” (DE # 23 at 12.) “Direct
evidence requires an admission of discriminatory intent, i.e., ‘smoking-gun’ evidence.”
Alexander v. Casino Queen, Inc., 739 F.3d 972, 979 (7th Cir. 2014). Plaintiff Williamson has
not, however, directed the court to any “smoking-gun” evidence regarding his termination.
“A plaintiff may survive a motion for summary judgment based only on circumstantial
evidence under the direct method, but only if the circumstantial evidence presented points
directly to a discriminatory reason for the employer’s action.” Good v. Univ. of Chi. Med.
Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (citation and quotation omitted). Plaintiff Williamson
points to four pieces of circumstantial evidence which he contends establish that
defendant’s decision to fire him “was motivated by an unlawful purpose[.]” Cerruti, 349
F.3d at 1061.
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First, Williamson argues that Wood “was a manager who would not talk to or assist
Black employees that he supervised.” (DE # 23 at 13.) The evidence that plaintiffs cite for
this proposition is Williamson’s deposition testimony that Wood would not assist
Williamson with any questions he had regarding work. (DE # 23-1 at 9; Williamson Dep.
40:2-41:24.) Next, plaintiffs point out that Wood was “rumored to have previously been
fired for using the word ‘nigger’ on the job[.]”(DE # 23 at 13.) Plaintiffs also assert that both
plaintiffs believed that Wood did not like black people. (Id.) Finally, plaintiffs point to the
incident where plaintiff Williamson found Wood’s wallet at a holiday Christmas party and
Wood accused Williamson of trying to steal his wallet. (Id.) This is the incident in which
Wood called Williamson a “black mother fucker.”(DE # 23-1 at 15-21.; Williamson Dep.
114:13-120:10.)
Defendant argues that Wood’s “black mother fucker” comment was a “stray
remark” that was too far removed from plaintiff Williamson’s termination to be relevant.
(DE # 26 at 6.) “Although stray remarks are generally insufficient to establish
discriminatory motivation, an exception may be made where the remark was (1) made by
the decisionmaker, (2) around the time of the decision, and (3) in reference to the adverse
employment action.” Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 850 (7th Cir.
2010). Although defendant does not dispute that Wood participated in making the decision
to fire Williamson, this comment had nothing to do with Williamson’s termination, and
14
presumably,5 was made approximately three months before Williamson was terminated
in March of 2010. Therefore, Wood’s comment, while abhorrent, is not sufficient to create
a reasonable inference of discrimination. Petts v. Rockledge Furniture LLC, 534 F.3d 715, 722
(7th Cir. 2008) (“We have concluded that comments made three and even two months
before the challenged employment action fail to create a reasonable inference of
discrimination.”).
Defendant also argues that plaintiffs’ belief that Wood was racist, including Wood’s
refusal to help Williamson, is insufficient to create an issue of material fact. (DE # 26 at 6.)
The court agrees. “If the subjective beliefs of plaintiffs in employment discrimination cases
could, by themselves, create genuine issues of material fact, then virtually all defense
motions for summary judgment in such cases would be doomed.” Yancick v. Hanna Steel
Corp., 653 F.3d 532, 548 (7th Cir. 2011) (citation and quotation omitted). Plaintiffs have
failed to provide any evidence, other than their own personal beliefs, that Wood’s refusal
to work with Williamson was due to Williamson’s race. This too, therefore, is insufficient
to create a reasonable inference of discrimination.
Plaintiffs also point to rumors that Wood was a racist and was fired from a previous
job for using the word “nigger.”(DE # 23 at 13.) A plaintiff, however, “cannot thwart
summary judgment by asking a court to make inferences based on flights of fancy,
5
The parties have not directed the court to a specific date on which the statement
was made. The statement was made at a Christmas party, however, and the court will
therefore assume it was made sometime in December of 2009, the only December that
Williamson was employed by defendant.
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speculations as to the defendant’s state of mind, hunches, intuitions or rumors about
matters remote from that experience.” Kodish v. Oakbrook Terrace Fire Protection District, 604
F.3d 490, 507-08 (7th Cir. 2010). These rumors are insufficient to create a reasonable
inference of discrimination. McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004)
(“Inferences that are supported by only speculation or conjecture will not defeat a
summary judgment motion.”).
Because Williamson has failed to offer evidence that creates a reasonable inference
of discrimination, his claim cannot proceed under the direct method. The court will
therefore move on to the indirect method analysis.
Using the indirect, or “burden-shifting,” method, the plaintiff carries “the initial
burden under the statute of establishing a prima facie case of . . . discrimination.”
McDonnell Douglas Corp., 411 U.S. at 802 . To establish a prima facie case of discrimination,
a plaintiff must offer evidence that: (1) he is a member of a protected class; (2) his job
performance was meeting the employer’s legitimate expectations; (3) he suffered an
adverse employment action; and (4) another similarly situated individual who was not in
the protected class was treated more favorably.6 Coleman v. Donahoe, 667 F.3d 835, 845 (7th
Cir. 2012). Once such a showing is made, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for its actions. Id. If the employer does so, then the
6
The fourth element is actually not quite so clear. The court will discuss this
issue in more detail below.
16
burden shifts back to the plaintiff to offer evidence suggesting that the offered explanation
is a pretext for discrimination. Id.
Defendant’s only argument with regard to Williamson’s initial prima facie burden
under the indirect method appears to be that Williamson cannot meet element (4) – that
another similarly situated individual who was not in the protected class was treated more
favorably than Williamson. (DE # 22 at 15.) Defendant contends that Williamson’s position
was eliminated due to a reduction in force. (DE # 22 at 14-15.) In a traditional reduction in
force case, which applies when an employee’s position is eliminated completely, the fourth
element of the indirect method is that a similarly situated employee outside of the
plaintiff’s protected class was treated more favorably. Merillat v. Metal Spinners, Inc., 470
F.3d 685, 689 (7th Cir. 2006); see also Reyno v. PNB Remittance Centers, Inc., No. 09 C 4446,
2011 WL 3021300, at *5 (N.D. Ill. July 22, 2011); Steeno v. Wabash Nat. Trailer Centers, 822 F.
Supp. 2d 855, 861 (N.D. Ind. 2011) In a “mini” reduction in force case, which applies when
a terminated employee’s duties are absorbed by other existing staff, the fourth element is
that the terminated employee’s duties were absorbed by someone outside of the protected
class. Merillat, 470 F.3d at 690-91; Steeno, 822 F. Supp. 2d at 861.
Defendant contends that this is a traditional, and not a “mini” reduction in force case
because it “eliminated the heat press operator position altogether, rather than dispersing
the duties of the full-time position among other employees.” (DE # 22 at 14.) Defendant’s
co-owner, Iain Hursey, testified in an affidavit that the jobs that Williamson had done –
heat press and screen stretching in the production department – no longer needed a full-
17
time employee to perform those tasks. (DE # 21-1 at 26-28; Hursey Aff. ¶¶ 7, 9-10.) Hursey
testified that defendant stopped printing jerseys in January of 2010, which significantly
reduced the amount of work needed to be completed using the heat press. (DE # 21-1 at
26-27; Hursey Aff. ¶¶ 7, 9.) But the heat press and screen stretching work was still done
after Williamson’s termination. Hursey testified that other employees continued to work
the heat press and do screen stretching when those tasks needed to be done. (DE # 21-1 at
27-28; Hursey Aff. ¶ 10.)
The pertinent question regarding whether the traditional reduction in force or the
“mini” reduction in force applies in this case is “whether [defendant] still needed
[Williamson’s] job responsibilities to be performed.” Michas v. Health Cost Controls of Illinois,
Inc., 209 F.3d 687, 693-94 (7th Cir. 2000); see also Paluck v. Gooding Rubber Co., 221 F.3d 1003,
1011 n. 5 (7th Cir. 2000) (“When a terminated employee’s duties were absorbed by other
employees, rather than eliminated from the company altogether, we do not require the
former employee plaintiff to make out the prima facie case normally required for reduction
in force cases.”). Here, although Williamson’s duties were scaled back after he left, the
undisputed evidence shows that other employees still performed those tasks. Thus,
defendant still needed Williamson’s job responsibilities to be performed. Michas, 209 F.3d
at 693-94. Therefore, the court concludes that this case is properly designated a “mini”
reduction in force case, and the fourth element of the indirect method is that the terminated
employee’s duties were absorbed by someone outside of the protected class.
18
Because defendant failed to correctly identify the fourth element in this analysis,
neither defendant nor Williamson analyzed whether Williamson’s duties were assumed
by employees outside of the protected class. Hursey’s affidavit, however, reveals that any
future heat press work was done by a white male employee, Chris Kirk. (DE # 21-1 at 2728; Hursey Aff. ¶ 10.) Additionally, Williamson points out in his response brief that
defendant hired a white male, Charles McAfee, to do pre production work that Williamson
had done before he was terminated. (DE # 23-1 at 45.) Due to the fact that neither party
addressed this issue, the court concludes that this evidence is sufficient to raise a question
of material fact on whether Williamson’s duties were absorbed by employees outside of the
protected class.
Because defendant makes no other argument regarding the four elements of
Williamson’s prima facie case under the indirect method, the burden shifts to defendant
to come forward with a legitimate, non-discriminatory reason for its actions. Donahoe, 667
F.3d at 845. In this case, defendant asserts that it terminated Williamson’s employment for
financial reasons: the company’s overhead costs had recently gone up due to the move to
the larger building, and orders for the heat press, the operation of which was Williamson’s
primary duty, had diminished significantly. (DE # 22 at 16.) This is a sufficient articulation
of a legitimate, non-discriminatory rationale for firing Williamson.
This leaves plaintiff at the last phase of the McDonnell Douglas analysis: the pretext
phase. At this point, the court must examine the pertinent issue of whether there was
discrimination in the job action. Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001).
19
“To demonstrate pretext, a plaintiff must show more than that the employer’s decision was
incorrect; the plaintiff must also show the employer lied about its proffered explanation.”
Id. (citations and quotations omitted). Thus, the focus of the pretext inquiry is whether the
proffered reason for the employment decision is a lie. O’Leary v. Accretive Health, Inc., 657
F.3d 625, 635 (7th Cir. 2011). In this case, Williamson attempts to show that defendant’s
explanation for his termination was pretextual by pointing out that defendant was hiring
new employees at a rapid pace around the time that he was terminated. (DE # 23 at 10.)
Williamson directs the court to evidence that within three months of his termination,
defendant had hired ten additional employees, seven of which were hired to handle duties
that Williamson had handled before his termination. (Id.; DE # 23-1 at 44-46.)
The undisputed evidence shows that in addition to working as a heat press operator,
Williamson also performed screen stretching in the pre-production department. (DE # 21-1
at 27; Hursey Aff. ¶ 9) Additionally, Williamson testified that he performed some shipping
and receiving duties, and some pre press duties, including cleaning screens. (DE # 23-1 at
2; see also Williamson Dep. 13:5-22.) Within just a few weeks of Williamson’s termination,
defendant hired two employees to perform catching and packaging duties (Amanda
Montgomery and Mariah Jones) and two employees in the pre press department to clean
screens (Charles McAfee and Tony Pattengale). (DE # 23-1 at 45-46.) In the three months
following Williamson’s termination, defendant hired additional employees to handle
shipping duties and do screen cleaning. (Id.)
20
Although it is possible that a reasonable jury could find that defendant’s decision
to terminate Williamson’s employment was purely financial, a reasonable jury could also
conclude that the decision was made due to Williamson’s race and not financial reasons,
in light of all of the hiring that defendant was doing immediately following Williamson’s
termination. Hasan v. Foley & Lardner LLP, 552 F.3d 520, 531 (7th Cir. 2008) (“Similarly, it
is unclear from the record why Foley hired new associates into its Business Law
Department immediately after firing Mr. Hasan. It is possible that the firm lacked work for
midlevel associates with Mr. Hasan’s skill set and instead needed attorneys with different
experience or training. A jury could also conclude, however, that the Business Law
Department hired new associates because it actually had plenty of work.”). Williamson has
provided enough evidence to allow a reasonable jury to conclude that defendant’s
proffered reason for terminating Williamson’s employment was a lie. O’Leary, 657 F.3d at
635. Defendant’s motion for summary judgment will therefore be denied on plaintiff’s
employment discrimination claim.
ii. Retaliation
Williamson also contends that defendant violated Title VII by failing to consider
rehiring him because he filed a charge of discrimination with the EEOC. (DE # 23 at 5.)
Under Title VII’s anti-retaliation provision, it is unlawful for an employer to “discriminate
against” an employee “because he has opposed any practice made an unlawful
employment practice” by the statute or “because he has made a charge, testified, assisted,
or participated in” a Title VII “investigation, proceeding, or hearing.” 42 U.S.C.
21
§ 2000e-3(a). Like a discrimination claim, a retaliation claim can be established through
either the direct or indirect method. Jajeh v. County of Cook, 678 F.3d 560, 569 (7th Cir. 2012).
To satisfy the direct method of proof, plaintiff must show that: (1) he engaged in a
statutorily protected activity; (2) he suffered an adverse employment action at the hands
of the defendant; and (3) there was a causal link between the protected activity and the
adverse employment action. Id.
A plaintiff may also attempt to prove his retaliation claim under the indirect
method. In a failure-to-hire situation, the prima facie case which must be established by the
plaintiff in the first phase of the indirect method of proof is modified slightly from the
normal formulation. In order to survive the prima facie stage, the unhired plaintiff must
demonstrate that: (1) he engaged in a statutorily protected activity; (2) he applied and had
the qualifications required for the position; 3) he was not hired for the position; and 4) a
similarly situated individual who did not engage in the protected activity was hired for the
position. Cichon v. Exelon Gen. Co., L.L.C., 401 F.3d 803, 812 (7th Cir. 2005).
Defendant argues that it is entitled to summary judgment because Williamson never
applied or inquired about any open positions after he was terminated, and therefore,
cannot show he suffered an adverse employment action. (DE # 22 at 16-17.) Williamson
does not respond to this argument in his response brief, and therefore, has not provided
any argument or evidence in response to defendant’s argument on this issue. It is
undisputed, however, that Williamson never applied for any open positions or contacted
22
any of defendant’s employees to inquire about any openings after being terminated.
(DE # 21-1 at 99; DE # 21-1 at 28; Hursey Affidavit ¶ 11.)
Williamson’s failure to apply for the open positions, express interest in the open
positions, or contact defendant or its employees about open positions dooms his retaliation
claim under the direct and indirect method. “Whether the plaintiff proceeds by the direct
or indirect method of proof, he must show a materially adverse employment action.”
Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004). “To proceed on a refusal-tohire claim, a plaintiff must at a minimum establish that she suffered some adverse
employment action, namely, that [he] was passed over for a job.” Wilson v. Cook County, 742
F.3d 775, 784 (7th Cir. 2014). Williamson, however, has not directed the court to any
evidence that he in any way let defendant know he was interested in being rehired. Sembos
v. Philips Components, 376 F.3d 696, 702 (7th Cir. 2004) (“An employer cannot be liable for
failing to hire a person who does not apply for a job.”); Ritter v. Hill ‘N Dale Farm, Inc., 231
F.3d 1039, 1045 (7th Cir. 2000) (“Having not applied for the position, [plaintiff] cannot
demonstrate a prima facie case of discrimination due to [defendant’s] failure to hire him
as a mechanic.”); Konowitz v. Schnadig Corp., 965 F.2d 230, 234 (7th Cir. 1992) (defendant’s
failure to consider the plaintiff for other openings after a reduction in force “does not lead
to an inference of discrimination, since nothing in the record suggests that he applied for
any jobs or informed the company of his interest”); see also Gaines v. White River Envtl.
P’ship, 66 F. App’x 37, 39 (7th Cir. 2003) (“To establish that [defendant’s] failure to promote
23
him amounted to an adverse employment action, [plaintiff] must demonstrate that he
applied for the promotion.”).7
Williamson’s only response to defendant’s motion for summary judgment on this
issue is directing the court to the EEOC’s determination that defendant violated Title VII
by not recalling Williamson to work due to Williamson filing a charge of discrimination.
(DE # 23-1 at 114.) This determination is based on a statement by defendant’s co-owner Iain
Hursey to an EEOC investigator that he (Hursey) had been willing to hire Williamson back
until he filed his charge of discrimination.8 (DE # 23-1 at 48.) The Seventh Circuit has made
clear that district courts have “great discretion” in the treatment of EEOC determinations.
Silverman v. Board of Educ. of City of Chicago, 637 F.3d 729, 732 (7th Cir. 2011). Even when
considering this evidence, however, it does not create an issue of fact on Williamson’s
retaliation claim. He still fails to show that he suffered an adverse employment action;
Williamson never applied for any positions or expressed his interest in any positions after
he was terminated. Thus, defendant was never given an opportunity to retaliate against
Williamson. Defendant is therefore entitled to summary judgment on Williamson’s
retaliation claim.
7
Additionally, there is no indication that defendant had a practice of rehiring
previously terminated employees. (DE # 23-1 at 44-47.) Furthermore, Williamson did
not file his charge of discrimination until July 10, 2010, and the record reveals that
defendant only hired a handful of employees on or after that date. (Id..)
8
Defendant has moved to strike this evidence (DE # 24), and plaintiffs have not
responded to the motion. The court will address this motion later in the opinion.
24
B. Mitchell
i. Discriminatory Discharge
Plaintiff Mitchell contends that his employment with defendant was terminated
because of his race. As noted above, a plaintiff may prove employment discrimination
under Title VII using either the “direct method” or the “indirect method.” See, e.g., Cerruti,
349 F.3d at 1060-61. It is not clear from plaintiffs’ response brief whether Mitchell is
proceeding under the direct or indirect method. The court will therefore analyze Mitchell’s
claim under the direct method first, before moving on to the indirect method.
Under the direct method of proof, a plaintiff must show through the preponderance
of direct and/or circumstantial evidence that the employer’s decision to take an adverse
job action against the plaintiff was motivated by an unlawful purpose, such as race or
national origin. Id. at 1061; see also Naficy v. Ill. Dep’t of Human Servs. ., 697 F.3d 504, 509 (7th
Cir. 2012) (“To avoid summary judgment using the ‘direct method,’ a plaintiff must
marshal sufficient evidence, either direct or circumstantial, that an adverse employment
action was motivated by discriminatory animus.”).
With regard to his termination, Mitchell argues that he and Williamson have
“produced direct proof that [Iain Hursey, Scott Wood, and Scott Tubbs] violated Title VII
and rendered [defendant] vicariously liable for their conduct.” (DE # 23 at 12.) First,
Mitchell argues that Scott Wood, who Mitchell contends managed him at the time of his
firing, caused Mitchell’s termination “because he did not like Black people, and [because]
Mitchell complained to Woods about company racism two days before his firing.” (DE # 23
25
at 7.) Plaintiffs’ contention that Wood did not like black people is based on several pieces
of evidence that plaintiffs set out in their response brief. The court summarized this
evidence when addressing Williamson’s claims:
First, Williamson argues that Wood “was a manager who would not talk to
or assist Black employees that he supervised.” (DE # 23 at 13.) The evidence
that plaintiffs cite for this proposition is Williamson’s deposition testimony
that Wood would not assist Williamson with any questions he had regarding
work. (DE # 23-1 at 9; Williamson Dep. 40:2-41:24.) Next, plaintiffs point out
that Wood was “rumored to have previously been fired for using the word
‘nigger’ on the job[.]”(DE # 23 at 13.) Plaintiffs also assert that both plaintiffs
believed that Wood did not like black people. (Id.) Finally, plaintiffs point to
the incident where plaintiff Williamson found Wood’s wallet at a holiday
Christmas party Wood accused Williamson of trying to steal his wallet. (Id.)
This is the incident in which Wood called Williamson a “black mother
fucker.”(DE # 23-1 at 15-21.; Williamson Dep. 114:13-120:10.)
See supra p. 14.
Defendant argues that Wood’s “black mother fucker” comment was a “stray
remark” that was too far removed from Mitchell’s termination to be relevant. (DE # 26
at 6.) “Although stray remarks are generally insufficient to establish discriminatory
motivation, an exception may be made where the remark was (1) made by the
decisionmaker, (2) around the time of the decision, and (3) in reference to the adverse
employment action.” Egonmwan, 602 F.3d at 850. Wood’s comment had nothing to do
with Mitchell’s termination, and presumably,9 was made approximately nine months
before Mitchell was terminated in September of 2010. Therefore, as the court noted
9
As noted earlier (see supra n. 5), the parties have not directed the court to a
specific date on which the statement was made. The statement was made at a Christmas
party, however, and the court will therefore assume it was made sometime in December
of 2009, the only December that Mitchell was employed by defendant.
26
earlier, Wood’s comment, while abhorrent, is not sufficient to create a reasonable
inference of discrimination. Petts, 534 F.3d at 722 (“We have concluded that comments
made three and even two months before the challenged employment action fail to
create a reasonable inference of discrimination.”)
Much of Mitchell’s evidence is the same evidence Williamson relied on to
support his claim of discrimination: plaintiffs’ beliefs that Wood was racist, rumors that
Wood was racist, and rumors that Wood was fired from a previous job for using the
word “nigger.” The court explained above (see supra pp. 15-16) why this evidence fails
to create a reasonable inference of discrimination, and the same analysis applies here.
Mitchell also argues that Wood caused Mitchell’s termination because Mitchell
complained to Wood about racism at the company two days before he was fired.
(DE # 23 at 7; DE # 23-1 at 73; Mitchell Dep. 64:6-11.) Although this may be better
categorized as a separate retaliation claim, the fact that Mitchell complained to Wood
about racism two days before he was fired is still insufficient to raise a genuine issue of
material fact because there is no evidence that Wood was the decision maker behind
Mitchell’s termination or was even consulted about whether Mitchell should be
terminated.10 In his affidavit, defendant’s co-owner Iain Hursey stated that he made the
10
In his response brief, Mitchell contends that Wood was his manager at the time
of his firing, but does not support this claim with citation to the record. (DE # 23 at 7.)
In his deposition, Mitchell testified that he believed that Wood had caused his
termination. (DE # 23-1 at 89-91; Mitchell Dep. 154:25-156:-21.) Mitchell, however, failed
to testify how he came to this belief or provide any other evidence that Wood was
actually involved in his termination. This alone is insufficient to defeat summary
judgment. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 401 (7th Cir. 1997) (“[I]f
27
decision to terminate Mitchell’s employment after consulting with weekend manager
Eric Wilson.11 (DE # 21-1 at 29; Hursey Aff. ¶ 14.)
Mitchell has failed to direct the court to any evidence that Wood had any input
into the decision to terminate his employment. Furthermore, Mitchell has failed to
direct the court to any evidence that either Hursey or Wilson knew that Mitchell had
complained to Wood about racism two days before his employment was terminated. In
sum, Mitchell has failed to offer evidence that creates a reasonable inference of
discrimination, and Mitchell cannot proceed past summary judgment using the direct
method.12
the subjective beliefs of plaintiffs in employment discrimination cases could, by
themselves, create genuine issues of material fact, then virtually all defense motions for
summary judgment in such cases would be doomed.” (citation and quotation omitted).
Additionally, at another point in his deposition, Mitchell testified that he did not report
to Wood, and did not know whether Wood was involved in the decision to terminate
his employment. (DE # 23-1 at 75; Mitchell Dep. 80:9-22.)
11
Because neither party addresses this as a separate retaliation claim, the court
will not go into a retaliation analysis. But even if the court were to do a separate
retaliation analysis, it is unlikely that Mitchell’s claim would survive summary
judgment, as he has failed to direct the court to evidence that either Wilson or Hursey
knew about his complaints to Wood. Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir.
2009) (“Clearly, a superior cannot retaliate against an employee for a protected activity
about which he has no knowledge.”).
12
Although Mitchell does not argue this point in his response brief, it also
appears that Mitchell told weekday production manager Scott Tubbs about the items
left on his desk the weekend before he was fired. (DE # 21-1 at 56; Mitchell Dep. 55:6-8.)
Mitchell, however, does not direct the court to any evidence that Tubbs was involved in
his termination or that either Wilson or Hursey knew about his complaint to Tubbs.
Erickson, 569 F.3d at 788.
28
Using the indirect, or “burden-shifting,” method, the plaintiff carries “the initial
burden under the statute of establishing a prima facie case of . . . discrimination.”
McDonnell Douglas Corp., 411 U.S. at 802. To establish a prima facie case of
discrimination, a plaintiff must offer evidence that: (1) he is a member of a protected
class; (2) his job performance was meeting the employer’s legitimate expectations; (3) he
suffered an adverse employment action; and (4) another similarly situated individual
who was not in the protected class was treated more favorably. Donahoe, 667 F.3d at 845.
Once such a showing is made, the burden shifts to the employer to articulate a
legitimate, non-discriminatory reason for its actions. Id. If the employer does so, then
the burden shifts back to the plaintiff to offer evidence suggesting that the offered
explanation is a pretext for discrimination. Id.
Defendant argues that it is entitled to summary judgment under the indirect
method because the undisputed evidence shows that Mitchell was not meeting
defendant’s legitimate expectations. (DE # 22 at 18.) Defendant also argues that Mitchell
cannot show pretext. (Id.) “In cases like this, where the question whether the employee
was meeting the company’s legitimate expectations merges with the question whether
the company’s reasons for the discharge are honest, we focus on the issue of pretext.”
Fore v. Lakeside Buses of Wisconsin, Inc., 392 F. App’x 478, 479-80 (7th Cir. 2010); see also
Senske v. Sybase, Inc., 588 F.3d 501, 506-07 (7th Cir. 2009) (same).
As noted earlier, the focus of the pretext inquiry is whether the proffered reason
for the adverse employment action is a lie. O’Leary, 657 F.3d at 635. Defendant’s
29
proffered reason for terminating Mitchell’s employment was that Mitchell was
“performing poorly, making numerous errors which were causing delays for the
weekday production department.” (DE # 22 at 18; DE # 21-1 at 29; Hursey Aff. ¶ 14.) In
response, Mitchell argues that “defendant has not produced a shred of written evidence
kept in the ordinary course of business that would corroborate [defendant’s assertion
that Mitchell was performing poorly].” (DE # 23 at 11.) Mitchell also points out that
defendant’s Employer-Employee Relations Policy Manual states that defendant
endorses a policy of progressive discipline that gives employees notice of deficiencies
and opportunities to improve. (Id.; DE # 23-1 at 96.)
Defendant has supported its argument that Mitchell was performing poorly with
admissible evidence. (DE # 22 at 18; DE # 21-1 at 29; Hursey Aff. ¶ 14.) “An employee
may demonstrate that the employer’s reasons are unworthy of credence through
evidence showing (1) that the proffered reasons had no basis in fact, (2) that the
proffered reasons did not actually motivate his discharge, or (3) that they were
insufficient to motivate discharge.” Silverman v. Board of Educ. of City of Chicago, 637 F.3d
729, 738 (7th Cir. 2011). Mitchell has not done that here. Instead of directing the court to
evidence that defendant’s reason for terminating his employment was “unworthy of
credence,” Mitchell argues that defendant did not follow the procedures set out in its
employee handbook. (DE # 22 at 15.) This argument is unpersuasive.
In Hague v. Thompson Distribution Co., the plaintiffs attempted to establish pretext
on their race discrimination claim by pointing out that defendant had failed to follow
30
the progressive discipline policy set out in the company handbook. 436 F.3d 816, 828
(7th Cir. 2006). Although the policy did call for a progressive disciplinary structure, it
also allowed the defendant to fire its employees immediately. Id. The Seventh Circuit
concluded that because the defendant’s policy allowed it to fire its employees
immediately, the defendant did not violate its own policy, and the defendant’s failure to
use progressive discipline did not constitute evidence of pretext. Id.
In this case, Mitchell correctly points out that defendant’s employee manual
“endorses a policy of progressive discipline in which it attempts to provide employees
with notice of deficiencies and an opportunity to improve.” (DE # 23-1 at 96.) The
manual goes on to state, however, that defendant “retain[s] the right to administer
discipline in any manner it sees fit.” (Id.) Thus, like the defendant in Hague, defendant’s
failure to use progressive discipline in Mitchell’s case did not violate its own policy, and
is therefore not evidence of pretext.
Mitchell has offered no other evidence of pretext. His claim therefore cannot
proceed under the indirect method, and defendant is entitled to summary judgment on
Mitchell’s discriminatory discharge claim.
ii. Hostile Work Environment
Mitchell also claims that he was subjected to a hostile work environment,
claiming that he was harassed based on his race and his religion. Title VII is violated
“when the workplace is permeated with discriminatory intimidation, ridicule, and
insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim’s
31
employment and create an abusive working environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (citations and quotations omitted). “To avoid summary judgment
on a hostile work environment claim, a plaintiff must provide sufficient evidence to
create a genuine issue of material fact as to four elements: (1) the work environment
must have been both subjectively and objectively offensive; (2) [his race or religion]
must have been the cause of the harassment; (3) the conduct must have been severe or
pervasive; and (4) there must be a basis for employer liability.” Chaib v. Indiana, 744 F.3d
974, 985 (7th Cir. 2014). In its motion for summary judgment, defendant argues that
Mitchell fails to present evidence sufficient to create a genuine issue of material fact on
elements (1) and (4). (DE # 22 at 19, 24.) The court need only address the fourth element
- employer liability - to resolve defendant’s motion.
Defendant argues that Mitchell’s hostile work environment claim fails because
Mitchell “never reported any of the alleged harassing incidents[,]” and therefore, argues
there is no basis for employer liability. (DE # 22 at 24.) Mitchell does not directly
respond to this argument in his response brief.
“Whether there is a basis for employer liability depends on whether the alleged
harassment was perpetrated by a supervisor or a coworker.” Jajeh v. County of Cook, 678
F.3d 560, 568 (7th Cir. 2012). “An employer may be strictly liable for harassment by
supervisors, but a negligence standard applies for harassment by coworkers.” Id. Thus,
in order to establish liability on a hostile work environment claim, a plaintiff must
establish either “(1) that a supervisor participated in the harassment that created the
32
hostile work environment or (2) that [the employer] was negligent in discovering or
remedying harassment by his coworkers.” Montgomery v. American Airlines, Inc., 626
F.3d 382, 390 (7th Cir. 2010). The Supreme Court recently determined that an employee
is a supervisor “for purposes of vicarious liability under Title VII if he or she is
empowered by the employer to take tangible employment actions against the victim.”
Vance v. Ball State Univ., –––U.S. ––––, 133 S. Ct. 2434, 2454 (2013). The court will first
address whether Mitchell has presented evidence that the alleged harassment he was
subjected to was caused by a supervisor.
a. Supervisor Participation
In this case, Mitchell has provided evidence of several instances of racial and
religious harassment by defendant’s employees. Mitchell, however, was only able to
identify the person behind the harassment for some of these incidents. Mitchell has not
identified the employee (or employees) he believes was involved in the following
incidents: the doll’s head with the noose made out of tape around it (DE # 21-1 at 58-59,
62-63; Mitchell Dep. 58:19-22, 59:8-15, 74:21-75:18); the tail made out of rope that
employees would pin on their co-workers’ backs (DE # 21-1 at 58-59; Mitchell Dep.
59:17-21, 60:11-21); the pyramid found at his work station (DE # 21-1 at 47-48; Mitchell
Dep. 46:3-47:18); the “Eye of Horus” at his work station (DE # 21-1 at 48-49; Mitchell
Dep. 47:19-48:23); the drawings posted near his workspace of the woman defecating
into the shark’s mouth and of co-worker Andrew Rowe wearing his Black Expo shirt
33
(DE # 21-1 at 65-68; Mitchell Dep. 86:13-89:6); and the Bob Marley poster and music
(DE # 21-1 at 52-55; Mitchell Dep. 51:17-54:2).
There is no evidence that a supervisor was involved in these incidents, and it is
not reasonable to infer that a supervisor was behind this conduct when there is no
evidence indicating that to be the case. See Hrobowski v. Worthington Steel Co., 358 F.3d
473, 478 (7th Cir. 2004) (no issue of material fact as to whether supervisor contributed to
hostile work environment when there was no evidence that a “particular person” with
the power to change the terms and conditions of the plaintiff’s employment was
involved with the harassment); see also Wright v. Porters Restoration, Inc., Cause No.
2:09–CV–163, 2010 WL 5184891, at *4 (N.D. Ind. Dec. 13, 2010). The court will therefore
focus on the incidents that Mitchell was able to associate with a particular co-worker.
First, co-worker Andrew Rowe called Mitchell “Kunta Kinte,” which is,
presumably, a reference to the lead character in the 1977 TV Miniseries “Roots.”
Mitchell testified that John Kaiser observed this incident, but did nothing in response to
seeing it. (DE # 21-1 at 43-44; Mitchell Dep. 40-41.) There is no dispute that Rowe was
Mitchell’s co-worker.13
Mitchell also testified about another incident involving Kaiser. Prior to moving
to the new building, Kaiser showed Mitchell a picture of a raccoon, and then stated:
“Coons. Get it? Coons.” Mitchell understood this to be “referring to blacks being called
13
Mitchell also testified that there was another incident involving Rowe that he
found offensive - Rowe wore a “Black Expo” shirt to work. (DE # 21-1 at 60-61; Mitchell
Dep. 72:15 - 73:6.)
34
coons.” Mitchell did not testify that Kaiser called him a “coon” directly, and did not
report this incident to anyone else. (DE # 21-1 at 49-52; Mitchell Dep. 48:24 - 54:16.)
Mitchell referred to Kaiser as a supervisor in his deposition and in his response
brief. (DE # 21-1 at 43-44; Mitchell Dep. 40-41; DE # 22 at 8.) Mitchell has failed to direct
the court to any evidence, however, that Kaiser had authority to take any tangible
employment actions against him, and the evidence the court has before it indicates the
opposite is true. In his deposition, Mitchell identified the employees that he believed
could terminate other employees, and Kaiser was not listed as one of those employees.
(DE # 21-1 at 74-75; Mitchell Dep. 120:2- 121:2.) Additionally, co-owner Iain Hursey
testified that Kaiser had no authority to hire or fire any other employees, and in fact,
testified that Kaiser was merely one of Mitchell’s co-workers. (DE # 21-1 at 28; Hursey
Affidavit ¶ 12.) Mitchell’s testimony that he considered Kaiser to be his supervisor is
not sufficient to raise an issue of fact as to whether Kaiser had authority to take tangible
employment actions against him, when the only evidence the court has indicates
otherwise. Wilson v. Moulison North Corp., 639 F.3d 1, 10 (1st Cir. 2011) (“[S]tanding
alone, an employee’s subjective belief is insufficient to create a triable issue of material
fact about a coworker’s status.”). Because Mitchell has failed to direct the court to any
evidence that Kaiser had the authority to take tangible employment actions against
Mitchell (or any other employee), the court will treat Kaiser as a co-worker for purposes
of this analysis.
35
Mitchell is therefore left with the three images he found on his desk two days
before his employment was terminated. First, Mitchell found a note written to him in
what he described as Ebonics.14 (DE # 21-1 at 82; DE # 21-1 at 44-45; Mitchell Dep. 41:19
- 42:25.) Mitchell also found an image of a monkey with a hand over its mouth at his
workstation. The image was a legitimate image used in a job for one of defendant’s
customers. (DE # 21-1 at 46-47; Mitchell Dep. 45:6 - 46:2.) Finally, Mitchell found a piece
of paper with the phrase “I am prepared to hoist the black flag. Giving me a reason will
start a storm of violence in this country not seen since 1776.” A customer had requested
this saying to be printed on an order of t-shirts. (DE # 21-1 at 55; Mitchell Dep. 54:3-24;
DE # 21-1 at 30.)
Mitchell does not appear to argue that any supervisor was responsible for the
black flag or monkey materials found at his work station, and there is no evidence that
a supervisor was in any way involved with these incidents. See Hrobowski, 358 F.3d at
478. Mitchell does argue, however, that there is a question of material fact regarding
14
The text of that note was as follows:
Dear Dayv,
Do wut Jon sed. That shood keep you bizzy. Even no I wurk today.
Have a grate cat n nat.
Tubz
(DE # 21-1 at 82.)
36
whether manager Scott Tubbs left the note written in what Mitchell described as
Ebonics on his desk. (DE # 23 at 12.)
In response, defendant argues that Mitchell testified that he did not know who
wrote the letter, and therefore, there is no issue of material fact regarding whether
Tubbs wrote the letter. (DE # 26 at 12.) Although Tubbs’s last name (spelled incorrectly)
was signed at the end of the note, (DE # 21-1 at 82) defendant is correct that Mitchell
testified in his deposition that he did not know who wrote the letter. (DE # 23-1 at 61;
Mitchell Dep. 42:8-9.) Additionally, in an email to Tubbs, Mitchell stated that he did not
believe that Tubbs had written the letter, and also stated that he told defendant’s
employees that Tubbs had not written the letter. (DE # 21-1 at 85.) Finally, plaintiff
apparently reported the letter as having Tubbs’s name forged on it. (DE # 21-1 at 44;
Mitchell Dep. 54:19-23.) Thus, plaintiff has not raised a genuine issue of material fact as
to whether Tubbs wrote the letter.15
15
But, even assuming, for the sake of argument, that Tubbs had written the letter,
this fact would still be insufficient to impose strict liability on defendant. As defendant
correctly points out in its reply brief, at the time that the letter was found at Mitchell’s
work station, Mitchell no longer reported to Tubbs. (DE # 26 at 12.) Instead, Mitchell
reported to the weekend shift manager, Eric Wilson. (DE # 21-1 at 28; Hursey Aff. ¶ 12.)
As noted earlier, an employee is a supervisor “for purposes of vicarious liability under
Title VII if he or she is empowered by the employer to take tangible employment
actions against the victim.” Vance, 133 S. Ct. at 2454 (emphasis added). Mitchell has failed
to direct the court to any evidence that at the time of his termination, when he no longer
reported to Tubbs, Tubbs could “take tangible employment actions against” him. Id.; see
also Hrobowski, 358 F.3d at 478 (“[I]t is not enough that [the plaintiff] point to evidence
that just anybody with managerial authority was racially abusive; instead, [the plaintiff]
must show that the harasser was his supervisor.”(emphasis in original)). Therefore, even
if the letter had been left at Mitchell’s work station by Tubbs, it would still not subject
defendant to strict liability for the harassment.
37
In sum, Mitchell has failed to direct the court to any evidence indicating that any
of the alleged acts of harassment were perpetrated by a supervisor. Therefore, the court
will move on to determine whether defendant was negligent in its response to
Mitchell’s co-workers’ harassment.
b. Employer Negligence
Because he has failed to present any evidence that a supervisor was involved in
the harassment, Mitchell must show that defendant “was negligent in discovering or
remedying harassment by his coworkers.” Montgomery, 626 F.3d at 390. “An employer
is only liable for harassment from an employee’s co-workers if it was negligent in its
response to the harassment.” Chaib, 744 F.3d at 985; see also Lambert v. Peri Formworks
Systems, Inc., 723 F.3d 863, 866 (7th Cir. 2013) (“Here, [the harasser] was a co-worker,
and so [the defendant’s] liability turns on whether [the plaintiff] adequately alerted the
company to the problem.”). Although Mitchell does not directly address this issue in his
response brief, the court sees two possible ways that defendant could have been alerted
to the harassment in this case: Kaiser’s awareness of the “Kunta Kinte” and “coon”
comments or Mitchell informing Tubbs about the three items found at his work station
two days prior to his termination. The court will address each in turn.
As noted earlier, Mitchell testified that Kaiser overheard co-worker Rowe’s
“Kunta Kinte” comment. (DE # 21-1 at 43-44; Mitchell Dep. 40-41.) Additionally,
Mitchell testified that Kaiser showed Mitchell a picture of a raccoon, and then stated:
“Coons. Get it? Coons.” (DE # 21-1 at 49-52; Mitchell Dep. 48:24 - 54:16.) The question
38
therefore becomes, whether Kaiser’s knowledge of the “coon” and the “Kunta Kinte”
incidents is sufficient to impose employer liability.
“Notice that is sufficient to trigger employer liability must be given to either
someone with authority to take corrective action or, at a minimum, someone who could
reasonably be expected to refer the complaint up the ladder to the employee authorized
to act on it.” Lambert, 723 F.3d at 866-67 (citations and quotations omitted). In making
this determination, the court must “[f]ocus on whether the information comes to the
attention of someone who ought by specification of his duties or, failing that, general
norms of management to do something about it, either directly or by referring the
matter to some other corporate employee . . . .” Id. at 867. Additionally, “[i]f the
employer has established a set of procedures for reporting complaints about
harassment, the complainant ordinarily should follow that policy in order to provide
notice sufficient for the employer to be held responsible, unless the policy itself is
subject to attack as inadequate.” Id.16
The only evidence that the court has regarding Kaiser’s authority at defendant’s
workplace is that he could not hire or fire employees. (DE # 21-1 at 28; Hursey Affidavit
¶ 12.) Mitchell fails to direct the court to any evidence that would indicate that Kaiser
had any more authority than Mitchell himself or any evidence that Kaiser was in a
16
Defendant’s employee handbook states that “[a]ny employee who believes that
another employee’s words or actions constitute unwelcome harassment has a
responsibility to report the situation as soon as possible.” (DE # 21-1 at 8.) Although the
handbook did not specify who employees should report harassment to, there is no
evidence that Mitchell reported either of these instances of harassment to anyone.
39
position to do something about the incidents he had witnessed. Compare Parkins v. Civil
Constructors of Illinois, Inc., 163 F.3d 1027, 1037-38 (7th Cir. 1997) (unreasonable for the
plaintiff to believe that fellow employee who the plaintiff considered to be a supervisor
would be the type of employee that would convey the plaintiff’s complaints of
harassment when the employee “exercised no discretion or decision-making authority,
other than to assign drivers to the various crews and to the type of truck they drove”),
with Lambert, 723 F.3d at 867 (reasonable jury could conclude that employee that was
expected to report problems up the chain of command had the responsibility to refer
complaints to someone that could address the problem).17 Without any evidence
indicating that Kaiser had more job responsibilities than Mitchell or any other
employee, no reasonable jury could conclude that a complainant could reasonably
expect Kaiser to refer harassment matters to someone that could address the problem.
Therefore, Kaiser’s knowledge of these two incidents is insufficient to impose liability
on defendant.
Mitchell, however, also reported the three items that he found at his desk two
days before his employment was terminated to Tubbs.18 (DE # 22 at 9; DE # 21-1 at 56;
17
Additionally, Kaiser was the person who actually made the “coon” comment,
and “it is unreasonable to expect that [Kaiser] would transmit complaints about himself
to [defendant’s] management.” Parkins, 163 F.3d at 1037.
18
In his deposition, Mitchell testified that he also reported incidents to Kaiser,
but did not elaborate on which incidents he reported or when he reported them.
(DE # 21-1 at 57; Mitchell Dep. 58.) As discussed earlier, however, there is no evidence
that Kaiser was “someone who ought by specification of his duties or, failing that,
general norms of management to do something about it, either directly or by referring
40
Mitchell Dep. 55:6-8.) Tubbs was undoubtedly “someone with authority to take
corrective action or, at a minimum, someone who could reasonably be expected to refer
the complaint up the ladder to the employee authorized to act on it.” Lambert, 723 F.3d
at 866-67. Thus, the question becomes whether defendant was negligent in its response
to Mitchell’s complaints about the three items left at his work station two days before he
was terminated.19
Mitchell, however, does not appear to make any sort of argument that defendant
was negligent in its response to Mitchell’s complaints about the items left on his work
station two days before he was fired. (See DE # 23.) And the only evidence the court has
regarding what action, if any, defendant took in response to Tubbs being informed
about Mitchell’s complaint is that Mitchell did not know if defendant took any action in
response to his complaint. (DE # 23-1 at 62; Mitchell Dep. 43.) Despite this lack of
evidence, the court still concludes that there is no basis for employer liability in this
the matter to some other corporate employee . . . .” Lambert, 723 F.3d at 867.
19
Mitchell has not put forth any argument that defendant was on constructive
notice about the other instances of racial and religious harassment that he failed to
report. See Mason v. Southern Ill. Univ., 233 F.3d 1036, 1046 n.8 (7th Cir. 2000) But even if
Mitchell had made this argument, it would still fail because there is insufficient
evidence that defendant should have known about the unreported alleged racial and
religious harassment. Cf. Wilson v. Chrysler Corp., 172 F.3d 500, 507-09 (7th Cir. 1999)
(genuine issue of material fact as to defendant’s liability on hostile work environment
claim where evidence showed, among other things, that incidents of harassment,
including fake penises sent down the plaintiff’s assembly line past her work station,
nude photographs taped to the car she was working on, and lewd greeting card sent to
the plaintiff, signed by numerous employees including a supervisor, took place in a
“peculiarly communal employment forum”), overruling on other grounds recognized by Lee
v. City of Salem, Ind., 259 F.3d 667 (7th Cir. 2001).
41
case, as no reasonable jury could conclude that defendant was negligent for failing to
correct Mitchell’s co-workers’ behavior.
Plaintiff has not directed the court to any evidence that he faced any additional
harassment after he reported the three items left at his work station to Tubbs.20 See
Chaib, 744 F.3d at 985-86 (“[Plaintiff] points to no evidence in the record which
establishes that, after reporting a co-worker to her supervisors, she ever had a
subsequent problem with that individual.”) Thus, any negligence by defendant in
investigating and responding to Mitchell’s complaint could not have contributed to
Mitchell’s alleged hostile work environment because Mitchell never experienced any
further harassment after reporting the alleged harassment to Tubbs. Zimmerman v. Cook
County Sheriff’s Dep’t, 96 F.3d 1017, 1019 (7th Cir. 1996) (“Unless a defendant’s wrong is
a cause of the plaintiff’s injury, there is no liability.”); see also See Hrobowski, 358 F.3d at
478 (“[Defendant] will not be liable for the hostile environment absent proof that it
failed to take appropriate remedial measures once apprised of the harassment.” (emphasis
in original) (citations and quotations omitted)). Therefore, the court concludes that
defendant is entitled to summary judgment on Mitchell’s hostile work environment
claim.
20
Plaintiff also may have reported this incidents to manager Scott Wood on the
same day he talked to Tubbs. (DE # 23 at 7; DE # 23-1 at 73; Mitchell Dep. 64:6-11.) This
fact does not change the court’s analysis.
42
IV.
Other Motions
Defendant has moved to strike portions of the evidentiary appendix attached to
plaintiffs’ response brief. (DE # 24.) In their appendix, plaintiffs have submitted a
memorandum written by an EEOC investigator regarding plaintiffs’ claims of
discrimination. (DE # 23-1 at 48-52.) This memorandum details the investigator’s visit to
defendant’s business to investigate plaintiffs’ allegations of discrimination. (Id.)
Defendant has also moved to strike other parts of the appendix that refer to the EEOC
memorandum. (DE # 25 at 2-3.)
The court is only denying defendant’s motion for summary judgment as it relates
to one claim, and the court did not rely on any of the evidence defendant seeks to strike
in reaching that conclusion. (DE # 25.) Therefore, defendant’s motion to strike will be
denied as moot.
Plaintiffs have also requested that the court set this matter for a status
conference. (DE # 27.) That motion will be denied. The parties’ attorneys are directed to
confer regarding possible trial dates, then contact the undersigned’s courtroom deputy
for scheduling.
V.
Conclusion
For the foregoing reasons, defendant Graphic.22 Inc.’s motion for summary
judgment (DE # 21) is GRANTED as it relates to plaintiff James Williamson’s retaliation
claim and plaintiff David Mitchell’s discriminatory discharge and hostile work
environment claims, and DENIED as it relates to plaintiff Williamson’s discriminatory
43
discharge claim. Defendant’s motion to strike (DE # 24) is DENIED AS MOOT.
Plaintiffs’ motion for a status conference (DE # 27) is DENIED.
SO ORDERED.
Date: July 21, 2014
s/James T. Moody________________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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