Simelton v. Pilot Flying J
Filing
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OPINION AND ORDER: Defendant's motion for summary judgment on plaintiff's Title VII and intentional infliction of emotional distress claims 68 is GRANTED. Plaintiff's battery and Equal Pay Act claims were previously dismissed as a m atter of law 33 . Because no claims remain in this case, the court directs the Clerk to ENTER FINAL JUDGMENT stating: Judgment is entered in favor of defendant Pilot Flying J, and against plaintiff Gary Simelton, who shall take nothing by way of his complaint. Signed by Senior Judge James T Moody on 3/29/2018. (Copy mailed to pro se party)(jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GARY SIMELTON,
Plaintiff,
v.
PILOT FLYING J,
Defendant.
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No. 2:15 CV 33
OPINION and ORDER
I.
BACKGROUND
This case stems from the employment relationship between plaintiff Gary
Simelton, pro se, and defendant Pilot Flying J. Plaintiff began working for defendant in
2004. (DE # 70-1 at 20-21, Pl. Dep. 68-69.) Plaintiff eventually became General Manager
for the Subway restaurant inside a travel center in Gary, Indiana. (Id. at 25, Pl. Dep. 73.)
In his amended complaint and the attached exhibits, plaintiff describes a series
of incidents, beginning in 2007 and culminating in his 2014 resignation, that he believes
amount to racial discrimination. (DE # 8.) The earliest allegations are that on December
4, 2007, Frank McClure, defendant’s Director of Division 5, slapped plaintiff on the back
of the head for an incorrect answer to a question. (Id. at 4.) Additionally, on September
9, 2008, Frank McClure made “racial sounds” mocking the nationality of another
employee, Mr. Tegey. (Id.)
Two years later, on September 21, 2010, a cashier called a customer “the N
word.” General Manager Steve Alberts asked the cashier whey she did so, using the “N
word” himself in the conversation. Plaintiff alleges that Alberts also called African
Americans porch monkeys during this conversation. (Id. at 5.)
Over a year later, a number of incidents occurred in early 2012, according to
plaintiff. On January 16, 2012, Spencer McClure, General Manager at the time, stated
over a headset: “How’s my NWA people doing”; plaintiff interpreted the acronym
“NWA” as standing for “Nigga With Attitude,” and found the comment particularly
insensitive as it occurred on Martin Luther King’s birthday. (Id. at 4.) On January 25,
2012, Spencer McClure’s wife asked plaintiff how his “little monkey” was doing, in
reference to plaintiff’s godchild. (Id.) On January 26, 2012, Spencer McClure started
deleting plaintiff’s emails and tasks, falsified plaintiff’s responses in the system, and
“fart[ed] near [plaintiff’s] face.” (Id. at 7.) On February 16, 2012, Spencer McClure told
another employee that he was not “hiring any more ghetto people here.” (Id. at 7.)
Another two years passed without incident, but on January 27, 2014, Frank
McClure issued plaintiff a letter outlining compensation changes for plaintiff’s position,
specifically with regard to bonuses and the “Partners in Profit” plan. (Id. at 8.) Plaintiff
further claims that on March 6, 2014, plaintiff was told by Jeff Van Horne, Director of
Food Services, he was not the right person to run Subway because of his sales, and
needed to start looking for a new job. (Id. at 7.) On March 9, 2014, plaintiff resigned
citing unbearable conditions (DE # 70-1 at 48), before the compensation structure
change took effect. (DE # 70-1 at 36, Pl. Dep. 85:9-10.)
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The Equal Employment Opportunity Commission (“EEOC”) received plaintiff’s
Charge of Discrimination on July 9, 2014. (DE # 70-1 at 48.) Plaintiff was issued a rightto-sue letter by the EEOC (DE # 1 at 4), and he filed a complaint on January 28, 2015 (DE
# 1) and an amended complaint on June 8, 2015. (DE # 8.) Plaintiff’s amended complaint
alleged that defendant had violated his rights under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5 et seq. (“Title VII”) and the Equal Pay Act, 29 U.S.C. § 206, et
seq. Plaintiff also alleged that defendant committed the torts of battery and intentional
infliction of emotional distress (“IIED”). Defendant was granted judgment on the
pleadings on plaintiff’s Equal Pay Act and battery claims by Chief Judge Theresa L.
Springmann on April 14, 2016. (DE # 33.) This case was reassigned to the undersigned
on May 1, 2017. (DE # 55.)
Defendant moved for summary judgment on August 16, 2017, simultaneously
filing and serving a “Notice of Summary Judgment” to plaintiff, a pro se party, in
accordance with this district’s local rules. (DE ## 68, 71.) Defendant seeks summary
judgment on plaintiff’s Title VII and IIED claims. Plaintiff did not file a response. The
motion is now ripe for ruling.
II.
LEGAL STANDARD
Defendant has moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Rule 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
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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). “[T]he burden on the moving party may be discharged
by ‘showing’–that is, pointing out to the district court–that there is an absence of
evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Because plaintiff failed to file a response to defendant’s motion for summary
judgment, defendant is entitled to summary ruling on the motion – that is, a ruling
without the benefit of plaintiff’s response. However, plaintiff’s failure to respond does
not automatically result in summary judgment for defendant. Wienco, Inc. v. Katahn
Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992). Rather, the court must still “make the
further finding that given the undisputed facts, summary judgment is proper as a
matter of law.” Id. Accordingly, the court’s task is to examine the factual record to
determine whether defendant has met its burden of demonstrating a lack of genuine
issues of material fact warranting summary judgment in its favor.
III.
DISCUSSION
Though plaintiff did not file a response to defendant’s motion for summary
judgment, the court has generously interpreted the record and prior submissions by
plaintiff in deciding defendant’s motion. The court considers these filings even though
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they have not been authenticated or otherwise properly submitted as evidence, giving
plaintiff full benefit of the doubt. Further, the court has liberally construed the amended
complaint and has discerned two Title VII discrimination claims (hostile work
environment and disparate treatment) and an intentional infliction of emotional distress
claim as plausible theories of recovery, even though plaintiff has not necessarily
articulated or developed them as such. The court considers defendant’s motion
regarding these claims, below.
A.
Timeliness of Discrimination Allegations
Plaintiff’s allegations related to his discrimination claims span a time period from
December of 2007 to March of 2014. Plaintiff had 300 days from the date each action
allegedly occurred to file a charge with the EEOC. Pruitt v. City of Chicago, 472 F.3d 925,
927 (7th Cir. 2006). Plaintiff filed his charge with the EEOC in July of 2014. Defendant
does not challenge the timeliness of the allegations regarding the letter from Frank
McClure in January 2014 describing compensation changes, the conversation with Jeff
Van Horne in March 2014, or plaintiff’s eventual resignation. However, defendant
claims that the remainder of the allegations are time-barred and may not be considered
in this lawsuit.
The court agrees that the remainder of the allegations (occurring in a time period
between December 2007 and February 2012) are beyond the 300-day filing window.
However, for purposes of plaintiff’s hostile work environment claim, the court must
consider whether the continuing violation doctrine can assist plaintiff in seeking redress
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for these otherwise time-barred incidents. A hostile work environment claim is timely
as long as any act falls within the statutory time period, even if the claim encompasses
events occurring prior to the statutory time period. Barrett v. Ill. Dep’t of Corr., 803 F.3d
893, 898 (7th Cir. 2015). Although the continuing violation doctrine allows plaintiffs “to
drag up ancient history, to the employer’s prejudice, the length of time between
incidents has been a consistent limiting factor.” Milligan-Grimstad v. Stanley, 877 F.3d
705, 712 (7th Cir. 2017) (internal quotation marks and citations omitted).
In this case, the earliest allegation falling within the limitations period occurred
in January of 2014, two years after the most timely allegations falling outside of the
limitations period, which occurred in January and February of 2012. The Seventh
Circuit has held that a two-year gap in time between allegedly discriminatory events
negates the contention that the acts were continuous or connected for purposes of the
continuing violation doctrine. Tinner v. United Ins. Co. of Am., 308 F.3d 697, 709 (7th Cir.
2002) (rejecting application of continuing violation doctrine in light of two-year gap);
Selan v. Kiley, 969 F.2d 560, 567 (7th Cir. 1992) (same). In short, given the significant span
of time between the events falling within the limitations period and the earlier
allegations, no reasonable fact-finder would conclude that plaintiff’s allegations
describe a “single chain, a single course of conduct” sufficient to defeat the statute of
limitations. Tinner, 308 F.3d at 708. Accordingly, the court considers all allegations timebarred, save the events that allegedly occurred in early 2014.
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B.
Hostile Work Environment
To the extent that plaintiff asserts a hostile work environment claim, the claim
fails. As explained above, the only alleged actions this court will consider are those that
occurred in January through March of 2014. In order to establish a harassment or hostile
work environment claim, “[t]he conduct at issue must have a racial character or
purpose.” Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th Cir. 2004). There is simply no
racial character or purpose discernable from the letter changing plaintiff’s
compensation plan, which plaintiff received in January of 2014, or the conversation with
Jeff Van Horne which occurred in March of 2014 and after which plaintiff resigned.
Accordingly, defendant is entitled to summary judgment on plaintiff’s hostile work
environment claim.
C.
Disparate Treatment
Plaintiff’s complaint can be read to include a disparate treatment claim under
Title VII. Disparate treatment “is the most easily understood type of discrimination. The
employer simply treats some people less favorably than others because of their race.”
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977). “Proof of
discriminatory motive is critical” to such a claim, id., though it can be proven in
different ways. However, the existence of an “adverse employment action” is necessary,
no matter what. Rhodes v. Illinois Dep’t of Transp., 359 F.3d 498, 504 (7th Cir. 2004).
“An adverse employment action is ‘a materially adverse change in the terms and
conditions of employment [that is] more disruptive than a mere inconvenience or an
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alteration of job responsibilities.’” Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001
(7th Cir. 2000) (quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.
1993)) (alteration in Stockett). “Adverse employment actions encompass more than
simply the termination of employment or a decrease in salary. They also may include
actions such as bestowing on an employee ‘a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that might
be unique to a particular situation.’” Id. (quoting Crady, 993 F.2d at 136).
From the record, the court perceives three timely allegations of disparate
treatment: (a) a letter, received by plaintiff in January of 2014, from Frank McClure
outlining changes to plaintiff’s compensation structure; (b) a conversation with Jeff Van
Horne, in which plaintiff claims that he was told to look for a new job; and (c) plaintiff’s
eventual resignation. The court addresses each of these purported adverse employment
actions in turn.
As for the first allegation, the letter plaintiff received from Frank McClure in
January of 2014 regarding changes to plaintiff’s compensation structure, plaintiff
admitted at his deposition that he resigned before the compensation structure change
took effect. (DE # 70-1 at 36, Pl. Dep. 85:9-10.) Accordingly, no adverse employment
action exists with respect to the letter from Frank McClure. Nagle v. Village of Calumet
Park, 554 F.3d 1106, 1121 (7th Cir. 2009) (finding no adverse employment action
occurred and stating that “Nagle did not suffer any hardship connected with the
suspension because he never actually served it”).
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The second allegation is that Jeff Van Horne told plaintiff to find a new job in a
conversation occurring in March of 2014. While this alleged comment may have been
upsetting to plaintiff, it does not constitute an adverse employment action because there
is no question that plaintiff was not terminated during that conversation, nor were any
other terms and/or conditions of employment altered. Even a threat of firing does not
constitute an adverse employment action if the terms and conditions of employment are
not altered. Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 531 (7th Cir. 2003) (“An unfulfilled
threat, which results in no material harm, is not materially adverse.”).
The final allegation is plaintiff’s contention that he was forced to resign because
his working conditions were so intolerable. Legally, this type of adverse employment
action is called a “constructive discharge.” Constructive discharge occurs when an
employee’s job becomes so unbearable that a reasonable person in that employee’s
position would be forced to quit. Roby v. CWI, Inc., 579 F.3d 779, 785 (7th Cir. 2009). The
standard for establishing constructive discharge is extremely high; the situation must be
“even more egregious than that needed for a hostile work environment” claim. Overly v.
KeyBank Nat’l Ass’n, 662 F.3d 856, 864 (7th Cir. 2011). Further, the working conditions
that caused the constructive discharge must be intolerable in a discriminatory way. No
matter how “horrific the conditions,” plaintiff must put forth evidence showing that the
conditions were inflicted upon him because of his protected trait. Vitug v. Multistate Tax
Comm’n, 88 F.3d 506, 517 (7th Cir. 1996). Additionally, “[a] constructive discharge claim
requires evidence that quitting was the only way the plaintiff could extricate [him]self
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from the intolerable conditions.” Gawley v. Ind. Univ., 276 F.3d 301, 315 (7th Cir. 2001).
This requirement “eliminates from consideration” any harassing actions alleged by a
plaintiff about which he did not notify his employer. Id.
The Seventh Circuit has generally reserved the label of “constructive discharge”
for situations involving egregious emotional torment and threats of physical harm. See,
e.g., Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1191 (7th Cir. 1992) (finding
constructive discharge where the employee’s boss consistently made racial comments
and on one occasion held a gun to his head, took a photo, and later showed it at a staff
meeting while joking that “this is what a n[*****] looks like with a gun to his head”);
Brooms v. Regal Tube Co., 881 F.2d 412, 417, 423 (7th Cir. 1989), rev’d in part on other
grounds, Saxton v. Am. Tel & Tel. Co., 10 F.3d 526 (7th Cir. 1993) (plaintiff established
constructive discharge where “repeated instances of grossly offensive conduct and
commentary” culminated with an incident during which a co-worker showed the
plaintiff a racist pornographic photograph, told her that she was hired to perform the
task depicted in the photograph, grabbed the plaintiff, and threatened to kill her).
While Taylor and Brooms may seem like obvious examples of constructive
discharge, the Seventh Circuit has held that other seemingly disturbing conduct did not
rise to the very high level required to establish constructive discharge. See, e.g., Simpson
v. Borg-Warner Auto., Inc., 196 F.3d 873, 877-78 (7th Cir. 1999) (co-worker’s comment that
“someone should take a dish and knock [the plaintiff] upside the head” did not
establish constructive discharge); Dunn v. Washington County Hosp., 429 F.3d 689, 693
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(7th Cir. 2005) (no constructive discharge where doctor pushed nurse against cabinet
and, while he had her pinned, tapper her on the cheek with a closed fist to urge nurse to
withdraw sexual harassment complaint).
In this case, plaintiff claims that he was forced to resign because harassment had
become unbearable. (DE # 70-1 at 65, letter from plaintiff.) Even if the court considers all
of the incidents alleged by plaintiff, including those that are time-barred and those
which plaintiff did not report to management, the conditions described by plaintiff
were not so intolerable as to constitute constructive discharge. Plaintiff experienced the
slap to the head by Frank McClure in 2007, and then heard him make mocking sounds
towards another employee nine months later in 2008. The next year, in 2009, plaintiff
alleges he was demoted. The following year, in September of 2010, plaintiff heard Steve
Alberts, use “the N Word” and “porch monkeys.” In 2011, plaintiff claims he did not
receive certain money that he expected from the company. The following year, in
January and February of 2012, there were several encounters: Spencer McClure used the
term “NWA,” Spencer’s wife referred to plaintiff’s godchild as a “little monkey,”
Spencer started interfering with plaintiff’s work and “fart[ed] near [plaintiff’s] face,”
and Spencer mentioned he was not hiring any more “ghetto people.” (DE # 8 at 7.) Two
years went by without incident, and in January 2014, plaintiff received the letter from
Frank regarding compensation changes. In March 2014, plaintiff was told to find a new
job, and after that, he resigned.
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In total, plaintiff experienced approximately one seemingly-negative incident per
year, except for the cluster of events involving Spencer in 2012, and the final series of
events in 2014. Plaintiff essentially describes many years of occasional, infrequent
negative encounters, not all of which are overtly or obviously racially-tinged, and not
all of which were directed at plaintiff. No egregious emotional torment or threats of
physical harm occurred. One incident of physical contact occurred, with no facts
indicating that the act had any association with plaintiff’s race. All in all, no reasonable
fact-finder considering these facts would conclude “quitting was the only way the
plaintiff could extricate [him]self from the intolerable conditions.” Gawley, 276 F.3d at
315. Unless conditions are beyond “ordinary” discrimination, a complaining employee
is expected to remain on the job while seeking redress. Perry v. Harris Chernin, Inc., 126
F.3d 1010, 1015 (7th Cir. 1997). Plaintiff did not do so; he chose to resign. However, that
resignation does not constitute an adverse employment action for purposes of his
disparate treatment claim.
Because no actionable adverse employment actions are discernable from
plaintiff’s allegations and the evidence in the record, plaintiff’s disparate treatment
claim fails.
D.
Intentional Infliction of Emotional Distress
Plaintiff also sues for IIED under Indiana law. Defendant points out that any
allegations other than those occurring in 2014 are time-barred under Indiana’s two-year
statute of limitations, and the court agrees. Tsitsopoulou v. Univ. of Notre Dame, 2:10 CV
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309, 2011 WL 839669, at *4 (N.D. Ind. Mar 7, 2011) (citing Ind. Code § 34-11-2-4). The
court also agrees with defendant’s argument that the 2014 allegations (the letter from
Frank McClure, the conversation with Jeff Van Horne, and plaintiff’s resignation) do
not constitute outrageous conduct sufficient to sustain an IIED claim. Additionally,
Indiana courts have not permitted IIED claims based on employment relationships gone
sour. Mehling v. Dubois County Farm Bur. Coop. Ass’n, 601 N.E.2d 5, 9 (Ind. Ct. App.
1992) (Indiana recognizes no cause of action for IIED in wrongful discharge case
brought by “at-will” employee); McCreary v. Libbey –Owens–Ford Co., 132 F.3d 1159, 1167
(7th Cir. 1997). For all of these reasons, defendant is entitled to summary judgment on
plaintiff’s IIED claim.
IV.
CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment on
plaintiff’s Title VII and intentional infliction of emotional distress claims (DE # 68) is
GRANTED. Plaintiff’s battery and Equal Pay Act claims were previously dismissed as a
matter of law. (DE # 33.) Because no claims remain in this case, the court directs the
Clerk to ENTER FINAL JUDGMENT stating:
Judgment is entered in favor of defendant Pilot Flying J, and against plaintiff
Gary Simelton, who shall take nothing by way of his complaint.
SO ORDERED.
Date: March 29, 2018
s/ James T. Moody
________
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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