TURNER v. NICE-PAK PRODUCTS, INC.

Filing 35

ORDER - granting defendant's 31 Motion for Summary Judgment. Final judgment shall issue accordingly *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 1/12/2017. (CKM) (Main Document 35 replaced on 1/12/2017) (CKM).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

PAUL TURNER,

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Plaintiff,
vs.
NICE-PAK PRODUCTS, INC.,
Defendant.

1:15-cv-00539-SEB-DML

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Defendant’s Motion for Summary Judgment
[Docket No. 31], filed on October 17, 2016. 1 Plaintiff Paul Turner has brought this
action against his former employer, Defendant Nice-Pak Products, Inc. (“Nice-Pak”),
alleging that Nice-Pak discriminated against him in the workplace and ultimately
terminated him because of his race (African-American) and then retaliated against him,
all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). 2 For the reasons
detailed in this entry, we GRANT Defendant’s Motion for Summary Judgment.
Factual Background

1

Defendant originally filed its motion for summary judgment on March 24, 2016 [Dkt. No. 25].
However, on September 16, 2016, the Court stayed that motion pending the filing of a revised
motion and accompanying briefing responsive to the Seventh Circuit’s decision in Ortiz v.
Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). We have before us now that revised
motion.
2
Although Mr. Turner’s complaint references a hostile work environment, his response brief
makes clear that he is not bringing a separate hostile work environment claim against Nice-Pak
but rather simply claims that the hostile behavior he alleges he endured may be evidence to
support his disparate treatment claims.

1

General Background
Nice-Pak is a global manufacturer of wet-wipe products. Nice-Pak has two
production facilities in Indiana, one located in Mooresville and the other in Plainfield.
Mr. Turner began his employment with Nice-Pak on November 11, 2013, when he was
hired on at Nice-Pak’s Mooresville facility as an Operator in Training. Mr. Trainer was
assigned to “D shift,” which works alternating 12-hour shifts from 6 p.m. to 6 a.m.
According to Nice-Pak, Mr. Turner’s immediate supervisor was Production Supervisor
Sharon Rodebaugh. Mr. Turner, however, maintains that when he was hired he initially
reported to a man named Barry Ferguson and that after Mr. Ferguson left Nice-Pak
approximately two weeks later, Mr. Turner was never assigned a new supervisor,
although he acknowledges that Ms. Rodebaugh “seemed to be filling in for [Mr.
Ferguson] in some respects….” Turner Decl. ¶ 7. In any event, it is undisputed that Ms.
Rodebaugh signed Mr. Turner’s performance evaluation and written discipline.
Rodebaugh Decl. ¶¶ 4, 18.
As an Operator in Training, Mr. Turner was trained to become a Machine
Operator, which involved his learning to operate the Integra machine on production line
44, which manufactures the packaging products for the wet wipes. Each Operator in
Training is assigned a certified Machine Operator who oversees the new employee’s
training. Mendy Plaskett, who was certified on the Integra machine, was assigned to
train Mr. Turner. Prior to being assigned as Mr. Turner’s trainer, between March and
May 2013, Ms. Plaskett trained another Nice-Pak employee, Brittany Hoosier, who is
white, on the Ilapak machine.
2

The Probationary Period of Employment
Pursuant to the Employment Practices section of Nice-Pak’s Employee Handbook
(“the Handbook”), all new hires undergo a three-month introductory or probationary
period of employment. This introductory or probationary period is intended to provide
new hires with an opportunity to learn about the Company and their job responsibilities.
It also allows the employer’s supervisor to evaluate the employee’s skills, work habits,
and performance to determine if the employee should continue to be employed by NicePak beyond the probationary period. The “New Hire Orientation” section of the
Handbook outlines specific expectations for its employees during the introductory period,
which include as follows:
During the first three (3) months of employment, Associates should have no
safety infractions, disciplinary issues, and less than three (3) attendance
points. If an employee has any performance issues during the introductory
employment period, the probationary period will be extended to 120 days.
Repeated performance issues, during the probationary period, will result in
termination.
Exh. 3 to Fox Decl.
According to Mr. Turner, although the introductory period is intended to allow the
new hires to learn about the Company and their job responsibilities, Ms. Plaskett did not
properly train him in these respects. Specifically, Mr. Turner alleges that, although the
trainers are supposed to be with their trainees at all times, Ms. Plaskett was often absent
and that Ms. Plaskett failed to train him on the most difficult aspect of the Machine
Operator position, which is called the “changeover.” Turner Dep. at 34-36, 63.

3

According to Mr. Turner, Ms. Plaskett would simply perform the changeover herself, so
he never learned how to properly perform this duty.
Mr. Turner testified that he went through orientation with five or six other
individuals, two of whom were African-American. One of the African-American trainees
was assigned an African-American supervisor. Although Mr. Turner does not have
personal knowledge regarding what training the other trainees received or who each of
their trainers were, he believes, based on conversations he had with other employees, that
he was the only new hire assigned to an “inexperienced” trainer. Turner Dep. at 42-43.
Plaintiff’s Initial Issues with His Trainer
Not long after Mr. Turner’s introductory period of employment began with NicePak, issues arose between him and Ms. Plaskett. On December 13, 2013, Mr. Ferguson,
his supervisor at the time, emailed his supervisor Marc Hull, Human Resources (“HR”)
Generalist Stacy Stelter, and Richard Kruger from the HR Department, outlining various
incidents that reportedly had occurred between Mr. Turner and Ms. Plaskett. In this
email, Mr. Ferguson recounted that on Mr. Turner’s third day of work, November 20,
2013, there was a “conflict” between Mr. Turner and Ms. Plaskett that extended into the
weekend on November 23, 2013, when the two “had words between each other.” Dkt.
33-5. Mr. Ferguson further reported that the next day, on November 24, 2013, Mr.
Turner and Ms. Plaskett were arguing with each other about who was responsible for
taking out the trash. Id. From December 6 through December 8, 2013, “it was a constant
struggle between [Mr. Ferguson] and [Ms. Plaskett].” Id.
4

Mr. Ferguson held individual conferences with Mr. Turner and Ms. Plaskett in
which he addressed these issues with each. He spoke with Ms. Plaskett about the
expectations of her as a trainer and informed her that she had completed a training checkoff document incorrectly by signing off on it all at once. In his notes, Mr. Ferguson
wrote that Ms. Plaskett “needs to be more prepared to train.” Id. Mr. Ferguson also
noted that Mr. Turner “needs to stop and listen more. To not argue, and to accept that he
is the person being trained and not the trainer.” Id. In his December 13, 2013 email, Mr.
Ferguson noted that on December 11, 2013, following his conferences with Ms. Plaskett
and Mr. Turner, “the bickering and argumentative nature continued between the two.”
Id. On December 12, 2013, Mr. Ferguson completed a 30-day audit on Mr. Turner,
noting that Mr. Turner “has a couple items in which to work on [sic].” Id.
Plaintiff’s Complaints to Management
On December 9, 2013, Mr. Turner complained to Mr. Kruger in Nice-Pak’s
Human Resources Department that he was not being properly trained by Ms. Plaskett.
Mr. Turner requested a different trainer because his work environment was “chaotic,”
“hostile,” and “bullying.” Turner Dep. at 29-30. Mr. Turner has testified that he
discussed these issues with Mr. Kruger on more than one occasion and also spoke with
other unnamed individuals in the HR Department, reporting that Ms. Plaskett was not as
experienced as other trainers and that he wanted a new trainer. Mr. Turner stated that
other trainees, including “Brandy,” who is white, were receiving proper training from

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Chiann Bloom. Mr. Turner explained that his situation was akin to “a kid preparing for a
driver’s license test [training] under someone who just got their license.” Pl.’s Resp. at 2.
Mr. Turner testified that Ms. Plaskett tried to “embarrass” him on various
occasions, and would point out things he did wrong in a “bold” and “big” manner.
Turner Dep. at 31-32. Mr. Turner further testified that Thomas Taylor, Value Stream
Coordinator, would blame him for things that went wrong and on one occasion
“pinpointed” his bathroom breaks. Id. at 53. According to Mr. Turner, Mr. Taylor would
approach him in a “hostile nature” to complain about things, such as issues with
paperwork, when he was supposed to address such issues with Ms. Plaskett. Mr. Taylor’s
hostile behavior towards Mr. Turner included being “irritated” and “angry” and raising
his voice. Id. at 54-55.
Plaintiff’s Performance Issues
On December 21, 2013, Ms. Rodebaugh sent an email to Ms. Stelter with NicePak’s HR Department, addressing several issues Rodebaugh was having with Mr.
Turner’s work performance. In that email, Ms. Rodebaugh detailed an argument Mr.
Turner had with a co-worker, Chiann Bloom, regarding whether he should be required to
try to fix one of the machines. Mr. Turner did not believe he should attempt to do so
because he was not certified, but Ms. Bloom told him that because he was in training and
needed to learn, he should attempt to fix the machine and she would be there if he had
questions. According to Ms. Bloom, even after Ms. Plaskett returned to the line and
fixed the machine, Mr. Turner continued to argue with her (Ms. Bloom) and followed her
6

into the break room after she told him to leave her alone. Ms. Bloom wrote a statement
following the incident and indicated that she wanted to file a complaint against Mr.
Turner. Mr. Turner denies that he harassed Ms. Bloom and followed her out of the area
or to the break room.
Ms. Rodebaugh recounted in her email to Ms. Stelter that when she brought Mr.
Turner into her office to discuss the situation, Mr. Turner began to complain about Ms.
Plaskett and his belief that he was not being adequately trained. At that meeting, Ms.
Rodebaugh informed Mr. Turner that he would receive more training and would start to
do the changeovers with Ms. Plaskett. Exh. 1 to Rodebaugh Decl.
Ms. Rodebaugh also recounted in her email to Ms. Stelter that Mr. Turner did not
seem to be absorbing the training he was receiving. For example, she explained, when
she and Ms. Plaskett tried to train Mr. Turner on the changeover process, he had to be
told three times to use the estop button, which is a safety feature of the machine. Ms.
Rodebaugh also reported that Mr. Turner requested to leave for lunch four times while
they were attempting to perform the changeover, even after Ms. Rodebaugh had told him
that he needed to stay and learn the procedure. Ms. Rodebaugh observed that Mr. Turner
refused to complete the changeover paperwork unless Ms. Plaskett told him exactly what
needed to be written down. That same night, Ms. Rodebaugh asked Mr. Turner to
complete test paperwork, explaining to him the importance of the paperwork and the
proper way to complete it. Despite these instructions, Mr. Turner competed the test
paperwork incorrectly and then blamed his prior inadequate training for his mistakes. Id.
7

According to Mr. Turner, he believed that Ms. Plaskett was responsible for completing
the paperwork.
Two days later, on December 23, 2013, Ms. Rodebaugh sent two emails to Marc
Hull (her supervisor at the time) and Ms. Stelter regarding Mr. Turner’s performance and
behavioral issues. In the first email, sent at 6:03 a.m., Ms. Rodebaugh reported that Mr.
Turner had been rude and insubordinate while she was on a production telephone call.
Specifically, Ms. Rodebaugh recounted that she had previously requested of Mr. Taylor
that he collect statements from Mr. Turner and all those involved with the incident
between Turner and Ms. Bloom. After completing his statement, Mr. Turner entered Ms.
Rodebaugh’s office, and, while she was on the call, asked her why he had to write the
statement. According to Ms. Rodebaugh, she told him that she would be with him
shortly, but he returned thereafter on two separate occasions while she was still on the
call, requiring her to tell him three separate times that she could not discuss the matter at
that time because she was on the phone and that he needed to report back to the
production line. Ms. Rodebaugh subsequently talked with Mr. Turner and informed him
that she would be giving the referenced statements to Human Resources. Mr. Turner then
supplemented his statement for Human Resources to complain that Ms. Rodebaugh had
not interrupted her conference call to answer his question and that he did not believe he
should have been made to wait. Exh. 2 to Rodebaugh Decl. Mr. Turner denies acting
insubordinately when he attempted to inquire of Ms. Rodebaugh while she was on the
conference call.

8

In her second email, sent at 6:25 a.m., Ms. Rodebaugh detailed two additional
issues she had experienced with Mr. Turner during that shift. According to Ms.
Rodebaugh, Mr. Taylor reported that he had noticed that none of the information for the
metal detection machine verification paperwork had been completed since 18:00 (6:00
p.m.), so he instructed Mr. Turner to fill in the missing information as “N/A.” Exh. 3 to
Rodebaugh Decl. Mr. Taylor’s instruction reflected the fact that backdating information
on the paperwork is not permitted by the company and is considered falsification.
Accordingly, during orientation, Nice-Pak employees are specifically told that backdating
such paperwork is prohibited. Exh. 5 to Rodebaugh Decl. Despite these instructions, Mr.
Turner completed the paperwork as if the checks had been timely completed and initialed
his entries, thereby falsifying the documentation. Exh. 4 to Rodebaugh Decl. In her
email, Ms. Rodebaugh also reported that Mr. Turner had taken a one hour lunch break
even though employees are allowed only a half an hour for lunch, and that, when he
returned from his lunch break, he reported to the wrong production line. Exh. 3 to
Rodebaugh Decl.
Approximately two weeks later, on January 7, 2014, Mr. Hull emailed Ms. Stelter
to provide an “update” on Mr. Turner. In that email, Mr. Hull stated that Mr. Turner was
“being disruptive again” and that this had become his “normal routine.” Exh. 4 to Fox
Decl. Mr. Hull reported that Ms. Rodebaugh had removed Mr. Turner from training with
Ms. Plaskett because Mr. Turner was causing Ms. Plaskett stress. Mr. Hull stated that

9

Ms. Rodebaugh had moved Mr. Turner to another line to load lids and that there were no
“further issues from him after the move.” Id.
Later that same day, Mr. Taylor sent an email to Mr. Hull stating that he believed
Mr. Turner was “trying everything in [his] power to undermine his training.” Exh. 5 to
Fox Decl. Mr. Taylor wrote that Mr. Turner’s “attitude and sarcasm” were bringing his
team down and that Mr. Turner had Ms. Plaskett “in tears” and no longer wanted to train
him. Id. Mr. Taylor complained that he had instructed Mr. Turner on three occasions on
the procedures required to complete paperwork, but that Mr. Turner “still needs someone
to hold his hand.” Id. Mr. Taylor further noted that he had witnessed Mr. Turner walk
away from Ms. Plaskett when she was attempting to explain things to him “a lot of times”
and that Mr. Turner had “no sense of urgency” on the line. Id.
Mr. Taylor attached notes to his email which described additional performance
issues, including Mr. Turner’s failure on January 3, 2014 to wear a beard net while he
was on the floor, which is a violation of Nice-Pak’s safety policy requiring that protective
gear be worn at all times in the production area. Mr. Taylor also noted that Mr. Turner
exceeded the time of his allotted breaks multiple times during his shift that same day.
Hourly production employees are given three fifteen-minute breaks and one 30-minute
lunch break, but, according to Mr. Taylor’s notes, Mr. Turner was tardy returning to work
after almost all of his breaks on January 3, 2014. Id. Mr. Taylor does not deny having
taken extended breaks, but maintains that a number of other employees took similar

10

breaks without consequence and that he was the only one who was closely monitored in
this regard.
On January 9, 2014, Ms. Rodebaugh issued Mr. Turner a final written warning
based on his attendance after he had been absent on December 20, 2013 and January 8,
2014, which resulted in his having accumulated two attendance points. Under Nice-Pak’s
policy, employees are permitted to accumulate no more than three attendance points
during the introductory period of employment. Exh. 6 to Fox Decl. Mr. Turner denies
that he violated the attendance policy.
Ms. Rodebaugh emailed Mr. Hull on January 14, 2014 to inform him of two issues
which had involved Mr. Turner during their shift that day. First, Ms. Rodebaugh reported
that Mr. Turner had gone on break without permission, which caused the Ilapak line to
shut down because the Ilapak operator was unable to complete the Ilapak process without
Mr. Turner being present. Ms. Rodebaugh was required to step in and perform Mr.
Turner’s duties in order for the line to resume running. According to Ms. Rodebaugh,
when Mr. Turner returned from his break, she told him that it was unacceptable for him
to walk off the line without permission, prompting him to argue with Ms. Rodebaugh,
rather than accept the correction. Ms. Rodebaugh told Mr. Turner that it could be
considered job abandonment if he walked off the line again without permission; he
continued to argue with her until she left the area. Exh. 6 to Rodebaugh Decl.
Ms. Rodebaugh reported in her email that approximately thirty minutes later, Mr.
Turner got into an argument with Sarah Svanes, an employee on the Ilapak line, after Ms.
11

Svanes became irritated with Mr. Turner for leaving boxes on the floor that were in her
way. 3 According to Mr. Turner, he had told Ms. Svanes that there was plenty of room to
get around the boxes and then apologized, explaining that he could not leave his machine
to move them. Turner Aff. ¶ 15. Following this dispute, Ms. Rodebaugh collected
employee statements from four employees who had witnessed it, including Ms. Svanes,
who all reported that Mr. Turner spoke in a “very rude way,” called Ms. Svanes “stupid”
and told her to “shut up,” as he started walking toward her aggressively. Exh. 7 to
Rodebaugh Decl. Mr. Turner denies having called Ms. Svanes stupid or acting in an
aggressive manner toward her.
Mr. Turner maintains that the only time he can remember leaving the production
line was one time in January when Ms. Plaskett had instructed him to try to perform the
changeover on the Integra machine. While doing so, Mr. Turner cut his finger and it was
bleeding. Mr. Turner told Ms. Plaskett about his injury and that he needed to go home.
According to Mr. Turner, he does not remember any other occasion when he left the line.
Plaintiff’s Termination
Also on January 14, 2014, Ms. Rodebaugh completed a performance evaluation of
Mr. Turner, giving him an “unsatisfactory” or “needs improvement” rating in every
category, including safety, ability, interpersonal skills, dependability, and approach to
work. Exh. 8 to Rodebaugh Decl. On January 15, 2014, Ms. Rodebaugh, Mr. Hull, and

3

Mr. Turner had at that point been moved from the Integra line (line 44) to the Ilapak line (line
11).

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Mr. Kruger collectively decided to terminate Mr. Turner’s employment before the end of
the introductory period based on his failure to meet Nice-Pak’s performance expectations
in various areas, including his poor attendance, failure to learn his job duties, failure to
follow safety procedures, insubordination, and inability to get along with his co-workers
and managers.
From 2012 through 2014, Nice-Pak terminated a total of forty-eight (48)
employees for failing to meet expectations during the introductory period of their
employment. Of those forty-eight employees, thirty-eight (38) were white, seven (7)
were African-American, two (2) were Hispanic, and one (1) was listed as “Not
Specified.” Exh. B to Fox Decl. ¶ 12.
The Instant Litigation
On April 6, 2015, Mr. Turner filed his Complaint in this action after receiving his
notice of right to sue from the Equal Employment Opportunity Commission (“EEOC”).
As noted above, Nice-Pak filed its original summary judgment motion on March 24,
2016 and its substituted motion on October 17, 2016. The substituted motion is now
fully briefed and ripe for ruling.
Legal Analysis
I.

Standard of Review
Summary judgment is appropriate when the record shows that there is “no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
13

Disputes concerning material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material
fact exist, the court construes all facts in a light most favorable to the non-moving party
and draws all reasonable inferences in favor of the non-moving party. See id. at 255.
However, neither the “mere existence of some alleged factual dispute between the
parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000).
The moving party “bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
The party seeking summary judgment on a claim on which the non-moving party bears
the burden of proof at trial may discharge its burden by showing an absence of evidence
to support the non-moving party's case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle
for resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th
Cir. 1994). Therefore, after drawing all reasonable inferences from the facts in favor of
the non-movant, if genuine doubts remain and a reasonable fact-finder could find for the
party opposing the motion, summary judgment is inappropriate. See Shields Enterprises,
Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of
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Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be
unable to satisfy the legal requirements necessary to establish his or her case, summary
judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v.
AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one
essential element “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at
323.
A plaintiff’s self-serving statements, which are speculative or which lack a
foundation of personal knowledge, and which are unsupported by specific concrete facts
reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee,
246 F.3d 927, 933 (7th Cir. 2001); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999);
Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
The summary judgment standard is applied rigorously in employment
discrimination cases, because intent and credibility are such critical issues and direct
evidence is rarely available. Seener v. Northcentral Technical Coll., 113 F.3d 750, 757
(7th Cir. 1997); Wohl v. Spectrum Mfg., Inc., 94 F.3d 353, 354 (7th Cir. 1996). To that
end, we carefully review affidavits and depositions for circumstantial evidence which, if
believed, would demonstrate discrimination. However, the Seventh Circuit has also
made clear that employment discrimination cases are not governed by a separate set of
rules, and thus remain amenable to disposition by summary judgment so long as there is
no genuine dispute as to the material facts. Giannopoulos v. Brach & Brock Confections,
Inc., 109 F.3d 406, 410 (7th Cir. 1997).

15

Mr. Turner’s claims of racial discrimination (for failure to train and discriminatory
termination) and retaliation under Title VII invoke the Seventh Circuit’s recent decision
in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Until fairly recently, a
plaintiff had two options for proving a claim of discrimination: he could proceed under
the “direct” method of proof or the “indirect” method of proof.
Under the direct method, a plaintiff was required to adduce either direct or
circumstantial evidence that his employer had a discriminatory motivation. Collins v. Am.
Red. Cross, 715 F.3d 994, 999 (7th Cir. 2013). Direct evidence is evidence that “should
‘prove the particular fact in question without reliance upon inference or presumption.’”
Lim v. Trustees of Ind. Univ., 297 F.3d 575, 580 (7th Cir. 2002) (quoting Markel v. Bd. of
Regents of the Univ. of Wisc., 276 F.3d 906, 910 (7th Cir. 2002)) (emphasis removed).
Stated otherwise, direct evidence is essentially an “admission by the decisionmaker that
the adverse employment action was motivated by discriminatory animus.” Darchak v.
City of Chi. Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009). Of course, if the plaintiff
was able to provide direct evidence of discrimination in the workplace, he need not
proceed any further, for this evidence alone would prove his claim.
But given that such “smoking-gun” evidence is exceedingly rare, a plaintiff
proceeding under the direct method could instead point to circumstantial evidence that,
when viewed on whole, established that he had been discriminated against based on some
proscribed factor. See Good v. Univ. of Chi. Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012)
overruled by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Classes of

16

circumstantial evidence include: (1) suspicious timing, ambiguous oral or written
statements, or behavior toward or comments directed at other employees in the protected
group; (2) evidence, whether or not rigorously statistical, that similarly situated
employees outside the protected class received systematically better treatment; and (3)
evidence that the employee was qualified for the job in question but was passed over in
favor of a person outside the protected class and the employer’s reason is a pretext for
discrimination. Id. As the Seventh Circuit explained in Troupe v. May Department Stores
Co., each type of circumstantial evidence might be sufficient by itself depending on its
strength in relation to the other evidence, or it could be used together to “compos[e] a
convincing mosaic of discrimination against the plaintiff.” 20 F.3d 734, 736–37 (7th Cir.
1994). This particular option became known as “the indirect (or ‘mosiac’) way of directly
proving [discrimination].” Coleman v. Donahoe, 667 F.3d 835, 862 (7th Cir. 2012)
(Wood, J., concurring) (emphasis added).
Alternatively, a plaintiff can prove his claim of discrimination under the so-called
indirect method of proof derived from the Supreme Court’s analysis in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the indirect method, the
plaintiff carries “the initial burden under the statute of establishing a prima facie case of
... discrimination.” McDonnell Douglas, 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 met the employer’s legitimate expectations, (3) he suffered
an adverse employment action, and (4) another similarly situated individual who was not

17

in the protected class was treated more favorably than the plaintiff. Coleman, 667 F.3d at
845 (citation omitted). Once a prima facie case is established, a presumption of
discrimination is triggered. The burden then shifts “to the employer to articulate some
legitimate, nondiscriminatory reason” for its action. McDonnell Douglas, 411 U.S. at
802. When the employer does so, the burden shifts back to the plaintiff, who must present
evidence that the stated reason is a “pretext,” which in turn permits an inference of
unlawful discrimination. Id. at 804.
Together, the direct method of proof, comprised of its own direct and indirect submethodologies, and the indirect burden-shifting method of proof derived from McDonnell
Douglas, resulted in what has been described as a labyrinthine system for proving
discrimination, one fraught with “snarls and knots,” which eventually has proven to be
“too complex, too rigid, and too far removed from the statutory question of
discriminatory causation.” Hitchcock v. Angel Corps., Inc., 718 F.3d 733, 737 (7th Cir.
2013). Accordingly, a series of Seventh Circuit opinions followed, each signed onto by a
majority of the Circuit’s judges, which question the relative utility of this “ossified
direct/indirect paradigm.” Id. (collecting cases).
In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit eliminated the submethodologies and analytical divisions of evidence which had developed under the socalled direct method of proof to replace that “rat’s nest surplus of ‘tests’” with a single
issue: “whether the evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or
18

other adverse employment action.” 834 F.3d at 765, 766. Under this new, “simplified”
approach, the “[e]vidence must be considered as a whole, rather than asking whether any
particular piece of evidence proves the case by itself—or whether just the ‘direct’
evidence does so, or the ‘indirect’ evidence.” Id.
The Ortiz court noted that its decision did “not concern McDonnell Douglas or
any other burden-shifting framework.” Id. at 766. However, in the short period of time
since that decision, the Seventh Circuit has stated that the straightforward inquiry in Ortiz
has, indeed, “replaced the notion of two distinct methods of proof – the ‘direct’ and
‘indirect.” Harris v. Office of the Chief Judge of the Circuit Court of Cook Cnty.,—Fed.
Appx.—, 2016 WL 7228703, at *2 (7th Cir. Dec. 13, 2016) (emphasis added). We
struggle to reconcile the Seventh Circuit’s clear preference for a single, simplified
approach in analyzing claims of discrimination with the continued existence and
applicability of the Supreme Court’s directives in McDonnell Douglas. To do so, we
shall view McDonnell Douglas as simply one pattern – one of many – superimposed on
the evidence in an effort to enable a reasonable trier of fact to determine discrimination.
See Knapp v. Evgeros, Inc.,—F. Supp. 3d—, 2016 WL 4720026, at *6 (N.D. Ill. Sept. 9,
2016). However, a district court need not limit itself to analyzing the evidence only
according to the McDonnell Douglas template, nor should it be bound by the formulaic
foxtrot which has developed under that framework.
II.

Discussion of Plaintiff’s Claims
A.

Racial Discrimination
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1.

Failure to Train

Mr. Turner has first alleged that Nice-Pak discriminated against him by failing to
provide him proper training. The denial of job-related training can under certain
circumstances constitute an adverse employment action under Title VII. Durkin v. City
of Chi., 341 F.3d 606, 611 (7th Cir. 2003). In order to succeed on such a claim, however,
Mr. Turner must establish, inter alia, that he was denied training because of his race. See
Pafford v. Herman, 148 F.3d 658, 667 (7th Cir. 1998). Because Mr. Turner has failed to
present any evidence to show that Nice-Pak denied him training under circumstances
giving rise to an inference of discrimination, this claim fails.
Initially, we note that we find no evidence establishing that Mr. Turner in fact ever
received inadequate training. To the contrary, the evidence establishes that all Operators
in Training are assigned a certified Machine Operator to oversee their training and it is
undisputed that Nice-Pak assigned Mr. Turner a certified Machine Operator, Mendy
Plaskett, as his trainer. Mr. Turner nevertheless argues that Ms. Plaskett was
inexperienced and failed to provide the same quality of training as other certified trainers.
Although it appears true that Ms. Plaskett had been a trainer for a relatively short
period of time before Mr. Turner was hired, the undisputed evidence establishes that she
had successfully trained another employee on the Ilapak machine before she was assigned
to train Mr. Turner and that, on November 14, 2013, a few days after Mr. Turner was
hired, she received her certification on the Integra machine. Accordingly, at the time she
trained Mr. Turner on the Integra machine, she had prior experience as a trainer and the
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requisite certification on the Integra machine to train new hires. The fact that Ms.
Plaskett was a relatively new trainer does not alone establish that her efforts amounted to
a failure by Nice-Pak to adequately train Mr. Turner. Moreover, while Mr. Turner
contends that Ms. Plaskett failed to properly train him on the changeover process and on
occasion left him alone on the production line when she should have been supervising
him, the evidence establishes that in addition to her efforts, he also received training from
Mr. Taylor and Ms. Rodebaugh on the changeover process as well as the proper way to
complete the required paperwork. Accordingly, even if the evidence established that Ms.
Plaskett inadequately trained Mr. Turner, it is undisputed that he received additional
training from Mr. Taylor and Ms. Rodebaugh on the duties for which he contends he had
not been properly trained by Ms. Plaskett.
Whether Mr. Turner’s training was in fact inadequate is not determinative in this
case, however, because even if he could establish that he received inadequate training,
there is no evidence from which a reasonable jury could infer that any lack of such
training was the result of discrimination. There is no evidence that any Nice-Pak
employee or supervisor including Ms. Plaskett ever used racially hostile terms or
otherwise displayed racial animus toward him or other African-American employees.
The only evidence put forth by Mr. Turner in support of this discrimination claim is his
view that one white employee from his orientation group, “Brandy,” was able to perform
more skills than he, which he attributes to her having received proper training from

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Chiann Bloom, a trainer whom Mr. Turner believes to have been more experienced than
Ms. Plaskett.
Mr. Turner’s view that one white employee was provided a more experienced
trainer than he was assigned, coupled with his speculation that her ability to perform
more skills was due to her superior training as opposed to some other factor, is plainly
insufficient in terms of raising an inference of discrimination. This conclusion is
buttressed by Mr. Turner’s testimony that there were other African-American employees
in his orientation group, though he was the only new hire who was given an
inexperienced trainer. Rather than support an inference of discrimination, this fact
supports the conclusion that, even if Mr. Turner did receive less thorough training than
other new hires in his orientation group, it was due not to his race but to some nonprotected factor, such as personal animus, which is not actionable under Title VII. See
Overly v. Keybank Nat’l Ass’n, 662 F.3d 856, 864 (7th Cir. 2011) (upholding district
court’s granting of summary judgment because the evidence suggested that personal
animus, rather than gender discrimination was the motive behind the adverse action).
Thus, viewing the evidence as a whole, as we are required to do under Ortiz, Mr. Turner
has failed to adduce evidence to show that he was denied training because of his race. 4

4

Mr. Turner also argues that he had no supervisor assigned to him, thereby depriving him of a
person to evaluate his skills, work habits, and performance. Mr. Turner, however, relies solely
on his own testimony to establish that he was not assigned a supervisor, while the documentary
evidence in the record supports Nice-Pak’s assertion that Ms. Rodebaugh acted as Mr. Turner’s
supervisor. The record establishes that Ms. Rodebaugh wrote several emails about Mr. Turner’s
performance issues, completed his performance review, and signed the written warning he was
issued regarding his attendance. Accordingly, Mr. Turner’s personal belief that Ms. Rodebaugh

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2.

Discriminatory Termination

Mr. Turner also alleges that he was terminated because of his race in violation of
Title VII. He structures his evidence in support of this claim within the McDonnell
Douglas framework, arguing that Nice-Pak’s proffered reason for his termination, to wit,
various work performance issues, is pretext for discrimination because the company did
not apply its legitimate job expectations uniformly and he was disciplined when similarly
situated non-African American employees were treated more favorably. However, even
when viewed in the light most favorable to Mr. Turner, as we are required to do at this
stage in the litigation, the evidence cited by him is wholly insufficient to raise the
inference that he was terminated because of his race. Nice-Pak is, therefore, entitled to
summary judgment in its favor on this claim.
In support of this discriminatory termination claim, Mr. Turner argues that NicePak’s characterization of his performance issues, which according to the company led to
his termination, is subjective and contrary to his own recollection of events. This
difference creates credibility issues that must be decided by a jury, he maintains.
According to Mr. Turner, many of the performance issues cited by Nice-Pak, including,
inter alia, the company’s belief that he was insubordinate toward Ms. Rodebaugh, left the
production line without seeking permission, and was argumentative and difficult to get
along with either did not happen or were mischaracterized. While Mr. Turner does not

was not his supervisor is insufficient to create a triable issue of fact, given the abundance of
documentary evidence to the contrary.

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deny that he did violate certain company policies, such as taking extended breaks and
violating safety procedures, he contends that nearly all employees, white and black, broke
similar rules and yet were not terminated.
However, under well-established Seventh Circuit law, it is not within the court’s
purview to “‘sit as a superpersonnel department’ where disappointed … employees can
have the merits of an employer’s decision replayed to determine best business practices.”
Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir. 2005) (quoting Holmes v. Potter, 384
F.3d 356, 361-62 (7th Cir. 2004)). So long as evidence establishes that Nice-Pak
genuinely believed that Mr. Turner had engaged in misconduct and failed to meet its
legitimate performance expectations during the probationary period, it was entitled to
terminate his employment on that basis. There simply is no evidence in this record from
which a reasonable jury could infer that race, rather than Nice-Pak’s honest belief that
Mr. Turner’s behavior and performance did not meet their legitimate expectations, caused
his discharge. As discussed above in connection with Mr. Turner’s failure to train claim,
Mr. Turner has not alleged that any Nice-Pak employee or supervisor ever used racially
hostile terms or otherwise displayed a racial animus toward him or other AfricanAmerican employees. Although he contends that “nearly every other employee” violated
some of the same policies for which he was terminated, that includes employees of all
races and therefore tends to show, at most, that Mr. Turner may have been singled out
based on some non-protected characteristic. It clearly does not raise an inference of race

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discrimination. For these reasons, Mr. Turner’s claim for discriminatory termination
fails.
B.

Retaliation

Mr. Turner’s retaliation claim cannot survive summary judgment because he has
failed to establish a required element of a Title VII retaliation claim, to wit, that he
engaged in statutorily protected activity. See, e.g., Lord v. High Voltage Software, Inc.,
839 F.3d 556, 563 (7th Cir. 2016) (“A retaliation claim requires proof that the plaintiff
suffered an adverse employment action because of his statutorily protected activity; in
other words, the plaintiff must prove that he engaged in protected activity and suffered an
adverse employment action, and that there is a causal link between the two.”) (citation
omitted)). In his deposition, Mr. Turner testified that he complained about not receiving
adequate training and generally that his work environment was “chaotic,” “hostile,” and
“bullying.” Turner Dep. at 26-29. However, Mr. Turner has presented no evidence that
he notified or otherwise indicated to Nice-Pak that the treatment of which he was
complaining was related to his race or that he had otherwise mentioned discrimination or
racial animus.
It is well-established under Seventh Circuit law that general complaints
unconnected to a protected class are insufficient to support a Title VII retaliation claim.
See Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 888 (7th Cir. 2016)
(holding that the plaintiff’s complaint regarding pay was not protected activity as she did
not mention race or discrimination); Kodl v. Bd. of Educ. Sch. Dist. 45, 490 F.3d 558, 563
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(7th Cir. 2007) (“To constitute protected expression, the complaint must indicate the
discrimination occurred because of sex, race, national origin, or some other protected
class. Merely complaining in general terms of … harassment, without indicating a
connection to a protected class or providing facts sufficient to create that inference, is
insufficient.”) (internal quotation marks and citation omitted). Here, although Mr. Turner
now asserts that he believes he was denied appropriate, sufficient training because of his
race, he has presented no evidence to establish that he ever shared that belief or view with
Nice-Pak. Nor can we find that his general complaints about his work environment,
unconnected as they were with his race or any mention of discrimination, provided
sufficient facts from which Nice-Pak could have or should have inferred that he was
complaining about an unlawful employment practice. Accordingly, Mr. Turner’s
retaliation claim fails for lack of evidence that he engaged in protected activity.
III.

Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is

GRANTED. Final judgment shall issue accordingly.
IT IS SO ORDERED.

Date: ___________________
1/12/2017

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Distribution:
Paul J. Cummings
HENN HAWORTH CUMMINGS
[e-mail]
David M. Henn
HENN LAW FIRM P.C.
[e-mail]
Melissa K. Taft
JACKSON LEWIS P.C. - Indianapolis
[e-mail]
Michael W. Padgett
JACKSON LEWIS P.C. - Indianapolis
[e-mail]

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