GOODMAN v. CUMMINS, INC.
Filing
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ORDER granting 60 Motion for Summary Judgment. For the foregoing reasons, the Court grants Defendant's Motion for Summary Judgment (ECF No. 60). Final judgment will be entered. ***SEE ORDER FOR ADDITIONAL DETAILS*** Signed by Judge James R. Sweeney II on 9/27/2019. (JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HUBERT GOODMAN,
Plaintiff,
v.
CUMMINS, INC.,
Defendant.
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No. 1:17-cv-02542-JRS-MJD
Order on Summary Judgment
Plaintiff Hubert Goodman sued his former employer, Defendant Cummins, Inc.,
alleging that Cummins subjected him to disparate treatment, a hostile-work environment, and constructive discharge on account of Goodman’s race and nationality.
Goodman brings claims under the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 as amended,
42 U.S.C. § 2000e et seq. Cummins has moved for summary judgment on all claims.
The Court decides as follows:
I.
Factual Background
Plaintiff Hubert Goodman began working for Defendant Cummins, Inc. in May
1997 and he has held a number of positions during his tenure with Cummins. Cummins operates worldwide and places certain high-potential employees in temporary
assignments in another country for a term of six months to three years, known as
“expatriate” assignments. (Linda Shi Decl. ¶ 3, ECF No. 60-3; Lisa Eckelkamp Dep.
10–12, ECF No. 60-4.) These expatriate assignments are viewed as an investment in
Cummins employees. (Shi Decl. ¶ 3, ECF No. 60-3.) From 2010 to 2013, Goodman
held an expatriate assignment in Singapore. From 2013 to 2016, he held an expatriate assignment in Vietnam, working as a Managing Director for a joint venture between Cummins and the Swiss-based company DKSH. (Goodman Dep. 21, ECF No.
60-1; Jensen-Muir Decl. ¶ 3, ECF No. 60-2.) Goodman’s general responsibilities in
that position were sales, service, and support, including people management, profit
and loss responsibility, and being part of the leadership team for Asia Pacific. (Goodman Dep. 79, ECF No. 60-1.) He reported to the Executive Managing Director of Asia
Pacific, Peter Jensen-Muir, and the Board of Directors for the joint venture. (Goodman Dep. 15, ECF No. 60-1; Jensen-Muir Dep. 6, ECF No. 60-2.) Goodman ultimately
resigned from Cummins effective September 30, 2016. He claims he was constructively discharged.
During the time that Goodman was on his expatriate assignment in Vietnam, he
received satisfactory performance evaluations. (Jensen-Muir Decl. ¶ 11, ECF No. 602.) He received raises and bonuses. He never received an unsatisfactory evaluation
or a warning about his job performance. And Goodman was never advised by anyone
at Cummins that his job was in jeopardy. (Goodman Dep. 282, ECF No. 60-1.)
The expiration of his expatriate assignment in Vietnam required Goodman to find
another role at Cummins. (Shi Decl. ¶ 6, ECF No. 60-3.) Cummins does not hold a
particular job open in an employee’s home country when the employee accepts an
expatriate position. (Shi Decl. ¶ 4, ECF No. 60-3.) Instead, an employee must network with other Cummins employees to identify a potential role. (Satterthwaite Dep.
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110, 116, ECF No. 60-8.) Goodman understood that he could return to the United
States without having a role and Cummins would allow him to find a role upon his
return. (Goodman Dep. 160, ECF No. 60-1.)
In July 2015, Goodman requested from Jensen-Muir information on relocating
back to the United States and on a one-way move to Asia (i.e, working in a localized
role without expecting to repatriate). (Jensen-Muir Decl. ¶ 9, ECF No. 60-2.) JensenMuir committed to working with Goodman to find a role in the United States and
supporting his business travel to the United States to facilitate his search. (Id.) Jensen-Muir confirmed in subsequent communications with Goodman that Cummins
would repatriate him. (Id.) In late 2015, President of the Distribution Business Unit
Tony Satterthwaite informed Jensen-Muir that Goodman had requested consideration for “localizing”—transitioning to local employment status without the expectation of repatriation back to the home country— in Vietnam. (Id.; Shi Decl. ¶ 5, ECF
No. 60-3.) But by then the joint venture board was already interviewing candidates
for Goodman’s replacement. (Jensen-Muir Decl. ¶ 13, ECF No. 60-3.)
In December 2015, Goodman explored an opportunity with the joint venture rather than returning to the United States. (Goodman Dep. 113–14, ECF No. 60-1.)
Goodman understood that the board had decided they would probably bring in a new
person, but he asked for consideration anyway. (Goodman Dep. 116, ECF No. 60-1.)
The board concluded that another candidate, Milind Madani, was the superior candidate for the position. (Jensen-Muir Decl. ¶ 18, ECF No. 60-2.) In April 2016, JensenMuir again contacted Satterthwaite and the Executive Director of Human Resources
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for Distribution to reiterate his support for repatriating Goodman to the United
States. (Jensen-Muir Decl. ¶ 19, ECF No. 60-2.)
In early April 2016, Goodman filed a complaint through Cummins’ Ethics Point
website, complaining about certain interactions with Jensen-Muir. (Goodman Dep.
167 & Ex. 13, ECF No. 60-1; Shi Decl. ¶ 8, ECF No. 60-3.) Then in mid-May, Goodman
emailed the President of the Distribution Business Unit, Tony Satterthwaite, claiming that Jensen-Muir had been “badmouthing” him. (Shi Decl. ¶ 8 & Ex. 7, ECF No.
60-3.) Satterthwaite responded that he was unaware of any such “badmouthing,” but
he would ask Shi to initiate an investigation. (Satterthwaite Dep. 123–24, & Ex. 20;
ECF No. 60-8.) Both matters were referred to Right Environment Manager for Asia
Pacific, Stacey Gard, for investigation. (Shi Decl. ¶ 8 & Ex. 8; ECF No. 60-3.) In the
course of her investigation, Gard tried several times to contact Goodman, but he failed
to respond. (Shi Decl. Ex. 8, ECF No. 60-3 at 145.) At the end of her investigation,
which included interviewing three witnesses identified by Goodman, Gard concluded
that Goodman’s complaints were unsubstantiated. (Shi Decl. Ex. 8, ECF No. 60-3 at
138, 144.)
In June 2016, while Goodman was in the United States, Jensen-Muir offered to
extend Goodman’s expatriate assignment to allow him more time to find a U.S. role.
(Goodman Dep. 199, ECF No. 60-1; Jensen-Muir Decl. ¶ 21, ECF No. 60-2.) JensenMuir understood that Goodman wanted to consider the offer and wait until the week
of July 4, 2016 to respond. (Jensen-Muir Decl. ¶ 21, ECF No. 60-2.) Goodman accepted the three-month extension, making his Vietnam assignment end date October
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15, 2016. (Goodman Dep. 202, ECF No. 60-1.) Goodman understood that he could
return to the U.S., that is, repatriate, without having a role and find a role upon his
return. (Goodman Dep. 160, ECF No. 60-1.)
On July 11, 2016, Goodman sent an email to Vice President - Chief Human Resources Officer Jill Cook, notifying Cummins that he had “been subjected to illegal
discrimination on the basis of national origin, additionally age and race.” (Goodman
Dep. 235–36 & Ex. 25, ECF No. 60-1; Shi Decl. ¶ 12, ECF No. 60-3.) Goodman’s email
did not provide any detailed information about the alleged discrimination. The complaint was referred to Director of Human Resources – Service Functional Talent Management, Larry Williams, for investigation. (Shi Decl. ¶ 12, ECF No. 60-3.) Williams
interviewed several witnesses, including Goodman, and in mid-August 2016, determined that the complaint was unsubstantiated. (Shi Decl. Ex. 10, ECF No. 60-3 at
156.)
Before Goodman’s expatriate assignment ended, Cummins presented him with
several employment opportunities, but he decided not to pursue them. (Compl. ¶¶
106–07, ECF No. 1.) First, Robert Enright, General Manager of New and ReCon
Parts in Cummins’ Supply Chain Organization, emailed Goodman on June 1, 2016,
and spoke with him around June 8, about a potential relationship manager role in
his organization, with a potentially higher salary grade level than his current level.
Goodman stated that he would get back to Enright in early July about his interest in
the role. (Enright Decl. ¶ 4, ECF No. 60-10.) However, Goodman failed to respond
throughout July and in late August emailed Enright, declining to be considered for
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the position in favor of “wait[ing] till my return before committing to a role.” (Goodman Dep. 222–23, 225, 226, ECF No. 60-1; Enright Decl. ¶¶ 4-6 & Ex. 1, ECF No. 6010.) By that time, Enright had started moving forward and asked Goodman to advise
if he would like to be included in the process. (Enright Decl. ¶¶ 5-6 & Ex. 1, ECF No.
60-10.) Goodman advised Enright that he did not have an interest in being included
in the selection process for the role. (Id.) Enright ultimately hired Patrick Wolf for
the position, and as of the date of Enright’s declaration at the end of October 2018,
Wolf was still in that role. (Enright Decl. ¶ 8, ECF No. 60-10.)
Second, around August 15, 2016, Norbert Nusterer, President of the Power Systems Business Unit, contacted Goodman about potential project manager roles in his
business unit. Nusterer said that he did not actually have a job, but was willing to
find something for Goodman. (Goodman Dep. 244–46, ECF No. 60-1; Nusterer Dep.
49 & 99, ECF No. 60-9 at 4.) At first Goodman was interested, but the next day he
told Nusterer that he preferred not to pursue any opportunities in the Power Systems
space and that he had lost all trust in Cummins. (Goodman Dep. 246–47, ECF No.
60-1; Nusterer Dep. 49 & Ex. 99, ECF No. 60-9 at 5.)
In addition, during Goodman’s June 2016 visit, Bill Haley, the Supply Chain
Leader (and part of the distribution leadership team) said to Goodman that if he could
not find a role, Haley would give him a job. (Goodman Dep. 226, ECF No. 60-1.) Yet
Goodman never pursued that opportunity.
In late August, Cummins paid for Goodman to go on a “repatriation” trip with his
wife to explore job and housing opportunities in the United States. (Shi Decl. ¶ 13,
ECF No. 60-3.) Within a week of returning from that trip, on September 8, 2016,
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Goodman resigned from Cummins, effective September 30, 2016. (Goodman Dep.
239–40 & Ex. 30, ECF No. 60-1 at 97–99.) Goodman’s resignation letter cites alleged
discrimination by Jensen-Muir as the sole reason for his resignation. (Goodman Dep.
Ex. 30.)
At the time of his resignation, Goodman was in good standing, Cummins had not
made any decision to end his employment, no one at Cummins had told Goodman
that his job was in jeopardy, and Goodman knew that he could find a role upon returning to the United States. (Goodman Dep. 160, 282, ECF No. 60-1; Jensen-Muir
Decl. ¶ 29, ECF No. 60-2.) Cummins considered Goodman’s departure as a loss. (Jensen-Muir Decl. ¶ 29, ECF No. 60-2.)
During discovery, Cummins learned that before he left Cummins, Goodman understood that Phu Thai Industries wanted to hire him. (Goodman Dep. 37–38, ECF
No. 60-1.) Within a day of his resignation from Cummins, Phu Thai offered Goodman
$9,000 per month. (Goodman Dep. 38, ECF No. 60-1.) Goodman currently lives in
Vietnam. (Goodman Dep. 8, ECF No. 60-1.) Goodman filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission, alleging that he was
deliberately excluded from job assignments on the basis of his race, age, and national
origin. He contends that only Jensen-Muir unlawfully discriminated against him.
(Goodman Dep. 27–28, ECF No. 60-1.)
II.
Discussion
Goodman brings claims for disparate treatment, hostile-work environment, and
constructive discharge under the Equal Protection Clause under 42 U.S.C. § 1981 and
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Title VII, 42 U.S.C. § 2000e et seq. Therefore, the Court may properly exercise federal-question subject matter jurisdiction under 28 U.S.C. § 1331.
Cummins seeks summary judgment on all of Plaintiff’s claims. In responding to
the summary judgment motion, Goodman does not address Cummins’ arguments for
summary judgment on his hostile-work environment and disparate treatment claims.
And Goodman previously abandoned his claims based on his nationality. (See Pl.’s
Statement of Claims, ECF No. 58.) Therefore, Goodman is considered to have abandoned any such claims and summary judgment will be granted Cummins on those
claims. As a result, the Court’s discussion focuses on the claim for constructive discharge based on race.
A. Summary Judgment
“A district court properly grants summary judgment where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a
matter of law.” Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019), petition for cert.
filed, (U.S. June 3, 2019) (No. 18-1504). A court must draw all reasonable inferences
in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The non-movant must “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). If the non-movant
fails to establish an essential element of his case, there is a complete failure of proof,
and the movant is entitled to judgment as a matter of law. Id. at 323. The nonmovant “must do more than simply show that there is some metaphysical doubt as to
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the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986); see also Giles, 914 F.3d at 1048 (stating that the non-movant must
“present specific facts establishing a material issue for trial, and any inferences must
rely on more than mere speculation or conjecture”). Where the “evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
B. Constructive Discharge
Cummins seeks summary judgment on Goodman’s constructive discharge claim.
To establish constructive discharge, a plaintiff must be able to show that “from the
standpoint of the reasonable employee, the working conditions [had] become unbearable.” Wright v. Ill. Dep’t of Children & Family Servs., 798 F.3d 513, 527 (7th Cir.
2015). The Seventh Circuit recognizes two forms of constructive discharge; both require “that the work environment had become unbearable.” Chapin v. Fort–Rohr
Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010); see also Wright, 798 F.3d at 527–28.
In the first form, an employee resigns because of discriminatory harassment. Chapin, 621 F.3d at 679. This requires “a plaintiff to show working conditions even more
egregious than that required for a hostile work environment claim because employees
are generally expected to remain employed while seeking redress, thereby allowing
an employer to address a situation before it causes the employee to quit.” Id. In the
second form, “an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated.” Wright, 798 F.3d at 527 (quoting Chapin, 621 F.3d at 679).
A plaintiff must establish that “the employer’s actions
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communicate[d] to the employee that she immediately and unavoidably will be terminated.” Id. at 528–29 (emphasis in original). A plaintiff also is required to show
that “a reasonable person would believe that her employer had acted in a manner that
communicated that the employee would be terminated imminently, not simply
whether the employee reasonably thought she would be terminated.” Id. at 528 (emphasis in original).
Cummins argues summary judgment on the constructive discharge claim is appropriate because no reasonable person in Goodman’s position would have found his
working conditions unbearable or would have believed his termination was imminent. Cummins also argues that Goodman’s rejection of multiple opportunities to
extend his employment and his voluntary resignation preclude his constructive discharge claim. Further, Cummins contends that Goodman has no evidence that his
race caused his constructive discharge.
Goodman responds that based on the evidence, a reasonable jury could find that
his discharge was “imminent and inevitable.” Goodman does not maintain that he
resigned because of discriminatory harassment, relying solely on the second form of
constructive discharge. He also argues that a reasonable jury could find that Cummins would not have constructively discharged him had he not been African American and everything else had been the same.
The Court finds that Goodman has come forward with insufficient evidence to
raise a reasonable inference that his discharge was in fact imminent and unavoidable
at the time he resigned. And Goodman has not identified any evidence that would
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allow a reasonable jury to find that Cummins’ actions communicated to him that he
would be “immediately and unavoidably . . . terminated.” Wright, 798 F.3d at 528–
29 (emphasis in original).
In EEOC v. University of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002), the
Seventh Circuit held that the EEOC had “demonstrated that a reasonable employee
standing in [the employee’s] shoes would have believed that had she not resigned, she
would have been terminated.” Id. at 332. In that case, when the employee arrived
at work, “her belongings were packed, and her office was being used for storage.” Id. Other evidence pointed to an immediate termination: the employee knew
of her supervisor’s “intent, plan, and attempt to terminate her.” Id. In Kodish v.
Oakbrook Terrace Fire Protection District, 604 F.3d 490 (7th Cir. 2010), the Seventh
Circuit held that an employee had been constructively discharged when the evidence
was clear that “had [he] not resigned he would have been terminated immediately.” Id. at 502. In that case, the evidence was that the employee’s supervisor had
“handed [him] a letter of resignation and informed him that he could resign or be
terminated immediately.” Id. at 494. In contrast, in Wright, the Seventh Circuit held
that an employee failed to demonstrate that she was constructively discharged where
there was no evidence that the employer had decided to terminate the employee or
told the employee that she would be fired, and no conduct by her supervisors suggested termination was a certainty. 798 F.3d at 530.
This case is unlike University of Chicago Hospitals and Kodish and is like Wright.
The undisputed evidence is that at that time of his resignation, Goodman was in good
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standing and Cummins had not made any decision to terminate his employment.
(Goodman Dep. 160, 282, ECF No. 60-1; Jensen-Muir Decl. ¶ 29, ECF No. 60-2.) In
June 2016, Cummins extended Goodman’s expatriate assignment three months to
allow him more time to find a role in the United States. (Goodman Dep. 199, ECF
No. 60-1; Jensen-Muir Decl. ¶ 21, ECF No. 60-2.) Thus, his Vietnam assignment had
an end date of October 15, 2016. (Goodman Dep. 202, ECF No. 60-1.) When Goodman
resigned five weeks before on September 8, 2016, not even his end date was imminent.
It is also undisputed that at the time Goodman resigned, no one at Cummins had
told Goodman that his job was in jeopardy or that he would be discharged, and Goodman understood that he could return to the United States, that is, repatriate at the
end of that assignment, without having a role and find a role upon his return. (Goodman Dep. 160, 282, ECF No. 60-1; Jensen-Muir Decl. ¶ 29, ECF No. 60-2.) And in
late August, Cummins had just paid for Goodman to go on a “repatriation” trip with
his wife to explore job and housing opportunities in the United States, (Shi Decl. ¶
13, ECF No. 60-3); such conduct would not raise a reasonable inference that Goodman’s dismissal was inevitable. And Goodman has not identified any conduct by
Cummins similar to that in University of Chicago Hospitals or Kodish or any other
conduct by Cummins that would reasonably suggest his termination was a certainty.
Furthermore, before the end of his expatriation assignment, Goodman was presented with several job opportunities within Cummins, but he decided not to pursue
them. (Compl. ¶¶ 106–07, ECF No. 1.) First, General Manager Enright contacted
Goodman about a potential relationship manager role in his organization, with a
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potentially higher salary grade level than his current level. Goodman declined to
pursue the position, which was ultimately filled by Wolf, who is still in the position.
(Enright Decl. ¶ 8, ECF No. 60-10.) Nusterer, the President of the Power Systems,
contacted Goodman about potential project manager roles in his business unit. Even
though Nusterer did not actually have a job available at that time, he was willing to
find something for Goodman. (Goodman Dep. 244–46, ECF No. 60-1; Nusterer Dep.
49 & 99, ECF No. 60-9 at 4.) Goodman turned down this opportunity too, telling
Nusterer he didn’t trust Cummins. (Goodman Dep. 246–47, ECF No. 60-1; Nusterer
Dep. 49 & Ex. 99, ECF No. 60-9 at 5.) Moreover, the Supply Chain Leader Haley told
Goodman, if he could not find a role, then Haley would give him a job. (Goodman
Dep. 226, ECF No. 60-1.) Goodman never pursued that opportunity either.
According to Goodman, these opportunities “were perfunctory, disingenuous, [or]
‘CYA’ discussions . . . raised only after [he] had” complained about Jensen-Muir.
(Goodman’s Br. 30, ECF No. 71.) Any finding along those lines would be based on
sheer speculation, which is insufficient, see Giles, 914 F.3d at 1048 (stating that “any
inferences must rely on more than mere speculation or conjecture”), since Goodman
chose not to pursue those opportunities. A trier of fact could never know what would
have happened had Goodman expressed interest in the opportunities that were presented to him. That these opportunities may have been uncertain or did not exist at
the time Goodman was approached does not create a constructive discharge. See
Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th Cir. 2010) (“a working condition does not become intolerable or unbearable merely because a ‘prospect of
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discharge lurks in the background’”) (citation omitted); Wright, 798 F.3d at 531 (concluding that the employee “may have been discharged at the conclusion of the disciplinary proceeding does not amount to a constructive discharge”). Even assuming that
these positions were lesser positions than the one Goodman currently held, a demotion
would not have risen to the level of constructive discharge. See, e.g, Hamer v. Neighborhood Hous. Servs. of Chi., No. 12 C 10150, 2015 WL 5439362, at *12 (N.D. Ill.
Sept. 10, 2015), aff’d, 897 F.3d 835 (7th Cir. 2018) (holding that the offer of a position
with a pay reduction and “lack of further career advancement” did not “rise to the
level of being intolerable” for purposes of a constructive discharge); see also Rutan v.
Republican Party of Ill., 848 F.2d 1396, 1404 (7th Cir. 1988) (“[a]n employer has not
affected a constructive discharge merely because an employee believes that [he] has .
. . limited opportunities for advancement”) (citation omitted).
Goodman asserts that he investigated the potential role with Enright in June 2016
by discussing it with Chris Clulow, who would be “the person on the other side of the
relationship that ‘role’ would manage.” (Goodman’s Br. 22, ECF No. 71.) Clulow had
recommended that Goodman decline the offer because it was not a real job and he
thought there was no need for a relationship manager. (Goodman Dep. 225, ECF No.
60-1.) Regardless of Clulow’s views on the matter, such evidence does not raise a genuine issue for trial where the undisputed fact is that the position was filled by another
and that employee remains in the position at least as of the date of the summary judgment filings in late October 2018. Goodman suggests that he wanted more time to
explore the potential role and discuss it with “more mentor figures,” (Goodman Br. 22,
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ECF No. 71), but Enright first approached Goodman about the role in June 2016, so
Goodman had more than two months within which to do so. And at the end of August
when Enright again gave Goodman the opportunity to be included in the selection
process, Goodman said he was not interested.
While the October 15, 2016 end date of Goodman’s expatriation assignment was
not speculative, that Goodman would be discharged at the end of his assignment was
speculative. The question is not whether Goodman’s specific assignment would end—
and it would since his replacement had been hired—but instead, whether Goodman’s
employment would end. Even Goodman understood that he could return to the United
States without a new role and find one after his return.
Even if Goodman subjectively and reasonably believed that he would be terminated, this would not be sufficient to hold Cummins liable for constructive discharge.
A plaintiff must be able to show that “a reasonable person would believe that her
employer had acted in a manner that communicated that the employee would be terminated imminently, not simply whether the employee reasonably thought she would
be terminated.” Wright, 798 F.3d at 528 (emphasis in original). Goodman asserts
that his understanding was confirmed through discovery based on a December 2015
email in which Jensen-Muir “outlined his plan to make [Goodman] ‘redundant,’’’
which is Cummins’ terminology for termination. (Goodman Br. 2, ECF No. 71.)
Clearly, since Goodman conceded he did not know of the supposed plan until discovery, it could not have informed any belief that his discharge was imminent. And any
suggestion in December 2015 that Goodman’s employment might be terminated if he
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did not find a role before the expiration of his expatriation assignment months later
would be speculation which cannot be used to raise a genuine issue of fact. See, e.g.,
Giles, 914 F.3d at 1048 (the non-movant must “present specific facts establishing a
material issue for trial, and any inferences must rely on more than mere speculation
or conjecture”). Such speculation runs right into the undisputed evidence that Goodman was presented with several job opportunities and he chose not to pursue them.
If Goodman had pursued any one of those opportunities, it is far from clear that Goodman would have been discharged.
And even if Goodman had enough evidence to raise a genuine issue of material
fact as to whether he was constructively discharged, he has not presented any evidence that would permit a reasonable jury to conclude based on the evidence as a
whole that his race caused the constructive discharge. See Ortiz v. Werner Enterps.,
834 F.3d 760, 765 (7th Cir. 2016). Goodman argues that he has a “pile” of such evidence, including Jensen-Muir’s “racially charged comments and jokes,” “their differing intensity levels depending on the racial or cultural makeup of his audience,” and
“the fact that [Jensen-Muir] has never hired a single African-American as a direct
report.” (Goodman Br. 33, ECF No. 71.) Goodman could not recall any of the alleged
jokes or comments, and stated that they were about Indians and Chinese rather than
African Americans. (Goodman Dep. 288–89, ECF No. 60-1.) Even if Jensen-Muir
never hired an African American direct report, there is no evidence in the record that
shows the racial makeup of all the candidates from which he made his hiring decisions. The inadmissible hearsay offered by Goodman to establish that Jensen-Muir
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would not hire individuals with dark skin fails to create a genuine issue on summary
judgment. See, e.g., Haywood v. Lucent Tech., Inc., 323 F.3d 524, 533 (7th Cir. 2003)
(inadmissible hearsay cannot be used to defeat a properly supported summary judgment motion).
Goodman asserts that similarly situated non-African American employees were
treated more favorably at the end of their expatriation assignments and that there is
evidence that “bridge or project roles are often used as temporary placeholders until
an employee finds a permanent job,” (Goodman Br. 33, ECF No. 71), whereas he was
not offered a suitable role or the opportunity to return to the United States in a temporary role (Goodman Br. 34, ECF No. 71). But the evidence is that several opportunities were presented to Goodman, and he declined to pursue them. Goodman complains that Jensen-Muir’s treatment of him changed for the worse after the April 2015
retirement of Jensen-Muir’s supervisor Pamela Carter, who, like Goodman, is African
American, and that Cummins deviated from its repatriation policy with regard to
Goodman. Yet Goodman offers nothing more than speculation to suggest that such
actions or inactions were motivated by his race.
The Court finds that Goodman has presented insufficient evidence to permit a
reasonable factfinder to conclude that a reasonable person would have believed that
Cummins had acted in a manner that communicated that Goodman would be immediately and unavoidably terminated. And he has come forward with insufficient evidence to permit a reasonable factfinder to conclude that his alleged constructive discharge was motivated by his race. Therefore, Goodman cannot defeat Cummins’
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motion for summary judgment on his constructive discharge claim. Because Goodman has abandoned his other claims, summary judgment should be granted to Cummins on all claims in this case.
Conclusion
For the foregoing reasons, the Court grants Defendant’s Motion for Summary
Judgment (ECF No. 60). Final judgment will be entered.
SO ORDERED.
9/27/2019
Date: _________________
Distribution:
Caridad Austin
FAEGRE BAKER DANIELS LLP
carita.austin@FaegreBD.com
Ellen E. Boshkoff
FAEGRE BAKER DANIELS LLP (Indianapolis)
ellen.boshkoff@faegrebd.com
Kevin Dale Koons
KROGER GARDIS & REGAS LLP
kdk@kgrlaw.com
Steven E. Runyan
KROGER GARDIS & REGAS LLP
ser@kgrlaw.com
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