Bell, Michael v. Stoughton Trailers, LLC
Filing
43
OPINION AND ORDER denying 22 Motion for Summary Judgment. Signed by District Judge William M. Conley on 11/29/218. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL W. BELL,
v.
Plaintiff,
STOUGHTON TRAILERS, LLC,
OPINION AND ORDER
17-cv-580-wmc
Defendant.
Plaintiff Michael W. Bell alleges that his former employer, Stoughton Trailers, LLC,
discriminated against him on the basis of his race in violation of both Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981. Before the court is defendant’s
motion for summary judgment, seeking a finding in its favor on liability, or in the
alternative, a finding that plaintiff is not entitled to an award of punitive damages. (Dkt.
#22.) For the reasons set forth below, the court will deny the motion, finding that: (1) a
reasonable jury could conclude that Bell was terminated because of his race; and (2) fact
issues as to whether defendant engaged in a good faith effort to implement its
antidiscrimination policy precludes entry of summary judgment in defendant’s favor as to
an award of punitive damages.
UNDISPUTED FACTS 1
A. Plaintiff’s Employment
Plaintiff Michael Bell, an African-American man, was hired by defendant Stoughton
Viewing the evidence of record in the light most favorable to plaintiff as the non-moving party,
the following facts are material and undisputed for purposes of summary judgment, except where
noted.
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Trailers as a production machine operator on June 13, 2011. During his employment, Bell
worked on brake presses, shears, saws, punch presses, and in assembly. In 2014, he worked
primarily in the sheet metal department on a brake press, a hydraulic-powered machine
that bends and forms metal parts used in manufacturing trailers.
Brake press machine operators produce parts, one part at a time, according to
blueprints that set forth the specifications of the part.
Parts that are outside of
specifications are expected to be identified and likely scrapped, which increases Stoughton
Trailers’ manufacturing costs. To reduce the number of parts that must be scrapped,
employees are instructed to perform quality inspections on every third to fifth part to
ensure that they match blue print specifications. After completing a single or rack of parts,
the operator or operators who formed the parts write their initials and the number of parts
produced on a warehouse tag.
Bell was usually assigned to work on a large 400-ton brake press, which often
required two machine operators because it was either difficult or unsafe for only one
operator to do so. When two operators were needed, more experienced operators were
often paired with less experienced operators for training purposes.
B. November 14 Incident
On November 14, 2014, Bell set up and calibrated a 400-ton brake press for a twoperson run with a less experienced brake press operator, Richard Erbe. Erbe, who is white,
began working for Stoughton Trailers in July 2014, initially as a trainee for the first ninety
days. Erbe successfully completed this training period on October 27, 2014. While setting
up for and running the job on November 14, Bell was neither informed that Erbe required
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further training nor that Bell was responsible for training him.
At the start of the run on November 14, department lead Ron Hinds checked one
of the parts that Bell and Erbe had produced and confirmed that it was within
specifications. Thereafter, Bell claims he checked every third to fifth part by measuring his
side to make sure that it was within specifications. As a standard accepted practice, Bell
further represents that operators on a two-person run only checked their half of parts to
ensure that they were within specifications. 2 He also asserts that he regularly asked Erbe
if his side was within specifications.
Bell avers that Erbe continued to indicate that
“everything was good.” (Bell Decl. (dkt. #30) ¶ 21.) Defendant disputes this, however,
pointing to Erbe’s deposition testimony that Bell and he “weren’t checking pieces like we
were supposed to” and that he “thought something was odd,” but that Bell informed him,
“[w]e’re good. Let’s keep running them [the header channel parts].” (Erbe Dep. (dkt.
#20) 15-16.) Erbe also testified that he had never been “put into a position with someone
who had more seniority than [he] and was working in a method . . . of not checking parts
according to policy.” (Id. at 20.)
During the run, Bell and Erbe produced 131 parts. While the parties dispute who
signed the warehouse tags, both Bell and Erbe’s initials were written on the parts’ tag,
thereby indicating that they had both worked on those parts. The racks of these parts were
The testimony of Bell’s former supervisor, Dennis Peuvion, supports Bell’s representation. At his
deposition, Peuvion averred that responsibility for checking parts “might vary . . . but in general,
each is responsible for his side of the part.” (Peuvion Dep. (dkt. #21) 25.) Defendant attempts to
dispute that this was accepted practice but only points to the testimony of another of Bell’s
supervisor, Jeff Lind, that if an operator signed off on parts completed during a two-person run, “he
was jointly responsible for them.” (Lind Decl. (dkt. #25) ¶ 32.)
2
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then sent to weld assembly, where it was discovered that they were outside of
specifications. Stoughton Trailers subsequently conducted a full inspection and discovered
that all 131 parts were outside of the blue print specifications and therefore needed to be
scrapped. The production of these parts accounted for an entire work day for both Erbe
and Bell and scrapping them resulted in a loss of $2,790 according to Stoughton, although
Bell claims that the loss amounted to $1,200. (Pl.’s Resp. to Def.’s PFOFs (dkt. #33) ¶
52.) Stoughton Trailers further represents that the quantity of defective parts resulted in
a shutdown of the welding area, which in turn affected the plant’s entire production line.
(Def.’s PFOFs (dkt. #24) ¶ 56.)
Bell reports that all errors were caused by Erbe, and the sides of the parts on which
Bell worked were within the blue print specifications. He further claims that he, along
with several other employees, including Christopher Hoskins, a now former production
machine operator, checked the parts after Stoughton’s inspection and confirmed that the
errors appeared on Erbe’s side and not Bell’s. (Bell Dep. (dkt. #17) 65; Hoskins Dep. (dkt.
#28) 21-22.) He even recounts how Bell’s supervisor Jeff Lind informed him that the
errors were on Erbe’s side. (Bell Dep. (dkt. #17) 70.)
C. Bell’s Termination
Nevertheless, on November 20, 2014, Supervisor Lind called Bell to his office and
presented him with a Work Violation Sheet to sign. Lind further informed Bell that he
was being terminated as a result of the defective parts that Erbe and he produced on
November 14.
The Work Violation Sheet specifically stated that the reason for his
termination was that:
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Employee has been on a Needs Improvement for poor
performance in quality within the last six months and has had
a few issues with poor quality since . . . . Employee formed
header channels that were not to specification. All parts were
100% scrap and the loss was over $2,000. Root cause was
failure to follow procedures to regularly check and measure
parts . . . . Employee has been given the expectation to
regularly inspect and measure parts to insure they are within
specification. Employee either failed to measure at all or did
not measure correctly on a large run of parts . . . . The amount
of loss of parts and interruption to the assembly line was
excessive and could have been easily avoided if procedures were
followed. The behavior indicates a lack of concern for quality
performance. Since the employee has been warned about his
poor quality performance in the past, this latest incident will
result in termination of his employment.
(Lind Decl., Ex. 4 (dkt. #25-4).)
While Bell signed the Work Violation Sheet, he recalls not agreeing with many of
the allegations made in it.
Lind also completed a Managers Exit Questionnaire that
reiterated Bell’s disciplinary history, his failure to maintain an acceptable level of
performance, the monetary loss caused by the November 14 incident, and that Bell “often
had excessive scrap on even the most basic of bends for jobs.” (Id., Ex. 6 (dkt. #25-6).)
Bell’s termination was the first termination of a non-probationary production machine
operator who reported to Lind.
Bell represents that no operator had previously been held responsible for a mistake
made by another operator. He specifically points to one white employee, Hoskins, who
occasionally made parts outside of specification, but was neither disciplined for the bad
parts nor held responsible if the mistakes were attributable to another operator. (Hoskins
Dep. (dkt. #28) 7). Notably, Hoskins acknowledged utilizing the same technique to check
parts during two-person runs that Bell and Erbe had: Hoskins “would check [his] end, and
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then that person would check their end.” (Id.)
As for Erbe, Lind issued him a Work Violation, which stated that “any further
offense may include discipline up to and including discharge.” (Lind Decl., Ex. 5 (dkt.
#25-5).) Defendant contends that because Erbe had no disciplinary history or history of
poor performance, he was merely issued a Work Violation for the November 14 incident
and not terminated. (Def.’s Resp. to Pl.’s PFOFs (dkt. #38) ¶ 75; Lind Decl. (dkt. #25) ¶
31.)
D. Past Disciplinary Actions
Bell was supervised by Dennis Peuvion from his date of hire until Peuvion’s own
termination in February 2014. As supervisor, Peuvion conducted Regular Appraisals in
which he assessed a variety of target performance categories, including Quality, Quantity,
Cooperation, Flexibility/Job Knowledge, and Care & Safety. From his first review of Bell
on September 10, 2011, to his final on January 1, 2014, Peuvion almost exclusively rated
Bell’s performance as “[m]eets basic expectations of job requirements” or “[r]egularly meets
the expectations of job requirements.” (Bell Decl., Exs. 1-6 (dkt. ##30-1 to 30-6).) Two
exceptions occurred when Bell was rated as “[a]bove expected level[/] [f]requently exceeds
expectations of job requirements” in Quantity on July 31, 2013, and in Flexibility/Job
Knowledge on January 31, 2014. (Bell Decl., Exs. 5-6 (dkt. ##30-5, 30-6).) Under
Peuvion’s supervision, Bell was never subject to disciplinary action.
Following Peuvion’s termination in February 2014, Lind took over as supervisor of
the sheet metal department. Lind reviewed performance of operators and issued many
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different types of appraisals, including Regular, 3 Needs Improvement, and Probationary
Appraisals. Lind followed the same appraisal guidelines and reviewed identical target
performance categories that Peuvion had. 4 If a machine operator’s performance fell below
satisfactory in those categories, Lind issued them an Extra Appraisal followed by a Needs
Improvement Appraisal. 5
During a Regular Appraisal on May 13, 2014, Lind rated Bell as “needs
improvement” in the performance expectation categories of Quality and Quantity. Lind
also awarded Bell a score of four out of a possible ten points in the three remaining
performance expectation categories. As a result, Lind issued Bell an Extra Appraisal that
same day, which stated:
Over the last three to four weeks, Michael [Bell] has had
serious quality problems in terms of high scrap, multiple orders
that were either done completely wrong or most of the parts
were completed wrong. In addition, production lines have shut
down as a result of Mike’s poor quality and lack of attention
to his workmanship.
Mike’s quality performance must
improve immediately. To do this, Mike must make certain
that all of his parts have been double-checked by another
PMO, inspect at least every three parts for all orders, and have
It appears that the parties also refer to “Regular” Appraisals as “Regular Semi-Annual Appraisals.”
Whether Regular Appraisals occurred on a semi-annual basis is not clear from the record, nor is it
material to the motion before the court.
3
Of particular note is the Quality category which looked to whether operators: (1) demonstrated a
minimal number of downstream defects and scrap less than 0.45%; (2) conducted regular reviews
of part quality against blue prints; (3) exhibited personal responsibility for their own workmanship;
(4) exemplified quality leadership by preventing defects beyond their own work; and (5) identified
opportunities and follows through with process improvement. (Bell Decl., Ex. 7 (dkt. #30-7).) It
is unclear whether these criteria were used in Bell’s evaluations completed by Peuvion, but they
appear in at least Lind’s July 31, 2014, Regular Appraisal of Bell and are subsequently used in each
of Lind’s subsequent Appraisals.
4
The alleged facts do not indicate whether Peuvion regularly followed this kind of progressive
discipline program.
5
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ZERO defects for the next 30 days.
(Lind Decl., Ex. 2 (dkt. #25-2) 2.) The Extra Appraisal further advised that Bell:
[m]ust correct serious quality deficiencies immediately by
paying closer attention to blue prints and checking parts more
frequently. Secondly, overall productivity is very low and too
much time (two to three times as long) to setup and prepare
[press brake machine] to run jobs. Failure to improve and get
to acceptable performance in all areas within 30 days will result
in termination of employment. Failure to sustain good
performance beyond 30 days will also jeopardize your
employment.
(Id. at 4.) Bell signed this Appraisal.
On July 31, 2014 Lind again conducted a review of Bell’s performance and issued a
Regular Appraisal, stating that Bell “need[s] to improve [his] consistency of quality (less
scrap during setups) and keep working on [his] production speed to better [his] overall
productivity.” (Bell Decl. (dkt. #30) ¶ 2; id., Ex. 7 (dkt. #30-7).) On August 20, 2014,
Lind gave Bell a Needs Improvement Appraisal, indicating that Bell had successfully
completed the 30-day review required by the Extra Appraisal issued on May 13. It also
stated that Bell:
successfully passed [his] extra review period relating to [his]
poor performance issues . . . . For the future, [Bell] must
maintain acceptable performance in all areas, including
attendance, in order not to jeopardize [his] employment with
Stoughton Trailers . . . [and Bell should] continue to check
[his] parts often and do not continue to make parts that [he]
believe[s] are questionable. Seek assistance, check [his] prints,
have [his] first piece parts inspected by a PMT or Takt leader,
and maintain consistent work to maximize [his] productivity.
(Lind Decl., Ex. 2 (dkt. #25-2) 9.)
Bell signed this Appraisal form, and he understood that if his performance did not
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continue at an acceptable level, he would be terminated. (Bell Dep. (dkt. #17) 47.) Lind
did not issue any other Extra or Needs Improvement Appraisals for the remainder of 2014.
E. Lind’s Conduct and Statements
Bell represents that Lind was harsher in his demeanor, tone and language when
communicating with African-American employees like himself, than with white employees.
(Pl.’s PFOFs (dkt. #35) ¶ 82.) During his deposition, Bell testified that Lind was in his
opinion at least, “racist,” and “every day it seemed like he had something against AfricanAmericans.” (Bell Dep. (dkt. #17) 18.) Bell further avers that “if [Lind] would have a
conversation with a Caucasian person, he seemed happy and jolly,” but “when he would
have a conversation with an African-American, it wouldn’t be so jolly,” and Lind had a
“mean . . . demeanor on his face.” (Id. at 19-20.).
At his deposition, former employee Hoskins, who is white, testified that Lind was
“very short, rude and abrupt and not professional” when talking to Bell and another
African-American employee, Jamie Nash, but “cordial” when speaking with white
employees. (Hoskins Dep. (dkt. #28) 16).) Hoskins also stated that Lind was “vocally
rude,” “wouldn’t finish a conversation” with Bell or Nash, and would “walk away” when
they attempted to speak with Lind. (Id. at 24-25.) Indeed, according to Nash’s testimony,
Lind was “targeting blacks” that fell asleep during weekly safety meetings. (Nash Dep.
(dkt. #18) 50.) Although both white and African-American employees occasionally fell
asleep during the meetings, Nash testified that Lind only “called out” and brought
attention to sleeping African-American employees, particularly Bell and Melvin James. (Id.
at 23-24.)
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At his deposition, James testified that he worked on a 400-ton break press with a
white employee, Tim Fuller, who had worked at Stoughton “in excess of twelve, fifteen
years” and “knew more than [James] did.” (James Dep. (dkt. #19) 11.) James stated that
if parts that the two made exhibited a defect or error, Lind “spent a little extra time telling
[James] what [he] did wrong and not saying much to Tim.” (Id. at 11-12.) Even when
Fuller’s side deviated further from specifications than James’, Lind “didn’t use the same
tone or spend as much time talking to Tim about the mistake as he did with [James].”
According to James, “[t]here was no mistake that [Lind] meant to let [James] know that
[he] was doing something wrong” but Lind treated any error on Tim’s part as “just a
mistake.” (Id.) And on at least one occasion where the two produced bad parts, Lind
threatened James with termination but said nothing to Fuller. (Id. at 56.)
Bell also represents Lind made ambiguous comments that were actually veiled racist
remarks. While there is no evidence that Lind used any racially derogatory terms, Peuvion
testified that while both he and Lind were employed at Stoughton, Lind made comments
that led Peuvion to believe that Lind was referencing employees’ worth and abilities in
terms of “their race and their education.” (Peuvion Dep. (dkt. #21) 37-39).) At his
deposition, Peuvion testified that Lind’s comments made it “very clear” to him that Lind
believed African-Americans “are less able to do work and . . . time shouldn’t be wasted on
them over other people.” (Id. at 38.) 6
Peuvion also testified that “several people” made comments to him related to Bell that “would
suggest that due to . . . his race and education, they felt [Bell] wasn’t able to perform a job any
more difficult than a sheer operator where you just do something really simple all day.” (Peuvion
Dep. (dkt. #21) 38.) Peuvion did not assign specific comments to specific individuals, and in
particular does not indicate whether Lind or another decisionmaker was one of the individuals who
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In contrast, Stoughton Trailers avers that employees characterized Lind as harsh or
abrasive with everyone, regardless of their race. (Def.’s Resp. to Pl.’s PFOF (dkt. #38) 5253.) During his deposition, when asked if Lind was “a jerk” to both black and white
employees, James testified that Lind was “a jerk, period.” (James Dep. (dkt. #19) 18.) He
also recounted that “almost everyone” in the sheet metal department complained about
Lind, no matter their race. (Id. at 29.)
Stoughton Trailers also points out that before the November 14 incident, Lind
issued the same number of disciplinary “Extra” and “Needs Improvement” Appraisals to
African-American as he did to white employees. (Def.’s PFOFs (dkt. #24) ¶P 27-29.)
Specifically, one went to Lonn Abbot, a white employee, and the other went to Bell. (Id.)
Moreover, at least one African-American employee, Nash, had no problems working with
Lind one-on-one and received higher performance ratings from Lind than he had from
Peuvion. (Nash Dep. (dkt. #18) 16-19, 21.)
F. Antidiscrimination Policy
Throughout the time that Bell was employed by Stoughton Trailers, the company
maintained Anti-Harassment and Non-Discrimination policies. Defendant claims that
these policies prohibited all forms of discrimination and harassment, including
discrimination on the basis of race, and contained provisions for reporting complaints of
discrimination or harassment. (Def.’s PFOFs (dkt. #24) ¶ 82.) The policy stated, in part,
made such comments. As such, the court has not considered this purported evidence in determining
whether plaintiff has put forth sufficient evidence to demonstrate that he was terminated because
of his race.
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that:
the company strives to provide an environment free from all
forms of harassment, intimidation, or discrimination based on
age, race [list of protected categories] . . . . As part of this
policy, Stoughton Trailers, LLC prohibits anyone from basing
a personnel decision (including decisions affecting hiring,
promotions, transfers, work assignments, receipt of benefits or
participation in Company programs) on an individual’s age,
race . . . .
(Schieldt Am. Decl. (dkt. #15) ¶ 3; id., Ex. 1 (dkt. #15-1).)
Stoughton Trailers also engaged outside counsel to conduct in-person training of its
supervisors and managers on how to abide by and enforce this policy. Employees who
attended the in-person training were required to sign attendance sheets, and for those who
could not attend in person (due to illness or scheduled vacation), they were still required
to go through the training materials and sign an acknowledgement form, although in
fairness, there was no subsequent process in place to verify that employees had, in fact,
reviewed the training materials. (Schieldt Am. Decl. (dkt. #26) ¶ 5.)
An in-person training was conducted in June 2013 at multiple training sessions at
the company’s plants in both Stoughton and Brodhead; that training was mandatory for
all supervisors and managers, including Jeff Lind. While Lind did not attend, he signed an
acknowledgment form on June 14, 2013, confirming that he “received and read” the
training materials. (Schieldt Decl., Ex. 3 (dkt. #15-3).)
Bell does not dispute that anti-discrimination and harassment policies existed, but
he represents that racially discriminatory comments and behavior nevertheless occurred in
the workplace. Between 2011 and 2017, Stoughton Trailers’ human resources department
received at least two complaints from employees at Stoughton related to race. One incident
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report states that on December 27, 2012, an employee used the N-word and the term
“porch monkey” when describing an encounter he had with an African-American individual
outside of work. (Kennelly Decl., Ex. 5 (dkt #31-5) 1.) The report also indicates that the
employee “used the racial slurs because [he] thought it was OK to do so.” (Id.)
In response, Stoughton investigated the complaint and issued the employee a oneday disciplinary suspension. (Def.’s PFOFs (dkt. #24) ¶ 92).) Although it is unclear when,
a second complaint was filed after another employee wrote the “N word” across the locker
of an African-American employee. (Schieldt Dep. (dkt. #29) 42-43.) Finally, Bell recounts
that he heard another employee stated that “F-cking N’s are worthless” in reference to Bell
while discussing employees’ relative skills and abilities. (Pl.’s Resp. to Def.’s PFOFs (dkt.
#33) ¶ 90; Peuvion Dep. (dkt. #21) 86.)
OPINION
Defendant Stoughton Trailers seeks summary judgment based on plaintiff’s failure
to marshal “sufficient evidence to support a jury verdict of intentional discrimination”
based on his race. David v. Bd. of Tr. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th
Cir. 2017). Summary judgment is appropriate where the moving party establishes “that
there is no genuine dispute as to any material fact,” and it “is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To survive summary judgment, “inferences relying
on mere speculation or conjecture will not suffice,” but rather, a nonmoving party with the
burden of proof “must point to specific facts showing that there is a genuine issue for trial.”
Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009).
While plaintiff asserts a discrimination claim on the basis of race in violation of
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Title VII and Section § 1981, the Seventh Circuit generally has applied the same standard
under either statute. Humphries v. CBOCS W., Inc., 474 F.3d 387, 403 (7th Cir. 2007),
aff’d, 553 U.S. 442 (2008). Specifically, a plaintiff must “produce enough evidence . . . to
permit the trier of fact to find that his employer took an adverse action against him because
of his race.” Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013). Certainly, a
reasonable jury may reject plaintiff’s proof here, but the court is unable to conclude as a
matter of law that no reasonable jury could so find for the reasons discussed below.
Although a closer question, the court must similarly reject defendant’s motion for summary
judgment as to plaintiff’s claim for punitive damages.
I. Evidence of Discriminatory Animus
Traditionally, plaintiffs have marshalled their evidence of intentional discrimination
through the so-called direct or indirect method. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1975) (articulating burden-shifting framework sometimes referred to as the
“indirect” method of proving employment discrimination). 7 Recognizing that the
evidentiary distinctions in these methods have proven stilted and difficult to discern, the
Seventh Circuit has more recently endorsed consideration of the evidence “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.” Golla v. Office of the
Chief Judge of Cook Cty., 875 F.3d 404, 407 (7th Cir. 2017) (quoting Ortiz v. Werner Enters.,
Title VII contemplates a mixed motive claim, but it does not appear that plaintiff is pursuing this
theory. As such, the court only considers defendant’s motion under a “because of” or “but for”
causation standard.
7
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Inc., 834 F.3d 760, 765 (7th Cir. 2016)) (affirming summary judgment on a reverse race
discrimination claim where plaintiff only put forward evidence that he was white and his
better-paid colleague was African-American).
Here, defendant’s attempt to rigidly apply the traditional indirect and direct
methods illustrates just how the fundamental, substantive legal issue can be lost. See Ortiz,
834 F.3d at 764 (“The use of disparate methods and the search for elusive mosaics has
complicated and sidetracked employment-discrimination litigation for many years.”).
While the McDonnell Douglas framework remains useful, the ultimate question remains
“simply 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
other adverse employment action.” Id. at 765. Moreover, the evidence presented may be
direct or circumstantial. McKinney v. Office of Sheriff of Whitley Cty., 866 F.3d 803, 807
(7th Cir. 2017).
In its briefing, defendant argues that plaintiff must “present evidence that expressly
and directly proves that Lind terminated him because of his race,” consistently underlining
these terms as if by doing so will somehow transform its position into accepted law. (Def.’s
Reply Br. (dkt. #39) 1.) Instead, defendant only underscores its obvious cherry picking of
specific terms from earlier case law to remove consideration of circumstantial evidence, but
this approach has not been embraced by the Seventh Circuit or the Supreme Court. To
the contrary, because “‘smoking gun’ evidence of discriminatory intent is hard to come
by,” circumstantial evidence is commonly used to prove discrimination claims. See Coleman
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v. Donahoe, 667 F.3d 835, 845 (7th Cir. 2012). 8
The Seventh Circuit has specifically identified four categories of intentional
discrimination evidence: (1) suspicious timing; (2) ambiguous statements or behavior
towards other employees in the protected group; (3) evidence, statistical or otherwise, that
similarly situated employees outside of the protected group systematically receive better
treatment; and (4) evidence that the employer offered a pre-textual reason for an adverse
employment action. Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601
(7th Cir. 2011). Depending on its relative strength, each type of evidence may be sufficient
by itself to support a judgment for the plaintiff; or they can be used together. Troupe v.
May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). Although none is overwhelming,
plaintiff’s evidence falls primarily in the second, third and fourth categories.
Squarely in the second category are Lind’s alleged, ambiguous statements to
Peuvion. To be sure, Lind did not use any racially derogatory terms, but his comments
nevertheless led Peuvion to believe that Lind was referencing employees’ worth and
abilities in terms of their race and/or level of education. (Peuvion Dep. (dkt. #21) 37-39.)
At his deposition, Peuvion stated that Lind’s comments made it “very clear” that Lind
believed that African-Americans “are less able to do work and . . . time shouldn’t be wasted
on them over other people.” (Id. at 38.) By itself, Lind’s alleged statement is insufficient
Unless simply feigned, the source of defendant’s apparent confusion as to the adequacy of
circumstantial evidence to prove discriminatory intent under the direct method may be the
unfortunate use of the words “direct” and “indirect” in describing methods of proof. The law is
clear, however, that even under the “direct” method, circumstantial evidence can be considered.
See Coleman, 667 F.3d at 845 (“Under the ‘direct method,’ the plaintiff may avoid summary
judgment by presenting sufficient evidence, either direct or circumstantial, that the employer’s
discriminatory animus motivated an adverse employment action.”).
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proof to show that anti African-American bias was the reason he fired plaintiff, but its
probative value is strengthened when considered in conjunction with plaintiff Bell’s and
employees Hoskins’ and Nash’s impressions that Lind was generally harsher in tone and
demeanor when interacting with African-American employees. 9
In addition to Lind’s alleged ambiguous behavior toward African-American
employees, plaintiff points to the fact that he was terminated and his white co-worker Erbe
was not for the same November 14 incident. “All things being equal, if an employer takes
an action against one employee in a protected class but not another outside that class, one
can infer discrimination. The ‘similarly situated’ prong establishes whether all things are
in fact equal.” Filar v. Bd. of Educ., 526 F.3d 1054, 10661 (7th Cir. 2008) (citation
omitted). There is no “magic formula” to determine whether a plaintiff has satisfied this
prong; courts instead “apply a ‘common-sense’ factual inquiry—essentially, are there
enough common features between the individuals to allow a meaningful comparison?”
Humphries, 474 F.3d at 405. The common features must be similar enough to “eliminate
confounding variables, such as differing roles, performance histories, or decision-making
personnel, [so as to] isolate the critical independent variable: complaints about
discrimination.” Filar, 526 F.3d at 1061 (citation omitted).
At least in title, it is undisputed that plaintiff and Erbe held the same role, and both
reported to Lind at the time of plaintiff’s termination. Not surprisingly, the parties analyze
Defendant spends a significant portion of its reply brief arguing that this evidence fails to provide
any specific examples, and therefore was too ambiguous to warrant consideration. (Def.’s Reply
(dkt. #39) 4-6.) While this is a legitimate argument to make to the jury, plaintiff’s evidence raises
a question as to Lind’s discriminatory animus, sufficient to credit it at summary judgment.
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the duration of plaintiff’s and Erbe’s employment and his disciplinary history differently
and disagree as well on the relative importance of those factors when comparing plaintiff
to Erbe. On the one hand, plaintiff argues that despite a longer history of employment at
Stoughton Trailers, Erbe and he had similar experience in the specific role of press operator.
He further argues that his “sporadic” training on the brake press, and the fact that he “was
often sent to work in assembly or to leave as a shear operator or to train shear operators,”
makes him similarly situated to Erbe in terms of relevant experience. (Bell Decl. (dkt. #30)
¶ 14.)
Of course, defendant rightly emphasizes that Erbe was just months into his
employment at Stoughton Trailers, while plaintiff had already been there for a number of
years.
As for plaintiff’s disciplinary history, Bell challenges both the severity and accuracy
of any claimed performance issues. In particular, he notes that a number of reported issues
with his performance were unsubstantiated, and he disputes allegations that there were
“serious quality problems in terms of high scrap” and “multiple orders that were either
done completely wrong or most of the parts were completed wrong.” (Lind Decl., Ex. 2
(dkt. #25-2) 2.) Plaintiff further argues say that Lind’s issuance of any earlier discipline is
actually evidence of his “phony excuse or pretext to get rid of Bell because of his race.”
(Pl.’s Opp’n (dkt. #34) 12.)
Accuracy aside, plaintiff also points out that he had
successfully passed the 30-day review following the Extra Appraisal and continued to
perform at acceptable levels until November 14, 2014.
On the other hand, defendant persuasively argues that Erbe’s undisputed lack of a
disciplinary record and gap in experience should preclude him from being similarly situated
18
to plaintiff. However, the fact that defendant has a persuasive argument is not the same as
presenting evidence that precludes plaintiff from making a contrary argument to a jury
based on conflicting evidence. Indeed, the existence of confounding variables does not
necessarily or categorically preclude a finding that plaintiff and his comparator were
similarly situated. See Humphries, 474 F.3d at 405 (“[W]e have emphasized that the
similarly situated inquiry is a flexible one that considers all relevant factors, the number of
which depends on the context of the case.”) (internal citation omitted). In its submissions
in support of entry of summary judgment, defendant does little more than address
favorable evidence and make conclusory arguments, while failing to even address the pair’s
common features as alleged by plaintiff. At the very least, it is a question for the jury
whether Bell’s additional, if perhaps unrelated, experience and mixed disciplinary history
rendered him “not similarly situated to” Erbe as a matter of fact. See Eaton v. Ind. Dept. of
Corr., 657 F.3d 551, 558 (7th Cir. 2011) (“In general, whether individuals are similarly
situated is factual question for the jury”) (internal quotation omitted).
Even if this were a close question, the court has yet to address plaintiff’s strongest
evidence of intentional discrimination. As previously noted, a “plaintiff may attempt to
establish that he was the victim of intentional discrimination by showing that the
employer’s proffered explanation is unworthy of credence.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000); see also Dickerson, 657 F.3d at 601 (noting pretext
as a fourth, distinct category of circumstantial evidence). Indeed, pretext is “one form of
circumstantial evidence that is probative of intentional discrimination, and it can be quite
persuasive.” Reeves, 503 U.S. at 134.
19
Here, plaintiff offers evidence that during the November 14 job, he did not stray
from protocol and regularly checked to ensure that his side of each part was within
specifications. Indeed, not just Bell, but his previous supervisor Peuvion, confirms this was
protocol.
Bell avers that he even regularly asked Erbe if his side was similarly in
compliance, and Erbe never indicated that his side exhibited errors.
Thus, plaintiff
contends that all errors should have been attributed to Erbe. Moreover, since at least on
summary judgment, there is a factual dispute over whether an operator was ever held
responsible for the mistakes of another operator, plaintiff persuasively argues that his
termination constituted a departure from standard practice, at least raising an inference of
pretext.
In reply, defendant both disputes that it was an established practice to refrain from
disciplining employees for the mistake of another, and further asserts that Bell’s mistakes
were unprecedented. Both constitute genuine disputed issues of material facts -- namely,
what was the established procedure and whether the errors should have been attributed to
Erbe, not Bell. Similarly, while defendant wants the court to treat Bell’s signature on the
work violation sheet and failure to dispute Lind’s assigning of fault at the time of his firing
as somehow legally precluding his later disputing the stated ground for firing, both are at
most evidence that plaintiff will have to dispute at trial, not some kind of binding waiver
of his rights under Title VII or Section 1981. Accordingly, the issue of whether defendant’s
proffered reason for terminating plaintiff is pretextual is a question for the jury. See Culver
v. Gorman & Co., 416 F.3d 540, 548 (7th Cir. 2005) (explaining that the accuracy of
20
defendant’s characterization of plaintiff’s behavior was “a jury question bearing on the
issue of pretext”).
Considered as a whole, plaintiff’s evidence is far from overwhelming, but then
neither is defendant’s now that plaintiff has come forward with sufficient evidence from
which a reasonable factfinder could conclude that plaintiff was terminated because of his
race.
Defendant’s attempt to disregard much of this circumstantial evidence, and
particularly its siloed analysis of each “category” of evidence, fails to address how the
evidence, taken together, may give to an inference of discrimination. At this point, that is
enough to move forward. 10
II. Punitive Damages
Defendant also moves for summary judgment as to plaintiff’s claim for punitive
damages.
Title VII “authorizes an award of punitive damages when a plaintiff
demonstrates that the defendant engaged in intentional discrimination ‘with malice or with
reckless indifference to the federally protected rights of an aggrieved individual.’” Bruso v.
United Airlines, Inc., 239 F.3d 848, 857 (7th Cir. 2001) (quoting 42 U.S.C. § 1981a(b)(1)).
For a plaintiff to be entitled to punitive damages, he must establish that the “employer’s
managerial agents recklessly disregarded his federally protected rights while acting within
the scope of their employment.” Id. at 858. Even if plaintiff does make such a showing,
Defendant is nevertheless welcome to revisit by motion in limine the admissibility of at least
some of this evidence -- like vague references to adverse actions against four or five AfricanAmerican employees -- although, hopefully, this will not be viewed as an invitation for a wholesale
attack on all of plaintiff’s evidence.
10
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moreover, the employer “may avoid liability for punitive damages if it can show that it
engaged in good faith efforts to implement an antidiscrimination policy.” Id.
As a general matter, the analysis to determine an employer’s good faith is factintensive, but as defendant points out, “the implementation of a written or formal
antidiscrimination policy is relevant to evaluating an employer’s good faith efforts at Title
VII compliance”; however, it is “not sufficient in and of itself to insulate an employer from
a punitive damages award.” Id. at 858; E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 835 (7th
Cir. 2013). The essential issue on summary judgment then becomes whether a reasonable
jury could conclude that the employer “did not engage in a good faith efforts” to implement
its antidiscrimination policy. E.E.O.C. v. Mgmt. Hosp. of Racine, Inc., 666 F.3d 422, 439
(7th Cir. 2012); see also Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 483 (7th Cir. 2003);
Hertzberg v. SRAM Corp., 261 F.3d 651, 663 (7th Cir. 2001).
Throughout plaintiff’s employment here, there is no dispute that defendant
maintained Anti-Harassment and Non-Discrimination policies and implemented
mandatory participation of all supervisors and managers in Harassment and HR Legal
Training.
Those individuals were required to either attend the training in person or
independently review the materials, then sign an acknowledgement form to indicate that
they completed the training. At least one supervisor, Lind, did not attend the training in
June 2013, but rather reviewed the materials and signed an acknowledgment form.
Despite these steps, plaintiff argues that defendants failed to engage in a good faith
effort to implement the written policies. Specifically, he challenges the efficacy of allowing
individuals to do nothing more than independently review training materials, because the
22
materials themselves consisted of “nothing more than a brief, bullet-point style outline of
the in-person training.”
(Pl.’s Opp’n (dkt. #34) 18-19.)
Beyond its potentially
problematic format, plaintiff points out that when employees purportedly reviewed the
material on their own, there existed “no mechanism for ensuring Lind and others actually
read or understood” it. (Id. at 19.)
In addition, despite the existence of antidiscrimination policies, plaintiff argues that
a number of alleged incidents of racial discrimination occurred in the workplace.
In
particular, between 2011 and 2017, two formal complaints of racial discrimination were
filed with Human Resources, one of which included an employee using racially derogatory
terms “because [he] thought it was OK to do so.” (Kennelly Decl., Ex. 5 (dkt. #31-5) 1.)
In addition to formal complaints, plaintiff avers that a co-worker stated that “F-cking N’s
are worthless,” referring to himself, but that no one in front of whom the comment was
made, including Peuvion, reported the comment. (Peuvion Dep. (dkt. #21) 86; Pl.’s Opp’n
(dkt. #34) 21.) Similarly not reported were comments from “several people” suggesting
“that due to . . . [Bell’s] race and education, they felt [he] wasn’t able to perform a job any
more difficult than a sheer operator where you just do something really simple all day.”
(Peuvion Dep. (dkt. #21) 38).)
Should the jury find it reasonably probable that these incidents occurred and
discount the bona fides of Stoughton’s training efforts based on an employee’s ability to
easily bypass it, plaintiff certainly has to question Stoughton Trailer’s good faith defense.
And given that defendant is moving for summary judgment based on the application of a
defense for which it bears the burden of proof, the court cannot conclude that this record
23
is “so one-sided as to rule out the prospect of a finding in favor of the non-movant on the
claim.” Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 601 (7th Cir. 2015).
Assuming intentional discrimination is found in the first phase of trial, therefore, a jury
will be required to determine whether or not defendant engaged in a good-faith effort to
implement its antidiscrimination policy as part of a second phase of trial. Accordingly,
defendant’s motion for summary judgment with respect to plaintiff’s claims for punitive
damages is denied.
ORDER
IT IS ORDERED that defendant’s motion for summary judgment (dkt. #22) is
DENIED.
Entered this 29th day of November, 2018.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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