WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on several motions filed by Defendant Teamsters Local Union No. 716 ("Union") and Defendant Indiana Steel Fabricating, Inc. ("Indiana Steel"). The motions are fully briefed and the Court, being duly advised, rules as follows.
Each Defendant has filed a motion for sanctions seeking dismissal of this case with prejudice and an award of fees and costs. See Dkt. Nos. 72 and 74. The Court denied Indiana Steel's previous motion to dismiss for failure to prosecute, but did so "without prejudice, in that the Defendant may reassert the arguments set forth in the motion in any new motion to dismiss for failure to prosecute in the event that the Plaintiff does not fully cooperate in the future." Dkt. No. 54. The Defendants assert that the Plaintiff's failure to cooperate has continued, making dismissal appropriate at this time. Indiana Steel also has filed a motion entitled Motion for Leave to File Supplemental Reply in Support of Its Second Motion to Dismiss (Dkt. No. 92). That motion is
The instant motions were prompted by the Plaintiff's failure to appear at a settlement conference before the Magistrate Judge on October 23, 2017. The Plaintiff did, in fact, appear, but he was over an hour late, and (not surprisingly) the Magistrate Judge had excused everyone else before he arrived. There is nothing to suggest the Plaintiff's failure to appear on time at the settlement conference was motivated by a desire to inconvenience the Defendants or the Magistrate Judge; it appears to have been caused by an unfortunate set of circumstances. Whether some or all of those circumstances were within the Plaintiff's control, and whether lesser sanctions might be appropriate, is an issue the Court will leave to the Magistrate Judge to decide, inasmuch as the conference was before him and he has issued an order to show cause with regard to the issue. However, the Court finds that the Defendants have not demonstrated that the ultimate sanction of dismissal with prejudice is warranted.
In addition to the Plaintiff's failure to appear on time for the settlement conference, Indiana Steel points to what it characterizes as additional failures to cooperate in discovery since the Court's denial of the motions to dismiss as support for its motion for sanctions. Specifically, Indiana Steel points to the following deposition testimony by the Plaintiff as demonstrating that he failed to comply with his discovery obligations:
Dkt. No. 75-1 at 5. During the course of his deposition, the Plaintiff also testified that "I want to tell you that I have copies of my grievances at home but I've moved about four times so some of my stuff is boxed up and some of my stuff is boxed up and put in storage. So I will go through that and attempt to locate those." Id. at 6. He further explained:
Id. at 7. After the deposition, Indiana Steel "contacted Plaintiff's counsel by email and requested that Plaintiff supplement his production of documents with the items he referred to in his deposition, correct any incorrect or incomplete information in his interrogatory responses, and certify which responses (if any) were already accurate and complete." Dkt. No. 75 at 4. Ultimately the Plaintiff responded that he had nothing more to produce. Indiana Steel characterizes these events as follows: "[Plaintiff's] deposition testimony explicitly references multiple documents relevant to his claims, and responsive to ISF's discovery requests, that he has apparently failed to produce to his attorney or ISF." Id. at 7. In fact, however, the Plaintiff has represented that he does not have any such documents. He did not produce any of the missing written grievances in response to the Defendants' motions for summary judgment, and, were he to locate such documents and seek to use them at trial, his burden of demonstrating that the Court should permit him to do so would be very high. Thus, at this point, the issue is not whether the Plaintiff's case should be dismissed for failure to produce the grievances, but whether his case should be dismissed because his deposition testimony suggests that his search for responsive documents prior to his deposition might not have been as thorough as it should have been. Given that there does not appear to be any willfulness on the part of the Plaintiff, and given the lack of any prejudice to the Defendants, the Court finds that dismissal on that basis is not appropriate.
With regard to the notes the Plaintiff testified that he took to aid him in discussion with his legal (or potential) legal counsel, Indiana Steel does not identify the discovery request to which they were responsive. In any event, the Plaintiff's testimony makes it clear that the notes were prepared "in anticipation of litigation or for trial," and Indiana Steel does not argue that they are nonetheless discoverable. See Federal Rule of Civil Procedure 26(b)(3) (describing showing that must be made before documents prepared in anticipation of litigation or for trial are discoverable). Indiana Steel's argument, then, is that this case should be dismissed because the Plaintiff did not realize that the notes he took to aid him in discussing his case with his legal counsel were responsive to a discovery request and should have been listed on a privilege log. Again, any such failure was not prejudicial to the Defendants (who, again, now know about the notes and do not argue that they are discoverable), and does not warrant the sanction of dismissal.
Nor do the two documents at issue in Indiana Steel's supplement to its motion for sanctions warrant dismissal. That filing is based on the fact that the Plaintiff submitted a note from his physician and a few of his pay stubs from Indiana Steel in response to the Defendants' motions for summary judgment that he had not produced during discovery. As discussed below, none of those documents were considered by the Court in ruling on the summary judgment motions; therefore, the Defendants were not prejudiced by the Plaintiff's attempt to use them.
The Court appreciates the Defendants' perspective that the discovery process in this case has been more onerous than it should have been. It appears that the litigation of this case has been complicated by the Plaintiff's apparently less than ideal working relationship with his first attorney, by the fact that the Plaintiff is difficult to reach by telephone, and by the fact that the Plaintiff may not have always fully understood his obligations. The Federal Rules of Civil Procedure provide mechanisms for ameliorating any prejudice and/or expense that results from a party's failure to comply with his discovery (or other) obligations and, of course, there are times when dismissal of an action for such failures is an appropriate remedy. That is a drastic remedy, however, and one that the Court believes should be reserved for instances in which the failure to cooperate appears to be an attempt to gain some advantage in the case or to intentionally increase the burden on the opposing parties, or in which the just resolution of the case has been entirely thwarted. See, e.g., Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011) (discussing factors to be considered before imposing "extraordinarily harsh sanction" of dismissal for want of prosecution); Collins v. Illinois, 554 F.3d 693, 696 (7th Cir. 2009) (noting that "to dismiss a case as a sanction for discovery abuse the court must only find that the party's actions displayed willfulness, bad faith, or fault," and "the sanction imposed must be proportionate to the circumstances"). Viewing the circumstances of this case as a whole, the Court does not believe that dismissal is an appropriate sanction. Accordingly, the Defendants' motions for sanctions are
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must show what evidence it has that there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
The background facts of record, viewed in the light most favorable to the non-moving party, Plaintiff Carlton L. Rasor, are as follows. Additional facts of record are included, where relevant, in the Discussion section below.
Rasor began working at Indiana Steel in February 2013. At that time he was a temporary employee; his employer was a staffing company called Forge Staffing.
The hourly employees at Indiana Steel were represented for purposes of collective bargaining by the Union.
In late 2012, four members of the management team at Indiana Steel—Mike Jordan, James Bennett, Tim Nelson, and Ben Strange—purchased the company from the family that had founded it in 1959.
On March 19, 2013, while Rasor was employed by Forge Staffing and working at Indiana Steel, Rasor signed an application for membership in the Union and a dues check-off authorization form. The membership application and dues check-off form were completed by someone at Indiana Steel and presented to Rasor for his signature by Indiana Steel co-owner Ben Strange. The membership application listed Rasor's occupation as "machine operator." Dkt. No. 78-3 at 4. The Union did not receive this form until June 2013.
Rasor became an employee of Indiana Steel on April 3, 2013. According to a written "Hire-On Agreement," Rasor was hired by Indiana Steel as "a full-time employee at a job classification of general labor" at the general labor rate of pay. Dkt. No. 78-3 at 1. However, Rasor believed that he was a machine operator after he was hired, despite what his Hire-On Agreement said, because of the reference to machine operator on the Union membership application that Indiana Steel completed and gave him to sign and because Ben Strange, the Indiana Steel employee who signed his Hire-On Agreement, told him he was being hired as a machine operator and would be replacing an employee named John, who was a machine operator.
When Rasor was hired, he was told he would "be responsible for bringing in the steel, inspecting the steel, using the overhead crane to take the steel off the truck, place it on the dock or either place it into the [storage yard], separate the steel according to my order sheet, organize it on the saw table, which in turn is this automated saw table which brings the steel over and it pushes it in through a big saw and it cuts it down per order and drills holes." Rasor Dep. at 49, Dkt. No. 78-1 at 8. The saw was operated by an employee named Andy White, who for "about two or three weeks" began training Rasor to run the saw when Rasor had time. Id. at 9. A "couple of times" Rasor operated the automated saw and was paid more than his usual rate of pay for that work. Id. at 9-10.
Rasor's daily job duties included unloading trucks, marking and organizing materials for quality control, loading steel onto conveyers, feeding material to the saw operator, dumping scrap, and cleaning his general work area, which was the warehouse yard, the stockyard, the loading dock, and the area around the saw. He occasionally moved finished materials. Every few days he would operate a smaller saw or use a splitter to finish cutting an angle iron. Initially occasionally, and then later daily, he prepared material for painting, painted material, loaded material, and logged in the painted and finished material. Id. at 13.
Under the collective bargaining agreement between the Union and Indiana Steel, grievances may be filed by an individual employee, the Steward, or the Union by completing a grievance form. The records of both the Union and Indiana Steel contain only one grievance filed by Rasor; it was a December 2013 grievance objecting to a written/verbal warning that Rasor received that related to a beam being cut incorrectly. That grievance does not mention Rasor's pay or job classification, nor does it mention racial discrimination or harassment. Rasor identified his job classification on the grievance as "shipping and receiving clerk."
Rasor filed the following additional grievances during his employment with Indiana Steel:
Rasor lodged the first two of these grievances with Ryan Proctor, and, with the possible exception of the last one, the remainder with Randall Murphy, who replaced Proctor as union steward. Neither the Union nor Indiana Steel has a record of any of these additional grievances, and Rasor does not have a copy of any of them.
Both CBAs contained a grievance procedure pursuant to which a bargaining unit employee could file a grievance over any issue that related to matters covered by the CBA.
The Union's by-laws contain a process whereby a member who feels he or she is being mistreated by a fellow member or members, including for racial harassment, can file internal union charges against that member or members. Rasor did not file any internal union charges against fellow members at Indiana Steel for racial harassment.
Rasor filed EEOC charges against the Union and Indiana Steel on October 20, 2014. The charges against both parties are identical and state:
Dkt. No. 89-1 at 88. The Union did not receive notice of Rasor's EEOC charge until July 2015, after Rasor's termination from Indiana Steel on May 20, 2015. Indiana Steel also was unaware of Rasor's EEOC charge until after he was terminated.
Rasor complained to Ben Strange, the Indiana Steel owner whose responsibilities included human resources, five to seven times about Andy White using the word "n----r." Rasor believes that after he complained, White began putting metal shavings in his shoes. When he confronted White about it, White denied doing it and said that "it probably bounced off the floor and was an accident." Dkt. No. 81-2 at 60. On one occasion, Rasor believes that White put metal shavings in his lunch. When he reported that to Tim Nelson, Nelson told him not to eat lunch in that area. When Nelson questioned White about it, White denied it. Rasor moved his desk out on the dock, where it was not protected from the elements. To avoid White, Rasor also complained multiple times to Ben Strange and/or Tim Nelson about the use of racial epithets and racially charged language and the telling of racist jokes by coworkers Kenny Brown, Mike Leeds, Kyle Phillips, and Tim McDonough, as well as one incident involving Sean Landrum and one incident regarding Aaron Reuther. Rasor believed that the incident involving Landrum was addressed promptly by Indiana Steel.
Rasor also complained to Ben Strange and Tim Nelson about an incident during which Tim McDonough used the term "black motherfucker" during a workplace conversation about the fatal shooting of Trayvon Martin, an African-American high school student, a topic that was in the news at the time.
During Rasor's employment at Indiana Steel, he was subject to a no-fault attendance policy. Under the policy, employees began with twelve attendance points. One point was added for each thirty consecutive days of perfect attendance as defined by the policy. A defined number of points were lost for certain absences and for "short shifts"—coming in late or leaving early. If an employee obtained a doctor's note dated no later than the second day of an injury or illness and provided it to Indiana Steel immediately upon returning to work, the employee would lose 1.5 points for the first day missed for that injury or illness, .75 point for the second day, and no points for subsequent days. An employee whose point balance fell to six points received a warning; three points resulted in a final warning, and zero points resulted in termination.
On May 6, 2015, Rasor left work early and took a half-day of vacation. Later that evening, he left a voicemail on Indiana Steel's main line reporting that he had injured his shoulder and was at the hospital seeking treatment. On the morning of Friday, May 8, 2015, Strange received a voicemail from someone claiming to be Rasor stating that he had hurt his shoulder and would be in with a doctor's note on Monday. Shortly thereafter, Strange received a call from a person claiming to be Rasor's brother, who said that Rasor had hurt his shoulder in a vehicle accident and was attempting to get it re-set. A few minutes later, Strange received yet another call from someone claiming to be Rasor, who said that he had hurt his shoulder and would not be coming in to work. Strange asked the caller how he had injured his shoulder, and the caller said he had suffered the injury lifting a box into a car. That call came from the number that Indiana Steel had listed as Rasor's emergency contact number. A few minutes later, Strange received a fourth call from someone saying that he was Rasor, who stated that he wouldn't be coming in to work that day. Later that day, Strange called Rasor's emergency contact number and asked for Rasor. The person who answered said that he was Rasor. Strange asked why multiple people had called him to report Rasor's injury. The person said "My family cares about me, I guess." As a result of these calls and the conflicting statements made by the various callers, Strange was suspicious about the reasons for and circumstances surrounding Rasor's absence.
Indiana Steel did not hear from Rasor or anyone on Rasor's behalf again until May 18, 2015, when Rasor called and spoke to Strange. Rasor stated that he had injured his shoulder while working on a mini-bike on May 6th and that he had been arrested that same day and had just been released from jail. Rasor explained that he had been unable to call while he was incarcerated and that his family members had been unable to call because they had been away at a funeral. On May 19, 2015, Rasor came in to Indiana Steel. Strange told him if he planned to provide Indiana Steel with a doctor's note and/or release regarding his shoulder injury, he needed to do so immediately. Rasor stated he would try to see his doctor that day. He reported to Strange that his shoulder felt fine at that point.
As of May 6, 2015, Rasor had 2.5 attendance points. His absence on May 7th (while he was incarcerated) lowered his point total to 1 point; his absence on May 8th lowered it to -0.5 points. Rasor missed an additional six shifts while he was incarcerated.
On May 20, 2015, Strange mailed Rasor a letter notifying him that he had been terminated as of that date pursuant to the attendance policy. Rasor did not file a grievance relating to his discharge. Rasor did not see his doctor regarding his shoulder until May 21, 2015.
Each Defendant's motion for summary judgment will be discussed, in turn, below.
Rasor asserts that Indiana Steel discriminated against him on the basis of his race by classifying his job as a general labor position rather than the higher paying machine operator position and retaliated against him for filing grievances and for filing an EEOC charge.
Rasor alleges that he was paid at the lower, general laborer rate for performing the same job for which white employees were paid at the higher, machine operator rate. Indiana Steel does not dispute that that is true, but rather argues that the difference was not the race of the employees involved, but rather the fact that the company changed hands and the new owners decided not to apply the previous owners' policy of paying general laborers at the higher rate when they hired new employees.
Although Rasor does not set forth the legal basis for his claims in his brief in response to the instant motions for summary judgment, in his Complaint he references both Title VII, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981(b). Under both statutes, in determining whether Rasor's claim that he was classified as a general laborer because of his race survives summary judgment, the relevant inquiry is whether the evidence as a whole would permit a reasonable factfinder to conclude that Rasor's race caused Indiana Steel to classify him as a general laborer and pay him accordingly. Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th Cir. 2016); Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir.) (2016) (noting that analytical framework for section 1981 and Title VII is "essentially identical"). "Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself. . . . Relevant evidence must be considered and irrelevant evidence disregarded." Id.
Here the relevant evidence, viewed in the light most favorable to Rasor, is that Rasor was told by Strange and Nelson, two of the owners of Indiana Steel, that he was replacing another employee, John, who was a machine operator and that he would also be a machine operator. Consistent with that conversation, Strange gave him an application for membership in the Union that listed his job as machine operator. In addition, Strange told Rasor that the painter position was a machine operator position, but another black employee, Shane, was hired as a painter and classified as a general laborer.
Dkt. No. 81-1 at 3 ¶ 8. However, Indiana Steel points to no evidence of record that shows that the job performed by Rasor was properly classified as general laborer.
Given the evidence of record at this time, the Court cannot say as a matter of law that no reasonable jury—again, viewing the evidence in the light most favorable to Rasor—could find that Rasor's classification as a general laborer rather than a machine operator was due to his race. Accordingly, Indiana Steel's motion for summary judgment is
Rasor also alleges that Indiana Steel failed to promote him because of his race. Rasor points to two positions that he sought
With regard to his denial of training claim, Rasor argues the following in his brief:
Dkt. No. 88 at 8-9. The deposition testimony cited in support of this claim falls far short of providing evidence from which a reasonable jury could find that Rasor was denied training on the basis of his race. First, Rasor did not testify that Indiana Steel would not allow him to leave early to attend welding school; his testimony was as follows:
Dkt. No. 89-1 at 23. Second, Rasor conceded at his deposition that he did not know whether Indiana Steel had, in fact, paid for White and Phillips to attend welding school. See Dkt. No. 81-2 at 23 ("I don't know who ultimately paid for it, because they could have had to reimburse the Company back. But from my understanding, the Company was paying for them to go to welding school so they could be accessible if ever needed."). In any event, Indiana Steel has submitted evidence (which is consistent with Rasor's testimony) that the "welding school" in question was a one-day course on welding basics, not the type of training Rasor was seeking that would qualify him for a welder job. Accordingly, Indiana Steel is entitled to summary judgment on this claim as well.
Rasor's claim with regard to his termination is two-fold. First he asserts that the no-fault attendance policy was applied improperly to him. Rasor notes that he injured his shoulder on May 6, 2015, and was not released by his physician to return to work until May 30, 2015; therefore, he argues, he never fell below zero points under the policy because he should only have been charged 2.25 points for May 7th and 8th and no other points for the remainder of time he missed starting on May 6th. However, the policy explicitly provides that a doctor's statement "dated no later than the second day" is required in order for an absence to qualify for the rule cited by Rasor, and the evidence is undisputed that Rasor did not obtain a doctor's statement within that time.
Rasor's second argument is that Indiana Steel did not apply the no-fault attendance policy strictly with regard to its white employees:
Dkt. No. 88 at 11-12. The Court agrees with Indiana Steel that Rasor's testimony regarding other employees' attendance issues is not based on personal knowledge and therefore is simply speculation. Further, Rasor has not provided sufficient information to demonstrate that any of these employees were similarly situated to Rasor; indeed, there is no indication that any of them missed more than a week of work due to being incarcerated like Rasor did. Accordingly, Indiana Steel is entitled to summary judgment on this claim.
Finally, Rasor asserts a claim for retaliation for complaining about race discrimination. "To survive summary judgment on a timely retaliation claim, plaintiff must offer evidence of: (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two." Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 718 (7th Cir. 2018) (citations omitted).
Rasor alleges that he was terminated
In addition, the Court notes that the record is undisputed that Indiana Steel was unaware of Rasor's EEOC complaint at the time of Rasor's termination; accordingly, it could not have been a reason for the termination. Accordingly, Indiana Steel is entitled to summary judgment on Rasor's retaliation claim.
In his Complaint, Rasor alleges that the Union
Dkt. No. 1 at 2.
Finally, Rasor argues that the Union's failure to pursue his grievances in which he alleged that he was being subjected to a hostile work environment "was a breach of the Union's responsibility to represent all the members of the local." Dkt. No. 88 at 20. As the Union points out in its reply, however, neither Rasor's Complaint nor his Statement of Claims asserts such a claim, and, in any event, Rasor has failed to adequately articulate such a claim. Accordingly, the Union's motion for summary judgment is
For the reasons set forth above, the Union's motion for summary judgment (Dkt. No. 76) is
The following claims remain for trial: (1) Rasor's claim for hostile work environment against Indiana Steel; and (2) Rasor's claim for race discrimination against Indiana Steel based upon his classification as a general laborer rather than a machine operator. No claims remain against the Union.
On the Court's own motion, the final pretrial in this case is
