Opinion
Cause No. IP02-0443-C-T/K.
March 23, 2005
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This matter is before the court on Defendant, Delphi Automotive Systems Corporation's ("Delphi") Motion for Summary Judgment. The Plaintiff, James Nguyen, brings this lawsuit alleging violations of 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981, in the form of national origin discrimination and retaliation.
I. Factual Background
The bulk of the facts in this section are taken from the testimony of the Plaintiff, including the detailed response Plaintiff provided to questions posed by the Indiana Civil Rights Commission ("ICRC") in connection with his charge of discrimination which was made an exhibit to his deposition. While some of the facts are derived from the affidavit submitted by Plaintiff in response to the motion, for the most part that affidavit is crafted to bolster or steer around less supportive or less convincing deposition testimony by allowing someone post hoc to apply a more flattering or supportive phrasing to what was a relatively straight forward question and answer in the deposition transcript. However, the Seventh Circuit Court of Appeals has said on more than one occasion that affidavits which merely seek to bolster a party's previous deposition testimony are not entitled to supplant the deposition testimony and may be disregarded. E.g., Pryor v. Seyfarth, Shaw, Fairweather Geraldson, 212 F. 3d 976, 978 (7th Cir. 2000); Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir 1995).
It should also be noted that in Plaintiff's response brief he sets forth facts in a section of the brief titled "Plaintiff's Statement of Additional Facts and Material Facts in Dispute." There is no attempt in that section to differentiate "additional facts" from "disputed facts" and, indeed, most of the facts set forth in that section are the same as set forth by the Defendant in its initial brief, albeit with a different spin attached. In effect, the purpose of Local Rule 56.1(b), which requires a responding party to identify, in a separate section of its brief, the potentially determinative facts and facts in dispute which preclude a summary judgment, is thwarted when a party simply "spins its own tale" in that brief section without truly trying to point out where the differences or disputed factual contentions lie.
Plaintiff is later heard to say that his version of the facts must be accepted as true, because Delphi failed to challenge any of them in its reply brief. But, that is not so when a fact at issue is supported only by a tortured interpretation of earlier deposition testimony or a complete "re-do" in a subsequent affidavit. Local Rule 56.1(e) requires deference to unchallenged facts only when properly supported by the evidence.
In 1985 Nguyen, who is of Vietnamese heritage, began working for Delphi's predecessor, a division of General Motors. In 1993 Nguyen transferred to the job of electrician apprentice. In 1996 he became a journeyman electrician. He has worked both first shift and second shift for primarily three supervisors, Dwight Barr, Matt Klein and Chuck Whaley. He also worked some on first shift with general supervisor Dick Falkenberry, who was above Barr, Klein and Whaley. From time to time these supervisors moved from shift to shift or covered for each other during vacations and sick leaves. Other supervisors also filled in at times. Since September 11, 2003, Nguyen has been on lay-off status. Though not specifically confirmed, it appears from the record that Nguyen was the only Delphi electrician of Asian descent and may have been the only Vietnamese working in the plant.
Mr. Nguyen claims that throughout his tenure with Delphi and its predecessor, co-workers have referred, amongst themselves, to him by derogatory terms such as "chink", "gook", "Viet Cong" and others. He claims to have learned of the name calling from co-employees who indicated to him that various co-workers had used such terminology in conversations about him. However, Nguyen testified in his deposition that he has never been called a derogatory term to his face while working at Delphi. Nguyen claims that in 1999 the name calling and harassment increased to the point that he complained to his supervisor, Chuck Whaley. According to Nguyen, Delphi did nothing. However, Nguyen does not explain what harassment he reported or is referring to which occurred prior to 1999 and, as just mentioned, he admits that to this date he has not come face to face with any disparaging name calling.
Other than the ambiguous reference to pre-1999 harassment, the first discreet episode of alleged discrimination described by Mr. Nguyen came in the autumn of 1999. That September Nguyen was assigned to work in Department 2050 on second shift. He worked as the sole journeyman electrician for that department on that shift. Nguyen alleges that the during the Fall of 1999 supervisors Chuck Whaley and Dwight Barr refused to provide help to him when he needed help, but provided help to electricians working that department on other shifts when they requested help. It is unclear how Mr. Nguyen was aware of situations occurring on other shifts, generally; however, on December 11, 1999, electrician Jerry Dickey gave Mr. Nguyen a copy of a note he received that day indicating that another electrician was taken off a job in Department 46 and reassigned with Nguyen being given responsibility for finishing the job in Department 46 along with another job in his regular department. According to Mr. Nguyen, two other electricians were available and were given no job assignment. Nguyen complained to his supervisors regarding his receiving two job assignments while other electricians had no responsibilities at the time.
Nguyen claims that three days later supervisor Chuck Whaley issued a disciplinary layoff for the balance of a shift plus one day for Nguyen's alleged sleeping on the job and hiding from the supervisor. Nguyen denies that he was sleeping or hiding from his supervisor and apparently believes that the discipline was issued to him either because of his national origin or because he had recently complained about Whaley not being fair with respect to assignments. Nguyen went to Whaley again to complain about discrimination with regard to discipline and Whaley's alleged false accusations regarding Nguyen sleeping on the job. He claims to have indicated to Whaley that it was unfair for him to be suspended when Whaley had not interviewed others who could verify that he was not sleeping and when he had not disciplined other electricians or employees under his supervision when he was unable to locate them. Whaley did not change the discipline.
In May of 2000, Nguyen found a piece of paper containing symbols that looked oriental in nature on his briefcase on top of his workbench at Delphi. It was an 8½" × 11" sheet of paper and which contained large figures drawn to resemble alphabet symbols of an Oriental origin which were set forth in two vertical lines. At the bottom of the paper in English was the sentence "If you don't read Japanese tilt your head to right." When the paper is turned to the right in a more horizontal fashion, the faux alphabetical characters can be read to state, in English, "Go Fuck Yourself." Nguyen gave copies of this poster to Whaley and first shift supervisor Matt Klein, and complained. He also provided a copy of the paper to Francis Davis, a union liaison for discrimination issues. Davis showed a copy of the poster to Whaley and asked if he had seen it before. Whaley indicated that he had seen it around before but could not remember where. He later took Davis to Department 2086 where a copy had been posted on a piece of equipment. They removed that copy.
Nguyen claims that nothing was done about his complaint about the paper he had found on his briefcase and that Klein specifically laughed at the poster and threw it in the trash when Nguyen showed it to him. However, Mr. Nguyen requested that the piece of paper be given back to him and Klein retrieved it from the trash and provided it to Nguyen. About a week or two later, an identical poster was placed on Mr. Nguyen's tool wagon. Nguyen again complained to his supervisor, but claims nothing occurred as a result of his complaint. He did not encounter any other similarly vulgar posters.
The next event complained of by Nguyen occurred in June of 2000. At that time, Whaley was supervising Nguyen and showed up in Department 2050 where Nguyen was working. After Nguyen inquired as to what Whaley wanted, Whaley said he was checking up on him because he was anxious to have the repair completed. Nyguyen responded by indicating that he was still working on it and he was not sure how long it might take to complete the repair. He said he wanted Whaley to let him do his job and not get in his way by standing right on top of him. Whaley did not leave. He stood five feet away from Nguyen and continued to watch Nguyen until he completed his work about twenty-five minutes later.
Whaley's observant behavior occurred again in August of 2000 while Nguyen was again working in Department 2050. Whaley showed up at approximately 7:45 p.m. and continued to watch Nguyen work until he finished the particular job at 8:10 p.m. Nguyen asked Chuck Whaley why he was harassing him, and asked that he stop. Whaley indicated that he was there to make sure that Nguyen got the job done. One week later Whaley again watched Nguyen closely while he was working in Department 2050 for at least twenty minutes.
Another event complained of by Nguyen occurred in June 2000. On approximately June 8, 2000, Whaley asked Nguyen if he wanted to earn overtime by coming in four hours early the next day. Nguyen responded that he could not come in for the full four hours, but wanted to work as much of the overtime as he could. Whaley responded that if Nguyen wasn't coming in at 11:00 a.m. (four hours early) then he wanted Nguyen to report to the office when he did come in. Whaley indicated to Nguyen that this is what Klein, the first shift supervisor, wanted. Nguyen indicated that he did not want to report to the office because he didn't believe that others had to come in and report to the office. Whaley informed Nguyen that if he did not come in and report to the office that Klein would not pay him for the overtime. Nguyen informed Whaley that he wanted to work the overtime but would not report to the office. He said that until reporting to the office was a written policy that applied to everyone he would simply come in with his radio on and wait to be called like everyone else did.
The next day Nguyen came in to work overtime at approximately 12:15 p.m., and did not report to the office. He was not paid for that overtime until he filed a grievance and the grievance was resolved through payment. Nguyen also complains that a few days later Whaley asked again if he wished to work overtime, but would not respond to Nguyen's question as to whether or not he would get paid for that overtime.
In July of 2000 Nguyen was in Department 2050 and electrician Marvin Barker was called by dispatch to work in that department. Nguyen heard Barker tell Whaley that Department 2050 was Nguyen's department and he was not going to work that department. Nguyen indicates that Whaley laughed when Barker told him he would not work in that department. Shortly thereafter, Nguyen received a call from dispatch requiring him to attend to the work in Department 2050. Nguyen states that electrician Barker has helped other native born electricians with work in their departments.
In October of 2000, Nguyen overheard another conversation between Whaley and electrician Barker. At this time Barker was working the same department as Nguyen, but on third shift. According to Nguyen Barker told Whaley that if he was not provided permanent help in that department he would no longer work. Nguyen later learned that Whaley assigned another electrician to work with Barker in Department 2050 on third shift. Nguyen complained to Whaley that it was unfair and discriminatory for Whaley to provide Barker with assistance on third shift when Nguyen has asked for assistance previously on second shift and never received such help. According to Nguyen, Whaley responded that he was the supervisor and had the right to assign jobs in any fashion he saw fit.
Mr. Nguyen was on medical leave from August 1, 2000, to August 14, 2000. He claims that he took medical leave at the recommendation of his doctor due to his complaints of stress resulting from the harassment and discrimination he faced at work. During those two weeks Mr. Nguyen was paid approximately sixty percent of his regular pay.
In November 17, 2000, Nguyen filed a charge of discrimination with the ICRC. The statement of allegations in the charge states as follows:
I. On October 20, 2000, I was denied assistance on the job by my supervisor, Chuck Whaley, who is white.
II. No reason was given for this denial.
III. I believe Respondent discriminated against me on the basis of my national origin, Asian, because:
a. I asked for help, but Whaley would not give me any help.
b. Whaley did, however, provide help on the job for Sharon Shelton, white, and Marvin Barker, also white.
c. I am only Asian employee working for Chuck Whaley.
d. Whaley follows me around and harasses me on the job.
e. Whaley refused to pay me for working overtime.
Mr. Nguyen complains of additional discriminatory treatment following his filing of the charge of discrimination.
Though Nguyen was apparently unaware at the time, Whaley left Delphi's employ shortly before Nguyen filed his charge of discrimination. Whaley returned to Delphi and his role as a supervisor in December of 2001.
In December of 2000, Mr. Nguyen's toolbox came up missing and was not returned for approximately four months. He complained to Delphi about the missing toolbox, but the same was not replaced promptly and he was forced to work with the tools he could borrow from other electricians and those tools that he had on his tool belt. Mr. Nguyen claims that Delphi replaced tools of a native-born electrician in a quicker fashion when his toolbox was lost. Nguyen also complains that when his toolbox was returned, many of the tools were missing, including some tools that he had purchased with his own money. Most of the tools had been purchased by Nguyen with money provided by Delphi over the course of his training as an electrician. Some of the tools that were missing have been replaced by Delphi, but not all of the tools. Delphi claims that the tools necessary for Mr. Nguyen to do his job on a regular basis were replaced, and that those which were only used on rare occasions, have not been replaced yet.
Nguyen lodges no specific complaints with respect to the year 2001. However in December of 2001 he learned that Chuck Whaley had returned to Delphi and would be working as a third shift supervisor. After learning of Whaley's return, Nguyen approached General Supervisor, Dick Falkenberry, and indicated that he was uncomfortable having any interaction with Whaley and suggested it would be best if he not be put in a position where he would have to have such interaction. During that conversation, Falkenberry asked Nguyen if he had filed discrimination charges against Whaley and Nguyen informed Falkenberry that he had filed charges a little over a year prior. Nguyen stayed on second shift and Whaley on third shift, with Whaley only filling in occasionally on second shift. Nguyen was able to avoid any significant contact with Whaley and had no further problems with him.
On a Friday in February 2002, Nguyen was assigned to work on a machine motor in Department 2046. He was unable to complete the work prior to the end of his shift. When he returned the following Tuesday from an extended weekend, he was called out to complete the job he had started the previous Friday. Nguyen thought it strange that no other electrician had been called in since Friday to complete the work and believed that it was left for him to do in order to harass him. He confronted General Supervisor, Falkenberry about this incident stating that it was not right that production would be stopped on that machine just so they could force Nguyen to finish the job when others were equally qualified to complete the work. Falkenberry told Nguyen that he thought it was appropriate for Nguyen to finish the job he had started. Nguyen heard through other employees that electricians on other shifts had refused to finish the job. He claims that after confronting Falkenberry with the problem, management never again kept a job he was working on incomplete so that he would have to finish it himself.
The complaint in this action was filed March 21, 2002. During that month, Dwight Barr, who had been the primary supervisor of Nguyen since November 2000, retired. Matt Klein became Nguyen's regular supervisor on second shift and Falkenberry moved from his role as General Supervisor to Klein's previous first shift supervisor position.
In June of 2002 Falkenberry notified Nguyen that he would be moved to first shift to work on computer networking beginning in July. Nguyen preferred second shift over first shift and had moved to second shift to avoid supervisors following him and watching over him, which he considered a form of harassment. Even so, he willingly accepted the first shift assignment.
When Nguyen showed up for work on first shift in July, he was told that the computer networking need had already been filled, so he would be assigned to troubleshooting along with two other electricians. A week or so later, another electrician, Todd Tiemann, returned to work after having been laid off for a period of time. Tiemann was assigned to troubleshooting and Nguyen was made a floater who could be available to help wherever he might be needed in the plant. Nguyen found this to be unfair because he had more seniority than Tiemann and judged the move to be harassment. According to Nguyen, if you have an assigned area "they can not come and bounce[ing] you around"; whereas a "floater is a job where they can bounce you around anytime they want to." Nguyen confronted Falkenberry with the impropriety of his being moved to floater upon Tiemann's return, reminding Falkenberry that he had told Nguyen that he had the skills to be a troubleshooter. Falkenberry responded, indicating that Tiemann had worked in the area previously and had already been completely trained. Despite Nguyen's protest, Tiemann remained a troubleshooter and Nguyen a floater.
Later that same day, Falkenberry sent Nguyen to replace some light bulbs in front of the main entrance. Nguyen protested that the job was unsafe because he would be nearly ten feet above the ground and protocol was for a ground man to be assigned if someone was working more than six feet above the ground. He wanted someone to hold the ladder and watch the door so that no one opened it into him while he was working. Falkenberry told him he was not getting a ground man and that he was to go get the job done. Nguyen complained to his union representative, but Falkenberry went on vacation shortly thereafter and Nguyen does not remember that anything else occurred regarding the incident.
While Falkenberry was on vacation another incident occurred which Nguyen claims was discriminatory or retaliatory in nature. Mike Hess was supervising when Nguyen was working on a Saturday. Nguyen says he spent a great deal of time looking for tools he needed to complete a particular job that otherwise may not have taken so long. According to Nguyen he was slowed in his work efforts by the fact that he was still missing some tools from when his tool wagon came up missing. He says on that Saturday he did complete the job, but the following Monday was called to the cafeteria by Mike Hess to meet with Hess and Nguyen's union representative. According to Nguyen, Hess indicated to him that an engineer with whom Nguyen was supposed to have worked that Saturday had reported that he had not worked between 5:00 a.m. and 7:00 a.m. Hess assessed discipline in the form of a balance of shift and three day suspension. However, his write-up of the discipline and supporting narrative goes into detail regarding why he felt Nguyen had not put forth sufficient effort on the job and does not state that the engineer with whom Nguyen was supposed to have worked made any comment regarding Nguyen not working. Hess also wrote that the job was not finished that day and he had to assign someone else to complete the work.
Nguyen balked at the discipline handed down and alleges that he asked that the engineer be brought in so that Nguyen could hear his side of the story. According to Nguyen, he was present at work between 5:00 and 7:00 and the engineer was not present. Hess did not bring the engineer in and refused to alter the discipline. Nguyen can not recall if he filed a grievance over this event, but upon return to work he again asked that the engineer be brought in so that he could hear what he had to say, but the same was denied.
On August 13, 2002, Nguyen worked overtime into the second shift. He was working on a job in Department 2006 when the dispatcher called and instructed Nguyen to leave that job and go to a job in Department 2064. Nguyen switched jobs and completed the assignment in Department 2064. On his way out he asked the dispatcher why he had been switched to the other job and was told that Matt Klein had requested the switch. Although he had been asked to abandon one job and move to another on several occasions in the past, Nguyen felt that Klein was taking this action because he disliked Nguyen and was seeking to harass him.
On August 16, 2002, Nguyen went to the hospital emergency room with chest pains. He believes the trip was a result of the stress he was under from being moved around, followed and unfairly disciplined at work. In September of 2002 his cardiologist scheduled him for heart catherterization the first week of October.
Throughout his briefs, Plaintiff asserts as fact that various heart related problems he experienced were the direct result of the stress he was under while attempting to deal with a discriminatory work environment and the retaliation engaged in by various supervisors. He claims he was otherwise a healthy individual, so the timing of his problems suggests nothing but work related stress could have been at the root of his problems. Delphi takes exception and claims that Nguyen has admitted to having a blocked artery which is the more likely culprit for chest pains and the likely basis for his cardiologist performing the several catherterizations. While the court has little doubt that various episodes at work caused Nguyen stress, it will resist the invitation to play doctor or to recognize that anything in particular was the cause of Nguyen's chest pains or heart problems. Nor does the court consider either side's efforts at diagnosis to be helpful. Clearly, attribution of medical cause and effect is best left to the experts in that field. Moreover, the cause of the Plaintiff's cardiac problems is not material to the liability issue in this case.
On August 19, 2002, Todd Tiemann moved to second shift and Nguyen took over his troubleshooting position in Departments 2001 and 2002, working with another electrician, Dave Pierce. On the last day of September, Matt Klein moved to first shift, taking over for Falkenberry who was set to retire. Soon after Klein moved to first shift he informed Nguyen that he was moving Virgil Hall and Mike Brown (white native born Americans) to troubleshooting and moving Nguyen out to cover the responsibilities that Hall and Brown had been covering. Nguyen was not happy and complained to Klein, who said it was his decision based on what he believed would improve productivity. Pierce joined Nguyen in questioning the move and the thought that two new people in the department would increase productivity. Pierce specifically asked Klein to at least wait until Nguyen's heart problem was taken care of in October before he made such a move, so that Nguyen was not at risk of suffering chest pains or other problems while out running around the plant by himself. Klein declined to change his mind and said that all Nguyen had to do if he had a health problem was alert him or dispatch by radio or go to the nurse. Nguyen told Klein that he thought Klein was retaliating against him.
Nguyen reported to work on October 1, but immediately began to suffer chest pains. He believes they were brought on by the stress of the sudden transfer and the manner he was being treated by supervision at Delphi. He went to the plant hospital, but it had yet to open for the day. He asked a co-worker for assistance and emergency services were contacted while Nguyen was stretchered out of the building. He was taken to the hospital where they went ahead and performed the catherterization that had been scheduled for October 7.
Nguyen contacted Klein in the middle of November and indicated he would be returning to work November 27, but needed to come in at about 5:00 a.m. in order to leave for a 2:00 p.m. rehabilitation session. Klein told him that such an arrangement was fine and he should report to the plant hospital when he arrived so that the paperwork could be processed for his return to work. Nguyen arrived on the November 27 at about 5:30 a.m., but the hospital had yet to open for the day. So, he went to report to the third shift supervisor, Jack Bolden. Bolden asked for his medical release paperwork. Nguyen showed him a release from his own doctor and indicated that the plant hospital had yet to open so he did not have the company paperwork yet, but would return to the hospital as instructed by Klein when it opened at 6:00 a.m. Bolden instructed Nguyen to leave because he was not allowed to work if he did not have the company medical release. Bolden told him he could get the paperwork from the outside medical service, which was used for independent exams and where Nguyen had been checked over the day previous.
Nguyen left the plant a little before 6:00 a.m. and returned to his home. He called the medical clinic where he had received the check-up the day before to ask about getting release paperwork and was told that no paperwork was available there and that he would have to get all paperwork at the company hospital. He then returned to work, went to the hospital, provided the release from his cardiologist and after confirmation of his passing the check-up the previous day, was given a release to return to his job. He did so between 9:30 and 10:00 a.m.
Nguyen confronted Klein with regard to his not getting paid for the time he spent running around trying to get paperwork at Bolden's request. Klein replied that Bolden had misunderstood, but that Klein had no control over Nguyen's clock-in times. He suggested Nguyen take up the issue of pay with the nurse at the company hospital. Later, Delphi checked the time clock records and determined that Nguyen had missed 3.2 hours of time from what he would normally work on his shift. The company paid Nguyen for those 3.2 hours.
Nguyen gave his deposition in this case on December 10, 2002. The following day he saw Human Resources representative David Shade with a yellow pad just like Shade had used the day before to take notes at Nguyen's deposition. At the time Nguyen saw Shade, he was in his office speaking with General Supervisor, Phil Webber.
On December 16, 2002, Nguyen left work early at about 1:30 p.m. to attend a cardiac rehabilitation session. Before Nguyen left, Klein asked if he wanted to work overtime. Nguyen indicated that he did and would return after the rehabilitation appointment. When he left, Nguyen did not clock out. At approximately 3:45 p.m. Klein began looking for Nguyen to assign him some work, but was unable to locate him. Klein checked the time clock system and discovered that Nguyen had never clocked out. When Nguyen returned to the plant, Klein held a disciplinary meeting with Nguyen and his union representative. Klein says he intended to discipline Nguyen with a suspension for the balance of the day and two weeks, but after discussing the situation with the General Supervisor, Phil Webber, he issued a balance of the day and three day suspension in exchange for Nguyen's agreement not to file a grievance over the discipline.
Nguyen admits to not clocking out, but says he did not clock out because he was going to be returning. He maintains that employees do not clock out for lunch or breaks or departures that are approved by a supervisor. Nguyen says that Matt Klein told him that Webber had urged Klein to watch for Nguyen's return and to suspend him when he got back. Nguyen believes this was in retaliation for his deposition testimony critical of all the supervisors.
On January 17, 2003, Klein disciplined Nguyen with a balance of shift plus one week suspension for excessive time off the job. According to Klein, the dispatcher records show that Nguyen was sent to a job in the mold shop at 7:50 a.m. A bit later, another supervisor saw Nguyen sitting in the cafeteria as opposed to working the mold shop job. When Klein was notified of this he went to the mold shop to see if Nguyen was working. Klein claims he spent an hour and fifteen minutes looking for Nguyen only to find him with another employee looking at that employee's lap top computer. Nguyen claims to have worked on two different jobs that morning between 5:00 a.m. and 10:00 a.m. and then took the two fifteen-minute breaks he was entitled to through 10:30 a.m. He says he was with the co-worker on that break when he was located by Klein. Nguyen filed a grievance over the discipline. That grievance had yet to be resolved at the time of briefing.
Nguyen suffered chest pains and was placed on medical leave from February 17, 2003, through September 11, 2003. While he was out, he had three additional catherterizations performed. He returned to work on September 11, 2003, but was immediately laid off. He claims that he should not have been laid off. He claims that when a lay off occurs while an employee is on medical leave, the employee is allowed to return to work regardless of whether the lay off would have effected the employee. According to Nguyen he should have been allowed to work until the next lay off occurred.
II. SUMMARY JUDGMENT EVIDENTIARY STANDARDS
Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether a genuine issue of material fact exists, the court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. See id. at 255.
A party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A party moving for summary judgment on a claim on which the nonmovant party bears the burden of proof at trial may discharge its burden by showing, "that is, pointing out" an absence of evidence to support the nonmovant's case. Id. at 325.
A plaintiff may demonstrate intentional discrimination through either the direct method or indirect method. Steinhauer v. DeGolier, 359 F.3d 481, 483 (7th Cir. 2004) (citing Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003)). The direct method of proof permits a plaintiff to show, by way of direct or circumstantial evidence, that his employer's decision to take an adverse job action against him was motivated by an impermissible purpose, such as national origin in Nguyen's case. Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (citing Cianci v. Pettibone Corp., 152 F.3d 723, 727 (7th Cir. 1998)). Direct evidence "essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus." Rhodes, 359 F.3d at 504 (internal quotations and citations omitted). Circumstantial evidence of discrimination "'must point directly to a discriminatory reason for the employer's action.'" Id. (citing Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)).
A plaintiff who cannot prevail under the direct method must proceed under the indirect method, familiarly known as the McDonnell Douglas burden-shifting test. Id. (citing Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003)). "If the plaintiff establishes a prima facie case, the employer must articulate a legitimate, non-discriminatory reason for its employment action, and in response the plaintiff must prove that the employer's proffered non-discriminatory reason is a pretext for discrimination." Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (citing Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002)).
III. ANALYSIS
Nguyen has proceeded in this matter, alleging both individual instances of discrimination and retaliation violative of the civil rights laws, as well as an overall hostile environment which he claims is the product of harassment based on his national origin. Delphi argues that Nguyen may only recover for discrimination which occurred within 300 days of the filing of his charge with the ICRC. Nguyen maintains that he may recover damages for discrimination which occurred more than 300 days prior to his filing a charge as long as the discrimination was part of an ongoing violation which continued to occur within 300 days of the charge.
Claims of discreet discriminatory adverse acts must be raised as part of a charge filed within 300 days of the acts, but a charge alleging a hostile environment will not be time barred if all acts constituting the claim are a part of the same unlawful practice and at least one of those acts falls within the 300 day filing period. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Unlike discreet acts of discrimination, hostile environment claims are the product of repetition and intensity and can not be said to have occurred on a particular date. Id. at 115. In determining whether an actionable hostile work environment claim exists, the court must consider the totality of circumstances with attention to the frequency, severity and nature of any discriminatory acts as well as whether the acts unreasonably interfere with an employee's ability to perform his work. Id. at 116.
The deadline is 180 days in states that do not have a state agency where similar relief can be pursued. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
The level of proof necessary to support the proposition that a hostile work environment exists in violation of Title VII of the Civil Rights Act, is a showing that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A relatively tough standard to meet, it would seem most efficient to assess first whether there is sufficient evidence to allow a jury to find that a hostile work environment existed before moving on to the merits of any claims of discreet discrimination.
Delphi argues that neither Plaintiff's charge of discrimination nor his Complaint allege a claim of harassment or hostile work environment and that the issue is first raised in Plaintiff's response brief. Nguyen responds that he used the term harass in his charge, that the ICRC file is filled with references to harassment and that Delphi itself has argued on the issue of whether or not a hostile work environment existed in its opening brief. The requirement of filing with an agency, a charge of discrimination, which describes the conduct complained of, prior to pursuing a claim in federal court is not meant to erect strict pleading type barriers. Cable v. Ivy Tech State College, 200 F.3d 467, 477 (7th Cir. 1999). It appears that the ICRC investigated based not only upon discreet events allegedly discriminatory in nature but also based upon Nguyen's assertion that he was harassed. The Complaint in this case is also adequate under the minimal requirements of Fed.R.Civ.P. 8(a) to constitute a claim of harassment. Finally, the Case Management Plan includes a synopsis of the Plaintiff's claims which most certainly indicates an assertion of harassment.
Taking into account the totality of circumstances, and crediting all inferences reasonably made from the facts to the Plaintiff, the court does not find sufficient evidence of a hostile work environment to allow the claim to survive. While Plaintiff's counsel has done his best to describe the circumstances in such a manner as might evoke accord with his client's charge, there simply is not enough there to sustain a finding that the workplace was so objectively "hellish" that it altered the conditions of his employment. Rogers v. City of Chi., 320 F.3d 748 (7th Cir. 2003). And, indeed, in order to recover on a claim of a hostile work environment it must be shown that the environment was not only perceived by the plaintiff, subjectively, as hostile and abusive, but would also be perceived as such, objectively, by the reasonable person. Harris v. Forklift Sys., Inc., 510 U.S. at 21-22.
Nguyen's hostile work environment claim is based on harassment which he claims comes both through co-workers and his supervisors. He blames unknown co-workers for depositing the crude poster with figures that appear to be from an Oriental alphabet which spell out a vulgar phrase in English when turned sideways. He also complains of co-workers using derogatory and bigoted names for him when conversing with others, and assumes that Delphi "allowed" someone at the plant to walk off with his tool cart. Finally, he states that many of his electrician colleagues refuse to loan him tools or assist with work in the areas to which he has been assigned.
The vulgar poster which was placed on Nguyen's work bench was clearly in poor taste. The court can even see how someone of Asian descent might find it more offensive because of its use of figures resembling those used in an Oriental alphabet. However, the target of the joke or prank (if the poster even rises to that level) was not limited to the Plaintiff. Others had seen the poster around the plant and, when he learned that she was looking into the source of it, Chuck Whaley specifically took the union civil right representative to a department where the paper had been posted on a piece of equipment. And, though it may be insensitive to Asians to use Oriental-like figures to spell out a crude phrase, the English instructions which tell the viewer what to do in order to read the vulgar message have no particular bigoted sentiment and certainly are not facially aimed at offending a person of Vietnamese origin. "If you don't read Japanese, tilt your head to the right" is an attempt to get a reader of any national origin to be tricked into tilting his head and being met with a vulgar English phrase.
The use of derogatory names such as "gook" or "VC" to refer to Nguyen is indeed bigoted and socially inexcusable. However, its effect on Nguyen's work conditions can not be too severe when he has never heard those names directed at him. That is not to say that knowing that some co-workers have used hateful names to describe him has had no effect on Nguyen. It no doubt has and only he can measure that effect subjectively. But the court finds this evidence insufficient to objectively support a claim that a "hellish" atmosphere existed for the Plaintiff at Delphi. Even if Nguyen had heard someone refer to him by some pejorative or bigoted term, the Seventh Circuit has said that isolated incidents of slurs or biased utterances are insufficient to have the type of effect on a workplace that would support a hostile environment claim. Drake v. Minn. Mining Mfg. Co., 134 F.3d 878, 885 (7th Cir. 1998).
Nguyen's claim that other electricians would not help him or work on projects in his area are, for the most part, broad generalizations and extremely speculative with respect to the motivation for such conduct. He does specifically recite the episode in July 2000 when electrician Marvin Barker was called to work in Nguyen's department and Nguyen claims to have heard Barker tell the supervisor that Nguyen was working that department and he would not work there. Plaintiff does not claim that he heard any further reason given, if any, by Barker for the refusal, but states that Barker has helped others not of Asian descent with work in their departments. He also states that on January 17, 2003, the date he was disciplined for being away from work an excessive amount of time, part of the reason he was away from the specific work site was the extra time it took him to find someone who would loan him the right tools, though he does not specifically recite who refused to loan him tools or their explanation, if any, for the same. Even coupling these specific incidents with the affidavit testimony of several co-workers and Nguyen's broad general statement that he did not get the type of help or cooperation he should have from other electricians, they just do not add up to a reasonable interpretation of a workplace fraught with co-worker harassment.
Plaintiff submits several affidavits of co-workers in support of his position. The affidavits are chock full of speculation, hearsay and statements made without actual knowledge which this court will not accept as relevant or admissible (i.e., Nguyen's "work performance has always been good." (John Watson Aff. ¶ 8.); "discrimination has caused Jimmy great stress to the point that he had to take medical leave, had heart problems. . . ." (Ronald Swindell Aff. ¶ 15); "On January 17, 2003, James Nguyen was wrongly laid off for taking [a] long break." (Mike Westervelt Aff. ¶ 8.)
Most of the statements contained in the affidavits paint a picture of a group of electricians with diametrically opposed personal opinions of Nguyen. While Nguyen was not personally confronted by the bias of some electricians, there seems to be ample evidence that there were co-workers who did not like Nguyen principally because of his national origin, as confirmed by affiants who heard other electricians make bigoted comments amongst themselves or refuse to voluntarily assist Nguyen. As ignorant as that may be, it is not the responsibility of Delphi to cure its employees of ignorance or bigotry. Indeed it would be silly to expect that an auto parts manufacturer could achieve what educators, religious leaders and social activists have been unable to completely accomplish. Delphi is required to make sure that such ignorance or bigotry does not rear its ugly head and create a hostile environment in which an employee must work. Knowledge that co-workers have an irrational bias against him or refuse to assist him may be palpably disconcerting, but it does not amount to an adverse employment action or a hostile work environment.
Finally, there is the issue of the missing tool box. Here, Nguyen seeks to get the most out of the incident by referring to it as a further element of harassment while also inferring that its timing, within a month of his filing his ICRC charge, portends potential retaliation by his supervisors as well. Based on Nguyen's own argument that another employee had his tools replaced quicker when his tool box was stolen, we know that non-Asians have had the same thing happen to them. Despite the fact that Nguyen claims that the tool box had come up missing a couple times previously as well, only later to be found, there just is no indicia of national origin based discrimination that can be inferred from any of the incidents. Even if the court were to assume that the purpose of someone lifting the toolbox was to strike out at Nguyen, as opposed to the greed motivation usually assigned to theft, there is nothing that suggests that it was because he was from Vietnam. Work place pranks, even ones that are mean-hearted, are not uncommon and there is nothing that suggests that he alone was a target.
Moving to the issue of supervisor harassment, Nguyen's complaints seem grounded more in paranoia than objective victimization. He states that supervisors refused to assign other employees to help him when he thought he needed help, and on one occasion Delphi provided help to the electrician working in his same area on another shift, though none was provided to him on his shift. One supervisor, Whaley, stood by closely and watched him work on a couple of occasions and watched him work from a distance on other occasions. Supervisors Falkenberry and Barr allowed a machine Nguyen was working on to sit idle over a long weekend so that Nguyen would have to finish the job when he returned rather than having someone else complete the job while he was gone. On one occasion, supervisor Matt Klein had him pulled off one job he was working and moved to another. Falkenberry moved Nguyen to first shift purportedly because there was a need for help in computer networking, but then moved Nguyen to other assignments once he transferred to the shift and moved him out of an assignment he preferred when another electrician, with less seniority, came back to work from a layoff. Claiming an intent to increase productivity, Klein swapped the work assignment of Nguyen with the work assignment of two other electricians who had no experience in the department Nguyen had been working in, leaving Nguyen with an assignment previously attended to by two individuals.
It is difficult to reasonably conclude that any of these actions were in the nature of harassment, let alone that the motivation for the actions were tied to Plaintiff's national origin. Examining the circumstances, there is no evidence of any connection between the co-worker behavior and any action by Delphi management. None of the supervisors are accused of bigoted language which would evince bias. Plaintiff alleges no irrational expectations or criticism of the time it took him to complete work that he was unable to obtain assistance with or work he claims was formerly handled by two employees. The actions of the supervisors are not out of the realm of ordinary management decisions. In fact, Nguyen seems most concerned that management is managing as opposed to simply allowing him to go about his work in the fashion he sees as best. There is just no inferential link between the supervisors' actions and Nguyen's national origin. While the court is convinced from reading portions of Plaintiff's deposition as well as the affidavits of some of his co-workers that Nguyen subjectively interprets these actions as being harassment based on his national origin, there is insufficient evidence to support a similar objective conclusion. Even if everything complained of were to be interpreted as evidence of hostility or discrimination, the totality of the circumstances could lead only to the conclusion that a reasonable person would not find it abusive, even if Nguyen himself does. See, e.g., Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464 (7th Cir. 1998).
Having concluded that Plaintiff's harassment or hostile work environment claim should not survive, the court now must turn its attention to the various discreet episodes which Nguyen claims were adverse employment actions motivated by a bias against his national origin or taken in retaliation for his engaging in the protected activity of challenging what he believed to be discrimination. As is often the situation in discrimination cases, the plaintiff has not offered direct evidence of discriminatory or retaliatory motive and the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) becomes the appropriate template for sorting through the analysis of the circumstantial evidence of record. That template requires Plaintiff to first establish a prima facie case.
While a plaintiff can satisfy the direct evidence standard by offering a convincing mosaic of circumstantial evidence that points directly to a discriminatory reason for the employer's action, Rhodes v. Illinois Department of Transportation, 359 F.3d 498 (7th Cir. 2004), Nguyen does not specifically argue that he is proceeding in that fashion. To the extent that he relies upon the same circumstances alleged to have constituted a hostile work environment as direct evidence of discrimination or retaliation, the court finds it lacking for the same reasons it found it to be less than hostile.
A prima facie case of discrimination requires a showing that: 1) the plaintiff belongs to a protected class; 2) the plaintiff was meeting his employer's legitimate performance expectations; 3) the plaintiff suffered an adverse employment action; and 4) the defendant treated similarly situated employees who were not members of the protected class in a more favorable fashion. Lalvani v. Cook County, Ill., 269 F.3d 785, 789 (7th Cir. 2001). A prima facie case of retaliation is established by a plaintiff offering evidence to support that: 1) he engaged in statutorily protected activity; 2) he suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse action. Id. at 790. While the complaint does not segregate the allegations by whether they are said to be discriminatory or retaliatory in nature, the requirement that the action complained of amount to an adverse employment action applies equally to both and is the logical starting point for analysis.
In order to constitute an adverse employment action, there must be a significant change in the claimant's employment status such as hiring, firing, denial of promotion, reassignment to a position with significantly different responsibilities or an action which causes a substantial change in benefits or perks. Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, (7th Cir. 2004). It is more than a mere inconvenience or alteration in work responsibilities. Id. At the very least a plaintiff "must show some quantitative or qualitative change in the terms or conditions of his employment that is more than a mere subjective preference." Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).
The bulk of the incidents complained of by Nguyen lack any significant substantive effect on the terms and conditions of his employment. Supervisory decisions to keep a close eye on Plaintiff on a couple of occasions while he was working, to have him move to another job before completing the first or to save an incomplete job for Nguyen to complete rather than allow other electricians to finish the work in Nguyen's absence are without any real substantive effect. Switching Nguyen to a different shift, denying his request for additional manpower on his shift, moving him to different assignments on the same shift or swapping his assignment for one formerly done by two electricians does not equal an adverse employment action. There is no suggestion that any of the work assignments were extraordinarily difficult in comparison to others, that Nguyen was required to complete a greater quantity of work than others working as electricians or that any particular assignment reduced his pay or benefits or was detrimental to his career opportunities. If, as Nguyen himself testified, there were a number of areas of electrical expertise that he excelled in or tasks for which he was particularly efficient or competent, it should not strike him as odd that the company would attempt to match him up with those particular assignments, regardless of his preference. Id.
There is no evidence that Delphi or its supervisors were responsible for his missing tool box. It had come up missing previously, others had their tool boxes taken and the fact that he had filed his ICRC charge the previous month in no way points the finger at Delphi or its supervisors as tool box thieves. Indeed, the supervisor he complains of in his charge had left the company a few days before Nguyen filed the charge. The court is left with the conclusory allegation that others who had lost tool boxes had their tools replaced quicker and that Delphi "allowed" someone to take the tool box. Finally, there is no evidence that Delphi took any adverse action against Nguyen because he was without all his tools. He admits to being allowed to search out tools from others, complaining only that some electricians were less than cooperative when he approached them for the loan of a tool. The court can not conclude that the loss of his tool box was an adverse employment action taken by Delphi.
However, not all of the incidents complained of by Nguyen fail to reach the level of an adverse employment action. There is the occasion when Nguyen did not initially receive payment for overtime worked and a number of disciplinary actions taken against Nguyen, which clearly constitute adverse actions. With respect to these incidents, the court must look further to see if the elements of a prima facie case have been established. The court will review them in chronological order.
The first discreet incident of discipline complained of by Nguyen occurred in December of 1999. However, as pointed out by Delphi, this was more than 300 days prior to Nguyen filing his charge of discrimination and more than two years prior to the filing of his § 1981 claim and therefore it is barred by the applicable statute of limitations.
The first adverse employment action occurred in July of 2000 when supervisor Klein did not pay Nguyen for pre-shift overtime Nguyen worked without first checking in at the office upon arrival. Nguyen filed a grievance alleging a contractual violation. Klein testified that he had an experience earlier that week where Nguyen had come in early for overtime and not told anyone when he got there, since Nguyen could not come in for the full four hours of overtime offered, Klein wanted to be sure he knew when Nguyen arrived so that he could assign him to a job that was waiting. Klein claims to have not known that Nguyen had clocked in early for the overtime until a few days later. The company settled the grievance and paid Nguyen for the overtime because he had clocked in and was available despite Klein not knowing about it. The company does not dispute Nguyen's contention that prior to him being requested to check in on arrival, others who reported for less than a full four hours of overtime were not required to check in at the office.
Nguyen has established that, despite a relatively prompt cure by settlement of his grievance, there was an adverse employment action and evidence that others outside the protected class had been treated differently. Because there is no argument made by Delphi that Nguyen was not meeting its reasonable performance expectations, a prima facie case has been established. Klein's explanation as to why he wanted Nguyen to check in and his subsequent refusal to approve the overtime were national origin neutral. Delphi made Nguyen whole on the overtime pay upon his challenge to the same. And, Nguyen has not offered circumstantial evidence which points directly at his national origin as a determinative factor motivating Klein's actions. In fact, Nguyen had no previous complaints of Klein. The court finds insufficient evidence of pretext to allow a claim to proceed based upon this episode.
The remaining disciplinary incidents complained of by Nguyen all occurred following both his filing of the discrimination charge with the ICRC and his filing of the complaint in this action. None of these incidents are the subject of a separate charge filed with the ICRC or the Equal Employment Opportunity Commission. Normally, a Title VII plaintiff is required to bring before the district court only those claims that were included in his original agency charge of discrimination or those so related as to implicate the same individuals for the same type of conduct. Gawley v. Ind. Univ., 276 F.3d 301, 313 (7th Cir. 2001). However when the claim is retaliation for filing the EEOC charge, no separate charge describing the same is required. Id. at 314 n. 8; see also, Horton v. Jackson County Bd. of Comm'rs., 343 F.3d 897, 898 (7th Cir. 2003). Here Plaintiff alleges retaliation for the filing of the charge and also argues that some of the adverse disciplinary actions may have been triggered by the filing of the complaint or the testimony offered by Plaintiff in his deposition. Because the alleged retaliation springs from the filing of the charge or the complaint in this cause, the court sees no reason for requiring Nguyen to have filed separate charges with the state or federal agency.
In July of 2002, supervisor Mike Hess disciplined Nguyen by sending him home for the balance of the shift plus three days. The general reason given by Hess on the disciplinary notification was Nguyen's "failure to put forth a reasonable work effort on job assignment on Saturday 7-20-02." He goes on in a separate supporting document to detail the scenario on that Saturday and why he felt the job, which was not completed, was something that could have been completed in a half day. Nguyen testified in his deposition that he had problems locating the right tools to do the job that day and that Hess told him that the discipline was issued because the engineer he was supposed to have been working with told Hess that Nguyen had not been working from 5:00 to 7:00. No deposition testimony from Hess has been submitted, but Delphi has provided the disciplinary notification signed by Hess and Nguyen's union representative and the supporting write-up, neither of which state that the engineer made any comment regarding Nguyen not being there and both of which state that the basis for the discipline was Nguyen not putting forth sufficient effort to complete a job which Hess was told by the engineer could be completed in four hours.
While Nguyen has clearly established the first two elements of a prima facie claim of retaliation, his engagement in protected activity (filing of ICRC charge and federal court complaint) and a subsequent adverse employment action (the discipline), he has failed to offer evidence to sustain the third element, a causal connection between the two. There is no evidence that suggests any nexus between the protected activity and the discipline. The legitimate reason offered for the discipline by Delphi is contained in the disciplinary notification and concurrent narrative prepared by Hess. The narrative is extensive and supports a legitimate basis for discipline. The temporal connection between the March 21 filing of the federal complaint and the July 22 discipline is strained at four months. Further, there is no evidence that Hess had any knowledge of the agency charge or the filing of the complaint. In fact, Hess was not Nguyen's regular supervisor and was simply filling in while Dick Falkenberry was on vacation.
In November of 2002 Nguyen called his supervisor to inform him that he would be coming back to work from medical leave on November 27, but would need to come in early and leave early in order to make an afternoon rehabilitation program. Klein, who was his supervisor on first shift at the time, told Nguyen that his use of flex-time was fine and that he should be sure to report to the plant hospital when he arrived for clearance to resume work. Nguyen had received clearance to return to work from his cardiologist and on June 26, at the request of the group that ran the benefits program, Nguyen went to see a physician of their choice for an independent examination. On the June 26, the physician indicated that Nguyen seemed fine and could return to work, but provided no paperwork to that effect.
On the June 27, Nguyen reported to work somewhere around 5:30 a.m. The hospital was not open yet so he reported to the third shift supervisor, Jack Bolden. Bolden asked for Nguyen's company medical release. Nguyen informed Bolden that all he had was his cardiologist's release and that Klein had told him to report to the company hospital, but it had yet to open. Bolden told Nguyen he could not come back to work without a release approved by the company. He told Nguyen he should go back to the independent examiner's office and get his release so he could return to work. Nguyen left the plant and went home. There, he called the physician's office he had been to the day before and was told that they do not provide the patient with a release and that he should report directly to the plant hospital. Nguyen then drove back to the plant and arrived at the company hospital at 9:36 a.m. He provided the cardiologist's release and was asked if he had gone to the independent examination the day before, and upon his affirmation and the hospital's confirmation of the positive exam the day before, he was given the paperwork necessary to return to work.
Nguyen was not paid for the time between his initial clock-in at 5:30 a.m. and his return to the plant at 9:36 a.m. He confronted Klein about the failure to pay him for the time he spent running around back and forth from work to his home trying to obtain paperwork that Bolden demanded when Klein had told him just to come in and report to the hospital. Klein was initially of no help, telling Nguyen that Bolden had misunderstood and he should take up his lost pay with the nurse at the hospital. Later, Delphi checked his hours and determined that he would have received another 3.2 hours of pay that day if he had worked a regular work day. Accordingly, Delphi paid Nguyen for those 3.2 hours to clear up any misunderstanding .
While the initial failure to pay Nguyen was an adverse employment action, there is no indication that the action was taken based on his race or in retaliation for filing a discrimination charge two years previous or filing the federal court complaint more than six months before this incident. Nor does Plaintiff point to a non-Asian and indicate a similar experience with different results. Even without an explanation the circumstances of Nguyen's return seemed amenable to confusion and nothing in Delphi's explanation for Bolden requiring a company release and Klein's initial refusal to pay Nguyen for the time he spent trying to run down medical papers suggests that there is pretext at work. Accordingly, Nguyen has neither made a prima facie case nor (if he had made the prima facie showing) demonstrated pretext on the part of Delphi.
As indicated earlier in the factual recitation, on December 16, 2002, Nguyen was disciplined by Klein for "circumventing the gate" when he left to attend a cardiac rehabilitation appointment without clocking out. Klein could not find Nguyen at the time he said he would return and, after learning that Nguyen had not clocked out, Klein suspended Nguyen for the balance of the day and three additional days. The scope of the discipline was suggested by the general supervisor. The previous week, Nguyen had given his deposition in this matter. The day following his deposition he saw the general supervisor, Phil Webber talking with an HR employee who had been at Nguyen's deposition. When the HR employee was talking with Webber, he had a yellow legal pad with notes, just like the pad he had utilized during Nguyen's deposition. Nguyen says he was told by Klein that when he consulted with Webber, Webber asked Klein to watch for Nguyen and upon his return to discipline him. Nguyen believes the discipline was in retaliation for something he said during his deposition which was told to Webber. Further, Nguyen does not deny that he failed to clock out, but argues that everyday employees go in and out of the plant without clocking in or out and they are not disciplined. He has submitted a video tape of the front door of the plant in support of this argument.
Nguyen has not amended his complaint to include allegations related to this incident or others which have occurred since he filed his complaint in March of 2002. He does complain of these actions in his affidavit submitted in response to the summary judgment motion. The court will examine these complaints as though they were claims of retaliation for engaging in protected activity.
The video tape submitted is worthless. There is absolutely no foundation for its admissibility. Nguyen claims in his affidavit that it is a video tape of people leaving the plant for various reasons without clocking out. Indeed, the video appears to show people coming and going from a plant entrance, but there is no indication whatsoever who the people are, whether or not they are employees or whether they have clocked in or out. Meanwhile, Delphi has provided the court with the affidavits of Webber, another supervisor and a labor relations representative confirming that the electronic attendance reporting system has been in place for years and confirming that in the two years prior to Nguyen's discipline at least seven others who are not of his same national origin have been disciplined for circumventing the system. At least six of those individuals received a harsher penalty then did Nguyen. Nguyen's attempt to tie his discipline to his deposition through the yellow pad he saw in the hands of the HR representative stretches beyond the reasonableness threshold. Again the court finds no basis for a finding of retaliation or pretext.
In January of 2003, Nguyen was disciplined again. This time it was for excessive time off the job. As described in the factual background section, Klein did not find Nguyen at the location he had been dispatched to for work. After looking for him for over an hour, Klein found Nguyen with another employee, looking at that employee's lap top computer. He disciplined Nguyen with a suspension of the balance of a shift plus one week. Nguyen claims he was on a break he had earned by working non-stop earlier that morning and that his discipline was just more retaliation. He has filed a grievance over the discipline which has yet to be resolved. However, there is no event or circumstance of protected activity to which to tie this alleged retaliatory discipline. The explanation set forth in Klein's affidavit is detailed and reasonable. Nguyen's claim of retaliation is not.
That leaves Nguyen's claim that in September 2003 he returned to work from another medical leave and was inappropriately laid off on the same day he was medically authorized to return. In his affidavit, Nguyen claims that at Delphi when an employee is on medical leave and a layoff occurs, that employee is allowed to come back to work and not be laid off until the next layoff occurs. Nguyen does not point to any particular provision of the labor agreement that would allow for this nor to any individual who returned to work from a medical leave, during which a layoff occurred that would have effected that person if he or she had been working, and was allowed to continue working until the next layoff. As pointed out by Delphi, Nguyen provides no foundation for his having personal knowledge of how people other than himself are treated for purposes of layoff upon returning to work from a medical leave. Fed.R.Civ.P. 56(e) states that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, statements outside the affiant's personal knowledge or statements that are the result of speculation or conjecture or merely conclusory do not meet this requirement. Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999). Consequently, Nguyen has failed to establish a prima facie case with respect to this alleged incident as well.
CONCLUSION
Plaintiff is in a difficult situation. He knows there are people at the plant who dislike him because of his national origin. Although they do not insult him to his face, he is told by others that these individuals use derogatory names in referring to him while talking with others and his own union representative has indicated some disgust with the manner in which others within the union leadership belittle Nguyen. Consequently, it seems clear that Nguyen carries a great deal of suspicion with regard to any actions that are taken at the plant which might have some type of adverse impact on him. However, this is not a complaint against the union filed under Section 301 of the National Labor Relations Act and not one person has indicated that any of Delphi's supervisors or management are among those that have made prejudiced statements or hold bigoted viewpoints.
As difficult as the situation might be for Nguyen subjectively, he has not established that a hostile work environment exists or that Delphi is taking actions against him based on his national origin or because he has complained of discrimination. There simply is not enough evidence to support such a conclusion no matter how it is spun. So, the summary judgment motion of Delphi stands unrebutted by admissible evidence establishing a material question of fact. Accordingly, the motion will be GRANTED and judgment will issue in favor Delphi.
JUDGMENT
The Defendant's Motion for Summary Judgment is GRANTED, and JUDGMENT is now entered in favor of the Defendant and against the Plaintiff. Costs are awarded to the Defendant.