Opinion
No. 1:02-cv-01566-SEB-VSS.
September 30, 2004
ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on the motion of Defendant, Knauf Insulation GmbH ("Knauf"), seeking judgment in its favor as a matter of law on all of the claims presented in the Complaint filed by Man Y. Sung ("Mr. Sung") on October 15, 2002. Mr. Sung brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. Mr. Sung asserts that he suffered discrimination when Knauf suspended and then terminated his employment in the pipe department because of his race/national origin. Id. at ¶ 27. In addition, Mr. Sung alleges that he was subjected to a hostile work environment based on race/national origin while at Knauf. Compl. ¶ 26. The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS the defendant's Motion for Summary Judgment with respect to Mr. Sung's claim of hostile work environment butDENIES the defendant's Motion for Summary Judgment with respect to Mr. Sung's claim of disparate treatment.
Knauf Fiber Glass GmbH changed its name to Knauf Insulation GmbH.
Factual Background
Mr. Sung was born in South Korea and is of Korean descent. Dep. of Man Y. Sung at 9. Mr. Sung began working for Knauf on August 15, 1985 and since that time has worked almost exclusively in the pipe department. Id. at 14, 31-32. At all relevant times, Mr. Sung has been a member of the Glass, Molders, Pottery, Plastics Allied Workers International Union, AFL-CIO, CLC and its local union number 32 (the "Union"). Compl. ¶ 10. In 1993 Mr. Sung became a union steward and has served in that capacity since then. Dep. of Man Y. Sung at 176. In or about 1995, Mr. Sung's job moved from Knauf's Plant I to Plant III (the "Plant"), both of which are located in Shelbyville, IN. Mr. Sung agrees that the current Plant general manager, Bob Knecht, has treated him with "decency and dignity," and Knauf management agrees that Mr. Sung has generally been a good employee. Id. at 258; Dep. of Daniel Hackler at 19.On August 14, 2001, Mr. Sung switched shifts with a co-worker so that he could take his child to the first day of school. Mr. Sung reported to work at 6 p.m. that evening instead of his normal 6 a.m. start time. Dep. of Man Y. Sung at 52-53. That afternoon Mr. Sung mowed his lawn, drank two beers around 1 p.m., took a nap, and then reported to work at 6 p.m. Id. at 56-57. Upon arriving at work, Mr. Sung was assigned to operate two pipe producing machines ("Machine 3005" and "Machine 3006" respectively), with another hourly employee, John Sprong ("Mr. Sprong"). Id. at 53-54. There are two positions or stations on Machines 3005 and 3006, and Mr. Sung and Mr. Sprong had a brief disagreement over who would work which station; however, they eventually resolved the dispute and began working.
Mr. Sprong initially proposed that he work the entire shift feeding glass into the front end of both machines, and that Mr. Sung work as the operator at the "grind end" of the two machines. Mr. Sung objected because working at the grind end involves work that is both hotter and harder than feeding glass. Id. at 54-56. Normally the two workers would switch positions every two hours during a shift. Mr. Sprong eventually proposed switching positions after six hours, and Mr. Sung agreed. Id. at 59-60.
Soon after the work shift began, there was an order change for Machine 3005, which involves changing the settings on the machine in order to produce a different size pipe. Id. at 60. As the employee at the grind end, Mr. Sung was generally responsible for performing the order change. Id. at 55; Dep. of Mike Sullivan at 71-72. However, Knauf also has hourly employees with the job title of "lead operators" who assist the other hourly employees in performing order changes. Dep. of Robert Knecht at 94. If a team leader assists in an order change, part of his responsibility is to ensure that the machine runs properly after the order change and that the machine produces acceptable pipe. Dep. of Mike Sullivan at 68-69; Dep. of Robert Knecht at 94. In this case, Mr. Sung contends that lead operator, Mike Royal, helped him perform the order change and stayed at Machine 3005 until the order change was complete and observed the machine running properly. Dep. of Man Y. Sung at 60-61.
Ten to fifteen minutes after the order change, Machine 3005 began experiencing problems. Mr. Sung slowed the machine in an attempt to correct the problem; however, when he was unable to fix the problem himself, he looked for Mr. Sprong, who was not in his work area. Mr. Sung observed that glass had become wrapped around the rollers at the end of the machine where Mr. Sprong was supposed to be working. Mr. Sung went to look for Mr. Sprong, who at the time was talking with a security guard, and asked Mr. Sprong why he was not watching the machine. Mr. Sprong responded that it was Mr. Sung's job to watch the machine because he was the operator. Id. at 62-63. Mr. Sung returned to Machine 3005, put the machine in manual mode to ensure the machine would not move, and climbed underneath the machine to attempt to cut away the jammed fiber glass with a knife. Id. at 62, 66. Mr. Sprong returned to Machine 3005 and offered Mr. Sung his butcher knife to use, which Mr. Sung refused. Mr. Sprong then went to the other side of the machine to clear fiber glass. Mr. Sprong also appears to have climbed under Machine 3005 in his attempt to cut free the jammed fiber glass. Id. 63-64; Dep. of Mike Sullivan at 42. Mr. Sung and Mr. Sprong were able to clear the jammed fiber glass out of Machine 3005, at which point Mr. Sprong again left the machine to go talk with Keith Gooding ("Mr. Gooding"), another coworker. Mr. Sung was upset to find Mr. Sprong had again left his station and yelled at him, "I fucking guarantee I pay you back." After yelling at Mr. Sprong, Mr. Sung returned to his station to work on Machine 3005. Dep. of Man Y. Sung at 68-69.
Mr. Gooding was working on the adjacent Machines 3003 and 3004 at the time. Dep. of Doug Rogers at 11; Dep. of Mike Sullivan at 28.
It appears from the record that at this time, Mr. Sprong and Mr. Gooding, paged their supervisor, Doug Rogers ("Mr. Rogers"), to ask him to come down to Machines 3005 and 3006 because they were allegedly concerned about Mr. Sung's outburst. Dep. of Doug Rogers at 11. Mr. Rogers was busy at the time, so he asked another supervisor, Mike Sullivan ("Mr. Sullivan"), to attend to the problem. Dep. of Mike Sullivan at 28, 31. Mr. Sullivan arrived at Machine 3005 at approximately 7:40 p.m. and observed Mr. Sung working at the grind end. Mr. Sung was pulling scrap pipe off the Machine 3005 and Mr. Sullivan observed that all the pipe Machine 3005 was producing was scrap. Id. at 31-32. Mr. Sung told Mr. Sullivan that Mr. Sprong had allowed fiber glass to wrap around the head roller, and Mr. Sullivan observed that Mr. Sung was upset with Mr. Sprong about this matter. Id. at 39-41. Mr. Sullivan went to the other end of Machine 3005 and observed Mr. Sprong pulling fiber glass out from underneath the machine while it was running. Id. at 42. Mr. Sullivan changed the pressure of the glue spray and had Mr. Sprong perform other unspecified changes to Machine 3005. Mr. Sullivan also removed a "chunk" of glue from the tip of the glue spray, which was one of the problems preventing the machine from operating properly. Although keeping the tip of the glue spray clean could properly be described as both Mr. Sung and Mr. Sprong's responsibility, Mr. Sung could not have observed that the glue tip was obstructed from his station, but Mr. Sprong could from his. Id. at 43-47. Mr. Sullivan concedes that Mr. Sprong, at the least, should have shut down the machine and told Mr. Sung there was a problem, or cleared the obstruction himself. Id. at 45.
Glass wrapping the head rollers of a machine is an occasional problem at the Plant and something that would cause a machine to produce scrap pipe.
Frank C. Thomas ("Mr. Thomas"), who was serving as a relief supervisor at the time, also heard the page from Mr. Sprong to Mr. Rogers and went down to Machine 3005 to investigate the situation. Mr. Thomas tried to question Mr. Sprong about what the problem was, but Mr. Sprong refused to talk to him. Dep. of Frank C. Thomas at 10-11. Mr. Thomas apparently believed that Mr. Sprong "had an attitude" that evening, by which he means Mr. Sprong would complain if things did not go his way. Dep. of Frank C. Thomas at 8-10.
A relief supervisor is an hourly employee that fills in as a supervisor when needed by Knauf. Dep. of Frank C. Thomas at 4.
Mr. Thomas also testified this "attitude" was just Mr. Sprong's personality and he had received complaints from other employees that Mr. Sprong was hard to get along with.
Shortly thereafter Mr. Rogers came down and talked to Mr. Sprong. Mr. Rogers testified that Mr. Sprong alleged that Mr. Sung was acting "crazy" and smelled of alcohol. Dep. of Doug Rogers at 1-12. Mr. Sung did inform Mr. Rogers and Mr. Sullivan that he had drunk a couple of beers five or six hours before coming to work; however, Mr. Sung insisted he was not intoxicated. Dep. of Man Y. Sung at 75.
There appears to be a dispute in the record whether Mr. Sung actually smelled of alcohol. Mr. Rogers and Mr. Sullivan both testified that they thought they smelled alcohol on Mr. Sung's breath. Dep. of Doug Rogers at 31; Dep. of Mike Sullivan at 64. However, neither Mr. Gooding, Mr. Thomas, who walked in with Mr. Sung that evening, nor William Gamble ("Mr. Gamble"), who served as the union representative for Mr. Sung that evening, smelled alcohol on Mr. Sung's breath. Dep. of Robert Knecht at 30; Dep. of Frank C. Thomas at 12. Aff. of William Gamble at ¶¶ 4, 28.
There is also disagreement as to whether or not Mr. Sung was "slurring" his words that evening. Mr. Rogers and Mr. Sullivan testified that Mr. Sung was "slurring" his speech, which led them to suspect he had been drinking. Dep. of Doug Rogers of 31; Dep. of Mike Sullivan at 58. However, Mr. Gamble counters that Mr. Sung was not "slurring" his words. Aff. of William Gamble at ¶ 27.
Mr. Rogers called the Knauf safety administrator, Jeff Whitaker ("Mr. Whitaker"), to inquire about the proper procedure for performing an alcohol test. Mr. Whitaker advised Mr. Rogers to perform a saliva test on Mr. Sung and, regardless of the results of that test, to send Mr. Sung to the hospital for a blood and urine test as well. Dep. of Doug Rogers at 16, 26. At approximately 8 p.m., Mr. Rogers administered the saliva test to Mr. Sung in the presence of William Gamble ("Mr. Gamble"), a Union steward; Chris Holder ("Mr. Holder"), a security guard; and Mr. Sullivan. Dep. of Man Y. Sung 72-73. The parties present at the time disagreed as to the results of the saliva test, so Mr. Holder offered to give Mr. Sung a Breathalyzer test but Mr. Rogers refused because Knauf had already planned to send Mr. Sung to the hospital for further testing. Dep. of Doug Rogers at 23-24; Dep. of Man Y. Sung at 76; Aff. of William Gamble at ¶¶ 13-14. Mr. Sung is the only Knauf employee ever to be administered a saliva test. Dep. of Daniel Hackler at 13. Mr. Gamble took Mr. Sung to the hospital where a blood and urine sample were obtained from Mr. Sung at approximately 9:45 p.m. Dep. of Man Y. Sung at 77. Throughout this entire process Mr. Sung was cooperative with his Knauf supervisors and the testing they requested. Dep. of Doug Rogers at 27-28; Aff. of William Gamble at ¶ 16.
The saliva test indicates the alcohol level by changing color. Mr. Rogers and Mr. Sullivan contend the test changed color slightly, indicating an alcohol level of approximately .01 percent. Dep. of Doug Rogers at 21-22; Dep. of Mike Sullivan at 60. Mr. Sung and Mr. Gamble contend the test did not change color, thereby indicating no alcohol was present. Dep. of Man Y. Sung at 74-75; Aff. of William Gamble at ¶ 9.
It appears from the record that the labor agreement between the Union and Knauf required that employees suspected of being under the influence of alcohol be given a Breathalyzer test, and this was true at the time of Mr. Sung's testing. Dep. of Man Y. Sung at 76; Dep. of Robert Knecht at 23. Knauf stated the Breathalyzer in Mr. Holder's posession was not owned by Knauf and so the company had no control over its accuracy. Second Aff. of Robert Knecht at ¶ 3.
It is apparently the policy of Knauf to send employees to a hospital for blood and urine tests if there are questions about their sobriety. Dep. of Daniel Hackler at 13.
After the problems surrounding Mr. Sung's testing, Knauf ceased using the saliva test and purchased a Breathalyzer to test employees. Dep. of Daniel Hackler at 13.
Mr. Sung returned to the Plant at approximately 11 p.m. Dep. of Frank C. Thomas at 11; see also Dep. of Doug Rogers at 33. Either while Mr. Sung was at the hospital or shortly after his return to the Plant, a Knauf supervisor called Mr. Sung's wife to come pick him up because there was concern about Mr. Sung driving home if he was intoxicated. While there is conflicting evidence about exactly what Mr. Sung was told and by whom upon his return to the Plant, there is no dispute that Mr. Sung was advised that his wife had been called and that he was not to return to work on the production floor. There is no evidence in the record that anyone told Mr. Sung that he could not leave the Plant on his own or that he had to wait for his wife to arrive before he could leave. Also, Mr. Sung testified that Mr. Rogers and Mr. Thomas informed him that he was done for the night and that he noticed his timecard had been removed from the rack where is should be. Dep. of Man Y. Sung at 83. Mr. Sung waited approximately fifteen to twenty minutes at the Plant for his wife to arrive, and then left because he was concerned she had gotten lost on the way. Aff. of William Gamble at 23-24. At some point thereafter, Knauf supervisors discovered that Mr. Sung had left the plant.
Mr. Rogers testified that, while Mr. Sung was at the hospital, he called Mr. Sung's wife to come pick him up at the Plant. Mr. Rogers was concerned that if Mr. Sung had been drinking he should not drive home. Dep. of Doug Rogers at 34. Mr. Sullivan says that the general manager of the Plant, Mr. Knecht, advised him not to let Mr. Sung drive home, and that he relayed this information to Mr. Rogers. Dep. of Mike Sullivan at 64-65. Mr. Rogers, however, does not recall having such a conversation with Mr. Sullivan. Dep. of Doug Rogers at 33-34. Mr. Thomas testified that he called Mr. Sung's wife, at the request of Mr. Rogers, and that the call did not take place until after Mr. Sung returned to the Plant. Dep. of Frank C. Thomas at 22-23. Both Mr. Sung and Mr. Rogers agree that Mr. Sung asked why his wife had been called, but neither can remember what Mr. Rogers responded, if anything. Dep. of Doug Rogers at 36; Dep. of Man Y. Sung at 83.
Mr. Rogers testified that when Mr. Sung returned from the hospital he told him that his wife was on the way, that Mr. Sung had to stay off the production floor, should wait in the break room, and should not drive. Dep. of Doug Rogers at 36, 38. However, Mr. Sung asserts he was only told that his wife had been called and that he was not allowed to work the rest of his shift. Mr. Sung specifically denies that anyone at Knauf told him: that he had to wait for his wife to arrive before he could leave; that he was not allowed to leave the Plant; or that he was not to drive himself. Dep. of Man Y. Sung at 83-84. Mr. Gamble, who was with Mr. Sung at the time, also contends that no one at Knauf advised Mr. Sung that he could not leave until his wife arrived or that he could not drive. Aff. of William Gamble at ¶¶ 19-22. Mr. Thomas testified that he neither told Mr. Sung he could not leave the Plant nor heard anyone else tell Mr. Sung that. Dep. of Frank C. Thomas at 24-25. Mr. Sullivan was not present when Mr. Sung returned from the hospital or when he left the Plant. Dep. of Mike Sullivan at 65-66.
It is unclear from the record what happened to Mr. Sung's timecard. Mr. Thomas testified he did not do anything with the timecard. Dep. of Frank C. Thomas at 27-28. Craig Laker ("Mr. Laker"), a member of Knauf management, testified that after examining Mr. Sung's timecard he did not clock himself out, but instead that a supervisor had to clock him out. Dep. of Craig Laker at 19. There is no testimony by Mr. Rogers in the record about the timecard. See Dep. of Doug Rogers.
Mr. Thomas testifies that Mr. Rogers informed him that Mr. Sung had left the facility and this occurred shortly after Mr. Thomas returned from calling Mr. Sung's wife to come to the Plant, but before Mr. Sung's wife had actually arrived at the Plant. Dep. of Frank C. Thomas at 24. Mr. Rogers testified he had no personal knowledge whether or not Mr. Sung waited for his wife to arrive. Dep. of Doug Rogers at 43. Mr. Sullivan testified that either Mr. Thomas or Mr. Rogers told him Mr. Sung had left and asked to go look from Mr. Sung's car in the parking lot, and that this occurred after Mr. Sung's wife had arrived at the Plant. Dep. of Mike Sullivan at 65. It is undisputed that after Mr. Sung's wife arrived at the Plant, Mr. Thomas called Mr. Sung's house and discovered that he had already arrived home. Dep. of Frank C. Thomas at 24; Dep. of Man Y. Sung at 85.
Following the events of August 14, 2001, Knauf suspended Mr. Sung pending further investigation. Knauf stated that coming to work under the influence of drugs or alcohol was a terminable offense, as was Mr. Sung's conduct of leaving the Plant contrary to the instructions of his supervisor. See Personal Action Form, Exhibit 8. Mr. Sung and the Union responded that Mr. Sung had passed the company's alcohol test and that Mr. Sung was never advised he could not leave the Plant and had only been told that his wife was called to get him. Id. Knauf conducted an investigation that involved reviewing written documents and conducting interviews, including with Mr. Sung. Dep. of Craig Laker at 14; Dep. of Robert Knecht at 36; Dep. of Man Y. Sung at 93.
It unclear from the record whether the written statements corresponded to the same individuals interviewed. There were only five written statements. Dep. of Craig Laker at 14. It appears that Knauf, at least, obtained information from Mr. Sung, Mr. Sprong, Mr. Gooding, Mr. Thomas, and Mr. Rogers. Id.; Dep. of Robert Knecht at 30, 98; Dep. of Man Y. Sung at 93.
During the investigation, Knauf received the results of the drug and alcohol test from the hospital which indicated that Mr. Sung had neither substance in his system at the time. According to Knauf, its investigation revealed four ways in which Mr. Sung's behavior was unacceptable on August 14, 2001, which are: (1) Mr. Sung admitted to using offensive language toward a fellow employee; (2) Mr. Sung admitted to violating the lockout/tagout policy; (3) Mr. Sung's performance was unacceptable when performing an order change; and (4) Mr. Sung left the Plant after he was "specifically told by [his] Supervisor to wait for [his] wife to pick [him] up." See Personal Action Form, Exhibit 11. Knauf managers Robert Knecht ("Mr. Knecht") and Daniel Hackler ("Mr. Hackler") made the determination to suspend Mr. Sung and the decision to reinstate him under the following relevant conditions: (a) that Mr. Sung would not be awarded back pay for the period he was suspended; (b) that Mr. Sung would not pursue any other course of action against the company or the Union regarding this discipline; (c) if he did not accept the conditions he would be terminated; and (d) any future similar violations would be grounds for automatic termination. See Personal Action Form, Exhibit 11. Mr. Sung refused to accept the conditions without back pay, id., and consequently was terminated on August 24, 2001. See Personal Action Form, Exhibit 12. Knauf reinstated Mr. Sung in February, 2002, with full seniority, job rights, benefits, and back pay as a result of a Union grievance. Aff. of Robert Knecht at ¶ 13.
Defendant in its brief attempted to add the additional adjective "hostile" to describe Mr. Sung's language. Def.'s Brief in Supp. of Summ. J. at 6. We do not believe this addition is supported in the record. See infra note 33.
Under certain circumstances when employees need to work on a machine the power for the machine must be disconnected and "locked out" which prevents the machine from being turned back on. Dep. of Mike Sullivan at 22. The machine is then "tagged" so that other employees know not to use it.
However, Knauf only reinstated Mr. Sung after the Union threatened that reinstating Mr. Sung was necessary to maintain an amicable relationship with the Union.
After his termination, Mr. Sung filed on August 31, 2001, an Equal Employment Opportunity Commission ("EEOC") charge alleging discrimination based on race and national origin. Notice of Charge of Discrimination, Exhibit 30. Mr. Sung alleges he made various complaints to Knauf management in the 1980s or early 1990s about harassment he was suffering and that they did not investigate his complaints but instead sent him to a counselor/therapist. Dep. of Man Y. Sung at 173-181; see also notes from Wayne Followell Interview, Exhibit 112 at 0409. Mr. Sung also alleges that several former supervisors at Knauf called him racially derogatory names and that various current Knauf supervisors or managers were present when employees called him racially derogatory names. Mr. Sung testified that several current Knauf supervisors have either referred to him as "Fuji," a name which Mr. Sung finds racially offensive, or allowed hourly employees to do so. Mr. Sung finally contends that the derogatory terms "dog eater," "slant eye," and "jap" were extremely common on the production floor and that any supervisor that spent time in the presence of Mr. Sung would have heard these names. Aff. of Thomas Pogue at ¶ 12.
Mr. Sung states he complained to his supervisor Jackie Dick about being called "Chinese Nigger," that Mr. Dick took no action as a result of the complaint and the harassment continued. Mr. Sung also stated he complained to another supervisor, Dick Wise, the superintendent at the time, Bob Beranek, and the Plant manager, Jon Pereira about the harassment. Mr. Sung alleges Mr. Beranek told him to "move on" and Jon Pereira told him a story about the discrimination his parents faced when they came to the United States. Dep. of Man Y. Sung at 171-78. Mr. Dick, Mr. Wise, and Mr. Beranek no longer work for Knauf. Second Aff. of Robert Knecht a ¶¶ 5, 7-8.
Mr. Sung alleges that former supervisor Bruce Milbourn called him names including: "slant eye," "slant-eyed monkey," "slant-eyed mother fucker," "slant-eyed nigger," "Chinese nigger," "Fuji," "jap," and "dog eater." Dep. of Man Y. Sung at 145-147. Mr. Sung alleges former supervisor Jackie Dick called him "Chinese nigger." Aff. of Thomas Pogue at ¶ 5. Mr. Sung alleges former supervisor Jerry Beyers frequently called him "gook." Id. at ¶ 6. Mr. Sung alleges that supervisor Jerry Shonk called him "slant eye." Id. at ¶ 10. Mr. Sung also alleges that several years ago management employee Roger Perry made a song about Mr. Sung and his national origin and sang it to him. Id. at ¶ 7. Bruce Milbourn, Jackie Dick, Jerry Beyers, and Jerry Shonk no longer work at Knauf. Id. at ¶ 10; Second Aff. of Robert Knecht at ¶¶ 4-6.
Mr. Sung alleges that in May or June, 2001, Mr. Whitaker was present when hourly employee Terry Goss called Mr. Sung "slant eye." Dep. of Man Y. Sung at 138-139, 208. Knauf supervisor Mr. Sullivan testified he has heard Mr. Sung called both "slant eye" and "Jap," although it is unclear if Mr. Sullivan was a supervisor or an hourly employee at the time he heard the words. Dep. of Mike Sullivan at 8-10, 17-20. Mr. Sung also alleges several Knauf supervisors, several of which are no longer employed at Knauf, were present in the break room when another hourly employee, Danny Wright, in a loud voice called Mr. Sung, among other names: "slant eye," "slant-eyed monkey," "slant-eyed mother fucker," "slant-eyed nigger," "Chinese nigger," "Fuji," "jap," "dog eater," and "chinc." Dep. of Man Y. Sung at 141-142. Mr. Sung also alleges that hourly employees called him "slant eye," "jap," and "dog eater" in the presence of Knauf supervisor Brian Kuhn and that Mr. Kuhn took no action. Aff. of Thomas Pogue at ¶ 9.
Mr. Sung stated that he feels "Fuji" is a racist name people call him because of his race. Dep. of Man Y. Sung at 250.
Supervisors Brian Kuhn, Mr. Sullivan, and Mr. Rogers and management employee Scott Needham have called Mr. Sung "Fuji" and/or allowed hourly employees to do the same without issuing any disciplines. Aff. of Thomas Pogue at ¶ 8, 11. Dep. of Mike Sullivan at 8-12. Dep. of Doug Rogers at 6-7. Plant general manager Mr. Knecht has also heard Mr. Sung referred to as "Fuji" for years, but did not think it was inappropriate. Dep. of Robert Knecht at 51-52.
Mr. Sung described in detail three specific instances when Knauf supervisors promoted or failed to investigate discriminatory conduct. In a disciplinary meeting in 2000 or 2001, Knauf's human resource manager, Mr. Hackler, pulled his eyes back and joked about looking like Buddha; various other members of Knauf management may have been present at the meeting as well. Mr. Sung attended the meeting; however, both parties agree he was not the target of Mr. Hackler's comment. Dep. of Man Y. Sung at 156-57. Aff. of Thomas Pogue at ¶ 4. Several months later Thomas Pogue, former President of the Union, conveyed Mr. Sung's displeasure with Mr. Hackler's conduct to Knauf management. Knauf management appears to have investigated, but taken no disciplinary action. Dep. of Robert Knecht at 82-84. The second incident occurred in 1995 when the Union filed a grievance that Knauf supervisor, Jerry Shonk ("Mr. Shonk"), referred to Mr. Sung as "that slant eyed union steward" and pulled his eyes back. Knauf responded that Mr. Sung was attempting to cloud the issues, and appears to have taken no further action to investigate Mr. Shonk's comments. See Grievance Statement/Cases, Exhibit 34. The final incident occurred in early 2001 when during an argument Bruce Fisher ("Mr. Fisher") called Mr. Sung "slant eyed mother fucker" in the presence of a Knauf supervisor. The supervisor told Mr. Fisher he was getting personal and made Mr. Fisher apologize and shake hands with Mr. Sung. Dep. of Craig Laker at 69-70; Interview with Mr. Fisher, Exhibit 110. Knauf took no further action against Mr. Fisher until Mr. Sung filed his EEOC charges, at which point, Knauf investigated the incident and disciplined Mr. Fisher; however, the discipline was later withdrawn at the Union's request. Dep. of Craig Laker at 73-75.
The Union grievance arose in response to disciplinary proceedings against Mr. Sung for inappropriate conduct relating to an argument with Mr. Shonk.
There is disagreement in the record as to the identity of the supervisor.
Knauf claims the EEOC charge was the first notification it had regarding Mr. Sung's concern about harassment based on race/national origin. Dep. of Robert Knecht at 50-51. Mr. Sung admitted he has been reluctant to raise his concerns about harassment with Knauf management since he did not want to put another job in "jeopardy" because of the resulting discipline that Knauf might issue. Dep. of Man Y. Sung at 209-210. Mr. Sung has also never used the Union grievance procedure to allege he was subject to harassment. Second Aff. of Robert Knecht at ¶ 1.
After receiving Mr. Sung's EEOC complaint, Knauf initiated an investigation into the use of derogatory language at the Plant. Mr. Knecht, who conducted the investigation, alleges that Mr. Sung asked him to stop conducting his investigation and that Mr. Sung had said he was not bothered by the term "Fuji." Aff. of Robert Knecht at ¶ 14. During the investigation several Knauf employees who were alleged to have used racially insensitive terms denied using them. Knauf disciplined three individuals for making racially inappropriate comments. Aff. of Robert Knecht at ¶ 15; Dep. of Robert Knecht at 60-61. A fourth employee admitted calling Mr. Sung "Chinaman" and "slant eye," but Knauf did not issue any discipline. Dep. of Robert Knecht at 74-76. The Knauf investigation revealed that almost everyone in the Plant referred to Mr. Sung as "Fuji," that Mr. Sung at times referred to himself as "Fuji," and that many Knauf employees were unaware that Mr. Sung found the name to be offensive. Aff. of Robert Knecht at ¶ 16; see also Dep. of Daniel Hackler at 8-11; Aff. of Larry Smith at ¶ 4; Exhibits 112-14, 119-25. Knauf also provided harassment training for all employees in December, 2003. Dep. of Robert Knecht at 88-89; Dep. of Daniel Hackler at 48-49.
See, e.g., Exhibits 112-14, 119-25.
Bruce Fisher, Brian Fisher, and Terry Goss.
George Dewhurst.
A fifth employee also admitted using racially derogatory names for Mr. Sung, but this employee left Knauf before the investigation was completed, so no discipline was issued. Dep. of Robert Knecht at 73.
In 1998 and 2002, Knauf provided harassment training for management employees only.
Legal Analysis
I. Summary Judgment Standard
On a motion for summary judgment, the burden rests on the moving party, Knauf in this case, to demonstrate "that there is an absence of evidence to support the nonmoving party's case."Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the nonmovant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her."Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52. (1986).
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the nonmovant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish his case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920. A plaintiff's self-serving statements, unsupported by specific concrete facts reflected in the record, cannot preclude summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993).
We note that the Seventh Circuit has determined that the summary judgment standard is to be applied with special scrutiny to employment discrimination cases because intent and credibility are such critical issues. See, Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). To that end, we carefully review affidavits and depositions for circumstantial proof which, if believed, would show discrimination. However, it is equally clear that employment discrimination cases are not governed by a separate set of rules and remain amenable to disposition by summary judgment so long as there is no genuine dispute as to the material facts.Giannopoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 410 (7th Circ. 1997).
II. Race/National Origin Discrimination — Disparate Impact
Mr. Sung alleges that Knauf suspended and subsequently terminated his employment because of his race and/or national origin. A plaintiff may prove intentional employment discrimination under Title VII by using either the (A) "direct method" or (B) "indirect method." Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 504 (7th Cir. 2004) (citation omitted). We find that Mr. Sung has failed to produce sufficient evidence to satisfy the direct method; however, analysis of his claim can proceed under the indirect method.
A. Direct Method.
Under the direct method of proof, Mr. Sung must show, by way of direct or circumstantial evidence, that Knauf's decision to take an adverse job action against him was motivated by an impermissible purpose, in this case, race/national origin. See id. Mr. Sung claims both direct and indirect evidence of discrimination, but our review reveals that none of his evidence qualifies as direct evidence. The Seventh Circuit has repeatedly reminded us that direct evidence is "evidence which, if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption." Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999) (internal citations omitted). Direct evidence must "not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question." Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999) (internal citations omitted). Also see, Vakharia v. Swedish Covenant Hospital, 190 F.3d 799, 806 (7th Cir. 1999). Mr. Sung has not presented such evidence.
Mr. Sung could prevail under the direct method by constructing a "`convincing mosaic' of circumstantial evidence that `allows a jury to infer intentional discrimination by the decisionmaker.'"Rhodes, 359 F.3d at 504 (quoting Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th Cir. 1994). However, Mr. Sung must still present circumstantial evidence that points "directly to a discriminatory reason for the employer's action." Rhodes, 359 F.3d at 504 (internal quotation omitted). Again, Mr. Sung has produced no evidence which directly points to a discriminatory reason for his suspension/termination. Accordingly, we find his claim cannot proceed under the direct method.
The alleged racist conduct of Mr. Hackler, assuming it is accurate, would not be sufficient to meet Mr. Sung's burden. The Seventh Circuit has stated that "there must be a real link between the bigotry and an adverse employment action." Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 762 (7th Cir. 2001). Mr. Hackler's gesture and comment were not directed towards Mr. Sung, nor was the meeting at which the alleged incident occurred directly related to Mr. Sung.
B. Indirect Method.
Mr. Sung may proceed indirectly through the burden-shifting method outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). There are three primary steps to the burden-shifting model. (1) Mr. Sung must first establish a prima facie case of discrimination. (2) If he does, he raises a presumption of discrimination which Knauf must rebut by producing evidence of a legitimate nondiscriminatory explanation of its adverse employment action. (3) If Knauf meets that burden, Mr. Sung must show, through admissible evidence, that Knauf's explanation is pretextual. See Freeman v. Madison Metropolitan School Dist., 231 F.3d 374, (7th Cir. 2000); Stewart v. Henderson, 207 F.3d 374, 376 (7th Cir. 2000).
(1) Mr. Sung's prima facie case.
To establish a prima facie case of race/national origin discrimination, Mr. Sung must present evidence showing that: (1) he is a member of a protected class; (2) he was performing his job satisfactorily; (3) he suffered an adverse employment action; and (4) at least one similarly-situated employee, not in his protected class, was treated more favorably. Gordon v. United Airlines, Inc., 246 F.3d 878, 885-886 (7th Cir. 2001); Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th Cir. 1997).
Knauf only argues that Mr. Sung's evidence fails to establish the fourth element of the prima facie case. We disagree. For purposes of summary judgment we conclude that Mr. Sung was similarly-situated to his coworker, Mr. Sprong, on the night in question. Knauf provides five reasons Mr. Sprong should not be considered similarly-situated to Mr. Sung: (a) Mr. Sprong did not admit to drinking multiple beers on the afternoon of August 14, 2001; (b) there is no evidence that Mr. Sprong used inappropriate language; (c) Mr. Sprong did not climb beneath Machine 3005 without following the lockout/tagout procedure; (d) Mr. Sprong was not primarily responsible for setting up Machine 3005 and/or performing the order change; and (e) Plaintiff does not allege that Mr. Sprong left the plant without permission.
Defendant actually alleges there is no "evidence that Sprong threatened any co-worker." Def.'s Reply Brief at 9. Defendant's attempt to draw a distinction between Mr. Sprong and Mr. Sung based on threatening language is not supported in the record. There is no indication in the record that Knauf viewed Mr. Sung's language as inappropriate because it was threatening as opposed to containing profanity. Dep. of Robert Knecht at 36-37 (describing Mr. Sung's language as only as "inappropriate"); Dep. of Daniel Hackler at 20, 29 (describing Mr. Sung as "verbally abus[ing] coworkers"); Dep. of Doug Rogers at 30-31 (describing Mr. Sung's language as "profanity" and "cussing"). In fact, the report prepared by the third-party witness to Mr. Sung's outburst concerned his use of the "F word." Dep. of Robert Knecht at 30; Dep. of Mike Sullivan at 67. Moreover, Knauf's written reason for suspending Mr. Sung stated he used "offensive language." Exhibit 11. Therefore, we decline to accept Defendant's interpretation of Mr. Sung's language as threatening as a "material aspect." See Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1155 (7th Cir. 1997).
We find these differences are either not material or are not undisputed, thereby precluding summary judgment for Defendant. While reason (a) is technically true, we are disturbed that Defendant has raised it as a justification for treating Mr. Sung differently from Mr. Sprong, and we do not find this difference worthy of serious consideration. Reasons (b) — (d) are essentially Knauf's stated justifications for suspending/terminating Mr. Sung. We will briefly address each in turn.
Knauf had explicit knowledge that Mr. Sung did not have alcohol in his blood at the time in question. Once Mr. Sung's drug tests came back negative, there should have been "no possible grounds for disciplining him" with respect to alcohol use, as Knauf has apparently previously decided with Caucasian employees. See Def.'s Reply Brief at 10.
The Court is not sure how to view Defendant's dogged persistence in pointing out that Mr. Sung admitted to drinking two beers. See Def.'s Reply Brief at 2, 5-6, 9; Def.'s Brief in Supp. of Summ. J. at 3-4. Either Defendant feels justified in wasting the court's time by repeatedly raising factually irrelevant arguments, or Defendant believes that this fact creates an inference which is relevant to Mr. Sung's suspension. If the latter is true, it only supports Mr. Sung's contention that the reasons Knauf stated for his suspension are mere pretext because Knauf, in fact, is still trying to punish him for conduct (on the job intoxication) which it knows he did not commit.
(b) Mr. Sprong did not use inappropriate language.
Mr. Sung has presented sufficient evidence to challenge the materiality of this distinction between his conduct and Mr. Sprong's on the night in question. Mr. Sung argues that using offensive language is insufficient to support a suspension, and has presented several undisputed pieces of evidence which indicate that use of inappropriate language on the production floor has not previously been deemed by Knauf to be sufficient to justify a suspension/termination. Accordingly, we find this factor is not material in distinguishing Mr. Sung's suspension from Mr. Sprong's lack of discipline.
First, several Knauf supervisors have admitted hearing hourly employees use profanity in the Plant but have never issued discipline to anyone for using it. Dep. of Doug Rogers at 31; Dep. of Mike Sullivan at 67-68; Dep. of Robert Knecht at 30;see also Aff. of Thomas Pogue at ¶ 15. Second, Knauf management is not aware of any other employee that has been suspended for using offensive language. Dep. of Daniel Hackler at 32. Third, Mr. Sung testified that he did not view the language as a threat or offensive, and described it as "shop talk," or just how the men in the factory talked to each other. Dep. of Man Y. Sung at 69, 99. Knauf does not contest these facts.
(c) Mr. Sprong did not violate the lockout/tagout policy. Mr. Sung challenges the factual basis and the materiality of this distinction. Mr. Sung asserts, with supporting testimony, that the lockout/tagout policy is regularly not enforced on the Plant floor, that he was trained not to follow it, that supervisors do not follow the policy; and that subsequent to Mr. Sung's suspension supervisors have continued not to follow the policy. Supporting Mr. Sung's claim, a Knauf supervisor has conceded that he has allowed employees to violate the lockout/tagout policy in the past. Mr. Sung contends that he took necessary safety precautions before attempting to clear the jam on Machine 3005, namely, that he pushed the emergency stop button and put the machine in manual mode, which is exactly what he was trained to do. Mr. Sung's also alleges that Mr. Sprong violated the lockout/tagout policy and was not disciplined. Knauf management appears not to have seriously investigated whether this was true nor did management follow up on Mr. Sung's written accusations that his coworker had also been beneath the machine. Finally, Knauf concedes that Mr. Sung's violation of the lockout/tagout policy would not normally merit a suspension. We find that Mr. Sung has presented sufficient evidence to dispute the factual basis for this factor and its materiality for distinguishing him from Mr. Sprong.
Dep. of Man Y. Sung at 65-67; Aff. of Thomas Pogue at ¶ 14; Dep. of Mike Sullivan at 22-23.
Dep. of Mike Sullivan at 23. The Court also notes that technically Knauf supervisors did not have discretion to decline to enforce the lockout/tagout policy. Dep. of Daniel Hackler at 24.
Dep. of Man Y. Sung at 66, 263-64.
Mr. Knecht stated that Mr. Sprong was not disciplined for violating the Lockout/tagout policy because he was not underneath the machine. Dep. of Robert B. Knecht at 41, 97-98. However, Mr. Knecht also stated, "Pursuant to Knauf policy, whenever a machine requires servicing or maintenance, employees must follow the company's `lockout/tagout' procedure.'" Aff. of Robert Knecht at ¶ 8; see also Dep. of Daniel Hackler at 22. It is undisputed that both Mr. Sullivan and Mr. Sprong were working on Machine 3005 without "lockingout" or "tagingout." Regardless, Mr. Sung alleges that Mr. Sprong was also pulling glass from underneath the machine, and, it appears, he was doing so in the presence of a Knauf supervisor. Dep. of Man Y. Sung at 63-64; Dep. of Mike Sullivan at 42, 46.
See Dep. of Robert Knecht at 97-98; Personal Action Form, Exhibit 15.
Mr. Sung had not previously been disciplined for a violation of the lockout/tagout policy, and Knauf concedes that the proper penalty for a first offense violation of the lockout/tagout policy is a verbal warning not a suspension. In fact, a suspension for violating the Lockout/tagout policy would normally only be warranted on the third or fourth violation, and Knauf management is not aware of any other employee that has been suspended for a first time violation. Dep. of Daniel Hackler at 32-33.
(d) Mr. Sprong was not primarily responsible for setting up Machine 3005 and/or performing the order change.
Mr. Sung has presented evidence that he was assisted that night in the order change by lead operator Mike Royal and that Mr. Royal confirmed the machine was operating properly after the order change was performed. Mr. Sung has also presented evidence sufficient to create an inference that the subsequent problems Machine 3005 encountered were, at worst, jointly the responsibility of Mr. Sung and Mr. Sprong. Assuming all reasonable inferences in favor of the nonmoving party, we find that Mr. Sung has presented sufficient evidence to establish that he was not the only party responsible for problems on Machine 3005 and that the reporting supervisor and Knauf management failed to inquire into the conduct of the other individuals besides Mr. Sung who could have been responsible for the problems. Moreover, assuming arguendo that Mr. Sung was the only party responsible for the problems on Machine 3005, Knauf management has admitted that improperly setting up a machine would not normally merit a suspension. As a result, we find Mr. Sung has presented sufficient evidence to raise a material dispute as to the factual basis of this factor and as to the sufficiency of this factor to support a suspension. Koski, 307 F.3d at 677.
Mr. Sung asserts that a lead operator assisted him on the order change and confirmed the machine was running properly before he left. Dep. of Man Y. Sung at 60-61. Knauf supervisors confirmed that lead operators do assist on order changes and the lead operator has the responsibility to verify the machine is operating properly. Dep. of Mike Sullivan at 68-69; Dep. of Robert B. Knecht at 98-99. The adjustments made to a machine during an order change are entered into a computer and saved, so once entered correctly they should not need to be changed. Dep. of Robert Knecht at 95. Assuming all reasonable inferences in favor of the nonmoving party, we assume that either the problems with Machine 3005 arose after the order change was performed, or that the lead operator assisting Mr. Sung was negligent in overseeing the order change or negligent in confirming that it had been done properly.
The reporting supervisor failed to ask Mr. Sung about whether a lead operator had helped perform the order change, and Knauf management also failed to ask Mr. Sung about a lead operator assisting on the order change. Dep. of Mike Sullivan at 48; Dep. of Robert Knecht at 94-95.
The Knauf supervisor that fixed the problems with Machine 3005 found two main problems with the machine: (1) there was a chuck of glue on the glue spray tip; and (2) the glue spray was not set up properly. Mr. Sung contends that he was not the only party responsible for the two alleged problems with Machine 3005.
First, both Mr. Sung and Mr. Sprong appear to have been responsible for keeping the glue tip clean; however, at the time, only Mr. Sprong could observe the glue chunk that was obstructing the glue tip. Dep. of Mike Sullivan at 43-45. The reporting supervisor testified that, at the very least, Mr. Sprong should have shut down the machine and advised Mr. Sung of the glue tip problem, and, at most he should have cleaned the tip himself. However, the reporting supervisor failed to inquire if Mr. Sprong had attempted either of these remedial measures. Id.
Second, the person performing the order change is responsible for setting the position of the glue spray; however, he can be assisted in this task by a lead operator. Dep. of Mike Sullivan at 47-48. In this case, there is evidence that a lead operator did assist Mr. Sung in performing the order change, and the lead operator confirmed that Machine 3005 operated properly after the change was performed. Dep. of Man Y. Sung. at 60-61. Moreover, the changes made during an order change are entered into a computer and saved so that the machine remembers the settings. Dep. of Robert Knecht of 95.
Finally, it appears that Mr. Sprong was repeatedly absent from his station at Machine 3005 during the night of August 14, 2001, which may have contributed to the problems the machine experienced.
Namely, the reporting supervisor admitted he did not ask Mr. Sprong about his failure to fix the glue chunk, nor did he ask Mr. Sung about whether a lead operator had helped him perform the order change. Dep. of Mike Sullivan at 45, 48.
Dep. of Daniel Hackler at 34.
(e) Mr. Sprong did not leave the Plant without permission.
The Knauf managers responsible for the decision to discipline Mr. Sung stated that this was the primary factor supporting Mr. Sung's suspension. As a result, we will consider leaving the Plant without permission to be the most important difference between Mr. Sung and Mr. Sprong. Defendant correctly notes that it is undisputed that leaving the plant without permission is a terminable offense, and that Sung left the plant and drove home himself after he had been advised that his wife had been called to pick him up. However, Mr. Sung has presented sufficient evidence to challenge the factual basis of this claim, and Defendant has failed to produce any admissible evidence that Mr. Sung did, in fact, leave the Plant without permission.
Dep. of Robert Knecht at 36-37; Dep. of Daniel Hackler at 29-30.
Mr. Sung has presented sufficient evidence to allow a reasonable jury to find that Knauf supervisors had taken Mr. Sung's timecard and clocked Mr. Sung out, that no one advised Mr. Sung that he could not leave the plant until his wife arrived, and that Mr. Sung was told that he was not permitted to return to work that evening and that he was done for the night. Knauf has failed to present any evidence that Mr. Sung was given the alleged order from a supervisor thus forming the basis for his suspension. This is not a case of a worker getting up and leaving during the middle of his shift. We believe a reasonable person believing he was not on the clock and not allowed to return to work would reasonably believe his employer no longer required his presence, especially if he were not told otherwise, notwithstanding the fact that his wife had been called to pick him up. As a result, we find once again that Mr. Sung has presented sufficient evidence to raise a material dispute concerning the factual basis of this factor.Koski, 307 F.3d at 677.
See Dep. of Man Y. Sung at 82-83; Dep. of Doug Rogers at 32-33, 36; Dep. of Frank C. Thomas at 24-25; Dep. of Robert Knecht at 41; Dep. of Craig Laker at 19; Aff. of William Gamble at ¶ 18-21.
Knauf management refer to vague hearsay and second hand reports that Mr. Sung was told not to leave the Plant. See Dep. of Daniel Hackler at 27; Dep. of Robert Knecht at 41. However, Defendant has not produced testimony from anyone who directly told Mr. Sung not to leave the Plant or who heard someone tell Mr. Sung not to leave the plant. The closest Knauf comes is that Mr. Laker testified that Mr. Rogers said he told Mr. Sung not to leave company property. Dep. of Craig Laker at 18. Besides the obvious hearsay problem with this statement, Mr. Laker was not directly involved in the decision to suspend Mr. Sung. Mr. Rogers did testify that he told Mr. Sung to wait in the break room, Dep. of Doug Rogers at 36; however, this is a far cry from an admonishment not to leave the Plant.
The Court notes it has not been provided with a copy of the Knauf employee handbook provision regarding leaving the Plant without permission preventing us from accurately determining if Mr. Sung's conduct violated its provisions. Absent the handbook, we find that Mr. Sung has presented sufficient evidence to raise a material dispute over whether he in fact left the Plant contrary to a supervisor's order, Knauf's stated reason for the suspension.
Knauf has failed to provide any undisputed, material factors that separate Mr. Sung and Mr. Sprong's conduct sufficient to justify suspending Mr. Sung and not disciplining Mr. Sprong. As a result, we will consider Mr. Sprong and Mr. Sung to be similarly situated employees for the purpose of summary judgment.
(2) Knauf's legitimate, non-discriminatory reasons for suspending Mr. Sung.
Plaintiff's having presented a prima facie case, the burden therefore shifts to Defendant to produce evidence that Mr. Sung was suspended for a legitimate, nondiscriminatory reason.Reeves, 530 U.S. at 142 (quotation omitted). This burden is one of production, not persuasion; and "can involve no credibility assessment." Id. (quoting St. Mary's Honor Center, 509 U.S. at 509). Knauf can meet this burden by offering admissible evidence sufficient for the trier of fact to conclude that Mr. Sung was suspended/terminated for nondiscriminatory violations of Knauf policy. See Id. Knauf presents four reasons supporting its decision to suspend Mr. Sung: (a) Mr. Sung admitted to using offensive language towards a fellow employee; (b) Mr. Sung admitted violating the lockout/tagout policy; (c) Mr. Sung's job performance was unacceptable when performing an order change; (d) Mr. Sung left the Plant after being specifically told by a supervisor to wait for his wife to pick him up. See Personal Action Form, Exhibit #11.
Defendant points out that Mr. Sung has admitted to using offensive language and to violating the lockout/tagout policy. Defendant contends that the internal investigation that Knauf management conducted after the events of August 14, 2001 revealed Mr. Sung's substandard performance on the order change, and, the most significant violation that Knauf alleges, that Mr. Sung left the Plant without having specific authorization from his superiors, which is a terminable offense.
Mr. Sung admits that he said "I'll fucking guarantee I pay you back" to his coworker Mr. Sprong on August 14, 2004. Dep. of Man Y. Sung at 68.
Dep. of Man Y. Sung at 100.
Namely, that Machine 3005 was not set up properly after an order change and consequently was producing only scrap. Dep. of Robert Knecht at 37; Dep. of Mike Sullivan at 33.
Knauf's managers responsible for the decision to suspend Mr. Sung testified that their decision was based on the combination of those four factors, but the most important factor was that he left the Plant without permission. Dep. of Robert Knecht at 36-37; Dep. of Daniel Hackler at 29-31.
We find that these reasons presented by Knauf are legitimate, non-discriminatory reasons to justify the suspension of Mr. Sung.
(3) Mr. Sung's demonstration of pretext.
Because Knauf provided legitimate reasons for Mr. Sung's adverse employment action, the burden now shifts to Mr. Sung to show that those reasons are merely pretextual. Plaintiff argues that to demonstrate pretext, among other things, he can present evidence that would show that "(1) the proffered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the discharge; or (3) the proffered reasons were insufficient to motivate the discharge." Koski v. Standex Intern. Corp., 307 F.3d 672, 677 (7th Cir. 2002). Knauf stated four reasons supporting its decision to suspend Sung; Mr. Sung can pass the summary judgment hurdle only if he can raise a genuine issue of fact as to each one. Id.
The opportunity to argue pretext does not allow the plaintiff simply to second-guess the employer's decision. We do not sit as a "super personnel department" that reexamines an entity's business decisions. See Bahl v. Royal Indem. Co., 115 F.3d 1283, 1292 (7th Cir. 1997); Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1365 (7th Cir. 1988). The question we must answer at the pretext stage of analysis is not "whether the employer's reasons for a decision are `right but whether the employer's description of its reasons is honest.'" Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (quotingGustovich v. AT T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992)); see also Bahl, 115 F.3d at 1291 (stating "when we consider whether an employer's justification for dismissing its employee is pretextual, the inquiry is not whether the reason for the firing was a correct business judgment but whether the decision makers honestly acted on that reason").
We fully agree with Mr. Sung that a reasonable fact-finder could determine "Knauf's stated reasons for its decision are not worthy of belief." By Knauf's own admission the first three stated reasons are not serious enough to merit a suspension, and at worst should only warrant a verbal warning. The primary reason on which Knauf hangs its hat for suspending/terminating Mr. Sung is that he left the Plant contrary to a specific order from a supervisor; however, Knauf has produced no evidence to support this charge. To demonstrate pretext, Mr. Sung must demonstrate the reasons which independently caused his employer to take the action it did, in this case leaving the Plant without permission, are not true; moreover, if the company honestly believed those reasons, the plaintiff loses even if the reasons are foolish or trivial or baseless. Kariotis, 131 F.3d at 676. As noted previously, this court is not a super personnel department and we will not overturn an honestly made, though arguably mistaken, decision.See Kariotis, 131 F.3d at 677; Bahl, 115 F.3d at 1291. The Knauf investigation was the reason given for the suspension, and "`a reason honestly described but poorly founded is not a pretext as that term is used in the law of discrimination.'" Id. at 677 (quoting Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 559 (7th Cir. 1987)). However, Knauf has failed to produce any evidence from its investigation that would support its assertion that Mr. Sung left the Plant contrary to a specific order from a supervisor. All that Knauf presented to the Court to justify its decision to terminate Mr. Sung are the conclusory and self-serving statements from its managers that they believed Mr. Sung left the Plant without permission, which statements in fact are not supported in the record. Evidence of the falsity of the reasons put forward by the Defendant together with the elements of the prima facie case can be sufficient to allow a fact-finder to infer the ultimate fact of intentional discrimination, and, in this case, we find they are sufficient. Reeves, 530 U.S. at 147.
(a) Offensive Language. First, several Knauf supervisors have admitted hearing hourly employees use profanity in the plant but have never issued discipline to anyone for using it. Dep. of Doug Rogers at 31; Dep. of Mike Sullivan at 67-68; Dep. of Robert Knecht at 30; see also Aff. of Thomas Pogue at ¶ 15. Second, Knauf management is not aware of any other employee that has been suspended for using offensive language. Dep. of Daniel Hackler at 32.
(b) Violation of the Lockout/tagout Policy. A Knauf supervisor has conceded that he has allowed employees to violate the Lockout/tagout policy in the past. Dep. of Mike Sullivan at 23. Moreover, Knauf had not previously disciplined Mr. Sung for a violation of the lockout/tagout policy, and Knauf concedes that the proper penalty for a first offense violation of the Lockout/tagout policy is a verbal warning not a suspension. Dep. of Daniel Hackler at 32-33. In fact, a suspension for violating the Lockout/tagout policy would normally only be warranted on the third or fourth violation, and Knauf management is not aware of any other employee that has been suspended for a first time violation. Id.
(c) Unacceptable Performance of Order Change. Assuming arguendo Mr. Sung was the only party responsible for the problems on Machine 3005, Knauf management has admitted that improperly setting up a machine would not normally merit a suspension. Dep. of Daniel Hackler at 34.
The Supreme Court in Reeves explained that the "trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose," and that the factfinder can consider "a party's dishonesty about a material fact as `affirmative evidence of guilt.'" Id. (quoting Wright v. West, 505 U.S. 277, 296 (1992)) (citations omitted). Moreover, discrimination may well be the most likely alternative explanation for an adverse employment decision once the employer's justification has been eliminated since the employer is in the best position to put forth the actual reason for its decision. Id.
In sum, on the disparate treatment claim, we find that Mr. Sung's prima facie case of discrimination and Knauf's conduct in singling out Mr. Sung for discipline for reasons it cannot substantiate raises an inference of discrimination, especially since Knauf failed to seriously investigate similarly situated coworkers of other races/national origins. Accordingly, we must deny Defendant's motion for summary judgment on Mr. Sung's disparate treatment claim.
Knauf initiated a substantial investigation of Mr. Sung's activities based on the allegations of a Caucasian coworker with a reputation for complaining combined with questionable supporting evidence. Knauf management subjected Mr. Sung to extensive testing for alcohol and drugs, testing to which no other worker at Knauf has ever been subjected. Knauf management called Mr. Sung's wife to pick him up ostensibly because he drank two beers almost ten hours prior. After subjecting Mr. Sung to the above treatment, Knauf subsequently disciplined him for disobeying two policies its own supervisors say they do not regularly enforce, for disobeying an order none says they gave him, and for poor job performance that was only partially his fault (however, Knauf might not have known this because it failed to seriously investigate Mr. Sung's similar allegations regarding the conduct of his Caucasian coworker). Knauf offered to reinstate Mr. Sung only if he would agree to several conditions which are arguably draconian, and only reinstated Mr. Sung after the Union applied significant coercion. We also note that there are numerous instances described in the record when Knauf declined to discipline individuals for conduct that they denied committing or which eventually proved to be baseless. Even at this stage of the proceedings, we view Knauf's conduct towards Mr. Sung in striking contrast with Knauf's actions towards other workers.
III. Hostile Work Environment
Title VII prohibits employers from discriminating against employees on the basis of their gender or race. Its prohibitions include creating, condoning, or tolerating a hostile work environment. See Haugerud v. Amery Sch. Dist., 259 F.3d 678, 692 (7th Cir. 2001) (stating that the determination of whether an environment is "hostile" for the purposes of Title VII "turns on whether the alleged harassment occurred because of the sex [or the race] of the complainant"). A "hostile" work environment is one that is "permeated with `discriminatory intimidation, ridicule, and insult,' and that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Shanoff v. Ill. Dept. of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001) (internal citations omitted). Proof of a hostile environment is two-pronged. In order to prevail, a plaintiff must present evidence sufficient to raise a reasonable inference that he subjectively experienced the environment to be abusive; he must also show, objectively, that a reasonable person in his position would have perceived it to be hostile. Haugerud, 259 F.3d at 693. After demonstrating that the work environment was subjectively and objectively hostile, a plaintiff must demonstrate some basis for employer liability. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
Because Mr. Sung complained to the EEOC and filed this lawsuit, we assume that he subjectively experienced the environment to be abusive. We also find that Mr. Sung has presented sufficient evidence to demonstrate that his work environment was objectively hostile. However, we hold that Mr. Sung has failed to demonstrate a basis for employer liability for the harassment he allegedly suffered. We discuss the latter two issues below:
A. Objectively hostile work environment.
To determine whether the work environment is objectively hostile, we consider all of the circumstances, including "the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee's work performance." Haugerud, 259 F.3d at 693;Hamilton v. RDI/Caesars Riverboat Casino LLC, 179 F. Supp. 2d 929, 937 (S.D. Ind. 2002) (Barker, J.). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Haugerud, 259 F.3d at 693 (piecing together several quotations). Moreover, "`relatively isolated' instances of non-severe misconduct will not support a hostile environment claim." Saxton v. ATT Co., 10 F.3d 526, 532 (7th Cir. 1993), citing Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993).
Turning to Mr. Sung's allegations of racial/national origin harassment, he complains of the following incidents: (1) Mr. Hackler's pulling back his eyes and joking about looking like Buddha; (2) Mr. Fisher calling Mr. Sung "slant eyed mother fucker" in front of a Knauf supervisor; (3) persistent and varied derogatory terms and insults used by coworkers in the presence of Knauf management; (4) derogatory terms and insults used by past management employees at Knauf; (5) the pervasive use of the term "Fuji" by both hourly workers and management at Knauf to refer to Mr. Sung.
See supra note 19 and accompanying text.
See supra note 19 and accompanying text; see also Exhibit 34.
As a preliminary matter, we find that the use of the term "Fuji" cannot contribute to a finding of a hostile work environment. Mr. Sung points to no evidence that use of the term "Fuji" was severe or that it interfered with his work performance in any way. See Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (stating that "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment"). The term "Fuji" is not obviously derogatory based on race or national origin, and it appears that many if not all of the employees at the Plant considered "Fuji" to be Mr. Sung's nickname and not a derogatory term. Most importantly, Mr. Sung presented no evidence that he exhibited displeasure or offense with the term "Fuji" prior to his termination. Accordingly, we find that there is no basis in the record to support a finding that the term "Fuji" contributed to a hostile work environment. See Haugerud, 259 F.3d at 693.
The Knauf investigation revealed that almost everyone in the Plant referred to Mr. Sung as "Fuji," that Mr. Sung at times has referred to himself as "Fuji," and that many Knauf employees were unaware that Mr. Sung found the name to be offensive. Aff. of Robert Knecht at ¶ 16; see also Dep. of Daniel Hackler at 8-11; Aff. of Larry Smith at ¶ 4; Exhibits 112-14, 119-25.
The rest of Mr. Sung's hostile work environment claim rests upon a series of alleged derogatory terms that were directed at him. While no "magic number" of slurs indicates a hostile work environment, the Seventh Circuit has recognized that an unambiguously racial epithet falls on the "more severe" end of the spectrum. Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002). A sufficiently severe episode may occur as rarely as once and still violate Title VII. See Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999). It is undisputed that Mr. Sung was subjected to a series of objectively offensive and derogatory terms based on his race and national origin. Except for the use of the term, "Fuji," Knauf does not contest the severity of the derogatory terms used to describe Mr. Sung. Accordingly, we find that Mr. Sung has presented sufficient evidence to demonstrate that his work environment was objectively hostile.
See supra note 19 and accompanying text.
B. Employer Liability for Hostile Environment
In order to hold Knauf responsible, Mr. Sung must demonstrate a basis for employer liability. Analysis of employer liability for hostile environment harassment depends upon whether the harassment was committed by a supervisor or by a co-worker and whether or not the harassment culminated in a tangible employment action. Burlington Industries v. Ellerth, 524 U.S. 742 (1998);Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Where, as here, the alleged harassment was committed by coworkers, the employer is not subject to strict liability. Employers will be liable for harassment by non-supervisor coworkers "only when they have been negligent either in discovering or remedying the harassment." Parkins v. Civil Constructors of Ill., 163 F.3d 1027, 1032 (7th Cir. 1998) (quotation omitted). We will usually only consider an employer to be apprised of the harassment if "the employee makes a concerted effort to inform the employer that a problem exists," although we could find that an employer had constructive notice of the harassment when the harassment is sufficiently obvious. Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 506 (7th Cir. 2004) (quotations omitted). Essentially, Mr. Sung must show that Knauf was negligent in order to hold it liable for co-worker harassment. Adusumilli, 164 F.3d at 361.
In this case, Mr. Sung alleges only one incident of harassment by a current Knauf supervisor, when Mr. Hackler pulled his eyes back and joked about looking like Buddha. However, this incident did not directly involve Mr. Sung. The Seventh Circuit has stated that the "impact of such `second hand harassment' is obviously not as great as the impact of harassment directed at the plaintiff." McPhaul v. Board of Com'rs of Madison County, 226 F.3d 558, 567 (7th Cir. 2000). Since the only incident by a current supervisor was not personally directed at Mr. Sung and there is no evidence of a pattern of supervisor harassment, we find insufficient evidence to constitute supervisory harassment.
Mr. Sung also alleges that several former Knauf supervisors used racially derogatory terms to describe him. See supra note 18. Prior to his EEOC complaint, Mr. Sung raised no formal claims of harassment by the former Knauf supervisors, most of whom left Knauf's employ in 1999 and one of whom left in 1992. Plaintiff's long delay in raising allegations of harassment prevents Knauf from effectively investigating the allegations thereby prejudicing Knauf's ability to defend itself. Accordingly, we find these allegations are barred by the doctrine of laches. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-122 (2002).
We must express our displeasure with Defendant's self-described practice of "cherry-picking" quotations. For example, Defendant quotes Rhodes as stating, "The law `do[es] not consider an employer to be appraised of the [alleged] harassment unless the employee makes a concerted effort to inform the employer that a problem exists.'" Def.'s Reply Brief at 15. The Seventh Circuit actually said the following:
Generally, we do not consider an employer to be apprised of the harassment unless the employee makes a concerted effort to inform the employer that a problem exists. However, we could charge an employer with constructive notice where the harassment is sufficiently obvious. Rhodes, 359 F.3d at 506-07 (quotations omitted) (emphasis added).
Defendant conveniently omitted the limiting language at the beginning of its quoted sentence and ignored the language about constructive notice. While this is not Defendant's only instance of "cherry-picking," it is perhaps the most egregious.
Because Knauf cannot be liable for harassment unless it had notice of the harassment, Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1014 (7th Cir. 1997), the first step in the analysis of employer liability is to determine whether Knauf had designated a channel for reporting complaints of harassment. Parkins, 163 F.3d at 1035. Ultimately, the employee must present evidence that he "`gave the employer enough information to make a reasonable employer think there was some probability that [he] was being . . . harassed.'" Parkins, 163 F.3d at 1035, (quoting Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1017, 1019 (7th Cir. 1996)). Once the employer has notice that harassment has occurred, the law requires that it respond in a manner that is reasonably likely to prevent future harassment. See Parkins, 163 F.3d at 1036. Whether the employer's response is reasonable depends upon "the gravity of the harassment." Baskerville v. Culligan Intern. Co., 50 F.3d 428, 432 (7th Cir. 1995); see also Gordon v. Southern Bells, Inc., 67 F. Supp. 2d 966, 983-84 (S.D. Ind. 1999) (Barker, J.). Knauf maintains that it responded promptly and reasonably to all of Mr. Sung's complaints of offensive language and conduct and, therefore, that its liability should be discharged.
In this case, prior and subsequent to Mr. Sung's termination, Knauf maintained a strict anti-harassment policy, and harassment training was twice provided to salaried personnel. However, Mr. Sung apparently never advantaged himself of Knauf's anti-harassment policy or initiated a Union grievance to complain of harassment; moreover, it appears Mr. Sung did not personally complain in any manner, formal or informal, to Knauf management about harassment for several years prior to his termination. These two facts strongly suggest that Mr. Sung did not provide Knauf with sufficient information to know that he was being harassed. See Parkins, 163 F.3d at 1035.
We find that Mr. Sung's allegations of vague complaints he made to former supervisors at Knauf are also barred by the doctrine of laches. See National R.R. Passenger Corp., 536 U.S. at 121-122. The only written allegation that Mr. Sung raised of harassment concerned a comment by Mr. Shonk in 1995, and Mr. Sung only raised this allegation as a defense to the allegations that he used inappropriate language with Mr. Shonk.
We find that Mr. Sung's contention that Mr. Fisher called him a "slant eyed mother fucker" in the presence of a supervisor insufficient to support a finding of negligence on the part of Knauf. The comment arose in the middle of a heated argument and the Knauf supervisor immediately interceded and made the parties apologize and shake hands. There have been no further allegations that Mr. Fisher harassed Mr. Sung; accordingly, we find that the response of the Knauf supervisor was reasonable. See Baskerville, 50 F.3d at 432; see also Gordon, 67 F. Supp. 2d at 983-84. Similarly, when Mr. Pogue told the Plant general manager about Mr. Hackler pulling his eyes back and joking about looking like Buddha, Knauf management investigated the incident and there have been no further allegations of inappropriate gestures or comments by Mr. Hackler.
Mr. Sung's final attempt to attach liability to Knauf is by alleging that coworkers called him derogatory names in the presence of Knauf supervisors. However, we find these allegations are insufficient to establish constructive notice. Mr. Sung admits that he has no personal knowledge whether the Knauf supervisors he alleges were present actually heard the derogatory terms used by Mr. Sung's coworkers. Given that Mr. Sung failed to approach or complain to the supervisors present at the time about any of these alleged incidents, it is speculative at best that Knauf supervisors actually heard the alleged terms used. In fact, the only Knauf supervisor who admits having heard derogatory terms used to describe Mr. Sung does not remember hearing the terms used since he became a supervisor. Assuming, arguendo, that a supervisor did hear some of the comments directed at Mr. Sung, this would still not be sufficient to put Knauf on notice that Mr. Sung was experiencing "widespread and pervasive harassment." See Silk v. City of Chicago, 194 F.3d 788, 807 (7th Cir. 1999) (stating that "in the absence of evidence of pervasive harassment, the record will not support the conclusion that notice ought to be presumed"). We find, therefore, that Mr. Sung has failed to come forward with evidence that would reasonably permit the finder of fact to decide that Knauf had constructive notice of his harassment. See Waldridge, 24 F.3d at 920.
See supra note 19 and accompanying text.
Dep. of Mike Sullivan at 8-11.
Moreover, Knauf's legal duty would be discharged if it took "reasonable steps to discover and rectify acts of . . . harassment by its employees." Parkins, 163 F.3d at 1035. It is undisputed that when Knauf had actual notice of harassment of Mr. Sung, that is, when he formally complained of harassment by coworkers in his EEOC complaint, Knauf conducted an extensive investigation, disciplined several employees, provided harassment training to all employees, and has not received any complaints of harassment since taking these actions. We hold that these actions constituted reasonable steps which have prevented the harassment from recurring, thereby discharging any employer liability Knauf might have incurred.
In sum, on the hostile work environment claim, we find that Mr. Sung has failed to produce evidence that Knauf management failed to exercise reasonable care in addressing his alleged harassment, especially since Mr. Sung unreasonably failed to take advantage of the corrective opportunities provided by either Knauf or the Union. We also find that Mr. Sung has failed to present sufficient evidence to allow an inference that Knauf has constructive knowledge that he was suffering severe and pervasive harassment. Accordingly, Knauf cannot be held liable for the alleged harassment Mr. Sung says he suffered at the hands of his coworkers.
Conclusion
For the reasons set forth in detail above, we find that Mr. Sung has provided sufficient evidence such that a reasonable finder of fact could infer that his suspension/termination was motivated by an impermissible purpose, in this case race/national origin. Accordingly, we find that his claim of disparate treatment can proceed under the indirect method of proof andDENY Defendant's Motion for Summary Judgment. However, Mr. Sung has failed to produce sufficient evidence to show that Knauf had either actual or constructive knowledge of his alleged harassment from coworkers. Accordingly, Defendant's Motion for Summary Judgment is GRANTED with respect to Mr. Sung's claim of hostile work environment.
It is so ORDERED.