Opinion
Cause No. 3:01CV-0275 AS
June 24, 2002
MEMORANDUM AND ORDER
This cause is before the Court on the Defendant's Motion for Summary Judgment filed April 1, 2002, and the Defendant's Motion to Strike Portions of Plaintiff's Affidavit filed on May 13, 2002. The Plaintiff alleges that Pepsi discriminated against him because of his race, and retaliated in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e)(5), as amended by the Civil Rights Act of 1991, and 42 U.S.C. § 1981, as amended. The parties have fully briefed the issues with appropriate responses and replies, and oral argument was held on May 29, 2002. The Court has considered the submissions of the parties, and now rules as follows.
I. JURISDICTION
Jurisdiction is premised on a federal question pursuant to 28 U.S.C. § 1331.
II. RELEVANT FACTS
The Plaintiff, Donnie Smith, first interviewed for a route driver's position for the Defendant, Pepsi-Cola General Bottlers of Indiana, Inc. (Pepsi), in July of 1998. Pl.'s Resp. at 2. The branch manager, Charlie Thomas, told him that he would need a Class A Commercial Driver's License to qualify for a driver's position with Pepsi. Id.
The Court notes that in his EEOC Affidavit, dated September 13, 2000, Smith stated that it was Mark Menacher who told him that he needed a CDL to get hired at the company.
After completing a driver's training program and obtaining a CDL Class A license in June of 1999, Smith reapplied for a driver's position with Pepsi in July of 1999. Id. He was interviewed by Mark Jaske and Charlie Thomas. Id. According to Smith, Thomas told him that the driver's position he was applying for had just been filled, but that Smith could work as an express merchandiser until another driver position became available. Smith Aff. at 1. Thomas allegedly indicated that he expected a route driver's position to open up in two to three weeks, and that Smith would be transferred as soon as it did. Id. Smith started working as an express merchandiser on July 12, 1999. Id.
Pepsi's hourly, non-office employees are represented by Teamsters Local 135, and their positions are governed by a collective bargaining agreement (CBA). Def.'s Mem. at 2; Def.'s Ex. G. Several provisions of the CBA are relevant to this dispute. First, the CBA states that all new employees and those hired after a break in continuity of service shall be regarded as probationary employees for the first sixty (60) days. (Article 17 — Seniority, Section 2). Article 17 also allows for temporary transfers to another hourly job. (Article 17, Section 5). It also includes a provision stating, "Probationary employees shall not be entitled to any benefits under this Agreement except as provided in Article 6 and 8." (Article 19 — Miscellaneous, Section 9). Articles 6 governs wages, salaries and commissions, Article 8 governs hours of work and overtime.
Article 18 governs bidding on routes. It requires three day posting of vacancies in Regular Route Salesman positions that the Company intends to fill, then assigning the vacancy to the senior, qualified employee who bids on the route. (Article 18, CBA at p. 15). To be eligible to bid, an employee must already be in the position of either a Route Salesman or a Relief driver. (Id.). If successful, an employee who bids on a route is not eligible to bid on another route for twelve (12) months. (Id.). After completing the bidding procedure, the CBA states that the filling of a vacant route "shall be a matter of Company discretion." (Id. at 16). It states, "The Company will review prior to filling a route or relief opening, the qualifications of hourly employees in other classifications who have submitted a job transfer request to the Branch Manager." (Id.).
According to Smith, a vacation relief driver position came open shortly after he was hired, and Smith expressed an interest in it to Thomas. The route was awarded to Jack Ryan Arnett, a white male with two years experience as a route salesman for 7-Up, and seventeen years of experience driving for other employers before that. Pl.'s Stmt at p. 8; Menacher Aff. at ¶ 14. When Smith asked Thomas why he didn't get the route, Thomas allegedly said that Smith could not do anything while he was in his probationary period, that Smith had agreed to take the express merchandiser position, and that he was stuck until he finished his probationary period. Smith Dep. at p. 62. Smith claims, however, that even though he was not eligible to bid on a route, under the CBA, he could have been transferred on a temporary basis to the open relief driver position and then awarded the route once he finished his probationary period. Id. at p. 61.
While Smith was still on probation, another vacation relief route position became available, which Smith also expressed an interest in obtaining, with the same result. Pl.'s Dep. at pp. 63-4. Smith alleges that this one relief driver's position was still unfilled when his probationary period was up and he was able to join the Union, but the position was awarded to Jay Spiess, a white male. Pl.'s Stmt of Facts at p. 10. Spiess was transferred from Pepsi's Munster, Indiana facility. Def.'s Stmt of Facts, p. 5. Spiess was a white male with approximately five years experience driving for Pepsi, and fourteen years of prior experience driving for Coca-Cola. Id. A regular route driver's position, the Winamac route, was also open at the time Smith's probationary period was up, but Smith was not transferred to it either, even though he had requested it also. Pl.'s Dep. at pp. 63-4. It remained unfilled for some time, and managers took turns servicing this route. Id. Smith claims that he was told by several different managers that he would not "be able to fit in that environment down there." Smith Dep. at p. 190. In addition, the managers allegedly told him that they didn't think the store managers would accept him too well down there, so a white male was given the Winamac route, and Smith was put in the sales trainee position. Id.
When Smith met with Thomas about transferring to a route, Thomas told Smith that he didn't think Smith was ready to run a route, that he had limited driving experience, and that Thomas was unsure about him. Pl.'s Dep. at p. 70. Thomas then said that he was going to give Smith a chance to try to learn what he needed to know by placing him in a route sales trainee position. Id. The position made less money, but Smith agreed to take it because he was told that it was the only way he could get into retail sales. Pl.'s Aff. at ¶ 12. He claims that the position did not exist when he was initially hired, and that he was never told he would have to hold such a position before he could get a driver's position. Id.
Pepsi has submitted documents which describe the positions of Express Merchandiser and Route Sales Trainee. Def.'s Ex. I and J. Both documents state that they were revised on December 16, 1999, but the date of their creation is unknown. Id. Plaintiff stated in his deposition that as a Route Sales Trainee, he was doing all the things on the Route Sales Trainee document, with a few additional tasks such as learning to use a handheld computer for something called "forecasting," which enables the company to know how much product to put on the truck, and occasionally driving a truck. Pl's Dep. at pp. 75-79. Smith worked in this position from approximately October of 1999 until the end of January, 2000.
In October, 1999, Pepsi conducted a training seminar on sexual and racial discrimination and harassment which Smith attended. Pl.'s Dep. at p. 44. Employees were told that if they had a problem, and thought they had been the victims of sexual or racial discrimination or harassment, to file a complaint with Human Resources, and it would be investigated. Id. Plaintiff decided at this time that Pepsi had discriminated against him on the basis of his race in denying his requests to transfer to the various route sales positions, and in hiring white males instead, so he filed a complaint. Pl.'s Stmt of Facts at ¶ 14; Def.'s Ex. K. In his complaint, Smith states that his charge is based on racial discrimination. Id. He supports his charge with the fact that there were approximately four route changes, that he was capable of filling the positions, and that the company hired two white males from outside his place of employment to fill the positions. Id. In addition, he states that he was told that in order to get a position as a route driver, he would have to be a sales trainee first, then a relief driver. Id. In his grievance, Smith asserted that he had more seniority at the Michigan City facility than either of the two white males that were awarded the positions. Def.'s Stmt of Facts at 5.
Smith's was informed in a letter from Tom Rogeski, Human Resources Manager at Pepsi, that his complaint would be treated as a Union grievance. Smith Aff. at ¶ 15. Smith did not think his discrimination claim could be handled as a union grievance, and wanted it to be handled by Pepsi's Human Resources Department. Pl.'s Dep. at p. 95-97. He called Jeff Stauffer, a Vice-President of Pepsi, who allegedly told Smith that he was creating a bad name for himself, and that Smith needed to shut his mouth, or he "would never get anywhere in this company." Id. at 95.
In his Affidavit, Smith says that it was Stauffer who contacted him, and that Stauffer told him that he was creating a bad name for himself, and that he should do what he is told to do and keep his mouth shut. The difference between the two versions is slight, but bears mentioning.
On January 3, 2000, a route driver's position was posted, and Smith bid on it. Pl.'s Dep. at 102. Smith was told he was not eligible to bid on it because, according to the CBA, he had to be relief driver first. Id. Smith filed a second grievance the same day, arguing that Route 305 could not be "bidded out" until his grievance dealing with seniority was resolved. Def.'s Ex. L. Smith claimed that Pepsi's earlier discrimination against him in denying him a relief driver's position was what made him ineligible to bid on Route 305, 50 his grievance on that issue needed to be resolved first. Smith Dep. at 10 3-4.
A meeting was held to discuss this grievance between Charlie Thomas, Tom Rojeski, Jim Hoehne, and Smith. Smith Dep. at p. 104. A number of issues were discussed, including whether Spiess had to start over accumulating seniority when he changed plants, and whether the earlier relief positions had been properly bid. Id. at 104-5. Thomas took the position that Spiess was entitled to the position, but apparently others disagreed, and it was awarded to Smith. Id. As a result, Smith moved directly from a route sales trainee position to a regular route driver's position without being a relief driver first. He was the only employee at the Michigan City facility to do this. Def.'s Stmt at ¶ 42.
Smith started running Route 305 around the end of January, 2000, but claims he was never given any training for the route. Smith Aff. at ¶ 21. Smith asserts that it was standard operating procedure for managers to ride with drivers for at least a week to train them for a new route. Id. He bases this claim on his personal observation of managers going with new route drivers, as well as his own experience receiving training on a new route. Pl.'s Reply to Mot. to Strike; Smith Dep. at p. 162. Smith claims that the district manager, Doug Menacher, told Smith that Menacher was too busy to train him. Id. As a result, Smith had to spend his time off and on weekends driving around in order to figure out the best way to run the route. Id. However, when Menacher asked Smith if Route 305 was too much for him to handle, Smith responded no, that he was going to be the best driver that Pepsi ever had. Smith Dep. at p. 130.
According to Smith, he met with Menacher every day, both before and after he drove the route, for hours, during which time, Menacher badgered him and belittled him, saying things like, "You're dumb. You shouldn't be on this route. You need to do this. I'm not pleased with this account", etc. Smith Dep. at p. 118. Also, Menacher gave Smith written instructions for each day which, according to Smith, were barely legible. Id. at 118-9; Def.'s Ex. N. When Smith complained to Menacher that he couldn't read the instructions, Menacher allegedly told him that he didn't have time for him, that he had other route drivers to be worried about, and that "You chose that route — to take that route, then you bear the pain. You learn that route. You do what you got to do. You better get out there and handle your business." Id. at p. 121. Menacher did, however, sometimes tell Smith verbally when his accounts were out of product, and when he had product on the shelf of his accounts that was out of code. Id. at 122.
Just a little over a month after Smith began servicing Route 305, Menacher gave him his first write-up. Def.'s Ex. 0. Menacher testified that he periodically visited all accounts on each of the routes to see if the driver had properly and completely serviced the account. Def.'s Stmt at p. 7. Specifically, Menacher was checking to see if the driver was maintaining sufficient stock, rotating product, removing out-dated product, and maintaining proper signage and displays. Id. He took note of deficiencies so he could discuss them with the drivers, then returned to the accounts to see if the driver had corrected the deficiencies. Id. In addition, several times a year, Menacher and Branch Manager Thomas conducted "market tours" during which they visited each account on a driver's route to talk to the store's managers and ensure that the manager was satisfied with the driver's performance. Id. at 8.
On March 2, 2000, Menacher visited several of Smith's accounts. He noted problems at seven different accounts, including being out of some products, low on others, products not properly rotated on shelves, Christmas promotional merchandise still in store, signage missing, out-of-date product, messy displays, prices missing, and some product not on display at all. Def.'s Stmt at 8-9; Menacher Aff. at ¶ 19. In addition, managers at three of Smith's accounts complained about Smith's performance. Id. at 9; Menacher Aff. at ¶¶ 20-21. One complained that she had tried to tell Smith what product she wanted, but he never brought the product she wanted, that he always "gave them attitude" and spoke to others with no respect. Id. At a second store, the manager said he was not happy because he always had to push Smith to get sale information on the displays, and because Smith always came during the store's busy time. Id. Another manager said that Smith had promised to bring a certain product for two weeks, but never brought it, causing problems with a customer who specifically wanted that product. Id. Based on these deficiencies, Menacher issued Smith a written reprimand on March 10, 2000 for "poor work performance, inefficiency of duties or neglect of duties." Def's Ex. 0.
In March, 2000, Smith reported to Menacher that one of his customers called him "Nigger". Pl.'s Resp. at p. 4. According to Smith, Menacher's response was to remark, "Is nigger a bad word? I don't think nigger is a bad word, but I'll look into it just to make you happy." Id. At oral argument, the Defendant claimed that Menacher did, in fact, look into it, the customer apologized, but asked Menacher to make sure Smith came on time in the future. Id.
Over the next two months, Smith received additional write-ups from Menacher, listing similar problems. Def.'s Ex.'s O, P, Q, R. and S. During this time, Menacher also disciplined other white route sales drivers for similar performance deficiencies. Menacher Aff. and Exhibits. In May, 2000, Charlie Thomas retired, and Menacher transferred to the Munster, Indiana facility. Def.'s Stmt of Facts at p. 13.
Smith discussed two incidents involving Charlie Thomas which he says support his claims. First, one time when Smith was helping another route driver, he slipped and fell on ice because his hand cart was broken. Smith Dep. at p. 168. When he asked Thomas for another cart, Thomas allegedly said that Smith was pathetic, that he didn't know "what the hell" he was doing, and that he needed to just quit. Id. at 169. Smith responded that Thomas wouldn't be treating him this way if he hadn't filed a charge, to which Thomas replied, "Well, you shouldn't have did [sic] it, anyways. You shouldn't have did this." Id. Smith then says that he told Thomas he was going to do his job, and if he got hurt, then they would have more than just the racial charges. Id. By the time Smith got to his truck, Thomas came out with a new hand cart. Id.
The second incident has to do with information given to Smith by co-employee Randy Parker. Smith Dep. at p. 170. He claims Parker told him that the managers had put out an order for people to stop talking to Smith because he had filed the racial discrimination charge. Id. Parker used to refer to Smith as "black man and robin", which he meant as a joke, but Thomas allegedly told Parker not to say that ever again because Smith is the enemy, and "he might use that against us". Id. Smith claims that at one point in time, all the managers, the secretaries, and many of the route salesman would not have anything to do with him because filing the complaint made him "the enemy". Id. at 170-1.
In May, 2000, when Charlie Thomas retired, Mark Jaske became the District Manager at the Michigan City facility, and Pete Dolson became Smith's direct supervisor. Smith Aff. at ¶ 24. Smith did not receive any write-ups during the period from May, 2000, until January, 2001. Id. at ¶ 25. Smith testified that when Dolson first took over, he revealed to Smith that Menacher wanted Smith fired. Id. According to Smith, Dolson told him that Menacher said he was leaving Smith "in good shape", meaning that Smith could only get one more write-up before he would get fired; and that Menacher expected Dolson to give Smith the final write-up and fire him. Id. Then, Dolson allegedly said to Smith that he wasn't going to do that, but instead would basically break Smith down and retrain him the Pepsi way. Id. According to Smith, Dolson began to do that, but backed down under pressure from Mark Jaske. Id.
The Defendant points out that, although Dolson did not issue formal written disciplines, he often verbally counseled Smith by calling him and telling him to take care of a problem at a particular account, explaining procedures to him, sometimes explaining to him better methods of organizing his accounts and displaying merchandise. Def.'s Stmt of Facts at p. 14. Smith claims that the counseling he received from Dolson was more like training, and usually in the form of suggestions. Smith Dep. at p. 172.
Around this time, Smith met with John Schutt, Pepsi's new director of human resources, over the write-ups. Smith Dep. at p. 178-80. Smith was concerned because he knew he was just one write-up from being terminated. Id. Smith also said that he thought he had seen it in writing somewhere that new route drivers were to get 60 or 90 days to prove that they can run the route before getting disciplined. Id. Smith testified that Schutt looked into his disciplinary file and agreed that some of the write-ups were not justified, and said that they were not going to be used against him. Id. at 180. Schutt allegedly told Smith that some of the claims were "bogus", and that others that had happened were still not worth disciplining him for. Id. at 18 1.
Smith claims that Schutt made him an offer, that Pepsi would pay Smith everything he would have made if he had been given the relief driver's route instead of Spiess, but Smith allegedly told Schutt that was not what he wanted, that his work environment had to change, and the people who were harassing him had to be held accountable. Id. at 183. Smith does not know of anything that came of his meeting with Schutt. Id. at 186. On September 14, 2000, Smith filed a charge of race discrimination with the Michigan City Human Rights Department, and the EEOC.
In November, 2000, Smith bid on another route sales position. Def.'s Stmt of Facts at 14. He was told he was ineligible to bid on the route because it had only been ten months since he successfully bid on his current route, Route 305. Id. Smith claimed that his bid on Route 305 had been voided because he could not bid on a route driver's position since he had not been a relief driver. Smith Dep. at p. 194. Therefore, according to Smith, he was eligible to bid on Route 311, because he had never successfully bid on another route. Id. Smith stated that he got in a big argument with Mark Jaske over his bidding rights on Route 311, and that Jaske called John Schutt with the result that Smith was awarded Route 311. Smith Dep. at p. 240-1.
Once Smith began servicing Route 311, Chris Kiszenia became his direct supervisor, with Mark Jaske over Kiszenia. Id. Smith testified that Kiszenia took him out and trained him to service the route, but that Jaske disagreed with the way Kiszenia was training Smith. Smith Dep. at p. 162. In December, 2000, Jaske accompanied Smith on Route 311, evidently as part of his training. Id. at 199 and 241. At the end of the route, Smith claims that he told Jaske he had received a right-to-sue letter from the EEOC, but that he still wanted to try and work things out without going to court. Id. at 241. Within two weeks, Smith started getting write-ups again, after not getting any for almost eight months. Id.
About this time, Smith also sent a letter to Pepsi management explaining his objections to the way he was being treated. Smith Dep. at 215-6. Smith said he was making one last effort to get the situation resolved so they would not have to go to court. Id. On January 23, 2001, John Schutt came down and held a meeting between Smith, Jaske, and Kiszenia to discuss Smith's claims of discrimination. Id. at 217 and 236. According to Smith, Schutt opened the meeting stating, "We are here to discuss Donny's problem with racial discrimination and racial harassment taking place in the workplace," to which Jaske responded, "That's what we're here for? I'm not here for that. I'm not . . . This is ludicrous. This is not worth it." Id. Apparently, nothing was resolved at this meeting, and on March 12, 2001, Smith filed a second complaint with the EEOC alleging discrimination and retaliation. Smith Aff. at ¶ 34; Compl. Ex. 1.
Smith claims that Kiszenia tried to protect him from Jaske, and that he only wrote Smith up when Jaske ordered him to. Smith Dep. at p. 203. He claims that Kiszenia and Pete Dolson would pull him aside and warn him that "the corporation's saying that you need to just back down for a minute." Smith Dep. at p. 203. Once, Dolson told him that when Jaske visited one of Smith's accounts, he went and "did two other white guys' accounts" just to make sure it's "correct". Smith also found out, although he does not say how, that Jaske went into one of his accounts, Al's Grocery Store, and told the manager that he would be having a new driver, and that the driver would be black. Smith Dep. at p. 234.
Between January 2, 2001, and his termination on August 3, 2001, Smith was written up numerous times, but Smith challenges the validity of the write-ups. Def.'s Ex.'s U, V, W, X, Y, Z, BB, CC, and EE. For example, on January 2, 2001, Kiszenia gave Smith a written reprimand for striking another vehicle with his truck, but according to Smith, a police officer investigated the accident, determined there was no damage, and did not issue him a ticket. Smith Dep. at 281. He acknowledges that the incident had to be reported, which he did, but claims he should not have been written up for it. On January 8, 2002, Smith was given a written counseling statement that he had out-of-date product on the shelf of his accounts, but Smith claims he had just taken over the route from someone who was dismissed for having large quantities of out-of-date product on the shelves, and he had not had time to remove it all. Smith Dep. at 194. Other write-ups were for not maintaining the signage, not rotating product, having out-of-date product, and out-o f-stock promotions.
Smith was also written up for having trash and debris in his truck, which the company views as an unsafe practice. Def.'s Stmt of Facts at p. 17. Jaske had regular meetings with the route drivers, during which he began to get after them about the condition of the trucks. He would look directly at Smith and say that he did not want to find any more chicken bones and watermelon seeds left in the trucks. Smith Aff. at ¶ 29; Smith Dep. at p. 208. Pepsi claims that chicken bones were actually found in the trucks, but there is no evidence that anyone ever found watermelon or watermelon seeds in the trucks. Def.'s Stmt of Facts at p. 17. Jaske had pictures taken of Smith's truck, and the truck of one other white route driver, to document their messy condition. Id. at 1 8. Smith claims that one night, he got a call at 7:00 from two black employees in the warehouse, who told him that they had instructions not to load his truck in the morning because it was so messy. Smith Dep. at p. 211. He claims that if he had not gone back in and cleaned his truck that night, he would have arrived at the plant the next morning and found his truck not loaded. Id.
On February 7, 2001, Jaske discovered that Smith was not always submitting corrections on accounts that were entitled to a credit, called "green sheets". Def.'s Stmt of Facts at p. 16. Jaske said he found them in Smith's truck under mounds of trash. Id. On February 13, 2001, Smith was written for: 1) "poor work performance, inefficiency, and neglect of duties" because Kiszenia found 19 cases of out-of-date product at one account; 2) disregard of safety practices because of the trash in his truck; and 3) for the green sheets found in his truck, which totaled almost $300. Id. at 17-8. On February 14, 2001, Smith was given a one-day disciplinary lay-off for hitting a fire hydrant. Id. The Property Damage Report on the incident, however, says that it was caused by the carelessness of another driver who came around a truck, causing Smith to swerve and hit the hydrant. Def.'s Ex. Z.
Smith was counseled on March 16, 2001, for displaying a poor attitude toward one of the secretaries. Def.'s Stmt of Facts at p. 18. On May 14, 2001, he received a written reprimand for poor work performance and neglect of duties due to poor product rotation. Id. On July 24, 2001, a customer called and complained that it was out of certain products. Id. Jaske told Smith to take care of it. Id. at 19. At the end of the day, the customer called again. Id. Kiszenia contacted Smith and told him to deliver the order on his way home, which he did. Id. The next day, July 25, 2001, another customer called and said they were completely out of a certain product. Id. Two hours later, the customer called again, and Kiszenia delivered the product. Id.
On July 26, Smith had a problem with bottle cap returns. Id. at 20. Smith claims the customer told him she had checked them, but the person doing it was new and made a mistake. Smith Dep. at p. 247. According to Smith, when Jaske contacted the manager, she told him the mistake was done on their part because the employee was new, and that it was not Smith's fault. Id. Also on July 26, Kiszenia visited one of Smith's accounts and found "an entire two-liter rack, a 24-pack section, and the double-door coolers were not filled." Def.'s Stmt of Facts at 20. Kiszenia paged Smith and told him to return to the account that day, but Smith did not get back until the next day. Id.
Also on July 26, 2001, Jaske visited one of Smith's accounts and observed there was no outside advertising material for the July and August sales promotion. Id. Jaske claims the store manager repeatedly asked Smith to put it up, but Smith failed to do so. Id. Smith claims that the manager asked him not to put it up. Smith Dep. at p. ___. The next morning, Jaske told Smith to deliver product and put up the signs at that account, but Smith forgot to do so. Def.'s Stmt at p. 21. He contacted Kiszenia that night, when he remembered, and offered to take care of it the next day, but Kiszenia told him "it's okay, just take care of it Monday." Smith Aff. at ¶ 39; Smith Dep. at p. 260. Jaske then took care of the account himself the next day, which was a Saturday. Def.'s Stmt at p. 21. Smith was written up for failing to put up the signs, and given a one-day disciplinary lay-off. Id. Then, a week later, he was discharged for failure to carry out a direct order, based on the same incident. Id.; Def.'s Ex. EE.
Pepsi has a disciplinary process that it uses for violations of its General Rules of Conduct. Def.'s Ex. H. Violations are divided into four groups. Id. It takes four Group I violations for an employee to be discharged, three Group II violations, two Group III violations, and only one Group IV violation. Id. at p. 6. Failure to carry out a direct order is a Group IV violation. Id. at p. 5. According to Smith, managers routinely give instructions regarding servicing customers on the driver's routes, and that failure to follow the instructions was normally considered poor work performance. Smith Aff. at ¶ 37. He claims that in his case, the instructions were classified as a "direct order" in order to justify his termination. Id. In the corrective action notice issued at the time of his discharge, the only reason Pepsi gave for Smith's discharge was failure to follow a direct order, for the incident on July 26, 2001. Def.'s Ex. EE.
Smith filed a Union grievance concerning his suspension and termination. Smith Dep. at p. 263. He claims that the Union decided that Smith's discharge was unwarranted, so the Union "filed legal papers," and at the time of his deposition it was going to arbitration. Id. at 264. Smith also claims that the unemployment office found in his favor. Id. According to Smith, Pepsi initially denied him unemployment, but the unemployment office found he was not fired "in just cause", therefore Pepsi had to pay Smith unemployment. Id. Finally, Smith claims that, at the time he was fired, he had become Pepsi's number one route driver in terms of job performance. Smith Dep. at p. 255.
III. STANDARD OF REVIEW
The standard a court employs in reviewing a motion for summary judgment is now well-established. Summary judgment is proper only if the record shows that there is no issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. King v. Preferred Technical Group, 166 F.3d 887, 890 (7th Cir. 1999) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56). Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate `specific facts showing that there is a genuine [material] issue for trial.'" Id. "Factual disputes are `material' only when they "might affect the outcome of the suit under the governing law.'" Oest v. Illinois Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party cannot rest on its pleadings, Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir. 1994); Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir. 1991), nor may that party rely upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992).
Summary judgment is not a disfavored procedural shortcut, but rather is intended to avoid a useless trial, and is appropriate where it is quite clear what the truth is. Babrocky v. Jewel Food Co. Retail Meatcutters, 773 F.2d 857, 861 (7th Cir. 1985). On a motion for summary judgment, the Court must not weigh conflicting evidence, but rather determine whether the non-moving party has presented sufficient evidence for a reasonable factfinder to decide in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only if no reasonable jury could find for Smith should the Defendants' Motion for Summary Judgment be granted. Hostetler v. Quality Dining, 218 F.3d 798, 806 (7th Cir. 2000) (citations omitted). Applying the above standard, this Court addresses the Defendant's motion.
IV. ANALYSIS
In his Second Amended Complaint, Smith claims that Pepsi discriminated against him because of his race, then retaliated against him for complaining about the discrimination. Smith claims that Pepsi violated his rights under Title VII and Indiana law by treating him differently because of his race when it failed to promote him to a route sales position, even though he was qualified, and hired white males to fill the positions. In addition, he claims that when he filed a complaint charging Pepsi with discrimination, his supervisors retaliated against him by refusing to adequately train him for the position, then writing him up for his mistakes. In addition, Smith alleges that because his complaint of discrimination came early in his employment with Pepsi, he was subjected to a hostile work environment because of his race and in retaliation for filing the complaints. Finally, Smith alleges that his termination constitutes the tort of wrongful discharge in the State of Indiana.
As a preliminary matter, however, the Defendant filed a Motion to Strike Portions of Plaintiff's Affidavit, which this Court must address first. Then, the Court will address Smith's claims of discrimination, harassment, and retaliation, in that order, and finally the state law claims.
A. The Motion to Strike
Under Federal Rule of Civil Procedure 56(e), affidavits submitted on summary judgment, whether in support or in opposition, must be based on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(e). The Defendant challenges a number of statements in the Plaintiff's Affidavit as conclusory allegations lacking the required personal knowledge.
The Court agrees that it is well established in this circuit that conclusory allegations and self-serving affidavits, if not supported by the record, will not defeat a motion for summary judgment. Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998); see also, Johnson v. Nordstrom, Inc., 260 F.3d 727 (7th Cir. 2001); Shank v. William R. Hague, Inc., 192 F.3d 675 (7th Cir. 1999); Weeks v. Samsung Heavy Industries, Ltd., 126 F.3d 926 (7th Cir. 1997); Darnell v. Target Stores, 16 F.3d 174 (7th Cir. 1994); Slowiak v. Land O'Lakes, Inc., 987 F.2d 1923, 1925 (7th Cir. 1993). This is particularly true where conclusory allegations in an affidavit contradict earlier deposition testimony by the same person. See, Darnell, 16 F.3d at 176; Patterson, 150 F.3d at 719. In Darnell, the Court noted that depositions inherently carry an increased level of reliability because they are adversarial in nature and provide the opportunity for direct and cross-examination.
This Plaintiff might be in trouble if all the record contained was his Affidavit. However, Defendants submitted Smith's entire deposition, and the Court finds within it ample support for the statements in Smith's Affidavit. Any contradictions, which the Court has noted, are minor. Most of Smith's statements are based on his personal observations and his experiences as a driver for Pepsi.
In addition, the Seventh Circuit has held that where the moving party's version of material facts is supported solely by self-serving assertions, self-serving assertions to the contrary by the nonmoving party may be sufficient to create a credibility dispute which is best resolved at trial. Szymanski v. Rite-way Lawn Maintenance Co. Inc., 231 F.3d 360, 365 (7th Cir. 2000). Some of the statements Pepsi wants stricken, such as Smith's statement that the Sales Trainee position did not exist when he was hired, are countered with equally self-serving assertions by a Pepsi Manager who states that the position did exist, the kind of dispute which is best resolved by a trier of fact. However, as this Court has done before, any statements in Smith's Affidavit that are wholly conclusory or without personal knowledge and without any support in the record will be disregarded. Therefore, the Defendant's Motion to Strike is DENIED.
B. Race Discrimination
Title VII prohibits employers from engaging in any actions that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). To defeat a motion for summary judgment, a plaintiff must provide either direct evidence of discrimination, or use the indirect, burden-shifting method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Comm. Affairs v. Burdine, 450 U.S. 248 (1981). See, Johnson v. Nordstrom, Inc., 260 f.3d 727 (7th Cir. 2001). The plaintiff's evidence must be sufficient to support an inference of discriminatory intent, regardless of which method he uses. In this case, Smith claims that he is using the direct method, and that he may do so using circumstantial evidence. Pl.'s Resp. at 7, citing Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1995). However, in his arguments, Smith shifts back and forth between cases using circumstantial evidence under the direct method, and cases using McDonnell Douglas.
In Troupe, the Seventh Circuit Court of Appeals said that under the direct method of proof a plaintiff must show either an acknowledgment of discriminatory intent by the defendant or circumstantial evidence that provides the basis for an inference of intentional discrimination. Gorence v. Eagle Food Centers, Inc., 242 F.3d 759 (7th Cir. 2000), quoting Troupe, 20 F.3d at 736. A plaintiff can meet this evidentiary burden in one of three ways: (1) by showing suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn; (2) by showing that other, similarly situated employees not in the protected group received systematically better treatment; or (3) by showing that the plaintiff was qualified for the job in question but passed over in favor of a person not having the forbidden characteristic and that the employer's stated reason for its decision is "unworthy of belief, a mere pretext for discrimination." Marshall v. American Hosp. Ass'n, 157 F.3d 525 (7th Cir. 1998), quoting Troupe, 20 F.3d at 736. The Seventh Circuit noted in Gorence that the third type of circumstantial evidence in a direct case is substantially the same as the evidence required under McDonnell Douglas. Gorence, 242 F.3d at 762, citing, Huff v. UARCO Inc., 122 F.3d 374 (7th Cir. 1997).
Smith begins his argument under the third method, claiming that he was qualified for a driver's position, but was continuously passed over in favor of white employees, and that Pepsi's stated reason for the difference in treatment was a mere pretext for discrimination. He claims he was qualified because he had a CDL license, and was told when he was hired that he would be transferred to the first available driver's position. The Defendant counters that he was not qualified because under the CBA, he could not bid on a route until after he completed his sixty day probation period. Smith points out, however, that Thomas allegedly told Smith he would transfer him to a route position as soon as one opened up; that Smith could be transferred into the position on a temporary basis, and assigned to the route once his probationary period was up. Therefore, he claims that he could have been assigned to one of the relief driver's positions that opened up while he was on probation, even though he was not eligible to bid on it. In addition, Smith claims that at least one of the positions for a relief driver was still open when his probationary period was up and he could bid on it, but that a white driver was brought in to fill the position instead.
As evidence that the real reason behind Pepsi's decision not to award him at least one of the routes was discrimination because of his race, Smith claims that he was told by more than one manager that store managers in the area of the route in question might have a problem with him because of his race, and that he might not be very well accepted in that area. This claim is further supported by Smith's allegation that when he was awarded Route 311, Jaske went to one of the accounts to warn him that the new driver would be black. Smith also testified that when the Union looked into his claims of discrimination when Smith was passed over for the relief driver's routes, the Union determined that there may have been problems with Pepsi's hiring of the outside driver over Smith, both in terms of the bidding process, and under the CBA's seniority requirements, leading to Smith being awarded Route 305 in January of 2000.
Pepsi, however, claims that all drivers were required to be express merchandisers first, then sales trainees before they could have any kind of driving position, and that Smith was not awarded a route because he had to work his way through this process. The evidence to support this claim is weak at best, consisting only of statements from the very manager that allegedly told others he had Smith set up to fire, and by job description statements dated after Smith filed his first internal complaint. Whether this was a legitimate requirement that Pepsi actually put other employees through, or a new requirement made up to avoid having to assign Smith to a route is the kind of factual determination best left to the trier of fact.
For these reasons, the Court concludes that a reasonable trier of fact could find in Smith's favor, and conclude that Smith was qualified for a relief driver position but was passed over in favor of white employees, and that the reason given by Pepsi was not the real reason, but was rather a pretext for discrimination. The parties also argue the other two types of circumstantial evidence that can support an inference of discrimination under the direct method, but only one is required for the plaintiff to withstand summary judgment. See, Bell v. EPA, 232 F.3d 546, 554 (7th Cir. 2000) (holding that plaintiffs survived summary judgment by establishing the second type of circumstantial evidence). Therefore, the Defendant's Motion for Summary Judgment is DENIED on the issue of race discrimination, Smith is entitled to take his evidence to the jury.
C. Retaliation
After Smith filed an internal complaint of race discrimination and was awarded Route 305, he claims that Pepsi managers retaliated against him by failing to train him adequately for the route, then writing him up to create a record that would justify his discharge. Title VII forbids an employer to "discriminate against any individual . . . because he has made a charge . . . or participated in any manner in an investigation, proceeding, or hearing under" Title VII. 42 U.S.C. § 2000e-3 (a). Judge Posner writing for the Seventh Circuit recently clarified the two routes a plaintiff can pursue to establish a claim of retaliation. Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 643-4 (7th Cir. 2002). As with a claim of discrimination, Smith may demonstrate retaliation either by using direct evidence, or indirectly by using circumstantial evidence. Id.
Direct evidence is evidence that establishes without resort to inferences from circumstantial evidence (1) that the plaintiff engaged in protected activity, and (2) that as a result of that activity he suffered the adverse employment action of which he complains. Stone, 281 F.3d at 644. If he can establish a causal connection, that but for his participation in the protected activity, he would not have suffered the adverse employment action, and his evidence is uncontradicted, he is entitled to summary judgment. Id. If it is contradicted, the case must be tried unless the defendant presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had had no retaliatory motive; in that event, the defendant is entitled to summary judgment, because he has shown that the plaintiff was not harmed by retaliation. Id.
Where the plaintiff has only indirect, circumstantial evidence, then he may use an adaption of McDonnell Douglas to the retaliation context, which requires the plaintiff to show that "after filing the charge only he, and not any similarly situated employee who did not file a charge, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Otherwise, there must be a trial." Id.
Smith has two distinct claims of retaliation: first that Thomas and Menacher retaliated against him for filing an internal complaint of race discrimination which resulted in Smith being awarded Route 305; and second, that Jaske retaliated against him when he found out that Smith had gotten a right-to-sue letter from the EEOC. Taking the claims one at a time, Smith claims that Menacher retaliated against him by refusing to train him on Route 305, then writing him up for not servicing it correctly.
Pepsi claims that Smith had no personal knowledge as to how Pepsi trained its new route sales drivers. However, by the time he was fired, Smith had worked for Pepsi for two years and had the opportunity to observe managers train other route drivers. In addition, he had personal experience when he was trained for Route 311. Smith claims that Menacher would not even ride with him one time to show him the best way to drive the route. In addition, Smith claims that Menacher badgered him and belittled him on a daily basis, making comments to Smith that he shouldn't be on the route, and that since Smith chose that route, he would have to bear the pain, and that Smith had better learn that route. Smith alleges that this lack of training set him up for write-ups and ultimately termination, but the change in management in essence gave him a reprieve.
As additional evidence of retaliation, Smith alleges that when he filed his internal grievance, he spoke with Jeff Stauffer, a Vice-President of Pepsi, who allegedly told Smith that he was creating a bad name for himself and needed to keep his mouth shut, or he would never get anywhere with Pepsi. Also, Smith alleges that after the management change, his new supervisor, Dolson, told him that Menacher said he had left Smith "in good shape" meaning that if he got just one more write-up, he could be fired, and that Menacher expected Dolson, to give Smith the final write-up and get rid of him. However, Dolson allegedly told Smith that he wanted to train him to do the job instead.
This testimony involves several layers of hearsay, and the Court would prefer to hear from Dolson himself, but it would probably come in as a statement from a party opponent. This testimony is supported by the fact that Smith did not get any write-ups during the time that Dolson was Smith's direct supervisor. Smith also claims that when John Schutt from human resources looked into his disciplinary file, Schutt told him that some of the write-ups were "bogus", and others did not merit the discipline he received.
As other evidence that he was being retaliated against for filing a charge with the EEOC, Smith alleges that co-employee Randy Parker told him that Charlie Thomas told Parker not to call Smith "black man and robin" any more because Smith is the "enemy", and "he might use that against us." At one point, according to Smith, almost everyone in the plant shunned him because he had filed the complaint.
Smith claims that a second period of retaliation started after he told Mark Jaske that he had received a right-to-sue letter from the EEOC. He claims that he told Jaske that he did not want to sue, he wanted to resolve the problem internally, but it was never resolved. By this time, Smith had been awarded Route 311, and was no longer under Dolson's supervision. Although Chris Kiszenia was technically his supervisor, Smith claims that Jaske called the shots. Smith claims that Jaske made Kiszenia write Smith up over minor things, many of them disputed, in order to build a record that would enable him to fire Smith. Finally, in July, Smith claims that Jaske characterized routine servicing instructions as a direct order in order to fire Smith when he forgot to follow through with them before going home. When he called Kiszenia, Kiszenia allegedly told him he could wait until Monday to take care of it, but a week later, Smith was fired for failure to carry out a direct order.
As additional evidence that his firing was retaliatory, and that Pepsi's reason for firing him was pretextual, Smith states that the Union looked into his termination and determined that the discharge was unwarranted, and that the unemployment office came to the same conclusion. Finally, he notes that at the time he was fired, he had become Pepsi's number one route driver in terms of job performance.
The Court will first analyze Smith's evidence under the new rule for the direct method. "The question of how much evidence the plaintiff must present to establish a triable issue that the adverse employment action of which he complains was retaliatory is not susceptible of a general answer." Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d at 644. Mere temporal proximity between the filing of the charge and the action alleged to have been taken in retaliation is rarely enough in and of itself to create a triable issue (Id.) but in this case, Smith has presented more. Although this evidence could be better supported, the Court concludes that it is sufficient to support an inference that but for Smith's filing charges of discrimination, he would not have been terminated from Pepsi. The Defendant makes much of Smith's many write-ups, but he was only terminated for one incident. If Smith can substantiate his claims that both the Union and the unemployment office determined that his discharge was unwarranted, and that at the time he was Pepsi's top route sales driver, Smith will have pretty strong evidence that his termination was retaliatory.
The facts in this case, taken in the light most favorable to Smith, as required on summary judgment, are similar to the situation in Pryor v. Seyfarth, Shaw, Fairweather Geraldson, 212 F.3d 976, (7th Cir. 2000), where then Chief Judge Posner, writing for the Court, stated that a reasonable jury could believe that after and because the Plaintiff filed a claim, "the firm was `laying' for her, biding its time to create a space between the date of the claim and the date of the discharge, and in the interval gathering pretextual evidence of misconduct to provide a figleaf for its retaliatory action." As in Pryor, this Court is not holding that this is the correct interpretation of events, only that the Plaintiff has presented sufficient evidence that a jury could believe this is what happened. Therefore, the Defendants' Motion for Summary Judgment is DENIED on the issue of retaliation.
D. Hostile Work Environment
Smith has also claimed that the Defendants discriminated against him by subjecting him to harassment and a hostile work environment because of his race, also a violation of Title VII. For harassment to be actionable, it must be "so objectively offensive as to alter the `conditions' of the victim's employment and create an abusive working environment." Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7thCir. 2000), quoting Mentor Savings Bank, 477 U.S. at 67. In this case, Smith complains that the shunning, the chicken bones and watermelon comments, the continuous write-ups and verbal abuse from managers, and the incident where Menacher allegedly said that he didn't know that "nigger" was a bad word created an actionable hostile work environment because of his race.
It is clear that Smith felt the environment at Pepsi was hostile, and that the harassment was because of his race, but much of the conduct he complains of is not racial in nature. The conduct that is racial in nature does not seem so severe and pervasive as to change the conditions of his employment. Most of the conduct that Smith found harassing appears to be more retaliatory in nature, related to his filing complaints and receiving routes over the objections of certain managers at the Michigan City facility. He has not pointed to the kind of conduct that led to a finding of a hostile work environment in the recent Seventh Circuit case cited by the Plaintiff, Cerros v. Steel Technologies, 288 F.3d 1040 (7th Cir. 2002).
In Cerros, the district court found that the plaintiff was the subject of highly offensive racial epithets by employees and supervisors, made to his face, that racial and ethnic epithets and slogans were painted on the bathroom walls, some referring to the plaintiff by name, and that on one occasion, his tires were slashed while parked in the company parking lot. Id. at 1045. The Seventh Circuit remanded the case for a determination on the pervasiveness of the offensive taunts and graffiti, stating that if the conduct was severe enough, and pervasive enough, it is exactly the sort of conduct Title VII prohibits. Id.
In this case, because the conduct that was clearly racial in nature is neither severe nor pervasive, Smith has failed to establish that he was subjected to a racially hostile work environment. Because the Court has determined that Smith was not subjected to an actionable hostile work environment, it is unnecessary to consider whether there is a basis for employer liability. Defendant's Motion for Summary Judgment is GRANTED on the issue of hostile environment discrimination.
F. State Law Wrongful Discharge
Indiana only recognizes two types of employment: employment for a definite or ascertainable term, and employment at will. Groce v. Eli Lilly Co., 193 F.3d 496, 502 (7th Cir. 1999). When an employee's employment is "at will", then there is a presumption that the employment is terminable at any time, with or without cause, by either party. Id. Indiana courts have, however, as pointed out by the Plaintiff, carved out two exceptions to the at-will doctrine, where the employee is discharged for exercising a statutory right, or for refusing to participate in an unlawful act for which they would be personally liable. Id., citing Frampton v. Central Indiana Gas Co., 297 N.E.2d 425, 427-8 (Ind. 1973), and McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 392-3 (Ind. 1988).
Plaintiff argues that the first exception applies in this case, that he was exercising a statutory right, complaining about racial discrimination in the workplace, and that Indiana courts would recognize a cause of action. However, the only statutory right that Indiana courts have recognized as giving rise to a cause of action is filing a worker's compensation claim. Groce, 193 F.3d at 503. The Supreme Court of Indiana has expressed reluctance to broaden the exceptions to the doctrine, and it is inappropriate for this Court to do so. Id. (citations omitted). Therefore, this Court declines Plaintiff's invitation to broaden Indiana's wrongful discharge doctrine to include retaliatory discharge for filing a charge of racial discrimination with the EEOC. Defendant's Motion for Summary Judgment on Plaintiffs State Law Wrongful Discharge Claim, Count IV of the Second Amended Complaint, is GRANTED.
V. CONCLUSION
Although the presentation made by Plaintiff's counsel is less than ideal, nevertheless, there is enough in the record to keep the courthouse door open on his claims that Pepsi discriminated against because of his race, and retaliated against him for complaining about that discrimination. Pepsi's Motion for Summary Judgment is GRANTED only as to Smith's claim of a racially motivated hostile work environment, and his state law wrongful discharge claim. Pepsi's Motion to Strike is DENIED; and its Motion for Summary Judgment is DENIED as to Smith's claims of race discrimination and retaliation.
IT IS SO ORDERED.