Hnin v. Toa (Usa), LLC

• Decision Date: 05 May 2014
• Docket Number: No. 13–3658.,13–3658.
• Citation: 751 F.3d 499
• Parties: CUNG HNIN, Plaintiff–Appellant, v. TOA (USA), LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

751 F.3d 499

CUNG HNIN, Plaintiff–Appellant,

v.TOA (USA), LLC, Defendant–Appellee.

No. 13–3658.

United States Court of Appeals,Seventh Circuit.

Argued April 15, 2014.

Decided May 5, 2014.

Clinton Edward Blanck, Attorney, Robert S. Rifkin, Attorney, Maurer Rifkin & Hill, Carmel, IN, for Plaintiff–Appellant.

Brett Edward Buhl, Attorney, Kenneth Brian Siepman, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, IN, Tobias E. Schlueter, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, IL, for Defendant–Appellee.

Before RIPPLE and WILLIAMS, Circuit Judges, ST. EVE, District Judge.^*

ST. EVE., District Judge.

On January 25, 2012, Cung Hnin (“Hnin”) filed a four-count Complaint against his former employer TOA (USA), LLC (“TOA”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., pursuant to the district court's original jurisdiction, 28 U.S.C. § 1331, and two state law claims pursuant to the district court's supplemental jurisdiction, 28 U.S.C. § 1367(a). On July 22, 2013, TOA filed a motion for summary judgment under Federal Rule of Civil Procedure 56(a), and on October 31, 2013, the district court granted TOA's summary judgment motion in full. On appeal, Hnin challenges the district court's summary judgment ruling on his Title VII national origin discrimination claim and his Title VII retaliation claim. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I. FACTUAL BACKGROUND

Hnin is of Chin ethnicity from the country of Myanmar, formerly known as Burma. In February 2007, Hnin began working at TOA's Mooreseville, Indiana automotive metal stamping plant as a temporary associate employed by Staffmark. In August 2007, TOA hired Hnin as an evening shift full-time associate in the metal stamping department. Hnin performed handwork, such as, inspecting stamping parts for defects, and re-working defective parts by using air-powered hand grinders and buffers. In addition, Hnin worked as a press assistant on production presses where he would catch parts from the conveyor belt as they were discharged from the presses, conduct spot inspections of the parts, and place the parts on pallets.

Upon being hired, all TOA associates, including Hnin, received a handbook setting forth TOA's standards of conduct. Under Section 401, Rules and Standards, the handbook states that “[u]nder normal circumstances, TOA (USA) endorses a policy of progressive discipline in which it attempts to provide associates with notice of deficiencies and an opportunity to improve.” Rules and Standards Section 401 also states that some policy infractions are serious enough to warrant probation or dismissal without a prior warning, including violations of TOA's sexual harassment policy. TOA's sexual harassment policy states in relevant part:

TOA (USA) is committed to providing a work environment in which all individuals are treated with respect and dignity. Each individual has the right to work in a professional atmosphere that promotes equal opportunities and prohibits discriminatory practices, including sexual harassment. Accordingly, TOA (USA) expects that all relationships among persons will be business-like and free from bias, prejudice and harassment.

Unwelcome sexual conduct that interferes with an individual's job performance or creates an intimidating, hostile, or offensive environment is prohibited. All associates are prohibited from engaging in unwelcome sexual conduct or making unwelcome sexual overtures, whether verbal or physical.

Behavior that constitutes sexual harassment is unacceptable in the workplace and in any work-related setting outside the workplace, including business-related social events.

TOA (USA) encourages reporting of all perceived incidents of sexual harassment, regardless of the offender's identity or position and regardless of whether the offender works for TOA (USA), a client or a supplier. TOA (USA) encourages the prompt reporting of complaints or concerns so that rapid and constructive action can be taken.

All complaints of harassment will be investigated promptly. Associates are required to cooperate in any investigation, which may include individual interviews with the parties involved, and, where necessary, with individuals who may have observed an alleged harassment or may have relevant knowledge. The complaint and the investigation will be handled with sensitivity, and confidentiality will be maintained throughout the investigative process, to the extent practical and appropriate under the circumstances, in light of the important privacy interests of all concerned.

TOA (USA)'s policy equally prohibits harassment on the basis of race, color, religion, national origin, sexual orientation, age and/or disability. Any associate who has any concerns or questions about this policy should talk with Human Resources and refer to the Policies on Harassment and Sexual Harassment.

In November 2010, April Brock began working at TOA as a Staffmark temporary employee. She worked approximately 20–24 feet from Hnin's work station and had the same supervisor. On December 10, 2010, Brock reported to the onsite Staffmark representative that Hnin had been harassing her for some time. The Staffmark representative then brought the matter to Human Resources Manager Tonda Capps' attention. Thereafter, Capps and Tim Clayton, who served as TOA's Executive Director of Operations during the relevant time period, initiated an investigation into Brock's harassment complaint.

During her investigative interview, Brock told Capps and Clayton that Hnin had made inappropriate comments to her since she started working at TOA in November 2010, that she had tried to ignore his comments, and that she had asked him to stop on several occasions. The subject of the harassment involved a co-worker, Steve Miller. Specifically, Hnin made body gestures, such as putting his two index fingers together and making kissing noises, suggesting that Miller and Brock were together. On one occasion, Hnin sang the song “Oh, My Darling, Oh, My Darling” to Miller and Brock. At another time, when Brock came out of the bathroom and Miller walked around the corner, Hnin commented to them “that was a quick one.” At her interview, Brock also explained that Hnin often instructed their co-workers to slow down so they could work more overtime and that on one occasion, Hnin acted in an intimidating manner. She identified several co-workers who observed Hnin's misconduct, including Miller, Jose Herieda, and Ascuncion Fajardo.

After Clayton and Capps interviewed Brock, they interviewed Herieda, who stated that Hnin complained a lot, acted like he was the boss, had a bad temper, and tossed handwork parts around on two occasions. Capps and Clayton also interviewed Miller, who explained that Hnin made suggestive remarks about Brock being his girlfriend. Fajardo informed Capps and Clayton that Hnin often got angry, acted aggressively, and made him uncomfortable. Also, Fajardo stated that Hnin told another associate to slow down his work because people wanted to work overtime.

Thereafter, Clayton and Capps interviewed Hnin. Clayton reviewed Brock's complaint with Hnin and then advised him that TOA considered the matter to be serious. Further, Clayton explained the investigation process and which witnesses they had interviewed. In response, Hnin appeared to be aggravated and spoke in an elevated tone. He denied any wrongdoing and also asked that the witnesses be brought into the meeting so he could confront them. Clayton told Hnin that this request was not in line with TOA's procedures. Also, Clayton informed Hnin that his co-workers reported that he was aggressive and intimidating and that he had directed them to slow down so they could earn overtime compensation. Again, Hnin insisted that Clayton interview his co-workers in front of him. At that point, Clayton decided to terminate Hnin's employment with TOA.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo and construe all facts and reasonable inferences in the light most favorable to the non-moving party, in this matter, Hnin. See Wilson v. Cook County, 742 F.3d 775, 779 (7th Cir.2014); Hussey v. Milwaukee County, 740 F.3d 1139, 1142 (7th Cir.2014). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.2014) (quoting Fed.R.Civ.P. 56(a)). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party seeking summary judgment has the burden of establishing that no genuine dispute exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (citation omitted).

III. ANALYSIS

A. Title VII National Origin Claim

“Title VII prohibits employers from discriminating based on ‘race, color, religion, sex, or national origin.’ ” Morgan v. SVT, LLC, 724 F.3d 990, 995 (7th Cir.2013) (quoting 42 U.S.C. § 2000e–2(a)). On appeal, Hnin argues that he has established a triable case of national origin discrimination under the indirect method of proof. To move beyond summary judgment under the indirect method, a plaintiff must first make out a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which includes four elements: (1) plaintiff is a member of a protected class; (2) plaintiff...