Carter v. Meridian Automotive Systems, Inc., CIV.A.03-2208-CM.

• Decision Date: 07 October 2004
• Docket Number: No. CIV.A.03-2208-CM.,CIV.A.03-2208-CM.
• Citation: 368 F.Supp.2d 1130
• Parties: Frank CARTER, Jr., Plaintiff, v. MERIDIAN AUTOMOTIVE SYSTEMS, INC., Defendant.
• Court: U.S. District Court — District of Kansas

368 F.Supp.2d 1130

Frank CARTER, Jr., Plaintiff, v. MERIDIAN AUTOMOTIVE SYSTEMS, INC., Defendant.

No. CIV.A.03-2208-CM.

United States District Court, D. Kansas.

October 7, 2004.

COPYRIGHT MATERIAL OMITTED

Brian J. Klopfenstein, Attorney at Law, Kearney, MO, for Plaintiff.

Cynthia M. Peterson, Ronald J. Kramer, Seyfarth Shaw, Chicago, IL, Michael A. Williams, Rosalee M. McNamara, Lathrop & Gage, LC, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

MURGUIA, District Judge.

Plaintiff alleges that defendant, his former employer, discriminated and retaliated against him in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981; discriminated against him in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; and denied him rights under the Family and Medical Leave Act (FMLA), 29 U.S.C, § 2601 et seq. This matter is before the court on defendant's Motion for Summary Judgment (Doc. 45).

Also before the court is plaintiff's Motion to Substitute a Signed Copy of the Affidavit of Shawn Glover for the Unsigned Affidavit Submitted in Plaintiff's Suggestions in Opposition to the Motion for Summary Judgment (Doc. 52). Defendant filed no objection. Accordingly, the court grants plaintiff's motion.

I. Facts¹

Plaintiff, an African-American male, began his employment with defendant in May 2001 as a temporary employee. Defendant hired plaintiff as a regular employee in July 2001. Prior to plaintiff's employment, plaintiff attended at least one meeting, at which plaintiff signed a form acknowledging that he received a packet of policies and procedures, including defendant's rules and regulations, leave of absence policy, EEO worksheet and policy, and workplace harassment policy.

Plaintiff's employment began as a temporary production associate in the molding department on the third shift. Plaintiff claims that Kevin Ramsey, a non-supervisory processor in the molding department, told him that he had to learn how to cut top covers before he could be hired permanently. Plaintiff does not know whether or not the other white employees in molding were told that they had to learn to cut top covers before they could be hired permanently. According to plaintiff, Peggy Ivory, a white female, was the only employee in molding who did not know how to cut top covers before becoming a permanent employee. Plaintiff claims that Ivory told him that she did not have to learn to cut top covers before she was hired permanently. Ivory did not work on Ramsey's shift when she was hired permanently. All other employees in molding, including Brian Woodring, Rhonda Coleman and Leanne Moore, all of whom are white, knew how to cut top covers before they were hired permanently.

In the fall of 2001, Kevin Ramsey transferred to the second shift and Chad Vyrostek, a white male, became the lead man on the third shift. By this time, plaintiff, Ivory, and Sean Glover, a black male, were the only production associates on the third shift. According to plaintiff, in September 2001, Vyrostek asked plaintiff, then 48 years old, about his age. Plaintiff claims that Vyrostek also asked him if he could handle the work, and jokingly called him an old man Plaintiff contends that he did not find the joke incredibly amusing or funny. Plaintiff never complained to management about Vyrostek's comments.

Plaintiff claims that, at this time, he was stuck cutting top covers because Glover did not know how to cut top covers up to standard and Ivory did not know how to cut top covers at all. According to plaintiff, Glover typically worked on step assists, which was not as hard as top covers, and Ivory typically did air dams, which was not constant work. Plaintiff also asserts that Ivory was allowed to take longer breaks.

Plaintiff's Voluntary Transfer to Power Washing

In March 2002, plaintiff applied for and was granted a transfer to the power washing department. At that time, Floyd Flippin, a white male, and Theodore Brown, a black male, were the only other employees in the power washing department. Flippin was the department lead man. As a lead man, Flippin was not a supervisor; he was an hourly employee.

Plaintiff claims that Flippin denied him assistance on March 28, 2002 when plaintiff became light headed and needed to leave the paint booth Plaintiff never complained to anyone in management about this incident. Plaintiff also claims that he and Flippin got into a shouting match in July 2002, after Flippin accused plaintiff of leaving a washer on Plaintiff further claims that he was required to work shifts totaling six days per week and twelve hours per day for an extended period of time. However, plaintiff does not dispute that all employees in the power washing department were sometimes required to work ten to twelve hour days, six days a week. Plaintiff further claims that Flippin and Teddy Brown slept in their cars while on the clock and that they did not work. Plaintiff never complained to anyone in management that Flippin and Brown slept in their cars while on the clock.²

On August 11, 2002, plaintiff and Brown got into a verbal altercation Plaintiff claims Flippin witnessed the altercation but failed to intervene. On August 12, 2002, defendant suspended both plaintiff and Brown pending a full investigation of the incident. Upon conclusion of its investigation, defendant issued final written warnings to both plaintiff and Brown pursuant to its policy against workplace violence. Plaintiff alleges he was unfairly disciplined for the August 11, 2002 altercation. Plaintiff also believes he should not have been disciplined for the altercation and assumes Brown was not disciplined to the same extent he was disciplined; however, the record reflects otherwise. In any event, at no time did plaintiff ever complain to his supervisor, Stewart McCrary, or to defendant's operations manager, Tom Lewis, that Flippin treated him unfairly because of his race or age.

Plaintiff's Reassignment to the Carrier Department

After the altercation with Brown, plaintiff expressed to Lewis and Westbrook that he was no longer comfortable working in the paint department with Brown. In response, Lewis and Westbrook reassigned plaintiff to an open first shift position in the carrier repair department. Plaintiff did not object to the transfer to the carrier repair, which became effective on August 26, 2002. Because plaintiff transferred from the third shift in power washing to the first shift in carrier repair, he initially lost the $.50 night shift differential. A few weeks later, on September 15, 2002, plaintiff's pay rate was increased by $.50.

Plaintiff alleges that, after he transferred to the carrier repair department, he found an anonymous note in his locker which stated "You Are On Your Way Out Colored Boy." On October 2, 2002, plaintiff allegedly found another anonymous note in his car with the words "Lazy black ass nigga." Plaintiff claims he took the second anonymous note to Guy Henry, the only manager present at the time, who upon seeing the note responded "we don't accept that here." Plaintiff was asked if he had any idea who wrote the note, to which plaintiff responded "no." Henry then told plaintiff that he would turn the note over to Westbrook to investigate. The author of the note was never identified. About a week after the second note, defendant posted a memorandum to all employees throughout the plant and reiterated its anti-harassment policy to all employees during staff or "tool box" meetings. Plaintiff never expressed to defendant that he was dissatisfied with the company's resolution of the note incident.

Plaintiff's Transfer Back To The Molding Department

In October 2002, the employee who originally was awarded the first shift carrier repair position into which plaintiff had transferred exercised his right to come back to the position under defendant's job bid policy. Consequently, plaintiff was given the option of going back to the power washing department, moving to a second shift carrier repair position, or transferring back to molding. Plaintiff opted to transfer to an open first shift position in the molding department effective October 13, 2002.

In or around October 2002, plaintiff talked to Westbrook about family medical leave protection. Westbrook gave plaintiff FMLA paperwork and told plaintiff that he needed to turn in the required certification before he could be considered for FMLA leave. Shortly thereafter, in early November 2002, Westbrook left defendant's employment and was replaced by Dixie Bingham.

On December 3, 2002, around 9 or 9:30 a.m., plaintiff complained to his supervisor, Craig Casey, that he was suffering from chest pains and that he needed to leave. According to plaintiff, Casey asked him to work until 11:00 a.m. Plaintiff left the plant at 11:00 a.m. and met with his physician, who admitted plaintiff to the hospital for observation.

On December 29, 2002, plaintiff was given a point on his attendance record for failing to come to work after he volunteered to do clean up work while the plant was shut down. While plaintiff claims only he and two other African-American employees (Nakenia McGee and Pam Philips) were given points for their absences, plaintiff identified other African-American employees (Earl Dozier and Ralpholdo Acostas) who were not assessed points for being absent during the plant shutdown. In any event, after plaintiff and other employees complained that they did not know they would be charged with an unexcused absence if they did not show up on this particular day, defendant removed the point from plaintiff's record.

On January 25, 2003, plaintiff applied for FMLA leave with defendant. On February 4, 2003, after plaintiff provided defendant with the requisite medical certification regarding his diagnosed hypertensive heart disease, defendant granted plaintiff intermittent leave under the FMLA. Thereafter, all of plaintiff's...