Clay v. American

Decision Date13 February 2013
Docket NumberNo. 3:11–cv–00047–JEG.,3:11–cv–00047–JEG.
Citation985 F.Supp.2d 1009
PartiesCraig CLAY, Plaintiff, v. LAFARGE NORTH AMERICA, Lafarge North American Davenport Plant, Michael Fisher, Jerry Miller, David Schnell, and Joseph Pennings, Defendants.
CourtU.S. District Court — Southern District of Iowa


Dorothy A. O'Brien, Dorothy A. O'Brien, Attorney & Counselor Law, PLC, Patricia E. Zamora, Zamora Taylor Woods & Frederick, Davenport, IA, for Plaintiff.

Martha L. Shaff, Betty Neuman & McMahon PLC, Davenport, IA, Robert P. Lombardi, Samuel Zurik, III, The Kullman Firm, New Orleans, LA, Defendants.



Now before the Court are Motions for Summary Judgment and a Motion to Strike brought by Lafarge North America (Lafarge), Lafarge North American Davenport Plant (the Davenport Plant), Michael Fisher (Fisher), Jerry Miller (Miller), David Schnell (Schnell), and Joseph Pennings (Pennings) (collectively, Defendants). Plaintiff Craig Clay (Clay) resists. The Court held a hearing on the motions on January 4, 2013. The matter is fully submitted and ready for disposition.


Lafarge is a Maryland corporation with its principal place of business in Virginia. Clay, a sixty-year-old African American and citizen of Iowa, worked for Lafarge at the Davenport Plant in Buffalo, Iowa, from 1991 to September of 2010. When Clay started with Lafarge, there were approximately fifteen minority employees at the Davenport Plant including approximately twelve African Americans. Clay started as a laborer doing shift work in the production department. Approximately six months into his employment, Clay was moved into a production assistant position and also worked in the control room. Clay contends that he enjoyed his job, worked hard, and was well-regarded by his coworkers and supervisors.

During the course of Clay's employment, however, Clay encountered, amongst other things, a number of racially offensive comments. In the 1990s, Joe Scott (Scott), Clay's supervisor at the time, told Clay to get his black ass moving. After Clay complained about the incident, his foreman responded by calling a meeting and instructing Scott to treat Clay with respect. Scott also once sent workers to instruct Clay to “go to the back end of the kiln” to work while two replacements performed Clay's job; once receiving confirmation that this was Scott's instruction, Clay complied. Clay reported the incident to Ron Thorsen, the production manager, who told Scott his conduct was not a good way to build team morale. During this same time period, while performing his work duties, Clay caught his finger in a door, but Scott refused to release Clay to seek medical attention. When his shift ended, Clay went to the hospital and learned he had broken his finger.

Approximately ten to eighteen years before Clay filed his complaint, Clay found a dead snake on his windshield, presumably left by a coworker. During this same time period, David Roe (Roe), a supervisor, referred to a piece of equipment as “niggerheaded.” On one occasion, Roe also instructed Clay to [g]et your black ass out there.” In addition to this offensive language, Roe once assigned Clay to work by himself on top of a silo on the coldest day of the year, a task normally undertaken by two workers.

In 2005, Clay moved into the shipping department, a day shift job. Clay continued to work in the shipping department until his employment ended in September of 2010. Sometime in either 2007 or 2009, Clay suffered an injury to his ankle. Schnell, the shipping manager, instructed Clay to wait a few days before seeking medical treatment. Both Schnell and Clay believed Clay's ankle to be sprained—a common injury at the plant—thus, to accommodate Clay's injury, Schnell offered Clay light work duty. Clay accepted the assignment but later learned he had broken a bone in his ankle.

While Schnell worked as shipping manager, he had a practice of delegating tasks to Clay that a few others—specifically Les Drumm (Drumm) and Bob Firrell (Firrell)—refused to perform. In his agency filings, Clay indicated that Schnell made a practice of assigning overlapping shifts for truck scale operators, but he always assigned tasks to Clay when he was not otherwise engaged. Clay alleges this work was often more difficult and dirtier than what was assigned to other workers. Clay complained that this practice was unfair; Schnell explained it was easier for him to have his more compliant workers—like Clay—perform these tasks rather than listen to others—like Drumm—complain.

In approximately 2009, two of Clay's coworkers, Dennis Terrill (Terrill) and Mike Price (Price), referred to Clay as “the other white meat” on two or three occasions. When Clay asked that they stop, both Terrill and Price complied.

In the summer of 2009, Terrill and Clay gained access to the tool crib while working overtime on the weekend, as they needed cable clamps to make a repair to keep the plant running. The tool crib was unattended, thus Terrill and Clay used the foreman's keys to gain entry. Clay alleges that Price reported to Scott that Clay and Terrill had broken into the crib, and Scott insinuated they had been stealing. Clay further alleges that, though he was not formally written up, Price made several complaints and caused trouble for him. Defendants counter that Clay was thanked for his initiative, and neither Clay nor Terrill were reprimanded.

On two consecutive nights in November of 2009, production manager Miller 2 assigned Clay to clean up a spill in a basement with a vacuum truck. While on both nights Clay had a coworker that worked the kill switch, he had no one assigned to relieve him of the physically demanding and dangerous job of running the suction hose, despite the usual assignment of no less than two or three men to perform such a task. On both nights, Clay worked the hose for approximately two hours with no relief, while the morning shift had four white employees assigned to the truck.

In March of 2010, after reporting to work and attending a safety meeting, Clay was ordered by Schnell to get to work. Approximately fifteen minutes later, Clay returned to the office to find Schnell and some of his fellow coworkers—all white—still sitting in the office. They left to work upon Clay's arrival.

In the spring of 2010, Clay referred Gary West (West), a personal friend, for employment at Lafarge. West, who had been laid off from John Deere Corporation, was a highly-skilled technician applying for a laborer position. West went through the requisite testing procedures and was one of nine persons granted an interview. There were five open positions, all of which ultimately were awarded to white males, four of whom had familial connections at Lafarge. When Lafarge did not select West for the position, Clay, on May 10, 2012, complained to Fisher regarding the hiring decision, alleging nepotism in Lafarge's hiring practices. Clay contends that he similarly complained of discrimination and had previously indicated that he thought it was time another minority was hired. While the decision did not impact Clay's employment status or bid on jobs, Clay felt personally insulted by Lafarge's rejection of West. Fisher investigated West's non-selection. At the conclusion of his investigation, Fisher informed Clay that he had found no fault with Lafarge's hiring practices.3

On May 19, 2010, Roger Hunt (Hunt), another Lafarge employee, approached Clay and said, “boy, I wanna talk to you.” In response, Clay walked away. The following day, Hunt apologized to Clay for the incident. Clay refused the apology. A few days later, Stanley Young (Young), another Lafarge employee, entered Clay's work area, and Clay asked Young if Young could identify the type of ducks swimming in the river in front of them. Young responded that they were called “nigger ducks” and that they were “good for nothing”; Clay walked away.

On June 2, 2010, Clay complained to Fisher about the comments made by Hunt and Young. Fisher investigated Clay's complaints that same day, at which time Young and Hunt generally admitted making the offending statements. Following the investigation, Fisher informed Clay that Young would be fired and Hunt would be disciplined with three days off, neither of which ultimately transpired.

While Lafarge had decided to terminate Young, prior to being notified of this determination, Young submitted paperwork for retirement. Young, who never returned to the plant nor made another improper comment to Clay, was placed on a leave of absence until his retirement became effective.

At the close of Lafarge's investigation, Lafarge determined Hunt had used inappropriate language but that the evidence did not support a finding of racial animus as Hunt had apologized to Clay and otherwise used the term “boy” when addressing white employees—a finding based upon evidence provided by the union on Hunt's behalf but contested by Clay. Thus, Hunt was issued a disciplinary warning putting him on notice that any further such conduct would result in termination. Thereafter, Hunt made no more inappropriate comments to Clay.

Shortly after reporting the comments made by Hunt and Young, Clay spoke to a white employee, Drumm, regarding his failing to say hello to Clay. While the parties dispute the tone and nature of the communication, they concede that following this conversation, Drumm complained to Fisher that he felt threatened by Clay. Fisher investigated Drumm's complaint, including interviewing Clay, at which time Clay denied any misconduct. Ultimately no discipline directly resulted from the complaint. Clay later learned that his entire department had been aware of Drumm's intention to file a complaint against him; this revelation was particularly hurtful to Clay.

In June of 2010, Eugene McWilliams retired, making Clay the only remaining African American employee at the Davenport Plant. At that time, the plant had approximately...

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2 cases
  • Clinton v. Garrett
    • United States
    • U.S. District Court — Southern District of Iowa
    • 30 Julio 2021
    ...Court may simply "consider and dispose of any unsupported facts when considering the summary judgment motion." Clay v. Lafarge N. Am., 985 F. Supp. 2d 1009, 1021 (S.D. Iowa 2013) (citing Dotson v. Delta Consol. Indus., Inc., 251 F.3d 780, 781 (8th Cir. 2001) ). Here, the Court did not rely ......
  • Nelle v. Who Television, LLC
    • United States
    • U.S. District Court — Southern District of Iowa
    • 18 Octubre 2018
    ...the altered price term came from the insurance company itself.8 Defendants argue that this Court should follow Clay v. Lafarge North America , 985 F.Supp.2d 1009 (S.D. Iowa 2013), and disregard these affidavits. In Clay , however, the Court rejected an affidavit by a plaintiff that contradi......

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