Eaton v. J.H. Findorff & Son, Inc.
| Decision Date | 02 April 2020 |
| Docket Number | 19-cv-282-bbc |
| Court | U.S. District Court — Western District of Wisconsin |
| Parties | DEBRA EATON, Plaintiff, v. J.H. FINDORFF & SON, INC., Defendant. |
Plaintiff Debra Eaton contends that she was not hired as a forklift operator in 2017 and 2018 by defendant J.H. Findorff & Son, Inc. because of her sex and previous complaint of employment discrimination against defendant, and that this failure to hire her violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Before the court is defendant's motion for summary judgment. Dkt. #10. Because I conclude that plaintiff has waived her sex discrimination claim and failed to present evidence from which a reasonable jury could conclude that defendant would have rehired her but for her protected conduct, I am granting defendant's motion for summary judgment and closing this case.
From the parties' proposed findings of facts and responses, I find the following facts to be material and undisputed unless otherwise noted.
Plaintiff Debra Eaton is a female resident of Milwaukee County, Wisconsin and a member of the International Union of Operating Engineers Local 139. Defendant J.H. Findorff & Son, Inc. is a union contractor and construction company based in Dane County, Wisconsin.
Defendant was the general contractor and the primary construction company directing the 2011 and 2012 construction of The Moderne, a 30-story high-rise in Milwaukee, Wisconsin. In March 2011, plaintiff was dispatched to The Moderne construction site to work as a telehandler (large forklift) operator for defendant. At the conclusion of plaintiff's first day as a telehandler operator, Mark Szymkowski, defendant's on-site project superintendent, told plaintiff that she was being laid off because she was not able to adequately perform the job functions of that position. Szymkowski believed that she was operating the forklift in an unsafe manner and that she did not have the training to operate it correctly. Mark Schneider, defendant's general superintendent, learned from Szymkowski that plaintiff was "slow and dangerous" on the forklift.
In March 2011, Local 139 filed a grievance on plaintiff's behalf, alleging that plaintiff had been discharged from the telehandler operator position without just cause after only one shift. Szymkowski told plaintiff that he and Schneider agreed that defendant would put her on the skip hoist (a construction-type elevator located on the outside of a building for transporting people and materials) after it was installed at The Moderne project.
In August 2011, defendant re-hired plaintiff to operate the skip hoist. Among other things, plaintiff was responsible for picking up trash that accumulated on the floors duringthe construction process. In a September 2011 on the job training report, Szymkowski rated plaintiff's job performance in operating the fork lift as "below average." Szymkoski gave plaintiff "average" ratings on operation of the skip hoist so that he would not have to lay her off and fall out of compliance with Milwaukee County quota requirements. (According to Szymkoski, the City of Milwaukee requires a certain percentage of underemployed Milwaukee County individuals to work on the crew, and plaintiff qualified as such an employee.)
Plaintiff was laid off between January 2 and 6, 2012. When the night shift on The Moderne project ended, defendant was left with an extra skip hoist operator. According to Szymkowski, defendant had each of the operators take a week off in order to keep everyone employed, and January 2 was the start of plaintiff's week. Two male employees continued working during plaintiff's week off.
Plaintiff filed a charge with the Equal Employment Opportunities Commission on January 27, 2012, alleging that defendant discriminated against her on the basis of sex when it laid her off on January 2 and replaced her with a male employee. She also filed her complaint with the Department of Workforce Development Equal Rights Division. Plaintiff never complained in writing to any employee of defendant about sex discrimination or retaliation. In its response to the complaint, defendant explained that plaintiff was part of a group of operators who were laid off on a rotating basis in order to minimize the adverseimpact on any one individual employee. The Equal Rights Division dismissed plaintiff's complaint after she failed to provide a written response to defendant's explanation.
Szymkowski documented performance issues in daily logs and layoff slips. (Although plaintiff raised a hearsay objection to the content of Szymkowski's daily logs that defendant produced, defendant has authenticated that document with Szymkowski's declaration.) He does not remember filling out any lay off slips for plaintiff, but his logs state that he had a conversation with plaintiff on January 23, 2012 about her performance in running the skip hoist too slowly and complaints that he received about her missing pickups. Szymkowski recalls that plaintiff was "very slow" in her operation of the skip hoist and even though defendant trained her with a number of operators, she did not progress to the point where she was capable of meeting some of the expectations defendants expects of journeyman operators as far as speed and ability to help others with the material. According to plaintiff, Szymkowski told her on January 23 that the other operator was faster and that she "creep[s] up to the floors and that [she] did not have to stop exactly level with the floors" and that she "ha[s] to keep the hoist moving." Symkowski also had concerns about plaintiff's picking up people because she "seemed to skip floors, people get frustrated, [and there were] a lot of complaints from people." Dkt. #17 at 40. He observed plaintiff's performance issues throughout the duration of her work at The Moderne site, but he believed that the issues were more pronounced during the latter half of the job as more floors were added.
After her conversation with Szymkowski on January 23, plaintiff began keeping handwritten notes. Her notes confirm that Szymkowski spoke with her about her slow speed in operating the skip hoist and complaints that had been made about her performance. Plaintiff understood that she was to assist in transporting trash as part of her job responsibilities but admitted to sometimes not emptying the trash when asked to do so by various subcontractors.
Around January 24, 2012, plaintiff had an altercation with an ironworker (not employed by defendant), who questioned why plaintiff was not stopping at every floor. After plaintiff told the ironworker to mind his own business, she believed that the ironworker was going to "get in her face," so she closed the door to the lift and continued to move to a different floor. When she returned to the ground floor, she told Szymkowski about the interaction and stated that she felt threatened and would not allow the ironworker to ride the skip hoist while she was operating it until he apologized to her.
Defendant's safety director and compliance officer, Sonny Femal, investigated the incident and learned that plaintiff had refused to allow the ironworker to ride in the skip hoist on at least two occasions. Even though no supervisor had told plaintiff that refusing workers on the skip hoist was allowed or acceptable, plaintiff believes that she was entitled to decide which workers on the job site had the right to ride on the skip hoist. On February 27, 2012, plaintiff met with Szymkowski, Schneider, Femal, union agents Greg West and Tim Goetz and the ironworker's supervisor. Szymkowski told plaintiff that it was her responsibility to "service all the trades, all the people" on the skip hoist. Plaintiff refused toaccept the ironworker's apology. During a private conversation with plaintiff on February 27, West (plaintiff's union representative) told plaintiff that he did not believe that the ironworker's conduct had been threatening. Plaintiff returned to the meeting and agreed to pick up the ironworker in the future, but she refused to accept his apology.
Dkt #17 at 49-50. Plaintiff continued working for defendant until August 30, 2012, after which defendant no longer needed an elevator operator.
In June 2017, plaintiff heard from Louis Rupert, a laborer for defendant, that defendant had an open position for an operating engineer. Soon thereafter, plaintiff spoke with Jeff Tramel, the superintendent on the site where Rupert worked, who told her to speak with Schneider. Even though Schneider told plaintiff over the telephone that there was no open position, plaintiff dropped off her résumé with the receptionist at defendant's office, telling the receptionist that she was applying for a position as an operating engineer.
Samantha Garni worked as an administrative assistant for defendant in 2017, and she helped people find jobs with defendant. She remembers plaintiff submitting an application for an operator position, but it was her understanding that there was no opening for this position even though defendant was performing work on projects in Milwaukee in 201...
To continue reading
Request your trial