Harper v. C.R. England, Inc.
| Decision Date | 08 June 2012 |
| Docket Number | No. 11–2975.,11–2975. |
| Citation | 115 Fair Empl.Prac.Cas. (BNA) 290,687 F.3d 297 |
| Parties | Kenneth HARPER, Plaintiff–Appellant, v. C.R. ENGLAND, INCORPORATED, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Jeffrey S. Wrage (argued), Attorney, Blachly, Tabor, Bozik & Hartman, Valparaiso, IN, for Plaintiff–Appellant.
Daniel W. Glavin and Randy Nye, O'Neill McFadden & Willett, LLP, Dyer, IN, for Defendant–Appellee.
Before RIPPLE and ROVNER, Circuit Judges, and COLEMAN, District Judge.*
Kenneth Harper brought this action in Indiana state court against his former employer, C.R. England, Inc. (“C.R. England”), alleging racial discrimination, harassment and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He also alleged that C.R. England had retaliated against him for having filed a workers' compensation claim, in violation of Indiana law. C.R. England removed the case to the district court.1 The magistrate judge, sitting by consent of the parties,2 granted summary judgment in favor of C.R. England, and Mr. Harper timely appealed.3 He now asks that we review the district court's determination only with respect to his retaliation claim. After examining the record, studying the appellate briefs and hearing the argument of counsel, we conclude that the district court correctly decided that there is no genuine issue of triable fact on the retaliation claim and that the defendant therefore is entitled to judgment as a matter of law. Accordingly, we affirm the judgment of the district court.
From July 2005 until his termination on August 3, 2007, Mr. Harper, an African–American, was employed as a driving instructor for C.R. England, a trucking corporation that operated a truck-driving school in Indiana. Mr. Harper was one of approximately twelve road instructors at the driving school. In that capacity, he did not provide any classroom instruction, but was assigned a group of students for road instruction in the operation of the trucks. He was expected to be present and available to his students during the weeks that they were assigned to him.
The road instructors' immediate supervisor held the title of “lead instructor” and reported to the director of the school, Chris Kelsey. In January 2007, the lead instructor left the company, and Director Kelsey appointed Mr. Harper, who had volunteered for the position, as acting lead instructor until the company was able to hire someone to fill the position on a permanent basis. In early 2007, Mr. Harper, along with about twenty other individuals, interviewed for the position of lead instructor, but he was not hired for the permanent position. The company instead selected Eric Metzler, also an African–American, because of his prior management experience in the trucking industry.4
As part of the daily routine, Lead Instructor Metzler conducted morning meetings with his team of road instructors inside their office trailer. 5 Mr. Harper alleges that, on March 9, 2007, while the instructors were waiting for their meeting to start, another African–American instructor, Darnell Humphrey, called him a “mark ass n - - - - r.” 6 When Mr. Harper asked Humphrey what he had just said, Humphrey again called Mr. Harper a “n - - - - r.” 7 Mr. Harper admitted, in his deposition testimony, that Metzler was not in the room when Humphrey used the racial slur, but maintains that Metzler, who was in his adjacent office with the door open, heard Humphrey's comment. According to Mr. Harper, Metzler came in the room shortly after Humphrey called Mr. Harper a “n - - - - r” for the second time and said “quit it” or “cut it out.” 8 Metzler consistently has maintained that he was not in the room at the time of the alleged incident and that he did not hear Humphrey use any racial slur.
The day after the incident with Humphrey, a fellow C.R. England employee who had heard about the confrontation contacted Mr. Harper and recommended that he contact Carrie Johansen, Assistant Director of C.R. England's Human Resources Department, in Salt Lake City, Utah, about the incident and provided him with Johansen's contact information. Mr. Harper spoke briefly with Director Kelsey about his encounter with Humphrey shortly after the alleged incident took place.9 Then, on April 18, 2007, Mr. Harper emailed Johansen and provided a formal statement regarding the March 9, 2007 incident. In his email, Mr. Harper wrote, “I have been angry, upset, hurt, stressed, and feel that I'm working in a hostile environment.” 10
After receiving Mr. Harper's email, Johansen contacted Director Kelsey and instructed him to contact Metzler to “find out what had happened.” 11 According to Director Kelsey, Metzler interviewed every individual that Mr. Harper had said was in the room at the time of the exchange between Mr. Harper and Humphrey.12 Metzler then reported to Director Kelsey that he was unable to determine what, if anything, Humphrey had said to Mr. Harper. 13When Director Kelsey met with Metzler, he made clear that, if the incident did happen, it had better not happen again because such a remark would warrant discharge.14 He also instructed Metzler to give the same warning to Humphrey. Director Kelsey reported to Johansen that he had handled the situation.
Mr. Harper met with Director Kelsey a second time to discuss the Humphrey incident. Director Kelsey asked Mr. Harper how they could “move past th[e] incident,” and what the company could do to make the work environment more comfortable for him.15 Director Kelsey offered Mr. Harper several options, including time off and a transfer to another position within the company.
Mr. Harper also met separately with Metzler to discuss, among other things, the email he had sent to human resources. He claims that Metzler questioned his reasons for sending the email and wanted to know what he expected would come as a result of it. In addition, Metzler said that Mr. Harper's “skin should not be so thin.” 16
Mr. Harper further alleged that, on approximately four or five occasions after March 9, 2007, he heard other instructors use the slur “n - - - - r” in workplace conversations. However, in his deposition, Mr. Harper testified that these remarks were not directed at him and that Metzler was not part of the conversations.17 Mr. Harper was not able to provide the names of the instructors who used the term.
Mr. Harper also informed Director Kelsey that the word “asshole” had been written on his time card on one occasion at some point after March 9, 2007. 18 Director Kelsey assured Mr. Harper that he would talk to Metzler about it. Metzler responded to the incident by moving the time clock and time cards inside his office.19
On June 24, 2007, Mr. Harper contacted Metzler to tell him that he would not be able to report to work on Monday, June 25, due to illness. Metzler left Mr. Harper a message telling him that he would have to assign his truck group to another instructor and directed him to stay at home for the rest of the week.
On Thursday of that same week, Metzler informed Mr. Harper that he needed to meet with him the following day, Friday, June 29, 2007. During their Friday meeting, Metzler administered three written warnings to Mr. Harper, the most serious being for poor attendance. Metzler told Mr. Harper that he was being placed on probation for taking too much time off and warned him not to take any more days off or leave work early for the remainder of the year. Mr. Harper understood that, pursuant to C.R. England policies, he could be terminated if his attendance did not improve.20 Prior to this date, Metzler had given Mr. Harper permission to leave work early on Fridays to pick his son up from school. Metzler previously had told Mr. Harper that “he had no problem with it.” 21 Yet, Metzler now made clear to Mr. Harper that those kinds of early departures would no longer be permitted because they had “exceeded acceptable levels” and because Mr. Harper's “absence ha[d] now begun to affect [his] performance at work.” 22
In addition to the written warning for poor attendance, Metzler also gave Mr. Harper a warning for failing to report his mileage at the close of business on Friday on four occasions and for not turning in the key to his assigned truck. Metzler gave Mr. Harper a third written warning for the poor rates of hire for students that he had been assigned (“start-to-hire rate”).23
Mr. Harper spoke with Director Kelsey regarding Metzler's direction to take the week of June 25 off after he had called in sick on Monday. Director Kelsey, after evaluating the circumstances surrounding Metzler's decision, and Mr. Harper's recent attendance record, ultimately agreed with Metzler's decision.
After he was placed on probation, Mr. Harper took several days off to attend his sister's wedding and an additional day off for a court appearance. 24 On July 10, 2007, he emailed Johansen and asserted, among other things, that he believed that the written warnings were unwarranted and requested further clarification on C.R. England's policies “regarding attendance, employee conduct, and harassment in the workplace.” 25 He also recounted portions of his conversation with Metzler, stating that Metzler had implied that his “skin shouldn't be so thin” and that Mr. Harper “should move on and get over it, because [Metzler] grew up in the 60s and he was called (N - - - - R) many times.” 26 The email also set forth a number of complaints about the treatment Mr. Harper had received from his coworkers and, in particular, from his supervisor, Metzler, after the original email to human resources.
On or about July 13, 2007, Mr. Harper initiated a “First Report of Injury or Illness,” prepared by the Manager of Workers' Compensation, Darlene Niebuhr, in which he stated that, beginning at the end of March 2007, his health had started to decline. He...
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