McClendon v. Indiana Sugars, Inc.

Decision Date12 March 1997
Docket NumberNo. 96-1634,96-1634
Citation108 F.3d 789
Parties73 Fair Empl.Prac.Cas. (BNA) 666 Johnny McCLENDON, Jr., Plaintiff-Appellant, v. INDIANA SUGARS, INCORPORATED, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Rick C. Gikas (argued), Gikas & Sams, Merriville, IN, for plaintiff-appellant.

Carol B. Manzoni, Laura A. Lindner (argued), Ross & Hardies, Chicago, IL, for defendant-appellee.

Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

In a complaint brought against his employer, Indiana Sugars, Inc. ("ISI"), Johnny McClendon first alleged racial harassment and discrimination and later amended his complaint to add an allegation of retaliatory termination, in violation of Title VII, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981. The district court granted summary judgment to ISI. Mr. McClendon then timely appealed only the second issue, his claim that he was discharged in retaliation for filing this lawsuit. For the reasons that follow, we affirm the judgment of the district court.

A. Facts

Indiana Sugars, located in Gary, Indiana, processes and distributes sugar. Its president since 1983 has been Ronald J. Yonover. Johnny McClendon, an African-American male, began working for ISI as a janitor in 1982. He was promoted to shift foreman and then, in 1987, to warehouse manager. Mr. McClendon was responsible for overseeing all warehouse operations during his shift, including shipping, receiving and storing sugar and maintaining accurate inventory counts. His immediate supervisor at ISI was Hugh Mendenhall, who became Director of Operations in September 1987. In fact, it was Mendenhall who recommended Mr. McClendon's promotion to warehouse manager.

In 1993 Mr. McClendon filed two complaints with the Equal Employment Opportunity Commission ("EEOC") and the Indiana Civil Rights Commission. The first alleged race-based disparate treatment; the second alleged retaliation. The factual predicates underlying Mr. McClendon's employment discrimination complaints were presented to the district court. That court granted summary judgment to ISI with respect to those allegations, and that determination has not been appealed. Mr. McClendon asks only that we review the district court's grant of summary judgment with respect to the retaliatory claim.

Although our review is limited to the retaliatory discharge claim, we shall set forth, in abbreviated fashion, the allegations that formed the basis of the discrimination complaint. In May 1989, when ISI was experiencing significant losses due to the theft of sugar from its inventory, Mendenhall issued a memo to all employees announcing that ISI would begin random searches of employees and their possessions. Twice Mr. McClendon was accused of stealing sugar, and each time his property was subjected to a search by company officials: Once, Mendenhall searched his garage; another ISI manager later searched Mr. McClendon's truck for stolen sugar and called McClendon a "black thief." In neither search was anything found. Mr. McClendon reported this second incident to his superior, but no disciplinary action was taken. He then filed a complaint with both the EEOC and the Indiana Civil Rights Commission on January 14, 1993, alleging race-based disparate treatment. On March 8, 1993, Mendenhall sent Mr. McClendon a letter of apology for any offense caused by the company's investigations of the thefts. On April 30, 1993, he filed another complaint, alleging retaliation when a white management trainee was given overtime work and he was not. On June 27, 1994, the EEOC issued a right to sue letter. Mr. McClendon filed a timely complaint in the district court.

We now turn to the retaliation allegation that Mr. McClendon brings for our review. With respect to this matter, the parties focus on a one-week time period (September 16-23, 1994), and on the deposition testimony of Mr. McClendon and Mendenhall, the affidavits of Mendenhall and Yonover, and related exhibits. On Friday, September 16, 1994, four days before Mr. McClendon filed this action in the district court, Mendenhall sent a memo asking the operations managers to list their five main performance goals. Mendenhall stated in his deposition that the list was to be used for evaluation purposes at the next performance reviews of the managers. However, Mr. McClendon believed he was being singled out to do this listing. Mendenhall reported that McClendon came to his office and became very loud and angry. Mr. McClendon, however, stated that, although he was angry at first, he did not raise his voice during this conversation. Mendenhall assured Mr. McClendon that all operations managers were required to provide a list of goals and asked McClendon to "tone it down." However, Mr. McClendon did not believe that everyone was being required to list goals. He told Mendenhall that it was not a fair request, but that he would comply. According to Mendenhall, Mr. McClendon stated that he could do or say whatever he wanted as long as he did not use vile language or threaten Mendenhall, and that he had a right to consult with someone before responding to Mendenhall's directive. Mr. McClendon denied making such a statement. Nevertheless, he admits that he did tell Mendenhall that he would consult with someone before complying with the memo; he explained in his deposition that he meant he needed someone to explain what he was supposed to do or not to do. Mr. McClendon stated that he did make the "goals" list he had been asked to make. He also testified that he did not recall any mention made, during this meeting with Mendenhall, of his race, the EEOC charges he had filed, or a lawsuit.

On September 22, 1994, Mendenhall gave Mr. McClendon a written warning stating that any future incidents of insolent or disrespectful behavior would not be tolerated and would result in disciplinary action, including possible termination. 1 Mr. McClendon responded with a memorandum, dated September 23, 1994, to Mendenhall and Yonover concerning his conduct on September 16. In that memorandum, he stated that, although Mendenhall apparently had perceived his conduct to be insubordinate and aggressive, he did not intend to appear hostile. Nevertheless, he questioned the motivation for Mendenhall's order and stated that he felt his integrity had been compromised. He concluded by stating that he felt the need to "seek outside consultation on each action" he would take. 2

On the afternoon of September 23, 1994, Yonover met with Mr. McClendon and Mendenhall in his office. Yonover stated in his affidavit that he intended to reprimand Mr. McClendon for his insubordinate conduct on September 16 and to warn him that Indiana Sugars would not tolerate insubordination. Yonover explained to Mr. McClendon that ISI depends on its employees to follow their supervisors' orders and that an employee's refusal to perform a job can hinder operations. Yonover asked Mr. McClendon what he would do if a warehouse employee refused his request to load a truck until he talked to a lawyer; Mr. McClendon answered (argumentatively and loudly, reported Yonover) that the employee should question his orders if asked to do something that was unsafe. Yonover then explained that Mendenhall had simply asked Mr. McClendon to respond to a routine memo. At that point, Mr. McClendon became louder, according to Yonover, and stated that Mendenhall had no judgment and that he would not do anything that Mendenhall asked him to do without first "checking it out." In his affidavit, Yonover described what next transpired:

I then attempted to speak, but McClendon interrupted me. McClendon, once again, raised his right to seek outside consultation before doing anything. I told McClendon that it was my turn to speak and that McClendon could speak when I was finished. McClendon answered by stating that he could talk when he wanted and that he was going to talk at that time. I told McClendon that I was not going to engage in a shouting match. Because of McClendon's grossly insubordinate conduct during the meeting, I terminated McClendon on September 23, 1994.

R. 51, Ex. B para. 7. Yonover's brief letter to Mr. McClendon, dated September 23, 1994, formalized the termination:

As a result of a very unpleasant meeting with you today your employment with Indiana Sugars has been terminated immediately.

R. 66, Ex. B (Pl. Ex. 34).

B. The District Court's Determination

On February 9, 1996, the district court granted ISI's motion for summary judgment concerning each of Mr. McClendon's claims on the ground that the undisputed evidence showed that ISI did not discriminate against Mr. McClendon on account of his race. Turning first to Mr. McClendon's claim of harassment, the court considered the facts underlying the searches of Mr. McClendon's truck and garage. It recognized the undisputed evidence that ISI had experienced problems with theft of sugar from its inventory; that it had engaged in random searches of the vehicles of both white and black employees; and that it had conducted each search of McClendon's property only after receiving tips that McClendon had stolen sugar in his garage and truck. The court concluded that Mr. McClendon offered no evidence that the searches were motivated by a racial animus. The district court also found that Mr. McClendon's evidence of racial epithets did not rise to the level of an environment so abusive that it altered the terms and conditions of McClendon's employment. Noting that Mr. McClendon had advanced at ISI from janitor to warehouse manager, the court found that there was no evidence that the racial slurs discouraged employees from remaining on the job or kept them from advancing in their careers. It thus granted ISI summary judgment on Mr. McClendon's abusive environment claim.

The court specifically found that Mr. McClendon was unable to prove that he was the victim of intentional...

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