Wallace v. Interbake Foods, LLC

Citation973 F.Supp.2d 1067
Decision Date19 September 2013
Docket NumberCivil No. 10–4119–KES.
PartiesRoscoe WALLACE, Plaintiff, v. INTERBAKE FOODS, LLC, Defendant.
CourtU.S. District Court — District of South Dakota

OPINION TEXT STARTS HERE

Jay E. Denne, Munger Reinschmidt & Denne, LLP, Sioux City, IA, for Plaintiff.

Christopher E. Hoyme, Kenneth M. Wentz, III, Timothy D. Loudon, Jackson Lewis, LLP, Omaha, NE, for Defendant.

MEMORANDUM OPINION AND ORDER

KAREN E. SCHREIER, District Judge.

Plaintiff, Roscoe Wallace, filed suit against defendant, Interbake Foods, LLC, alleging employment discrimination, hostile work environment, and retaliation. Interbake moves for summary judgment on all of Wallace's claims and argues that Wallace failed to exhaust his administrative remedies and is time barred from bringing specific claims. Docket 37. For the following reasons, the court denies Interbake's motion.

BACKGROUND

The facts viewed in the light most favorable to Wallace, the nonmoving party, are as follows:

Wallace, an African–American male, was hired by Interbake in July 2006 as a sanitation technician. While employed as a sanitation technician, Wallace was subjected to numerous race-based slurs from another coworker, Ton Huan, including the comments “n* * * *r,” “lazy,” and “ape,” beginning on Wallace's first day of employment. Shortly after the slurs began, Wallace informed his supervisor, Derek Debell, of the comments. Debell talked to Huan about Wallace's complaint. Subsequently, Huan began to “turn up” the comments towards Wallace. Docket 45–4 at 118. Wallace again reported Huan's comments to Debell, who informed Wallace that he did not have to work in the presence of Huan. Wallace then asked to perform his work in isolation from other employees. Wallace also told Debell that Interbake should hold sensitivity training.

In early 2007, Steve Branson, a maintenance employee, informed Wallace and other sanitation employees that they could solve a problem if they would just “n* * * *r-rig” it. Docket 45–4 at 119. Branson immediately apologized and Wallace “felt sincerely” that Branson did not mean anything “vicious” by the comment, but rather that the comment reflected the conditions of Wallace's working environment. Id. Interbake and Wallace discussed disciplining Branson, including termination, but Wallace believed termination was not necessary.

In July of 2007, Interbake held sensitivity training. Huan was dismissed in August of 2007. Wallace does not allege any other discrete racially hostile remarks during his first tenure in the sanitation department, but indicates that he was aware of continuing racial harassment of African–American employees and reported those incidents to Interbake.

After three months in the sanitation department, Wallace was promoted to weekend fill-in foreperson. Four to five months after his first promotion, Wallace was promoted again to third shift foreperson. In March of 2008, Wallace was told by Debell, by then Wallace's manager, to apply for a resource auditor (RA) job. Wallace [did not] have a clue” what the job entailed. Docket 45–4 at 115. Wallace was promoted to the position with two other employees, Ronnie Houston, an African–American, and Colby White, a Caucasian. Soon after Wallace's promotion, he was subjected to racial comments from other employees, including being called an “Affirmative Action Baby.” Wallace received other nonracial hostile comments as well.

Wallace was informed of comments made by Lewis Gaiani, a supervisor, referencing “putting those boys in that position.” Docket 45–4 at 83. Wallace alleges Interbake was trying to cover up for past discrimination and also to set up Wallace and Houston for failure due to their lack of relevant experience. Id. Wallace and Houston informed the managers of racist attitudes among several co-workers in the resource department. None of the hostile attitudes involved any of the Caucasian workers, but only Wallace and Houston. Docket 45–4 at 8. Wallace claims the managers “ignored the environment they created” even though Wallace informed them of the effect the working environment was having on him. Docket 45–4 at 7–8.

After Wallace's promotion to the RA position, he worked the third shift, which traditionally ran from 11 p.m. to 7 a.m. Wallace frequently worked this shift between the time of his promotion to RA through March 27, 2009. Docket 45–4 at 208–09. Starting on March 30, 2009, Wallace's shift was scheduled from 10:30 p.m. to 7 a.m. Id. Wallace arrived at 10:44 p.m. on March 30, 10:58 p.m. on March 31, 10:54 p.m. on April 1, and 10:45 p.m. on April 2. Interbake considered Wallace tardy for each shift.

Under Interbake's attendance policy, employees are assigned points for tardies and absences. Each tardy is one-half of one point and each absence is at least one point. Interbake may discipline employees for accruing points and terminate an employee who accrues five or more points. Interbake gave Wallace a written warning indicating that he had four points on April 1, 2009. Docket 39–10 at 9. Wallace was assigned one-half of one point for each tardy on March 30, March 31, April 1, and April 2, 2009, but asserts he was not given any indication that he was considered tardy on any of those dates, nor was he given any warnings prior to sending an e-mail to Gaiani on April 4, 2009, after he passed the five-point threshold.

Interbake states that RAs were expected to show up 30 minutes early to each shift to coordinate with the previous shift's employees, known as “cross-shifting.” Docket 38 at 13. But Wallace states that early arrival was not customarily expected or enforced. In fact, Wallace was informed that Interbake policy required an employee to ask for permission if the employee needed to arrive at work more than 15 minutes before a shift to avoid overtime complications. Wallace believes Interbake changed the start time of his shift without notifying him “in an effort to reflect tardiness without knowledge to [Wallace].” Docket 45–1 at 7. Wallace is unaware of any other Interbake employee receiving tardiness points without a warning.

After Wallace accrued more than five points, Human Resource Manager Tiffani Stegemann investigated Wallace's card swipes from Interbake's timekeeping system. After Interbake determined that Wallace was late on March 30 and 31 and April 1 and 2, Wallace was terminated.

Subsequently, Wallace filed a grievance through his union. Before meeting with Wallace, Interbake solicited feedback from Wallace's supervisors to decide whether to reinstate Wallace. Based on positive comments from Wallace's supervisors, Wallace was offered employment under a Last Chance Agreement, which he accepted. Wallace returned to Interbake on April 24, 2009, as a sanitation technician.

Wallace contacted Interbake's hotline on May 6, 2009, to report a potential threat from Stegemann. Stegemann was investigating an alleged incident involving other Interbake employees. Stegemann interviewed Wallace, and Wallace untruthfully denied knowledge of the incident. The following day, Stegemann threatened to discipline or fire Wallace if he was lying. Wallace admits that he did not provide Interbake with all the requested information, but he asserts that he failed to provide the information because it concerned his direct superior, Debell, and Houston.

Shortly after contacting the Interbake hotline about Stegemann's threat, Wallace's weekend supervisor, Jeff Niles, denied Wallace's vacation day request. Wallace claims that Niles knew Wallace was working on a Last Chance Agreement, and that Wallace would be fired if he used his vacation day without approval. Ultimately, Wallace was granted the vacation day by another supervisor.

In June 2009, Wallace found a note with the writing “Die! RIP N* * * *r Boy” and Wallace's employee identification number in the locker he was using. Wallace reported the note and was excused from the remainder of his shift. A security guard accompanied Wallace throughout his shift the next day. Although Interbake investigated the note, it never determined who wrote the note. Wallace was never informed of the findings of the investigation. Additionally, Wallace alleges that Stegemann implied Wallace wrote the note to get out of work, and that Interbake's management displayed deliberate indifference to Wallace's complaints regarding the note investigation.

On August 24, 2009, Wallace filed a charge of discrimination and retaliation with the South Dakota Department of Labor (SDDOL). The charge was also filed with the Equal Employment Opportunity Commission (EEOC). Wallace's earliest alleged date of discrimination was July 24, 2006. Wallace's last alleged date of discrimination is listed as August 3, 2009. Wallace checked the “continuing action” box indicating that the discrimination was still on-going at the time of his charge of discrimination. Docket 45–4 at 43.

On September 13, 2009, Wallace did not report for his scheduled shift. Wallace claims he called in and spoke to Alex Reposa, his foreperson for that shift. Reposa admits that Wallace told him that Wallace would miss his shift, but Reposa forgot to tell others. Docket 39–21 at 44. Interbake asserts that the absenteeism call-in line contained no message from Wallace on September 13, 2009. As a result, Interbake claims Wallace was in violation of its attendance policy. Docket 38 at 16.

Five days later Interbake received a report that Wallace was using a cell phone at work in violation of Interbake's employee conduct policy. Wallace admits to having the cell phone, but denies using the phone while at work. He asserts that he needed to maintain possession of his phone while at work because he “did not trust [Interbake] and the work environment they created.” Docket 45–1 at 14. Furthermore, Wallace claims that Interbake was watching him carefully to find a way to fire him. Docket 39–20 at 4.

Wallace did not cooperate with Interbake's investigation into either his missed shift or his cell phone...

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