White v. CertainTeed Corp.
| Decision Date | 13 May 2019 |
| Docket Number | Case No. 17-2262-DDC-KGG |
| Parties | LARRY S. WHITE, Plaintiff, v. CERTAINTEED CORPORATION, Defendant. |
| Court | United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas |
Plaintiff Larry S. White filed a five-count civil action against defendant CertainTeed Corporation, advancing claims of discrimination and retaliation under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. Before the court are three motions filed by CertainTeed: (1) Motion to Strike Plaintiff's Untimely Amended Rule 26 Disclosures (Doc. 34); (2) Motion for Summary Judgment (Doc. 37); and (3) Motion to Strike Plaintiff's Opposition Exhibits 13, 16, 17, 22, and 23 (Doc. 44). The court grants in part and denies in part CertainTeed's Motion to Strike Plaintiff's Opposition Exhibits, excluding Exhibits 13, 16, 17, and 23 from consideration and partially excluding Exhibit 22 from consideration. The court also grants CertainTeed's Motion for Summary Judgment, concluding Mr. White has failed to sustain his burden under the McDonnell Douglas1 framework, and its hybrids, on any of his claims. Finally, the court denies CertainTeed's Motion to Strike Plaintiff's Untimely Amended Rule 26 Disclosures because the summary judgment entered by this Order renders this motion moot.
The following facts either are uncontroverted or, where controverted, they are stated in the light most favorable to Mr. White as the non-moving party.
Mr. White, who is African-American, commenced employment at CertainTeed in July 1998. Doc. 33 at 2-3 (Pretrial Order at ¶¶ 2.a.4, 2.a.7). CertainTeed "manufactures interior and exterior building products" and "operates a fiberglass insulation manufacturing facility in Kansas City, Kansas." Id. at 2 (Pretrial Order at ¶¶ 2.a.1-2.a.2). By 2001, Mr. White assumed the position of Utility Cullet. Doc. 43-11 at 6 (White Dep. 15:13-17). As a Utility Cullet, Mr. White's job duties included: (1) "[m]aintain[ing] a safe and clean work area," (2) "make[ing] proper adjustments to all process equipment," (3) cleaning and removing scrap fiber from machinery in his area, (4) cleaning the washwater area, including the screens in the washwater system, and (5) transporting cullet to other areas of the plant. Doc. 43-5 at 3-5, 7. CertainTeed employees worked in shifts. Doc. 38-3 at 3 (Perrier Decl. ¶ 10). Mr. White worked Shift A, a shift followed by Shift D. Id. Mr. White, like all CertainTeed employees, was subject to the Plant Conduct Rules, including Rule 9, which addressed "[p]oor job performance or errors in performing assigned tasks." Doc. 38-8 at 2. Finally, Mr. White, like other production employees at CertainTeed's Kansas City plant, was a member of the Teamsters Local 41 Union (the "Union"). Doc. 33 at 3 (Pretrial Order at ¶ 2.a.9). And, under the Union's Collective Bargaining Agreement and CertainTeed's progressive disciplinary process, a Rule 9 violation justified termination only when it was the employee's third written notice of a Rule 9 violation within a nine- or twelve-month period. Doc. 43-6 at 5, 8 (Billings Dep. 13:8-12, 27:22-28:4).
In 2013 or 2014, Mr. White's doctor diagnosed him with a restrictive airway condition.2 Id. at 61-62 (Billings Dep. 236:23-237:5). At that time, and for some time preceding his diagnosis, Mr. White often took it upon himself to wear a half-face respirator mask when working. Id. at 62-63 (Billings Dep. 240:12-242:8). In 2015, CertainTeed moved Mr. White from the K-11 line to the K-21 line. Doc. 43-11 at 6 (White Dep. 16:7-13). Also during 2015, CertainTeed stopped offering employees unfettered access to half- and full-face respirator masks. Doc. 38-10 at 10 (Shelly Dep. 41:16-22).
In February 2015, Mr. White underwent an x-ray of his chest, which revealed nodules in his lung. Doc. 43-11 at 62 (White Dep. 239:12-14). Mr. White's doctor recommended he wear a full-face respirator mask. Doc. 38-10 at 11 (Shelly Dep. 47:4-11). Clay Shelly and Thomas Weigert—the Environmental, Health, Safety, and Security Manager and the Plant Manager respectively—learned about Mr. White's breathing condition and that he was donning a respirator mask. Id. at 5, 11 (Shelly Dep. 13:6-9, 47:7-21); Doc. 33 at 3 (Pretrial Order at ¶ 2.a.6); Doc. 38-7 at 12, 76 (White Dep. 162:8-18, 296:7-10). Mr. Shelly questioned Mr. White's need for a mask, expressing concern that the mask might further restrict Mr. White's airways and might impair Mr. White's line of sight and ability to perform some of his job duties safely. Doc. 38-10 at 11-12 (Shelly Dep. 48:13-49:8); see id. at 44 (). Mr. Shelly advised Mr. White he could not wear a half- or full-face respirator mask until: (1) he provided a doctor's note, (2) CertainTeed conducted a hazard assessment, (3) he underwent a fittest, and (4) he received training on how to wear the mask. Id. at 12 (Shelly Dep. 49:23-50:4); see also id. at 41 (). Mr. Shelly also scheduled Mr. White for an appointment with the plant physician. Id. at 12 (Shelly Dep. 49:18-20).
A few days later, and before Mr. White provided Mr. Shelly with a note from his doctor, Mr. Shelly saw Mr. White wearing a full-face respirator mask. Id. at 14 (Shelly Dep. 62:7-63:1). Mr. Shelly sent Mr. White home for the day. Id. Five days later, Mr. White dropped off a doctor's note. Id. (Shelly Dep. 63:18-64:3). It read: "I have asked him to wear protective equipment and have recommended a full-face mask with filters as a precaution." Id. (Shelly Dep. 63:18-64:3). Mr. Shelly deemed the note too vague to advance Mr. White's request to wear a respirator mask because the note did not elaborate on Mr. White's breathing condition, the type of pollutants causing the breathing condition (fumes, dust, water vapor, etc.), or identify what type of mask and filter the doctor recommended. Id. at 14, 17 (Shelly Dep. 64:15-18, 74:16-75:6). Mr. Shelly contacted John Monroe, the Shift A supervisor, and advised him that Mr. White could not wear a half- or full-face mask until he had provided an adequate note from a doctor. Id. at 15 (Shelly Dep. 67:13-18); see also id. at 44 (e-mail from Mr. Shelly to Mr. Monroe). Mr. Monroe sent Mr. White home. Doc. 38-6 at 6 (Monroe Dep. 24:15-17).
Nothing in the record suggests Mr. White produced a doctor's note that satisfied Mr. Shelly; but Mr. White did return to work. Later in February, Mr. Shelly saw Mr. White with a half-face respirator mask hanging around his neck and required him to put it away. Doc. 38-10 at 18 (Shelly Dep. 80:11-25). After that conversation, Mr. Shelly never saw Mr. White wearing a half- or full-face respirator mask. Id. at 19 (Shelly Dep. 83:1-9). And, according to Mr. White, he stopped wearing a half- or full-face respirator mask around May 2015 and did notask Mr. Shelly again about wearing a mask. Doc. 43-11 at 68 (White Dep. 261:5-262:7); Doc. 38-7 at 31 (White Dep. 323:11-324:12).3
In fall 2015, Julien Perrier, the Plant Superintendent, began receiving complaints from Shift D employees about Mr. White's job performance and the state of the washwater area following Shift A. Mr. Perrier determined that, on November 1, 2015, the K-21 washwater system, which Mr. White staffed during the overnight shift, was not ready for operation to start the production line on time. Doc. 38-2 at 8 (Perrier Dep. 69:5-22). Mr. Perrier instructed Mr. Monroe to issue a write-up notice to Mr. White for poor job performance, in violation of Rule 9. Id. (Perrier Dep. 69:5-22). Mr. Monroe issued the write-up. Doc. 38-14. Mr. Monroe, however, expressed reservation to Mr. White about issuing a write-up based on hearsay. Doc. 43-22 at 6 (Transcript of Audio Recording at 17:14-25).4 He also told Mr. White that he believed the plows, not the washwater system, prevented the line from starting production on time. Id. at 4 (Transcript of Audio Recording at 11-17). And, when receiving the write-up, Mr. White asked Mr. Monroe who the plant human resources person was because he wanted to file a claim of harassment. Id. at 8 (Transcript of Audio Recording at 25:8-24). But, Mr. White did not provide specifics to Mr. Monroe about the basis for his claim of harassment, i.e., race, disability, or national origin. See id. (See Transcript of Audio Recording at 25:18-26:7).Instead, Mr. White merely mentioned some ways in which he believed he was treated differently than other utility cullets. See id. (See Transcript of Audio Recording at 25:18-25:24).
On November 26, 2015, Mr. Perrier and Paul Hughes, the Shift D supervisor, received an e-mail from a second-level supervisor on Shift D entitled, "K21 WW - Larry White Aftermath!." Doc. 38-5 at 9. The e-mail included pictures of the unkempt state of the washwater area at the start of Shift D. Id. A little more than two weeks later, on December 13, 2015, Mr. Hughes received another report about the state of the washwater area following Mr. White's shift and, after inspecting the area himself, prepared a Rule 9 write-up for Mr. White. Doc. 38-5 at 4-5 (Hughes Decl. ¶¶ 19-20, 24). And, on December 16, 2015, Mr. Perrier received another complaint from Shift D workers about the state of the washwater area following Mr. White's shift. Doc. 38-3 at 5 (Perrier Decl. ¶ 21). In response to this complaint, Mr. Perrier drafted a Rule 9 write-up for Mr. White and spoke with Mr. Hughes about Mr. White's performance. Id. at 5-6 (Perrier Decl. ¶¶ 23-26). Mr. Hughes informed Mr. Perrier that he had prepared a write-up for the December 13, 2015, issue. Id. at 6 (Perrier Decl. ¶ 26). On December 17, 2015, Mr. White received the write-ups prepared by Mr. Perrier and Mr. Hughes, resulting in Mr. White's termination for three Rule 9 write-ups. Id. at 7 (Perrier Decl. ¶¶ 28-30); Doc. 43-2 at 2. Mr. White packed up his...
To continue reading
Request your trial