United States District Court, N.D. Indiana, South Bend Division
OPINION and ORDER
JAMES T. MOODY, District Judge.
Plaintiff Wayne Bryant began working for defendant Honeywell International, formerly known as Allied Signal,  in 1981. Plaintiff worked as a machinist for three months, and as a "jig bore" operator for approximately eight months. Plaintiff was laid off, and after working for several different employers, was recalled by defendant in 1998. Plaintiff was again laid off in 2001, and again recalled in 2004, at which point plaintiff worked as a computer numerically controlled ("CNC") machine operator. The parties have stipulated that only basic arithmetic is required for CNC machine operation, and that the CNC machine operator position is not a skilled trade classification.
In 1982, plaintiff obtained a Journeyman's card as a precision machinist from the International Association of Machinists and Aerospace Workers ("AFL-CIO") because he had eight years of experience running a bore mill at the time. For all relevant time periods, plaintiff was a member of the Local 9 United Auto Workers Union ("UAW").
In 2007, plaintiff applied for the position of "Manufacturing Layout/Tool & Gauge Inspection." The position is the result of defendant and the UAW's agreement to combine the Inspector Layout and Inspection Tool & Gauge positions in a bargaining agreement in 2003. (DE # 32-18 at 3, Hansen Aff. ¶ 6.) The inspector position is a skilled trade classification certified by the Department of Labor ("DOL") as an apprentice trade. ( Id. ) Plaintiff was not awarded the promotion (according to defendant, due to lack of qualifications). He later filed a grievance with the UAW and a lawsuit in 2008, and the case was settled in 2009.
In 2010, plaintiff applied for the same inspector position. He was 61 at the time of the application. By agreement between defendant and the UAW, the following were advertised as qualifications for the inspector position:
Must have previously held this classification Journeyman's card or equivalent.
(DE # 32-12 at 2.) The parties do not dispute that the posting advertised three alternative qualifications. Plaintiff stated in his deposition that he did not meet the first of the three qualification options, because he did not possess the inspection classification. (DE # 32-1 at 44, Pl. Dep. 93:22-24.) As for the latter two qualifications, which are somewhat vague based on the job posting, the parties have stipulated that an agreement between the UAW and defendant required that the applicant either: (1) possessed a Journeyman's card; or (2) possessed eight years of equivalent work experience in inspection, calibration, and repair of commercial gauging.
Eight employees applied for the position, and defendant ultimately awarded the position to Joe Cole, a white male, age 43. (DE # 32-18 at 6, Hansen Aff. ¶ 15.) Defendant asserts that it chose Cole because he possessed a Journeyman's card in tool and die - a skilled trade - from the UAW. (UAW Skilled Trades & Classifications Chart, DE # 32-18 at 53.) Of the seven rejected applicants, six were white and one (plaintiff) was black. ( Id. ) Three of the seven rejected candidates were younger than Cole (ages 34, 35, and 38), and four were older than Cole (ages 48, 54, 55, and plaintiff - age 61). ( Id. ) Both the UAW and defendant informed plaintiff that he did not get the job because he was not qualified. (DE # 32-1 at 49, 53-54; Pl. Dep. 102, 112-13.)
Plaintiff argues that the Journeyman's card requirement was vague and nonspecific, and that any Journeyman's card should have sufficed. Defendant, on the other hand, contends that only a Journeyman's card in an associated skill such as tool and die qualified an applicant for the inspector position. Plaintiff also claims that he had at least eight years of experience qualifying him for the inspector position. Specifically, plaintiff claims that he had "more than eight  years of equivalent experience" in the following positions: "Tool jig bore... [, ] Jig boring machinist... [, ] Experimental machinist... [, ] Boring Machine Tool Room" (DE # 59 at 8, Pl. Aff. ¶ 31), though plaintiff did not provide details about the length of time spent in each of these positions. Defendant argues that plaintiff's experience did not qualify him for the inspector position because jig bore operator was not a classification recognized by defendant, that in any event plaintiff had not utilized a jig bore since the early 80's, and that unskilled machinist work (such as CNC machine operation) is not equivalent experience for purposes of the inspector position. Plaintiff testified that defendant no longer utilizes jig bore, that defendant does not recognize a jig bore classification, and that he has not used a jig bore since the early 80s. (DE # 32-1 at 33, 38, Pl. Dep. 67, 79.)
On November 5, 2010, plaintiff filed a grievance with the UAW regarding defendant's failure to promote him. At a union meeting on June 2, 2011, plaintiff was advised by a union leader that the grievance had been "thrown out" and that no further action would be taken on the matter. (DE # 59-7 at 26, Pl. Dep. 185.) Plaintiff did not file an internal appeal with the UAW or do anything else regarding the grievance. (DE # 32-2 at 60, Pl. Dep. 119.)
On December 29, 2010, plaintiff filed a complaint of age and race discrimination against defendant with the DOL's Office of Federal Contract Compliance Programs based on defendant's failure to promote him to the inspector position in 2010. (DE # 32-1 at 61, Pl. Dep. 119-20.) The DOL concluded that plaintiff "did not meet the minimum qualifications for the position" because the jigbore classification that he relied upon to demonstrate eight years of experience had not been an active classification since 1992, and concluded that defendant did not engage in discrimination. (DE # 32-17 at 5.) Plaintiff believes the DOL either made a mistake or was "bought off." (DE # 32-1 at 62, Pl. Dep. 121:16-25.)
On May 3, 2011, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging age and race discrimination based on defendant's failure to promote him to the inspector position in 2010. (DE # 32-16 at 2.) The EEOC issued a right-to-sue letter on September 29, 2011, because it was unable to conclude that a violation of law occurred. (DE # 1, Ex. 1.) Plaintiff filed the present lawsuit on December 22, 2011, against both defendant and the UAW. (DE # 1.) Plaintiff voluntarily dismissed his claims against the UAW on April 28, 2003. (DE # 52.)
Defendant moved for summary judgment on plaintiff's complaint on January 30, 2013. (DE # 29.) The briefing period related to this motion was long and protracted, with numerous extensions being granted, especially to plaintiff's counsel. Plaintiff's counsel repeatedly failed to abide by deadlines and comply with applicable rules. After receiving five extensions for the filing of his response brief, plaintiff filed multiple exhibits late, and failed to respond to an order by the court to show cause for the deficiency, resulting in the exhibits being stricken from the record. (DE # 71.) Plaintiff asks the court to "reconsider" its order striking the untimely-filed exhibits from the record. (DE # 72.) Defendant also filed a RULE 56 motion to strike various evidence submitted by plaintiff. (DE # 84.) Plaintiff has also asked for permission to file a "corrected" response brief addressing many of the issues raised by defendant's motion to strike. (DE # 90.) Finally, defendant has moved to strike plaintiff's sur-reply which was filed without court permission. (DE # 95.) Each motion is addressed in turn below.
A. Plaintiff's Motion for ...