United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the: (1) Motion for Summary Judgment, filed by Defendant on December 5, 2013; and (2) Amended Motion for summary Judgment, filed by Defendant on December 6, 2013. For the reasons set forth below, the motion for summary judgment (DE# 22) is DENIED as moot and the amended motion for summary judgment is GRANTED. Accordingly, this case is dismissed with prejudice.
On December 11, 2012, Plaintiff, Randall Anderson, filed an "Employment Discrimination Complaint" against his former employer, Defendant, Carefree of Colorado (Carefree). Anderson alleged he was terminated based on his race, in violation of Title VII of the Civil Rights Act and 42 U.S.C. section 1981. Anderson also alleges Carefree violated his privacy rights under the Healthcare Insurance Portability and Accountability Act of 1996 (HIPAA).
Carefree has filed the instant motion for summary judgment, arguing that there are no genuine issues in dispute and that it is entitled to judgment as a matter of law. Because Anderson is proceeding pro se, Carefree provided Anderson with notice of its summary judgment motion (DE# 25) and a short and plain statement of the need to respond to it, giving both the text of Rule 56(c) and an explanation of the rule in plain English. Timms v. Frank, 953 F.2d 281, 283, 285 (7th Cir. 1992) (citing Lewis v. Faulkner, 689 F.2d 100, 102-03 (7th Cir. 1982). Plaintiff has had ample time in which to respond to the instant motion, but has failed to do so.
Summary Judgment Standard
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). A party opposing a properly supported summary judgment motion may not rely on allegations in her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the non-moving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
The following facts are undisputed and supported by the record. Carefree/Scott Fetzer Company d/b/a Carefree of Colorado ("Carefree") distributes awnings for the RV industry out of their Elkhart, Indiana warehouse. (Anderson Dep. at 38-39). Anderson, who is African-American, began work as a full-time material handler for Carefree on or about April 26, 2012. (Dep. of Anderson at 7, 32-37 & Exs. B-H; Declaration of Melanie Oliver ¶ 4 & Ex. B; but see Anderson Dep. at 97 (April 24, 2012)). Anderson's job included unloading awnings from incoming trucks and pulling and racking new orders to be placed on outgoing trucks. (Anderson Dep. at 37-38). Anderson worked primarily with two other material handlers, Otto, who is Hispanic, and Jemale, who is African American. (Anderson Dep. at 38 & Eratta sheet). He reported to the Warehouse Lead, Kelly Malicoat ("Malicoat"), a Caucasian female. (Anderson Dep. at 39-40). Malicoat reported to the facility manager, Mark Fortney ("Fortney"), a Caucasian male, who started at the facility on May 1, 2012. (Anderson Dep. at 40). In addition to the three material handlers, Anderson recalls several other employees who performed inspection work that involved the unwrapping and wiping down of incoming awnings; they also assisted in the unloading of trucks when needed. (Anderson Dep. at 41-44). These inspectors included Jonathan Vargas ("J. Vargas") and Bryan Vargas ("B. Vargas"), Hispanic males, who happened to be brothers. (Anderson Dep. at 41-42, 53).
Early in his employment, Anderson had conversations with J. Vargas during which J. Vargas questioned why Anderson would walk through the office to use a particular men's bathroom rather than use one that was closer to where Anderson normally worked; Anderson told him what bathroom he used was a personal matter. (Anderson Dep. at 44). Also early on in Anderson's employment, J. Vargas and other inspectors would sometimes assist the material handlers in unloading trucks. (Anderson Dep. at 51). If Anderson indicated that he intended to leave the truck to go to the bathroom, J. Vargas would say to others on the truck, "[y]ou know, a nigger's always got to go to the bathroom." (Anderson Dep. at 49-50). Anderson told J. Vargas to refer to him by his name rather than calling him "nigger." (Anderson Dep. at 50). On other occasions, Anderson would walk past J. Vargas' work area on his way to the bathroom; J. Vargas would make comments to his co-workers such as "[h]ere comes that nigger going to the bathroom again" in a voice loud enough for Anderson to hear him. (Anderson Dep. at 51-52, 65-67). Sometimes Anderson would confront J. Vargas about using the word "nigger, " and they would exchange words; other times he just avoided walking past him. (Anderson Dep. at 51, 53, 65-67, 310-11). Anderson also observed J. Vargas swinging awnings around his head when unloading trucks, which Anderson thought was unsafe behavior. (Anderson Dep. at 60-62).
According to Anderson, he complained about J. Vargas to the plant manager who preceded Fortney. (Anderson Dep. at 52-57). The Operations Facility Manager who preceded Fortney, Brian Lewis, left his position on or about April 3, 2012, before Anderson's employment began. (Declaration of Venita Fortune ¶ 3). There was no interim Operations Facility Manager, so Carefree is unsure to whom Anderson made this complaint. ( Id. ). According to Anderson, the person to whom Anderson complained told Anderson he would talk to J. Vargas' supervisor; however, the individual left the facility shortly thereafter. (Anderson Dep. at 50, 52-57). Anderson does not know what, if anything, this individual did with regard to J. Vargas before he left. (Anderson Dep. at 56-57).
About a week after the individual to whom he first complained left, Anderson complained to Malicoat about J. Vargas and other inspection employees causing problems when working on the trucks. (Anderson Dep. at 57-58). He did not mention J. Vargas' use of the word "nigger." (Anderson Dep. at 57). Instead, he complained about the unsafe behavior on the trucks. (Anderson Dep. at 57-59). Malicoat responded by hiring a temporary employee, an African-American male named Bramley, to help unload trucks, eliminating the need for the inspection employees to step in and help out. (Anderson Dep. at 58-59).
At some point after this, Anderson mentioned to Malicoat that J. Vargas was using the "n" word to refer to him when he walked by the inspectors' work area to go to the bathroom. (Anderson Dep. at 65-67). Anderson believes Malicoat talked to J. Vargas and J. Vargas' supervisor about use of the word because Malicoat later told Anderson that she did not know who to believe because J. Vargas told her that Anderson had called him a "spic." (Anderson Dep. at 67-68). According to Anderson, this follow-up conversation occurred on or about Wednesday, May 16, 2012, or Thursday, May 17, 2012. (Anderson Dep. at 67-70, 72). Anderson stated that after Malicoat ...