Argued January 7, 2015.
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:12-cv-00084-SEB-TAB -- Sarah Evans Barker, Judge.
For Awok Ani-Deng, Plaintiff - Appellant: Dustin Tyrone White, Attorney, White Law Practice, Jeffersonville, IN.
For Jeffboat LLC, Defendant - Appellee: Edward H. Stopher, Attorney, Charles Hall Stopher, Attorney, Boehl, Stopher & Graves, Louisville, KY.
Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.
Posner, Circuit Judge.
The plaintiff filed a scattershot of discrimination and related claims against her former employer, Jeffboat (a division of American Commercial Lines), the nation's largest inland shipbuilder and second-largest manufacturer of barges. The district judge dismissed all the claims, some on the
pleadings and the rest on summary judgment.
A woman of Sudanese extraction, the plaintiff worked in Jeffboat's shipyard in Jeffersonville, Indiana as a welder from January 2006 until she was laid off in October 2011. She had been until late in her employment by Jeffboat a welder first class. Welders first class do the most difficult--and dangerous--welding jobs, such as overhead welding and welding in confined spaces. Welders second class do less demanding and safer welding jobs, and there are also welders third class, who do even less demanding jobs. In a two-week period in June 2011, the plaintiff, who had on 12 previous occasions sought first aid for work-related injuries, experienced two more such incidents, becoming dizzy and nauseous while welding in confined spaces. At the end of the month Jeffboat demoted her to welder third class. (According to the collective bargaining agreement between Jeffboat and the union that represented the plaintiff, at the time the plaintiff was demoted a welder first class received $21.10 per hour while a welder third class received $15.69 per hour.) The plaintiff claims that the company demoted her in retaliation for her having complained to the EEOC the previous February that the company was discriminating against her because of her sex and national origin.
She was laid off in October 2011, but the layoff was part of a general reduction in force based on seniority and in January 2012 the company notified her by certified mail that she was being recalled--she hadn't enough seniority to avoid the reduction but she had enough to be among the laid-off workers who were recalled. The letter stated that if she wanted to return to work she had to notify the company by 3:30 p.m. on a date in January that was five working days after the letter was mailed. She failed to reply within the deadline. However, on 6:00 p.m. on that fifth day her husband called the company to report that his wife did want to return to work. But the company had closed for business at 3:30, so he was able only to leave a voicemail.
Jeffboat is unionized and its collective bargaining agreement requires an employee, in order to secure his or her seniority, to " report for work within five (5) working days after being notified by certified letter to report." The plaintiff's husband phoned the company on the fifth day, but because the call was made after the close of business that day no one in the company received timely notice. The company informed the plaintiff that she'd missed the deadline and therefore would not be recalled; her employment with Jeffboat was over.
The plaintiff never received the certified recall letter that noted the deadline, but only because, as she admitted, she had failed to apprise the company that she had moved and that therefore her address was no longer the address in the company's records. The union's chief steward and an employee of Jeffboat's human resources department twice phoned her to remind her of the deadline (though no such attempt to remind is required by the collective bargaining agreement), but they were unable to reach her either time. The chief steward called a third time, now using his personal cell phone, but still failed to reach her. The chief steward then tracked down the plaintiff's husband, another Jeffboat employee, on the shipyard premises, and told him of the deadline, but as we said he failed to comply.
So far as appears, then, the plaintiff was demoted because of the company's safety concerns, which seem entirely legitimate given the dangerousness of the work ...