United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY
RICHARD L. YOUNG, JUDGE
Abdullah Ennin, is a former supervisory-level employee of
Defendant, CNH Industrial America, LLC (“CNHi”).
He was driving to work on a cold November day when his car
suddenly broke down. Since he was only a few minutes away
from the facility at that point, he called one of his hourly
employees and asked for help. That worker left without
clocking out and came to Ennin's aid. They purchased fuel
for Ennin's vehicle and arrived at CNHi approximately 45
minutes later. When they entered the facility, Ennin did not
make the hourly employee swipe his badge at the door.
ultimately terminated Ennin's employment because of this
incident. It maintains that this decision was warranted
because Ennin asked an employee to leave work in order to
help him with a personal matter, and he violated building
security rules, among other reasons. Ennin, on the other
hand, alleges that he is the victim of unlawful
discrimination. He advances what the court construes as nine
claims: (1) racial discrimination, in violation of both Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and 42 U.S.C. § 1981; (2) national
origin discrimination, in violation of both Title VII and
Section 1981; (3) disability discrimination, in violation of
the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq.; (4) failure to
accommodate, in violation of the ADA; (5) interference, in
violation of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.;
(6) retaliation, in violation of the FMLA; (7) conspiracy to
deprive civil rights, in violation of 42 U.S.C. §
1985(3); (8) neglect to prevent a conspiracy to deprive civil
rights, in violation of 42 U.S.C. § 1986; and (9)
negligent supervision in violation of Indiana law.
now moves for summary judgment on all counts. Because a
reasonable jury could not return a verdict for Ennin on any
of his claims, CNHi's motion must be
reviewing the material facts of this case, the court
considers the evidentiary objections CNHi lodged in its reply
brief. These objections, which are essentially motions to
strike, must be resolved first because they have a
substantial impact on what materials the court is able to
consider in making its findings of fact.
asks the court to strike Ennin's exhibits 4, 5, 6, 11,
12, 13, 14, 15, 16, 17, 19, 21, and 22. It argues that these
exhibits are inadmissible for many reasons, including lack of
authentication and hearsay. Because these objections were
first advanced in a reply, Ennin could have filed a surreply
and disputed CNHi's arguments. The court's Local
Rules expressly authorize a litigant to file an additional
brief under these circumstances. See S.D. Ind. L.R.
56-1(d). For whatever reason, Ennin opted not to respond. He
has therefore waived any objection. See Bonte v. U.S.
Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010)
(“Failure to respond to an argument . . . results in
waiver.”). Having reviewed the record, the court now
summarily grants CNHi's motions to strike. The court has
not considered these stricken materials in resolving the
request for summary judgment.
Ennin's Employment with CNHi
an import/export facility. (Filing No. 30-1, Declaration of
Stacy Darlin ¶ 17). Ennin, who is black and Ghanaian,
began working as an Export Second Shift Operations Supervisor
at CNHi's Lebanon, Indiana facility on January 3, 2012.
(Id. ¶ 4; Filing No. 36-1, Deposition of
Abdullah Ennin 234:24-235:3). During the relevant time
period, he was the only black supervisor at that facility.
(Ennin Dep. 235:4-19). Ennin's shift started at 2:00 p.m.
and ended at 10:30 p.m. (Darlin Dec. ¶ 5). Michael Lewis
was the Export Operations Manager and Ennin's direct
supervisor. (Filing No. 30-3, Declaration of Michael Lewis
¶¶ 2, 4). Lewis reported to Stephen Lincoln who was
the Manager, Master Depot. (Id. ¶ 4).
Ennin is Cited for Exercising Poor Judgment
2014, Ennin received a written warning for misconduct.
(Id. ¶¶ 7-8; Ex. A to Lewis Dec.).
According to CNHi, Ennin got into a “verbal
altercation” with a third shift supervisor
“regarding the turning off of a radio.” (Ex. A to
Lewis Dec.). Ennin's “inappropriate behavior”
was allegedly witnessed by three hourly employees, including
two of his second shift employees. (Id.). The
warning provides, in relevant part, “You are in a
leadership position and behavior like this is not acceptable.
. . . [Y]ou must set an example for your employees.”
(Id.). Ennin and Lewis both signed the
Ennin's Medical Condition and First Request for
suffers from painful hemorrhoids. He planned to undergo
surgery for this condition on November 7, 2014. (Ennin Dep.
186:5-8). He had contacted Prudential, CNHi's third party
leave administrator, and requested leave for the procedure.
(Id.; Darlin Dec. ¶ 14). That request was
approved. (Ennin Dep. 186:6-8). But after a consultation, he
learned that his hemorrhoids might reappear even after
surgery. (Id. 186:9-14). He therefore cancelled the
operation in order to explore the possibility of alternative
treatment. (Id. 187:20-25). He notified Prudential
that he would not be taking leave as planned. (Id.
Ennin Has Car Trouble and Asks an Hourly Employee for
Monday, November 17, 2014, at 1:43 p.m., Lewis received a
phone call from Ennin. (Lewis Dec. ¶ 9). Ennin told
Lewis that his car had broken down on the way to work, and he
would therefore be running late. (Id.). At the time,
Ennin was approximately five minutes away from CNHi. (Ennin
Dep. 138:2-6). At 2:53 p.m., Ennin advised Lewis that he was
at work. (Lewis Dec. ¶ 10).
Tuesday, November 18, Stacy Darlin, Human Resources Manager,
received a report that, the day before, Ennin called Gonzalo
Chavez, an hourly second shift employee, and asked him to
leave work and bring Ennin some gas but to stay on the clock.
(Darlin Dec. ¶ 7). Chavez was the “team
lead” on second shift and reported directly to Ennin.
(Id.). Darlin investigated this report.
(Id. ¶ 8). She confirmed that Chavez had
clocked in at 1:44 p.m. on November 17. (Id.). He
then swiped out of the employee entrance at 2:00 p.m. but
did not clock out. (Id.). Chavez did not use his
badge to get back into the building. (Id.). Instead,
security camera video showed Ennin and Chavez entering the
front salary employee entrance at 2:46 p.m. (Id.).
Ennin swiped his badge through the security entrance and
allowed Chavez to walk behind him, through the front door,
without swiping his badge. (Id.).
also checked CNHi's timekeeping system, eTime, and found
that it had not been corrected to show Chavez's time away
from work. (Id. ¶ 9). It was Ennin's
responsibility to make all appropriate adjustments to the
eTime system at the end of every shift. (Id.). Based
on this information, there were approximately 45 minutes
where Chavez was paid for working when he was not even on the
Ennin Meets with Supervisors
Wednesday, November 19, Lincoln, Lewis, and Darlin met with
Ennin and gave him an opportunity to explain the situation.
(Id. ¶ 10). He provided his version of the
events and the reasoning behind his decisions. As to why he
allowed an hourly employee to enter the facility without
swiping his own badge, Ennin asserted, “Everybody does
it. I do it all the time.” (Ennin Dep. 174:16-19).
There are three possible scenarios for Chavez' temporary
absence, and which option is true determines whether there is
a timecard problem: (1) he had not yet arrived at work when
Ennin called, meaning he was not clocked in, (2) he was at
work, and he clocked out when he left to help Ennin, or (3)
he was at work, and remained clocked in when he left to help
Ennin. During the meeting, Ennin essentially claimed that
while he did not know for sure which scenario had actually
occurred, he thought it was the first based on calls he had
made to other employees. (Darlin Dec. ¶ 10; Ennin Dep.
after walking through the series of events, Ennin did not
take responsibility or even acknowledge the seriousness of
his actions. (Darlin Dec. ¶ 11). Lewis explained to
Ennin that telling an hourly employee to leave the building
without anyone's knowledge or approval was not
acceptable. (Lewis Dec. ¶ 13). His actions left the
shift unattended by both the supervisor and the department
lead. (Id.). Ennin was told that he placed the
employee and CNHi at risk. (Id.). Lewis also advised
Ennin that allowing an employee ...