United States District Court, N.D. Indiana, Hammond Division
MEMORANDUM OPINION AND ORDER
an employment case arising out of pro se plaintiff
Cornelius Barnes, Jr.'s employment as an apprentice
lineman with Northern Indiana Public Service Company
(NIPSCO), a public utility for natural gas and electricity
services. Barnes alleges that NIPSCO discriminated against
him because he is African American, retaliated against him
for filing an internal complaint of discrimination in January
2014, and created a hostile work environment. Discovery has
now closed and NIPSCO moved for summary judgment [DE 55],
while giving the pro se plaintiff proper notice
concerning his need to respond to the motion with evidence or
risk an adverse judgment [DE 59]. Not only did Barnes respond
and provide hundreds of pages of legitimate business records
and emails from NIPSCO, but he filed his own motion for
summary judgment [DE 61], along with additional evidence. The
motions are fully briefed and ripe for consideration.
preliminary matter, the Court would note that the only
evidence objected to concerns deposition excerpts filed by
Barnes in support of his reply brief [DE 71-1]. NIPSCO filed
a motion to strike this evidence or, in the alternative,
sought leave to file a sur-reply [DE 72]. NIPSCO claims that
the deposition excerpts constitute “new evidence”
that was filed too late during the briefing process. NIPSCO
also argues that Barnes' reply brief improperly
mischaracterizes the deposition testimony. Contrary to
NIPSCO's argument, the various deposition excerpts
provided by Barnes are not “new evidence.”
Rather, NIPSCO relied on these very same depositions (albeit
different excerpts) in seeking its summary judgment. In fact,
the case that NIPSCO relies on, Baugh v. City of
Milwaukee, demonstrates that introducing additional
pages of deposition transcripts to clarify portions of those
depositions first submitted by the opposing party is not new
evidence. 823 F.Supp. 1452, 1457 (E.D. Wis. 1993),
aff'd, 41 F.3d 1510 (7th Cir. 1994). And to the
extent Barnes mischaracterizes the deposition testimony in
his reply brief, Barnes' argument is not evidence and the
Court is capable of discerning the true contents of those
depositions. In any event, the Court does grant NIPSCO leave
to file its sur-reply [DE 72-1], because its consideration
does not change the outcome of this Order.
reasons that follow, after liberally construing Barnes'
pro se claims, the Court denies the motions for
summary judgment as to Barnes' race discrimination and
retaliation claims; but as to the hostile work environment
claim, the Court grants NIPSCO's motion and denies
STANDARD OF REVIEW
summary judgment, the moving party bears the burden of
demonstrating that 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
“material” fact is one identified by the
substantive law as affecting the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A “genuine issue” exists with respect to
any material fact when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. Where a factual record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial, and
summary judgment should be granted. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citing Bank of Ariz. v. Cities Servs.
Co., 391 U.S. 253, 289 (1968)). In determining whether a
genuine issue of material fact exists, this Court must
construe all facts in the light most favorable to the
non-moving party and draw all reasonable and justifiable
inferences in that party's favor. Jackson v.
Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v.
Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).
However, the non-moving party cannot simply rest on the
allegations contained in its pleadings, but must present
sufficient evidence to show the existence of each element of
its case on which it will bear the burden at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Robin v. Espo Eng'g Corp., 200 F.3d
1081, 1088 (7th Cir. 2000).
the fact that the parties have cross-filed for summary
judgment does not change the standard of review. M.O. v.
Ind. Dep't of Educ., 635 F.Supp.2d 847, 850 (N.D.
Ind. 2009). Cross-motions are treated separately under the
standards applicable to each. See Parker v. Franklin Cty.
Cmty. Sch. Corp., 667 F.3d 910, 915 (7th Cir. 2012).
June 2009 Barnes has worked various jobs at NIPSCO, until he
successfully bid on a position in the lineman apprenticeship
program in September 2011. The forty-eight month program
consists of eight steps, with apprentices moving to the next
step every six months while completing approximately twenty
on-the-job tasks at each step [DE 65-1 at 140-49; DE 58-1 at
12-13]. At the end of every six months in the program, an
apprentice must also pass a written and hands-on performance
evaluation at the Human Performance Improvement Center (or
training center). NIPSCO assumes responsibility for providing
appropriate work assignments needed by an apprentice to allow
for successful completion of the program.
the program an apprentice also receives monthly apprentice
reports which are expected to document observations made by
the on-site journeyman lineman. The journeyman makes any
comments on the form and then separately ranks the
apprentice's attitude, ability, performance, and overall
conduct as excellent, strong, average, marginal, or
unsatisfactory. The journeyman must then determine whether
the overall report should be characterized as
“acceptable” or “unacceptable.” The
direct supervisor and the apprentice are then expected to
sign the monthly report. If an apprentice received three
unacceptable reports, NIPSCO's written policy required a
field evaluation to be conducted [DE 65-1 at 25]. However,
NIPSCO also claims that it had an unwritten
“process” of disqualifying an apprentice from the
program after three unacceptable reports. But, other than
Barnes, NIPSCO did not identify an apprentice lineman that
was disqualified for receiving three unacceptable reports and
without conducting a field evaluation.
undisputed that Barnes obtained his first unacceptable report
in August 2012 and his second unacceptable report in May 2013
while working for the line construction department [DE 58-1
at 49-53]. In June 2013, Barnes was advised that his
unacceptable reports put him at risk for disqualification
from the apprenticeship. Barnes voiced his disagreement with
the assessments of his performance, but he did not express
concerns associated with discrimination. It is the events
following his receipt of the first two unacceptable reports
which are central to Barnes' claims.
received acceptable reports from July through September 2013
[DE 62-3 at 2-3] and passed a field evaluation to ensure that
Barnes had the skills to work without supervision [DE 58-11].
In September 2013, Barnes was promoted to working in the
Goshen district as a Step 5 apprentice lineman, where he
reported directly to Johnese McKinney (African American), who
reported directly to Matthew Fleck (Caucasian), who reported
to Lou DeFelice (Caucasian). Per NIPSCO's written
policies, when an apprentice lineman in any operating
district reaches Step 5-like Barnes had-he “shall start
receiving his field training on standby work as his turn comes
up.” [DE 65-1 at 95]. Despite the written policy,
Barnes was not given the opportunity to be trained for
standby work [DE 58-1 at 33-34]. However, three other Step 5
apprentice linemen (who also transferred into the Goshen
district from line construction) were immediately afforded
training for standby work. In fact, one of them was
apparently offered the opportunity to actually perform
standby work immediately upon entering the district. It is
uncontested that of these Caucasian apprentice linemen, Sam
Eli, Brett Huff, and Mike Becker, none of them had
unacceptable monthly performance evaluations. NIPSCO had also
received complaints about Barnes and had documented concerns
from late 2013 indicating that maybe Barnes could not safely
perform the duties of a Step 5 apprentice lineman, which
included performing standby work often done without
these alleged concerns, Barnes received another acceptable
report on October 25, 2013 [DE 62-4]. Then in December 2013,
Barnes was involved in a verbal altercation with journeyman
lineman Brian Thomas (Caucasian). But once McKinney
intervened, Barnes was able to calm down and complete the job
with no safety issues noted [DE 58-10 at 2-4]. Later that
month and into January 2014, NIPSCO supervisors, including
Fleck, DeFelice, and Richard Brindley from the training
center, received complaints about Barnes' deficient
performance [DE 58-9 at 3, 12-15]. However, Barnes was not
informed of these other performance concerns until January
23, 2014. At that time, Barnes was advised that a meeting was
to take place the following day in order to discuss his
performance, aptitude, ability, and safety.
that meeting, the union representative and DeFelice discussed
putting Barnes on a separate Training Plan which would
require Barnes to work in Warsaw,  be subjected to weekly
reviews, maintain “[s]tellar performance, ” and
receive only acceptable monthly reports [DE 58-9 at 9-10].
Because it was apparently anticipated that Barnes'
November/December 2013 report would ultimately be marked
unacceptable, that particular monthly report would not count
against Barnes; rather, any further unacceptable report would
be cause for Barnes' disqualification from the
believes that the Training Plan made it easier to disqualify
him on primarily subjective measures spanning a month's
worth of work, as compared to the written policy (that
applied to the Caucasian apprentice linemen), which allowed
for disqualification only by failing to complete on-the-job
tasks or failing controlled performance evaluations. NIPSCO
does not offer evidence to contradict Barnes' assessment
that the Training Plan was more subjective in nature.
January 27, 2014, Barnes filed an internal complaint of
discrimination with NIPSCO. On February 18, 2014, an internal
investigation concluded that Barnes' claim of
discrimination on the basis of race was unsubstantiated. It
concluded that based on admissions made by Barnes during the
investigation [DE 58-1 at ...