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Barnes v. Northern Indiana Public Service Company

United States District Court, N.D. Indiana, Hammond Division

July 18, 2017

CORNELIUS BARNES, JR., Plaintiff,
v.
NORTHERN INDIANA PUBLIC SERVICE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         This is 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.

         As a 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.

         For the 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 Barnes' motion.

         I. STANDARD OF REVIEW

         On 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).

         Finally, 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).

         II. FACTS

         Since 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.

         Throughout 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.[1]

         It is 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.

         Barnes 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[2] 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 supervision.

         Despite 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.

         During that meeting, the union representative and DeFelice discussed putting Barnes on a separate Training Plan which would require Barnes to work in Warsaw, [3] 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 apprenticeship. Id.

         Barnes 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.

         On 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 ...


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