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Simelton v. Pilot Flying J

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

March 29, 2018

PILOT FLYING J, Defendant.



         I. BACKGROUND

         This case stems from the employment relationship between plaintiff Gary Simelton, pro se, and defendant Pilot Flying J. Plaintiff began working for defendant in 2004. (DE # 70-1 at 20-21, Pl. Dep. 68-69.) Plaintiff eventually became General Manager for the Subway restaurant inside a travel center in Gary, Indiana. (Id. at 25, Pl. Dep. 73.)

         In his amended complaint and the attached exhibits, plaintiff describes a series of incidents, beginning in 2007 and culminating in his 2014 resignation, that he believes amount to racial discrimination. (DE # 8.) The earliest allegations are that on December 4, 2007, Frank McClure, defendant's Director of Division 5, slapped plaintiff on the back of the head for an incorrect answer to a question. (Id. at 4.) Additionally, on September 9, 2008, Frank McClure made “racial sounds” mocking the nationality of another employee, Mr. Tegey. (Id.)

         Two years later, on September 21, 2010, a cashier called a customer “the N word.” General Manager Steve Alberts asked the cashier whey she did so, using the “N word” himself in the conversation. Plaintiff alleges that Alberts also called African Americans porch monkeys during this conversation. (Id. at 5.)

         Over a year later, a number of incidents occurred in early 2012, according to plaintiff. On January 16, 2012, Spencer McClure, General Manager at the time, stated over a headset: “How's my NWA people doing”; plaintiff interpreted the acronym “NWA” as standing for “Nigga With Attitude, ” and found the comment particularly insensitive as it occurred on Martin Luther King's birthday. (Id. at 4.) On January 25, 2012, Spencer McClure's wife asked plaintiff how his “little monkey” was doing, in reference to plaintiff's godchild. (Id.) On January 26, 2012, Spencer McClure started deleting plaintiff's emails and tasks, falsified plaintiff's responses in the system, and “fart[ed] near [plaintiff's] face.” (Id. at 7.) On February 16, 2012, Spencer McClure told another employee that he was not “hiring any more ghetto people here.” (Id. at 7.)

         Another two years passed without incident, but on January 27, 2014, Frank McClure issued plaintiff a letter outlining compensation changes for plaintiff's position, specifically with regard to bonuses and the “Partners in Profit” plan. (Id. at 8.) Plaintiff further claims that on March 6, 2014, plaintiff was told by Jeff Van Horne, Director of Food Services, he was not the right person to run Subway because of his sales, and needed to start looking for a new job. (Id. at 7.) On March 9, 2014, plaintiff resigned citing unbearable conditions (DE # 70-1 at 48), before the compensation structure change took effect. (DE # 70-1 at 36, Pl. Dep. 85:9-10.)

         The Equal Employment Opportunity Commission (“EEOC”) received plaintiff's Charge of Discrimination on July 9, 2014. (DE # 70-1 at 48.) Plaintiff was issued a right-to-sue letter by the EEOC (DE # 1 at 4), and he filed a complaint on January 28, 2015 (DE # 1) and an amended complaint on June 8, 2015. (DE # 8.) Plaintiff's amended complaint alleged that defendant had violated his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq. (“Title VII”) and the Equal Pay Act, 29 U.S.C. § 206, et seq. Plaintiff also alleged that defendant committed the torts of battery and intentional infliction of emotional distress (“IIED”). Defendant was granted judgment on the pleadings on plaintiff's Equal Pay Act and battery claims by Chief Judge Theresa L. Springmann on April 14, 2016. (DE # 33.) This case was reassigned to the undersigned on May 1, 2017. (DE # 55.)

         Defendant moved for summary judgment on August 16, 2017, simultaneously filing and serving a “Notice of Summary Judgment” to plaintiff, a pro se party, in accordance with this district's local rules. (DE ## 68, 71.) Defendant seeks summary judgment on plaintiff's Title VII and IIED claims. Plaintiff did not file a response. The motion is now ripe for ruling.


         Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Rule 56 requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). “[T]he burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325.

         Because plaintiff failed to file a response to defendant's motion for summary judgment, defendant is entitled to summary ruling on the motion - that is, a ruling without the benefit of plaintiff's response. However, plaintiff's failure to respond does not automatically result in summary judgment for defendant. Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 568 (7th Cir. 1992). Rather, the court must still “make the further finding that given the undisputed facts, summary judgment is proper as a matter of law.” Id. Accordingly, the court's task is to examine the factual record to determine whether defendant has met its burden of demonstrating a lack of genuine issues of material fact warranting summary judgment in its favor.

         III. ...

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