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Odongo v. Brightpoint North America, L.P.

United States District Court, S.D. Indiana, Indianapolis Division

September 21, 2018

PETER ODONGO, Plaintiff,



         This matter is before the Court on the Motion for Summary Judgment (Filing No. 68) filed by Defendant Brightpoint North America, L.P. d/b/a Ingram Micro Mobility (“Ingram”). Plaintiff Peter Odongo (“Odongo”), pro se, filed this action asserting hostile work environment, discrimination, and retaliation based on race (Black) and national origin (Ugandan). The Amended Complaint also contains sections titled “Invasion of Privacy” and “Fraud”. Ingram asserts that Odongo's claims fail as a matter of law. For the reasons stated below, the Motion for Summary Judgment is granted.

         I. BACKGROUND

         The following facts are not necessarily true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Odongo as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         Brightpoint North America, L.P. does business as Ingram Micro Mobility. (Filing No. 70-1 at 1.) Ingram contracts with Elwood Staffing Services (“Elwood”) for staffing solutions for temporary workers. (Filing No. 70-1 at 2.) Elwood subcontracts with CoWorx Staffing Solutions (“CoWorx”) for temporary workers. (Filing No. 70-2 at 7.) Odongo was employed by CoWorx and received his paycheck from CoWorx. (Filing No. 70-2 at 8.)

         On September 15, 2014, Odongo was assigned to work at Ingram. (Filing No. 70-2 at 68- 69.) He participated in an orientation at Elwood at which time he was informed that if he experienced any harassment, he should report it to the supervisors and managers at Ingram or to the Elwood agents at Ingram. (Filing No. 70-2 at 8, 9, 18.) Ingram has policies prohibiting discrimination, harassment, and retaliation, and encouraging mutual respect. (Filing No. 70-1 at 2.)

         Odongo first worked on the assembly line at Ingram doing packaging. (Filing No. 70-2 at 19.) His supervisor was Marie Armstrong (“Armstrong”), an African-American. (Filing No. 70-2 at 19.) Thirty-five workers were in the assembly department; one-third of them were African immigrants and the rest were Asian. (Filing No. 70-2 at 19-20.) In late 2015, Odongo was moved to the outbound department; the majority of the workers in that department were also Black or Asian. (Filing No. 70-2 at 20; Filing No. 70-3 at 2.) Odongo's supervisor in the outbound department was Carl Britt (“Britt”). (Filing No. 70-3 at 1.)

         On May 26, 2015, Odongo was working on the automation line when a supervisor instructed him to take a break; Odongo refused to take a break. (Filing No. 70-3 at 15-16.) Odongo explained he was “dealing with some issues” and mad that day because of being “harassed and laughed at in the workplace” and he admitted he was insubordinate and deserved disciplinary action. (Filing No. 70-3 at 16.) However, he does not believe his actions warranted termination. Id. Odongo also admitted to exchanging “words” with the supervisor. (Filing No. 70-3 at 16.) That supervisor summoned Armstrong for assistance, but Odongo also refused to listen to her. (Filing No. 70-3 at 17.) Armstrong then summoned Britt who escorted Odongo out of the building and asked for his security badge. (Filing No. 70-3 at 17.)

         The next day, on May 27, 2015, CoWorx advised Odongo that his job assignment at Ingram was terminated. (Filing No. 70-2.) According to Ingram's Senior Manager-Field HR at the facility where Odongo worked, Bryan McGinnis, Odongo's assignment at Ingram was terminated as a result of the incident the day before in which Odongo was insubordinate and refused to take a break when instructed to do so. (Filing No. 70-4 at 1.)

         Odongo alleges he was subjected to ten forms of harassment while he worked at Ingram: (1) offensive jokes, (2) surveillance, (3) staring, (4) stalking, (5) noise from dropping pellets, (6) a dirty workspace left from the prior shift, (7) a broken scan gun, (8) the turning on and off of lights, (9) poor water, and (10) noxious fumes. (Filing No. 70-3 at 3-4, 18, 19.) Although Odongo claims the jokes were offensive, he testified that he could not hear or understand any of them except for one which was, “All right. All right. All right. You're going to learn today.” (Filing No. 70-3 at 5-6.) Regarding the surveillance, Odongo said it was “from hidden cameras-or not hidden cameras. I'm not sure.” (Filing No. 70-3 at 7.) Odongo also alleged that other employees stalked him by going to the restroom at the same time he did; however, he could not name a single employee who did so. (Filing No. 70-3 at 12.) He explained that “all of a sudden everyone suddenly wants to go use the restroom.” (Id.)

         As for the excessive noise, Odongo stated that the forklift drivers made beeping or honking noises while driving around the warehouse when he was at his workstation. (Filing No. 70-3 8.) He acknowledged that this happened to other employees, too, “[t]hough not as excessively compared to [him].” (Id.) In addition, pallets were dropped “mostly” “far away, ” causing alarms to go off because an item was stacked in error. (Filing No. 70-3 at 9.) Moreover, employees who worked the shift before Odongo's shift, would not clean the workstation after their shift, leaving the workstation messy for him. (Filing No. 70-3 at 10-11.) Odongo's scan gun ran out of WiFi frequently and would not scan properly, leaving him unable to perform his work. (Filing No. 70-3 at 11-12.) And at times, the lights in the warehouse would go off. (Filing No. 70-3 at 12.) When Odongo used the drinking fountain, the stream of water would lower when he was trying to take a drink. (Filing No. 70-3 at 15.) On one occasion, he drank from the fountain and his body started to overheat and he experienced pain. (Filing No. 70-3 at 18.) Finally, Odongo said that he was subjected to noxious fumes, but he did not complain to anyone in management at Ingram about the water or fumes. (Filing No. 70-3 at 19.)

         The only time Odongo complained about the harassment was to Armstrong in December 2014. (Filing No. 70-3 at 14.) He testified, “I reported the one incident where the employee was using his tape machine to, like, to make noise with me, and looking at me and laughing while he imitates me . . . . [t]hen the other harassment was staring . . . . [and] the stalking activities.” (Filing No. 70-3 at 13.) After complaining, in late 2014, Odongo was moved from the assembly department to the outbound department. (Filing No. 70-2 at 20.) The outbound department was “pretty far” away from the assembly department and had a different group of employees. (Filing No. 70-3 at 1.) Finally, Odongo's only complaint to anyone during his employment at Ingram was to Armstrong; he did not complain to anyone else at Ingram about harassment or discrimination. (Filing No. 70-3 at 14.)

         Odongo's Amended Complaint is the operative complaint. (Filing No. 34.) It alleges claims under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. In particular, the Amended Complaint alleges racial and national origin discrimination, retaliation, and a hostile work environment. It also attempts to assert claims under state law for invasion of privacy and fraud. Ingram filed its Motion for Summary Judgment, seeking summary judgment on all of Odongo's claims.


         Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court views “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party's favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). In addition, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox Cty. Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).

         “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Indeed, a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“these are jobs for a factfinder”). “Instead, when ruling on a summary judgment motion, a court's responsibility is to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Wanko v. Bd. of Trs. of Ind. Univ., No. 1:16-cv-02789-TWP-DML, 2018 WL 3631579, at *2 (S.D. Ind. July 30, 2018), appeal filed, No. 18-2767 (7th Cir. Aug. 15, 2018).

         “A ‘material fact' is one identified by the substantive law as affecting the outcome of the suit.” Bunn v. Khoury Enterps., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).


         Ingram moves for summary judgment on all of Odongo's claims. Ingram argues that: (1) it was not Odongo's employer; (2) Odongo cannot show that he was subjected to harassment based on his race or national origin or that the alleged harassment was sufficiently severe or pervasive; (3) Odongo cannot establish a prima facie case of discrimination or retaliation, and even if he could, he cannot show that its stated reason for terminating his employment was pretext; and (4) it should be granted summary judgment on the invasion of privacy and fraud claims. The Court will address each in turn.

         A. Employer Status

         As an initial mater, Ingram argues that it cannot be held liable for Odongo's Title VII and Section 1981 claims because Odongo was employed by CoWorx and/or Elwood, not Ingram. Putting aside the fact that Section 1981 is not limited to employers and prohibits any person from discriminating in a contractual relationship, (Lopez v. Union Tank Car Co., 8 F.Supp.2d 832, 837 (N.D. Ind. 1998)), Ingram's position is unavailing. While only an “employer” may be held liable under Title VII, (Robinson v. Sappington, 351 F.3d 317, 332 n.9 (7th Cir. 2003)), for Title VII purposes, a plaintiff can have more than one employer. Frey v. Coleman, No. 17-2267, ___ F.3d ___, 2018 WL 4327310, at *3 (7th Cir. Sept. 11, 2018);Sklyarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 895 (7th Cir. 2015). The question is whether the alleged employer “exerted significant control over the employee.” Whitaker v. Milwaukee Cty., Wis.,772 ...

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