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Hope v. Arcelormittal Burns Harbor, LLC

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

February 4, 2019

DOROTHY HOPE, Plaintiff,



         This matter is before the Court on Defendant's Renewed Motion for Summary Judgment [ECF No. 56] filed by the Defendant, ArcelorMittal Burns Harbor, LLC. For the reasons set forth below, the motion for summary judgment is GRANTED. The clerk is DIRECTED to close this case.


         On December 30, 2013, the Plaintiff, Dorothy Hope (Hope), filed her complaint [ECF No. 1] pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq., as amended, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq., and 42 U.S.C. § 1981 (§1981). Hope alleges that she was hired by the Defendant, ArcelorMittal Burns Harbor, LLC (AM), in 1990 as a laborer. [Id. at 2.] Hope claims she was removed from her training by her supervisor who “stated that he wanted younger men on the mill, ” which prevented any possibility of promotion, on June 19, 2012. [Id.] She alleges that she has been denied, and continues to be denied, opportunity for training and advancement because of her sex, age, and race. [Id. at 2-4.] She also claims that she was retaliated against after she complained of the discrimination to AM and subsequently filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). [Id. at 4-5.] AM's Answer [ECF. No. 8] was filed on March 17, 2014.

         After the close of discovery, AM filed a motion for summary judgment [ECF. No. 33] on January 8, 2016, along with a memorandum and exhibits in support [ECF. No. 34]. On April 9, 2016, Hope filed her response in opposition [ECF No. 48] along with an appendix of additional materials [ECF. No. 47]. In it, as part of her argument, Hope pointed out that many of AM's allegedly undisputed facts were not supported by AM's designated evidence. [See ECF No. 48, pp. 2-7.] She also disputed AM's reliance on her failure to respond to AM's requests for admissions by stating that she was contemporaneously filing a motion to withdraw those admissions. [Id. at 5-6.] On April 12, 2016, AM filed motions for leave to substitute and/or supplement [ECF Nos. 49 & 50] several exhibits due to administrative filing errors in order to address Hope's arguments. Hope did not respond to these motions, but, on that same day, she filed a motion to withdraw admissions [ECF No. 51] pursuant to Federal Rule of Civil Procedure 36(b). AM filed its response [ECF No. 52] to Hope's motion on April 14, 2016. Hope filed her reply in support of her motion to withdraw admissions [ECF No. 53] on April 25, 2016. On May 2, 2016, AM filed its reply in support of its motion for summary judgment [ECF No. 54].

         After considering the matter as a whole, the Court denied the motion for summary judgment without prejudice and with leave to refile, denied the motions to substitute as moot, and granted the motion to withdraw admissions. [See ECF No. 55.] Subsequently, AM filed the instant renewed motion for summary judgment [ECF No. 56], along with a memorandum and exhibits in support [ECF No. 57] on November 17, 2016. On December 30, 2016, Hope filed a response [ECF No. 61] and appendix of additional materials [ECF No. 60] in opposition to AM's motion for summary judgment. Finally, on January 24, 2017, AM filed its reply in support of its motion [ECF No. 62]. The motion is thus ripe for adjudication.


         A. Standard

         Summary judgment must be granted when “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 genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. In determining whether summary judgment is appropriate, the court must construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). “However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citation omitted).

         While the movant bears the initial burden of production to inform the district court why a trial is not necessary, these requirements “are not onerous” where the nonmovant “bears the ultimate burden of persuasion on a particular issue.” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). A party may move for summary judgment based on either “affirmative evidence that negates an essential element of the nonmoving party's claim” or by “asserting that the nonmoving party's evidence [is] insufficient to establish an essential element of the nonmoving party's claim.” Id. at 1169 (citation and internal quotations omitted). A party opposing a properly supported summary judgment motion may not rely on allegations or denials in his own pleading, but rather, must “marshal and present the court with the evidence she contends will prove her case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). The nonmovant must inform the court of both the factual and legal reasons why summary judgment should not be entered. Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017). Courts are limited to the arguments presented in the parties' briefs; “[a]fter all, a lawsuit is not a game of hunt the peanut. Employment discrimination cases are extremely fact-intensive, and neither appellate courts nor district courts are obliged in our adversary system to scour the record looking for factual disputes.” Id. (internal quotation marks, citations, and ellipsis omitted).

         With regard to the assessment of the evidence that is presented, the Seventh Circuit has stated:

Admissibility is the threshold question because a court may consider only admissible evidence in assessing a motion for summary judgment. Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 533 (7th Cir. 2003) (inadmissible evidence will not overcome a motion for summary judgment). See also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) (evidence relied upon at the summary judgment stage must be competent evidence of a type otherwise admissible at trial). A party may not rely upon inadmissible hearsay to oppose a motion for summary judgment. See Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001) (inadmissible hearsay is not enough to preclude summary judgment); Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) (hearsay is inadmissible in summary judgment proceedings to the same extent that it is inadmissible in a trial); Bombard, 92 F.3d at 562 (inadmissible hearsay from an affidavit or deposition will not suffice to overcome a motion for summary judgment).

Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). Ultimately, if the nonmoving party fails to establish the existence of an essential element on which he bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

         B. Material Facts

         The following facts are taken from the parties' briefs and relevant evidentiary submissions; they are undisputed unless otherwise noted. At the time she filed her complaint, Hope, an African-American woman, was fifty-four years old. [ECF No. 1, p. 2; ECF No. 57-3, p. 16.] Hope began working in the steel industry in the late 1970s and began working for AM's predecessor companies during the 1990s, eventually making her way to the Tandem Mill, a component of AM's Finishing Division. [ECF No. 57-1, pp. 14, 22-23, 27-31; ECF No. 53-1, p. 2.] The Tandem Mill employees are part of the United Steelworkers of America and are covered by a collective bargaining agreement (the CBA). [ECF No. 57-7.]

         Within AM's Finishing Division, there are five salaried job positions: Utility Person (Labor Grade 1), Service Technician (Labor Grade 2), Operating Technician (Labor Grade 3), Maintenance Technician (Labor Grade 4), [1] and Senior Operating Technician (Labor Grade 5). [ECF No. 57-6, pp. 9-10; ECF No. 57-9.] The CBA dictates the rate of pay for each Labor Grade, and employees earn a higher rate of pay with each Labor Grade they move up. [ECF No. 57-1, pp. 34-36, 58-61.] Movement from one Labor Grade to another is determined by: (1) ability to perform the work and physical fitness; and (2) Plant Continuous Service, which is related to seniority.[2] [ECF No. 57-7, p. 9.] An employee is not qualified to move to a higher Labor Grade based on seniority alone; rather, an employee must successfully master each of the roles within a Labor Grade position before the employee is eligible for a promotion to a higher Labor Grade. [ECF No. 57-1, pp. 75-77; ECF No. 53-1, p. 3.] Seniority is not a function of age but rather how long the employee has been working at AM. [ECF No. 57-3, p. 21; ECF No. 57-6, pp. 32-33.]

         Hope began working in AM's Finishing Division in a Labor Grade 2 position, and she moved up to a Labor Grade 3 Operating Technician position by the early 2000s. [ECF No. 57-1, pp. 29-34, 45-46; ECF No. 53-1, p. 2; ECF No. 57-9.] As of the date of the filing of the instant motion, Hope was still employed in a Labor Grade 3 position.[3] [ECF No. 53-1, p. 2.] Within Hope's Labor Grade 3 Operating Technician position's line of progression, there are several assignments that an employee must learn, in order from easiest to most difficult, including Process Helper (PO), Feeder, Auxiliary 2 (Aux 2), and Auxiliary 1 (Aux 1). [ECF No. 57-1, pp. 42-46, 60-61; see also ECF No. 57-9.] The next assignment after Aux 1 is Assistant Roller (Asst Roller) followed by Roller, both of which are Labor Grade 5 Senior Operating Technician positions. [ECF No. 57-9.] Employees with seniority are given the first opportunity to train for new assignments. [ECF No. 57-1, pp. 72-74.] An employee is trained to perform the essential functions of an assignment, and once an employee masters those functions they are considered qualified for that assignment. [ECF No. 57-1, p. 62.] If an employee cannot master the essential functions of an assignment after training, he or she may not move to the next assignment. [ECF No. 57-1, pp. 75-78.] Moreover, if an employee cannot perform the essential functions of an assignment, he or she is disqualified from it. [ECF No. 57-6, p. 29.]

         As a Labor Grade 3 Operating Technician, Hope first served as a PO and then became a Feeder in approximately 2005, where she served for many years. [ECF No. 57-1, pp. 33-34, 46, 87.] However, as of the date of her deposition on May 5, 2015, Hope was serving in the PO assignment and does not dispute that she was still serving in that position as of the date of the filing of the instant motion and her response brief.[4] [ECF No. 57-4, p. 80.]

         From September 2007 to May 2012, John King (King) was the Operation Manager of the Tandem Mill. [ECF No. 57-10, p. 10.] In the spring of 2012, Jim Velto (Velto) took over for King as Operation Manager. [ECF No. 57-6, pp. 9, 42.] The Operation Manager and Process Manager determine who trains for particular assignments. [ECF No. 57-6, p. 10.] An employee who is training for a new assignment is assigned a veteran employee who typically supervises that trainee for the duration of the training. [ECF No. 57-6, p. 10.] However, throughout the process, the Operation and Process Managers continue to observe the trainee and solicit feedback from the veteran employee as to whether the trainee is qualified or progressing at the appropriate rate. [ECF No. 57-6, pp. 10-11.] AM has the ability to track productivity and diminished production, and it maintains expectations for the time it generally takes an employee to qualify on each assignment.[5] [ECF No. 57-11, pp. 5-6.]

         The Aux 2 and Aux 1 assignments require an employee to operate a set of controls to shape the coil to the customer's specifications. [ECF No. 57-4, pp. 25-28.] The Aux 2 assignment involves steering the strip of steel straight as it goes through the mill; then the Aux 1 assignment takes over, making sure that the strip is straight and is fed to the next part of the process. [ECF No. 57-10, p. 24.] A document entitled “Time Limits for Training” sets forth limits based on “the training programs at integrated steel mills with similar operations.” [ECF No. 57-11, p. 5; ECF No. 57-12.] It lists the training period for the Aux 2 and Aux 1 assignments as eight weeks each. [ECF No. 57-12.] As pointed out by Hope, this document was published by Velto on June 12, 2012. [ECF No. 57-11, p. 5; ECF No. 57-12.] Prior to that date, King testified that there “wasn't a set time” for an employee to complete the training, but that AM had a “time that we thought” it would take. [ECF No. 57-10, p. 19.] Hope trained on the Aux 2 assignment from November 7, 2011, through January 7, 2012, for approximately nine weeks, and she trained on the Aux 1 assignment from January 22, 2012, through April 4, 2012, for about 10 weeks. [ECF No. 57-11, p. 5.] AM contends that both training periods were longer than typical, and Hope responds by pointing out that the official standards were not instituted until after her training periods had ended. Regardless of the official standards set forth by Velto in the “Time Limits for Training” document, King testified that he “actually gave [Hope] more training time than I have anybody on a job, ” and Hope unequivocally admitted in her responses to AM's requests to admit that she received “extra training” on the Aux 2 and Aux 1 assignments. [ECF No. 53-1, p. 1; ECF No. 57-10, p. 43.]

         Related to that training, King affirmed that the progression generally moves from Aux 2 to Aux 1; as to Hope's movement between the two Auxiliary assignments he testified:

In my mind, you have to be qualified in both of them to be actually qualified to do an auxiliary job. There's the second aux, and then there's the first aux. We started [Hope] on the second aux, and she took a while. We-she did work the job at times. I thought if she learned some of the first aux, it would help her on the second aux job. And it didn't seem to be progressing the way I wanted it to. . . . [As to the progression], I didn't personally break them down. I thought-my philosophy was you have to know both auxiliary positions to be qualified at the aux job. . . . I'm not going to say that she became qualified as an auxiliary, because I looked at the auxiliaries as one position, but in two stages to that one position. Could she-did she work that job? Yeah. Did she need some help? Yeah. . . . But she never got to the first auxiliary at least when I was there. We would start it-because in my mind I thought, well, if she understood a little bit more about some of the first auxiliary, it would help her with what she was doing on the second auxiliary. That's why- and not just for Ms. Hope, for anybody, that job, you weren't really qualified until you could do both jobs. Now, after I left, I don't know how they did it.

[ECF No. 57-10, pp. 23-24, 38-39.] Hope and Velto each testified that Hope had technically been considered qualified in the Aux 2 assignment at some point prior to Velto becoming Operation Manager. [ECF No. 57-2, p. 18; ECF No. 57-6, p. 13.] In any event, Hope was removed from the Aux 1 training assignment because, according to King, she “didn't seem to be picking it up real well, ” and he was unsure if Hope had the capability to do so despite being assigned an additional hourly trainer, Ron Crosslin (Crosslin), to help teach her the functions of the job. [ECF No. 57-10, p. 21-23.] Specifically, King testified that Hope was unable to competently perform several required tasks such as leveling the mill, inspecting the top side of the strip for defects, and consistently making the strip shape as flat as possible. [ECF No. 57-10, p. 53; ECF No. 57-13, p. 2.] Although King testified that Hope could do the work “at times, ” he went on to state that it needed “[l]ots more work” overall and that he had already given Hope “above and beyond what I thought-more than anybody.” [ECF No. 57-10, p. 53.] In addition, King testified that Hope had “incidents”-one of which was documented-with employees who were working with or training her. [ECF No. 57-10, pp. 20-21, 40-45, 49-51.] During his deposition, King also indicated that several managers, including Mark Wray (Wray), John Cowger (Cowger), and Jay Gustafson (Gustafson), had told him they believed that Hope was responsible for a drop in production.[6] [ECF No. 57-10, pp. 35-37.] Hope testified that King told her the removal from Aux 1 was because younger, male, and/or Caucasian members of the Auxiliary crew had blamed her for the low production; however, she claims that when confronted as a group with both King and Hope present, the crew-including Russell E. Harris (Harris or Bubba), [7] Anthony Aster (Aster), [8] and David Harmon (Harmon)-informed King the real reason for the low production was because AM had taken away their incentive pay. [ECF No. 57-2, pp. 18-21.] That said, Hope confirmed that, at least as of November 19, 2014-the date of her first deposition-the incentive pay structure had not reverted back to its original numbers and employees were still “de-incentivized.” [ECF No. 57-4, pp. 14-15.] Hope also testified that, in her opinion, the crew members did not want her to qualify for Aux 1 because her next assignment would be that of Assistant Roller, a Labor Grade 5 position; she points out that Harris, Aster, and Harmon have now all qualified ahead of her.[9] [ECF No. 57-2, p. 18; ECF No. 57-9; ECF No. 47-3, pp. 1-2; ECF No. 60-1, p. 1.]

         According to Hope, hundreds of tons of steel were rejected while the following individuals were at the Aux 1 assignment-costing AM over $700, 000-yet they were not disqualified: Harmon, Brian Richa (Richa), Berris Samuels (Samuels), and Michael Silhavy (Silhavy). [ECF No. 47-3, pp. 1-2, 8.] In support of this contention, she points to a partially obscured, undated, unsigned document allegedly distributed by Velto that attributes the rejection to “steel on the rolls” which is commonly caused by a “damaged tail going through the mill with roll force on that mill.” [ECF No. 47-3, p. 8.] The Quality Assurance department was asked to make a list of dates and times the coils were produced, but it is not clear from the document what the result of that inquiry was. [ECF No. 47-3, p. 8.] In addition, Hope attests that “turn operation reports” show gap times listed as “delays, ” damage to the tail, and pinched tails. [ECF No. 60-1, p. 1.] The referenced reports-which appear to contain hand-written explanatory notations-are from three days in November 2016 and do not mention Hope or any of the employees listed above; in fact, the only positions noted are those of Foreman, Roller, and Recorder.[10] [ECF No. 60-1, pp. 3-6.]

         Hope was scheduled to begin an Aux 2 assignment again on April 12, 2012; prior to that date though, she filed a grievance and, as part of a settlement, was ultimately reassigned to Aux 1 training in May of 2012. [ECF No. 57-11, p. 5; ECF No. 57-2, p. 32-33; ECF No. 57-10, pp. 24- 25.] However, King left his position as Operation Manager before Hope could resume Aux 1 training. [ECF No. 57-10, p. 25.]

         When Velto began as Operation Manager, he was tasked with improving the quality, safety, and performance of the Tandem Mill, and he was asked by AM to recommend any necessary changes. [ECF No. 57-6, p. 28.] Velto testified that he had watched Hope at the Aux 2 assignment for several weeks, [11] and he had determined that she was “very unsure of how to improve the shape or steer the strip, ” that she ignored his suggestions for improvement and responded with profanity, and that he found her to be a lazy, argumentative, and incompetent worker. [ECF No. 57-6, pp. 12-13, 21, 28-29.] He further testified that several other employees assigned to Auxiliary positions “were very open to [his] input on how to improve their performance, and they got progressively better by . . . working together.” [ECF No. 57-6, p. 28.] According to Velto, he observed that Hope's deficiencies negatively affected productivity. [ECF No. 57-2, p. 24; ECF No. 57-6, pp. 12-13.]

         With regard to her own evaluation of her performance, Hope admitted that she was observed doing what she considered “little things” incorrectly, but she insisted that it was because several of her trainers-Harmon, Aster, and Harris-had shown her the wrong way to perform those tasks.[12] [ECF No. 57-2, pp. 26-29.] Hope contends that other African-American employees were not adequately trained either. In support of her argument, she points to Samuels who attests that when he trained for the Aux 2 and Aux 1 assignments, his Caucasian trainer did not provide him with adequate training; instead he had to rely on a fellow veteran to show him how to slow the mill down to avoid wrecks. [ECF No. 60-2, pp. 1-2.] Despite his allegedly improper training, the materials Hope submitted with her affidavit show that Samuels not only qualified at Aux 2 and Aux 1 but that he also advanced beyond those assignments to become qualified for Asst Roller.[13] [ECF No. 47-3, pp. 1-2, 4-5.] In addition, Hope submits the affidavit of William Brooks (Brooks), an employee at AM since 2001; in it, Brooks attests that he observed Hope during her training on the Auxiliary assignments “without any training personnel present” and that she “performed the Auxiliary position without supervision.” [ECF No. 60-3.] Brooks does not provide any information as to the days and times he observed Hope, nor does he attest that he was present during the entirety of her various training periods. Moreover, Brooks' affidavit contradicts Hope's own sworn testimony wherein she stated that she was trained by various individuals-albeit allegedly incorrectly-and was observed by Velto and Crosslin while on the Aux 2 assignment. [See ECF No. 57-2, pp. 24-29.]

         Statistically speaking, computers attached to the machines Hope works/worked on track and record production metrics, including average gap times between coils. [ECF No. 57-4, pp. 11-13.] When asked about the negative results of production mistakes, including those that would cause mill shut-downs, Hope testified as follows:

Q: When those kinds of things would happen, I'm sure-it sounds like there would be a negative result of that?
A: You know, you stopping the mill. The mill ain't running, you ain't producing.
You're down.
Q: So the mill's down, right?
A: Right.
Q: Then it takes time to get it back going?
A: Oh, yes.
Q: So then that's-that's a loss of production time, right?
A: Right. Right.
Q: And then in the end it means it takes that much longer- A: Right.
Q: -to get all these orders filled, right?
A: Right.
Q: And does that consequently loss of time equate to a loss of money too?
A: Yes, because you not getting the right amount of tons that the mill expect you to get.
Q: So it sounds like there's a quota you try to reach every day on tons rolled through the mill?
A: Right.
Q: Which translates then to dollars?
A: Right, for the mill.
Q: So the more and the quicker you can run these coils through, that's a higher productivity, right?
A: Right.
Q: It means higher profits-
A: Right.
Q: -because you get those orders out, and they're purchased by those customers?
A: Right.

[ECF No. 57-1, pp. 82-84.]

         According to AM, Hope's performance problems caused documented production delays, resulting in losses; specifically, with Hope working in the Aux 2 and Aux 1 assignments from April 12, 2012, through June ...

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