United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
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.
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,
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].
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.
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
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).
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
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.
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.]
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),  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. [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.
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. [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.]
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. [ECF No. 57-4, p. 80.]
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. [ECF No. 57-11, pp. 5-6.]
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.]
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. [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),  Anthony Aster (Aster),  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. [ECF No. 57-2, p. 18; ECF No.
57-9; ECF No. 47-3, pp. 1-2; ECF No. 60-1, p. 1.]
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. [ECF No. 60-1, pp. 3-6.]
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.]
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,
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.]
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. [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. [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.]
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.
Q: So the mill's down, 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,
A: Right. Right.
Q: And then in the end it means it takes that much longer- A:
Q: -to get all these orders filled, 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?
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?
Q: It means higher profits-
Q: -because you get those orders out, and they're
purchased by those customers?
[ECF No. 57-1, pp. 82-84.]
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 ...