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Friend v. Nice-Pak Products, Inc.

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

June 13, 2019

MARCUS FRIEND, Plaintiff,
v.
NICE-PAK PRODUCTS, INC., Defendant.

          ORDER DENYING MOTION FOR SUMMARY JUDGMENT

          James Patrick Hanlon United States District Judge

         Defendant, Nice-Pak Products, Inc. (“Nice-Pak”), fired Plaintiff, Marcus Friend, after he threatened to put one of his coworkers “in the concrete.” Mr. Friend sued Nice-Pak for discrimination and retaliation under Title VII, alleging that he was punished more severely than other employees because he is white and complained of discrimination. Nice-Pak moved for summary judgment. Because Mr. Friend has presented enough evidence to raise triable issues, the Court DENIES the motion. Dkt. [28].

         I. Facts and Background

         Because Nice-Pak has moved for summary judgment under Rule 56(a), the Court views and recites the evidence in the light most favorable to Mr. Friend and draws all reasonable inferences in Mr. Friend's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Nice-Pak is global manufacturer of wet-wipe products. Dkt. 29-8 ¶ 3. It operates a plant in Mooresville, Indiana where Kristina Fox acts as the Human Resources Manager. Dkt. 29-2 at 9:12-16; dkt. 29 at 2. One of Ms. Fox's duties is enforcing Nice-Pak's Workplace Violence Policy (the “Violence Policy”), which states that all workplace violence, including any threats of harm, is treated with zero tolerance. Dkt. 29-4. Violators are “subject to disciplinary action, up to and including immediate termination.” Id.

         Mr. Friend is a white male who worked for Nice-Pak at the Mooresville location between July 2015 and November 2016. Dkt. 29-1 at 44:15-22; dkt. 29-2 at 47:1-3. Shortly after he was hired, he heard that two white employees were fired for racing forklifts. Dkt. 29-1 at 12:20-24, 17:5-9. His supervisor told him that any horseplay with the equipment would result in automatic termination. Id. at 16:4-19. Then, in October 2016, Mr. Friend witnessed a Hispanic employee drive a forklift around the worksite, blowing the horn and doing donuts for two to three hours. Id. at 34:17-37:14. The employee pulled a makeshift mannequin behind the forklift with a noose around the mannequin's neck saying that was how he would treat “skinheads” on Halloween. Id. at 34:17-35:4, 40:1-17. Nice-Pak gave the employee a written warning for this behavior, dkt. 29-2 at 73:14-74:9, leading Mr. Friend to believe that Nice-Pak punished the white employees more harshly than the Hispanic employee for the same conduct, dkt. 29-1 at 63:18-64:4.

         An African-American employee, Mr. Phillips, believed that Mr. Friend told their supervisor about the Hispanic employee's antics. Mr. Phillips called Mr. Friend “a snitch” and warned Mr. Friend's coworkers that Mr. Friend would tell on them. Id. at 87:14-23, 119:22-120:7. Comments like these continued for several weeks, with Mr. Phillips lamenting that he had to work with “snitches” and claiming that Mr. Friend was wearing a wire. Id. at 27:20-28:8, 66:7-19.

         The situation culminated when Mr. Friend heard Mr. Phillips say he would shoot a white person who told on him if it caused him to lose his job. Id. at 65:22-66:6.

         Distressed by these comments, Mr. Friend called Ms. Fox to report the behavior on the Tuesday before Thanksgiving. Id. at 13:19-14:20. He left a message saying:

Krista [sic] Fox, it's Marcus Friend. I need to hear from you today because it's fixing to go down tonight. If I don't hear from you today, so, because I'm putting somebody down in the concrete tonight, if I don't hear from you tonight. Give me a call . . . . I need to hear from you today, ‘cause this is serious. This has been going on for eight months, the issue. It's either be separated or I'll go another route.

Id. at 55:20-56:8.

         Ms. Fox called Mr. Friend the next day, and when Mr. Friend missed the call, she left a message saying she was out of the office on vacation over the Thanksgiving weekend. Id. at 12:5-11. When Mr. Friend called her back, he was not able to reach her. Id. at 12:12-24. On the Monday after Thanksgiving, Mr. Friend and Ms. Fox finally spoke over the phone and Mr. Friend told Ms. Fox that he believed the white employees who had raced the forklifts were treated unfairly and that he could not work in the “hostile environment” created by Mr. Phillips's harassment. Id. at 12:15-13:18. Ms. Fox told him that she was “sorry to hear that.” Id. at 13:17-18.

         Unsatisfied with that response, Mr. Friend went to Ms. Fox's office the next day. Id. at 62:4-65:10. Mr. Friend reported Phillips's claim that he would shoot a white coworker who got him in trouble. Id. at 65:22-66:6. Again, he mentioned that the Hispanic employee was not fired for misusing the equipment and said that he believed the employee was given less severe discipline because he was not white. Id. at 63:18-64:16. He also mentioned that another coworker had been putting grease on the equipment, and he told Ms. Fox that he was “going to hurt” this employee if the pranking continued. Id. at 68:24-69:10. By the end of the conversation, Mr. Friend believed Ms. Fox was not taking his complaints seriously, so he asked for the phone number of her supervisor, Ms. Pirozzi. Id. at 72:5-22; dkt. 29-2 at 20:3-6.

         Later that day, Mr. Friend had a phone conversation with Ms. Pirozzi. Dkt. 29-1 at 73:12-19. She offered to arrange a meeting between Mr. Friend, Mr. Phillips, and Ms. Fox, but Mr. Friend rejected this offer. Id. at 75:18-76:20. Mr. Friend asked if he could be moved to the day shift, but Ms. Pirozzi denied this request. Id. at 76:18-77:15.

         The next day, Ms. Fox called Ms. Pirozzi and the director of security to get their opinion on the next steps they should take to address Mr. Friend's threat. Dkt. 29-2 at 47:25-48:8. Together, they decided to terminate Mr. Friend. Id. at 47:1-19. According to Nice-Pak, Mr. Friend was terminated because of the threats he made to his coworkers in his voicemail and during his meeting with Ms. Fox. Id. at 65:12-21; dkt. 29-7. Mr. Phillips was not disciplined for threatening to shoot a white coworker who told on him. Dkt. 29-2 at 70:6-23.

         On September 1, 2017, Mr. Friend filed a complaint against Nice-Pak under Title VII, alleging that he was terminated because of his race (Count I) and was retaliated against for reporting discrimination (Count II).[1] Dkt. 1. Nice-Pak has moved for summary judgment on all claims. Dkt. 28.

         II. Applicable Law

         Summary judgment shall be granted “if the movant shows 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). The moving party must inform the court “of the basis for its motion” and specify evidence demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this burden, the nonmoving party must “go beyond the pleadings” and identify “specific facts showing that there is a genuine issue for trial.” Id. at 324. In ruling on a motion for summary judgment, the Court views the evidence “in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Zerante, 555 F.3d at 584 (citation omitted).

         III. Analysis

         Mr. Friend alleges Nice-Pak discriminated against him on the basis of his race and retaliated against him. Title VII prohibits an employer from discharging an employee because of that person's race, among other grounds. 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits an employer from retaliating against an employee “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” conducted under Title VII. Id. ยง 2000e-3(a). Nice-Pak claims it is entitled to summary judgment because there is no evidence that Mr. Friend's race or complaints of ...


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