United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Patrick Hanlon United States District Judge
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.
Facts and Background
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
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.
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.
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.
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.
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.
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.
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.
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.
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). Dkt. 1. Nice-Pak has moved
for summary judgment on all claims. Dkt. 28.
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).
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. § 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