Not Reported in F.Supp.2d, 1998 WL 951688 (E.D.Wis.) (Cite as: 1998 WL 951688 (E.D.Wis.))

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United States District Court, E.D. Wisconsin. Larry RICHMOND, Plaintiff,

v. VICTOR PRODUCTS DIVISION, Dana

Corporation; and ABC Insurance Co., Defendants.

No. CIV.A. 97–C–259. Sept. 22, 1998.

Janet L. Heins, Heins Law Office, Mequm, for Plaintiffs.

Stephen B. Mead, Ross & Hardies, Chicago, IL, for Defendants.

DECISION AND ORDER GRANTING DEFEND- ANT VICTOR PRODUCTS DIVISION, DANA CORPORATION'S MOTION FOR SUMMARY

JUDGMENT REYNOLDS, District J.

*1 Plaintiff Larry Richmond (“Richmond”), a black male, alleges that he was subjected to a hostile work environment and terminated by defendant Victor Products Division, Dana Corporation (“Dana”), because of his race. Before the court is Dana's motion for summary judgment. For the following reasons, the motion will be granted.

FN1 BACKGROUND

FN1. The background facts are taken from the parties' proposed findings of fact. See Local Rule 6.05 (E.D.Wis.). When there is no objection to proposed findings of fact, the court accepts them as true. Local Rule 6.05(d). In the background section, undisputed background facts do not contain citations; disputed facts do. As to disputed facts, the court reviewed the portion of the record cited in support. Any factual statements which are disputed and do not have support in the record were disregarded

by the court for purposes of this decision. If a disputed fact proposed by Richmond is supported by the portion of the record cited, the court, for purposes of deciding this summary judgment motion, accepts Richmond's version as true.

On August 21, 1995, Dana hired Richmond to work as a Gasket Technician in its Milwaukee, Wisconsin, facility. James Newman (“Newman”), Dana's Human Resources Manager, made the decision to hire Richmond. Newman wanted Richmond to succeed, especially because Richmond's sister had worked for Dana for twenty-five years. (Def.'s June 19, 1998

Proposed Finding of Fact FN2

(“DPFOF”) ¶ 3. )

FN2. Richmond objects to this proposed finding of fact, but the evidentiary support cited for the objection does not contradict the proposed finding.

All new hires have a six-month probationary period, during which an employee is allowed three Occurrence points of absence. (DPFOF ¶¶ 6 and 7. FN3

) Occurrence points are calculated as follows. An absence, whether excused or not, is counted as one occurrence point. A one-half occurrence point is given for tardiness, leaving work early, or being absent on a Saturday. Absences on consecutive days with a legitimate medical excuse are counted as one occurrence point. Occurrence points are not accumulated for days taken off for bereavement, for worker's compensation injuries, or under the Family

FN4 Medical Leave Act. (DPFOF ¶ 8. ) Dana's Human Resources Department keeps attendance records, including when an employee is absent, tardy, or leaves work early. If an employee accumulates more than three occurrence points, he or she is subFN5 ject to termination. (DPFOF ¶ 7. ) Richmond received a copy of Dana's Absenteeism Policy, read it, and acknowledged that he understood it.

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Not Reported in F.Supp.2d, 1998 WL 951688 (E.D.Wis.) (Cite as: 1998 WL 951688 (E.D.Wis.))

FN3. Richmond objects to this proposed finding of fact, stating that Richmond's probationary period was extended by two months. Dana, however, may extend a probationary period in its discretion. (DPFOF ¶ 11, undisputed.)

Richmond also states that the probationary period is ninety days, except for attendance. The evidentiary support cited is not contained in the court's copy, but regardless, that fact is irrelevant for present purposes.

FN4. Richmond objects to this proposed finding of fact, but the evidentiary support cited for the objection does not contradict the proposed finding.

FN5. Richmond objects to this proposed finding of fact, but the evidentiary support cited for the objection does not contradict the proposed finding.

It is undisputed that Richmond received low marks on his performance evaluations (of which he had several), and that his supervisor discussed the low marks with him. (DPFOF ¶¶ 33 and 36, undisputed.) Because of the poor performance evaluations, Newman extended Richmond's probationary period by two months, from February 21, 1996, to April 21, 1996, so that Richmond could continue to be evaluated on a monthly basis. (DPFOF ¶ 34.) Richmond was also transferred to a different department in January 1996; his productivity improved after the transfer.

Richmond was absent on February 13, 1996, telephoned Dana to notify Dana of his absence, vis- ited his doctor because he had gotten chemicals in FN6 his eye at work, and submitted a doctor's excuse to Dana. (Pl.'s July 21, 1998 Proposed Finding of Fact (“PPFOF”) ¶ 1.) There is nothing in the record to suggest that Richmond attempted to initiate a worker's compensation claim.

FN6. Dana objects to this proposed finding of fact, but offers no evidentiary support for the objection.

Prior to Richmond's February 13 absence, Dana's records indicated that Richmond had been late five times, resulting in two and one-half occurrence points. Newman alone made the decision to terminate Richmond, and did so on February 16, 1996, less than six months after Richmond was hired and during his probationary period. Newman states that the decision to terminate Richmond was based solely on Richmond's accumulation of more than three occurrence points during his probationary period (the five tardy arrivals and one absence, for a total of three and one-half occurrence points).

DISCUSSION Summary Judgment Standard

*2 The court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions, and affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of asserting the absence of any dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those facts which, under the governing substantive law, “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To withstand summary judgment, however, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial .” Fed.R.Civ.P. 56(e). Even if some facts are in dispute, entry of summary judgment is in order if the movant either establishes uncontroverted facts entitling it to summary judgment or demonstrates that the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it will bear the burden of proof at trial. Celotex at 322–23. The court must draw all reasonable inferences from the record in favor of the nonmoving party. Cincinnati Ins. Co. v. Flanders Elec.

Motor Serv., 40 F.3d 146, 150 (7th Cir.1994).

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Not Reported in F.Supp.2d, 1998 WL 951688 (E.D.Wis.) (Cite as: 1998 WL 951688 (E.D.Wis.))

Hostile Work Environment Claim Harassment which creates a hostile or abusive

working environment is actionable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). For conduct to be actionable under Title VII, it must both objectively create a hostile or abusive environment, and subjectively be perceived so by Richmond. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir.1994). The totality of the circumstances must be considered. Id. at 23.

Richmond offers the following to support his hostile work environment claim, with relevant admissible evidence described.

Richmond worked four hours of overtime but was only paid for two. (PPFOF ¶ 16.)

There is a dispute regarding whether Richmond did or did not work four hours of overtime on December 7, 1995. Three employees told Richmond's supervisor, Tom Piotrowicz (“Piotrowicz”), that Richmond had not worked the hours indicated on his December 7, 1995 time sheet. (DPFOF ¶ 29. FN7

) Assuming that Richmond did work the four hours of overtime, there is nothing in the record to suggest that the denial of the overtime hours was FN8 done in a “hostile” manner.

FN7. Richmond objects to this proposed finding of fact, but cites no admissible evidence to contradict it.

FN8. Although Richmond does not bring a disparate treatment claim on this ground, the court notes that a white employee was docked by Newman after discovering he had falsified his time sheets. (DPFOF ¶ 31.)

Piotrowicz and Jill Rodriguez kept constant, intrusive surveillance over Richmond and refused to properly train Richmond. (PPFOF ¶¶ 17 and 18.) The evidence is that Piotrowicz watched Richmond for one and one-half weeks, standing in a position where Piotrowicz

could see the entire department where Richmond worked. (DPFOF ¶ 39.) Richmond thought that Piotrowicz was watching his work performance in part because Richmond had been having problems with his machine. (DPFOF ¶ 38.) During this time period, Piotrowicz did not say anything to Richmond about his work. (Oct. 10, 1997 Richmond Dep. at 143.) A coworker attests that she saw Piotrowicz watch Richmond more closely than some other Dana employees. (July 17, 1998 Stribling Aff. ¶ 9.)

*3 The record does indicate that Richmond received training. Richmond states that he was not properly trained, and that Jill Rodriguez (“Rodriguez”) (Richmond's “lead person”) spent more time training another probationary employee. A co-worker attests that Rodriguez said she did not want to be bothered with training Richmond.

Richmond was singled out and humiliated for his alleged bad performance, when he performed as well as any other employee. (PPFOF ¶¶ 19 and 20.)

Richmond submits the affidavits of several coworkers which state that they observed Richmond doing a good job and working as well as anybody else. The fact that co-workers indicate that Richmond's performance was satisfactory does not create a material issue of fact. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125 (7th Cir.1994.) It is undisputed that Richmond received low marks on his performance evaluations (of which he had several), and that his supervisor discussed the low marks with him. (DPFOF ¶¶ 33 and 36.) Dana admits that Richmond's performance was criticized, but there is no evidence that Richmond was “humiliated.”

Richmond's probationary period was unfairly extended.

Because of Richmond's poor performance evaluations, Newman extended Richmond's probationary period by two months, from February 21, 1996, to April 21, 1996, so that Richmond could continue to be evaluated on a monthly basis. (DPFOF ¶ 34.)

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Piotrowicz made a statement that “How can he [Richmond] afford something like this [a Lincoln Town Car] working at a place like this?” “He must be a drug dealer.” (Oct. 30, 1997 Richmond Dep. at 218–19.)

Dana concedes that Piotrowicz made the above-quoted statement. Richmond considered the statement to be a racist comment in that the only way a black man could have money to buy a Lincoln would be as a stereotypical drug dealer.

Title VII is not designed to protect against an unpleasant work environment, but rather towards discrimination in employment conditions. Koelsch v. Beltone Elec. Corp., 46 F.3d 705, 708 (7th Cir.1995). A single offensive comment (here, one which is not blatantly racial) and the other alleged racially-hostile acts do not rise to the level of severity necessary to support an actionable claim for hostile work environment. See Dey, 28 F.3d at 1456. Further, there is no discussion by Richmond of the effects the alleged hostile acts had on his work performance. The court concludes that Richmond's hostile work environment claim should be dismissed.

Discriminatory Discharge Claim Richmond agrees that the McDonnell–Douglas

FN9 indirect, burden-shifting approach of establishing

that he was terminated on account of his race applies. To make a prima facie case under that approach, Richmond must show that:

FN9. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

(1) he is a member of a protected class;

(2) he was performing his job well enough to meet Dana's legitimate expectations;

(3) an adverse employment action occurred; and

*4 (4) individuals outside the protected class were treated more

favorably.

Payne v. Milwaukee Cty., 146 F.3d 430, 434 (7th Cir.1998). The second and fourth elements are at issue in the present case.

Dana states that Richmond was not performing at a satisfactory level in light of the number of occurrence points he accumulated during his probationary period. As relevant to his prima facie case, Richmond responds that (1) because his last absence which put him over the three-occurrence limit had a doctor's excuse, it was an excused absence that should not have been counted towards his total number of occurrence points; (2) he was never advised by management that he was tardy; and (3) his review of his pay stubs evidences no proof of tardiness.

The record shows that Richmond's last absence, although he had a doctor's excuse, was to be counted as one occurrence point under Dana's Absenteeism Policy; there is no evidence to suggest otherwise. Likewise, there is no evidence to suggest that Richmond was not late on the days noted in Dana's records. There is no explanation by Richmond regarding whether his pay stubs would reflect tardiness. In his deposition, Richmond stated that he did not recall whether he was late on the dates Dana's records indicated he was tardy, and that “I don't feel like I was tardy on all [those] days ....” (Oct. 30, 1997 Richmond Dep. at 180.) This statement is insufficient to challenge Newman's belief that Richmond had exceeded the number of occurrence points allowed to warrant termination. Newman alone made the decision to hire as well as fire Richmond, which creates an inference of nondiscrimination. E.E.O.C. v. Our Lady of Resurrection Med. Ctr., 77 F.3d 145, 152 (7th Cir.1996). The record indicates that the relationship between Richmond and Newman was amiable, and Newman never made any racist remarks to Richmond. In light of Richmond's excessive occurrence points, the court concludes that Richmond has failed to establish the necessary element of his prima facie case that he was satisfactorily performing his job.

With respect to comparing Richmond and other probationary employees, Richmond asserts that eleven non-black employees received more than three

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Not Reported in F.Supp.2d, 1998 WL 951688 (E.D.Wis.) (Cite as: 1998 WL 951688 (E.D.Wis.))

occurrence points during their probationary periods, but were not terminated. (PPFOF ¶¶ 5–15.) A review of the record does not support Richmond's assertion; the employees named by Richmond did not have more than three occurrence points during their probationary periods (or were absent so that they could not be immediately terminated), with the following exceptions. One white female and one black female (a sister of Richmond who Richmond does not mention, but for whom Dana submits evidence) accumulated more than three occurrence points during their probationary periods (PPFOF ¶ 13 and Aug. 10, 1998 Newman Aff. ¶ 12), but were not terminated due to administrative error. (Aug. 10, 1998 Newman Aff. ¶¶ 10 and 13.)

Further, Dana has shown that during the time that Richmond was employed at Dana, Newman terminated three white probationary employees for excessive absenteeism. (June 18, 1998 Newman Aff. ¶ 12.) While one white woman was not terminated for excessive absenteeism due to administrative error, there was also a black woman who likewise was not terminated. One example of better treatment is not enough to support inference of discrimination, Shank v. Kelly–Springfield Tire Co., 128 F.3d 474 (7th Cir.1997) (age discrimination context), especially when a black employee was also not terminated. The court concludes that Richmond has failed to establish the necessary element of his prima facie case that non-black employees were treated more favorably with respect to Dana's attendance policy.

CONCLUSION *5 Defendant Victor Products Division, Dana

Corporation's motion for summary judgment is FN10

GRANTED and this action is DISMISSED.

FN10. The March 13, 1997 complaint also names “ABC Insurance Company” as a defendant which provided liability coverage to Dana. All claims against that defendant are dismissed because that insurance company has never been identified, and all claims against Dana are being dismissed.

E.D.Wis.,1998. Richmond v. Victor Products Div. Not Reported in F.Supp.2d, 1998 WL 951688 (E.D.Wis.)

END OF DOCUMENT

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