The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on the Motions for Summary Judgment (#86, #88, #90, #92, #94, #96, #98, #100, #102) filed by Defendant, Archer-Daniels-Midland Company (ADM). Following this court's careful and thorough consideration of the arguments of the parties and the documents provided by the parties, ADM's Motions for Summary Judgment are GRANTED.
All of the Plaintiffs are African American males who are employed by ADM or were formerly employed by ADM. It is undisputed that, at all relevant times, ADM had an anti-discrimination and anti-harassment policy that was posted at the various locations where Plaintiffs were employed. The postings provided telephone numbers for employees to call and report harassment or discrimination. ADM also had a "Compliance Help Line" that employees could utilize to report harassment or discrimination. The record shows that Plaintiffs were aware of ADM's anti-discrimination policy. The remaining facts will be organized by Plaintiff and work location.
Plaintiff Marlon Joyner was hired by ADM on July 6, 1998, and worked at ADM's Packaging Plant, which is part of ADM's "West Plant" in Decatur, Illinois. Joyner was hired as a laborer and was promoted to a production worker position on September 18, 1998. Joyner held a production worker position until he voluntarily resigned his employment in July 2004 to relocate to the Atlanta, Georgia area. During his employment at ADM, Joyner was a member of a union and his employment was covered by a collective bargaining agreement. For at least the last four years of his employment, Joyner worked on the "Sidel" machine. This position was considered a "step up" production worker position and, under the terms of the collective bargaining agreement, Joyner was paid 60 cents more per hour than employees who held regular production worker positions. Joyner has acknowledged that he could have bid on and obtained, on the basis of seniority, numerous operator positions, which would have resulted in higher pay. Joyner was not interested in any of the open operator positions.
Paul Smith, an African American employee, was promoted to shift supervisor in late 2001 and became Joyner's supervisor. Joyner testified that, in early 2002, he told Smith that he was interested in a "lead man" position. A lead man is a union employee who fills in for a full-time shift supervisor when a supervisor is absent. The union employee is paid a higher hourly rate when acting as a lead man.*fn2 Lead man positions were not posted, but the testimony showed that employees were required to let management know they were interested in a lead man position in order to be considered for the position. For example, Smith testified that he informed the plant manager when he began his employment at ADM in 1998 that he was interested in becoming a supervisor. Smith testified that he "constantly made an effort to let them know that I was interested in being a supervisor." Smith became a lead man in April 2001 prior to being promoted to shift supervisor. At the time Joyner told Smith he was interested in a lead man position, Smith told him that no lead man positions were available. According to Joyner, Mark Dunham, a white male, was subsequently made a lead man. In addition, Doug Dukeman, another white male, was not formally made a lead man but was assigned to fill in as a supervisor on multiple occasions and received higher pay when working as a supervisor. Joyner claims that he was discriminated against when he was not chosen for a lead man position. In addition, Joyner claims that he was denied shift supervisor positions because ADM chose white employees for its lead man positions and then promoted employees already in the lead man position to any open supervisor positions.
Joyner also claims that he was subjected to a hostile work environment based upon his race during his employment at ADM. Joyner testified that he and other African American employees were yelled at for talking and told to get back to work when white employees were not reprimanded for talking. Joyner testified regarding numerous incidents that he heard about where ADM employees made racially offensive remarks. Joyner acknowledged, however, that he was not present when these remarks were made and that only one of the remarks was directed toward him. Joyner testified that Bonnie Scoggins told him that Rocky Daniels called Joyner and Plaintiff Corey Mann "worthless niggers." Joyner does not claim that he reported any of this conduct to ADM management. Joyner also testified that there was racist graffiti at the West Plant. One of the incidents Joyner relied upon was an incident where ADM employee Glen Peck wrote racist graffiti on an ADM building. Joyner does not dispute that ADM fired Peck for this action. Joyner testified that there were other occasions where he saw racist graffiti. Joyner testified that he complained to his union representative about the graffiti but does not claim that he reported any of the graffiti to ADM management. Joyner testified that he nevertheless felt that ADM should have done more in response to the graffiti, stating "[t]hey could have addressed us and let us know that action had been taken and that they were going to try and prevent it in the future."
Plaintiff Corey Mann also worked at the Packaging Plant at ADM's West Plant in Decatur. Mann was hired on July 21, 1997, as a laborer and, like Joyner, was a member of the union. Mann was awarded a production worker position in October 1997. Several years after he started working for ADM, Mann informed his supervisor, Rocky Daniels, that he wanted to move to the shipping department. Within two weeks, Daniels helped Mann move to the shipping department. Mann held a production worker position at ADM until he voluntarily resigned on May 24, 2005. It is undisputed that Mann had a long disciplinary history at ADM. Mann does not dispute that he was disciplined by ADM on 10 separate occasions between April 9, 2001, and May 13, 2004. On May 14, 2003, ADM suspended Mann for 11 days for sexually harassing a female ADM employee while ignoring his job-related duties. Mann admitted that he asked the female employee, who was working as a guard, if she "liked black men" and if she "date[d] black guys." Mann also admitted that he spent at least 15 minutes engaging in that conversation while he was "on the clock" and supposed to be working. Mann, however, testified that he did not make any sexual overtures to the female employee and contends that the discipline imposed was undeserved and racially discriminatory.
Mann testified that he asked to be trained on various machines while employed at ADM as a production worker but was not provided the requested training. On January 16, 2003, Mann told Erik Lightner, who was the plant manager at that time, that he was interested in a lead man or shift supervisor position. However, Lightner had already selected Brad Mullen for an open shift supervisor position. Lightner selected Mullen for the shift supervisor position based upon Mullen's overall qualifications. Lightner stated that Mullen had been passed up in filling several prior shift supervisor openings. Mann testified that he was discriminated against when he was not selected for lead man positions given to other employees, including a position given to Mullen in 2000 or 2001. However, Mann admitted at his deposition that he had not expressed interest to ADM in being made a lead man prior to learning that Mullen had been selected for the position. Mann also admitted that he was not as qualified as Chad Bartosik at the time that Bartosik was selected for a lead man position.
Similar to Joyner, Mann testified that he did not bid on numerous operator positions he would have been awarded based upon seniority because he did not want to work as an operator. Mann testified, however, that he did bid on an open operator position for the first time in April 2004. Mann was awarded the operator position. Mann trained for the position for approximately 10 weeks and took a qualifying test on two occasions and failed both times. Mann admitted at his deposition that he made major errors while training in that operator position. Mann testified that this series of events represented race discrimination. He testified that he did not receive adequate training and that white employees made similar mistakes but were not adversely affected. Mann also testified that a white employee, Alan Engdale, "didn't necessarily pass the test, but they let him pass the test in order to give him the job." It is undisputed that Mann does not have any evidence that Engdale did not legitimately pass the operator test. ADM presented evidence that Engdale was required to take, and pass, the operator test.
Mann testified that he was subjected to a racially hostile work environment during his employment at ADM. However, it is undisputed that, during Mann's entire eight-year period of employment at ADM, never once did anyone utter or direct any type of racially charged comment, racial epithet or racial slur toward Mann. Mann testified that, in 2002, Glen Peck wrote "We hate niggers" on a door at ADM. However, as previously discussed, Peck was fired after ADM investigated the incident. Mann also testified regarding a racial joke made by ADM employee Mike Espy. It is undisputed that Mann was not present at the time Espy made the joke and it is also undisputed that Espy was disciplined for this incident. Mann also testified regarding an incident in 2003 where ADM employee Bill Hauck allegedly made the comment, "Fuck that Nigger" in reference to someone other than Mann. This comment was not made in Mann's presence, but Mann heard about it from another employee. It is undisputed that Hauck was suspended for five days following this incident; however, the discipline was imposed for a variety of conduct by Hauck, not just the racially offensive comment.
Mann also testified that he saw racially offensive graffiti on trailers delivering goods to ADM in 2001 or 2002. Mann testified that he reported this graffiti several times to his supervisor, Dennis Miller. Mann testified that Miller took photographs of the graffiti and called the trucking company. Mann also testified that tape was put over the graffiti. In addition, Mann testified that his supervisor Rick Blankenship consistently harassed him and singled him out for menial tasks. However, Mann admitted that, on the lone occasion where he complained to ADM management about Blankenship, ADM's then plant manager, Ashwin Patel, "had a talk" with Blankenship and, as a result, Blankenship "backed off" of Mann and Mann never again had similar issues with Blankenship. Mann also testified that ADM supervisor Dennis Miller told Brian Van Scyoc to stop "hanging around" with Mann. Mann stated that it was supervisor Phil Judd who told Miller to talk to Van Scyoc about "hang[ing] out" with Mann. Mann testified that he had problems with Smith after Smith became his supervisor in 2003. Mann testified that Smith had a "personal grudge" against him. Mann testified that he believed that Smith's conduct was based on race discrimination, even though Smith is African American, because Smith wanted to be part of the company and was willing to do whatever it took, including discriminating against Mann, to maintain his position.
Plaintiff Orlando Owens was hired by ADM on September 22, 1997. Owens originally worked at ADM's Bio-Products facility in Decatur as a laborer. He advanced to a utility position on March 30, 1998. Owens moved to the West Packaging Plant in August 2000 because he had a medical condition which prevented him from working the swing shifts used at the Bio-Products facility. Owens bid up to a production worker position in February 2001. During his time at the West Packaging Plant, Owens has chosen to forego higher paying operator positions in the West Complex in order to stay in the Packaging Plant. Owens is still employed at ADM.
In 1999, while he was working at the Bio-Products facility, Owens received training for a lysine UF position, which is an operator 2 position. It is undisputed that Owens had to be qualified for the position before he could move into an operator 2 position. After he had been training for some period, Owens was asked questions about the lysine UF position that he was unable to answer and was not allowed to complete the training. Owens testified that he told management that he did not want to train for the position anymore. It is undisputed that, without completing the training, he could not become a lysine UF operator. Owens testified at his deposition that his training was inadequate and that white employees were given help to answer questions during their training. However, Owens testified that he observed only portions of the tests given to other employees. Owens testified that he subsequently asked to be trained for the lysine UF position and was denied training. However, Owens did not know if any positions were open at that time and could not identify any lysine UF positions that were filled in Bio-Products before he moved to the West Plant. In fact, the plant superintendent, Timothy Aydt, stated in his affidavit that there was no need to train anyone at that time.
Owens also testified that he was discriminated against when he was denied a step-up production worker position at the West Packaging Plant. Specifically, Owens testified that he requested a position running a filler on the retail line in February 2001. Owens testified that this position was given to Greg Simpson, a white male employee. Owens testified, however, that Simpson had previous experience working in the retail area as a production worker. Owens testified that he was given a forklift position and had previous forklift experience. Moreover, Owens acknowledged that several African American employees, including Joyner, regularly worked in step-up production worker positions and that a number of white employees did not work in step-up positions and did not receive the extra pay.
In addition, Owens testified that he was denied a lead man position at the Packaging Plant.
He testified that, in the spring of 2001, he spoke to Jacob Stolzfus, a production assistant, about a lead man position. Owens also testified that he spoke to Erik Lightner when Lightner was plant manager about a shift supervisor position. Owens testified that he spoke to Lightner before early 2003 and that Lightner informed him there were no openings at that time. Lightner was plant manager of the Packaging Plant from February 2001 to February 2003 and stated in his affidavit that he promoted four employees to a shift supervisor position while he was plant manager. He promoted Paul Smith, John Byler, John Goodwin, and Brad Mullen. Lightner testified that he did not receive any information that Owens was interested in a shift supervisor position prior to promoting Smith, Byler, Goodwin and Mullen based upon their qualifications. Lightner did not promote anyone to shift supervisor after Mullen was given the position. Owens testified that he may have spoken to Lightner about a shift supervisor position after Mullen was selected for the position. Owens testified that Lightner posted a notice regarding supervisory positions in May 2002. Owens testified that he saw the posting but did not express interest in a supervisory position at that time.
Owens also claims that he was subjected to a racially hostile work environment while he was employed at ADM. Owens testified that he had an accident on a forklift and was taken off the forklift position and reassigned to a depalletizer position in October 2001. It is undisputed that Owens did not receive any disciplinary action related to the forklift accident and that Owens had the same rate of pay and same hours after he was reassigned to a depalletizer position. Owens also testified that, in 2001 or 2002, he was told by his supervisor that he would no longer be working with Jason Partee, another African American employee, because they talked too much. In addition, Owens testified that he was disciplined for mistakes and that white employees were not disciplined for similar conduct. Specifically, Owens relied on two situations where he was issued a verbal warning. The first disciplinary action occurred on August 7, 2003, based on the fact that Owens placed the wrong labels on bottles while working as a labeler. Owens acknowledged that he did, in fact, put the wrong labels on bottles. He testified that white employees had also put the wrong labels on bottles and were not disciplined. However, Owens was not aware of all the circumstances of the other incidents. Owens acknowledged that he did the same thing on a previous occasion and was not disciplined. The second disciplinary action occurred on September 26, 2003. Owens received a verbal warning for running product without checking the customer profile. Owens admitted that he did, in fact, run the oil without its profile. In addition, it is undisputed that Owens could not identify anyone who had made the same error and had not been disciplined. Owens testified that, in the spring of 2005, he was harassed by his supervisor, Rocky Daniels. The harassment consisted of constant supervision and "smart comments." Owens testified that he believed Daniels' actions were based on race because he saw confederate flag seat covers in Daniels' truck.
Owens also testified that he overheard an employee, Shane Hadley, make offensive racial remarks while he was working at Bio-Products. It is undisputed that these comments were not directed toward Owens and it is also undisputed that Owens did not report any of the comments to ADM management. Owens testified regarding other inappropriate racial remarks made by ADM employees, including a supervisor in the maintenance department. It is undisputed that Owens did not report any of these remarks to ADM management either. Owens testified that he was also aware of three employees at the West Packaging Plant, including Hauck, who made inappropriate racial remarks in the workplace. It is undisputed, however, that no one made any racial comments to Owens at the West Packaging Plant and that Owens never even overheard any racial comments.
Owens testified that he was told that Espy used the term "niggers." Owens testified that the incident involving Espy was not reported to ADM management because the union wanted to handle it on its own. Owens also testified that Joyner told him about a racist comment made by Ralph Kramer. It is undisputed that Owens did not report any of the inappropriate racial remarks he heard about at the West Packaging Plant to ADM management. Also, as previously discussed, Hauck was disciplined after he made a racial comment.
Owens also testified about racially offensive graffiti that he observed. He testified that, in late 1999 or in 2000, he reported racial graffiti to his supervisor, Scott Jesse. Jesse gave him some cleaner and told him to remove the graffiti. Owens did not report any of the other graffiti that he saw. Owens testified that the graffiti he saw at Bio-Products did not affect his job performance. Owens testified that there was some graffiti at the West Plant. He testified that, on one occasion where he saw graffiti in the men's room, ADM "took that off pretty quick" and that ADM got other graffiti at the West Plant "off pretty quick." Owens testified that graffiti at the Packaging Plant was addressed promptly and that he "would say for the most part, they got the point across that that wasn't going to be happening over there."
II. PEORIA CORN PLANT - FREDERICK MORRIS
Plaintiff Frederick Morris has worked at ADM's Peoria Corn Processing Plant since September 26, 1996. Morris is the only Plaintiff who works at the Peoria facility. Peoria Corn is a unionized facility, and Morris is a member of the union and covered by a collective bargaining agreement. Morris began his employment as a laborer, advanced to a utility operator position, and moved up to an operator 2 position. In April 2005, Morris was promoted to an operator 1 position. Morris is currently employed by ADM as an operator 1.
Morris testified that, in 2000, he stepped in acid and injured his foot and was not given adequate time off by ADM. However, he testified that the "company doctor" gave him a note saying he needed either one or two days off work, and he was provided that much time off. Morris testified that he disagreed with the company doctor about the amount of time he needed to be off to allow his foot to heal but was not positive that he provided ADM with a note from a different doctor which stated that he needed additional time off. Morris also testified that ADM has denied him overtime because of his race.
Morris testified that, in 2001, he was not promoted to an operator 1 position based upon his race. In April 2001, Danny Cunningham was promoted to an operator 1 position that Morris had also applied for. At that time, promotion to an operator 1 position at Peoria Corn was based upon seniority. Morris admitted that Cunningham had more seniority than he did. In October 2001, two operator 1 positions were filled at Peoria Corn using a point system rather than seniority. Michael Brown, an African American employee, received the first operator 1 position awarded under the point system. Eight operator 2's were considered for this position. The top three scorers on the point system were Howard Person, Jr., Michael Brown, and Howard Person, Sr., all of whom are African American. Morris scored seventh out of the eight considered. The position was offered to Howard Person, Jr., but he declined the position in order to accept a position in maintenance. Brown was then promoted. The second time the point system was used, John Boo, a white employee, was promoted. Morris had a lower score on the point system than Boo. Morris had more seniority than Boo, however, it is undisputed that Morris was not the most senior operator 2 when the point system was used so it is uncertain whether he would have been offered the position even if the decision had been based on seniority. ADM stopped using the point system in November 2001 and went back to awarding operator 1 positions based upon seniority because the union objected to the point system.
Morris claimed that he was discriminated against when he was denied a position in the lab in 2002. Lab positions are outside of the collective bargaining unit and are not covered by the labor agreement. Mike Jurick had worked in the lab department and quit. When the position at issue became available, Morris expressed interest in the position. The position remained vacant for at least one month before it was filled. ADM then selected Jurick for the position because it needed someone who could learn the position quickly. Morris testified that he could have been timely trained in the position if ADM had selected him early in the process.
Morris also testified that he signed up to be considered for a maintenance training grade position that was posted on May 29, 2002. At that time, Ken McFarland was the Maintenance Superintendent at Peoria Corn. Interested candidates for entry level positions in the maintenance department were evaluated in three areas: (1) prior experience; (2) performance on a hands-on test; and (3) performance on a battery of standardized tests. Each of the three areas was given equal weight on a 100 point scale. In evaluating prior experience, experience prior to joining ADM and job performance at ADM were considered. Experience prior to joining ADM was determined based upon a personal interview. McFarland, along with Maintenance Supervisor Ken Geary, conducted the interviews and interviewed Morris. Morris has a bachelor's degree and master's degree, both in criminal justice. Morris has never taken any vocational courses. Morris' work experience prior to joining ADM included working at a restaurant, working at Wal-Mart, working for a football coach, working for his uncle at an automotive shop from January to May 1994, working as a field hand and working on houses on his own. Following the interview, McFarland credited Morris with five months of experience based on what he believed to be Morris' moderate experience in automotive work and home repair. Morris believed he should have been given more credit for his experience. In addition, Morris was assessed points for his experience working at ADM. Morris testified that his supervisor, Don Wells, unfairly gave him low scores on this portion of the evaluation. Morris took the hands-on test and received a total of 25.5 out of 100 points. Morris also took the written test and scored "above average" in the areas of work habits and work interests. However, Morris scored below average in the area of technical ability and received a total score of 58.33 on the written test. When Morris' overall score based upon all three components was calculated, he had the lowest score of the 11 employees who applied for the maintenance position. The three available positions were given to the three employees who had the highest overall scores.
Morris also testified that he was discriminated against when Mark Diekoff was given an operator 1 position in 2003. It is undisputed that Diekoff had held the operator 1 position and left to go to maintenance. Diekoff decided not to pursue the maintenance training and returned to his former operator 1 position. Morris testified that he was discriminated against because, if he had been given the opportunity to work in this operator 1 position during the time Diekoff was pursuing maintenance training, he could have moved back into the position if the position became available again. In its Reply, ADM presented evidence that Diekoff was out of the position for one week and Morris was not the most senior operator 2 at the time and would not have received the position even if Diekoff had been replaced.
Morris, like the other Plaintiffs, also claims that he was subjected to a racially hostile work environment. Morris testified that he saw racial graffiti in a bathroom three or four times during his employment at ADM, but has not seen any since July 2002. Morris testified that each time the graffiti was reported to management, ADM removed it. Morris testified, "Yeah, they take care of it. They don't leave it." Morris also testified about a racially offensive remark made by another employee at Peoria Corn in 1999. Morris testified that he did not report the remark. Morris testified that he was called "college boy" a couple of times. Morris testified that this was a racial comment although he admitted that the comments were made in the context of mistakes he had made even though he had a college degree. Morris testified that he went to Human Resources about the comments and they stopped. Morris also testified that a supervisor, Don Wells, sometimes used profanity when Wells got upset with him. Morris testified that he reported Wells' conduct and Wells has not used profanity when talking with Morris since July 2003.
Morris also testified that he was disciplined for mistakes that, in his opinion, would not have resulted in discipline for other employees.*fn3 Morris admitted he did not know all of the circumstances regarding incidents where other employees were not disciplined and that, in fact, some of the employees not disciplined were African American. One incident relied upon by Morris was a situation where his supervisor, Dan Bailey, yelled at him, cursed at him and pointed a finger in his face. Bailey also wrote him up for insubordination. Morris testified that this incident occurred in December 2001. Morris testified that Bailey used profanity, but did not use any racially inappropriate language. Morris complained about the way Bailey treated him. ADM referred Bailey to the Employee Assistance Program for yelling at Morris. ADM had received complaints from other employees, including white employees, that Bailey yelled at and acted harshly toward them.
Morris admitted that he had heard Bailey yell at white employees. ADM counseled Bailey, but after he failed to improve his treatment of ADM employees, ADM terminated his employment in May 2002.
III. DECATUR CORN PROCESSING PLANT
Plaintiff Thomas Freeman has worked at the ADM Corn Processing Plant in Decatur since January 9, 1989. The Decatur Corn Processing Plant is a unionized facility and its employees, including Freeman, are represented by a union and covered by a collective bargaining agreement. Operator positions are awarded on the basis of Department seniority and qualifications. Freeman was placed in an operator 2 position in October 1990 and was awarded an operator 1 position in 1992. It is undisputed that Freeman has never worked outside the Mill Department at the Corn Processing Plant and has no supervisory experience.
Freeman testified that, in 2002, Brian Dickey, a white male employee, became a temporary shift supervisor, which is an hourly position where the employee "fills in" for a foreman. Freeman testified that he has more seniority than Dickey. Freeman testified that he spoke with Vincent Joyner about his interest in a foreman position. Vincent Joyner, who is African American, has been the Human Resource Manager at the Corn Processing Plant since March 2001.*fn4 Freeman presented no evidence that he ever told Vincent or anyone else that he was interested in a temporary shift supervisor position. Vincent testified that Freeman never expressed interest in a temporary supervisor position. Freeman also admitted that he is not contending that he was discouraged from seeking a temporary shift supervisor position. Freeman specifically testified that he believed it was racially discriminatory that he was not selected for a position he never expressed any interest in because he "wasn't asked."
Freeman also claimed that he was subjected to a racially hostile work environment. Freeman testified that he was harassed by Wilbur "Bud" Felton. Felton was the Mill superintendent between 1996 and July 2002. In August 2002, Roger Edgecombe became Mill superintendent. It is undisputed that Freeman has had no problems with Edgecombe. Freeman testified that Felton required him to perform menial tasks more often than white employees and also testified that he was singled out for harassment for out-of-spec products even though the error in the product may have been caused by other operators.
Freeman testified that, in approximately May 2002, Felton placed clear safety glasses on Freeman's console and told him that he did not want him to wear shaded safety glasses. Freeman admitted that it is ADM policy to require all employees to wear clear safety glasses. The only exception is Plaintiff David Robinson, Freeman's African American co-worker, who is allowed to wear tinted safety glasses for medical reasons. Freeman also testified that, in approximately June 2002, Felton told Freeman and Robinson to "go back out and go back to work" after they came into the control room to rest. Freeman and Robinson did not follow Felton's instructions but went to see Vincent in Human Resources and complained that Felton was harassing them. It is undisputed that Freeman was not disciplined for not performing the task when requested and that, as a result of his concerns, Plant Manager Bill Manley spoke to Felton and discussed issues regarding employee treatment. In August 2002, Felton was moved out of the Mill Superintendent position and Freeman did not have any more problems with Felton.*fn5
Freeman also testified about racial slurs written on bathroom walls in 2000 or 2001. Freeman testified that Ed Taylor, an African American co-worker, reported the graffiti to ADM. It is undisputed that, after Taylor notified ADM of the graffiti, ADM posted a sign stating that anyone caught writing racist graffiti would be terminated immediately. The existing graffiti was removed, and Freeman testified in 2004 that he had not seen any graffiti in the restrooms or anywhere else on ADM property in years. Steve Merritt has been the plant superintendent of the Decatur Corn Processing Plant since January 1995. Merritt stated that, in November 1999, he received a report from Taylor that employees had observed graffiti of a racial nature in an employee restroom and a restroom used by contractors. Merritt stated that the graffiti was removed and signs were posted to notify all persons using the restroom facilities that any individual caught writing racist graffiti could be immediately terminated. Merritt stated that, subsequently, the existing walls of the individual restroom stalls were removed and replaced with stainless steel walls which were more difficult to deface. At his deposition on April 13, 2006, Freeman testified that, in the week prior to his deposition, he had seen graffiti in the contractor's restroom which included a drawing of a confederate flag. The graffiti was reported by Plaintiff Ricky White. After it was reported, this graffiti was obliterated and ADM ordered additional signage to place in stalls stating that graffiti will not be tolerated.
Freeman also testified about two inappropriate racial comments made by co-workers he heard while employed at ADM. It is undisputed that Freeman did not report either comment to ADM management. This was even though Freeman admitted that Vincent had an open door policy and he knew he could go to Vincent about problems and felt comfortable doing so.
Plaintiff David Robinson has worked at the Corn Processing Plant since September 23, 1996. Robinson is represented by a union and his employment is covered by a collective bargaining agreement. Robinson is still employed at ADM and has worked the entire time in the Mill Department. Robinson was awarded an operator 2 position in November 1997. Robinson testified that he was aware that he could address employment concerns to Vincent in Human resources and testified that he knew it was Vincent's "job for us to bring our complaints to him."
Robinson has withdrawn his claim that he was denied promotions on the basis of his race. Robinson does claim that he was denied training for an operator 1 position in 2005 based on his race. He testified that a white employee, Eric Waltrous, was given the training for the position and he was denied the opportunity to be trained for the position. However, he testified that he never went to Edgecombe and asked for training. In his affidavit, Edgecombe stated that, in October 2005, the person in the operator 1 position working on the gluten dryers developed a serious illness and began a temporary medical leave of absence. Edgecombe stated that he needed to determine the best and most efficient way to temporarily cover this operator 1 position. Edgecombe stated that he chose Waltrous to cover the temporary position because Waltrous was new to the Mill department so that using Waltrous did not require him to train someone to cover Waltrous' position. Edgecombe further stated that Waltrous did not gain any future advantage as far as securing a permanent operator 1 position because he lacked seniority to be considered for any such position.
Robinson also testified that he was subjected to discriminatory discipline on February 17, 2004. Robinson testified that he received a warning after he failed to depressurize the caustic lines which caused a strain on the system. Robinson testified that "someone got burnt" because one of the filters leaked when the caustic dripped through. It is undisputed that running the caustic line was an ordinary part of the duties and responsibilities Robinson had as an operator 2. Robinson admitted that he was trained on the proper procedure and that he saw the other employee's burns the next day. Robinson testified that the disciplinary action was discriminatory because he had to sign an acknowledgment stating he was trained on the caustic procedure. Robinson testified that white employees were not required to sign the acknowledgment and this was the basis for his receiving a higher level of discipline. Robinson also testified that, four months after he received his warning, "somebody" got burned by caustic and that "[t]o his knowledge," no one received a warning. However, Robinson admitted he did not know all of the facts and circumstances regarding this incident, which occurred in the refinery, a different area of the Corn Processing Plant. Also, it is undisputed that Robinson did not lose any pay or suffer any employment consequences as a result of the warning he received in 2004.
Robinson also claims that he has been subjected to a racially hostile work environment during his employment at ADM. In support of this claim, Robinson testified that Felton constantly harassed him when Felton was the Mill superintendent. Robinson testified about the incident regarding clear safety glasses involving Felton and his co-worker Freeman. Robinson testified that, in May 2002, Felton placed a pair of clear safety glasses on Robinson's console and told Robinson and Freeman that they needed to wear clear safety glasses. It appears that, up to that time, employees, including white employees, had been allowed to wear tinted safety glasses. However, it is undisputed that, at the time Felton spoke to Robinson and Freeman about it, they were the only employees in the control room wearing tinted safety glasses. It is also undisputed that, after this incident, all employees except for Robinson have been required to wear clear safety glasses. Robinson told Felton that he needed to wear shaded safety glasses because he had just seen the doctor and he had problems with his eyes. Robinson testified that Felton accused him of insubordination. Robinson and Felton spoke to Vincent about it, and Vincent requested written medical documentation from Robinson. The matter was resolved the next day after Robinson submitted written certification from his doctor. It is undisputed that, from that time forward, ADM permitted Robinson to wear tinted safety glasses as an exception to the plant policy. However, Robinson testified that, after this incident, Felton stared at him and tried to intimidate him. Robinson testified that he was not intimidated by Felton and that Felton's staring "didn't bother me." Robinson also testified that Felton did not prevent him from doing his job.
Robinson testified regarding the incident where he and Freeman were told to go back to work after they came into the control room to rest. Robinson testified that white employees were sitting and relaxing in the control room at that time. Robinson testified consistent with Freeman's testimony that they went to see Vincent instead of returning to work. Robinson testified that he was never disciplined regarding this incident. Robinson testified that he did not return to work the next day due to a personal illness and was off work for eight or nine days. By the time Robinson returned to work, Felton had been replaced by Edgecombe and was no longer the Mill superintendent. Robinson testified that everything has been fine since Edgecombe became Mill superintendent.
Robinson testified that he saw racist graffiti in restrooms at ADM in 1998 and 1999. Robinson testified that Taylor complained about it and "it stopped after that." Robinson testified that Taylor was promoted from an hourly position to a foreman position shortly after Taylor reported the graffiti to ADM management. Robinson testified at his deposition taken on April 13, 2006, that he saw graffiti containing a picture of a confederate flag written on a toilet paper dispenser in the contractors' restroom approximately one week before the deposition. It is undisputed that, after this graffiti was reported by Ricky White, it was obliterated, the dispenser was ordered removed and ADM ordered additional signage to place in stalls stating that graffiti will not be tolerated.
Robinson also testified that he saw a "noose" laying on top of a machine sometime between 1998 to 2000. Robinson described it as a rope "tied in a loop" and testified that he did not report it. Robinson also testified that, in 2004 or 2005, he heard that Larry Phillips, an African American employee, found a rope lying on his lunch box. Robinson did not see it himself. Vincent testified that he saw this rope and thought it was a dog leash. Vincent investigated but was unable to identify who was responsible. Vincent testified that he conducted training after this incident to reiterate to the employees "our anti-harassment program, our discrimination program, as well as some other issues and leave 10 to 15 minutes of open forum to address any issues that they had." Vincent testified that part of the discussion was the nylon rope.
Plaintiff Connell Gray has worked at the Corn Processing Plant since March 11, 1996. Gray is represented by a union and covered by a collective bargaining agreement. Gray is employed in the refinery. In January 2001 Gray was awarded an operator 1 position which he has held since that time.
Gray claims that he was denied a maintenance position in 2003 because of his race. In April 2003, Gray signed a posting expressing his interest in a maintenance position and took a maintenance test on April 21, 2003. David Shain has been the maintenance superintendent at the Corn Processing Plant since December 2001, and he is responsible for deciding the most qualified candidates for maintenance vacancies. Gray testified that he never discussed the maintenance position with Shain prior to taking the test and also testified that he has never had any difficulties with Shain. Pursuant to the terms of the applicable collective bargaining agreement, ADM administers an aptitude test to applicants for maintenance positions in order to fill these positions. The aptitude test was created by Olson Consulting, and Olson scores the test. After Olson scores the test, Olson provides Shain with a summary of each applicant's test results, with a cover sheet. On the cover sheet, employees are grouped by their overall rating on the test. In filling positions, Shain begins with the individual listed at the top of the list and begins a more detailed evaluation and review process. A "not rated" score on the test indicates that the individual was not ranked because the test results could not be interpreted. Applicants whose test results are "not rated" are listed at the bottom of the summary cover page.
After Gray took the aptitude test in April 2003, Olson listed his results as "not rated" and his name was placed in the bottom category on the summary sheet. After receiving the Olson scores for the individuals who took the April 21, 2003, test, Shain offered interviews to individuals in the order they were listed on the summary report and stopped interviewing when he filled the positions. While Gray has claimed that ADM discriminated against him by not giving him the opportunity to interview for the position, it is undisputed that only some of the applicants were interviewed. The three applicants who were hired into maintenance all were ...