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Jordan v. R&O Aurora Inc.

December 22, 2008


The opinion of the court was delivered by: Honorable David H. Coar


Before this Court is Defendant R&O Aurora, Inc.'s ("Defendant") motion for summary judgment against Plaintiff Kiona Jordan ("Plaintiff" or "Jordan") pursuant to Federal Rules of Civil Procedure 56. For the reasons stated below, Defendant's motion is GRANTED in part and DENIED in part.


Plaintiff was hired by Defendant R&O Aurora, Inc., on December 7, 2005, at a rate of $9.00 an hour. Although Plaintiff was initially assigned to a first shift kitter position, the parties agree that employees of R&O could be reassigned at any time to any position.*fn2 In January of 2006, her salary increased to $10 an hour, at which rate her salary remained until she voluntarily resigned on July 31, 2006.

Plaintiff received a procedures manual at orientation that included the company's sexual harassment policy. Within nine days of starting employment, Jordan got into an argument with a co-worker, during which the co-worker called her a "nigger." After another employee reported the incident, the individual responsible for the slur was fired.

In May of 2006, Jordan and two other employees were transferred to the second shift kitting position. Jordan complained about the transfer, citing difficulties regarding child care.*fn3

Amanda Olson, R&O's director of human resources, gave Jordan the option of remaining on the second shift or being terminated and rehired when a first shift position became available, and Jordan chose the former. At some point in June, Lewis Gregg became supervisor to Jordan and assumed disciplinary control over her.*fn4 Between this time and June 30, Jordan had a number of interactions with Gregg that she found offensive, though the exact nature and content of these interactions is disputed. On June 29, 2006, during the course of an employee meeting, Gregg criticized Jordan's job performance, leading Jordan to conclude that she would be disciplined.

On June 30, 2006, Jordan presented a 4-page document to her supervisor, Ray Ebner, detailing a number of interactions with Lewis Gregg that had made her uncomfortable. This was the first time Jordan had relayed her complaints regarding Gregg's behavior to any management-level employee at R&O. Ebner took the document and brought the Plaintiff to meet with Amanda Olson. Olson read Jordan's statement, apologized, and assured Jordan that she would "get to the bottom of the situation." The parties disagree as to whether there was any discussion regarding the substance of the allegations in Jordan's document. Olson asked if there was anyone else with knowledge of the behavior described in Jordan's complaints. Jordan named three other R&O employees: Seneca Carter, Clarissa James, and Erica Washington.*fn5

Olson interviewed Seneca Carter and Clarissa James for the purpose of determining whether they had directly observed Gregg behaving inappropriately towards the Plaintiff. Carter said that he had not directly observed any offensive conduct toward Jordan. The Plaintiff claims that this was because his knowledge of Gregg's conduct was based on what the Plaintiff had privately told him. James, on the other hand, said that she had witnessed Gregg making inappropriate jokes and comments in the workplace. At no point did Olson seek or record examples of these comments. Olson did not probe James on the exact nature of Gregg's comments and why she found them to be inappropriate. Furthermore, Olson did not ask whether other employees had witnessed these incidents.

Finally, the parties do not dispute that Erica Washington was not present at work and was not returning phone calls on June 30, 2006, though they disagree whether she had voluntarily resigned or been fired. Regardless, Olson was unable to interview Erica Washington regarding the substance of the Plaintiff's complaints. Olson also interviewed Gregg, who denied the allegations against him, though he stated that he had given everyone in his department his home phone number for the purpose of informing him about absences.

The parties disagree as to what, if any, disciplinary action was taken against Gregg. The Defendant, though admitting that Gregg was neither terminated nor suspended, contends that Olson issued Gregg a written permanent probation notice stating that he would be immediately dismissed if an incident were to occur again. Plaintiff disputes that any such warning was issued. Furthermore, Olson decided to move Jordan to first shift kitting, her original position before she had been transferred to the second shift. On July 5, 2006, Jordan was again transferred, but this time to first shift repack, a position that entailed different responsibilities than kitting. Repack differed from kitting in that the repack department was not air-conditioned, was dirty, and required Jordan to move heavy objects,*fn6 whereas kitting was air-conditioned, sanitary, and involved lifting no more than ten pounds. Furthermore, kitting was a Class III position, whereas repack was only a Class I position. Although R&O is able to exercise some element of discretion as to an individual employee's pay, there are different pay ranges associated with each class of position within which an employee's salary will generally fall. The pay for kitting, a Class III position, ranged from $10.00 to $13.00 per hour, whereas repack, a Class I position, ranged from $8.00 to $10.00 per hour.*fn7 Furthermore, a higher class value reflected the increased skill required of the position.*fn8 According to the Defendant, Jordan was transferred due to an immediate need in the repack department, though Jordan claims that she witnessed another employee being moved from first shift repack to first shift kitting on the same day.

On June 30, 2006, another supervisor, Robert Dillon, was informed by two employees, Constance Daniels and Demetria Jenkins, that they thought the Plaintiff had fabricated her allegations against Gregg. Dillon referred these complaints to Olson, who then interviewed Daniels and Jenkins. Only Jenkins purported to have discussed the matter directly with Jordan, whereas Daniels' knowledge was limited to what Jenkins herself had told her regarding her conversation with Jordan. According to a form prepared by Olson in order to document her interview with Jenkins, Jenkins said that "Kiona mentioned that by the end of the week she would be on [first] shift. She also said/encouraged another employee (Erica Washington) to do the same. This would happen by whatever means necessary." Pl.'s 56.1(a)(1) Statement of Add'l Facts., ¶ 34. Defendant disputes that the conversation form contained everything that Jenkins communicated to Olson. See Def.'s Resp. Pl.'s 56.1(a)(1) Statement of Add'l Facts., ¶ 34. Olson then made a determination that Jordan had lied about Gregg's conduct, and decided to suspend her for three days without pay.

On July 7, 2006, Jordan was called into a meeting in which she was told that she had fabricated her allegations and that she would be suspended for three days without pay. Jordan yelled at Olson and repeatedly asked for the names of the witnesses who had made accusations against her. Jordan did not deny that she had fabricated the allegations against Gregg, although it is unclear whether she had the opportunity to do so. Olson told Jordan that she could either accept the suspension and continue in the repack department, or submit her resignation. Jordan accepted the suspension and returned to work on July 11, 2006.

On July 17, 2006, Jordan attended a job fair and obtained a job offer from Schneider Logistics. On the same day, she notified the Defendant that she would be voluntarily resigning her position after July 31, 2006. On September 5, 2006, Lewis Gregg was terminated when complaints by ...

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