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Dunklin v. Contempri Homes


February 25, 2009


The opinion of the court was delivered by: Stiehl, District Judge


Before the Court is defendants' joint motion for summary judgment (Doc. 55), to which plaintiff has filed a response (Doc. 61).*fn1 Also before the Court is defendants' joint motion to strike (Doc. 65), to which plaintiff has filed a response (Doc. 69). Defendants seek summary judgment pursuant to Federal Rule of Civil Procedure 56.


Plaintiff's underlying claim arises from several alleged acts of racial discrimination spanning from March of 2005 until February of 2006, including the following: (1) using racial stereotypes and name-calling; (2) attacking plaintiff physically based on race; (3) spreading an unsubstantiated and racially suggestive rumor; (4) denying plaintiff short-trip flagging opportunities based on race; (5) denying plaintiff long-haul flagging opportunities based on race.

On November 8, 2007, plaintiff, Paul Dunklin, filed a three-count complaint alleging: (1) de facto demotion by Contempri Homes (Count I); (2) racially hostile work environment by all defendants (Count II); and (3) battery and negligent supervision by all defendants (Count III). In an Order dated September 2, 2008, the Court dismissed plaintiff's claim for de facto demotion (Count I) and plaintiff's claim for battery and negligent supervision against Contempri Homes (Count III). The Court has allowed plaintiff to proceed on his hostile work environment claim (Count II) and on his battery claim against defendant Powell (Count III).


Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.


I. COUNT II: Hostile Work Environment

Defendants seek summary judgment on Count II of plaintiff's third amended complaint and argue that plaintiff has failed to establish the requisite elements of a hostile work environment claim. The Court notes that plaintiff has attempted to support his hostile work environment claim with time-barred allegations.*fn2 Before addressing defendants' arguments with respect to the substantive elements of plaintiff's claim, the Court will consider whether, or to what extent, plaintiff's allegations of racial discrimination are time-barred.

A. Statute of Limitations

The Supreme Court has concluded that, in cases involving hostile work environment claims alleged under a continuing violation theory, courts may consider evidence falling outside the statutory time period, so long as an act contributing to that hostile work environment takes place within the statutory time period of 42 U.S.C. § 2000e-5(e)(1). AMTRAK v. Morgan, 536 U.S. 101, 105 (2002). "A court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Id. at 126.

Plaintiff has alleged at least one act of discrimination that occurred within the statutory time period.*fn3 The Seventh Circuit has stated that plaintiff may obtain relief for an otherwise time-barred act by "linking it with an act that is within the limitations period" such that the linked acts are "related closely enough" to establish a sufficient nexus. Koelsch v. Beltone Elects. Corp., 46 F.3d 705, 707 (7th Cir. 1995).

But the Seventh Circuit does not allow unlimited "reaching back" to otherwise time-barred discrete acts to form a continuing violation theory.*fn4 In determining whether plaintiff's continuing violation claim is actionable, the Court will consider the following factors: (1) whether the acts involve the same subject matter; (2) the frequency with which the acts occur; and (3) the degree of permanence of the alleged acts of discrimination that should trigger an employee's awareness and duty to assert his rights. Tinner v. United Ins. Co. of Am., 308 F.3d 697, 708 (7th Cir. 2002); see also Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992).

1. Acts that extend the Statute of Limitations

Upon review of the record and of the factors set forth in Tinner, 308 F.3d at 708, the Court FINDS that the following discrete acts of alleged discrimination cannot be linked together to form a single chain or single course of conduct so as to extend the statute of limitations: (1) Fisher, Sullivan, and Brand's use of the terms "nigger-rigging" and "boy" in the presence of plaintiff*fn5 ; (2) the Lisa Hill incident of March 2005*fn6 ; (3) Wildermuth and Presswood's denial of short- and long-term flagging assignments for plaintiff.*fn7

Plaintiff demonstrated that he understood the discriminatory nature of each one of these acts when they occurred by including allegations of each in the first charge of discrimination that he filed with the EEOC on December 6, 2005. Plaintiff did not need future acts of discrimination to understand that these predicate acts were discriminatory themselves. Plaintiff, therefore, cannot now reach back to these three time-barred acts and link them with the February 15, 2006 assault in an attempt to circumvent the statute of limitations.

2. Acts that do not extend the Statute of Limitations

Upon review of the record and of the factors set forth in Tinner, 308 F.3d at 708, the Court FURTHER FINDS that the following discrete acts of alleged discrimination can be linked into a single chain or single course of conduct with the alleged February 15, 2006 assault so as to extend the statute of limitations: (1) the alleged April 2005 assault; (2) the alleged November 2005 assault.

These acts satisfy all of the elements set forth in Tinner, 308 F.3d at 708. Each involves the same type of alleged discrimination, e.g., racial discrimination, which was carried out in a similar manner or act, physical force, and involved the same two people, defendant Powell and plaintiff, thus satisfying the subject matter factor. Id. Although these acts occurred over the course of more than an entire year, at least one act occurred every four or five months, which satisfies the frequency factor. Id. Finally, plaintiff did not understand the permanence of these acts until Powell repeatedly exhibited physical aggression against him, as demonstrated by the fact that plaintiff did not include allegations of Powell's actions in his first charge with the EEOC. In addition, Powell's actions were not coupled with adverse employment actions, like the alleged acts of discrimination involving Lisa Hill and John Murphy, which minimized their degree of permanence at the time they occurred.

Having limited plaintiff claims to those involving only defendant Powell, the Court now returns to defendants' motion for summary judgment on the merits of plaintiff's hostile work environment claim.

B. Racially Hostile Work Environment

Defendants argue that plaintiff has not created a genuine issue of fact regarding whether defendant Powell assaulted plaintiff on the basis of plaintiff's race. Whether a hostile work environment exists is a question of law. Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999). To establish a claim for a hostile working environment based on race, an employee must show that (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well-being; and (4) there is a basis for employer liability. Hrobowski v. Worthington Steel Co., 358 F.3d 473, 476 (7th Cir. 2004); Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1029 (7th Cir. 2004). Therefore, the sole issue before the Court is whether the three alleged acts of discrimination*fn8 making up plaintiff's continuing violation claim were motivated by plaintiff's race.

Plaintiff has not offered any direct evidence to establish that defendant Powell allegedly assaulted plaintiff because of his race. But the Seventh Circuit has ruled that, even when proceeding by the direct method of proof, plaintiff may use circumstantial evidence to establish his hostile work environment claim. Sylvester v. SOS Children's Vills. Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006).*fn9 Accordingly, this Court must consider whether the record supports an inference that defendant Powell discriminated against plaintiff on the basis of plaintiff's race. Hrobowski, 358 F.3d at 476; Williams, 361 F.3d at 1029.

The conduct about which plaintiff complains must have a racial character or purpose to support a hostile work environment claim. Hardin, 167 F.3d at 345. While plaintiff need not prove that this conduct was explicitly racial to demonstrate a hostile work environment, "it is equally true that not every perceived unfairness in the workplace may be ascribed to discriminatory motivation merely because the complaining employee belongs to a racial minority." Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 863-64 (7th Cir. 2005).

Plaintiff offers nine reasons to support an inference that defendant Powell assaulted him on the basis of his race in April of 2005.*fn10 Plaintiff alleges that Powell yelled at him while he was changing a tire, but that Powell did not yell at Reichman, plaintiff's white co-worker who was helping plaintiff change the tire. Plaintiff contends that an inference of racial discrimination can be reasonably drawn from these facts. The remainder of plaintiff's list attempts to establish that Powell's explanation for his aggressive behavior towards plaintiff was pretextual.*fn11 With respect to the alleged assaults occurring in November of 2005 and February of 2006, plaintiff relies solely on the racial animus that he believe permeated the April 2005 incident to establish racial motivation. Therefore, plaintiff has truly offered only one inference, supported by circumstantial evidence, to establish that plaintiff was motivated by racial animus in confronting plaintiff in April of 2005, November of 2005, and February of 2006.

Looking at the language that Powell used, there is nothing inherently racial about his comments to plaintiff. Hardin, 167 F.3d at 345. (stating that there was nothing inherently racial about the defendant saying to his co-worker, the plaintiff, "[g]et your head out of your ass"). Further, plaintiff does not allege that defendant Powell ever used a racial slur in plaintiff's presence or referred to plaintiff in a racially derogatory manner. Nor is there anything inherently racial about Powell's actions. A co-worker can express his frustrations and criticisms of another employee's work, even if unfounded and stated aggressively, without raising an inference of racial discrimination.

Besides alleging that Powell did not also yell at plaintiff's white co-worker, Reichman, in April of 2005, plaintiff has not made any meaningful attempt to compare his situation with that of similarly situated, non-African-American employees of Contempri Homes. Beamon, 411 F.3d at 863-64. Plaintiff has not made any allegations with respect to Powell's treatment of other flaggers while on job sites with Contempri Homes.

Simply put, the record does not support an inference that Powell was motivated by plaintiff's race in confronting him in April 2005, when viewed within the totality of the circumstances. Although plaintiff is African-American, without more, the Court cannot ascribe discriminatory motivation to Powell's actions based on plaintiff's perception that Powell was so motivated, Beamon, 411 F.3d at 863-64, and the record simply does not support an inference that Powell's conduct was connected to plaintiff's race. Id.; Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th Cir. 2004). Therefore, the Court FINDS that plaintiff has failed to create a genuine issue of fact on the issue of whether he suffered harassment in the workplace based on his race.


Upon review of the record, the Court GRANTS defendants' joint motion for summary judgment (Doc. 55) in favor of defendants and against plaintiff on Count II of the Third Amended Complaint (Doc. 37). The Court notes, therefore, that plaintiff's claim against defendant Powell for assault and battery (Count III) is the only remaining claim in this case. Although the Court is not unsympathetic to the treatment that plaintiff received from defendant Powell, the Court also cannot find racial discrimination on the basis of such scant evidence. When stripped of the extraneous events that plaintiff attempts to use to color this Court's perception of Powell's actions, plaintiff's claim amounts to little more than a garden variety torts claim for assault and/or battery. Plaintiff's attempt to link Powell's alleged assaults with time- barred events is unfounded on those grounds. Simply put, the record does not support an inference that defendant Powell discriminated against plaintiff on the basis of plaintiff's race. Defendants' joint motion to strike (Doc. 65) is DENIED as moot.



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