The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is before the Court on Defendant, Norcross Safety Products' ("Norcross") Motion for Summary Judgment. For the reasons set forth below, Norcross' Motion for Summary Judgment [#25] is GRANTED.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, as the parties are of diverse citizenship, and the amount in controversy exceeds $75,000.00.
Plaintiff Thomas Garrow ("Garrow") began working at Norcross through a temporary staffing agency in March 2007 before becoming a full-time employee in April 2007. He was hired as lead for a temporary project known as the Black Vinyl Overboot ("BVO") project. Garrow worked in that position until the end of July 2008, when he moved to his current position.
As the lead on the BVO project, Garrow was responsible for overseeing the testing of previously manufactured military boots to determine if the boots were properly made. Employees in the BVO unit were cross-trained and their duties included unpacking boxes of boots, separating boots, turning boots inside out, testing boots, and repackaging boots after testing. Garrow was responsible for directing the work of others in the BVO unit who were subordinate to him and reported to him first before reporting to Cory Pancrazio, the supervisor of the BVO unit. At the time relevant to this litigation, Garrow worked the first shift, from 6:00am to 2:30pm.
Jonathon Ozmon ("Ozmon") was hired by Norcross in approximately April or May 2007. Prior to being hired, Norcross obtained a background check on him, including a check for any criminal record for at least seven years preceding the employment application. Lena Marxen ("Marxen"), an employee in Norcross' Human Resources office, testified that the background check revealed no criminal convictions and did not raise any red flags. Marxen further testified that had the background check revealed any type of violent act, Ozmon would not have been hired. However, if the background check had revealed a felony conviction, it would not have automatically disqualified Ozmon from employment; rather, it would have depended on the type of felony and whether the record showed that it had involved some type of violent act.
As of June 2007, Ozmon had worked in the BVO unit for approximately one month. Ozmon was not a supervisor and had no management role. He reported to Garrow. Prior to that day, Garrow believed that he and Ozmon had a good working relationship. For example, Garrow would bring Ozmon sandwiches and water because Ozmon never brought food with him to work.
On June 6, 2007, Garrow spoke to Ozmon regarding his performance and told him that he was talking too much and causing other people to not get their work done. This conversation was non-confrontational, and Ozmon did not say anything threatening to Garrow at that time. Prior to that day, Garrow had never spoken to Ozmon about his performance.
On the morning of June 7, 2007, Heather Young ("Young"), another BVO unit employee, told Garrow that near the end of the shift on the previous afternoon, Ozmon had stated to her that he would "kick [Garrow's] ass" if he fired him. After speaking with Young, Garrow asked Ozmon to step away from the line so that no one would be able to overhear their conversation. Garrow's version of the conversation is that he asked Ozmon if he made a threatening comment the day before, and Ozmon confirmed that he had. Garrow informed Ozmon that making such comments could get him fired, and Ozmon responded, "fire me now, because I'll punch you in your face right now." Garrow stated that he did not say that he was going to fire Ozmon and walked away. Ozmon's version differs somewhat. According to Ozmon, Garrow told him that "he heard [Ozmon] had been talking crap about him and he would get [Ozmon] fired." Ozmon denies threatening Garrow at that time.
There is a dispute regarding what time in the morning Garrow talked to Pancrazio,*fn1 but it is undisputed that at some time prior to 8:30am on the morning of June 7, 2007, Garrow spoke with Pancrazio about his conversations with Young and Ozmon. Garrow did not ask to have Ozmon fired or to remove him from the plant floor. Pancrazio did not have the authority to fire or discipline Ozmon, but stated that he would contact Human Resources and "take care of the situation." Garrow does not know what Pancrazio did right after they finished speaking.
At 8:30am, Garrow went on break. It took him less than a minute to walk to the break room, which is located in a building next to the BVO line. He did not see Ozmon as he was walking to the break room. In the break room, Garrow heated a piece of pizza in the microwave and sat down at a picnic table to eat. According to Garrow, he had been sitting at the picnic table for about one minute when Ozmon came in and struck him from behind. He fell to the floor, and when he got to his feet, Ozmon charged him, picked him up, and then dropped him to the ground. While Garrow was on the ground, Ozmon continued to hit him with his fists. Garrow testified in his deposition that he was completely surprised by Ozmon and did not expect him to come in and hit him.
Ozmon's version is slightly different. Ozmon states that after entering the break room and getting a drink from the refrigerator, he asked Garrow how "getting him fired was going." He was upset by Garrow's response, so he threw his drink in Garrow's face, at which time Garrow jumped up from the table and punched Ozmon in ...