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Equal Employment Opportunity Commission v. Wrs Infrastructure and Environment

September 27, 2011

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF, RON ADDISON, KEVIN BENSON, J.D. BLAKES, TYRONE GASTON, JIM HERRINGER, KENNETH HUEMMER, CARL MCKNIGHT, NATHANIEL ROBERTS, MICHAEL SMITH, RANDY STEVENSON, AND RALPH TOWNES, INTERVENING PLAINTIFFS,
v.
WRS INFRASTRUCTURE AND ENVIRONMENT, INC. DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

The Equal Employment Opportunity Commission (EEOC) and eleven former employees-seven black, four white-of WRS Infrastructure and Environment, Inc. ("WRS") sued WRS alleging that the company's environmental clean-up worksite near Lake Calumet in Chicago was a racially hostile workplace. Specifically, the black employees allege that they were subject to constant racial harassment, most notably a large noose placed on the work truck of one of the black employees. The four white employees assert that they too were harassed by their white co-workers because they associated with black employees. Two black plaintiffs, Carl McKnight and Ralph Townes, also allege they were fired because of their race. Similarly, two white plaintiffs, Kevin Benson and Randy Stevenson, assert they were fired for engaging in protected activity (Benson) and in retaliation for associating with black employees (Stevenson). For the below reasons, the Court denies in part and grants in part WRS's motion for summary judgment. A reasonable jury could find that the black employees were subject to a hostile work environment based on their race, and that WRS may be held responsible for it. The white employees' hostile work environment claim, however, is based on isolated statements regarding their association with black employees and was not objectively hostile as a matter of law. The Court also grants summary judgment to WRS on Stevenson's termination claim, but denies it as to McKnight's, Townes's, and Benson's claims.

I. MATERIAL UNDISPUTED FACTS*fn1

A. Background

Between 2006 and April 2008, WRS was in charge of soil remediation at a large abandoned industrial site near Lake Calumet on Chicago's far south side on behalf of the Illinois Environmental Protection Agency (IEPA). (Pl. 56.1 Resp. ¶ 1.) WRS's employees at the site included black plaintiffs Ron Addison, J.D. Blakes, Tyrone Gaston, McKnight, Nathaniel Roberts, Michael Smith, and Townes, as well as white plaintiffs Benson, Jim Herringer, Kenneth Huemmer, and Stevenson. (Def. 56.1 Resp. ¶ 3.) At any one point, WRS had between six and twenty heavy equipment operators and two to four laborers on the site under the supervision of Field Superintendent Robert Heck. (Pl. 56.1 Resp. ¶¶ 2-4.) The operators came from one union and the laborers another. (Id. at ¶ 4.) Though the parties dispute the degree of control he had over his fellow operators, Jerry McNeely-the alleged instigator of much of the racial harassment-was the operator's craft foreman for five months in 2007. (Pl. 56.1 Resp. ¶ 7.)*fn2

B. Harassment of Black Employees

1. Harassment Applicable to Multiple Plaintiffs

a. October 2007 Noose and Investigation When he arrived at work on the morning October 11, 2007, Roberts, one of the black employees, found a noose on the steering wheel of his dump truck. (Pl. 56.1 Resp. ¶ 12.) Black plaintiffs Addison, Blakes, Gaston and Smith saw the noose. (Id.; Def. 56.1 Resp. ¶ 19.) Heck called back all the employees to the site's break trailer and asked who put the noose on Roberts' truck. (Pl. 56.1 Resp. ¶ 13.) No one confessed. (Id.) Heck continued the investigation by meeting with Roberts together with the on-site representatives of the unions: McNeely for the operators and Blakes for the laborers. (Id. at ¶ 14.)

Later that day, WRS Program Office Manager Richard Scott arrived from Springfield, Illinois to continue the investigation. (Id. at ¶ 16.) He interviewed the other operators, met with on-site management and union officials, and, according WRS (but disputed by the plaintiffs), reviewed the WRS anti-harassment policy in a meeting with the operators. (Id. at ¶ 17.) At some point (though possibly not the day the noose appeared), Scott asked Roberts if he wanted WRS to notify the police, but Roberts declined. (Id. at ¶ 16.) The next day, Scott met with the laborers for the same reasons and ended the investigation by explaining to Roberts that WRS had not found the individual that put the noose on his truck. (Id. at ¶ 18.) That day, Huemmer saw Joe McNeely, a white operator and father of McNeely, doing a "victory dance," though beyond its timing, it is unclear what connection, if any, the dance had to the noose. (Def. 56.1 Resp. ¶ 20.) WRS did not notify any authorities about the noose, did not make any changes to its harassment policy in response to the incident, and did not conduct sensitivity training (as suggested by its general counsel). (Def. 56.1 Resp. ¶¶ 85, 92.) On January 30, 2008, WRS management found out that the local NBC affiliate intended to run a story regarding racial harassment at the Lake Calumet site. (Def. 56.1 Resp. ¶ 191.) After the story ran, WRS's communications consultant recommended diversity training for the site's employees, but WRS made no further efforts to discuss any racial harassment with the union employees at the site. (Id. at ¶ 93.) A few months later, Townes complained to the Federal Bureau of Investigation about the noose. (Pl. 56.1 Resp. ¶ 19.)

b. Other Incidents

Aside from the noose incident, a number of other racially charged incidents were reported. For example, Ron Mathis, a white WRS employee, wore a Confederate flag bandana on the worksite and Brian Rice put a Confederate flag bumper sticker on both his personal and work trucks. (Def. 56.1 Resp. ¶¶ 14-16, 64; Hunter Dep. at 156-57.) On another occasion, all the black plaintiffs except McKnight saw a noose wrapped around a stuffed white sheep hanging from white operator Brian Rice's truck. (Def. 56.1 Resp. ¶ 17; Pl. 56.1 Resp. ¶ 26.)*fn3 Heck saw it too, and Blakes complained to him about it several times, but Heck did not talk to anyone about it. (Def. 56.1 Resp. ¶ 63; Pl. 56.1 Resp. ¶ 54.) Townes also complained to Rice directly about the noose, telling him it was "grossly offensive to people of color." (Pl. 56.1 Resp. ¶ 131.) Rice told Townes it was "just a piece of string" and kept it on his truck for at least a few more days. (Id. at ¶ 132.)

On another occasion, although WRS asserts it was a sunglass holder (Id. at ¶ 28), all the black plaintiffs, except Roberts, saw a second noose hanging from the rear-view mirror of Rice's personal truck. (Def. 56.1 Resp. ¶ 18.) Blakes pointed out the noose to McNeely, who promised to instruct Rice to remove it, but the parties dispute whether Rice removed it promptly. (Pl. 56.1 Resp. ¶ 29.) McKnight, among others, complained to Heck about the nooses, and Heck's response to McKnight was only, "I guess the man likes nooses." (Def. 56.1 Resp. ¶ 62; Pl. 56.1 Resp. ¶ 26.)

Finally, over the radio, McNeely questioned why black employees took breaks or stopped their machines, but would not question white employees for similar acts. (Def. 56.1 Resp. ¶ 48.) Blakes told Heck that McNeely was a racist and told WRS's health and safety officer Jerome Prince that McNeely picked on people, "mainly the blacks." (Id. at ¶¶ 58-59.) Addison and Blakes also complained to Price about McNeely's behavior and that Heck let McNeely get away with "horseplay and discrimination." (Id.)*fn4

2. Plaintiff-Specific Facts

a. Ron Addison

Addison was an operator between July 2007 and January 2008, when he was laid off pursuant to the operators' union contract. (Pl. 56.1 Resp. ¶ 23.) One week after he started work, Addison, a black operator, dumped dirt in the wrong place; Mathis, a white operator, slammed his bulldozer into Addison's truck and hit later hit Addison's truck a second time. (Pl. 56.1 Resp. ¶ 24; Def. 56.1 Resp. ¶ 33.)*fn5 Addison did not complain directly to WRS that the incident was racially motivated, but raised the incident when the operators met with Scott as part of the noose investigation. (Def. 56.1 Resp. ¶ 25.)

At another point before October 2007, McNeely trapped Addison in a port-o-potty and tipped it, causing the contents to splash on Addison. (Id. at ¶ 34.)*fn6 Addison did not report this incident officially to WRS, but it was discussed over the site's radio. (Pl. 56.1 Resp. ¶ 33.) Joe McNeely complained to Heck, as Addison's union, steward that Heck had taken Addison off a bulldozer because of Addison's race. (Def. 56.1 Resp. ¶ 71.) Addison also complained to WRS management that black employees had to demonstrate their qualifications for particular tasks, whereas white employees did not. (Id. at ¶ 72.) Addison also alleges various other disparate treatment during his employment, including that he was not permitted to haul stone and that McNeely gave white employees overtime instead of him. (Pl. 56.1 Resp. ¶¶ 38-40.)

b. J.D. Blakes

Blakes worked as a laborer at the Lake Calumet site between October 2006 and August 2008, when the IEPA shut down the site for budget reasons. (Id. at ¶ 45.) Blakes was the laborers' union steward and was in charge of reporting violations of the laborer's contract with WRS. (Id.) McNeely told Blakes that the union would be better off without blacks and Mexicans. (Def. 56.1 Resp. ¶ 21.) Blakes also overheard McNeely say that a white operator should be substituted for Smith because "there needed to be a white guy on the truck." (Id. at ¶ 28.) Blakes passed the former comment on to WRS's health and safety officer. (Id. at ¶ 59.)McNeely also swerved his truck toward Blakes five to ten times. (Id. at ¶ 31.) Blakes reported McNeely's behavior to WRS management, and on another occasion told Heck that McNeely was a "racist." (Pl. 56.1 Resp. ¶¶ 51, 62.)Although at the time of the swerving incidents, Blakes did not believe McNeely's behavior was racially motivated, he asserts that his unfavorable work assignments were based on his race. (Id. at ¶¶ 56-58.)

c. Tyrone Gaston

WRS hired Gaston in October 2006 as an operator and laid him off 21 months later as a result of the IEPA's budget cuts. (Pl. 56.1 Resp. ¶ 63.) At one point in June 2007, Heck assigned a white operator, not Gaston, to drive a bulldozer and Gaston went home. (Id. at ¶¶ 71-73.) Gaston believed the reassignment was racially motivated. (Id.)

d. Carl McKnight

The operators union sent McKnight to the Lake Calumet site in March 2007 when WRS requested an operator. (Pl. 56.1 Resp. ¶ 77.) When McKnight confronted McNeely about throwing soda on McKnight's truck, McNeely told him, "[y]our nigger black ass shouldn't be in this union anyway" and "my granddaddy's blood was built by this union and you shouldn't fucking be in here anyway." (Def. 56.1 Resp. ¶ 24.) McKnight complained to Heck that McNeely "called him out on [his] name." (Pl. 56.1 Resp. ¶ 80.) McKnight also overheard McNeely use the term "nigger" and tell racist jokes to other white operators, and told McKnight directly that a black man on a rolling machine "doesn't look good." (Def. 56.1 Resp. ¶¶ 23, 27; Pl. 56.1 Resp. ¶ 81.) McNeely also backed his truck into a port-o-potty with McKnight inside. (Def. 56.1 Resp. ¶ 34; Pl. 56.1 Resp. ¶ 82.) McKnight also asserts that his equipment was substandard and white operators received overtime instead of him. (Id. at ¶¶ 84-86.)

e. Nathaniel Roberts

Roberts drove a dump truck at the Lake Calumet site for six months before he was laid off in January 2008 due to IEPA budget cuts. (Pl. 56.1 Resp. ¶ 87.) At one point, his radio was sabotaged (though easily fixed). (Def. 56.1 Resp. ¶ 30, Pl. 56.1 Resp. ¶ 90.) When he spoke up to complain about it, one of his co-workers commented that it would keep him from listening to "boo boo music." (Id.; Roberts Dep. at 136.) Roberts occasionally heard the word "nigger" coming from a group of white operators and assumed it referred to him because he was the only black person nearby. (Pl. 56.1 Resp. ¶ 96.) In another incident, the battery on Roberts' truck was drained; Roberts believes it was intentional, WRS asserts it was the result of an error in the truck's computer. (Id. at ¶ 93.) On his third day at the Lake Calumet site (and a couple of times later), Roberts complained to Heck that McNeely was a racist. (Id. at ¶ 101.) Roberts also complained to Heck that the equipment assignments were done in a racist manner. (Def. 56.1 Resp. ¶ 69.)

f. Michael Smith

Smith was not a WRS employee, but rather an employee of the company WRS hired to provide a water truck for dust control and washing. (Pl. 56.1 Resp. ΒΆ 104.) WRS, however, exercised day to day control over Smith's activities ...


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