The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion for summary judgment filed by defendant United Association of Plumbers and Pipefitters Union, Local 101 ("Local 101") (Doc. 30). Local 101 asks the Court to grant it summary judgment on plaintiff John G. Humphrey's claims under the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 (1) that Local 101 discriminated against him on the basis of age, race and sex and (2) retaliated against him for complaining about discrimination and filing a charge with the Equal Employment Opportunity Commission ("EEOC"). Humphrey has responded with a "Motion for Denying" Local 101's motion in which he asks that summary judgment be granted in his favor (Doc. 34). As pointed out in Local 101's motion to strike (Doc. 38), Humphrey's motion was beyond the August 23, 2012, dispositive motion deadline. The Court will therefore grant Local 101's motion to strike Humphrey's filing as a motion but will consider the filing, along with Humphrey's other filings (Docs. 35-37), as a response to Local 101's summary judgment motion.
I. Summary Judgment Standard
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. If the moving party is defending the claim at trial, he need not provide evidence affirmatively negating the plaintiff's claim. It is enough that he point to the absence of evidence to support an essential element of the plaintiff's claim for which he carries the burden of proof at trial Celotex, 477 U.S. at 322-23, 325. Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). Where the defendant has pointed to a lack of evidence for one of the essential elements of a plaintiff's claim, if the plaintiff fails to provide evidence sufficient to establish that element, there is no genuine issue of material fact. Celotex, 477 U.S. at 322-23.
Viewed in the light most favorable to Humphrey, the evidence and the reasonable inferences that can be drawn therefrom establishes the following relevant facts.
Humphrey, a white male born in May 1957, has been a member of Local 101 since July 2003. Beginning in 2008, Local 101 referred Humphrey to jobs for contractor employers.
Beginning in March 2009, Humphrey began working for Bechtel, a contractor, after being referred by Local 101. Later, he became dissatisfied with some of the decisions at the Bechtel worksite. Specifically, Bechtel named him to the position of craft safety steward for a few days in March 2010, then took the position away from him and replaced him with someone more qualified. The replacement was also a white male and was about the same age as Humphrey, who was 52 at the time. Humphrey believes Bill Adrian, Local 101's business manager at the time, and Kevin Lilley, the general foreman, had input into the decision because they met with Bechtel about filling the position approximately a month before Bechtel selected the craft safety steward and later told Humphrey he would never be selected for that position. Humphrey believes Adrian held some personal animus against Humphrey because a company Humphrey used to own had discharged a debt to Local 101's fringe benefit fund in a bankruptcy proceeding and because Humphrey himself owed a large sum of money to a business owned by a friend of Adrian's. Humphrey also believes that Local 101's union steward called Bechtel and said Humphrey was a troublemaker and that that call was why he was removed from the craft safety steward position.
Humphrey is also upset because, in September 2010, he was not chosen to serve on Bechtel's emergency response team. He suspects Lilley played a role in that decision. Also, although he had served satisfactorily as a temporary foreman at least twice before, beginning in the late summer or fall of 2010, Humphrey was not permitted to serve as a foreman on the Bechtel job, and an employee who had allowed him to serve as a temporary foreman was demoted for doing so. Other white males in their forties and fifties served as foremen. In October 2010, Humphrey reported to Local 101 that he believed his work environment was hostile, but he did not report that it was on account of his age, race or sex. In fact, Humphrey never told Local 101 he believed he was being discriminated against in any way because of his age, race or sex. Local 101 did nothing in response to Humphrey's complaint.
Humphrey's employment with Bechtel was not without other problems. In September 2010, Humphrey was accused of inappropriately touching a co-worker, and in October or November 2010, Bechtel suspected him of clocking out for a co-worker.
On November 22, 2010, Bechtel laid Humphrey off along with an apprentice and twenty-five pipefitters from another union. A few weeks later, Humphrey asked Local 101 to refer him to Bechtel again, but the Union informed him that Bechtel would not rehire him because of the aforementioned two problems and because he did not get along with his co-workers. Local 101 continued to refer Humphrey to other jobs out of the area, as Humphrey had requested. It did not refer him one local job he sought.
In February 2011, Humphrey filed a charge with the EEOC, and in May 2011, he received a right to sue letter. In August 2011, Humphrey filed this lawsuit alleging age, race and sex discrimination in violation of the ADEA, 29 U.S.C. §§ 623(a) & 631(a), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and retaliation for complaining of that discrimination and for filing an EEOC charge, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a).
Local 101 asks the Court for summary judgment because Humphrey can present no evidence of discrimination based on age, race or sex or of retaliation. Humphrey's response contains telling admissions. In his response to Local l01's statement of undisputed fact, he agrees to Local 101's statements, "Plaintiff admits that he does not have any facts to support his claim of age, sex or race discrimination," "At no time has defendant Local 101 discriminated against plaintiff on the basis of age, sex, or race," and, "Defendant Local 101 has not taken any action to retaliate against plaintiff for filing his EEOC charge or this lawsuit." (Doc. 32, ¶¶ 19, 41 & 42; Doc. 37, ¶¶ 19, 41 & 42). ...