United States District Court, N.D. Illinois, Eastern Division
BEUGRE S. NEHAN, Plaintiff,
TOOTSIE ROLL INDUSTRIES, INC., Defendant
[Copyrighted Material Omitted]
For Beugre S Nehan, Plaintiff: H. Yvonne Coleman, LEAD ATTORNEY, Law Office of H. Yvonne Coleman, P.C., Chicago, IL; Lanre O. Amu, LEAD ATTORNEY, Law Offices of Lanre O. Amu, Chicago, IL.
For Tootsie Roll Industries, LLC, Defendant: Tracy Marie Billows, LEAD ATTORNEY, Abigail Deirdre Flynn-kozara, Sheldon Leigh Jeter, Seyfarth Shaw LLP, Chicago, IL.
MEMORANDUM OPINION AND ORDER
John J. Tharp, Jr.,
United States District Judge
The plaintiff, Beugre S. Nehan, alleges that his employer, Tootsie Roll Industries, Inc. (" Tootsie Roll" ), discriminated against him on the basis of his race, national origin, and disability, and retaliated against him for having engaged in protected conduct. Tootsie Roll now moves for summary judgment on all counts. For the following reasons, the motion is granted.
A. Nehan's Compliance with Local Rule 56.1
As an initial matter, Tootsie Roll requests that the Court strike from the record an enumerated list of Nehan's responses to its Local Rule 56.1 Statement and certain entries in his Supplemental Statement of Undisputed Facts. Tootsie Roll complains that Nehan does not cite specific paragraphs of his affidavit in his Supplemental Statement and argues that the denials that are based solely on his opinions, speculation, and legal argument should be stricken. Local Rule 56.1(b)(3) requires the party opposing summary judgment, when disputing a fact, to include " specific references to the affidavits, parts of the records, and other supporting materials relied upon," and a separate and additional statement for " any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." 56.1(b)(3)(B), (C). It is the usual practice of courts to disregard improperly supported denials and fact statements, as well as immaterial assertions. See Cady v. Sheahan, 467 F.3d 1057, 1060-61 (7th Cir. 2006) (district court properly exercised its discretion to disregard a statement of material facts that failed to adequately cite the record and included irrelevant information, legal argument, and conjecture); Ammons v. Aramak Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (district court did not abuse its discretion to strike additional facts not included in a separate statement); Payne, 337 F.3d at 773 (noting that evidence presented to defeat summary judgment must be based on personal knowledge and must set forth specific facts showing that there is a genuine issue for trial). The Court has followed these practices here. To the extent that Nehan fails to effectively dispute facts properly set forth and supported by Tootsie Roll, those facts are deemed admitted for the purposes
of this motion. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (citing Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003)). Finally, because a Rule 56.1(b)(3) response is not the place for a party to assert additional facts, see Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316 (7th Cir. 1995)), such extraneous assertions in Nehan's response to Tootsie Roll's statement are disregarded here. The factual background is accordingly taken from the parties' Local Rule 56.1 Statements to the extent that they are material, properly supported, and do not violate the local rules.
B. Nehan and Rush Affidavits
Tootsie Roll also requests that the Court strike from the record two affidavits submitted by Nehan, the first being his own. Tootsie Roll argues that Nehan's affidavit includes only his own speculative beliefs about matters on which he is not qualified to testify and that it conflicts with his earlier deposition testimony. The Seventh Circuit " ha[s] been highly critical of efforts to patch up a party's deposition with his own subsequent affidavit." Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995). Where deposition testimony and an affidavit conflict, the affidavit is to be disregarded " unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Id. at 67-68; see also United States v. Funds in Amount of One Hundred Thousand One Hundred and Twenty Dollars, 730 F.3d 711, 718 (7th Cir. 2013) (" [W]e do not allow litigants to manufacture material fact questions by affidavit testimony that contradicts prior sworn testimony." ). Nehan makes clear in his deposition that he was permitted to use a forklift after June 4, 2010. See, e.g., Dep. 268:23- 269:1 (acknowledging use of forklift on July 23, 2010); Dep. 318:20-319:3 (" Q: Mr. Nehan, between June 4, 2010 and your termination, were you allowed to use the forklift in the performance of your duties? . . . A: Yes." ). Likewise, Nehan clearly stated in his deposition that Ed Weber, a warehouse and distribution manager at Tootsie Roll, told him that he did not have to use a forklift when he came to work. In his affidavit, however, Nehan states that " [I]n my deposition I stated that Ed Weber told me on June 4, 2010, that 'you don't have to use the forklift when you come to work.' By using that phrasing I was stating--to my understanding--that Ed Weber told me that I cannot use the forklift when I come to work." Pl.'s Aff. ¶ 3, Dkt. 59-1. Nehan attempts to explain the inconsistency by adverting to the fact that English is his second language, asserting in his affidavit that " [s]ometimes when I express myself and communicate, my phrasing and choice of words is different than what I mean to say." That English is Nehan's second language, however, fails to account for the problem, for at least three reasons. First, Nehan repeated his testimony that Weber told him he did not " have to" use the forklift several times throughout the deposition, e.g., 19:17-19; 268:18-19, suggesting that his phrasing was not simply an isolated misstatement. Second, Nehan mischaracterizes the statement in his affidavit; he testified in his deposition that Weber told him that if he was told to go pick ( i.e., to pick cases of candy to be assembled on a pallet for shipping, see infra at 5), " you don't have to pick [with a] forklift," and in the context of picking a pallet, a task that requires the candy to be placed on the pallet by hand, the comment makes perfect
sense. See also Nehan Dep. Ex. 14 (EEOC Complaint, describing Weber's statement as " it was not necessary for me to use the forklift every time I work overtime" ). Most significant, Nehan's contention that he meant to say that Weber told him he could no longer use forklifts at all is contrary to his multiple acknowledgements during his deposition that he used a forklift after June 4, 2010--acknowledgments that cannot be explained away as the result of poor phrasing on Nehan's part. Accordingly, the portions of Nehan's affidavit and statements of fact that rely on his claim that Weber told him he could no longer use a forklift are stricken and disregarded here.
Tootsie Roll also argues that the affidavit of Nehan's former coworker, Hi-Lo Operator Byron Rush, should be stricken because no foundation exists for certain of his allegations, his allegations are conclusory, and some of his allegations are irrelevant. Federal Rule of Civil Procedure 56(c)(4) requires affidavits used to support or oppose a motion for summary judgment to " be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." " Although 'personal knowledge' may include inferences and opinions, those inferences must be substantiated by specific facts." Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (citation omitted). In his affidavit, Rush claims that forklifts are available to workers on a first-come, first-served basis and that " [w]hoever arrives first is entitled to use the forklift." Pl.'s Ex. I, Dkt. 59-4. While Rush also works as a Hi-Lo Operator and so would have observed how forklifts are used at Tootsie Roll, he does not identify the foundation for his claim that the first worker is " entitled," as though by policy, to use a forklift. Tootsie Roll's motion to strike is therefore granted as to this portion of the affidavit. Rush's other assertions are irrelevant to the determinative issues here, therefore it is unnecessary to further consider this request to strike.
C. Factual Background
Tootsie Roll is a confectionary company that manufactures and distributes candy, including Tootsie Rolls, Junior Mints, Fluffy Stuff, and Dubble Bubble bubble gum. Nehan, an African American who immigrated to the United States from the Ivory Coast, was employed at Tootsie Roll's Chicago, Illinois, plant from June 18, 2002, to August 18, 2010 (though he was laid off for some portions of this tenure). Nehan was initially hired as a Laborer. Throughout his employment, he worked in different departments. At the time of his discharge, Nehan was working as a Hi-Lo Shipping and Receiving Operator in Tootsie Roll's shipping and receiving department, a position that Nehan asserts is interchangeably called a " forklift driver."
In his role as a Hi-Lo Shipping and Receiving Operator, Nehan moved products from one location to another, loaded trucks by forklift or by hand, and " picked" cases of candy to create pallets for shipping. Picking cases involves logging into a computer and selecting what the computer indicates should be included in the case. Tootsie Roll expects employees to use a motorized pallet jack, known as a " walkie," when picking cases. Employees stand on the walkies and maneuver them between pallets. Walkies are lower to the ground and smaller than forklifts. If no walkies are available, employees may use forklifts. When using a forklift, employees climb in and out of a cab each time they pick a new box of candy; this action is not required
with a walkie. Certain tasks can be done with a forklift but not a walkie; a forklift can lift a pallet forty feet in the air, a walkie lifts it only two. Regardless of whether a forklift or walkie is used, each case of candy needs to be placed on the pallet by hand.
While employed at Tootsie Roll, Nehan was a member of the bargaining unit represented by the Local Union No. 1 Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, AFL-CIO-CLC (" Union" ). The terms and conditions of his employment were governed by a collective bargaining agreement (" CBA" ) between Tootsie Roll and the Union. As required by the CBA, decisions about promotions, transfers, and layoffs are governed by seniority and are determined on both a plant-wide and departmental basis. The CBA contains a nondiscrimination provision that provides " Neither the Employer nor the Union shall discriminate against any individual because of his or her race, color . . . national origin . . . disability . . . or any other legally protected status as defined by law." The CBA further provides that Tootsie Roll and the Union " agree to abide by the [Americans with Disabilities Act (" ADA" )] with regard to reasonable accommodations for disabled employees and furthermore agree to meet and confer regarding situations in which such decisions may create misunderstandings." Tootsie Roll provides its managers with training on equal employment opportunity laws; one such session was conducted eight months before Nehan filed his complaint. Tootsie Roll's Overtime Policy does not include any provision requiring reasonable accommodation for employees with disabilities. Tootsie Roll also maintains a " Work Conduct in a Working Environment Policy," which prohibits employees from intimidating or threatening other employees.
Tootsie Roll's business is cyclical; it is typically busiest in advance of Halloween. Tootsie Roll sometimes has plant shut-downs where it operates with a skeletal staff to perform maintenance and other work on an as-needed basis. During the shut-downs, employees are subject to being laid off. Consistent with the seniority process, employees are laid off and called back from being laid off in order of seniority. Nehan acknowledged in his deposition that he was laid off less often as he gained seniority with the company.
Tootsie Roll employees are sometimes given the option to work overtime. As Edward Weber, who oversees shipping, receiving, and warehousing, describes the optional overtime process, the shipping and receiving department maintains a list of employees' phone numbers in seniority order. According to Weber, after an employee is called for overtime, he or she will not be called again until the department has called everyone on the list. Tootsie Roll also sometimes requires employees to work mandatory overtime. The Warehouse Shipping and Receiving department sets forth specific expectations regarding mandatory overtime; the department will schedule ten-hour days and Saturdays when needed, and repeated refusals to work this overtime results in disciplinary action under the Plant Rules.
Tootsie Roll's Plant Work Rules set forth the disciplinary steps for rule infractions. For example, insubordination typically results in suspension in the first instance and discharge in the second. Tootsie Roll reserves the right to accelerate or decelerate the disciplinary steps based on the nature of the conduct. These rules were posted in the plant and provided to Nehan.
Nehan has had multiple back injuries. In 2002, before he began working for Tootsie Roll, he suffered a back injury while working for another employer, Harrah's Casino. Subsequently, he had back surgery during a period in which he was laid off from Tootsie Roll. Nehan returned to work at Tootsie Roll in 2004 and provided a work release form to the Director of Human Resources. The form, which was dated June 17, 2004, and signed by Dr. Levin, indicated that Nehan should " [a]void repetitive/continuous bending or twisting; neck/low back" and " [m]ay lift and carry up to 30-40 lbs., between waist and shoulders." Pl.'s Ex. F, Dkt. 59-3. Nehan suffered additional back injuries while ...