United States District Court, D. Kansas
Roderick J. Hanks, Plaintiff,
Spirit Aerosystems, Inc., A Delaware Corporation, Defendant.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Roderick Hanks, an employee of Spirit Aerosystems, has sued
Spirit for racial harassment and discrimination, retaliation,
and disability discrimination. Spirit has moved for summary
judgment on Hanks' claims. For the reasons provided
herein, the court finds that the defendant's motion
should be granted.
judgment is proper where the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
affidavits, if any, show there is no genuine issue as to any
material fact, and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). In
considering a motion for summary judgment, the court must
examine all evidence in a light most favorable to the
opposing party. McKenzie v. Mercy Hospital, 854 F.2d
365, 367 (10th Cir. 1988). The party moving for summary
judgment must demonstrate its entitlement to summary judgment
beyond a reasonable doubt. Ellis v. El Paso Natural Gas
Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving
party need not disprove plaintiff's claim; it need only
establish that the factual allegations have no legal
significance. Dayton Hudson Corp. v. Macerich Real Estate
Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
resisting a motion for summary judgment, the opposing party
may not rely upon mere allegations or denials contained in
its pleadings or briefs. Rather, the nonmoving party must
come forward with specific facts showing the presence of a
genuine issue of material fact for trial and significant
probative evidence supporting the allegation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the
moving party has carried its burden under Rule 56(c), the
party opposing summary judgment must do more than simply show
there is some metaphysical doubt as to the material facts.
"In the language of the Rule, the nonmoving party must
come forward with 'specific facts showing that there is a
genuine issue for trial.'"
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P.
56(e)) (emphasis in Matsushita). One of the
principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses, and
the rule should be interpreted in a way that allows it to
accomplish this purpose. Celotex Corp. v. Catrett,
477 U.S. 317 (1986).
hired Hanks in March 2006 as an assembly mechanic. He soon
became a level C tooling technician, then increased to a
level B tooling technician, and was eventually assigned to
the cutter crib in May 2011.
steadily received pay increases throughout the course of his
employment. When he was assigned to the cutter crib, he
received an hourly wage of $24.95; Hanks now earns over $32
has had two first-level managers in the cutter crib. Dean
Lebeda was Hanks' first-level manager from May 2011 until
March 2013. Jim Kalal has been Hanks' first-level manager
since March 2013.
has not received any discipline since moving to the cutter
crib in 2011, has not been transferred or demoted, and his
job duties have not changed in a negative manner.
times during Hanks' employment with Spirit, Spirit has
maintained a policy prohibiting harassment and
discrimination, and requires employees to complete periodic
training with respect to preventing discrimination and
harassment. Spirit also periodically reminds employees of its
policy, including that the repercussions of violating it may
include termination. Spirit's policy is stricter and
prohibits more conduct than state and federal law when it
comes to harassment, discrimination, and retaliation; thus, a
finding that Spirit policy has been violated does not mean
that federal or state law was also broken. Spirit's EEO
office investigates complaints of harassment, discrimination,
participated in Spirit's training, was aware of
Spirit's Discrimination and Workplace Harassment
Procedure, and knew Spirit required him to report any alleged
discrimination or harassment to the company's EEO.
prohibits all employees, supervisory or not, from
discriminating or retaliating against employees who
participate in EEO investigations. EEO investigators instruct
supervisors and respondents that such actions against an
employee are prohibited.
has filed six complaints with the EEO office since May, 2011
- five complaints related to his race and one to his alleged
disability. Spirit's EEO office promptly and thoroughly
investigated each complaint and Hanks does not contend they
did anything wrong or should have done anything more. Hanks
knew Spirit's process for reporting incidents of
discrimination and harassment. He admits that he failed to
utilize Spirit's reasonable procedure for reporting
“day to day” incidents he now claims were
discriminatory and harassing.
7, 2012 Complaint
August 7, 2012, Hanks complained about the actions by three
workers: Scott Ingram, Robert Robinson, and Dean Lebeda. The
allegations relating to Robinson (who was disciplined for his
behavior) have nothing to do with race discrimination and are
not at issue in this lawsuit. Hanks alleged that Ingram said
“nigger please” to him. He also stated he had
“been around [Ingram] for a year and he never said
anything like that.” Hanks believed that he and Ingram
were friends- he had helped Ingram with hay outside of work
and the two had gone fishing together. Hanks had been to
Ingram's house twice before the August 2012 complaint.
Hanks alleged that Lebeda referred to the music Hanks was
playing “jigaboo” music.
Taylor promptly and thoroughly investigated Hanks'
complaints and interviewed nine employees, including the
respondents and all witnesses identified by Hanks.
admitted to saying the “N word” in a conversation
with Hanks. In his statement, Ingram stated that he thought
he and Hanks were friends, that he had heard Hanks say the
word twice, and that after Ingram said “nigger please,
” Hanks responded with “whatever cracker.”
Ingram believed they were joking. Ingram and his wife have a
investigation confirmed a violation of Spirit's
Discrimination and Workplace Harassment Procedure with regard
to Ingram, and Ingram was disciplined.
Hanks subsequently alleged that Ingram used a racially
derogatory term in April 2015-more than two years after
Ingram was disciplined in 2012-Spirit EEO did not confirm
that 2015 allegation, and no other employee has ever
complained to EEO that Ingram has ever used racially
Lebeda denied making the “jigaboo” music comment.
The investigation did not confirm that Lebeda made the
“jigaboo” comment, but confirmed Lebeda called
Hanks a troublemaker in front of other employees. Lebeda
received a counseling session, and was instructed to treat
all employees with dignity and respect.
does not mention Lebeda in any other statement provided to
EEO or Spirit Security. The EEO has never confirmed that
Lebeda has ever made any racially derogatory comments.
informed Hanks that the facts gathered in the investigation
confirmed a violation of Spirit policy and that appropriate
action has been or will be taken.
did not report any workplace concerns or complaints to EEO
between his August 2012 complaint and his May 2014 complaint,
and Hanks does not identify any alleged racially
discriminatory, harassing, or retaliatory conduct during this
27, 2014 Complaint
2014, Hanks alleged that Ingram was refusing to train him on
Ingram's machine, that Hanks was missing out on overtime
as a result, and that he did not have the right programs
installed on his machine. The complaint was investigated by
outside counsel, who interviewed ten employees, including
Hanks, the respondents, and alleged witnesses.
investigation did not confirm Hanks' complaint. Ingram
denied the allegations against him and affirmed his
willingness to train Hanks. The witnesses Hanks identified to
substantiate Ingram's alleged statements that he would
not train Hanks denied hearing Ingram make the remarks. Hanks
admitted that certain programs he had requested were
installed on his machine prior to filing a complaint and he
could not identify what specific programs he was missing. The
investigation also could not confirm Hanks' allegations
Response, Hanks points to the statements of a co-worker, Gary
Fullerton, who stated that Hanks had been deprived of
overtime. Fullerton believed that statements that Hanks was
unqualified for overtime were a “total
fabrication” because he himself worked “tons of
overtime.” Hanks also cites his own statement that his
manager Lebeda told him that he would “throw those
fucking cutters away before I let you work overtime.”
responds in part by noting that Fullerton and Hanks were not
similarly situated, as Fullerton at the time had worked in
the crib for some 17 years, Ingram for eight years, and Hanks
for three. More importantly, Hanks does not controvert the
other facts presented by Spirit with respect to the 2014
complaint, including the fact that, when asked about the
issue, Hanks admitted in his deposition that he was not
actually taken out of the weekend rotation. He agreed that he
made a weekend rotation in approximately October 2013, and
that it has been followed ever since, with minor deviations
when people have forgotten who is up next to work overtime.
also uncontroverted that, when questioned about what programs
he did not have on his machine, Hanks could not identify
specific programs, but stated that if someone brings him a
cutter that he does not have the program for, then he cannot
run the cutter. Hanks could not identify any programs that he
had asked for and did not receive, any programs he did not
have that he wanted, or programs that other machine operators
had that he did not have. He also could not specifically
identify more than one or two instances, over the course of
almost six years, when he received a job that he could not
are five ANCA machines in the cutter crib. The different ANCA
machines are “dedicated to different kinds of
cutters” and run different cutters. Different operators
are assigned different machines and different types of
cutters in order to improve efficiency. Although most of the
machines are technically capable of running each type of
cutter, it would require more down time in between running
each cutter and does not make business sense.
testified that the shop receives cutters of lots of different
sizes and that it is not discriminatory to divide up cutters
by sizes among the crew. Hanks is the only person in the shop
who regularly runs the large cutters.
did not identify any “training” he requested but
did not receive. He identified not having programs on his
machine as the training that he has not received.
to Hanks, he asked Lebeda for programs on his machine
“from the time that [the prior operator]
retired.” (Hanks dep. at 193). Hanks replaced the
retiree on the ANCA machine in January, 2012. Hanks did not
identify the lack of programs as a complaint in his August
2012 EEO statements.
also alleged in his May 27, 2014, complaint that he believed
“Jim [Kalal] is racist.” He identified no
evidence other than his personal belief to support this
claim. Hanks stated in his deposition that he no longer
believes Kalal is racist.
3, 2014 Complaint
December 3, 2014, Fullerton found on a union bulletin board a
picture of a black man holding a sign that said, “No
mother should have to fear for her son's life every time
he robs a store.”
told Hanks, who was the only African-American in the crib,
about the picture, and Hanks called Spirit Security, which
immediately removed the posting and began an investigation.
manager Jim Kalal was out of town when the incident occurred,
so another manager, Henry Burns, was contacted and instructed
to address the situation. Burns spoke with employees in the
area, as well as the team lead, but was unable to determine
who posted the picture.
gave a statement to Lucretia Taylor of Spirit's internal
EEO office on December 4, 2014, regarding the anonymous
posting. He did not know who placed the posting on the
uncontroverted that Taylor immediately and thoroughly
investigated the complaint and met with five witnesses,
including Hanks, and coordinated with the investigation by
Security attempted to determine who had printed the picture,
but their investigation was unsuccessful because Security
determined that the paper was not printed at Spirit. During
the investigation, no one admitted to posting it, nor did
anyone see who posted it.
prevent future occurrences, the bulletin board in the cutter
crib was enclosed with glass and a lock and key to prevent
anyone from posting materials without approval. This occurred
within about one week of the incident.
met with Taylor on February 9, 2015, to close out the
investigation. Taylor told Hanks that although the
investigation could not identify the person who posted the
picture, the facts gathered in the investigation confirmed a
violation of Spirit Policy and that appropriate action was
has not witnessed any offensive pictures or posters in the
workplace since the December 3, 2014, posting.
15, 2015 Complaint
filed a complaint with Spirit's EEO office on April 15,
2015, alleging he overheard Ingram say the word
“nigger” twice, and that he heard co-worker
Jordan Light yell “boy.” Hanks does not allege
that the terms were directed at him and does not know the
context of the use of the terms.
Hanks heard Ingram use the “N” word, he put in
his earbuds and listened to his music. Hanks believed he
heard the word “boy” while he was listening to
his music, and when he took out his headphones thought he
heard James Frey ask Light “what does it sound like I
am saying” and Light responded “boy.”
uncontroverted that Brenda Zobkiw, another EEO investigator,
promptly and thoroughly investigated Hanks' complaint and
interviewed ten employees, including Hanks, the alleged
respondents, and witnesses, including all witnesses
identified by Hanks, in the course of her investigation.
the employees interviewed confirmed Hanks' allegations.
In fact, both Ingram and Frey denied using the language Hanks
alleged. Moreover, witnesses who would have been within
hearing distance all denied that Ingram or Frey used that
Spirit's EEO office did not find a violation of policy.
Since the filing of Hanks' April 15, 2015 complaint,
Hanks has not witnessed any other alleged racial epithets in