United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
filed this lawsuit against his employer, General Motors LLC
(“GM”), alleging that GM demoted plaintiff from a
supervisory position to a non-supervisory position on the
basis of his race. Plaintiff's race discrimination claim
is asserted under both Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §
1981. Plaintiff further alleges that GM demoted him from a
supervisory position to a non-supervisory position in
retaliation for plaintiff's engaging in protected
activity. Plaintiff's retaliation claim is asserted under
Title VII. This matter is presently before the court on
defendant's motion for summary judgment (doc. 29). As
will be explained, the motion is granted with respect to
plaintiff's race discrimination claim and is denied with
respect to plaintiff's retaliation claim.
following facts are uncontroverted, stipulated in the
pretrial order, or related in the light most favorable to
plaintiff as the nonmoving party. Plaintiff Cleatus
“Skip” Marshall, an African-American male, has
been employed with defendant General Motors LLC since 1995,
when he began working as an hourly employee at
defendant's automobile assembly plant in Janesville,
Wisconsin. In 2009, the Janesville plant closed and plaintiff
transferred to defendant's automobile assembly plant in
the Fairfax district of Kansas City, Kansas. He has been
employed at the Fairfax plant since August 2009.
December 2013, plaintiff became a “per diem”
group leader. A per diem group leader is an hourly employee
assigned to manage 30 to 40 hourly employees. Per diem group
leaders may be terminated at the end of any shift on any day
upon notice by management, but generally a per diem group
leader assignment lasts at least 12 months. Prior to his
selection, plaintiff submitted a resume and interviewed with
Jean Manning and Danean Myers, both of whom were operations
managers in the plant's quality department. Both Ms.
Manning and Ms. Myers are Caucasian. Plaintiff was offered
and accepted the per diem group leader position and was
assigned to the Quality Department on the third shift. As a
per diem group leader, plaintiff did not receive regular or
periodic written performance evaluations.
plaintiff began his per diem assignment, he reported directly
to Ms. Myers. The record does not reflect any
performance-related issues that plaintiff had while working
under Ms. Myers' supervision and plaintiff's
personnel file contains no documentation of any performance
deficiencies during the time period he was supervised by Ms.
Myers. In July 2014, plaintiff began reporting to Ms.
Manning. Ms. Myers did not inform Ms. Manning of any
deficiencies in plaintiff's work performance. At that
time, Ms. Manning supervised approximately 10 to 12 group
leaders across three shifts, three of whom, including
plaintiff, were African-American. The record contains no
evidence of any performance deficiencies during the first
seven months that plaintiff worked under Ms. Manning's
supervision. Moreover, in December 2014, plaintiff's per
diem assignment was extended for an additional 12 months and,
in January 2015, plaintiff was selected to assist GM's
Wentzville plant during a slow period at the Fairfax plant.
Plaintiff worked at the Wentzville plant for approximately
February 2015, Ms. Manning had a discussion with plaintiff
regarding “VTIMs, ” which are jobs that are not
properly processed by the driver on the CARE line. The CARE
line is the final inspection station in the assembly process.
Ms. Manning memorialized the discussion by writing that
“it was obvious [plaintiff] did not understand the
process, ” and that she had explained the process to
him as well as the need to address the team member who had
not properly processed the job. The parties dispute whether this
discussion was a one-on-one discussion between Ms. Manning
and plaintiff or whether the discussion was a broader group
discussion between Ms. Manning and other group leaders. Ms.
Manning avers that this discussion occurred solely between
herself and plaintiff. Plaintiff recalls only that Ms.
Manning discussed VTIM issues with all group leaders. In any
event, plaintiff agrees that as a group leader he would have
some responsibility for addressing a team member's
failure to properly process jobs. Approximately two weeks
later, in late February 2015, Ms. Manning documented another
incident in which plaintiff “[r]an out of Israeli
export bags, ” which are utilized to wrap cars for
overseas shipping and that he failed to remedy the situation
by arranging for more to be ordered, causing the line to
operate without the bags. It is unclear from the record
whether Ms. Manning discussed this issue with plaintiff.
Regardless, these are the first two performance issues
documented by Ms. Manning in the first seven months of her
supervision of plaintiff.
a cross-shift meeting on March 3, 2015, plaintiff was giving
an end-of-shift report and discussed an incident in which a
representative of the plant medical department had mistakenly
contacted Edward Tyree, another African-American group
leader, rather than plaintiff to report on the status of one
of plaintiff's assigned employees. After plaintiff
explained the situation and the apparent mistaken identity,
Ms. Manning laughed and said: “Well, all you black guys
look alike.” Ms. Manning testified that her comment was
directed toward the person who had seemed to confuse
plaintiff with Mr. Tyree, noting that individual's
apparent inability to distinguish between two
African-American supervisors. Plaintiff testified that he felt
humiliated by the comment, in part because Ms. Manning was
laughing when she said it and then other members of
management laughed in response. At the end of the meeting,
plaintiff approached Ms. Manning and told her that he found
her comment to be “derogatory.” Ms. Manning
testified that she apologized to plaintiff at that time.
Plaintiff testified that Ms. Manning merely stated that the
comment “was a joke” and walked away without
apologizing to him.
March 23, 2015, Ms. Manning documented a discussion she had
with plaintiff about the Business Plan Development
(“BPD”) board not being up to date and about team
leaders failing to complete Safety Observation Tour cards,
for which plaintiff had responsibility. One week later, on
March 30, 3015, plaintiff reported Ms. Manning's March 3,
2015 comment to Tiffany Brigman, a salaried personnel
representative at the plant. One week after plaintiff's
report, on April 7, 2015, Ms. Manning was issued a verbal
counseling for making the comment. After she received a
verbal counseling, Ms. Manning apologized to plaintiff for
2015, plaintiff was involved in an on-the-job dispute with
Michael Peck, a Caucasian group leader. The dispute began
when Mr. Peck stated that plaintiff's deficient
leadership had contributed to plaintiff's shift failing a
recent audit. During the discussion, Mr. Peck became visibly
agitated, shouted profanities at plaintiff, and ultimately
“chest bumped” plaintiff. Plaintiff reported the
incident to Ms. Brigman and Ms. Manning. Ms. Manning
responded to the incident by moving plaintiff to a different
area within the quality department. Ms. Brigman responded by
verbally counseling Mr. Peck (who denied any physical contact
with plaintiff) and advising him that future incidents would
result in more severe discipline. Shortly after the dispute,
plaintiff went on paternity leave. When he returned to the
plant, he sent an email dated July 16, 2015 to Rita
Derencius, the plant personnel director, in which he pressed
defendant to take action against Mr. Peck and questioned Mr.
Peck's continued employment with defendant and
defendant's commitment to its “zero
tolerance” policy with respect to workplace violence.
Plaintiff then met with Ms. Manning, Ms. Brigman, Rick
Hinzpeter (Ms. Manning's supervisor), and Ms. Derencius
about the incident and defendant's response to it.
Ultimately, a memorandum was placed in Mr. Peck's file
requiring Mr. Peck to participate in a conflict management
webinar and to initiate an Employee Assistance Program
meantime, Ms. Manning continued to document issues relating
to plaintiff's job performance, including plaintiff's
alleged inability to understand various systems and
processes; weak audit results; failure to execute a
Performance Improvement Plan, and reluctance to hold hourly
employees accountable for their work. In September 2015,
plaintiff counseled Lisa Harris, an employee under his
supervision, after she made mistakes relating to the entry of
defects into a computer program utilized to track defects on
the assembly line. On October 19, 2015, Ms. Manning, during
an audit, was made aware of additional mistakes that Ms.
Harris had made. Ms. Manning talked to plaintiff about the
results of the audit and his failure to address Ms.
Harris's performance appropriately. During this
discussion, plaintiff told Ms. Manning that he believed she
was “targeting” him in retaliation for his March
2015 report to Ms. Brigman about Ms. Manning's race-based
meeting with Ms. Manning, plaintiff put Ms. Harris “on
notice” of formal discipline for continuing to make
errors with regard to the entry of defects into the computer
program. As an hourly employee, Ms. Harris was entitled to a
disciplinary interview before the assessment of formal
discipline pursuant to paragraph 76(a) of the collective
bargaining agreement. In his two years as a per diem group
leader, plaintiff had never participated in a “76(a)
interview” or assessed discipline against employees for
anything other than attendance-related violations. Prior to
conducting the 76(a) interview with Ms. Harris, plaintiff had
a discussion with Tim Wells, another manager within the
quality department, who reviewed the process for negotiating
a disciplinary penalty with plaintiff. Mr. Wells suggested
that plaintiff write up a draft of the disciplinary notice.
Plaintiff asserts that he asked Mr. Wells for help, but Mr.
Wells refused to provide it.
the 76(a) interview on October 26, 2015, Ms. Harris's
union representative requested documentation of Ms.
Harris's mistakes. Plaintiff did not have the
documentation and spent 30 minutes looking for pertinent
documents but could not find them. A labor relations
representative present during the interview advised Ms.
Manning that the interview was “the worst” he had
witnessed. Mr. Wells advised Ms. Manning that it was
“very unusual” that plaintiff had not issued any
discipline for shop rules violations during his two years as
a supervisor. Mr. Wells told Ms. Manning that plaintiff seems
“resistant to disciplining hourly employees” and
had a “very strong hourly mentality when it comes to
accomplishing tasks in his day to day function.”
the 76(a) interview, Ms. Manning consulted with Mr. Hinzpeter
as well as Ms. Brigman and Ms. Derencius. Ms. Manning
recommended that plaintiff be removed from his group leader
position. Management agreed with that recommendation and
plaintiff was notified of that decision on November 5, 2015.
In that notification, defendant asserted that it was
returning plaintiff to his prior position as a Team Member in
the body shop as a result of “continued performance
issues” including “resistance/hesitant/not
capable of assessing ...