United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on defendants General Motors
Company and General Motors LLC, GMVM Fairfax Assembly
Plant's Motion for Summary Judgment (Doc. 61). Plaintiff
Damarcus Redmon has filed a Response (Doc. 68). And,
defendants have filed a Reply (Doc. 70). For reasons
explained below, the court grants defendants' summary
following facts are stipulated by the parties in the Pretrial
Order (Doc. 58) or are uncontroverted for purposes of the
parties' summary judgment motions. The Pretrial Order
provides that all exhibits marked or used during depositions
and all documents produced during discovery meet the
evidentiary standards for foundation and authenticity. Doc.
58 at 6.
General Motors Company and General Motors LLC (collectively,
“GM”) are corporate or limited liability
companies who manufacture automobiles across the United
States and abroad, including at the GM Fairfax Assembly Plant
(“Fairfax Plant”) in Kansas City, Kansas.
Fairfax Plant is a unionized facility, and a local chapter of
the United Auto Workers union (“UAW”) represents
a bargaining unit, which includes production and maintenance
workers. Plaintiff was a member of the bargaining unit and
was covered by the collective bargaining agreement between GM
and the UAW. GM has Equal Employment Opportunity and
Anti-Discrimination workplace policies that prohibit
discrimination and harassment in the workplace based on
protected characteristics (including race, sex, and gender)
and retaliation for complaints of discrimination based on
race, sex, gender, and other protected characteristics.
provides new employees, including plaintiff (a temporary
employee), with an orientation spanning multiple days.
Plaintiff received a copy of GM's orientation packet.
During this orientation program, GM reviewed its workplace
policies, described above. The orientation packet that
plaintiff received contained language from GM's Equal
Employment Opportunity and Anti-Harassment policies, which
plaintiff testified he understood. Doc. 68-5 at 23-25 (Redmon
Dep. 21:1-23:15). During orientation, plaintiff received and
acknowledged his receipt of GM's Employee Attendance and
Shop Rule Policy. That policy provides that GM “may
terminate . . . employment for unsatisfactory performance and
disregard of GM's expectations [including] any unexcused
absences, violation of Shop Rules or Plant/GM
Policies.” Doc. 62-5 at 2. During orientation, GM
reviewed its attendance policy, and plaintiff understood that
absences, without proper notification to management,
constituted grounds for termination. GM informed plaintiff,
and plaintiff confirmed he understood, that attendance was
mandatory for all temporary and flex employees.
informed plaintiff, and plaintiff confirmed he understood,
that he was required to call in any non-preapproved absences
at least 30 minutes before his scheduled shift start time,
and that calling in his absence did not mean the absence was
approved. “If [a] . . . temporary employee calls in and
state[s] that they are going to be absent and they give a
date out in the future, they are not required to call in
every day going forward. However, they are still required to
call in 30 minutes prior to the start of their shift.”
Doc. 68-3 at 22 (Tutt Dep. 79:2-7). If a temporary employee
misses two days of work, GM looks to the “specifics of
the case”-such as the employee implying or notifying
anyone that he planned to quit-to determine whether to
release the employee. Id. at 23 (Tutt Dep.
81:24-82:22). “If the employee has called in stating
that they are sick or injured, we will wait to see if we hear
back from the employee. Until they have contacted GM to
advise that they are actually medically unable to work,
again, we will look at all of the information that we
currently have to make a determination.” Id.
at 23 (Tutt Dep. 82:16-22). This information can include
Policies about employee complaints
receives a complaint-either verbal or written-from an
employee, GM's management reviews the complaint with the
complainant, and then investigates the allegations in the
complaint to decide whether to take disciplinary measures. GM
asks the complainant and witnesses to write statements. GM
also asks the complainant to identify any witnesses and may
check to see who worked in the area where the incident
occurred. GM recommends that employees conducting
investigations note the steps they took in the investigation.
The investigation is documented in both the complainant's
file and the file of the employee named in the complaint.
Policies applicable to temporary employees
hires temporary employees to replace regular employees who
are not working. Temporary employees cannot take a sick leave
of absence; instead, they are placed on medical leave.
Temporary employees receive opportunities to convert to
permanent employees based on their employment start date.
GM's policies for temporary employees provide that a
temporary employee who violates a minor shop rule will
receive a written warning or reprimand for their first and
second violations, provided that the employee was hired at
least 90 days before the violation. Employees may request a
union representative when they receive a warning. These minor
infractions are shop rule violations that would not result in
a “time off” penalty for a regular employee.
Id. (Tutt Dep. 81:4-6).
employees do not have seniority, but those who work at least
90 days also are eligible for 24 hours of unpaid time off,
subject to management's approval. But, temporary
employees do not have access to a process they can use to
request positions based on their “restrictions and
limitations, ” as defined by a doctor. Doc. 68-2 at 45
(Hawkins Dep. 43:1-4). GM allows for “favorable
discharge” of temporary employees who cannot work for
medical reasons. These favorable discharges allow employees
to return to their positions once they are healthy enough to
work. Doc. 68-10 at 11 (Heintzelman Dep. 9:10-18). GM also
enters into “last chance agreements” with some
employees-these agreements allow terminated employees to
“return to work under . . . certain
stipulations.” Id. at 9-10 (Heintzelman Dep.
7:21-8:13). Sheila Heintzelman, a GM staff nurse, testified
that she has observed GM enter into last chance agreements
with former employees who had drug abuse issues and
attendance problems. Id. (Heintzelman Dep. 8:7-13).
Damarcus Redmon is male and African-American. In September
2015, he was hired as a five-days-per-week temporary employee
at the GM Fairfax Plant. He started working at the plant on
September 28, 2015, as an assembly line worker on the second
shift, which starts at 2:30 p.m. The Fairfax Plant's
assembly line has a moving conveyor belt where employees
place parts onto a vehicle and inspect it as it moves along
the belt. Employees working at the Fairfax Plant must be able
to walk and stand to perform their jobs, regardless of their
began working at GM in the Chassis Department on the
“show-line.” This arrangement required him to
assemble the gas cap and the fiber glass cover for hoods. He
was reassigned to the “motor-line” before June
2016 and remained on that line until he was fired in November
2016. His duties on the motor-line included operating a
crane. The crane manipulated a machine, which connected the
transmission to the motor in the vehicles manufactured by the
machine. Plaintiff worked in a three-man team, and his job
required him to use the crane to pick up the transmission,
guide it to the machine, and drop it into a motor that
already had been placed on the machine. After dropping the
transmission into place, plaintiff pushed the transmission
and motor together so the next person on the assembly line
could bolt them to one another. Plaintiff also worked on the
wire harness team. His job there involved taking wire
harnesses out of their delivery boxes, placing them on
motors, and using a small drill to secure the wire in
prefabricated holes on the motors. Plaintiff did no heavy
lifting, and he and other GM employees sat down during the
Plaintiff's complaint about Austin Cornelius
October 8, 2015, plaintiff made a complaint to Labor
Relations Representative Michael Poirier against his
co-worker, Austin Cornelius. Mr. Cornelius had no supervisory
or managerial responsibilities, and he worked in the same
department but in a different group, team, and shift from
plaintiff. Plaintiff reported that Mr. Cornelius (1) threw an
item at the back of plaintiff's head; (2) called
plaintiff a “little bitch”; (3) grabbed and
twisted plaintiff's nipples; and (4) poked and grabbed
plaintiff on the side and lower back. Also, plaintiff
asserted that Mr. Cornelius said the music plaintiff listened
to made Mr. Cornelius's ears bleed and that plaintiff
looked like a gay rapper named “Baby.” Doc. 68 at
identified co-worker Josepha Lara-Smith as a witness to Mr.
Cornelius's conduct. Mr. Poirier requested a statement
from plaintiff and Ms. Lara-Smith about plaintiff's
allegations. Mr. Poirier also spoke with Mr. Cornelius. Mr.
Cornelius admitted hitting plaintiff in the back of the head
with a cap-though he asserted it was accidental-and admitted
to poking plaintiff. But, he denied the other allegations.
Plaintiff did not know why Mr. Cornelius threw an object at
the back of his head, but he testified that it was not
sexual. Doc. 68-5 at 47-48 (Redmon Dep. 45:14-46:16).
Plaintiff believes that Mr. Cornelius and other GM employees
sexually harassed and racially discriminated against him in
violation of GM's policies. Doc. 68-4 at 3. Ms.
Lara-Smith told Mr. Poirier that she witnessed an object hit
plaintiff. Specifically, Ms. Lara-Smith told Mr. Poirier that
she saw Mr. Cornelius throw an object, but that Mr. Cornelius
was playing with another coworker and he missed the coworker,
hitting Mr. Redmon. She denied any knowledge about the other
allegations. Ms. Lara-Smith also told Mr. Poirier that she
did not personally witness Mr. Cornelius touch plaintiff or
witness plaintiff “touch or do anything with” Mr.
Cornelius. Doc. 68 at 12.
Poirier issued Mr. Cornelius an “Employee
Contact” (a form of counseling that is not formal
discipline) and reminded Mr. Cornelius that GM does not
tolerate harassment. Mr. Poirier warned Mr. Cornelius that
violating the Anti-Harassment policy, or other unsatisfactory
job performance, could result in disciplinary action, up to
and including termination. Mr. Poirier wrote in an email to
GM's corporate representative, Ca-Sandra Tutt, that he
did not “spend too much time” on the
investigation and reviewed an Employee Contact document in
another employee's file involving Mr. Cornelius.
Id. at 29. GM placed all the information about
plaintiff's complaint against Mr. Cornelius in the
employee folders of plaintiff and Mr. Cornelius.
complaining about Mr. Cornelius's conduct, plaintiff
testified that he was “pulled” into the office of
another employee, Al Patinel, at least twice. Doc. 68-5 at 96
(Redmon Dep. 96:18-22). Mr. Patinel said plaintiff hadn't
put certain parts on cars moving through the assembly line
that plaintiff “kn[ew] for a fact [he] was putting
on.” Id. at 101 (Redmon Dep. 99:2-10).
Plaintiff testified that he didn't know why he had been
called into Mr. Patinel's office, though he thought it
“had something to do with” his complaint.
Id. at 98 (Redmon Dep. 98:5-7). Plaintiff testified
that Mr. Patinel “threaten[ed]” plaintiff's
“seniority job”-which plaintiff described as an
easier job typically performed by employees with seniority.
Id. at 99 (Redmon Dep. 99:11-22).
two business days of plaintiff's complaint against Mr.
Cornelius, Mr. Poirier moved Mr. Cornelius from the Chassis
Department, “directly by” plaintiff, to the Trim
Department. Doc. 62-3 at 31 (Redmon Dep. 76:8-15). After Mr.
Cornelius was transferred, plaintiff had no further
discussions or physical contact with Mr. Cornelius. Mr.
Cornelius also made no gestures at plaintiff. But, plaintiff
asserted, Mr. Cornelius often visited his mother at the
motor-line where plaintiff was moved. Plaintiff also stated
that Mr. Cornelius “create[d] an uncomfortable and
unwanted work environment by sitting directly across from
[plaintiff] at lunch as to intimidate [him] for reporting the
sexual harassment.” Doc. 68-4 at 3 (Redmon Aff. ¶
did not report any incidents of sexual or racial
discrimination or harassment between November 2015 and his
birthday in May 2016.
Plaintiff's complaint about Mayra Hernandez
2, 2016, plaintiff reported to Mr. Poirier that he had
received two penis-shaped cakes from his co-workers for his
birthday on May 26, 2016. Plaintiff posted pictures of the
two cakes on his Facebook page on May 26. With the picture,
he posted the following text: “The reason why I
can't wear basketball shorts or sweats to work, they will
call me Big D at work, and here's my birthday cake.
LOL.” Doc. 62 at 16 (first citing Doc. 62-3 at 39-40,
(Redmon Dep. 109:18-110:6), 41-42 (121:25-122:2); then citing
Doc. 67-2 at 4-5 (Facebook images)). The cakes were frosted
differently: one had light chocolate frosting, and the other
had dark chocolate frosting. They were two feet long and one
foot wide, with blueberries. Plaintiff reported that someone
told him the blueberries either represented African-American
pubic hair or herpes. Other employees witnessed plaintiff
receiving the cakes during working hours.
supervisor, Joe Heany, was present when plaintiff received
the two cakes. Plaintiff reported to Mr. Heany that he was
uncomfortable with the cakes and that they were unwelcome and
offensive. Doc. 68-4 at 3 (Redmon Aff. ¶ 17), 5 (Redmon
Aff. ¶ 28). But, plaintiff testified, Mr. Heany took no
action after plaintiff made this report. GM's corporate
representative, Ms. Tutt, testified that the cakes could be
considered offensive. And, GM admitted that images and
depictions of penises are inappropriate for the GM work
environment. Doc. 68-11 at 3.
informed Mr. Poirier that the cakes were baked by his
co-worker, Mayra Hernandez, and he explained in his complaint
why the conduct was unwelcome and offensive to him. Ms.
Hernandez had no supervisory or managerial responsibilities.
Mr. Poirier spoke with Ms. Hernandez, who denied baking the
cakes. Ms. Hernandez expressed surprise to Mr. Poirier that
plaintiff had complained about the cakes. She reported that
plaintiff had laughed at the cakes and showed no indication
he was offended by them. Doc. 62-6 at 4 (Poirier Decl. ¶
14). But, plaintiff stated in an affidavit that he
“never welcomed or encouraged sexually explicit
conversations at work and was highly offended when [he]
received the cakes.” Doc. 68-4 at 3 (Redmon Aff. ¶
18). GM did not interview anyone other than Ms. Hernandez to
discern who had made the cakes. GM's corporate
representative, Ms. Tutt, testified that no documentation
existed to indicate Mr. Poirier had completed an
investigation summary. GM did not review plaintiff's
complaint with him, nor did GM ask plaintiff to disclose any
witnesses of the incident.
Poirier issued Ms. Hernandez an Employee Contact-which is not
formal discipline-where he reminded her that GM does not
tolerate harassment. Specifically, Mr. Poirier warned Ms.
Hernandez that violating the Anti-Harassment policy, or other
unsatisfactory job performance, could result in disciplinary
action up to and including termination. Doc. 62-6 at 4
(Poirier Decl. ¶ 16). Ms. Hernandez was not moved to
another area of the plant. Also, she was not suspended or
was able to perform the physical tasks of his job but
testified that the workplace was a “stressful
environment” because he was around people who had
touched him in the wrong way or thought of him as a
“sexual object.” Doc. 68-5 at 144 (Redmon Dep.
142:6-16). Plaintiff also testified that other employees
commented and joked about plaintiff's penis, its size,
and its relationship to his African-American
in June 2016, plaintiff was absent from work at the GM
Fairfax Plant. He testified that he called the absentee line
number provided to him from June 2016 until September 2016 to
inform GM that he would be absent from work because he was
sick. GM has no records of the Central Time call-in log from
June 2016 until September 2016. On June 14, 2016, plaintiff
was laid off from the GM Fairfax Plant, because he had not
come to work. On July 1, 2016, plaintiff returned to GM's
Medical Department for a “Return to Work Evaluation,
” but he was not reinstated. Doc. 68 at 35.
September 26, 2016, plaintiff again returned to the GM
Fairfax Plant and presented medical documentation for his
absence, which he was told to bring when he returned to work.
During his fitness for duty examination, plaintiff informed
the GM Fairfax Plant Medical Department that he had been
absent because of pulmonary embolisms and had received
treatment for his condition. Nurse Sheila Heintzelman
examined plaintiff and concluded he was fit to return to work
without restrictions. Also on September 26, 2016, plaintiff
completed a “Return to Work Questionnaire.” The
Questionnaire reflected that plaintiff could return to
full-duty work from “[d]isability or [c]ompensable
[l]eave.” Id. at 35. The discharge was removed
from plaintiff's record and was coded as a layoff because
plaintiff had been unable to perform his job.
plaintiff was recalled from layoff effective on September 26,
2016. On September 29, 2016, plaintiff was offered, and
accepted, the opportunity to convert from a
five-days-per-week temporary employee to a two-days-per-week
temporary employee, effective October 31, 2016. This
conversion opportunity was offered to other five-day
temporary employees at the GM Fairfax Plant.
on October 10, 2016, plaintiff again was absent from work at
the GM Fairfax Plant. Between October 10, 2016, and November
2, 2016, plaintiff did not contact the UAW Committeeperson,
the GM Fairfax Plant Labor Relations/Employment offices, or
the GM Fairfax Plant Medical Department about his absences.
Plaintiff's employment was terminated from the GM Fairfax
Plant on November 2, 2016.
November 2016, plaintiff spoke with Dwayne Hawkins, his UAW
Committeeperson, about his termination. Plaintiff requested a
leave of absence from GM but was ineligible because he was a
temporary employee. Mr. Hawkins spoke with GM Fairfax Plant
Personnel Director Rita Derencius about the termination.
Plaintiff was offered a position as a two-days-per-week
temporary employee with a new hire date for purposes of his
failed to report to work on November 28, 2016, rejecting the
offer of a position as a two-day temporary employee. GM
represented that plaintiff was terminated because of
“[u]nexcused absences from work and failure to properly
report.” Id. at 36. GM also represented that
plaintiff had not received management approval or notified
management of his absences at least 30 minutes before his
shift start time. But, plaintiff asserts that he followed
GM's policy and reported his absences in October and
November 2016. He asserts that GM has “no way to
ascertain precisely when [p]laintiff called his absences
in” because GM's timekeeping system doesn't
record calls to report absences when they begin-instead, the
system records calls when they end. Id. at 16. Also,
plaintiff asserts that GM's policy does not require
employees to call in every day once they have reported an
absence with a future return date. GM asserted that plaintiff
was given a verbal warning, but plaintiff was given no
disciplinary verbal, written, or final warning about his
attendance. Plaintiff also recorded a conversation with GM
nurse Sheila Heintzelman, during which Ms. Heintzelman told
plaintiff that he received a “favorable
discharge”-meaning that he was “not terminated
for disciplinary reasons.” Id. at 17 (citing
Doc. 68-10 at 14-15 (Heintzelman Dep. 12:17-13:3)). Ms.
Heintzelman also authored a nurse's note stating that
plaintiff was “terminated for unknown reasons.”
Id. (citing Doc. 68-10 at 36 (Heintzelman Dep.
plaintiff's employment with GM, he was diagnosed with
pulmonary embolisms, deep vein thrombosis, and a tumor on his
lung. He also was diagnosed with cardiomyopathy, disseminate
distoplasmosis, and hypercoagulable state, beginning in June
2016. One of plaintiff's treating physicians, Lawrence
Dall, opined that at least from October 2016 until at least
December 16, 2016, plaintiff was “not in a position to
work at the assembly line.” Doc. 68-9 at 14 (Dall Dep.
12:18-23). Mr. Dall explained that he assumed the assembly
line work was a “very active type of physical labor,
” and that he didn't have any personal knowledge of
the assembly line jobs, or any jobs, at GM. Id. at
15 (Dall Dep. 13:1-12). He testified that, at the time of Mr.
Dall's deposition, plaintiff had shown clinical
improvement and could go back to work.
November 17, 2016, plaintiff presented Jane Stark, a doctor
working in GM's Medical Department, with a note from the
Mayo Clinic. The note asserted that plaintiff needed to
“refrain from strenuous activities.” Doc. 68 at
37. Ms. Stark interpreted this restriction to mean plaintiff
only could perform sedentary work. GM did not have a record
from plaintiff's doctor restricting him to sedentary
work. But, GM's doctor recommended returning plaintiff to
sedentary, self-paced work with the ability to ...