Redmon v. General Motors Co.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This 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 judgment motion.

         I. Uncontroverted Facts

         The 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.

         Defendants 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.

         A. Defendants' Policies

         The GM 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.

         1. Attendance policies

         GM 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.

         GM also 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 medical documentation.

         2. Policies about employee complaints

         If GM 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.

         3. Policies applicable to temporary employees

         GM 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).

         Temporary 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).

         B. Plaintiff's Employment

         Plaintiff 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 assigned department.

         Plaintiff 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 machine's cycle.

         C. Plaintiff's Complaints

         1. Plaintiff's complaint about Austin Cornelius

         On 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 11-12.

         Plaintiff 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.

         Mr. 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.

         After 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).

         Within 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. ¶ 16).

         Plaintiff did not report any incidents of sexual or racial discrimination or harassment between November 2015 and his birthday in May 2016.

         2. Plaintiff's complaint about Mayra Hernandez

         On June 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.

         Plaintiff's 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.

         Plaintiff 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.

         Mr. 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 terminated.

         Plaintiff 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 heritage.^[1]

         D. Plaintiff's Layoff

         Beginning 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.

         On 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.

         Accordingly, 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.

         E. Plaintiff's Termination

         Beginning 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.

         In 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 seniority.

         Plaintiff 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. 34:4-9)).

         F. Plaintiff's Disability

         During 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.

         On 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 ...