United States District Court, W.D. Oklahoma
DEON R. BRAXTON, et al., Plaintiffs,
NORTEK AIR SOLUTIONS, LLC, a limited liability company doing business in Oklahoma, Defendant.
L. RUSSELL, UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion for Summary Judgment,
Doc. 20. Plaintiffs are two African American assembly workers
employed by Defendant Nortek, a custom heating, ventilation,
and air conditioning manufacturer. They brought separate suits,
which the Court consolidated, under 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act for race discrimination and
retaliation. See Docs. 1, 12; Zeigler v.
Nortek Air Solutions, LLC, No. CIV-17-278-R, Doc. 1
(W.D. Okla. March 13, 2017). Defendant allegedly sent
Plaintiffs home from work for two days for removing a barrier
between their work stations and subjected them to other
allegedly adverse employment actions. The Court hereby grants
Defendant's Motion for the following reasons.
Deon Braxton and Marcus Zeigler worked together in Defendant
Nortek's “Doors” assembly unit from May or
June, 2014, till June or July, 2016. See Doc. 20-1,
at 2, 5. Before then, Braxton was a coordinator in the
“Cubes” unit. He lost the coordinator title in
early 2014 when Nortek merged with another company and
decided to remove, company-wide, that position; however,
Braxton's pay remained the same. Doc. 20-1, at 2. Nortek
then transferred Braxton to Doors, a comparable assembly
position, in May or June. Braxton believes he was moved
because of “racial profiling” and for complaining
about pay, whereas Defendant claims it was because Braxton
“was resistant to the changes that were being made to
the fan cube line.” Id.; see Doc.
20-2, at 11; Doc. 28-1, at 12.
after Braxton moved to Doors alongside Zeigler, Nortek placed
a “combine bin” between their work stations that
stored work materials and operated as a barrier. Doc. 20-1,
at 4; Doc. 28-7. Defendant argues it intended to minimize
movement and improve efficiency by providing Braxton and
Zeigler with “quick and easy access to the parts and
tools that they needed while they work.” Doc. 20-1, at
4. Plaintiffs, meanwhile, believe the barrier was meant to
frustrate them by preventing them from seeing or talking to
each other. Doc. 20-5, at 1; Doc. 20-8, at 1; Doc.
28-1, at 17-18; Doc. 28-3, at 2. Their direct supervisor,
Clayton Clarkson, told Braxton that he “wanted to have
a bird's eye view on [them] at all times to see what
[they were] doing and everything.” Doc. 28-1, at 20.
Braxton complained of the barrier to Perry Simmons,
Nortek's Operations Manager, who responded, “I know
you don't [like it there.] That's why I'm going
to keep it here.” Id. at 18; Doc. 20-4, at 1.
December 10, 2015, Nortek installed a new coffee maker in the
assembly area and instructed shop employees not to enter the
office for coffee anymore. Doc. 20-1, at 2. Defendant claims
this was intended to prevent coffee, creamer, and sugar
shortages in the office break area. Id. Plaintiff
Braxton believes the coffee policy was actually meant to keep
African American employees out of the office; he sees white
employees get “in there getting coffee all the
time” and management says nothing, and the policy began
shortly after the sole African American manager was
transferred. Doc. 20-2, at 12-13.
early 2016, Nortek says it started locking all campus doors,
except the main entrance, in order to prevent delivery trucks
from bypassing the shipping/receiving area and failing to
complete the necessary paperwork. Doc. 20-1, at 2-3.
Plaintiff Braxton believes that Perry Simmons ordered the
gate locked to annoy Braxton because he liked to take smoke
breaks and talk to his wife without having to walk all the
way around campus to return indoors. When Braxton asked
another employee why the gate was locked and if Simmons was
involved, he answered, “I don't want to get
involved with that, Deon” and “laughed about
it.” Doc. 20-2, at 18-19.
April 20, 2016, Plaintiffs allegedly moved the combine
barrier to clean underneath when Chris Addington, their
“lead, ” asked who moved the barrier. Doc. 20-1,
at 3; Doc. 28-3, at 1. Plaintiffs answered that they moved it
to clean, after which Addington called them into Clayton
Clarkson's office. Id. at 1-2; Doc. 28-1, at
21-22. Clarkson informed Plaintiffs that he was issuing a
verbal warning and sending them home without pay for stopping
work and talking outside of break time. Doc. 20-1, at 3; Doc.
20-3, at 6- 7. When they arrived home, Plaintiffs called
human resources (“HR”) to complain about
“profiling, ” the combine barrier, and being sent
home-Plaintiffs allege they were merely talking about work
and “everybody except for the two black guys”
talks to each other during work without discipline. Doc.
20-2, at 20; Doc. 20-3, at 8; Doc. 28-2, at 16; Doc. 28-4.
Afterward, an HR representative informed Clarkson that he
should not have sent Plaintiffs home without pay and that a
verbal warning should have been sufficient. Doc. 20-1, at 3.
next day, Clarkson told Plaintiffs they would be paid for the
time they were sent home, April 20-21, and Nortek never
withheld their pay. See Doc. 20-1, at 3. Nonetheless,
Clarkson told them they would still receive a “verbal
warning, ” which Clarkson documented in an
“Employee Counseling Report” on April 21, 2016.
Doc. 28-6; see Doc. 20-1, at 4; Doc. 20-5, at 1;
Doc. 20-8, at 1. The report cited “talking but not
performing your job” as the disciplinary reason;
recommended for improvement “not talking for periods of
time or leaving area”; and warned that the
“[c]onsequences of [a] failure to improve” are
“[d]isciplinary action up to and including
termination.” Doc. 28-6. Supervisors keep verbal
warnings exclusively in their office, not in employee
personnel files. Doc. 20-1, at 4. The warning did not affect
their pay or substantially impact their employment, as
Plaintiffs are still employed by Defendant Nortek in assembly
April 21, 2016, Simmons allegedly told Plaintiff Braxton,
“I'm here to have a meeting with you because
you're the one who did all the talking to the HR. And
I'm going to tell you right now it's in your best
interest to let bygones be bygones and act like nothing ever
happened and sweep this under the rug.” Doc. 28-1, at
28-29. Though Simmons denies making this statement, Braxton
perceived it as a threat to stop reporting discrimination.
Doc. 20-2, at 14, 26; Doc. 20-4, at 2.
also claim that Nortek deprived them of raises in the summer
of 2016 in retaliation for reporting the disciplinary
incident to HR. Doc. 1, at 7; Doc. 28-1, at 4-6; Doc. 28-3,
at 1; Zeigler, No. 17-278-R, Doc. 1, at 7. However,
no employee received a raise that summer. Doc. 20-1, at 4;
Doc. 20-2, at 4; Doc. 31-8; Doc. 31-9.
or July, 2016, Nortek moved Zeigler from Doors to Insulation,
which he claims was a retaliatory transfer. Doc. 20-1, at 5;
Zeigler, No. 17-278-R, Doc. 1, at 7. Defendant
alleges that it moved Zeigler because he was unproductive and
Insulation “was an easier position with more help
available from other employees.” Id.
(“The expectation for employees working in the Doors
area is that they will build 10-12 doors per day. Zeigler was
building 3-4 doors per day.”); see Doc. 28-6
(April 21, 2016, verbal warning stating “Expectations
and action steps for improvement, ” “to perform
as required building average 10 doors a day”); Doc.
31-3, at 4-15 (documenting twelve warnings from 2011 to 2015
for lack of productivity, tardiness, talking while not
working, manufacturing errors, and other issues). Zeigler
conceded that he was “one or two doors behind”
quota, but argues that he remained productive and his
reprimands to the contrary were merely
“personal.” Doc. 28-2, at 8-10, 16-17 (explaining
how “re-work” responsibilities negatively
impacted his perceived productivity); Doc. 31-7, at 4, 6.
More important, because Zeigler had just returned to work
from a bout of diabetic neuropathy that paralyzed his leg,
the transfer to Insulation was particularly difficult:
The panels were heavier. I was lifting more weight than I was
at the doors. The work was more strenuous than it was in
doors. You have to remember, I had just came back from a
diabetes neuropathy, which paralyzed my leg, so now I'm
lifting [panels] as tall as this roof and it's 24 inches
wide, with a paralyzed leg while I'm trying to learn how
to walk again.
Doc. 31-7, at 5. Nonetheless, the transfer was technically a
lateral one between assembly units that did not affect
Zeigler's pay. Doc. 20-1, at 5.
after Zeigler's transfer, Nortek removed the combine
barrier and brought in a white employee in Zeigler's
place. Doc. 28-2, at 18-19; Doc. 28-3, at 2; Doc. 28-12.
Plaintiffs are still employed by Defendant Nortek, though
Plaintiff Zeigler has been on medical leave for diabetic
neuropathy since July of 2017. See Doc. 20-1, at 5;
Doc. 20-3, at 3-4.
2 and 3, 2016, Plaintiffs filed Charges of Discrimination
with the Equal Employment Opportunity Commission
(“EEOC”) alleging race discrimination and
retaliation based on the April 20-21, 2016, incident; the
combine barrier; and other disparate disciplinary treatment.
See Docs. 20-5, 20-8. They received EEOC
right-to-sue letters, and on March 13, 2017, Plaintiffs filed
complaints against Nortek. See Doc. 12.
Summary Judgment Standard
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “An issue is ‘genuine' if
there is sufficient evidence on each side so that a rational
trier of fact could resolve the issue either way. . . . An
issue of fact is ‘material' if under the
substantive law it is essential to the proper disposition of
the claim.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
Court construes all facts and reasonable inferences in the
light most favorable to the non-moving party, Macon v.
United Parcel Serv., Inc., 743 F.3d 708, 712-713 (10th
Cir. 2014). The moving party bears the initial burden of
demonstrating the basis for its motion and of identifying
those portions of “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, ” that demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
satisfied, the burden shifts to the nonmoving party to
demonstrate the existence of a genuine issue of material
fact. Whitesel v. Sengenberger, 222 F.3d 861, 867
(10th Cir. 2000). The nonmoving party “may not rest
upon mere allegations” in his pleading to satisfy this
requirement. Anderson, 477 U.S. at 256 (1986).
Rather, Rule 56 “requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and
admissions on file, ' designate ‘specific facts
showing that there is a genuine issue for trial.'”
Celotex, 477 U.S. at 324 (1986). “[T]he
nonmovant's affidavits must be based upon personal
knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not
sufficient.” Hall v. Bellmon, 935 F.2d 1106,
1111 (10th Cir. 1991).