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Braxton v. Nortek Air Solutions LLC

United States District Court, W.D. Oklahoma

April 4, 2018

DEON R. BRAXTON, et al., Plaintiffs,
NORTEK AIR SOLUTIONS, LLC, a limited liability company doing business in Oklahoma, Defendant.



         Before 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.[1] 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.[2] 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.

         I. Background

         Plaintiffs 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.

         Soon 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.[3] 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.

         On 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.

         In 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.

         On 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.

         The 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.[4] 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 positions.

         On 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.

         Plaintiffs 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.

         In June 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.

         Soon 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.

         On June 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.

         II. Summary Judgment Standard

         Summary 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. 56(c)).

         If 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).

         III. ...

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