The opinion of the court was delivered by: Susan K. Lee United States Magistrate Judge
Before the Court are: (1) the motion of Defendants Rock-Tenn Company and Rock-Tenn Company Mill Division, Inc. (collectively "Rock-Tenn") for summary judgment pursuant to Fed. R. Civ. P. 56 on the claims of Plaintiff Kenneth Clack of racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. [Doc. No. 17] and (2) the motion of Plaintiff to strike exhibits E, F, H and I to Rock-Tenn's motion for summary judgment [Doc. No. 29]. Plaintiff has filed a response [Doc. No. 23] and a supplemental response in opposition to Rock-Tenn's motion for a summary judgment [Doc. No. 28]. Rock-Tenn has filed a reply to Plaintiff's response [Doc. No. 30]. Rock-Tenn has also filed a response to Plaintiff's motion to strike [Doc. No. 33].
Also before the Court is the motion of Plaintiff to consider the affidavit of Emmanuel Calloway ("Calloway") in opposition to Rock-Tenn's motion for summary judgment [Doc. No. 39]. Rock-Tenn filed their motion for summary judgment on May 3, 2007 [Doc. No. 17]. On May 23, 2007, Plaintiff moved for an extension of time to respond to Rock-Tenn's motion [Doc. No. 20] and on June 4, 2006, the Court entered an Order extending the time to respond to Rock-Tenn's motion for summary judgment until June 6, 2007 [Doc. No. 24]. On June 1, 2007, Plaintiff filed his response to Rock-Tenn's motion for summary judgment [Doc. No. 23] and, because Plaintiff's response was not complete, Plaintiff filed a supplemental, i.e., complete, response to Rock-Tenn's motion for a summary judgment on June 6, 2007, [Doc. No. 28].
Defendant states that since June 6, 2007, he has secured Calloway's affidavit and seeks to have it considered in ruling on Rock-Tenn's motion for summary judgment [Doc. No. 39 at 1]. Attached to Plaintiff's motion is the affidavit of Calloway, which is dated June 29, 2007 [Doc. No. 39-2]. Plaintiff has chosen to file the affidavit of Calloway some 37 days after his response to Rock-Tenn's motion for a summary judgment was originally due on May 23, 2007, and 23 days after Plaintiff was given an extension of time, from May 23, 2007 to June 6, 2007, in which to respond to Rock-Tenn's motion for a summary judgment. Plaintiff has offered no explanation for the delay in obtaining the affidavit of Calloway other than he did not obtain the affidavit until after he filed his supplemental memorandum. The Court notes, however, Calloway was listed as a witness by Plaintiff as early as June 4, 2007 [Doc. No. 26].
A district court has the discretion to refuse the filing of untimely affidavits filed in support of a motion for a summary judgment. Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1446 (6th Cir. 1993). Plaintiff has not shown good cause for his delay in filing Calloway's affidavit in support of his motion for a summary judgment. Further, trial of this matter is scheduled for July 17, 2007, and there is no indication Rock-Tenn has had an opportunity to respond to Calloway's affidavit. Consequently, the Court will not consider Calloway's untimely affidavit. Accordingly, Plaintiff's motion to consider the affidavit of Calloway in opposition to Rock-Tenn's motion for summary judgment [Doc. No. 39] is DENIED.
Rock-Tenn's motion for a summary judgment and Plaintiff's motion to strike are now ripe for review. In summary, Plaintiff is unable to meet his burden of demonstrating Rock-Tenn's articulated reason for his termination was a pretext designed to mask discrimination and/or retaliation. For the reasons set forth herein: (1) Rock-Tenn's motion for summary judgment [Doc. No. 17] will be GRANTED and (2) Plaintiff's motion to strike [Doc. No. 29] will be DENIED.
An arbitrator found Plaintiff had not been discharged for "good cause" under a collective bargaining agreement ("CBA")*fn1 and ordered that Plaintiff be reinstated and made whole. Plaintiff then filed the instant action in the Chancery Court of Hamilton County, Tennessee seeking attorneys' fees and costs, compensatory damages for lost wages, mental pain, suffering, embarrassment, and humiliation, and punitive damages [Doc. No. 1]. His complaint sets forth claims of racial discrimination and retaliation in violation of Title VII [Doc. No. 1-2 at 3].
Plaintiff alleges that on or about February 2, 2005, after complaining to Rock-Tenn's management about harassment in early 2005, he was sent home from work based upon an alleged incident of insubordination [id. at 4]. Plaintiff alleges he had not been insubordinate, but was attempting to secure his rights under the CBA between Rock-Tenn and the United Steel, Paper and Forest, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local No. 362 (the "Union") [id.]. Plaintiff alleges he was terminated based on his race and prior protected behavior [id.]. Because this Court has federal question subject matter jurisdiction over Plaintiff's Title VII claims under 28 U.S.C. § 1331, Rock-Tenn removed this case from state court to this Court on May 19, 2006, pursuant to 28 U.S.C. § 1441.
Plaintiff is an African-American male and is an employee of Rock-Tenn at its Hamilton, County, Tennessee facility, where all of the acts that form the basis of this action are alleged to have occurred [Doc. No. 1-2 at ¶¶ 5, 7 and 8]. Rock-Tenn's Chattanooga facility is a recycled paperboard mill which purchases and recycles collected waste paper [Doc. No. 28 -2 at 2]. Rock-Tenn's Chattanooga facility, which has between 130 and 135 employees, produces recycled paperboard/cardboard on two paper machines in either a roll or sheet format [id.].
Plaintiff filed his affidavit, dated May 23, 2007, in support of his response to Rock-Tenn's motion for summary judgment [Doc. No. 23-2]. Plaintiff stated he was employed by Rock-Tenn beginning in November 1986 [id. at 1 ¶ 2]. He states that during the period from 1996 through 1998, he was subject to racial harassment at the Rock-Tenn workplace, including "being threatened with a hanging noose and being threatened with having a cross burned in his yard" [id. at ¶ 3]. Plaintiff asserts that after Rock-Tenn learned of this harassment but refused to take any action to protect him, he filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in 1998 and, then filed a lawsuit later that year [id. at ¶ 5]. Plaintiff states the forgoing issues "were ultimately settled during litigation in 2000." [Id.].
Plaintiff states Walter Lancaster ("Lancaster"), the current General Manager at Rock-Tenn's Chattanooga facility, was employed at the facility when Plaintiff filed his lawsuit in 1998 and, following the lawsuit, Lancaster "was rude to me and short with me and treated me differently than workers who had not sued the company" [id. at 1-2, ¶¶ 7, 8]. Plaintiff asserts that on August 28, 2003, he filed a grievance alleging harassment and retaliation against Lancaster [id. at 2, ¶ 8]. On September 12, 2003, Plaintiff filed an EEOC complaint based upon Lancaster's alleged discrimination and retaliation [id. at ¶ 10].
Plaintiff further asserts that on November 1, 2004, he filed a grievance against Bill Murphy ("Murphy") alleging Murphy "had told lies against me and had made threatening statements to me" [id. at ¶ 11]. Plaintiff states that a meeting concerning his grievance against Murphy was held on December 3, 2004 at which he complained that Murphy used racial considerations in his work decisions and treatment concerning Plaintiff [id. at 12]. Plaintiff asserts that as a result of the aforementioned grievance, he was told by Lancaster, "that if I felt I was subject to harassment by Murphy, I should contact Mike McDougal ("McDougal") immediately. I was not instructed to wait until a break" [id. at ¶ 13]. Plaintiff states that after the filing of the aforementioned grievance:
Murphy began to treat me more hostile than even before. When he would speak to me, he would use much harsher tone of voice than with other employees. In addition, I would often see him glaring at me across the workroom floor. This made me very uncomfortable because of his previous threats against me." [id. at 3, ¶ 15].
Plaintiff stated that in February 2005, he was working as the number two filler man [id. at ¶ 16]. According to Plaintiff, as the number two filler man, his job was primarily to load raw materials into the large pulper [id.]. Plaintiff states that on his shift the utility man "was primarily responsible for cleaning up refuse from the process or debris that spilled over . . . onto the floor. The utility man almost exclusively performed this task" [id. at ¶ 17].
According to Plaintiff while he was at work on the morning of February 1, 2005:
Murphy intentionally walked very close to me and bumped into me. This caused me concern because of Murphy's prior threats against me. I intended to report this to Mike McDougal, but did not see him prior to being sent home. [id. at ¶ 18]. Plaintiff states that later during that same day, February 1, 2005, as he was performing his normal duties, "Murphy instructed me to stop my normal job and clean up some debris which had fallen out of the beater. The debris was not in my way and was not interfering with my job responsibilities" [id. at ¶ 19]. Plaintiff's affidavit continues:
23. When I was instructed that it was my job if Murphy said that it was, I perceived this as continued harassment by Murphy of the same nature I had already experienced and in retaliation for my Union grievance that I had filed in November. I therefore told Murphy that I wanted to speak to Mike McDougal. This was in conformance with Mr. McDougal's explicit instructions as a resolution of my November 1, 2004, grievance.
24. When I was instructed to clean the area, I did not refuse to do so. I simply informed Murphy that it was not my job function to perform the task and that I was calling Mr. McDougal.
25. When I informed Murphy that I was going to contact McDougal, Murphy responded that if I did so, he would hold me insubordinate and send me home. When I again said that I was going to call McDougal as per my instructions, Murphy instructed me to contact my Union representative and meet him in the office.
[id. at 4]. Plaintiff further stated that by the time his Union representatives reached the area of the incident "Murphy had returned to the area and appeared to be very angry at me." [Id. at ¶ 26].
Plaintiff states on February 2, 2005, a meeting was held by McDougal concerning the February 1, 2005 events between Plaintiff and Murphy [id. at ¶ 31]. Plaintiff was terminated by Rock-Tenn on February 7, 2005 [id. at ¶ 35]. Plaintiff states, "following my termination, I was replaced by Jeff Stoker, who is white" [id. at ¶ 36]. Plaintiff states pursuant to the CBA, he "grieved my termination of February 7, 2005, and the issue was sent to arbitration. The arbitrator found that there was no just cause for my termination and ordered me reinstated to my work position." [Id. at ¶ 37].
2. Plaintiff's Deposition Testimony
Plaintiff's deposition, taken on March 27, 2007, also appears in the record [Doc. Nos. 19-13 & 19-14]. Plaintiff testified he began working at Rock-Tenn on November 21, 1986 [Doc. No. 19-13 at 5]. Plaintiff testified that at some point during his employment he began working as the number one filler man [id. at 19]. Plaintiff claimed he experienced discrimination, harassment or retaliation while working in that position [id.]. Plaintiff stated on one occasion, both he and his supervisor were not wearing their safety glasses and he was disciplined for not wearing his safety glasses but his supervisor was not [id. at 20]. Plaintiff claims this was discrimination because he was treated differently than his supervisor, who was white [id.]. Plaintiff admitted, however, that he and his supervisor were not similarly situated because his supervisor was in a position of authority above him [id. at 20-21].
Plaintiff also testified about the grievance he filed concerning Lancaster [id. at 37]. Plaintiff testified he was using his fork lift to hold a piece of metal in a position so it could be welded [id.]. Plaintiff stated he was moving his fork lift so the metal could be welded [id.]. Plaintiff stated Lancaster walked in front of his fork lift and told him "to watch where the h*** I'm going" [id.]. Plaintiff stated Lancaster was walking in front of his forklift and got "mad" as the fork lift moved forward while he was in front of it [id. at 40]. Plaintiff stated Lancaster became angry and he thought Lancaster wanted to fight with him [id.]. Plaintiff stated he did not believe the situation was discrimination or harassment, but he filed a grievance because he thought it unreasonable that Lancaster became angry [id.]. Plaintiff admitted, however, that he and Lancaster were both arguing and that he was "yelling back" at Lancaster [Doc. No. 19-14 at 20]. Plaintiff stated Lancaster stated they both needed to calm down and he stated Lancaster did not have "fists or anything" [id. at 21].
Plaintiff stated on another occasion he was putting rolls on the number two filler which were too big [Doc. No. 19-13 at 43]. Plaintiff stated Lancaster and John Stagmaier looked at the conveyor on which he was trying to put the rolls, and he was given a "step" in the disciplinary process [id.]. Plaintiff admitted, however, it was part of his job duties at that time to ensure he was putting the rolls of the correct type and size on his machine [id. at 44]. Plaintiff said after he was given the "step" another white employee, Stoker, admitted he was at fault and the "step" was removed from Plaintiff's file [id.]. Plaintiff claims, however, Stoker did not receive a "step" [id.].*fn2
Plaintiff also testified about the grievance reports he filed in November 2004. He stated superintendent Harvey Martin ("Martin") told him to feed the beater a certain way, but foremen Murphy and Fred Akins ("Akins"),*fn3 who is African-American, told him to feed it another way [id. at 60]. Plaintiff stated he told Murphy and Akins that Martin had told him to feed the beater a different way and Akins told him to feed it the way Akins had directed him to perform the job "or I can hit the clock." [Doc. No. 19-14 at 1]. Plaintiff said as a result, he filed grievance reports claiming harassment against Murphy and Akins [id.]. Plaintiff stated the harassment was that the superintendent wanted the beater loaded one way and the foremen told him to load it another way [id. at 3]. When asked how this dispute was related to either his race or color, Plaintiff stated, "[b]ecause that's the way they do. That's Rock-Tenn." [Id. at 3]. Plaintiff admitted he had no evidence the dispute between the foremen and the superintendent as to how to load the beater had anything to do with him, let alone his race and color [id. at 4].
Plaintiff was specifically asked about what Lancaster told him concerning his grievance/the dispute between the superintendent and the foremen concerning the loading of the beater [id. at 9].
Plaintiff stated Lancaster "told me whatever foreman is on that shift, to do what they say." [Id.]. Plaintiff stated as the general manger, Lancaster was above the superintendent [id.].
Plaintiff claimed he was also harassed by Rock-Tenn in "a couple" of incidents where he was told paper had been "shipped out wet." [id. at 16]. Plaintiff stated he did not know whether paper had been shipped out wet [id.]. Plaintiff stated another time he was told paper had been cut too short [id.]. Plaintiff admitted that if the paper were in fact shipped out wet he would have been at fault and should have been "written up for that" [id. at 17]. He also agreed that if the paper had been sent out too short he also should have been written up for that [id.].
Plaintiff testified about the events of February 1, 2005 [id. at 23]. He testified he was terminated as the result of events occurring that day [id.]. Plaintiff stated on February 1, 2005, Murphy was present when he was dumping a bucket with a forklift [id.]. Plaintiff stated that when he came back with the bucket, Murphy told him to get a tire and clean up some debris [id.]. Plaintiff stated he told Murphy it "wasn't my job, that was Denny Wooten's job. I said, even if I wanted to do it, I don't have the forklift to clamp the tire to clean it." [Id. at 23]. Plaintiff stated Murphy told him, "[i]f I tell you it's your job, then it's your job." [Id.]. Plaintiff stated he then told Murphy, "Well, I'm going to call Mike McDougal." [Id.]. Plaintiff stated Murphy responded, "If you call Mike McDougal, I'm going to hold you for insubordination. Which I didn't think he could do. I went and called Mike McDougal." [Id. at 23-24].
When asked why he was going to telephone McDougal, Plaintiff stated "[b]ecause Mike McDougal and Walt Lancaster told me if I have any problem out of Fred Akins and Bill Murphy, to come to them." [Id. at 24]. Plaintiff admitted Lancaster and McDougal had not told him to ignore what the foreman had to say; instead, they wanted him to let them know about problems with the foreman [id.]. Plaintiff further admitted that even though he did not have the proper fork lift for cleaning up the debris from the area, he could have cleaned up the area with other equipment [id.].
When Plaintiff was asked why he needed Union representatives after Murphy told him to clean up the debris, Plaintiff testified: "Well, basically, because we was arguing, and he had told me he was going to hold me for insubordination for calling Mike McDougal." [Id. at 26]. When asked what the Union was going to do about his argument with Murphy, Plaintiff stated: "Well, we have a union there. They can see what's going on, if it's justified or not." [Id.].
Plaintiff stated after he walked into the break room to call McDougal, he did not see Murphy for a couple of minutes [id. at 26]. Plaintiff stated Murphy came into the break room and stated he wanted Plaintiff off the premises [id. at 27]. Plaintiff stated the Union representatives asked Murphy if Plaintiff had refused to perform the job and Murphy again stated he wanted Plaintiff off the premises [id.]. At this point in the deposition, Plaintiff was asked, "But you didn't do the job when you were asked, did you?" [id. at 28]. Plaintiff's response was "No, sir." [Id.].
Plaintiff stated after he left the premises on February 1, 2005, he was called by McDougal, who told him there was going to be meeting he should attend [id. at 34]. Plaintiff was asked at what point he decided to file an EEOC charge or lawsuit and he stated:
I guess when they actually said I was fired. I didn't feel like they had reason to fire me. I did what they told me to do, to call them if I had a problem. When it came down to it, they didn't hold up to their word. I called, and they didn't hold up to what they told me to do.
When asked what about Murphy's order to clean up the debris constituted discrimination or harassment, Plaintiff stated:
I was told to clean that area when it was Denny Wooten's job to clean it, which is a white employee's job, I was doing my job, He was going to pull me from my job to do a white individual's job. It was his job to do. [Id. at 44]. Plaintiff admitted, however, he had no idea why Denny Wooten ("Wooten") did not perform the job of cleaning up the debris [id.].
3. Ted Bonine's Affidavit
Plaintiff has also submitted the affidavit of Ted Bonine ("Bonine"), dated May 24, 2007 [Doc. No. 23-3]. Bonine, who is white, was employed at Rock-Tenn from approximately 1999 through either 2001 or 2002; and, during his last year of employment, he was a foreman and worked with Murphy [id. at ¶¶ 1, 2, 5]. Bonine stated that he found Murphy to be "extremely racially offensive" and that during the course of his employment at Rock-Tenn, he heard Murphy use "offensive slurs toward black employees, calling them 'n*****s' and 'Black mother f***ers.'." [Id. at ¶ 6]. Bonine states that Murphy also repeatedly opined that black employees "were generally lazy and 'Good for nothing.'" [id. at ¶ 7].
Bonine further stated that Murphy always treated the black employees more harshly than white employees; and, that Murphy seemed to single out Plaintiff for his racially based rage [id. at ¶ 10]. Bonine stated that Murphy was aware of Plaintiff's prior lawsuit against Rock-Tenn, repeatedly spoke about it, and was angry about Plaintiff's prior lawsuit [id. at ¶ 11]. Bonine states on one occasion he traveled with Murphy and during the trip, Murphy repeatedly spoke about Plaintiff in a racially offensive manner [id. at ¶ 12]. Bonine quoted Murphy as stating "[Plaintiff] is nothing but a f***ing n****r" and "I am going to get rid of him." [Id. at ¶ 13]. Bonine stated Murphy said he wanted to throw Plaintiff in the pulper and "string him up" [id. at ¶¶ 14, 15]. Finally, Bonine stated in his affidavit:
As a foreman, I believe that I respected all of the employees and felt that I had a good relationship with the black employees. This made Mr. Murphy angry and he commented that I was too friendly with the black employees. He would also become angry when I would defend a black employee or ask him to stop his offensive language. [id. at ¶ 17].
4. Danelle Rogers' Affidavit
In addition, Plaintiff has submitted the affidavit of Danelle Rogers ("Rogers"), an African-American employee of Rock-Tenn during February 2005 [Doc. No. 23-4 at ¶¶ 1, 2]. Rogers was the Union representative who was called to the scene following the dispute between Plaintiff and Murphy on February 1, 2005 [id. at ¶ 3]. Rogers states both Plaintiff and Murphy were present when he arrived at the scene [id. at ¶ 4]. Rogers also states Plaintiff was asked if he had refused to perform any task and Plaintiff responded he had not refused [id.]. Rogers further states Murphy was asked why he was sending Plaintiff home and Murphy refused to answer [id. at ¶ 5].
Rogers states that when he arrived on the scene, another foreman, Akins had to get between Plaintiff and Murphy in order to prevent a physical altercation [id. at 2, ¶ 7]. Rogers was also present at the February 2, 2005 meeting concerning the events between Plaintiff and Murphy on February 1, 2005 [id. at ¶ 10].
In addition, Rogers' affidavit states that after Plaintiff's termination:
Murphy acted proud of what he had accomplished. He seemed very happy that Mr. Clack had been terminated. His reaction was not consistent to a regular termination. [id. at ¶ 13]. Rogers also states in his affidavit that after Plaintiff was terminated, Murphy "made the statement that he had 'finally got rid of [Plaintiff]'" [Id. at ¶ 14].
5. Tommy Earvin's Affidavit
Plaintiff has also submitted the affidavit of Tommy Earvin ("Earvin") in support of his response to Rock-Tenn's motion [Doc. No. 23-5]. Earvin, an African-American male, has been employed at Rock-Tenn for many years and was employed there in February 2005 when Plaintiff was terminated [id. at ¶¶ 1, 2]. Earvin stated he has "seen management treat [Plaintiff] different than other employees who were not known to complain." [Id. at ¶ 3]. He gave two examples of such "different" treatment [id. at ¶¶ 4, 5]. However, neither involved a claim of insubordination and Earvin failed to state when the incidents occurred [id.].
Earvin stated he observed the incident leading to Plaintiff's termination and observed Murphy "seemed agitated and more aggressive than called for by the situation" [id. at ¶ 6]. Earvin also stated that after Plaintiff was terminated "Murphy acted proud . . . He seemed very happy that [Plaintiff] had been terminated. His reaction was not consistent to a regular termination." [Id. at ¶ 7]. Earvin stated that on several occasions after Plaintiff's termination, Murphy stated "I got the hammer [Plaintiff]" and "I got him." [Id. at 8].
6. Transcript of the February 2, 2005 Meeting
A transcript of the meeting which occurred on February 2, 2005, concerning the incident of February 1, 2005, has been submitted by Rock-Tenn in support of its motion for summary judgment. During the meeting, McDougal asked Plaintiff about the events of February 1, 2005 [Doc. No. 19-8 at 1]. Plaintiff responded that on the morning of February 1, 2005, he was walking through a door at the same time as Murphy and they got too close and Murphy brushed Plaintiff's shoulder [id.]. Plaintiff planned to report the bumping event [id.]. Later that day, Murphy ordered or directed Plaintiff to take the tire and clean up in front of the number two filler beater [id. at 4]. Plaintiff told McDougal he did not do ...