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Gibson v. Graphic Packaging International, Inc.

United States District Court, E.D. Arkansas, Western Division

August 10, 2017



         Defendants' motions for summary judgment [Doc. No. 94, 97] are granted on plaintiff Tolton Gibson's hostile work environment and retaliation claims, and denied on Gibson's race discrimination claim.

         I. BACKGROUND

         Gibson is a black man who began working for Mid-America Packaging in 2006. Pl.'s Resp. Opp. Mondi's Facts (“Pl.'s Mondi Facts”) ¶¶ 1-2, Doc. No. 109. Mid-America's bagging operation was purchased by defendant Graphic Packaging in 2010. Id. ¶ 3. Gibson was terminated in 2012, and defendant Mondi Bags purchased the facility in 2014. See Id. ¶¶ 4, 6.

         Gibson brought this suit against Graphic Packaging and Mondi Bags alleging his termination was due to racial discrimination and retaliation. He alleges he worked primarily on one of three bagging machines and that each machine was staffed by three employees: (1) machine operator, (2) helper/trainee, and (3) quality inspector. Gibson Dep. 46:7-46:17, Doc. No. 96; Pl.'s Resp. Opp. Graphic Packaging's Facts (“Pl.'s Graphic Facts”) ¶ 18[1], Doc. No. 106.

         The three-person teams worked in either eight-hour or twelve-hour shifts. Pl.'s Graphic Facts ¶ 19. A labor agreement provided that employees working more than eight hours in a day received additional overtime compensation. Therefore, staff scheduled for a twelve-hour shift were known to be working on “overtime machines.” Gibson Dep. 76:19-76:21; Pl.'s Graphic Facts ¶ 7. A staff member scheduled to work a certain shift does not mean he or she actually worked those hours. See, e.g., Gibson Dep. 45:1-45:5 (machines selected for overtime use varied). For example, Gibson was once asked to move from an eight-hour shift to a twelve-hour shift to cover for another person who was ill. See, e.g., id. 76:4-77:11.

         As far as the racial makeup of these shifts, the eight and twelve hour shifts varied. The eight-hour machines were routinely operated by black employees, while the twelve-hour machines were operated by black and white employees. Id. 119:9-120:11. There were at least two black helper/trainees who worked on the overtime machines: Luther Dean and Alvin Armour. Id. 47:12-47:18.

         A. Staff Schedules

         Machine operators were scheduled to shifts based on seniority. Nason Decl. ¶ 9, Doc. No. 97-5; Pl.'s Facts ¶ 28; Am. Ans. ¶ 29, Doc. No. 80. Gibson refers to this seniority system as “lines of progression” as if the eight-hour shifts and the twelve-hour shifts had separate seniority rankings. There is no evidence, however, to support that conclusion, as Gibson cites to an exhibit with only one list of employees showing only one line of progression for the facility. See, e.g., Doc. No. 105-2 at 14-15. Indeed, the gravamen of Gibson's complaint is that his seniority trumped that of other workers for all shifts. And, although Gibson's theory that the facility had separate lines or progression has been considered, his framing of the record cannot be accepted without referencing admissible evidence to support it. See Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985) (“Legal memoranda and oral argument are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion.”), cert denied, 475 U.S. 1013 (1986).

         Despite Gibson's position that there were separate lines of progression, the undisputed facts in the record show that there were three types of seniority: (1) plant-wide seniority based on time of hire at the facility; (2) departmental seniority based on the date of hire within the department, and (3) job assignment based on time spent in a particular job classification. Am. Compl. ¶ 30, Doc. No. 77; Am. Ans. ¶ 30.

         Ken Nason, someone Gibson regarded as a supervisor, scheduled the hourly employees. At the time of scheduling, Nason would not always know which machines would run eight hours or twelve hours. Although these schedules were set and posted for staff to view, they were not set in stone. For example, an additional order could require employees who were initially scheduled on an eight hour machine to work a twelve hour shift. Nason Decl. ¶¶ 2-7; Pl.'s Graphic Facts ¶¶ 20-21.

         Gibson denies this background by explaining that “If [Nason] were not doing the scheduling, then it would have been Greg Yegohian since Ken Nason admits that he went to Yeghoian when he made adjustments to the schedules[.]” Pl.'s Graphic's Facts ¶ 20. As Gibson routinely does in his response to defendants' motions for summary judgment, he argues that defendants' statements of undisputed fact are disputed but provides no proof disputing those statements. For instance, Gibson denies defendants' statement that Nason did not know which machines would run eight or twelve hours by stating “Nason was able to adjust the schedules[, ]” while citing to Gibson's deposition. That deposition, however, only establishes that (a) Gibson received a work schedule and informed Nason that Gibson should have received overtime and (b) that the schedules came out on Thursdays. Similarly, Gibson denied that employees could swap hours after they were scheduled by providing explanations for why employees might do so. Pl.'s Graphic Facts ¶ 26. Gibson's denials without referencing the record do not transform undisputed facts into disputed ones.

         In 2009, Gibson began complaining that he was not receiving overtime hours. He visited with Nason and argued that his seniority qualified him to receive overtime hours before others. Gibson Dep. 28:7-28:10. Gibson also informed Alvin Armour, a union representative at the facility, who told Gibson to go through the proper channels. Id. 23:5-24:8. In addition to Nason and Armour, Gibson complained about not receiving overtime to Lisa Hankins, the human resources official, and Bill Eubanks, the union's grievance chairperson. Id. 23:5-24:8; 34:11-34:25. Gibson noticed that he would usually be scheduled to work overtime in the week after he lodged a complaint. Id. 35:1-35:4.

         In 2009, Gibson noticed that the facility “started getting Caucasians in the department” that affected his overtime hours. Id. 31:21-31:23. For example, the facility hired Craig McGath, a white man, who was placed on twelve-hour shifts while Gibson received eight-hour shifts. See Pl.'s Graphic Facts ¶ 27. Similarly, Brandon Braswell, a white man, was hired in 2012, and Bradwell received twelve-hour shifts before Gibson. Gibson does not know, however, whether employees scheduled for twelve-hour machines actually worked those twelve hours and received overtime, but he assumed they earned those hours and received the overtime pay. Gibson Dep. 32:8-32:24. For example, despite Gibson's observations that Braswell received overtime shifts before Gibson, pay records show that Gibson actually worked more overtime than Braswell in 2012. See Doc. No. 97-9 at 3-4 (showing that, as of December 2, 2012, Braswell had worked 89.65 overtime hours and Gibson had worked 339.86 overtime hours).

         B. Specific Incidents with Other Employees and Termination

         In addition to his complaints about not receiving overtime, Gibson complained of a “hostile work environment.” In February 2012, Gibson had an altercation with a co-worker, Jesse Stinnett. Stinnett, who was working as a lead-person, instructed Gibson to bale waste - an instruction Gibson refused because he believed the instruction was improper. Stinnett threatened to terminate Gibson. The dispute became heated and John Compton, a black man, had to pull Stinnett away. Gibson Dep. 123:10-123:14.

         Gibson reported this incident to Hankins as a “hostile working environment” because Stinnett overreacted. Id. 38:8-38:10; 123:17-123:24. Gibson described how Stinnett approached Gibson in an “argumentative fashion, ” and Gibson “informed” Hankins that if he had approached Stinnett in that manner, Gibson would have been terminated because Gibson is black and Stinnett is white. Id. 40:19-40:23. Gibson believes that Stinnett's actions were racially motivated due to Stinnett's “mannerism[s].” Id. 41:25-43:17. When asked about this conclusion, Gibson stated “I just feel that his whole attitude that evening was geared towards me, specifically, because he took it upon himself to confront me about something that I had no control over. His - his actions towards [sic] me led me to believe that had I been someone white, never would have had any question - any doubt that that would have happened to them.” Id. 42:22-43:4. Notwithstanding Gibson's belief, this was the only time Stinnett and Gibson had an altercation, and Gibson is not aware of any other incidents involving Stinnett approaching black employees and reacting in a similar manner. Id. 44:13-44:17; Pl.'s Mondi Facts ¶ 51.

         Gibson also had run-ins with Greg Yegohian, a member of the management team. See Yegohian Decl. ¶ 2, Doc. No. 97-8. Yegohian saw Gibson away from his work station and approached him. Gibson advised that he was on his way to the bathroom because he had “no control . . . [of his] bowels” and “needed to go to the bathroom.” Gibson Dep. 53:12-53:23. Another supervisor approached Gibson to ask the same question and told Gibson that Yegohian had asked him to look into it. Gibson then asked Horace Wright, a “union person, ” what the protocol was for using the restroom, and Wright said that if Gibson “need[ed] to go to the restroom, go to the restroom.” Id. 54:20-54:24.

         A second incident with Yegohian occurred when, pursuant to company policy, Gibson informed Yegohian of a quality control issue on one of the machines. Id. 51:3-52:5. Yegohian informed Gibson that “if [Gibson] continued to be a disruption, ” Gibson would “find [himself] terminated.” Id. 67:15-67:18; see also Id. 52:8-52:14. Gibson does not know what “disruption” Yegohian referenced; however, Gibson believes the disruption refers to his prior complaints for not receiving overtime hours. Gibson formed this belief because Yegohian had to have known about the past complaints due to the proximity of Yegohian and Hankins's offices. Id. 66:21-68:1. Gibson notified a company hotline that Yegohian's threat of termination created a “hostile work environment.” Id. 57:12-58:3; 59:9-59:14.

         Another incident involved Kenrick Hence, a lead-person, who told Gibson and his team to move to the sew line because the small bag line could not operate due to a lack of materials. Id. 63:8-63:9; 64:3-64:11. After moving to the sew line, Gibson informed Hence that his gout had flared up and that he needed to go home. Gibson was permitted to leave. After Gibson left, his team was sent back to the small bag line. Id. 63:14-63:22. Gibson believes this was deliberate because he is black. He states that once he went home, the remainder of his team, which was all white, was permitted to go back to the small bags line. Id. 66:15-66:18. Gibson complained to Yegohian that had the team been permitted to stay on the inactive small bags line, Gibson would not have been “shortchanged” in pay caused by Gibson leaving work. Id. 63:19. As Gibson described it, employees who were permitted to return to the small bag line were compensated for their time. See Id. 65:23-66:2.

         Finally, Gibson had another incident with Hence when another employee was ill and the facility needed to place someone else on a twelve-hour shift. Pl.'s Mondi Facts ¶ 55; Gibson Dep. 77:1-77:11. Hence directed Gibson to fill in, but, before filling in, Gibson went to the restroom because of his diabetic condition.[2]Id. 78:13-78:22. After Gibson returned from the restroom, Hence instructed Gibson to leave and threatened to call the sheriff if Gibson refused. ...

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