United States District Court, E.D. Arkansas, Western Division
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
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. ¶¶
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”) ¶
Doc. No. 106.
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 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.
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).
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.
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
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.
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.
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).
Specific Incidents with Other Employees and
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.
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.
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.”
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.
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
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.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.