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January 15, 2003


The opinion of the court was delivered by: David G. Larimer, United States District Judge



Plaintiff Jerry Cooper ("plaintiff") instituted this action against his former employer, defendant John D. Brush & Co., d/b/a Sentry Group ("Sentry"), alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff, an African-American, alleges constructive discharge and a hostile work environment based on his supervisor's disparate treatment and harassment. Plaintiff claims that the harassment went unremedied by Sentry after he reported it and, as a result, he was forced to resign his position as an assembly line employee. Before the Court are Sentry's motion for summary judgment, brought pursuant to Fed.R. Civ.R. 56, and plaintiff's cross-motion, brought pursuant to Fed.R.Civ.P. 56(f), for additional discovery. For the reasons that follow, Sentry's motion is granted and plaintiff's motion is denied.


Plaintiff worked at Sentry from 1989 until his September 25, 2000 resignation. From 1996 through December of 1999 plaintiff's supervisor was Rick Comstock. Dkt. #12, ¶¶ 7-9. Plaintiff alleges that Comstock discriminated against him in the Spring of 1998 when Comstock told a Sentry insurance representative that plaintiff intended to return to work on a particular date following knee surgery. Plaintiff claims that he had no intention of returning to full-time work for a few months and believes that Comstock made the false report because of plaintiff's race. Dkt. #12, Ex. 8 at 23-27. When plaintiff raised the issue with Sentry's human resources manager, plaintiff refused to meet with Comstock about the incident. It is undisputed that Comstock's actions did not cause plaintiff to be disciplined or affect his job status or conditions of his employment in any way. Id. at 27.

In December of 1999, plaintiff began working under the supervision of Paula Pecora. Pecora reported to department manager Gary Stein. Dkt. #12, ¶ 10. Plaintiff's allegations of discrimination and hostile work environment relate to the manner in which Pecora supervised him on the production line. Plaintiff asserts that Pecora "picked on" him because of his race and strictly enforced or improperly used Sentry's Rules of Conduct and Attendance Policy against him. Dkt. #12, Ex. 8 at 47. Plaintiff claims that Pecora discriminated against him by attempting to write him up numerous times under Sentry's Attendance Policy for things he did not do. Plaintiff also alleges that Pecora harassed him by telling other employees that she was "going to get [him]" Id. at 36. Plaintiff alleges that Pecora took these actions because he was African-American.

Plaintiff bases his allegations on the fact that he heard from a coworker that Pecora had once referred to an Hispanic employee as a "dumb Mexican." Id. at 47. This is the only racial epithet plaintiff alleges Pecora used. Plaintiff does not allege that Pecora used racial epithets in his presence or directed any racial slurs at him. Plaintiff also asserts that two other African-American employees, Corey Seabrook and Robert David, "had trouble" with Pecora. According to plaintiff, both filed complaints with the EEOC or the State Division on Human Rights about Pecora's treatment of them. Id. at 52. Sentry denies that Seabrook filed discrimination charges with either agency or that either Seabrook or David complained to Sentry that Pecora discriminated against them. Dkt. #14, Ex. B at 35-36. Rather, the record shows that Seabrook complained to Miller that Pecora once incorrectly marked him tardy. Dkt. #14, Ex. B at 34.

In February of 2000, plaintiff complained to Sara Miller, Sentry's Human Resources Employment Manager, that Pecora had engaged in "unprofessional conduct" because she said loudly on the production line in the presence of other employees that his unauthorized absence from the line was "B.S. . . . send him to me, I want him, I'll write him up." Dkt. #10, ¶ 12. The unauthorized absence was due to the fact that plaintiff had arranged with the production line's attendance person, Mr. DiMaria, to leave early one day for a court appearance and to make up the time at a later date. According to Sentry's Attendance Policy, however, DiMaria could not grant plaintiff that permission, only Pecora could. When plaintiff reported this conduct to Miller, he declined Miller's offer to speak to Pecora, and instead asked that Miller note that Pecora had acted unprofessionally. At no time during his discussions with Miller did he tell her that he believed Pecora was harassing him because of his race or that he believed Pecora engaged in discrimination. In addition, it is undisputed that plaintiff was not written up for his unauthorized absence in connection with the incident, despite the fact that Pecora could have done so in accordance with Sentry's Attendance Policy. Dkt. #12, ¶¶ 23-26.

Plaintiff again complained to Miller about Pecora in March 2000 because she tried to write him up for another Attendance Policy violation in which he allegedly took a long lunch. Plaintiff denied the allegation and claimed that Pecora improperly wrote him up based solely on the word of a coworker, Dave Thompson. Dkt. #12, ¶ 27. During plaintiff's meeting with Miller, plaintiff told her that he believed Pecora did not like him and was picking on him. Dkt. #10, ¶ 20. When asked to specify how plaintiff believed Pecora was picking on him, plaintiff could not provide any substantive information or elaborate on any specific events. Dkt. #10, ¶ 21. At no time during this meeting did plaintiff state that he believed Pecora did not like him because of his race or that he believed Pecora had engaged in discrimination.

After the second complaint to Miller, she held a meeting with plaintiff, Pecora, and Stein. Pecora denied picking on plaintiff and asked plaintiff to come to her in the future if he believed she was being unfair. Plaintiff agreed to do so and Pecora agreed to communicate better with plaintiff. Dkt. #12, ¶ 31; see also Dkt. #12, Ex. 8 at 55-56; Dkt. #10, ¶ 23. Plaintiff was not written up for any Attendance Policy violation on account of this incident. Dkt. #10, ¶ 25. Plaintiff also alleges that on two or three unspecified occasions, Pecora attempted to write him up for minor attendance infractions, including coming back late from a break. Plaintiff claims that Stein tore up Pecora's written warnings and plaintiff was not disciplined because of them. Plaintiff could not state the dates of these incidents, Dkt. #12, ¶ 34; see also Ex. 8 at 43-45, and Sentry has no record that these incidents occurred. Id. at ¶ 35.

In early September of 2000, Sentry offered a voluntary separation package to its employees as part of a reduction in force ("RIF"), which was to become effective on September 15, 2000. Dkt. #12, ¶ 45. Any employee choosing to participate in the RIF was to complete a written election form and return it to their supervisor by September 13, 2000. Plaintiff did not take advantage of the voluntary RIF because he intended to "stick it out." However, he claims that after the September 13 deadline passed, Pecora continued to harass him and watched him more closely than other employees. Dkt. #12, Ex. 8 at 61. As a result, he claims he did not feel like coming to work on September 21 because Pecora was putting too much pressure on him. Id. at 60.

On September 22, 2000 he was written up for his absence on September 21. Dkt. #10, ¶ 27. Plaintiff had already had Attendance Policy violations on his record. In May of 2000, plaintiff was written up for failing to show up to work or calling to explain his absence. In November 1999, plaintiff was written up for being tardy three times in a 60-day period. Dkt. #12, Exs. 10, 15. The September 21 incident gave plaintiff a total of eight "occurrences" pursuant to the Attendance Policy. If plaintiff received nine occurrences in a rolling 12 month period, it would result in his termination. Dkt. #12, ¶ 42; see also Ex. 17. Plaintiff was given written notice of the violation and his current "occurrence" status.

On or about September 23, plaintiff approached Miller and requested that he be able to participate in the voluntary RIF. On September 25, after Miller addressed plaintiff's request with Sentry, Miller told plaintiff that Sentry could not allow him to participate because it was too late. Plaintiff immediately tendered his resignation to Miller. It is undisputed that plaintiff did not report to Miller that he was quitting because he felt Pecora was discriminating against him. Instead, he told Miller he no longer liked working there and thought he may start his own restaurant business. Dkt. #12, Ex. 8 at 70. It is also undisputed that he remained silent about his feelings of discrimination at his exit interview with Miller. Id. at 71. On the exit interview form (which was completed by Miller), plaintiff told her he had "no issues" with either the working conditions or corporate policies and benefits. However, plaintiff did report to her that he did not want to work for Pecora anymore, but would "rather not" discuss his reasons further. Dkt. #12, Ex. 20. Plaintiff claims that if he told Miller that Pecora was harassing him, Sentry would not have taken any steps to address the issue. Dkt. #12, Ex. 8 at 70-71.

At all times relevant to this suit, Sentry had a written Non-Harassment and Non-Discrimination policy that specifically prohibited harassment or discrimination based on race and provided several ways in which an employee could report that he or she believed they were discriminated against. It is undisputed that plaintiff received a copy of the policy. Dkt. #12, Exs. 2, 3. It is also undisputed that plaintiff never filed a complaint of discrimination with Sentry against Pecora or Comstock pursuant to this policy. Dkt. #10, ¶ 6; Dkt. #12, Ex. 8 at 70-71.


1. Plaintiff's 56(f) motion for further discovery

Before addressing the merits of Sentry's motion for summary judgment, I must address plaintiff's cross-motion for further discovery. In opposition to Sentry's motion, plaintiff submitted only an affidavit pursuant to Rule 56(f)*fn1 requesting that the Court defer ruling on the motion so as to allow further discovery from two witnesses, Corey Seabrook and Robert David. Plaintiff did not submit a ...

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