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
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
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 ...