The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff commenced this employment discrimination action on April 5, 2006 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Item 1. Specifically, he alleges that he was subjected to unequal terms and conditions of employment, a hostile work environment based on his race, and retaliation because of his complaints. The court also reads the pro se complaint to allege wrongful termination.*fn1 Defendant has filed a motion for summary judgment (Item 43) arguing that plaintiff's claims are time-barred, that he failed to exhaust his administrative remedies, that he has failed to establish a prima facie case of discrimination, and that defendant has presented legitimate, non-discriminatory reasons for its employment decisions. For the reasons that follow, defendant's motion is granted, and the complaint is dismissed.
Plaintiff commenced his employment with defendant Whiting Door on August 25, 1997 as a general laborer. In his complaint, he alleges that the first act of discrimination occurred in 1998 and continued consistently thereafter. Item 1. He states that he was harassed on account of his race, was singled out for undesirable jobs, was subjected to racial slurs written on walls, was injured by a co-worker's hot screws, and was screamed at by his supervisor on a daily basis, "including racial slurs on occasion." Id. at 4. On February 6, 2004, plaintiff filed a charge of discrimination with the Equal Opportunity Employment Commission ("EEOC"). In it, plaintiff stated that beginning in approximately June 2004, he was subjected to different terms and conditions of employment, including being forced to "hand stack screws" while other employees were doing less demanding jobs, and having to do other workers' jobs such as pulling baskets. Plaintiff also complained that he was burned with hot screws by a co-worker on October 15, 2003, and was subjected to "antagonizing, abusive and unwelcome comments by the foremen." Id. at 11. Additionally, plaintiff alleged that he was denied promotions and overtime. Plaintiff stated that he filed a grievance on July 10, 2003 alleging discrimination, and on August 6, 2003 received an disciplinary warning for failure to follow procedures. See Item 1, Attachments; Item 47, Exh. A.
In a determination dated March 7, 2006, the EEOC found that the evidence did not establish racial discrimination against plaintiff in job assignments, training, overtime, or promotions. However, the EEOC found evidence of a hostile work environment, in that racial graffiti appeared on the walls of the men's room. While the employer cleaned the walls, no further action was taken against any possible offending employees. Additionally, the EEOC found a substantial under-representation of black employees in the workplace. The EEOC issued plaintiff a Notice of Right to Sue on March 28, 2006. Item 1, Attachments; Item 47, Exh. B.
In support of its motion for summary judgment, defendant has submitted several affidavits which detail plaintiff's work history, including disciplinary actions and grievances. With the assistance of his union, plaintiff submitted a narrative of his grievance filed in July 2003, which included complaints regarding the denial of a forklift position in 2001, unjust discipline in November 2002 for not wearing safety shoes on the production floor, denial of overtime opportunities, denial of promotions, treatment by supervisors, and unfair work assignments. Following an investigation by the employer into each of plaintiff's complaints, defendant found no evidence to corroborate plaintiff's allegations. Item 48, ¶¶ 8-15. The union concurred with the results of the investigation and withdrew the grievance. Id., ¶ 16.
Over the course of his employment with Whiting Door, plaintiff sought three positions. A collective bargaining agreement ("CBA") between defendant and the union sets forth procedures for filling job vacancies. Item 49, ¶ 3. In August 2003, plaintiff submitted his name for consideration for a position, but later withdrew his name. The position was awarded to the only other applicant. Id., ¶ 4. In July 2003, a welder position was awarded, in accordance with the CBA procedures, to the most senior applicant. Id., ¶ 5. In 2001, a position was awarded to another employee with the same seniority date as plaintiff, but with a better work record, in accordance with the CBA. Id, ¶ 6.
On October 15, 2003, plaintiff complained to his supervisor that another employee purposely dumped fasteners too hard which caused them to bounce off the table and hit him. In the course of an investigation, a supervisor interviewed the alleged offending employee, Lori Udell. Udell stated that fasteners often fly off the table due to the fast pace of the production line and that she did not intentionally seek to harm plaintiff. Item 53, ¶ 5. Udell also denied that she sought to interfere with plaintiff's marriage, as plaintiff had alleged. Id. In his deposition, plaintiff admitted that he referred to Udell as an "anorexic bitch" and advised her to mind her own business. Item 47, Exh. C, p. 264. After an investigation, defendant found no intentional behavior on the part of Udell and advised both employees to put aside personal differences. Item 59, ¶ 6.
On August 7, 2003, plaintiff and another employee were both issued warnings for failure to follow procedures in overfilling baskets despite repeated instructions on the proper procedures. The other employee was Caucasian. Item 59, ¶ 7. Plaintiff also received warnings for other work rule violations over the course of his employment, including 14 warnings for excessive absenteeism. Item 48, ¶ 21.
According to the CBA, overtime is to be shared as equally as possible among the employees. Although plaintiff complained that he was denied overtime opportunities, his foreman stated that plaintiff worked 37 hours of overtime during the period of June 20, 2003 to April 22, 2005. Item 50, ¶ 13. Plaintiff had ample opportunities to work overtime, but rarely agreed to do so. Id., ¶ 12. In his deposition, plaintiff admitted that he declined overtime opportunities and even left work during an overtime shift. Item 47, Exh. C., pp. 119, 121.
Plaintiff's foreman and several other laborers stated that their duties in the E-Coat Department of Whiting Door included: hanging and dumping of baskets, raking screws, hand-stacking screws, and relieving other employees for breaks and lunches. Item 50, ¶ 4; Item 52, ¶ 4; Item 54, ¶ 4; Item 55, ¶ 4; Item 56, ¶ 4; Item 59, ¶ 4. Laborer Steve Szilagyi stated that he never saw plaintiff asked to complete any job assignment out of the ordinary. Item 55, ¶ 5.
Whiting Door management became aware of graffiti in the men's room which included a racial epithet. The graffiti was cleaned, the walls were painted black in an effort to discourage future vandalism, and a memo was issued to all employees reminding them of the company's anti-discrimination and harassment policies. Item 49, ¶ 18.
On April 22, 2005, plaintiff was asked by his foreman, Don Deho, to relieve another employee on the production line. Item 50, ¶ 14. Plaintiff became verbally abusive and confrontational. Id. In his deposition, plaintiff admitted that he was "pretty close" to Deho because he was "getting ready to hit him or something." Item 47, Exh. C, p. 325. Plaintiff refused to leave the production floor to discuss the matter even after repeated requests from the foreman, a supervisor, the Human Resources Manager, and his union representative. Item 50, ¶ 15; Item 47, Exh. C, p. 332. Finally, plaintiff went to a conference room but then refused to comment on the situation. Plaintiff was terminated for insubordination. Id., ¶ 17.
In opposition to the motion, plaintiff limited his response to the facts and circumstances surrounding his termination, and argues that his actions on April 22, 2005 were justified and that he was wrongfully terminated. Specifically, he states that he "never refused to do [his] job," but admits ...