Hunt v. Riverside Transp., Inc., Case No. 11-2020-DJW

SHERMAN M. HUNT, Plaintiff,

v.RIVERSIDE TRANSPORTATION, INC., Defendant.

Case No. 11-2020-DJW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: April 11, 2013

MEMORANDUM AND ORDER

Plaintiff Sherman M. Hunt, proceeding pro se, brings this lawsuit against his former employer, Riverside Transportation, Inc., asserting claims for race discrimination and hostile work environment based on race in violation of Title VII of the Civil Rights Act of 1964,¹ and retaliation under 42 U.S.C. § 1981. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.² This matter is presently before the Court on Riverside's Motion for Summary Judgment (ECF No. 47). As explained in more detail below, the motion is granted. The Court grants summary judgment on Hunt's Title VII race discrimination and Section 1981 retaliation claims, and dismisses Hunt's Title VII hostile work environment claim for failure to exhaust administrative remedies.

I. FACTUAL BACKGROUND

The following facts are either uncontroverted or, where controverted, are construed in the light most favorable to Hunt, the non-moving party. Immaterial facts and factual averments not properly supported by the record are omitted.

A. Employment

Plaintiff Sherman M. Hunt ("Hunt") is an African-American male and was employed by Defendant Riverside Transportation Inc. ("Riverside"), a trucking company. At all relevant times, Riverside operated a maintenance facility and an administrative office.

In the fall of 2008, Riverside began employing Hunt as contract labor on a day to day basis. Hunt cleaned the Riverside maintenance shop and was supervised by Kelvin Brown, Riverside's Maintenance Director. In July 2009, Riverside made Hunt an employee. In February 2010, Hunt was moved to the administrative office, where he was supervised by Riverside's Operations Manager, Sean Tulipana.

B. "Boy" Comment

In December 2010, Riverside hired independent contractor, William Wiley, to remodel the driver's lounge. Wiley is the father-in-law of Riverside's Operations Manager, Sean Tulipana, and is sixty-three years old. On December 2, 2010, Hunt began assisting Wiley on the remodeling project. They had previously worked together on a project at Tulipana's house.

While working together, Hunt believed that Wiley acted inappropriately towards him by referring to him as "boy" and pushing him. The incident was reported to Riverside management. Hunt refused to participate in the investigation. Wiley claimed that he referred to all younger men as "boys." Tulipana conducted an investigation and counseled Wiley that his actionsviolated company policy and that any future violations would result in his removal from the remodeling project. The project was completed without further incident.

C. "Fudgesicle" Comment

On December 28, 2010, Hunt was dancing around like a boxer in the Riverside office kitchen. Gary Martin, another Riverside employee, walked into the kitchen and Hunt told him he could take him. Hunt then called Martin "fat boy" and both of them laughed. Martin returned to his desk, but Hunt continued to make comments to him. Martin returned to the kitchen and he and Hunt play wrestled. Martin then grabbed a broom and told Hunt that if he did not knock it off, he would take the broom and make a "fudgesicle" out of him. Hunt knew it was horseplay, but felt that Martin's "statement damaged [him]." Hunt did not file a formal employee complaint about the "fudgesicle" comment.

D. Aggressive Driving Complaint

Later on December 28, Gary Martin instructed Hunt to drive to Blue Springs and pick up a driver for the company. Hunt wanted to use his personal vehicle instead of the company van, but Martin told him to drive the company van. After Hunt left, Lisa Schermerhorn, Riverside's safety director, received a phone call from a female motorist complaining that a driver in a Riverside van tailgated her, tried to pass her on the shoulder, and then passed her on the left in the area of 7 Highway in Blue Springs, Missouri. The woman described the van's driver and recalled that the driver wore a red jacket. Hunt was wearing a red jacket that day and was the only Riverside driver in that area when the complaint was made.

When Hunt returned to Riverside, his supervisor Tulipana met with him to address the motorist's complaint. Hunt did not give a statement and would not refute the motorist's complaint. Hunt was suspended for three days.

E. December 28, 2010 EEOC Charge

On December 28, 2010, the day he received the three-day suspension, Hunt filed a charge of discrimination with the EEOC against Riverside. On the charge form, he checked the box indicating that the discrimination was based upon his race. He also provided the following details regarding his charge of discrimination:

I have been working for this company as a Janitor/Utility Person since about July 2008. Before that I worked as an independent contractor performing basically the same kind of work. Since I have been employed at this company I believe that I have been treated with disrespect by the entire management staff because of my race, Black African American. They talk to me any way they want to and make comments like "I am going to put my mop handle up your butt and make a fudge sickle out of you".

Today I was forced to drive the company van when I told them I prefer to drive my own vehicle. They said someone called and reported that I cut them off in the van and I was suspended without pay. They didn't listen to my side or give me a warning. I have no one in the company to complain to.

I believe that I am being discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, by being forced to drive the company van and suspended without pay because of my race, Black-African American.³

After receiving notice of the charge, Riverside investigated the "fudgesicle" incident. Lisa Schermerhorn interviewed Gary Martin and a witness, Craig McKenzie. Martin told Schermerhorn that he and Hunt were joking around as they had done in the past and the "fudgesicle" comment was made in jest. Martin was then verbally reprimanded and counseled for making the comment. Shortly thereafter, he received additional training about diversity in the workplace and employee conduct.

F. Greenlee Altercation

On January 12, 2011, Hunt walked into the Riverside break room where Alan Greenlee, a mechanic, was sitting. Hunt started talking about Martin Luther King Day, his recent suspension, and how everyone was trying to keep him down. Greenlee told Hunt to "shut the fuck up." In response to Greenlee's comments, Hunt slapped Greenlee's face and dared Greenlee to hit him. Greenlee called Hunt a "punk." Hunt accused Greenlee of being racist, a member of the Ku Klux Klan ("KKK"), and stated that Greenlee had referred to a co-worker Gary Martin as "Governor Gary." Greenlee accused Hunt of performing oral sex on the company owner. Kelvin Brown, Riverside's Maintenance Director, stopped the argument and ordered both men to get back to work. The argument was reported to management and Greenlee was suspended by Riverside for three days. Hunt was not disciplined for the incident.

G. January 14, 2011 Meeting

On January 14, 2011, Tulipana and Mike Martin, Riverside's comptroller, met with Hunt. They provided Hunt with behavioral guidelines including performing work duties as detailed in a job description; following company policies and procedures; not engaging in acts of insubordination; using appropriate language when addressing employees; refraining from asking employees for loans or cash advances; and allowing employees to perform their jobs without interference. They also gave Hunt a detailed job description and informed him that he would no longer be driving for Riverside business due to safety and liability concerns. Because Hunt could no longer drive for Riverside, there was less work for him to perform so weekly hours decreased from 40 hours per week to 22.5 hours per week unless management gave prior approval for additional hours. However, to offset his decrease in work hours, Riverside offered to increase Hunt's pay by $2.00 to $12.00 per hour.

On the same day of his meeting with Riverside's management, January 14, 2011, Hunt filed his Employment Discrimination Complaint commencing this action.

H. Events Occurring After Hunt Filed This Action

On February 10, 2011, Hunt dumped mop water in freezing temperatures on Riverside's parking lot, causing employee, Gary Martin, to slip and pull a groin muscle. Tulipana counseled Hunt about pouring mop water on Riverside's lot in freezing temperatures. On February 16, 2011, Hunt was observed on camera dumping more mop water on the parking lot. On February 22, 2011, Hunt dumped mop water in freezing temperatures on the Riverside lot for a third time. That same day, Schermerhorn went outside to put rock salt on the frozen mop water and Hunt threw his head back and mocked her. On February 24, 2011, Tulipana left a note on Hunt's locker to come and talk to him about the mop water dumping incidents.

On February 25, 2011, Hunt was clearing snow from Riverside's parking lot with a snow blower and got some snow onto the car of Dayla Field, a new dispatcher at Riverside. Hunt began to yell at Ms. Field and walked into Riverside administrative office and continued to argue. The incident was investigated by Tulipana that same day. Management held a meeting with Hunt to discuss the incident and during questioning, Hunt became aggressive and disruptive and yelled at Tulipana and called him a racist. Tulipana then fired Hunt for violating Riverside's behavioral guidelines, which had been previously outlined in writing for Hunt, by engaging in acts of aggression and insubordination.

After he was fired, Hunt filed a second EEOC discrimination charge against Riverside on February 25, 2011. In this charge, Hunt alleged that after...