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Walker v. Schwarze Industries, Inc.

United States District Court, N.D. Alabama, Northeastern Division

November 12, 2014



C. LYNWOOD SMITH, Jr., District Judge.

This action was brought by Jeffrey Walker against his former employer, Schwarze Industries, Inc. Walker asserts claims for race discrimination, retaliation, and a retaliatory hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.[1] The case presently is before the court on the defendant's motion for summary judgment and motion to strike portions of the affidavit submitted by plaintiff in opposition to summary judgment.[2] Upon consideration of the pleadings, briefs, and evidentiary submissions, this court concludes that the motion to strike should be denied, and the motion for summary judgment should be granted in part and denied in part.


Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) ( en banc ) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").


Defendant's motion to strike attacks numerous statements contained in plaintiff's opposition affidavit. Defendant argues that three statements are not admissible because Walker lacked personal knowledge of the matters about which he testified. See Fed.R.Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony....") (ellipses supplied). For example, defendant moves to strike Walker's statement that his direct supervisor, Don Neal, "seemed to offer voluntary overtime work to Tony Payne (Caucasian) and James Eaton (Caucasian) first and would not give me the same opportunity to work or turn it down."[3] Defendant contends that "[t]here is no foundation provided to show why it seemed' that Neal offered overtime opportunities to Caucasian employees."[4] However, defendant ignores Walker's deposition testimony that he personally observed Don Neal offer overtime work to Tony Payne and James Eaton, but not to him, on at least one occasion.[5] Thus, defendant's objection affects the weight, but not the admissibility, of that statement. Further, Don Neal's own affidavit confirmed that Tony Payne and James Eaton generally were offered more overtime than Walker.[6] Accordingly, defendant's motion to strike that statement is due to be denied.

Defendant next asks the court to strike Walker's affidavit statement that "Garcia refused to look at the video which I knew would show how mad and threatening Don Neal was when he yelled at me on the work floor."[7] Defendant does not explain why Walker lacks personal knowledge of that incident, [8] and it is obvious that he did. Accordingly, defendant's motion to strike that statement also is due to be denied.

Defendant next objects to Walker's testimony that "Lozen was hostile and aggressive and yelling at me which caused me to feel threatened."[9] That statement was made in the following context:

58. On July 12, 2012, [Plant Manager] Kevin Lozen came to my work station and confronted me where I was working and kept talking to me. I tried to retreat from the conversation and to just do my job, but Lozen kept coming at me. Lozen was hostile and aggressive and yelling at me which caused me to feel threatened. Eventually I turned to face Lozen, who pushed me in the shoulder hard enough for me to flinch.[10]

Once again, defendant does not explain the basis for its contention that Walker lacks personal knowledge of the event he describes. Clearly he does, and it is permissible for him to characterize Lozen's behavior, and his own, subjective reaction to the behavior. Again, therefore, defendant's motion to strike that statement is due to be denied.

Finally, defendant asks the court to strike Walker's testimony that "Neal used the new overtime system at first, but later he got away from the sheet and went back to offering overtime informally to Tony Payne (Caucasian) and James Eaton (Caucasian), "[11] arguing that it is contradicted by Walker's deposition testimony.[12] Defendant relies upon the "sham affidavit" rule, which prevents a party from submitting affidavit testimony that "merely contradicts, without explanation, previously given clear testimony." Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984). Defendant cites the following colloquy from Walker's deposition:

Q: Okay. So after October 11th, 2001, your testimony is to the extent you wanted to work overtime, you were able to do that?
A: Yes, sir.
Q: So the system Mr. Bryant came up with was able to address the concerns you had back in October about favoritism and, as you said discrimination?
A: Yes, sir.

Doc. no. 27-1 (Defendant's Exhibit "A" (Walker Deposition)), at 235. Defendant's argument ignores Walker's deposition testimony that "Don Neal... didn't go by the sheet that Mr. Wes Bryant put out. Only certain times he went by that sheet."[13] Walker's deposition also reiterates that the sheet "was passed around sometimes, and then [Neal] got away from the sheet."[14] Thus, Walker's affidavit does not contradict, but actually affirms his deposition testimony.

Those are the only portions of plaintiff's affidavit that have been taken into account by this court when considering the motion for summary judgment that is addressed in the remainder of this opinion. Accordingly, all other parts of defendant's motion to strike are due to be denied as moot.


Schwarze Industries, Inc., manufactures truck-mounted parking-lot and street sweepers.[15] Plaintiff, Jeffrey Walker, is an African-American.[16] He was hired during April of 2006 to work as a "press brake operator" on the third shift in the fabrication department of Schwarze's Huntsville, Alabama plant.[17] Walker's direct supervisor, Don Neal, was a Caucasian ("white"). He promoted Walker to a "leadman" position ( i.e., lead press brake operator) on July 31, 2006, about three months after his initial hire.[18]

During Walker's employment with Schwarze, he operated a small business on the side ("Personal Touch Lawn Care Service").[19] At some undisclosed point during 2006, Neal told Walker that he would be moved from the third to the second shift, and that the move would not interfere with his lawn care business.[20] Schwarze eliminated the second shift in December of 2008, however, and Walker was moved to the first shift.[21] When the second shift was reinstated two and a half years later, during May of 2011, Walker was moved back to his former position on the second shift.[22]

A. Don Neal's Treatment of Walker Compared to White Leads

Walker was the only African-American leadman in the fabrication department. The other leads - Ivan Hutto, John Gusich, and William Harris - were white.[23] Don Neal supervised all leadmen.[24]

Plaintiff alleges that, beginning in December of 2008, when Schwarze eliminated the second shift and Walker was moved to first shift, Neal subjected him to less favorable treatment than the white leads. For example, Neal did not permit Walker to give instructions and guidance to hourly employees, whereas he permitted the white leads to do so.[25] Walker also was the only leadman in his department to whom Neal did not allow free access to certain equipment. Instead, Walker had to "go to another Caucasian lead to get those accesses."[26] Moreover, Walker was not given a key to the building until sometime after the white leads had received them.[27] Furthermore, when Neal prepared to leave on personal vacations, he always selected a white lead to serve as acting supervisor in his absence.[28] Neal also directed white leads to deliver orders to Walker, but he never asked Walker to deliver orders to the white leads.[29] Finally, Neal invited only white leads in the fabrication department to production meetings, which were "supposed to be for all department heads and the leads."[30] It should be noted, nevertheless, that Chris Moore, an African-American lead in the welding department, was invited to production meetings.[31]

B. Walker's April 2011 Overtime Complaint

Walker complained that Don Neal was offering more voluntary overtime to two white employees in the fabrication department ( i.e., James Eaton and Tony Payne) than he offered to Walker during a meeting with Neal and Production Manager Wes Bryant during April 2011.[32] Walker stated that he believed Neal was "discriminating against him because of his race."[33] After the meeting, Neal privately told Walker: "[You] shouldn't have went [ sic ] to Wes, I despise that man, that is the biggest mistake you made. And Wes don't [ sic ] run the fab shop, I do."[34]

C. Walker's October 2011 Overtime Complaint

Several months later, "[o]n or about October 28, 2011, " Walker again complained during a meeting with Don Neal, Production Manager Wes Bryant, and Human Resources Manager Kyle Lausee that Neal's method of assigning overtime was racially discriminatory.[35] According to a memorandum of that meeting signed by Walker, Bryant, and Lausee, "[Walker] said he wanted to state that this was obvious favoritism, and that the company had a policy against favoritism and desegregation [ sic ]."[36] The memo described a new policy for assigning voluntary overtime that was supposed to be implemented immediately: i.e., a sign-up sheet was to be posted in an area accessible to all employees whenever voluntary overtime shifts were available.[37]

D. October 28, 2011 Reprimand

Don Neal issued a reprimand to Walker later on that same day, after Neal and Bryant had agreed to change the policy, for "complain[ing] to hourly team members about the decision on overtime."[38] The reprimand stated that Walker's complaints had caused "a disruption in the work place."[39] Walker wrote in the "Employee Comments" section that he felt that the reprimand had been issued in retaliation for his complaints about the overtime system "and also other incidents."[40]

Walker testified during his deposition that Neal adhered to the new overtime policy "only certain times" because, according to Walker, Neal "didn't have any respect for" Production Manager Wes Bryant.[41] Neal eventually "went back to offering overtime informally, " and Tony Payne and James Eaton were again offered more overtime than Walker.[42] Thus, Walker complained once more to Neal during March of 2012 that he "was not offered overtime and... [that he, Walker, ] wanted to work, " but he "did not specifically complain that this was race discrimination."[43]

E. April 2012 Reprimand

On April 4, 2012 - five months after Neal's October 28, 2011 reprimand of Walker - Neal issued another reprimand to Walker for "[n]ot being productive" during his April 2nd shift.[44] The reprimand stated that Walker had failed to follow specific orders, exhibited "no urgency or effort, " and that his actions "caused a two hour delay in [the] weld department the next morning."[45]

Neal wrote the reprimand only after reviewing video footage of Walker's work during the April 2nd shift, because Neal had been on vacation on that date and, upon his return, he had been told of Walker's poor performance by acting supervisor John Gusich.[46]

As a result of the reprimand, Walker was required to take a drug test, and was placed on probation for one year, during which time any "insubordination/failure to carry out reasonable job assignments, poor performance, [or] low productivity [would] result in demotion of lead position and lead pay."[47]

Walker wrote in the employee comments section that he felt the reprimand had been issued in retaliation for the "meeting held [in] October 2011": i.e., the October 28, 2011 meeting with Don Neal, Production Manager Wes Bryant, and Human Resources Manager Kyle Lausee, during which Walker had complained that Neal's method of assigning overtime was racially discriminatory.[48]

At the conclusion of his April 4, 2012 meeting with Neal, Walker called his wife, who took him to an "Urgent Care" facility, because the allegations contained in the reprimand and the stress of the meeting had made his "blood pressure go sky high."[49]

F. Walker's April 5, 2012 Letter to Human Resources Manager Kyle Lausee

Walker denied that he had engaged in the misconduct described in Neal's April 4th reprimand in a letter addressed to Human Resources Manager Kyle Lausee the following day.[50] He charged that the reprimand was "strictly retaliatory" for the complaints he had lodged during the meeting held on October 28, 2011.[51] Walker also listed several ways in which he believed that he had been treated differently, or unfairly, from other leads.[52]

Walker did not explicitly allege racial discrimination in his letter, but Lausee admitted that Walker's use of terms like "prejudice" and "equal opportunity" clearly carried "racial connotations."[53]

Walker's letter requested a meeting with the "Human Resources Manager" (Kyle Lausee), the "Plant Manager" (Kevin Lozen), and Schwarze's President (Howard May) in order "to discuss these matters further."[54] No such meeting was held, however, and there is nothing in the record indicating that Lausee or any other employee of Schwarze conducted an investigation into the allegations contained in Walker's letter.[55]

G. Walker's April 9, 2012 Letter to Kyle Lausee, Kevin Lozen, and Howard May

Walker sent another letter challenging his April 4th reprimand four days after the preceding, April 5th letter. The second letter was jointly addressed to Human Resources Manager Kyle Lausee, Plant Manager Kevin Lozen, and Schwarze's President, Howard May. The letter explained the basis for Walker's belief that he was not at fault for causing a delay in the weld department on April 3rd.[56]

H. Walker's Transfer to First Shift

As noted in the introductory paragraphs to this Part of this opinion, Walker was originally hired to operate a press brake on the third shift, but was moved to the second shift at some undisclosed time during 2006. When Schwarze eliminated the second shift during December of 2008, Walker was moved to the first shift. The second shift was reinstated in May of 2011, however, and Walker then was moved back to his former position on that shift. Nearly a year after being returned to the second shift, i.e., on or about April 10, 2012, Walker was called into a meeting with Human Resources Manager Kyle Lausee, Plant Manager Kevin Lozen, and his direct supervisor, Don Neal. He was told by Lozen that he was being moved back to the first shift, in order to "improve [his] communication [skills]" and cross-train on other machines.[57] Lozen said that the transfer was temporary, and that there would be a "reassessment" of the move after two weeks.[58]

At some undisclosed time after the two-week reassessment period had passed, Walker complained to Human Resources Manager Kyle Lausee about still being assigned to the first shift.[59] Lausee investigated the complaint and concluded that it was "not warranted, " because Walker had not met the expectations placed upon him when he was moved to the first shift, including improvement in the areas of "attitude, " "teamwork, " and "skills."[60]

Walker also complained that he had been "skipped over" in the assignment of an overtime shift on a Monday morning.[61] Lausee investigated that complaint as well, but concluded that it also was "not warranted, " because Walker had been off work, on vacation, on the day during which the overtime assignments were offered.[62]

I. Walker's May 7, 2012 Complaints

Walker lodged several complaints on May 7, 2012. He first mailed a letter to four employees in the corporate office of "Alamo Group, Inc.": Ronald Robinson, James Skaggs, Geoffrey Davies, and Corporate Attorney Donald Duncan.[63] (The positions held by the first three persons are not disclosed.) The record does not clearly define the nature of the Alamo Group's relationship to Schwarze, but this court has ascertained through an internet search that the entity, headquartered in Seguin, Texas, appears to be Schwarze's parent company.[64]

In any event, Walker's letter complained about "unethical, discriminatory and retaliation practices" in the Schwarze plant.[65] He alleged that his complaints had not been adequately addressed, and that Schwarze

Management has taken this as an opportunity to trump up false information, and knit pick [ sic ] anything that occurs as a method to pile negative information into my personnel file without merit.... Again, these accusations are all subjective opinions in an effort to "black-ball" me out of my position in retaliation. This is all in retaliation [for] my inquiries regarding equal opportunity.
This actually all started last year when 2nd shift beg[a]n. Mr. Don Neal was opposed to having a 2nd shift and tried to coerce me with my response to upper management regarding my opinion of beginning a 2nd shift. Upper management approached me with the idea[] of starting the shift and requested ...

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