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Edwards v. Chicago Bridge & Iron Co.

United States District Court, D. Utah, Central Division

September 30, 2019

OLIVER EDWARDS, III, an individual, Plaintiff,
v.
CHICAGO BRIDGE & IRON COMPANY, a Utah corporation, Defendant.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL, United States District Judge.

         This matter is before the court on Defendant Chicago Bridge & Iron Company’s Motion for Summary Judgment. The court held a hearing on the Motion on August 13, 2019. At the hearing, Plaintiff was represented by Michele Anderson-West, and Defendant was represented by Raul Chacon and Derek Langton. The court took the matter under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the Motion. Now being fully advised, the court issues the following Memorandum Decision and Order.

         BACKGROUND

         In January 2016, Plaintiff Oliver Edwards, III (“Edwards”) moved to Utah from Pennsylvania to get a fresh start in life. Defendant Chicago Bridge & Iron Company (“CB&I”), a leading provider of technology and infrastructure for the energy industry, hired Edwards to work as a pipe cutter in its Clearfield, Utah facility starting on April 25, 2016. Edwards is African-American and Muslim. He was one of only three African-American employees who worked at CB&I’s Clearfield facility. He described his experience working there as “feeling like a chocolate chip in a glass of milk.”

         CB&I maintains an attendance policy for its employees. When employees violate the policy, they are assessed points. After an employee accrues a certain amount of points, CB&I will issue a disciplinary action against that employee. In July 2016, CB&I issued Edwards disciplinary actions based on his violation of the attendance policy-the first on July 12, 2016 and the second, which was a final written warning, on July 25, 2016. Edwards does not claim that either of the July disciplinary actions were discriminatory in nature. Then, on September 30, 2016, CB&I issued Edwards a written verbal warning (the “September 30 Warning”), but this time it, was unrelated to CB&I’s attendance policy. Rather, CB&I issued Edwards the warning following an altercation that took place between him and a co-worker named Mike Tucker (“Tucker”). The altercation resulted from a dispute that Edwards had with Tucker in which Edwards claimed Tucker was failing to clean certain work saws after using them, leaving them dirty for the other workers on subsequent shifts. After Edwards approached Tucker to discuss the condition of the saws, Tucker mumbled something under his breath, and Edwards responded by stating, “Who the fuck you talking to?” During this confrontation, however, neither Tucker nor anyone else made any discriminatory comments towards Edwards.[1] A few days later, on October 3, 2016, CB&I issued Edwards another disciplinary action citing additional attendance violations (the “October 3 Warning”).[2] This disciplinary action explained to Edwards that he had to go sixty days, starting from September 20, 2016, without an additional attendance violation. Edwards does not know whether he incurred any of the attendance infractions listed in the October 3 Warning.

         In addition to its attendance policy, CB&I also has a policy prohibiting workplace harassment and discrimination. The policy includes a procedure for filing a complaint when an employee encounters workplace harassment or discrimination. As a part of that procedure, employees who encounter harassment or discrimination should report the improper behavior to (1) their direct supervisor or their supervisor’s boss; (2) their local human resources representative or CB&I’s Vice President of Corporate Human Resources; or (3) CB&I’s General Counsel. On September 30, 2016, Edwards reported to his foreman, Dustin Pundt (“Pundt”), that his co-worker, John Simpson (“Simpson”), had called him a “nigger” and made other racially hostile remarks. Pundt told Edwards to talk to Craig Hansen (“Hansen”), who then directed Edwards to talk to Troy Sauer (“Sauer”), CB&I’s Human Resource Generalist. That same day, CB&I issued Simpson a disciplinary action based on his use of inappropriate language and directed him to refrain from using racial slurs. After that disciplinary action, Simpson never said the word “nigger” in Edwards’ presence again. Apart from Simpson’s use, no other CB&I employees directed such language towards Edwards.[3] However, Edwards also reported to Pundt that another one of his co-workers, Travis Thompson (“Thompson”), had asked him if he was “the type of Muslim that would perform radical acts.” Edwards had responded to the question by asking Thompson if he was the “type of white guy that has the issue with mommy, and you go into a schoolhouse and start shooting innocent kids.” After reporting this conduct to Pundt, Edwards and Thompson had no further incident or altercation.

         On or around October 6, 2016, Edwards expressed further concern to Sauer regarding his co-workers’ actions-especially Simpson. Edwards told Sauer that Simpson had called him a “nigger”; made comments about a noose; put bananas on his desk and made racially-charged comments regarding them; stated that Edwards could dress as a slave for Halloween; made racially offensive jokes; placed a dirty glove in Edwards’ food and claimed no one would care because he was black; expressed his preference not to work with Edwards; and denied him use of a crane that Edwards needed to perform his work. Sauer told Edwards that he would speak to Simpson and address the situation. Sauer initiated an investigation and interviewed witnesses, including Pundt, Simpson, Tucker, Thompson, and Dustin Douglas (“Douglas”), on October 10, 2016. That same day, CB&I issued Edwards a disciplinary action resulting in a day and a half suspension based on a confrontation that took place between him and Simpson (the “October 10 Suspension”). In that confrontation, Simpson approached Edwards (to supposedly apologize for using a racial slur in his presence), but Edwards refused to speak to him which led to Simpson raising his voice. Simpson later reported that during that confrontation Edwards threatened bodily harm against him. CB&I investigated Simpson’s claim and, based on corroborating reports from various witnesses, issued Edwards the October 10 Suspension. Then, on October 18, 2016, CB&I issued Simpson a final written warning after he joked with members of CB&I’s safety team that he nearly missed punching Edwards. In addition, Sauer issued a letter to Simpson in which he explained that use of the “n” word would not be tolerated; directed Simpson to avoid interacting with Edwards; cautioned that violence or threats and/or jokes of violence would not be tolerated; directed Simpson to only speak about Edwards in a professional manner; informed Simpson that any similar misconduct would result in him receiving additional discipline, up to and including termination of his employment; and told Simpson that he would be required to attend training on anti-harassment and discrimination. During his investigation, Sauer determined that Pundt had been aware that Simpson had used the word “nigger” and failed to report it to Human Resources (“HR”). Consequently, Sauer issued Pundt a final written warning.

         On October 20, 2016, Edwards reported to CB&I that Simpson took a parking space that Edwards was attempting to back into. CB&I suspended Simpson while it investigated the incident. Later, after Edwards reviewed video footage of the incident, he told CB&I’s safety department that he thought his car was much closer to Simpson’s car than it actually was. On November 2, 2016, CB&I required all its employees at the Clearfield facility to attend an anti-harassment training.[4] Thereafter, CB&I issued disciplinary actions against at least two employees who used the word “nigger” on the job site. On November 15, 2016, Edwards reported to CB&I’s safety department that he was dragged by a crane due to a malfunctioning remote control. He stated that he had yelled for help from his co-workers, but they stood there and watched. Although he suspected that his co-workers did not come to his aide due to discriminatory animus, he never heard any of his co-workers make discriminatory remarks, nor did he specifically report to HR that he thought his co-workers’ inaction was due to discriminatory animus. CB&I initiated an investigation into the crane incident on November 15, 2016 and interviewed several witnesses. On November 16, 2016, Edwards reported to Sauer that he observed a comment written on a bathroom wall that said that Edwards was “a piece of shit low-life, ” but he did not know who had written the comment. After Edwards reported it, Sauer investigated to see if he could determine who wrote the comment but was unable to determine the source. Subsequently, CB&I painted over the comment.

         On or about November 18, 2016, Edwards filed a Charge of Discrimination (the “Charge”) with the Utah Antidiscrimination and Labor Division (“UALD”) and the Equal Employment Opportunity Commission (“EEOC”) claiming that CB&I had engaged in race and religious discrimination and retaliation against Edwards. On November 22, 2016, Edwards gave CB&I notice that he was considering quitting his job and gave one week’s notice of his intention to resign. Edwards gave this notice because he no longer felt safe working at CB&I. CB&I construed Edwards’ notice of resignation as an actual resignation, but Edwards did not actually intend to quit working at CB&I at that time. Rather, he first wanted to meet with counsel before deciding whether to continue working at CB&I. After CB&I accepted Edwards’ resignation, he called CB&I the Friday after Thanksgiving and told Sauer that he would be returning to work the following Monday. CB&I had considered Edwards’ employment terminated, though, and did not reinstate him.

         Edwards filed the instant suit on October 18, 2017, raising four causes of action under Title VII of the Civil Rights Act of 1964: (1) discrimination; (2) retaliation; (3) hostile work environment; and (4) constructive discharge. Edwards contends that CB&I discriminated against him based on his race and religion and that his work environment was both objectively and subjectively hostile and abusive. He further claims that after he reported the discriminatory and offending conduct by his co-workers to his managers and supervisors, CB&I retaliated against him by holding him to a different standard and issuing him disciplinary actions. Finally, Edwards avers that his working conditions became so difficult and abusive, that he had no other option but to quit his job.

         DISCUSSION

         CB&I now seeks summary judgment on each of Edwards’ claims. “Summary judgment is appropriate 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.’” Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018) (quoting Fed.R.Civ.P. 56(a)). “An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. . . . An issue of fact is ‘material’ if under the substantive law it is essential to the proper disposition of the claim.” Sidlo v. Millercoors, LLC, 718 Fed.App’x 718, 725 (10th Cir. 2018) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). Accordingly, when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” the movant’s motion must be denied. Roberts, 884 F.3d at 972 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         I. Race-Based Claims

         a. Discrimination

         In cases where there is no direct proof that an employer discriminated against an employee on the basis of that employee’s race, courts in the Tenth Circuit apply the three-part, burden-shifting framework outlined in the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012). Under the so-called “McDonnell Douglas framework, ” a plaintiff must first establish a prima facie case of discrimination by demonstrating “that (1) [he or she] is a member of a protected class, (2) [he or she] suffered an adverse employment action, (3) [he or she] qualified for the position at issue, and (4) [he or she] was treated less favorably than others not in the protected class.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). The Tenth Circuit has defined an adverse employment action as a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1032–33 (10th Cir. 2004)). “[M]ere inconvenience[s] or an alteration of job responsibilities” do not constitute adverse employment actions for purposes of a disparate treatment claim under Title VII. Id. (quoting Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998)). Nevertheless, “[t]he critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination.” Barlow, 703 F.3d at 505 (quoting Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005)).

         Once the plaintiff has established a prima facie case, “the burden shifts to the employer ‘to articulate some legitimate, nondiscriminatory reason’ for the adverse employment action.” Braxton v. Nortek Air Sols., LLC, 769 Fed.App’x 600, 603 (10th Cir. 2019) (quoting McDonnell Douglas, 411 U.S. at 802). If the employer can make this showing, then “the burden shifts back to the employee to show the justification offered by the employer was pretextual.” Id. To demonstrate that the employer’s proposed justification constitutes pretext, the plaintiff must “show[] that the employer’s proffered explanation is unworthy of credence.” Jaramillo v. Colorado Judicial Dep’t, 427 F.3d 1303, 1309 (10th Cir. 2005), as modified on denial of reh’g (Dec. 20, 2005); see also Lobato v. New Mexico Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013) (“Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.”). In other words, the plaintiff “must call into question the honesty or good faith of the [employer’s] assessment of his [or her] abilities.” Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1137 (10th Cir. 2004). It is simply not enough “that a factfinder could disagree with the employer’s assessments.” Id. at 1138. Moreover, “[t]he relevant inquiry is not whether [the defendant’s] proffered reasons were wise, fair or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.” Id. (quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).

         Because Edwards does not rely on direct evidence of discrimination, the McDonnell Douglas framework applies. For purposes of this Motion, CB&I concedes that Edwards can establish the first and third elements of his prima facie case in that he is African-American and was qualified to perform his position as a pipe cutter. This leaves the court with resolving whether Edwards suffered an adverse employment action and whether he was treated less favorably than others not in his protected class.

         There are three[5] disciplinary actions that CB&I issued against Edwards that he claims constituted adverse employment actions: (1) the September 30 Warning; (2) the October 3 Warning; and (3) the October 10 Suspension.[6] The court finds, however, that the September 30 Warning and the October 3 Warning were not adverse employment actions for purposes of Edwards’ disparate treatment claim. Neither of these disciplinary actions resulted in a significant change to Edwards’ employment status, nor did they alter any of Edwards’ job responsibilities. Rather, they simply directed Edwards to make changes to his conduct, which could result in further disciplinary actions if he failed to make such ...


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