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Puent v. Croell Redi-Mix, Inc.

United States District Court, W.D. Wisconsin

February 1, 2016




Plaintiff Frederick A. Puent proceeding pro se asserts claims under the American Disability Act, 42 U.S.C. § 12112(a), Age Discrimination in Employment Act, 29 U.S.C. § 623, and a retaliation claim based on his complaints of age discrimination against his former employer defendant Croell Red-Mix, Inc. Before the court is defendant’s motion for summary judgment. (Dkt. #17.) For the reasons that follow, the court will grant defendant’s motion, direct the clerk’s office to enter judgment in its favor, and close this case.[1]


Plaintiff seeks an order barring defendant’s use of plaintiff’s deposition testimony. (Dkt. #30.) As best as the court can discern, Puent objects to defendant’s use because he did not have an attorney present at the deposition and had no knowledge of what was involved in taking a deposition. Puent also states that some of the questions were “one sided, and or not understood correctly.” (Id. at 2.) While the court certainly appreciates that there are significant challenges in proceeding pro se, not least of which is dealing with opposing counsel, the court finds no basis to strike Puent’s deposition testimony. Indeed, answering questions under oath with a court reporter present to record the proceedings verbatim is perhaps one of the “safest environments” for a pro se litigant since his only obligation is to answer truthfully the questions posed, and the court can strike answers given to unfair or improper questions.[2] Here, the court reviewed the portions of the transcript relied on by defendant in moving for summary judgment and found no concerns with the nature of the questions. While Puent may now regret certain of his answers after seeing how they impact the merits of his claims on summary judgment, this does not justify striking his testimony or otherwise limiting defendant’s use of it. Indeed, many a represented party has experienced the same result since, as the saying goes, “facts are sticky things.” Accordingly, the court will deny that motion.


A. The Parties

Born in 1960, plaintiff Frederick A. Puent is a resident of Tomah, Wisconsin. Puent is also a former employee of defendant Croell Redi-Mix, Inc., a concrete producer of redi-mix concrete and paving asphalt from locations in six states, including Wisconsin. Puent’s job responsibilities within Croell included driving a truck.[4]

For all times pertinent to Puent’s claims, Dan VanVoorhees was the Tomah Plant Manager and Bill Wadephul was the Operations Manager. VanVoorhees is one year younger than Puent; Wadephul is nine years older than Puent. In March 2009, Wadephul hired Puent to work at Croell as a redi-mix truck driver in Tomah, Wisconsin. Puent reported to VanVoorhees, who in turn reported to Wadephul.

At some point, Puent was transferred to Mauston, Wisconsin. He wanted to continue to work there because he felt his supervisor in Mauston treated him well. Nonetheless, Puent contends that he was transferred to Mauston as “punishment.” At some point, Wadephul decided to move Puent back to Tomah.

B. Puent’s Hand Injury

In October 2000, Puent injured his right hand in a corn picking accident. Puent can work, dress and groom himself, cook, feed himself, write with a pen or pencil, use pots, pans and utensils. He also has no lifting restrictions. Moreover, he is physically able to perform the duties of the job he held at Croell.

Even so, Puent contends that his grip is somewhat impaired because he cannot use “small wrenches, ” and to use a maul, he needs a rag to keep his grip. Puent last saw a doctor about his hand in 2011, though he sees a doctor on at least an annual basis for a heart condition and other problems.

Sometime in 2011, during his employment at Croell, Puent contends that part of his skin graft peeled because he did not have proper work gloves, although Puent did not file a workplace injury report or a claim for workers compensation related to this incident. Puent also failed to obtain a doctor’s note stating that he required any accommodation. Puent further acknowledges that he had no limitations on his job as a driver for Croell. Indeed, Medical Examination Reports for Commercial Driver Fitness Determination from March 2007 and March 2011 indicate that Puent had a hand condition, but that (1) it “doesn’t affect ability to drive, ” and (2) he had “no limitation.” (Def.’s PFOFs (dkt. #18) ¶ 20.)

Wadephul represents that he was unaware of Puent’s hand condition, although Puent disputes this, asserting that Wadephul noticed Puent’s right hand was damaged when he shook his hand to congratulate Puent on being hired. Defendant also contends that Wadephul never said anything to Puent about his having a disability which Puent also disputes, asserting that Wadephul told him during his orientation day to “just be more careful of you[r] hand.” (Pl.’s Resp. to Def.’s PFOFs (dkt. #39) ¶ 22.) VanVoorhees also contends that he did not notice anything about the condition of Puent’s hand until Puent mentioned it. More specifically, Puent never sought an accommodation, and VanVoorhees avers that he had no reason to believe that Puent’s injured hand affected his ability to complete his work. Puent, disputes this in part, asserting that VanVoorhees, too, noticed that his hand was damaged when he shook it at the time of Puent’s hiring.

C. Puent’s Allegations of Differential Treatment

In addition to his claims for failing to accommodate his hand injury, Puent claims to have been treated differently than other employees in a variety of ways.

i. Personal Protection Equipment

Puent contends that Croell failed to provide him proper personal protection equipment, such as gloves and a safety vest. Puent acknowledges other employees wore gloves, but claims not to have known how they were obtained.[5] Puent also represents that he purchased his own safety vest, but saw a supervisor give another employee a safety vest.

After trying unsuccessfully to find a suitable pair of gloves on his own, Puent used duct tape on his hands instead. Croell maintains that gloves and safety glasses were available in the kitchen area of the Tomah facility, that each truck typically had a hard hat and safety vest in it, and that there were extra safety vests hung in the office. Puent disputes that safety vests and gloves were available, but does not specifically address Croell’s evidence to the contrary. In particular, he offers no evidence, however, that safety vests and gloves were made available to other employees. There is no dispute that Puent made demands about personal protection equipment to Wadephul and VanVoorhees, at times swearing at them in making such demands.

ii. Pay

Puent was originally paid at rate of $13.50 per hour. Later, he received raises to $14.50 per hour, and then to $14.90. Puent and another truck driver named “Potter” started at the same time and at the same rate of pay. While defendants do not expressly acknowledge it, it appears other employees, including Potter, apparently received larger raises than Puent. Croell contends, however, that the other employees did not have the same record of incident reports as Puent.[6] Croell further maintains that unlike Puent, Potter volunteered to take on additional duties, such as mechanical and back-up dispatcher duties, which ...

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