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Blankenship v. American Phoenix

United States District Court, W.D. Wisconsin

March 14, 2019

DEMETRIUS BLANKENSHIP, Plaintiff,
v.
AMERICAN PHOENIX, Defendant.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Pro se plaintiff Demetrius Blankenship is proceeding on claims that his former employer, defendant American Phoenix, fired him because he is African American and because he complained about race discrimination, in violation of Title VII. Blankenship also alleges that American Phoenix discriminated against him by making him start work early, delaying his pay, and disregarding his medical restrictions while treating white employees more favorably.

         American Phoenix has filed a motion for summary judgment, Dkt. 21, which is ready for review. American Phoenix says that it fired Blankenship because he failed to comply with the company's attendance policy. It denies that it discriminated against Blankenship in any way. Also before the court is Blankenship's motion for leave to file a surreply brief, Dkt. 42, along with the proposed brief, Dkt. 43.

         I will grant Blankenship's motion. Although Blankenship does not explain why he needed to file a surreply brief, the arguments he raises do not change the result of this case, so accepting the brief does not unfairly prejudice American Phoenix. I will also grant American Phoenix's motion for summary judgment. American Phoenix has shown that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Blankenship simply failed to support his allegations of discrimination and retaliation with admissible evidence.

         BACKGROUND

         A. Parties

         Defendant American Phoenix manufactures industrial rubber products in Eau Claire, Wisconsin. In February of 2014, American Phoenix hired Blankenship as an operator in the Whitewall Department, which produces tire rubber. Among other things, Blankenship was responsible for weighing rubber products, taking samples of the rubber for testing, marking items for shipping, and placing rubber products onto pallets. Blankenship is African American.

         B. March 2015 incident

         On March 17, 2015, Blankenship submitted a statement to the human resources department about an incident that had occurred earlier the same day. In the statement, Blankenship alleged that he heard a coworker say “hey n****r n****r” and “hey black boy.” The following day, American Phoenix obtained statements from Fawna Eytchison (a coworker) and Kevin Gingras (Blankenship's supervisor), who were both present during the incident. Both Eytchison and Gingras identified the coworker as Chuck Steuding and agreed that he had used the “n word.” But they also said that Stueding told Blankenship that Steuding “wasn't talking about” Blankenship. On March 19, Steuding submitted a statement in which he admitted to saying “n****r.” On April 9, American Phoenix issued a written warning to Stueding, stating that he had used “unacceptable” and “offensive language, ” that the warning would be made “part of [his] record, ” and that “issuance of further warnings may subject [him] to further disciplinary action including suspension or discharge.” Dkt. 24-9. Since this incident, American Phoenix has not received any more complaints about Steuding using offensive language.

         C. Attendance policy

         American Phoenix's attendance policy is governed by a point system, which is described in the company's employee handbook. Employees who are tardy by less than an hour receive .5 attendance points. Clocking in one minute late is considered tardy. Employees receive a point for an unexcused absence. Leaving work early without permission qualifies as an unexcused absence.

         The point system is applied over a rolling 12-month period. This means that attendance points that are more than 12 months old are not considered for disciplinary purposes.

         Employees receive a written warning after accruing four points within a 12-month period, a second written warning after five points, and a third written warning after six points. Employees who accrue seven points within a 12-month period are placed on a one-day unpaid suspension. Employees are subject to termination if they accrue eight points.

         In June 2016, American Phoenix informed Blankenship that he had accrued 6.5 attendance points. This was his third written warning. He signed an acknowledgment that “[t]he issuance of further warnings may subject [him] to further disciplinary action including suspension or discharge.” On August 11, 2016, Blankenship was placed on a one-day suspension after he accrued seven attendance points. On August 15, 2016, Gingras informed Blankenship that he was being terminated because he had accrued eight attendance points. A written notice listed dates between September 4, 2015, and August 11, 2016, in which Blankenship accumulated attendance points for tardiness and unexcused absences. Dkt. 28-5.

         I will discuss more facts in the analysis section as they become relevant to the discussion.

         ANALYSIS

         A. Scope of the claims

         Before addressing the merits of American Phoenix's motion for summary judgment, it is important to clarify the scope of the claims in this case. In the order screening Blankenship's complaint, I allowed Blankenship to proceed on the following claims:

(1) American Phoenix fired him because of his race and for making complaints about race discrimination, in violation of Title VII;
(2) American Phoenix discriminated against him because of his race by requiring him to begin work before his scheduled time without imposing the same requirement on similarly situated white employees, in violation of Title VII;
(3) American Phoenix discriminated against him because of his race by making him wait until the next pay period to correct underpayment errors in his paycheck while correcting errors immediately for similarly situated white employees, in violation of Title VII;
(4) American Phoenix discriminated against him because of his race by disregarding his medical restrictions while accommodating the medical restrictions of similarly situated white employees, in violation of Title VII.

Dkt. 4, at 9-10. Blankenship included other claims in his complaint, but I dismissed them for his failure to state a claim upon which relief may be granted. Id. Neither side sought reconsideration of the screening order. Blankenship later moved to amend his complaint to add more defendants, but I denied that motion as untimely and unfairly prejudicial. Dkt. 20.

         For reasons it does not explain, American Phoenix assumes in its motion for summary judgment that all of the dismissed claims are still in the case and it seeks to dismiss them now. I have not considered any arguments from either ...


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