United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON District Judge.
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.
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.
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.
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
March 2015 incident
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.
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.
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.
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.
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.
discuss more facts in the analysis section as they become
relevant to the discussion.
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
(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
not considered any arguments from either party about claims
that I already dismissed in the screening order.
part, Blankenship filed a new complaint several weeks after
American Phoenix filed its motion for summary judgment. Dkt.
33. He did not seek leave to file a new complaint and he did
not explain why he filed it. It appears to be virtually
identical to his original complaint. Regardless of the
purpose of the document, Blankenship's original complaint
remains the operative pleading. The new complaint does ...