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Cabak v. Jeld-Wen, Inc.

United States District Court, W.D. Wisconsin

November 15, 2019

ALLAN CABAK, Plaintiff,
JELD-WEN, INC. Defendant.


          Barbara B. Crabb District Judge

         Pro se plaintiff Allen Cabak filed a complaint in the Circuit Court for Rusk County, Wisconsin, in which he alleges that his former employer, defendant JELD-WEN, Inc. (1) treated him differently and terminated him on the basis of his age and disability and in retaliation for complaining about it, in violation of the Americans With Disabilities Act and the Age Discrimination in Employment Act; and (2) committed various unsafe practices in violation of the Occupational Safety and Health Act. Defendant removed the case to this court on September 21, 2018. On December 6, 2018, plaintiff filed a document with the court entitled “discovery request, ” in which he alleges that one of defendant's employees falsely imprisoned him on three occasions and that other employees are guilty of criminal conduct. Dkt. #10-1. The case is before the court on defendant's motion for summary judgment. Dkt. #23. Because plaintiff has failed to produce any evidence to establish the key elements of any of his claims, I am granting the motion and entering judgment in favor of defendant.

         Although plaintiff filed a short brief in response to defendant's motion for summary judgment, he failed to respond to any of defendant's proposed findings of fact or file any proposed findings of fact in support of his own to support his claims. This court's summary judgment procedures, which are attached to the November 8, 2018 preliminary pretrial conference order entered in this case, dkt. #8, warn litigants that “[u]nless the responding party puts into dispute a fact proposed by the moving party, the court will conclude that the fact is undisputed.” Proc. to be Followed on Motions for Summ. Judg., § II.C. at p. 6. The procedures also instruct parties that

[A]ll facts necessary to sustain a party's position on a motion for summary judgment must be explicitly proposed as findings of fact. . . The court will not search the record for factual evidence. Even if there is evidence in the record to support your position on summary judgment, if you do not propose a finding of fact with the proper citation, the court will not consider that evidence when deciding the motion. Your brief is the place to make your legal argument, not to restate the facts.

Id. at p. 1. The Court of Appeals for the Seventh Circuit “has routinely held that a district court may strictly enforce compliance with its local rules regarding summary judgment motions.” Abraham v. Washington Group International, Inc., 766 F.3d 735, 737 (7th Cir. 2014). See also Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630-31 (7th Cir. 2010) (holding that the district court did not err when it deemed the defendant's proposed findings of fact admitted and refused to consider additional facts for the plaintiff's failure to follow the local procedures on proposed findings of fact). Therefore, in accordance with this court's summary judgment procedures, I have considered as undisputed any facts proposed by defendant that are supported properly and sufficiently by admissible evidence.

         From defendant's proposed findings of fact, I find the following facts to be material and undisputed.


         A. The Parties

         Defendant JELD-WEN, Inc. is a manufacturer of custom windows and doors, with multiple production facilities, including one located in Hawkins, Wisconsin. Plaintiff Allan Cabak was employed by defendant from May 29, 1984 until December 10, 1998, when he was terminated involuntarily. On April 16, 2012, defendant rehired plaintiff as an assembler assigned to its specialty department.

         Plaintiff was covered by a collective bargaining agreement between defendant and Carpenters International Council, Local 1435, which contained a grievance procedure, an equal employment opportunity provision and an attendance policy. Defendant also has a fair employment practices policy and an employee handbook, both of which prohibit discrimination, harassment and retaliation on the basis of disability and other protected categories. On November 1, 2013, defendant issued plaintiff a written warning for violating defendant's policies regarding harassment and abusive language because he got into an argument with a Latino co-worker and referred to the co-worker as “a stupid fucking spic.” Plaintiff was spoken to on several occasions regarding inappropriate or threatening comments to co-workers. In 2016, he was told not to refer to women as stupid or to confront a female quality inspector for doing her job, by saying she “almost got him in trouble with his manager so she better not go to him anymore or else.”

         Under the labor agreement, an employee is entitled to use up to 16 hours of personal time during a calendar quarter for personal reasons, but an employee who exceeds 16 hours of personal time is subject to discipline. An employee who takes time off during a shift without giving notice prior to the start of his or her shift will be assessed double hours for the time missed. On December 16, 2013 and June 17, 2014, plaintiff received written warnings for violating the attendance policy.

         All employees are required to undergo annual safety training, which includes detailed instructions on dealing with blood borne pathogens in the workplace. In the event of an incident involving blood, an employee is directed to remain at the site of the incident until it can be addressed by an EMT or other trained safety personnel. Under no circumstances should an employee do anything that might expose a co-worker to a blood borne pathogen.

         At 9:30 a.m., after the start of his shift on April 12, 2017, plaintiff told Joe Tatrow, a Line Lead, that his “ass ruptured, ” he “was bleeding out of his ass” and that he needed to leave at 10:30 a.m. Plaintiff's shift had started at 4:30 a.m. and ended at 3:00 p.m. Tatrow allowed plaintiff to leave but told him that because he had not requested the time off before the start of his shift, the time could be charged “double hours” against his attendance record. Tatrow also stated that he would need to inform Trent Tobias, the Coordinating Group Manager. Plaintiff became upset, but said nothing further other than that he did not think he should be assessed double points. About 10 minutes later, plaintiff returned to the specialty department office where Tatrow was sitting. Plaintiff was holding a large wad of toilet paper with blood on it. He stated, “Look. Now do you believe me, ” and placed the bloody wad of toilet paper on the specialty department office desk.

         Tatrow immediately told plaintiff to remove the toilet paper from the table and dispose of it properly. After plaintiff picked up the toilet paper, Tatrow sanitized the desk because he was concerned that he had been exposed to a possible blood borne pathogen. Tatrow also was concerned that other co-workers had been exposed because the bathroom from which plaintiff presumably obtained the bloody toilet paper was 250 to 300 feet from the specialty department office, requiring plaintiff to walk past a number of co-workers holding the ...

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