United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE
1.
Facts
According
to plaintiff Alexander Pollock, certain hiring managers at
Dell and Exxon were overtly racist when it came to the
employees they sought to hire. Experis, a division of
Manpowergroup US, Inc. (Manpower), who recruited candidates
for Dell, Exxon, and many other companies, allegedly sought
to accommodate the biases of the hiring managers by referring
only white candidates. Pollock, who started working for
Experis as a recruiter in February 2016 (ECF No. 55,
¶¶ 1, 3) complained of this practice. He alleges he
suffered retaliation as a result.
In May
2016 Pollock submitted an anonymous internal complaint
reporting that he was informed that the Dell hiring
manager[1] wanted someone “white.” (ECF
No. 55, ¶ 11.) He included a screenshot from the Dell
account which included the statement, “In the past this
manager has looked for diversity in the team which is mostly
composed of Indians.” (ECF No. 55, ¶ 10.) Manpower
did not materially investigate this complaint. (ECF No. 55,
¶ 14.)
In July
2016 a co-worker of Pollock made a complaint reporting that
leaders on the Dell team told recruiters to look for
candidates of a certain skin color and gender. (ECF No. 55,
¶ 15.) When recruiters verbally challenged this
directive, a manager responded that maybe they were working
in the wrong industry. (ECF No. 52, ¶ 14.) Additionally,
it was Pollock's understanding that recruiters were to
submit only candidates who had “pronounceable”
last names and no visa restrictions. (ECF No. 52, ¶ 16.)
Manpower investigated this complaint and concluded it was
unsubstantiated. (ECF No. 55, ¶ 22.)
In
late-August 2016 Pollock was moved off the Dell account. (ECF
No. 55, ¶ 27.) According to one of the managers who made
the decision to transfer Pollock, he was transferred because
he consistently made mistakes in processing candidates. (ECF
No. 55, ¶ 30.) Pollock was assigned to a team where he
recruited engineering professionals for a variety of clients.
(ECF No. 55, ¶¶ 35, 39.)
In
September of 2016 the Exxon client account director, Grace
Graham, called Pollock and requested that he assist on the
Exxon account. (ECF Nos. 52, ¶ 20; 55, ¶ 46.) The
account director told him that Exxon's hiring manager
would not be interested in any non-white candidates and that
Pollock should consider “white candidates only.”
(ECF Nos. 52, ¶ 20; 55, ¶¶ 46-47.) The next
day, Pollock reported to his supervisor, Kristin Ellis, the
instruction he received from Graham. (ECF No. 55, ¶ 48.)
Graham's conversation with Pollock was audio-recorded,
and Pollock provided the recording to Ellis. (ECF No. 55,
¶ 49.) The following day Ellis told him that he no
longer would be working on the Exxon account. (ECF No. 55,
¶ 54.) This was reportedly because of problems with
Pollock failing to submit candidates in accordance with
proper procedures. (ECF No. 55, ¶¶ 57-61.) Pollock
was transferred to the Best Buy account. (ECF No. 52, ¶
56.)
Pollock
had repeated problems in terms of productivity and
professionalism, as well as on technical matters. (See,
e.g., ECF No. 55, ¶¶ 65, 66, 67, 73, 75, 76,
77, 78.) On December 5, 2016, Manpower placed him on a
performance expectation plan. (ECF Nos. 52, ¶ 38; 55,
¶¶ 71-72.) In mid-February 2017, Pollock's
supervisor met with him to discuss his performance issues.
(ECF No. 55, ¶ 84.) During this meeting Pollock brought
up the complaints he made in May and September and the
similar complaint his co- worker made in July 2016; Pollock
expressed his belief that Ellis was retaliating against him.
(ECF No. 55, ¶¶ 86-87, 92.) Pollock's
supervisor called in a representative from human resources,
who asked Pollock to provide additional information about his
complaints. (ECF No. 55, ¶¶ 88-89.)
Manpower
then investigated these complaints. (ECF No. 55, ¶¶
92-93.) The investigation resulted in Manpower concluding
that Graham had violated company policy. As a result,
Manpower terminated her employment. (ECF No. 55, ¶ 96.)
Ellis, to whom Pollock initially made this complaint,
received a written warning for not doing more to address
Pollock's concerns. (ECF No. 55, ¶ 97.) The
investigation, which ended in early March 2017, was unable to
substantiate Pollock's claim of retaliation. (ECF No. 55,
¶¶ 98, 100.)
Dissatisfied
with this outcome, Pollock said he did not want to work under
Ellis anymore. (ECF No. 55, ¶ 35.) He was out of the
office for the next couple of weeks as a result of previously
scheduled time off, illness, and requests to work from home.
(ECF No. 55, ¶¶ 103, 106, 107.) When he returned on
March 24, 2017, Pollock was informed he was being transferred
to the Accenture account. (ECF No. 55, ¶ 108.) On March
31, 2017, Pollock sent an email to his supervisor that he was
satisfied with the account he was on. (ECF No. 55, ¶
119.)
A few
days later, on April 3, 2017, Pollock's supervisor met
with him to discuss issues about Pollock leaving work early
and problems in his records. (ECF No. 55, ¶¶ 124,
125, 129, 130.)
Pollock
did not return to work after April 5, 2017. (ECF No. 55,
¶ 136.) He informed his supervisors that he was
“negotiating by his lawyer's side.” (ECF No.
55, ¶ 137.) Manpower approved paid administrative leave
on April 10, 2017, for Pollock to explore mediation of his
claims. (ECF Nos. 52, ¶ 83; 55, ¶ 138.) On April
22, 2017, “Manpower gave Pollock the option to take
severance or return to work.” (ECF No. 55, ¶ 139;
but see ECF No. 50, ¶ 9 (Pollock denying
Manpower provided him “with a severance offer”).)
Pollock did not return to work (ECF No. 55, ¶ 140), and
on May 23, 2017, Manpower treated his refusal to return to
work as a resignation (ECF No. 55, ¶ 140).
2.
Summary Judgment Standard
“The
court shall grant summary judgment 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.”
Fed.R.Civ.P. 56(a). A fact is “material” only if
it “might affect the outcome of the suit” and a
dispute is “genuine” only if a reasonable
factfinder could return a verdict for the non-movant.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986). In resolving a motion for summary judgment, the court
is to “construe all evidence and draw all reasonable
inferences from the evidence in” favor of the non-
movant. E.Y. v. United States, 758 F.3d 861, 863
(7th Cir. 2014) (citing Gil v. Reed, 535 F.3d 551,
556 (7th Cir. 2008); Del Raso v. United States, 244
F.3d 567, 570 (7th Cir. 2001)). “The controlling
question is whether a reasonable trier of fact could find in
favor of the non-moving party on the evidence submitted in
support of and [in] opposition to the motion for summary
judgment.” White v. City of Chi., 829 F.3d
837, 841 (7th Cir. 2016).
3.
Analysis
3.1.
Parties' Proposed Findings of Fact
The
court's task in reviewing Manpower's motion has been
needlessly complicated by the inappropriate and inattentive
way both parties, but particularly Pollock, have presented
and responded to the proposed findings of fact.
By his
own admission, Pollock submitted an incomplete response to
Manpower's proposed findings of fact. (ECF No. 53.) He
has moved to correct his response to three of Manpower's
proposed facts. (ECF No. 53.) This motion is granted as
unopposed. (See ECF No. 56.)
However,
this correction did not address the most significant problems
in Pollock's responses. Many of Pollock's responses
to Manpower's proposed findings of fact state that the
fact is “Disputed.” But Pollock's response
often does not suggest a genuine dispute of the proposed
fact. Sometimes he does not address the proposed finding of
fact; other times the purported dispute is unrelated to the
proposed fact. (See, e.g., ECF No. 55, ¶¶
28, 73.) And still other times, while purporting to dispute
the fact, he actually concedes it. (See, e.g., ECF
No. 55, ¶¶ 84, 94.) Pollock's
“disputes” often amount to no more than adding
details to Manpower's proposed fact. Sometimes Pollock
simply offers those additional details without even stating
whether he disputes or admits the proposed fact. (See,
e.g., ECF No. 55, ¶¶ 78, 80, 99, 120.) To the
extent that the court recounts any such
“disputed” facts here as, in fact, undisputed, it
reflects the court's conclusion that Pollock has failed
to demonstrate that the proposed finding of fact is
“genuinely disputed.” See Fed. R. Civ.
P. 56(c)(1) and (B).
Insofar
as Pollock's responses offer additional information
rather than merely showing the existence of a genuine dispute
as to Manpower's proposed finding of fact, that
additional information is disregarded. Any additional
proposed findings of fact must be presented only in
accordance with Civ. L.R. 56(b)(2)(B)(ii), which ensures that
the moving party is able to appropriately respond to the
proposition. As to any proposed finding of fact to which
Pollock did not respond (see, e.g., ECF No. 55,
¶¶ 64, 66-67, 118), the fact is deemed admitted for
purposes of Manpower's motion. See Fed. R. Civ.
P. 56(e)(2).
There
are also numerous problems with the additional proposed
findings of fact submitted by Pollock. In his summary
judgment brief Pollock states, “All of the facts in
this case are contained in the Plaintiff's Statement of
Undisputed Fact and Plaintiff's Response to
Defendant's Statement of Undisputed Facts, filed herewith
and referenced as if set forth herein with full
particularity.” (ECF No. 47 at 1.) It is unclear what
Pollock intends with this statement. To the extent it is
intended to suggest that the court must consider every
statement in his additional proposed findings of fact and in
his response to Manpower's proposed findings of fact as
if they were a part of his brief, the notion is rejected.
That is not how summary judgment works. It is not the
court's role to scour the record for facts that might
support a party's position, much less make a party's
factual argument for it. See Burton v. Bd. of
Regents, 851 F.3d 690, 695 (7th Cir. 2017) (“The
district court was necessarily limited to arguments presented
in [the plaintiff]'s opposition brief. After all,
‘a lawsuit is not a game of hunt the peanut. Employment
discrimination cases are extremely fact-intensive, and
neither appellate courts nor district courts are obliged in
our adversary system to scour the record looking for factual
disputes….'” (quoting Greer v. Bd. of
Educ., 267 F.3d 723, 727 (7th Cir. 2001))). It is each
party's obligation to make a specific assertion and
support it with a citation to a proposed finding of fact,
which in turn is supported by a citation to appropriate
evidence.
Pollock
also inappropriately combines multiple factual propositions
into a single numbered paragraph. As a rule of thumb, each
numbered paragraph should consist of a single sentence
stating a single proposed fact, although sometimes it may
take more than one sentence to propound a single fact. By the
court's tally, Pollock offers more than 130 separate
proposed facts, far in excess of the 100 permitted under the
court's Local Rules, see Civ. L.R.
56(b)(2)(B)(ii).
When a
party exceeds the 100-fact limit without leave, some judges
will strike or disregard any fact in excess of the 100-fact
limit. See, e.g., B.B & M. v. Appleton Area
Sch. Dist., No. 12-C-115, 2013 U.S. Dist. LEXIS 107392,
at *6 (E.D. Wis. July 31, 2013) (“The court will
therefore limit its consideration to Plaintiffs' first
100 statements of fact ….”) Alternatively, the
court could order Pollock to submit new proposed facts that
comply with the 100-fact limit. See Howard v.
Schrubbe, No. 15-cv-557-pp, 2017 U.S. Dist. LEXIS
122943, at *5-7 (E.D. Wis. Aug. 4, 2017). However, the court
can overlook non-compliance with its Local Rules.
See Gen. L.R. 1. The ...