Pollock v. Manpowergroup U.S. Inc.

          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 ...