Barnes v. Northern Indiana Public Service Co.

266 F. Supp. 3d 1110
CourtDistrict Court, N.D. Indiana
DecidedJuly 18, 2017
DocketCase No. 2:15-CV-141 JD
StatusPublished
Cited by2 cases

This text of 266 F. Supp. 3d 1110 (Barnes v. Northern Indiana Public Service Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. Northern Indiana Public Service Co., 266 F. Supp. 3d 1110 (N.D. Ind. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

JON E. DEGUILIO, Judge

This is an employment case arising out of pro se plaintiff Cornelius Barnes, Jr.’s employment as an apprentice lineman with Northern Indiana Public Service Company (NIPSCO), a public utility for natural gas and electricity services. Barnes alleges that NIPSCO discriminated against him because he is African American, retaliated against him for filing an internal complaint of discrimination in January 2014, and created a hostile work environment. Discovery has now closed and NIPSCO moved for summary judgment [DE 55], while giving the pro se plaintiff proper notice concerning his need to respond to the motion with evidence or risk an adverse judgment [DE 59]. Not only did Barnes respond and provide hundreds of pages of legitimate business records and emails from NIP-SCO, but he filed his own motion for summary judgment [DE 61], along with additional evidence. The motions are fully briefed and ripe for consideration.

As a preliminary matter, the Court would note that the only evidence objected to concerns deposition excerpts filed by Barnes in support of his reply brief [DE 71-1]. NIPSCO filed a motion to strike this evidence or, in the alternative, sought leave to file a sur-reply [DE 72]. NIPSCO claims that the deposition excerpts constitute “new evidence” that was filed too late during the briefing process. NIPSCO also argues that Barnes’ reply brief improperly mischaracterizes the deposition testimony. Contrary to NIPSCO’s argument, the vari[1113]*1113ous deposition excerpts provided by-Barnes are not “new evidence.” Rather, NIPSCO relied on these very same depositions (albeit different excerpts) , in seeking its summary judgment. In fact, the case that NIPSCO relies on, Baugh v. City of Milwaukee, demonstrates that introducing additional pages of deposition transcripts to clarify portions of those depositions first submitted by the opposing party is not new evidence. 823 F.Supp. 1452, 1457 (E.D. Wis. 1993), aff'd, 41 F.3d 1510 (7th Cir. 1994). And to the extent Barnes mis-characterizes the deposition testimony in his reply'brief, Barnes’ argument is not evidence and the Court is capable of discerning the true contents of those depositions. In any event, the Court does grant NIPSCO leave to file its sur-reply [DE 72-1], because its consideration does not change the outcome of this Order.

For the reasons that follow, after liberally construing Barnes’ pro se claims, the Court denies the motions for summary judgment as to Barnes’ race discrimination and retaliation claims; but as to the hostile work environment claim, the Court grants NIPSCO’s motion and denies Barnes’ motion. ' ■

I. STANDARD OF REVIEW

On summary judgment, the moving party bears the burden of demonstrating 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 “material” fact is one identified by the substantive law as affecting the outcome of the suit; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “genuine issue” exists with respect to any material fact when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole could, not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). In determining whether a genuine issue of material fact exists, this Court must construe all facts in.the light most favorable.to the non-moving party and draw all reasonable and justifiable inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party cannot simply rest-.on the allegations - contained in its pleadings, but must, present sufficient evidence to show the existence of each element of its case, on which it will- bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).

Finally, the fact that the parties have cross-filed for summary judgment does not change the standard of review. M.O. v. Ind. Dep’t of Educ., 635 F.Supp.2d 847, 850 (N.D. Ind. 2009). Cross-motions are treated separately under the standards applicable to each. See Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 915 (7th Cir. 2012).

II. FACTS

Since June 2009 Barnes has worked various jobs at NIPSCO, until he successfully bid on a position in the lineman apprenticeship program in September 2011. The forty-eight month program consists of eight steps, with apprentices moving to the next step every six months while completing approximately twenty on-the-job tasks at each step [DE 65-1 at 140-49; DE 58-1 at 12-13]. At the end of every six months in the program, an apprentice must also [1114]*1114pass a written and hands-on performance evaluation at the Human Performance Improvement Center (or training center). NIPSCO assumes responsibility for providing appropriate work assignments needed by an apprentice to allow for successful completion of the program.

Throughout the program an apprentice also receives monthly apprentice reports which are expected to document observations made by the on-site journeyman lineman. The journeyman makes any comments on the form and then separately ranks the apprentice’s, attitude, ability, performance, and overall conduct as excellent, strong, average, marginal, or unsatisfactory. The journeyman must then determine whether the overall report should be characterized as “acceptable” or “unacceptable.” The direct supervisor and the apprentice are then expected to sign the monthly report. If an apprentice received three unacceptable reports, NIPSCO’s written policy required a field evaluation to be conducted [DE 65-1 at 25]. However, NIPSCO also claims that it had an unwritten “process” of disqualifying an apprentice from the program after three unacceptable reports. But, other than Barnes, NIPSCO did not identify an apprentice lineman that was disqualified for receiving three unacceptable reports and without conducting a field evaluation.1

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266 F. Supp. 3d 1110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-northern-indiana-public-service-co-innd-2017.