Lovelle Banks, an African American man, sued John Deere & Company and John Deere Waterloo Works (collectively, Deere), alleging race discrimination and harassment in employment in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
Banks joined Deere in 2004 and by December 2007 worked his way up to his current position of machinist. Banks operates a grinder on second shift in Department 524 of Deere's Waterloo Works plant, which manufactures tractors. Dean Mullen operates the grinder on first shift, and Sharm Loy operates the grinder on third shift. Both Mullen and Loy are white. Diane Kofron, a white woman, supervised Banks at the relevant time.
Banks is a member of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (union) and is subject to a collective bargaining agreement (CBA) between the union and Deere. The CBA provided for progressive discipline administered by Deere's Labor Relations Department.
The CBA permitted Deere to impose a three-day suspension if an employee failed to work a scheduled shift. Banks received such a suspension in June 2011. The suspension was "paper only," meaning Banks never actually served the suspension, but it remained on his disciplinary record for purposes of progressive discipline.
On February 14, 2012, Banks received the next step of discipline — a two-week paper-only suspension for failing to work scheduled overtime. The next step in the disciplinary process would be a thirty-day suspension. On February 28, 2013, Deere and the union agreed that employees who failed to work scheduled overtime would receive the equivalent of a written warning rather than a three-day suspension. Although the change was retroactive, Deere did not initially correct Banks's disciplinary record, leaving the false impression Banks was subject to a thirty-day suspension for any further infraction.
On January 15, 2013, Loy, whom Banks accuses of repeatedly using racial epithets, called Deere's compliance hotline and complained
Deere assigned Brad Thomas from the Labor Relations Department to investigate. After speaking with Banks's co-workers, Thomas concluded Kofron was not effectively managing Banks and gave Kofron some coaching. Thomas, Kofron, and a member of Deere's human resources department also met with Banks to advise him he would face consequences if he failed to improve his performance and his attitude. Banks did not receive any progressive discipline as a result of Loy's complaint.
In March 2013, Rizah Sarajlija, a manufacturing engineer in Department 524, determined the department was "running scrap" — producing parts out of compliance with Deere's manufacturing specifications. Inspection reports indicated the problem could be caused by "swarf" — grind residue consisting of fine metal shavings — getting between the grinder and the work piece. Sarajlija concluded the part defects were consistent with a grinder operator failing to blow the swarf off the grinder fixture between parts as required by Deere procedure. Although Banks assured Kofron and Sarajlija he was blowing off his grinder between parts, Deere inspectors tested twenty-four parts Banks produced and determined eight were defective.
On March 11, 2013, Kofron received a photograph from an inspector depicting Banks's grinder, allegedly after Banks had operated it.
On March 20, 2013, Craig Cornwell from Deere's Labor Relations Department convened a disciplinary hearing. Cornwell reviewed the photograph and inspection reports and heard live testimony from the parties involved. Banks and his union representative, noting the picture did not indicate when it was taken, denied Banks failed to blow off his grinder between parts. Cornwell nonetheless concluded there was good and just cause to discipline Banks for failing to follow work instructions and producing scrap. Because Banks's disciplinary record did not reflect the retroactive reduction of his previous suspension to a warning, Cornwell imposed a thirty-day unpaid suspension — the next disciplinary level after what the records showed was Banks's prior two-week suspension.
Banks filed a grievance challenging his suspension. At that time, Deere discovered the error in Banks's disciplinary record and determined he only should have received a two-week suspension. Deere corrected Banks's disciplinary record and reimbursed him for the pay and benefits he would have received had he not received the thirty-day unpaid suspension. Deere maintains it simply overlooked revising
B. Procedural History
On April 24, 2013, Banks filed a complaint with the Iowa Civil Rights Commission. He received a right-to-sue letter September 4, 2013. On December 2, 2013, Banks sued Deere in Iowa state court, alleging unlawful race discrimination and harassment under federal and state law.
The district court concluded any claims Banks sought to make based on discrete acts of race discrimination that occurred before June 29, 2012, were time-barred because Banks failed to exhaust his administrative remedies.
With respect to that claim, the district court found that Banks's discrimination claim based on the March 2013 suspension was timely and that Banks suffered an adverse employment action, but the district court concluded Banks failed to establish the requisite inference of race discrimination. The district court further decided that even if Banks had established an inference of race discrimination, he still failed to show Deere's stated reasons for imposing discipline were merely pretextual.
With respect to Banks's race-harassment claim, the district court determined Banks failed to produce any admissible evidence to support his allegations. The district court thus found "it unnecessary to determine whether the allegations, if accepted as true, would meet the strict standard required to establish a claim for hostile work environment." Banks timely appeals.
A. Standard of Review
"We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences that can be drawn from the record."
B. Race Discrimination
Banks first challenges the adverse judgment on his race-discrimination claim.
If Banks establishes a prima facie case, a presumption of discrimination arises and the burden shifts to Deere to present evidence of a "legitimate, nondiscriminatory reason for" its adverse employment action.
Banks readily "concedes that his race was not the sole reason for the complained of conduct that he suffered; however, he does claim that his race was a motivating factor that played a role in" his suspension. As Banks sees it, he has met "all the required elements for a prima facie case of racial discrimination" and has created "a fact issue as to pretext." We disagree.
Even if we assume Banks ultimately suffered an adverse employment action — a point closely contested below — Banks has not adduced any evidence race "was a motivating factor" in Deere's decision to discipline Banks for running scrap. 42 U.S.C. § 2000e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race... was a motivating factor for any employment practice, even though other factors also motivated the practice."). "To survive summary judgment," Banks had to "both discredit [Deere's] articulated reason [for discipline] and demonstrate the `circumstances permit a reasonable inference of discriminatory animus.'"
Put simply, Banks speculates race was a motivating factor in his suspension, but has failed to show it. "Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment."
C. Race Harassment/Hostile Work Environment
Banks next argues the district court erred in concluding Banks failed to present any admissible evidence of a hostile work environment based on race. "Hostile work environment harassment occurs `[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"
In this case, the district court, quoting
Relying on appeal as he did in the district court on three unsworn statements from his co-workers and his related interrogatory answers, Banks argues the district court's grant of summary judgment "was error and improper." Banks avers he would have called three co-workers, Andrew Reagan, Mike Olson, and Randy Demro, at trial "to testify that they have all heard Sharm Loy refer to Banks as `that nigger' since February 2012." In Banks's view, "[b]y referring to the [three] statements ... as in admissible [sic] hearsay evidence the district court failed to view the record in the light most favorable to Banks and failed to afford it [sic] all reasonable influences [sic]." Banks's analysis again misses the mark.
Regardless of whether Banks's assurance that his co-workers would have testified at trial mitigates the hearsay concerns with respect to the unsworn statements,
Rule 56(c)(4) requires "[a]n affidavit or declaration used to support or oppose a motion [to] be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Although Rule 56, as amended in 2010, no longer requires a formal affidavit, an unsworn declaration or statement substituted for a sworn affidavit must still meet important statutory requirements.
The unsworn and unattested statements purportedly from Banks's co-workers and Banks's related interrogatory answers do not meet these standards.
In light of Banks's reliance on incompetent and inadmissible evidence, the district court did not err in granting summary judgment to Deere on Banks's harassment claim.