The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF'S MOTION TO OPPOSE SUMMARY JUDGMENT
Plaintiff, Alan T. Boyce, brought a pro se action against defendant, Interbake Foods, alleging violations of Title VII and a state-law claim of intentional infliction of emotional distress. Interbake moves for summary judgment on all counts, which Boyce resists in a motion to oppose the summary judgment motion. Interbake also moves to strike factual statements contained in Boyce's filings, which Boyce resists. Interbake's summary judgment motion is granted and Boyce's motion to oppose summary judgment is denied. Interbake's motion to strike is granted.
In the light most favorable to Boyce, the nonmoving party, the pertinent facts to this order are as follows:*fn1
Interbake is a cookie and cracker manufacturer. Interbake employees, including Boyce, are represented by the Bakery, Confectionary, Tobacco Workers, and Grain Millers Union, Local No. 433 (Union). At all relevant times in this matter, Interbake and the Union had a collective bargaining agreement (Agreement).
Boyce, an African-American male, began working at Interbake in August of 2005 in the packaging and additions department at Interbake's facility in North Sioux City, South Dakota. Boyce was assigned to the position of enrober operator and his wages and benefits were paid according to the Agreement.
Interbake has an employee handbook that describes two types of disciplinary infractions. Type I Offenses may result in progressive discipline. Type II Offenses subject the offending employee to immediate discharge. Interbake also offers coaching sessions to address an employee's behavior. Interbake keeps a written record of coaching sessions, but coaching sessions are not a part of Interbake's progressive discipline policy.
In January of 2008, Boyce filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and the dispute was resolved through mediation on February 21, 2008. Pursuant to the February 21, 2008, agreement, Boyce received payment and released all pending claims against Interbake.
In February of 2008, Pat Minor, an off-shift scheduler, stated, "If anybody missed work, it would be Alan Boyce and Roxann Favors and Marcia Jackson." Boyce did not hear this statement but, once he learned of Minor's statement, argues that her words negatively affected his morale. Favors and Jackson are also African-American.
On May 8, 2008, an equipment issue resulted in a cookie jam-up. Boyce temporarily turned off the air blowers to clear the jam, which resulted in cookies with excessive coating. David Williams, Boyce's line manager, instructed Boyce on how to handle a similar situation in the future. Boyce was not disciplined, and he was not issued a coaching session for the May 8 incident.
On June 5, 2008,*fn2 Interbake issued Boyce a coaching session for using profane language, a Type I Offense, with line manager Carol Mackey. Boyce argues that Mackey "was forced into" the coaching session. See Docket 57 at ¶ 28. At some later time (the specific date is unclear from the record), a white employee who cursed in front of team leader Ken Gardner received no discipline. In June of 2008, Boyce filed a charge of discrimination and retaliation for the May 8 incident and the June 5 coaching session with the South Dakota Division of Human Rights (SDDHR).
The SDDHR dismissed the charge because it found neither discrimination nor retaliation by Interbake. Boyce appealed the SDDHR decision to the South Dakota Circuit Court for the First Judicial Circuit. After full briefing, the state court determined that neither the May 8 incident nor the June 5 coaching session were discriminatory or retaliatory.
In July of 2008, Minor stated "Alan Boyce is upset" across a two-way radio. Boyce did not hear this statement but claims that it negatively affected his morale.
At some point (the date is unclear from the record), Minor scheduled Boyce to work in the coconut topper position. In order for an employee to be assigned to a position at Interbake, the employee must be qualified to work the position, meaning he worked that position within the prior twelve-month period. When assigning an employee to a position, the manager consults Interbake's computer system to ensure that he meets that position's prerequisites.
Minor scheduled Boyce to work in either the caramel mixing or coconut topper positions. Boyce told Minor that he had not worked either position in over twelve months. Minor reviewed the overtime records, saw that Boyce had worked both positions in overtime shifts, showed Boyce the records, and offered Boyce a choice of positions. Boyce chose the coconut topper position.
At some other time (the specific date is unclear from the record), Boyce argues that an overtime scheduling error occurred. More senior employees normally receive first choice on whether to work overtime and less senior employees are assigned any remaining shifts. When Boyce discovered that less senior employees were available to work overtime, he reported the situation to supervisor Melissa Dale, who took Boyce off of the overtime assignment.
On February 19, 2009,*fn3 Boyce received a verbal warning, the first step in Interbake's progressive discipline policy, for failing to follow Interbake's washout procedures. Boyce had received a coaching session on May 12, 2007, for a similar infraction. Boyce alleges that a month later, caps on the enrober machine were found to be dirty when the employees set up the machines for the day. An employee brought the dirty caps to the manager's attention, but the manager told the employees that it was "not a big deal and it will be o.k." Docket 66.
In April of 2009, Boyce filed a charge with the EEOC alleging discrimination from the February 19, 2009, verbal warning, and retaliation in the form of Minor's statements, the overtime scheduling error, and being scheduled to work in the coconut topper position. The EEOC dismissed the charge and Boyce received his right-to-sue letter on June 11, 2009. Boyce filed this lawsuit on September 10, 2009.
In November of 2010, Boyce discovered a cookie that he claimed was racially offensive. Boyce moved to compel discovery about the cookie and, after construing Boyce's motion to compel as a motion to modify the Rule 16 scheduling order, the court granted the motion. Interbake has provided the requested documents to Boyce and to the court under seal.*fn4
The incident involved a cookie made from devil's food cake and decorated with a white frosting smiley face, which was discovered on an Asian-American co-worker's machine in November of 2010. Interbake investigated the matter. Interbake interviewed the co-worker and she stated that she made the cookie for herself, she enjoyed looking at the cookie, and the cookie looked like a "god." The co-worker further stated that she forgot to take the cookie home with her after she made it. Interbake issued the co-worker a coaching session for creating the cookie. In a November 2010 memorandum to all Interbake employees, Tiffani Stegemann addressed the issue of taking scrap materials and making offensive cookies. Docket 92-7 (sealed). Stegemann cautioned all employees that "[t]his behavior needs to stop immediately." Docket 92-7 (sealed).