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Devon Francis v. Atlas Machining & Welding

February 14, 2013


The opinion of the court was delivered by: Stengel, J.


Plaintiff Devon Francis brings this action against his former employer, Atlas Machining and Welding, Inc. (Atlas), as well as Harold Keeney, Thomas Regec, Michael Kresge, and Michael Lansenderfer (collectively, Defendants). Francis alleges violations of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. The parties filed cross motions for summary judgment.*fn1 For the following reasons, I will deny both motions.


Defendant Atlas hired Francis, who is African American, on January 17, 2005, as a welder. At all times relevant to this lawsuit, Defendant Kenney was Atlas' president and chief executive officer; Defendant Regec was Atlas' weld shop supervisor; Defendant Lansenderfer was a welder; and Defendant Kresge was a welder until his promotion to welding foreman in August 2007.

A. Racial Comments by Kresge and Lansenderfer

Francis claims that "within the first starting weeks" and throughout his employment at Atlas, Kresge and Lansenderfer directed racial slurs toward him. Francis Dep. at 33. Specifically, Francis alleges that Kresge and Lansenderfer would yell "get out[] nigger [and] here comes the boy," that Lansenderfer "said that he wished all niggers would go back to Africa," that Kresge "specifically looked [Francis] in the eye and said [he] was only the second nigger he enjoyed speaking to," and that Kresge stated to Francis that "niggers were lazy." Id. at 33-34, 36, 40. Francis claims these comments were made "whenever [he] entered into the weld shop area." Id. at 33.

Francis claims he reported the slurs to Regec in the first month of his employment and "every five to six months" thereafter. Id. at 41. Regec purportedly responded that Francis shouldn't "worry about [Kresge and Lansenderfer]. They're from the mountains. They're not used to being around black people." Francis Dep. at 36, 38. Despite these reports, Francis claims Kresge and Lansenderfer's harassing behavior continued unabated until Kresge's promotion to welding foreman in August 2007, after which Francis was harassed "every now and then." Id. at 42, 52-54.

Kresge and Lansenderfer both flatly deny they ever directed racial slurs toward Francis. Kresge Dep. at 13-14; Lansenderfer Dep. at 19-21. Regec denies that Francis ever personally complained to him about Kresge and Lansenderfer. Regec Dep. at 21.

B. The First Noose

In July 2007, Francis first noticed a hangman's noose hanging from a welding boom near Kresge's workstation.*fn3 Francis Dep. at 42. Defendants contend the noose long pre-dated Francis' employment with Atlas. Regec Dep. at 23; Kresge Dep. at 15. In any event, Keeney was called to investigate. Although the parties appear to dispute Keeney's initial reaction to the noose,*fn4 they agree that Keeney ordered it taken down immediately and retied to Francis' satisfaction. Francis Dep. at 45-47; H. Keeney Dep. at 28.

C. The Second "Noose"

On July 24, 2008, Francis again observed what he perceived to be a hangman's noose near the same workstation, which Lansenderfer occupied following Kresge's promotion to welding foreman.*fn5 Francis Dep. at 58. Francis alerted Keeney. H. Keeney Dep. at 41. Francis and Keeney proceeded to have a "back and forth," during which Francis complained about Kresge and Lansenderfer's verbal harassment.*fn6 Francis Dep. at 60-61. Following this exchange, another Atlas employee, Todd Ervin, offered to assist Francis in taking down the noose after work. Francis Dep. at 63-64. Francis declined, and the purported noose hung for the remainder of July 24.

Francis returned to work the following day, July 25, to find the noose still hanging; it remained hanging when he left that evening.*fn7 Id. at 64-65; H. Keeney Dep. at 47. The noose was taken down at some point before Francis returned to work the following week. Francis Dep. at 69-70. Keeney claims he didn't take the noose down immediately so he could "investigate the situation and find out what's going on." H. Keeney Dep. at 48.

D. Francis' Resignation from Atlas

Francis claims he felt "extremely depressed" and suffered panic attacks following his shift on July 25. Francis Dep. at 66-67. He visited his doctor, who prescribed him an antidepressant and a sleep aid, and referred him to a psychologist. Id. Francis returned to work on July 30 but only sporadically thereafter. At some point prior to Francis' resignation, Keeney phoned Francis to apologize for any offense ...

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