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Cooper v. Penske Truck Leasing, Co.

United States District Court, D. Nebraska

November 9, 2015

GREGORY COOPER, an individual, Plaintiff,



Plaintiff Gregory Cooper claims he was discriminated against and harassed based on his race[1] during his employment with Penske Truck Leasing, in violation of Title VII and the Nebraska Fair Employment Practices Act.[2] Defendant Penske has filed a motion for summary judgment. (Filing 21.)


1. Plaintiff Cooper started working as a technician at Penske’s facility in Omaha, Nebraska, in November 2011. (Filing 1, Pl.’s Complaint ¶ 1.)

2. Cooper is African-American. (Filing 1, Pl.’s Complaint ¶ 1.)

3. Cooper always worked the 7:00 a.m. to 3:30 p.m. (“early” or “day”) shift while employed at Penske. (Filing 27-3, Dep. of Gregory Cooper (“Cooper Dep.”) 80:15-19.)

4. Cooper’s coworker, Aaron Poteet, told Cooper that other Penske employees were complaining about Cooper’s skill level and making “racist comments” about Cooper “every single day, ” but Cooper did not personally hear any racial comments from other Penske employees. (Filing 27-3, Cooper Dep. 32:12-15, 131:16-132:5.) Cooper thinks racial comments about him were “more hidden between the guys in a private conversation” and were “always done behind [his] back” and “[n]ever to [his] face.” (Filing 27-3, Cooper Dep. 31:16-21, 60:7-19.)[3] Cooper never complained to management about any race- or color-based comments prior to October 2013. (Filing 27-3, Cooper Dep. 32:16-21.)

5. On October 6, 2013, during an evening-shift break, the evening shift lead technician Michael Wortman, Poteet, and a couple of other technicians were engaged in a conversation. At one point in the conversation, Wortman said that he wanted to call Cooper a “nigger” (or words to that effect) for a long time, but did not do so because he would be disciplined. (Filing 27-5, Dep. of Aaron Poteet (“Poteet Dep.”) 11:8-12:1.)[4] Wortman’s racially-charged comment about Cooper was not said directly to Cooper or in his presence. (Filing 27-3, Cooper Dep. 60:13-19; Filing 27-5, Poteet Dep. 25:14-19.)

6. Unbeknownst to Wortman, Poteet recorded the October 6, 2013, conversation he had with Wortman. (Filing 27-5, Poteet Dep. 11:8-18, 12:2-4.)

7. On October 8, 2013, Poteet informed Maintenance Supervisor Paul Harden about the substance of the October 6, 2013, conversation, including Wortman’s racial comment about Cooper. (Filing 27-3, Cooper Dep. 53:3-20; Filing 27-5, Poteet Dep. 15:18-23, 16:23-17:3.)

8. Poteet complained to Harden about Wortman’s offensive and derogatory language about Poteet’s “bloodline, ” as well as the derogatory comment Wortman made regarding Plaintiff. (Filing 27-4, Dep. of Paul Harden (“Harden Dep.”) 59:10-21; Filing 27-5, Poteet Dep. 13:5-10, 15:18-23; Filing 27-3, Cooper Dep. 89:4-9.)

9. After Poteet complained to Harden about Wortman’s October 6, 2013, comments, Cooper played the audio recording of the October 6 conversation for Harden within the same 24 hours. (Filing 27-4, Harden Dep. 46:16-20.)

10. Poteet was the only Penske employee who told Cooper that Wortman had made a racist comment about him. (Filing 27-3, Cooper Dep. 131:16-20.)

11. On October 8, 2013, Maintenance Supervisor Harden held a mandatory meeting with all technicians at the Penske facility. The purpose of the mandatory meeting was to review Penske’s anti-harassment policy. (Filing 27-3, Cooper Dep. 39:1-14; Filing 27-5, Poteet Dep. 15:18-16:13.)

12. At the meeting, Harden went over the policy, handed each technician a copy of the policy, and had each technician sign the policy and agree to follow it. (Filing 27-3, Cooper Dep. 39:1-23; Filing 27-5, Poteet Dep. 15:18-16:22.) Until the October 8, 2013, meeting, Cooper did not know that Penske had an anti-harassment policy and “who was the chain of command” because Penske did not provide him with a “proper orientation.” Penske also failed to provide Cooper with a standard-issue uniform for his first several weeks of employment. Instead, Penske gave him a fluorescent shirt, about which his coworkers ridiculed him on a daily basis. (Filing 27-3, Cooper Dep. 40:1-15.)

13. On October 10, 2013, District Manager Tom Leto and Maintenance Supervisor Harden held a mandatory technician meeting at the Omaha facility to discuss the derogatory language that Wortman used on October 6, 2013. (Filing 27-3, Cooper Dep. 43:6-18.)

14. The purpose of the October 10, 2013, mandatory meeting was to discuss the anti-harassment policy and to reinforce what Harden had said two days earlier at the prior meeting. (Filing 27-3, Cooper Dep. 50:23-51:13.)

15. The men that led the October 10, 2013, meeting communicated that anyone who violated the anti-harassment policy would be disciplined. ...

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