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Fandakly v. Thunder Technologies, LLC

United States District Court, E.D. Michigan, Southern Division

April 26, 2018

HUSAM FANDAKLY, Plaintiff,
v.
THUNDER TECHNOLOGIES, LLC, and MARK KALINOWSKI, Defendants.

          CORRECTED OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, DENYING MOTION TO STRIKE RESPONSE, AND DISMISSING COMPLAINT WITH PREJUDICE

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE

         The Court issues this corrected opinion nunc pro tunc to correct certain non-substantive errors in the original.

         Plaintiff Husam Fandakly filed a complaint in this Court on April 21, 2017 alleging that his employer, Thunder Technologies, LLC, and his supervisor, Marc Kalinowski, discriminated against him based on national origin in violation of 42 U.S.C. § 1981 and Michigan law. His theory was that he was constructively discharged because of a hostile work environment. Fandakly was represented by an attorney at the time. His attorney was allowed to withdraw from the case on August 21, 2017. Since that time, Fandakly has chosen to represent himself. On November 8, 2017, the defendants filed a motion for summary judgment. Fandakly did not respond to the motion within the time allowed. He did, however, file documents several months later, which are characterized on the docket as a response to the motion. However, those documents consist only of miscellaneous records, memoranda, and what appear to be transcriptions of recorded telephone conversations. They were not accompanied by any verifications, declarations, or legal arguments.

         The defendants moved to strike the response. The Court scheduled a hearing on both motions for April 18, 2018. The plaintiff appeared in court on his own behalf and responded to the defendants' argument. He had no good explanation for his failure to follow the filing rules or the rules of procedure concerning summary judgment motions and responses. And he acknowledged that he had no verifications or statements under oath that could support the admissibility of any of the documents he filed.

         The plaintiff's filings are not directly responsive to the defendants' motion for summary judgment. On the other hand, the filings are not impertinent or scandalous so as to subject them to being struck under Federal Rule of Civil Procedure 12(f). The Court therefore will deny the motion to strike them, and they may remain in the record for whatever value they might have going forward.

         Those documents, however, do not establish a question of material fact, or rebut the defendants' assertions made in their motion for summary judgment. Because the record demonstrates that the defendants are entitled to a judgment as a matter of law, the Court will grant their motion and dismiss the case.

         I.

         There has been very little formal discovery conducted in this case. However, the defendants have supported their summary judgment with affidavits and business records.

         The plaintiff alleged in the complaint that the defendants directed ethnic slurs toward him based on his middle eastern heritage, and that the defendant's son, Andrew Kalinowski, showed him a video of a person having sex with a goat. None of this is supported in the record with testimony, affidavits, or declarations.

         On the other hand, the defendants submitted an affidavit by Marc Kalinowski, the owner of Thunder Technologies, LLC. Kalinowski attested that he hired plaintiff Husam Fandakly to work at his manufacturing plant in Rochester Hills, Michigan around November 10, 2014. The plaintiff's job duties included stocking, inventory, shipping, receiving, fabrication, painting, cleaning (various areas of the plant, as well as bathrooms and company cars), and other similar tasks.

         Around three weeks after he was hired, the plaintiff confessed that he had misrepresented his criminal history when he applied for the job; he did not report that he had served a prison sentence for a felony conviction for selling marijuana, although the employment application the plaintiff submitted tends to negate that assertion. Kalinowski felt that “everyone deserved a second chance, ” and he decided to keep the plaintiff on despite his concerns about the deception.

         Kalinowski attested that the plaintiff “told inappropriate stories and used inappropriate language at the office, ” and that Kalinowski overheard the plaintiff use words such as “f***, ” “b***h, ” and “n****r.” The plaintiff also “often listened to loud rap music in the workshop that cursed [sic] as much as he did, rapping about themes inappropriate for work.” The plaintiff also “referred to himself using ethnic titles that would have been slurs from anyone else, such as ‘Arabian Prince' and ‘Arabian Knight.'”

         The plaintiff's racist, sexist, and otherwise offensive and inappropriate antics at work included incidents when he (1) told “midget jokes” and “pantomim[ed] midgets in sexual situations”; (2) “punched” large rolls of rubber material stored in the warehouse and “call[ed] them ‘n****rs'”; (3) told stories about “staking out” individuals at his previous places of employment, intending to “beat them up”; (4) bragged that a cousin of his “stabbed and gutted” a neighbor who had threatened the plaintiff's family; (5) boasted that he was one of the “top drug dealers in Detroit” and that he had “buried a million dollars in his back yard before he went to prison for dealing marijuana”; (6) told a story about flooding a business that he previously was involved with in order to collect $88, 000 in insurance proceeds; (7) “offered to burn down [Thunder Technologies] during a particularly poor month where [Kalinowski] was losing money, so that he could collect insurance money”; and (8) often bragged about the size of his genitalia.

         Kalinowski reprimanded the plaintiff several times for his inappropriate and offensive language and conduct, and he attested that the plaintiff was the only employee he ever had who needed to be repeatedly reprimanded for those sorts of problems. The defendant's office manager also repeatedly reprimanded the plaintiff for his behavior. However, Kalinowski chose not to fire the plaintiff because “his job performance was generally good.” In ...


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