HOWARD SACHS, Senior District Judge
Before the court is defendant Ford Motor Company's motion for summary judgment. It has been fully briefed and argued. The nature of the instant action is employment discrimination, specifically, failure to promote and retaliation. Plaintiffs claims are brought under 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964. Plaintiff also filed a Charge of Discrimination with the Missouri Commission on Human Rights ("MCHR") alleging violations of Title VTI and Section 1981. Plaintiff claims that Ford's failure to promote him was based on his race, and that once he filed a charge of discrimination, Ford retaliated against him. Plaintiff alleges that the retaliation took the form of, among other things, verbal harassment, discipline, suspension, and reassignment to a different job.
The contention that cancellation of a scheduled promotion should be treated as a demotion from a supervisory position seems unsound. In any event this case is governed by essentially undisputed facts, not by terminology.
In his complaint to MCHR, plaintiff alleged that Ford discriminated against him due to his race and national origin, Hispanic, by failing to promote him. Plaintiff did not assert a claim for retaliation, as of July 20, 1999.
Also before the court is Ford's motion to strike various exhibits submitted by plaintiff. For present purposes all filings will be considered. Background
Plaintiff, Hector Higareda, began working for Ford on May 20, 1992, at the Kansas City Assembly Plant in Claycorno, Missouri. He was hired as an hourly production employee in the Commercial Chassis department. In February of 1999, plaintiff applied for a salaried position as a supervisor. Ford's process for promotion required an applicant to successfully complete an S2000 assessment module, and interviews. Offers of employment were extended by the Personnel Development Committee ("PDC"), which was comprised of a group of salaried employees, i.e. area managers, human resources representatives, assistant plant managers, and the plant manager; all of whom met regularly to discuss hiring decisions, pending transfers, and other related personnel issues.
PDC members Jim Churchman, an area manager, and his supervisor, Pat Reid, discussed plaintiff's candidacy for promotion, and voted, along with other members, to extend an offer to plaintiff. Churchman, whose controversial role is discussed further, has currently had a checkered career with Ford, and recently settled an employment claim against Ford. John Tucking, plaintiff's immediate supervisor, and John Brancato, a superintendent, concurred with the decision. By a letter dated March 1, 1999, Jeff Godlewski, supervisor of salaried personnel, offered plaintiff a promotion to the position of Supervisor-Vehicle Assembly Operations. Plaintiff accepted the offer, and although the actual starting date was March 15, 1999, plaintiff was informed by Lori Strohl, a human resource representative, that Churchman preferred that he begin working a week or two before that date. Plaintiff refused because he had a vacation scheduled and planned to attend a spring baseball training game.
According to Jackie Browning, a human resources associate with Ford, in June of 2000 she began receiving complaints from Caucasian salaried employees about Churchman's behavior. (Browning Affidavit, Exh. 23, pg.2). None of these complaints contained allegations of disparate treatment due to race or national origin. Nevertheless, Churchman was ultimately terminated due to abusive conduct — breach of trust. (Browning Affidavit, Exh. 23, pg. 2-3; Pl.Exh. 16)
Most of the affidavits and exhibits referred to can be found in Defendant's Appendix; however, those references found in Plaintiffs Exhibits are duly noted.
Ford refers to her as either Strohl or Scott; however, for purposes of this decision, she will be referred to as Strohl.
On March 12, 1999, a fire occurred in the Chassis department causing smokey conditions. An employee shut down the assembly line on which plaintiff and others were working. This created a crisis, sometimes referred to as chaotic, and Ford asserts downtime is valued at $10,000 per minute. According to plaintiff, all of the workers, with the exception of himself, left the work area. Plaintiff states that he remained in order, among other things, to work two jobs ahead in anticipation of the line coming back up. Nevertheless, he claims Churchman and Tucking accused him of stopping the line, and leading other workers in walking off the line. Conversely, Ford states that upon Churchman's arrival, Tucking, plaintiffs supervisor, advised him that plaintiff had not returned to his workstation despite two requests to do so. Tucking Dep. 12, 53. After Ford's Security Department advised that there were no occupational hazards, Churchman then asked plaintiff to return to his workstation, but plaintiff failed to respond and did not return to his workstation until the line was turned back on. Churchman Dep. 29. Higareda offers reasons for not responding promptly (Higareda Dep. 176, 178, 205, 207) but fails to flatly deny, by affidavit or otherwise, the contention that he was slow in following instructions.
Plaintiff states that later that day, Ford management advised him that he would not be promoted to management, and that he should report to the line on Monday, March 15th. Plaintiff also states that when he arrived home that evening, he received a voice message from Ford's Human Resources Department confirming that the offer for promotion had been rescinded. On the afternoon of the smoke incident, Churchman called Mylinda Scott, a Human Resources Associate, and informed her that because plaintiff refused requests to return to his workstation, he did not want him on his management team. According to Ford, although Scott left a message on plaintiff's answering machine telling him not to report in as a supervisor on Monday, it was not a final recission of the offer, because Godlewski began an investigation of the allegations.
In his opposition papers plaintiff states that, on the day of the smoke incident, he was informed by Churchman that he would not be promoted into management. (Plaintiffs Memorandum in Opposition to Defendant's Motion for Summary Judgment: pg. 3). However, during his deposition, plaintiff admitted that Churchman did not tell him he would not be a supervisor. (Plaintiff Depo. Exh. 1, pg. 47).
On Monday, March 15, 1999, Godlewski concluded that plaintiff left his workstation and failed to return when requested by members of management. Godlewski received a statement from Tucking that on the afternoon of March 12th, after the smoke incident, plaintiff engaged in further perceived misconduct by threatening reprisals. Reid confirmed this by advising Godlewski that on Monday March 15th plaintiff verbally abused her regarding the temporary decision to rescind the offer; she then recommended that the offer be formally rescinded. Godlewski then spoke with Oswaldo Garcia, the Human Resources Associate Personnel Operations in Vehicle Operations at Ford's headquarters, who concurred with the recommendation to rescind the offer. See Def. Exh. 8 with a contemporaneous attachment, relying primarily on Godlewski's perception of plaintiff's hostile reaction to the initial decision rather than upon the original incident.
On November 28, 2000, pursuant to plaintiffs charge of discrimination, an investigator with MCHR determined that plaintiff, due to his national origin, was a victim of discrimination. The investigator spoke with plaintiffs co-workers Steve Parker, a white male, Shane Mathews, and John Robinson, who stated that due to the smokey conditions, everyone walked off the line, but returned when the line was restarted. The investigator understood that no one refused Churchman's request to get back to work, but there is no verification in the record of this contention, as it relates specifically to plaintiff. The investigator noted that this testimony, in addition to statements signed by other co-workers attesting to these events, suggested that plaintiff was singled out as being non-responsive. He concluded that Ford failed to establish a legitimate, non-discriminatory reason for rescinding the promotion. MCHR issued a probable cause determination. During discovery, however, plaintiff acknowledged that "I did not initially respond to (Churchman's) first request of going back on the job." Higareda Dep. 206-7. He also acknowledged not responding to Tucking's instruction, purportedly because he was conversing with Churchman. Dep. 204-5. In talking to Churchman plaintiff says he was "trying to let him know that we need another man" Dep. 207. These events uniquely involved plaintiff, who was also the only prospective supervisor.
Plaintiff has provided a statement signed by co-workers who attest to these basic facts. (Plaintiffs Exhibits: 3, 40).
I do not admit such findings-one way or the other-into evidence. One reason is that the investigations are necessarily less thorough than preparation for litigation. In this case for example, it could be that the agency investigation was admirably conducted for broad-brush "probable cause" purposes, but the recitation of co-worker information does not focus on testing observations of interaction between plaintiff and Tucking and Churchman. The inquiry also fails to cover the Tucking and Reid incidents that were identified by Godlewski as the final fatal events.
Standard of Review for Summary Judgment
Summary Judgment is appropriate" if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);citing. Fed.R.Civ.P. 56(c). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby. Inc., 477 U.S. at 252. On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. at 255. However, the nonmoving party may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. at 324. Moreover, if a plaintiff cannot support each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. Id.
Failure To Promote
The elements to be established under both Title VII and Section 1981 are identical. Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997). The analysis generally applicable to Title VII and Section 1981 claims in employment cases based on a remote circumstantial evidence showing rather than a direct or immediate demonstration of decision-maker bias is the familiar three-part burden-shifting framework initially set out in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). To raise a presumption of discrimination in failure-to-promote cases, plaintiff must show that: (1) he is a member of a protected group; (2) he was qualified and applied for a promotion to an available position; (3) he was rejected; and (4) similarly situated employees, not part of the protected group, were promoted instead.Shannon v. Ford Motor Company. 72 F.3d 678, 682 (8th Cir. 1996). If plaintiff establishes his prima facie case, the burden of production shifts to Ford, who must rebut the presumption of discrimination with evidence "thatthe plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Shannon v. Ford Motor Company. 72 F.3d at 682. Once Ford meets its burden, plaintiff may win by pointing to evidence which, if believed, would expose Ford's reason as a mere pretext for intentional discrimination. Id.
Plaintiff argues that summary judgment should not be granted for inadequacy of McDonnell Douglas proof because there are triable issues of fact. For example, he alleges that he was the only employee punished for the smoke incident and that Ford has never rescinded a promotion offer from any other employee. In support of his argument, plaintiff mistakenly relies on the factors necessary to establish a prima facie case of race discrimination. Clearwater v. Independent School Dist. No. 166. 231 F.3d 1122, 1127 (8th Cir. 2000). One problem with plaintiffs argument is that although the factors enumerated in a race discrimination claim are somewhat similar to those cited in a failure to promote claim, they are nonetheless distinguishable. Notably, the third factor to be established in a race discrimination claim is proof of an adverse employment action, which "is exhibited by a material employment disadvantage, such as change in salary, benefits, or responsibilities."Jacob-Mua v. Veneman. 289 F.3d 517, 522 (8th Cir. 2002). Arguably, a rescinded promotion offer may be an adverse employment action in that, as here, plaintiff claims that the rescission will deny him the opportunity to make more money and receive additional benefits. However, plaintiff fails to appreciate that the fourth element in a failure to promote claim is narrowly tailored requiring plaintiff to show, not only that he was treated less favorably than other similarly situated employees, not members of the protected class, but rather, specifically, to show that these employees were promoted instead. Shannon v. Ford Motor Co., 72 F.3d at 679.
I agree with plaintiff, however, that the case-law does not always mandate conforming to all the dance steps involved in a McDonnell Douglas minuet. Evidence of the decision-maker's personal discriminatory predisposition trumps the McDonnell Douglas pattern. Mandel v. FCI Marketing, Inc., 116 F.3d 1247, 1252 (8th Cir. 1997); Perry v. Kunz. 878 F.2d 1056, 1058 (8th Cir. 1989). Even if a claimant cannot establish the typical pattern for a circumstantial case, because of unique circumstances, a sufficient circumstantial evidence case can sometimes be found, enough to defeat summary judgment, based on any set of facts "from which a reasonable jury could logically infer" that there was a discriminatory motive at play. Allen v. City of Pocahontas. Arkansas. 2003 WL 21946908 fn. 5 (8th Cir. 2003). For example, years ago the Supreme Court stated that a management decision may be so senseless and arbitrary as to arouse reasonable suspicion of an undisclosed discriminatory motive. Furnco Construction Corp. v. Waters. 438 U.S. 567, 577 (1978). But it is not unlawful for a company "to make employment decisions based on erroneous information and evaluations", fn. 6, Allen, supra. As will be seen, that theory of mistakes, confusion and misjudgments is the best that plaintiff can present here, without relying on considerable speculationSmere suspicion unsupported by evidence.
This is generally and quite confusingly referred to as "direct evidence" proof, which simply means that the decision-maker has been shown to be biased. That allows an inference of a tainted action. Contrary to what might be supposed such an attitude can be proved by direct or circumstantial evidence, as juries are uniformly instructed. Eighth Circuit Model Instruction 1.02 A case illustrating that circumstantial evidence is sufficient to show "direct evidence" of a discriminatory attitude, enough to create a triable issue on causation, is Hardin v. Hussman Corp., 45 F.3d 262 (8th Cir. 1995). That case divided the Court in evaluating submissibility, but it was not questioned that circumstantial evidence could be used to establish "direct" proof of biased action.
Although I do not rely on the recent Desert Palace ruling ( 123 S.Ct. 2148), which relates only to mixed motive cases, I do accept the criticism that some case law may overemphasize McDonnell Douglas analysis. Furnco cautions against blindly disregarding portions of the whole record, when searching for a submissible issue. 438 U.S. at 577.
I agree with defendant that plaintiff does not have McDonnell-Douglas proof. Plaintiff compares himself with others who were not reprimanded for leaving the work area during the smoke incident. The problem with this argument is that plaintiff had been offered a promotion, those employees had not; and, therefore are not similarly situated to plaintiff. No one was punished in the conventional sense. Plaintiff next attempts to compare himself to Caucasian recipients of management promotions which were not rescinded, yet plaintiff fails to set forth any evidence of a comparable situation. Similarly faulty is plaintiffs attempt to compare himself to Caucasian members of management who have not been reprimanded, because once again, he fails to set forth anything other than mere conjecture. In making these conclusory statements, plaintiff fails to present any evidence that promotions to Caucasian employees were never rescinded, that Caucasian supervisors have not been punished for inappropriate conduct, or that perceived inappropriate conduct occurred immediately before the effective date of a promotion. Clearwater v. Independent School Dist. No. 166, 231 F.3d at 1127 (plaintiffs mere statements that white teachers "were equally as failing", failed to satisfy the fourth element when plaintiff presented no evidence indicating when other teachers were late, how often they arrived late, or what time they arrived). Finally, and equally without merit, is plaintiffs contention that his supervisor, Tucking, was not punished, while he was; for his supervisor was in place and his conduct has not been shown to be comparable.
I agree with plaintiff, however, that it is not controlling that the position initially offered to plaintiff was subsequently filled by Jeffrey Bowen, an African American. A violation of plaintiff's rights in March cannot be remedied by promoting someone similarly situated at a later date. But I do not find an adequate McDonnell-Douglas case. Whether the case escapes summary judgment can be resolved by examining the event causing loss of the promotion, the proof of discriminatory bias by decision-makers, and by what amounts to pretext analysis.
Assuming plaintiff made out a prima facie case, summary judgment would still be appropriate because Ford had a legitimate, nondiscriminatory reason for rescinding the offer for promotion. Plaintiffs supervisor, Tucking, testified that on Friday, March 12, 1999, the day of the smoke incident, he asked plaintiff to return to his workstation on two occasions, but plaintiff failed to follow his instructions. (Tucking Depo. Exh.13, pg. 10). Tucking explained that although plaintiff stood in the aisle, he needed a body at each workstation in order to resume operation of the assembly line. (Tucking Depo. Exh. 13, pg. 53). Tucking further testified that later that day, after plaintiff was advised not to report to the promoted position, plaintiff told him that he would "pay for it". (Tucking Depo. Exh. 13, pg. 57-60).
Churchman testified that on the day of the smoke incident, he too directed plaintiff to return to his workstation, but plaintiff failed to respond. (Churchman Depo. Exh. 33, pg. 29). As noted, plaintiffs deposition admits what could be seen as disobedience and an independent observer, Brancato, observed that Churchman was "irate". Plaintiffs brief in opposition acknowledges (p. 2) that Churchman was "wound up like an eight day clock". He spoke with Pat Reid, the manufacturing manager, about plaintiffs failure to return to work, and they discussed whether plaintiff was management material. (Churchman Depo. Exh. 33, pg. 35-36, 38). Finally, Pat Reid testified thereafter, that on Monday, March 15, 1999, plaintiff approached her and made statements which she considered to be so verbally "abusive and threatening" that she asked him to leave the plant. (Reid Affidavit, Exh. 14, pg. 2, with attachment dated 3-15-99).
Conversely, plaintiff claims that, due to Tucking's and Churchman's racist bias, they wrongfully accused him of stopping the assembly line and leading the other workers to walk away from their stations. Yet, other than plaintiffs conclusory allegations, he fails to show evidence of a racist attitude that could be used as "direct" evidence of likely discrimination. Moreover, plaintiff admitted that, while at the foreman's desk, he noticed that his stop button was the one used to stop the line during the smoke incident. (Plaintiff Depo. Exh. 1, pg. 173-74). Although plaintiff now complains that the work environment was permeated with racist jokes and remarks, he fails to offer any instance in which he was subjected to racist remarks, and he admits that he never complained to management. (Plaintiff Depo. Exh. 1, pg. 69-70). Plaintiff also contends that it was precisely due to the racist attitudes of Churchman and Tucking, that they unfairly singled him out, when, in fact, other workers left their stations on the day of the smoke incident, while he stayed to complete two additional jobs. (Plaintiff Depo. Exh. 1, pg. 174-77, 180-81, 186-88).
At oral argument plaintiff identified certain documents relating to Ben Troupe, an African American, and a Natalie Wood grievance complaining of "ongoing racial and sexual discrimination." PL Exhs. 17, 18, 19 and 21. The Troupe material, dating from November, 1998, contains nothing that can reasonably be identified as racial in nature. While Troupe may have used the word "harassment" his reference seems to be to allegedly abusive supervisory conduct by Churchman. There is no deposition of Troupe or affidavit from him giving a racial flavor to the abusive conduct.
The Union also asserts a grievance originating in October, 1998, seeking money and removal of a reprimand for an allegedly discriminatory Churchman criticism of a black female's work. PL Exh. 20. There was initially a Company denial. Then a Plant Committee apparently assigned Churchman "to attend diversity issues." Someone's decision to have Churchman attend diversity classes does not appear to be a punishment; such an assignment is a precautionary measure that supervisors routinely take. Wood was not granted the relief she sought. Even if treated as an admission of concern about Churchman's attitude or conduct, that would not affect summary disposition of the case. Compare Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir. 1994). There is again no evidence to submit to a jury.
Finally, and arguably the most delicate and novel issue in the case, plaintiff claims that when Churchman lost a promotion in favor of a woman not long before the incidents in March, he expressed opposition to affirmative action policies. As declared by the current Chief Justice several decades ago, however, the prohibition of discriminatory practices does not "impose a duty to adopt a hiring [or promotion] procedure that maximizes hiring [or promotion] of minority employees." Furnco. supra, 438 U.S. at 577-8. The normal sour-grapes complaint about affirmative action is that it tends to favor arguably under-qualified minorities and women. Absent some proof that Churchman's remarks meant that he held an antediluvian belief that anglo males should be favored for all supervisory positions, the complaints by him will be assumed to be mainstream in nature and are not relevant. In fact, given the sharp division of public opinion on this issue, and the controversial aspect of the issue, it would likely be deemed more prejudicial than probative to admit evidence of what Churchman said. So even if the motion for summary judgment would be denied, I would likely exclude the evidence, absent appellate authority to the contrary.
"Nevertheless, plaintiff provided the declaration of co-worker Lloyd Meyer who averred that he shut down the line, and when he later attempted to explain, Tucking responded, "leave it alone, fuck Hector [plaintiff]." (Plaintiffs Exhibits: 4). To the extent there may initially have been an impression that plaintiff shut down the line, there was objective evidence supporting that view.
Neither side questions the fact that the stoppage of the line, and any delay in restarting it, created a crisis involving Churchman and Tucking, and that Churchman in particular was furious, specifically with plaintiff. No reasonable and logical trier of fact could conclude that the fury directed at the prospective supervisor resulted from a sudden antagonism based on his race or ethnic origin. Plaintiffs perceived conduct, whether misunderstood or otherwise, was the undisputed source of the action taken on March 12. Finally Jeff Godlewski, the salaried personnel supervisor, averred that although he agreed that plaintiff should not report to the promoted position as planned, such a decision was based on his preliminary investigation conducted on March 12th, and as such, was not final. (Godlewski Affidavit, Exh. 8, pg. 2). He further stated that the final decision to rescind the offer was made on March 15th, after reviewing the incident, as well as plaintiffs subsequent threatening remarks to Tucking, and Reid. Additionally, Godlewski spoke with Oswaldo Garcia, a Hispanic male who worked in personnel and was responsible for approving discipline, who agreed with the decision. (Godlewski Affidavit, Exh. 8, pg. 3).
Plaintiff does correctly note that in a recent case I denied summary judgment partly because "an inference of impropriety" may be drawn from an employer's offering "two completely different reasons" for its adverse action. Strikingly different stories may suggest efforts to concoct cover stories concealing discriminatory motives. In this case, however, the best scenario for plaintiff is that we have a collection of misunderstandings, misinformation and perceptions contrary to plaintiffs good intentions-all connected with the halt in production-and the possibility of an angry misjudgment by Churchman. Contrary to plaintiffs theory we also have an authentic contemporaneous document showing that there were two stages in the denial of a promotion. This is not, in my opinion, a sufficient record of fabrication that would support a theory of concealment of a discriminatory motive.
It is worth noting that Tucking, Churchman, and Reid were the management personnel who initially recommended plaintiff for the promotion. Herr v. Airborne Freight Corp., 130 F.3d 359, 362-63 (8th Cir. 1997) (there is a strong inference that discrimination was not a motivating factor if the same person hired and fired the plaintiff within a relatively short period of time). Consequently, I find that plaintiff presents no submissible evidence that the belief that there had been disobedience or similar misconduct by plaintiff was a pretext for denying him a promotion based on a prohibited reason. In the alternative, even if there was evidence to support the theory that Churchman's perception could be challenged as tainted, the final adverse action was based on the Godlewski appraisal which arguably was a mistaken appraisal, but was not based on crediting Churchman and was untainted by any showing of bias.
As I noted at oral argument, a tainted recommendation generally taints the final decision which is dependent upon the recommendation. In this case, however, Godlewski expressly rested his final view on how plaintiff reacted to the Churchman decision. Godlewski did not simply endorse Churchman's version of the March 12 events but called it debatable. See attachment to Def. Exh. 8 dated March 15, 1999, identified by both sides. PL Exh. 14
In sum, there is no submissible Furnco issue of inexplicable arbitrary conduct, no fully submissible McDonnell Douglas proof, and no adequate material allowing a "direct evidence" submission of racial or ethnic motivation for the actions taken on March 12 and subsequent days. Retaliation
A preliminary sketch of my views, filed on August 7 as an aid to oral argument, may also be considered in support of my current conclusions. It may be worth adding that I recognize plaintiff is likely to contend that this ruling inappropriately aborts his Seventh Amendment rights and represents an excessively labored use of Rule 56. Compare, A. Miller, "The Pretrial Rush to Judgment", 78 N.Y.U.L. Rev. 982 (2003). Where the basic scenario is undisputed, however, and does not fairly allow any nonspeculative findings of illegal motivation, I am satisfied that current practice mandates tedious analysis in factually complex cases, and rulings that avoid jury deliberations based on sheer guesswork or the popular appeal or unpopularity of the witnesses. If a reversion toward historic hostility to summary judgment practice is desirable, I leave it to rule-makers and the appellate courts to provide guidance.
In order to establish a prima facie case of retaliation, plaintiff must show that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Clearly, plaintiff engaged in a protected activity when he filed the charge of discrimination on July 20, 1999. Plaintiff claims that Ford then retaliated against him with verbal harassment, improper discipline, suspension, reassignment to a different job, failed to award him recognition for accomplishments, and wrongful termination.
Plaintiff testified that in 1999 he made suggestions saving Ford $42,000 dollars, for which he received an award, and was recognized in the company newsletter. However, according to plaintiff, in 2000 and 2001, he was not recognized for his cost-saving ideas due to Churchman's refusal get the awards presented to him. Nevertheless, the award program was subsequently discontinued, and plaintiff admits that he does not have concrete evidence that a memo was sent advising Churchman that plaintiff was to be presented an award. (Plaintiff Depo. Exh. 1, pg. 146-153).
According to plaintiff, the first act of retaliation took place in July of 1999, when Tucking allegedly cursed at him, however, plaintiff failed to either note retaliation, or to otherwise discuss it on the charge of discrimination form. (Plaintiff Depo. Exh. 1, pg. 102-04). This incident occurred prior to the filing of plaintiff's complaint to MCHR. Therefore, I find that this claimed act of retaliation is not reasonably related to plaintiffs claims of discriminatory conduct in failing to promote him, and, consequently, failed to give Ford notice. Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 836 (8th Cir. 2000): see also. Wallin v. Minnesota Dept. of Corrections. 153 F.3d 681, 688 (8th Cir. 1998). Consequently, this claim will not be considered.
"Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Wallin v. Minnesota Dept. of Corrections, 153 F.3d at 688;quoting, Williams v. Little Rock Mun. Water Works. 21 F.3d 218, 223 (8th Cir. 1994).
Plaintiff also claims that the retaliation continued when he was terminated in the early part of May, 2000 for failing to return to work after an incident in which an oil pan broke causing oil to spill over the floor, but which was subsequently cleaned up. (Plaintiff Depo. Exh. 1, pg. 101). Plaintiff was ultimately reinstated, and the termination was reduced to a two week suspension without pay. Plaintiff next complains that his pay was suspended for one day due to his use of profanity in front of members of management. However, the suspended pay was later rescinded, and plaintiff was paid for the balance of his shift. Plaintiff also complains that at some unstated time, Eli Dahdal, a member of management, advised him that Churchman stated during a management meeting that he wanted to get plaintiff off of his job as a frame deck operator. (Plaintiff Depo. Exh. 1, pg. 133-34). Plaintiff remained in the commercial chassis department, but was subsequently transferred to a Balance of Chassis Floater (BOC) floater position, in which he essentially performed utility work without the classification. Plaintiff admits that he did not receive a reduction in salary, benefits, or seniority. In any event, on September 27, 2000, plaintiff was promoted to Utility Chassis Group 3; this promotion was made possible, in part, due to the experience plaintiff gained as a BOC floater. (Affidavit of Nick Castagno, Exh. 34).
Doug Paxton, the supervisor on duty, repeatedly asked plaintiff and a white co-worker, Roger Grass, to return to their workstations after the an extensive cleanup occurred. When they refused, Paxton had them report to Labor Relations. (Paxton Depo. Exh. 33, pg. 20). A hearing was subsequently held by Frank Rodgers, a Labor Relations Associate, who found that both plaintiff and Grass deliberately interfered with production by refusing to return to their workstations, and both were terminated. (Rodgers Affidavit. Exh. 4, pg. 2-3).
Dahdal denied that Churchman ever mentioned plaintiffs name at any management meeting, and further, he denied ever speaking with Churchman about plaintiff. (Dahdal Depo. Exh. 12, pg. 6-7). For present purposes, however, the claim is accepted.
Contrary to plaintiffs contentions, the above-noted complaints do not constitute an adverse employment action. "An adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Saulsberry v. St. Mary's University of Minnesota. 318 F.3d 862, 868 (8th Cir. 2003): Jacob-Mua v. Veneman. 289 F.3d 517, 522 (8th Cir. 2002); see also. LaCroix v. Sears. Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001). Plaintiff complains about the job change to a BOC floater, but he presents no evidence that it was a material employment disadvantage; he merely complains that he didn't want it. Cf. Woods v. Schutte Lumber Company. No. 01-0718-CV-W-HFS, slip op. at 2 (W.D.Mo. Jan. 10, 2003) (plaintiff averred that the transfer was undesirable because of the doubled workload, and dangerous and unhealthy conditions). Moreover, he admits that the change did not include a negative impact on his salary or benefits, and supervisor Castagno averred that the change in responsibilities associated with the transfer, in large part, facilitated plaintiffs subsequent promotion to Utility.
Plaintiff also fails to offer evidence that the alleged retaliatory conduct was connected to the filing of charges with MCHR. First, although Paxton intended for disciplinary action to be taken against plaintiff and Grass for refusing to return to work after the oil spill in May of 2000, he was not aware of plaintiff's discrimination charge until October or November of 2002. (Paxton Depo. Exh. 33, pg.8). Similarly, plaintiffs subsequent termination was determined by Rodgers in May of 2000, who averred that he did not learn of plaintiff's charges until December of 2001. (Rodgers Affidavit, Exh. 4, pg. 3). Likewise, Rodgers was not aware of plaintiff's charges when he suspended plaintiff's pay for using profanity in front of members of management. Id.
Consequently, I find that there was no evidence from which a reasonable jury could conclude that Ford's failure to promote plaintiff was impermissibly due to his race, or that Ford acted in retaliation to his complaint about it. Saulsberry v. St. Mary's University of Minnesota. 318 F.3d at 868.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment (ECF doc.) is GRANTED. The clerk is directed to enter judgment for defendant and against plaintiff. It is further
ORDERED that defendant's motion to strike (ECF doc.) is DENIED as moot.