WARREN K. URBOM, United States Senior District Judge
Reginald Jordan is a production employee of The Goodyear Tire and Rubber Company. Jordan, along with twelve other plaintiffs, filed a six-count complaint against his employer alleging race-based discrimination in violation of 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (Title VII) and 42 U.S.C. § 1981 (Count I); retaliation in violation of Title VII and § 1981 (Count II); a racially hostile work environment in violation of Title VII and § 1981 (Count III); gender-based discrimination, hostile work environment, and retaliation in violation of Title VII (Count IV); disability-based discrimination and retaliation in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA) (Count V); and discrimination and retaliation in violation of the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1101 et seq. (NFEPA), and Neb. Rev. Stat. § 20-148 (Count VI) (filing 1). Reginald Jordan's own claims do not include causes of action based upon his gender or a disability (see Complaint ¶¶ 7, 15), and therefore do not involve Counts IV and V.
The defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56, filing 72, and was granted leave to submit a supporting brief and evidence out of time. (Filings 76, 80.) The plaintiff has now submitted his brief and evidentiary materials in opposition to the defendant's motion. After careful consideration of these materials, I find that the defendant's motion shall be granted in part.
I. BACKGROUND
The background information presented in this portion of the memorandum has been taken from the statements of facts provided by the parties pursuant to Local Rule 56.1, except where otherwise indicated. The evidence is to be considered in the light favorable to the plaintiff. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970).
The defendant's production and shipping operations in Lincoln, Nebraska, are divided into two plants. The defendant employs approximately 1,660 people at its Lincoln plant and an additional 150 people at its Global Distribution Center ("GDC") facility at the Lincoln Airpark. A vast majority of the employees at both facilities are assigned to production, maintenance, warehousing, and shipping positions. These employees are part of a collective bargaining unit represented by the United Steelworkers of America ("Union"). A collective bargaining agreement between the Union and the defendant determines pay rates, benefits, and job placements for the employees included in the bargaining unit.
The plaintiff, who is an African-American male, was hired by the defendant on July 22, 1988, as a production employee whose terms and conditions of employment were covered by the collective bargaining agreement. On or about January 7, 1998, the plaintiff bid for a position that would require him to transfer from the Lincoln plant to the GDC. The plaintiff's bid was successful, and on January 19 he was transferred to the GDC. Subsequently, in May 2000, the plaintiff bid back into the Lincoln plant. In August 2000, the plaintiff accepted a voluntary layoff, and he has remained on layoff as of the time of the submission of the defendant's brief in support of its motion for summary judgment. At all times, the plaintiff has been an employee covered by the collective bargaining agreement.
Generally, the allegations underlying the plaintiff's causes of action appear to be based upon events that occurred at or near the time of the plaintiff's transfer to the GDC. At some point prior to the plaintiff's bid to transfer to the GDC, a strike occurred at the Lincoln plant. The plaintiff states that following the strike, a "mob" formed to shout racial obscenities at two men who crossed the picket line during the strike. Although the plaintiff's supervisor allowed the plaintiff to move to the front of the facility to prepare to clock out before the mob assembled, the supervisor did nothing to break up the mob. It is not alleged that the plaintiff's experience with the mob caused him to bid for the position at the GDC, but it appears that the plaintiff's bid was made shortly after his exposure to the mob.
The plaintiff's Statement of Disputed Facts and Controverted Issues states at paragraph 3 that this strike occurred in 1997 and 1998. However, the citation to the record accompanying paragraph 3 does not refer me to evidence regarding the dates of the strike. Throughout the plaintiff's statement of facts there appear statements which are unsupported by their accompanying citations to the record. Such statements of fact violate Local Rule 56.1 and will not be considered in opposition to the defendant's motion for summary judgment.
According to the plaintiff's statement of facts, the plaintiff bid on a first-shift job at the GDC that would allow him to schedule school around his workday. (See Pl.'s Statement of Disputed Facts and Controverted Issues at ¶ 11.) However, the portion of the record referred to by the citation accompanying ¶ 11 does not state that the plaintiff bid to a first-shift job at the GDC, but only that the plaintiff wanted to go to the first shift in order to go back to school. (Pl.'s Ex. 100 at 32:10-16.) In fact, the plaintiff admitted that the position he bid to was a second-shift position and that his training was to occur on the second shift. (Pl.'s Ex. 100 at 43:5-44:20.) The plaintiff was awarded the second-shift position and was transferred to the GDC on January 19, 1998. On February 2, 1998, the plaintiff requested that he be moved to the first shift even though his training on the second shift was not scheduled to end until April 13. The plaintiff's supervisor, Area Manager Joanna Cessna, refused to permit the transfer. The plaintiff states that Cessna threatened to eliminate the first-shift position rather than move the plaintiff into that shift. However, after discussions with the Union, the plaintiff was allowed to move to the first shift due to his seniority. The evidence is in conflict with respect to the date the plaintiff was allowed to move to the first shift. The defendant alleges that the plaintiff was transferred to the first shift effective February 2, 1998, which is the date the plaintiff requested to be transferred to that shift. The defendant further alleges that the plaintiff traded shifts with Sandy Schaff, thereby remaining on the second shift by his own arrangement until March 1, 1998, at which time he traded back to the first shift. In contrast, the plaintiff alleges that he was wrongfully kept on the second shift until May 1998. As the evidence is to be considered in a light favorable to the plaintiff for the purposes of the defendant's summary judgment motion, I find that the plaintiff was not transferred to the first shift until May 1998.Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). It is undisputed that there is no difference in wages or benefits between the first-shift and second-shift positions.
The plaintiff complained to Stan Patzel, the general manager at the GDC, about Cessna's refusal to move him to the first shift. He also complained about racial epithets that were once visible on the walls in the restroom at the workplace, pointing out that these epithets were not addressed until after complaints were made about them. The plaintiff was not satisfied with Patzel's response, which the plaintiff believed to be insincere. There is evidence that, at some point, the loudspeaker system at the GDC was used by employees to make obscene comments. The plaintiff argues that this practice was not addressed by management in a timely fashion. However, it is undisputed that the misuse of the speakers was eventually halted by the defendant.
In July 1998, the plaintiff and other employees complained to Patzel about the minority hiring practices at GDC. Patzel arranged for Rose Williams of the Human Resources Department to present data to the concerned employees regarding the defendant's hiring practices. The plaintiff attended the meeting, but he felt the meeting was just to show the complaining employees something to get them to "shut up." He admits that he did not really pay attention at the meeting. (Pl.'s Ex. 100 at 68:13-22.) Williams' data showed that the proportion of minorities comprising the defendant's overall workforce and the proportion of minority "area managers" exceeded the proportion of minorities found in the population of Lincoln, Nebraska. (Def.'s Ex. K at Exhibit 2.)
According to the plaintiff's charge of discrimination, after the July meeting with Williams, the plaintiff asked for an application for the defendant's Summer Vacation Replacement (SVR) program on behalf of his stepson. (Pl.'s Ex. 101.) He did not receive an application. However, the undisputed evidence shows that in 1998, the cutoff date for the receipt of SVR applications was April 13, 1998, and persons participating in the SVR program that year began working on May 15, 1998.
According to the plaintiff's deposition testimony, the plaintiff asked for and was refused an application for the SVP program for his stepson for the summer of 1995. (Def.'s Ex. O at 55:18-23.) In his brief in opposition to the defendant's motion for summary judgment, however, it appears that the plaintiff intends to adhere to the facts set forth in his charge of discrimination. (See Pl.'s Br. in Opp'n to Mot. for Summ. J. at 24.)
The plaintiff was injured on the job, which caused him to miss work from Friday, July 10, 1998, to Monday, July 20, 1998. Upon his return to work on Tuesday, July 21, 1998, the plaintiff was placed on a light duty work restriction. Certain employees, including the plaintiff, were not eligible for overtime work while restricted to light duty. Thus, the plaintiff was ineligible to work overtime for a certain period following his injury. The plaintiff disliked light duty because it rendered him ineligible for overtime and because he felt the lack of work made the workday seem long.
On August 3, 1998, the plaintiff asked to be moved to a different area at GDC called Industrial Hose. Dr. Albers, the company doctor, issued the plaintiff a work restriction, and as a result the plaintiff was transferred to Industrial Hose on August 3. In response to complaints by the plaintiff's coworkers, Patzel investigated the plaintiff's medical restriction. He had conducted similar investigations over the course of his supervisory career. Following a functional capacity evaluation performed by a physical therapist selected by the plaintiff, Dr. Albers concluded that his medical restriction was issued erroneously. All of the plaintiff's medical restrictions were lifted on August 26, 1998. Even so, the plaintiff was allowed to remain in his new position at Industrial Hose.
There is evidence that the plaintiff injured himself on July 28, 1998. It is unclear whether the evidence describes a separate injury from the one that resulted in the plaintiff's absence from work on July 10 through July 20 or a re-aggravation of the same aforementioned injury. It is also possible that the plaintiff was injured only once, and his claim that he was injured on July 28 refers to the very same injury that occurred prior to July 10, and the plaintiff merely misspoke regarding the date. The plaintiff's version of the dates will control should the discrepancy prove material. Adickes v. S. H. Kress Co., 398 U.S. at 157.
The plaintiff has set forth a statement of fact suggesting that Patzel had never before involved himself in such an investigation. (See Pl.'s Statement of Disputed Facts and Controverted Issues at ¶ 38.) While the evidence shows that Patzel did not involve himself in medical decisions, he had in the past asked doctors and physical therapists to evaluate jobs. (Def.'s Ex. P at 45:15-48:17.)
The plaintiff testified that his medical restrictions were removed on August 31, 1998. Once again, if the discrepancy in the date is material, the plaintiff's date shall be considered accurate for the purposes of the defendant's summary judgment motion. Adickes v. S. H. Kress Co., 398 U.S. at 157.
The plaintiff believes that he was wrongfully denied overtime hours. At one point, he noticed a white female working prior to the start of her shift. He had never before seen an employee come to a shift early to finish his or her work from the previous day. In addition, the plaintiff claims that he was placed on a light duty work restriction by Patzel in order to prevent him from being able to work overtime. However, the defendant claims that only Dr. Albers had the authority to place an employee on a light duty work restriction, and the plaintiff has admitted that Dr. Albers was the only person to give him a restriction. (Def.'s Ex. K at ¶ 12; Pl.'s Ex. 101 at 78:8-10.) The plaintiff's evidence is in conflict whether the practice at GDC is to provide overtime to employees with the highest or lowest number of hours, and therefore it is difficult to evaluate the plaintiff's claim that he was not awarded overtime hours that he was entitled to receive. (Compare Pl.'s Ex. 101 at 2 with Pl.'s Ex. 100 at 58:17-23.) The undisputed evidence shows that, for the time period during which the plaintiff was eligible for overtime, he accumulated more overtime hours than all but one employee. (See Def.'s Statement of Facts ¶ 19.) In addition, this lone employee worked on a different shift than the plaintiff. (Id.)
On September 1, 1998, a phone call was received at the GDC. The caller threatened to kill the plaintiff, who was not at work at the time. The defendant notified the police, who in turn notified and interviewed the plaintiff. The next morning the plaintiff called Patzel, who told the plaintiff that he could be shot at home just as well as at work, and that he might therefore just as well come in to work. The plaintiff was warned by Patzel and Bob Horn, a human resources officer, not to retaliate against whoever made the call. The caller was never identified, and there were no further threats made to the plaintiff.
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and. . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57 (citations omitted).
III. ANALYSIS
A. The Plaintiff's Claim of Discrimination Based upon Race (Count I)
The defendant argues that summary judgment should be granted on the plaintiff's claim of race discrimination, which is set forth in Count I of the complaint.
In order to establish a prima facie case of racial discrimination, the plaintiff must show that [he] 1) was a member of a protected group, 2) was meeting the legitimate expectations of [his] employer, 3) suffered an adverse employment action, and 4) that similarly situated employees, who are not members of the protected group were treated differently. If this prima facie case is made out, the burden then shifts to the employer to identify a legitimate reason for the adverse employment action. The burden then shifts back to the employee to show that the articulated reason was a pretext.
Clark v. Runyon,
218 F.3d 915, 918 (8th Cir. 2000) (citations omitted). This analysis is undertaken in connection with causes of action based upon both disparate treatment in violation of Title VII and employment discrimination in violation of § 1981.
Kim v. Nash Finch Co.,
123 F.3d 1046, 1056 (8th Cir. 1997). The defendant argues that the plaintiff cannot prevail on his claim of race discrimination because he has suffered no adverse employment action, because the defendant has legitimate, non-discriminatory reasons for its actions, and because there is no evidence that the defendant treated non-minorities more favorably than the plaintiff.
1.Whether the Plaintiff Has Suffered an Adverse Employment Action
"Not everything that makes an employee unhappy is an actionable adverse employment action. Rather, an adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001).
The defendant first argues that Cessna's refusal to transfer the plaintiff to the first shift upon his arrival at the GDC does not constitute an adverse employment action. The defendant argues that the matter was resolved in the plaintiff's favor, and that the plaintiff was transferred to the shift he wanted as of the date he wanted. However, there is a conflict in the evidence which creates a genuine issue whether the plaintiff was transferred to the first shift as of February 2, 1998, as the defendant claims, or whether the plaintiff was prevented from working on the first shift until May 1998, as the plaintiff claims. Since the facts must be considered in a light favorable to the nonmoving party, I find for the purposes of this motion that the plaintiff was kept on the second shift until May 1998.
The defendant argues that even if the plaintiff were completely denied his move to the first shift, this denial would not amount to an adverse employment action. Therefore, even if his transfer were delayed until May, the plaintiff suffered no adverse employment action in this case. In support of its argument, the defendant refers me to Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997), wherein the court held that a "purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action." Id. (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). In this case, it is undisputed that the plaintiff would have received the same wage and benefits on either shift, and there is no evidence that the job responsibilities on the two shifts differed in any way.
The defendant's argument is well taken, and it would be persuasive if this case involved an instance where the plaintiff were merely temporarily transferred to (or retained in) a less desirable but equal-paying shift. However, the plaintiff has presented evidence that he was entitled to move to the first shift immediately upon the scheduled shift change, and it is the denial of this move that constitutes an adverse employment action. Put differently, the alleged adverse employment action consists of not only the defendant's decision to hold the plaintiff in a shift he did not like, which alone might not constitute an adverse employment action, but also the denial of the plaintiff's undisputed right to change shifts under the defendant's contract with the Union. This distinguishes the present case fromLedergerber, which does not speak to whether the denial of the plaintiff's rights under the Union contract may constitute the denial of a benefit and thereby amount to an adverse employment action. I therefore find that there is a genuine issue whether the plaintiff suffered an adverse employment action when his request to transfer was refused.
Second, the defendant argues that the plaintiff's overtime complaint does not set forth an adverse employment action. The defendant points out that the plaintiff did not report to work on July 10, 1998, through July 21, 1998, due to injury, and thus he cannot complain that he was denied overtime during this period. The plaintiff responds that there is a genuine issue of material fact whether the plaintiff was denied overtime between July 13, 1998, and July 17, 1998. I do not understand the plaintiff's argument on this point. Whatever it is intended to mean, it is insufficient to oppose the defendant's motion for summary judgment.
The plaintiff provides four additional arguments in support of his claim that the alleged denial of overtime hours amounted to an adverse employment action: 1) Cessna refused to give the plaintiff overtime hours even though he typically had the lowest number of hours; 2) the plaintiff saw a white employee working prior to the start of the shift, and since he had never seen an employee do that before, he concluded he must have been denied an opportunity to work overtime; 3) Patzel placed the plaintiff on light duty restriction so that the plaintiff could not work overtime; and 4) a John Herrod "confessed" that the plaintiff had been wrongfully denied overtime hours. Each of these points will be addressed in turn.
First, the plaintiff's claim that he was entitled to overtime hours because he typically had the lowest number of hours is unavailing. I have been directed to no evidence outlining the terms of the company policy regarding the distribution of overtime hours. The defendant has provided evidence that the assignment of overtime is governed by seniority and the rules of the collective bargaining agreement, but I have been referred to no specific evidence elaborating upon the relevant details of the collective bargaining agreement or their relationship with accumulated hours. The plaintiff's has contradicted himself while attempting to describe the overtime policy, stating on one occasion that employees with the most hours receive overtime, and on another occasion that employees with the lowest number of hours receive overtime. (Compare Pl.'s Ex. 100 at 58:17-23 with Pl.'s Ex. 101 at 2.) In addition, the plaintiff admits that he does not understand the overtime-hours-allocation policy. Thus, there is no foundation for his claim that he was denied overtime hours due him under the "lowest number of hours" policy. "In order to withstand a motion for summary judgment, the nonmoving party must substantiate [his] allegations with `sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.'" Shrum v. Kluck, 85 F. Supp.2d 950, 953 (D.Neb. 2000) (quoting Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994)).
Second, the plaintiff claims that he was denied an opportunity to work overtime because he saw a white employee working before her shift was scheduled to begin. There is evidence that the plaintiff believes this woman was working overtime, but nothing more. Even if this woman was working overtime, there is no evidence that she received overtime hours that were somehow owed to the plaintiff. Speculation and conjecture present insufficient opposition to a motion for summary judgment. Shrum v. Kluck, 85 F. Supp.2d at 953.
Third, the plaintiff argues that Patzel placed the plaintiff on a light duty work restriction in order to prevent the plaintiff from being able to work overtime. However, the plaintiff has admitted that only Dr. Albers, and not Patzel, had the authority to place an employee on a light duty work restriction. (Def.'s Ex. K at ¶ 12; Pl.'s Ex. 101 at 78:8-10.) The plaintiff disingenuously claims that "the first time [Patzel] was involved with making a medical decision regarding an employee's restrictions was regarding the Plaintiff." (See Pl.'s Br. in Opp'n. to Mot. for Summ. J. at 23.) However, the testimony of Patzel, cited by the plaintiff, does not support that claim. Patzel's deposition says:
This claim is a bit puzzling in light of the undisputed evidence that Patzel initiated an investigation into the plaintiff's work restrictions which ultimately led to a lifting of all of the plaintiff's work restrictions by Dr. Albers.
Q. How many times in the course of your employment with Goodyear had you been involved with actual medical decisions or assignment of duties?
A. I never have been.
(Pl.'s Ex. 110 at 45:11-14.) There is no support for the speculation that Patzel was responsible for placing the plaintiff on light duty.
In a similar vein, I find I must also reject the plaintiff's fourth point in support of his argument that he was denied overtime wrongfully. The plaintiff argues that John Herrod, the former foreman of the GDC, "confessed" that the plaintiff was wrongfully denied overtime hours.This "confession" is based upon the following deposition testimony of Herrod:
A. I tell you, just that, you know, Reggie was upset about not getting to work overtime, and that the overtime was available on second, you know, and the orders weren't that heavy. I don't — you know, to work any other overtime. And I said, well, you know, we talked, and when things worked out we need to be sure and make sure the hours are balanced.
Q. So did you ultimately give him the overtime or not?
A. Yeah, we had to, you know. There would have been a grievance filed through the union. And if we didn't, we'd pay, you know.
(Pl.'s Ex. 109 at 23:4-13.) The plaintiff's claim of a confession is unsupported and illusory. Instead, the testimony of the witness suggests that the plaintiff's overtime was balanced out against the overtime worked by other employees, and that the overtime allocations complied with the contractual requirement that the hours be balanced by the end of the year. (Pl.'s Ex. 109 at 22:8-23:13.)
The defendant has set forth undisputed evidence that during the time period when the plaintiff was eligible to work overtime, he had more overtime hours than his first-shift coworker and more overtime hours across all shifts than all but one coworker in his area of the plant. Under these circumstances, I find that the plaintiff has not set forth evidence demonstrating that there is a genuine issue for trial whether his perceived lack of overtime hours constituted an adverse employment action.
The defendant's third argument that the plaintiff suffered no adverse employment action concerns the review of the plaintiff's work restriction. The evidence shows that Patzel asked Dr. Albers to review the physical requirements of the plaintiff's job in Industrial Hose. Following the review, the plaintiff was allowed to remain in his desired position. Thus, the plaintiff's claim of an adverse employment action is based upon the argument that by merely reviewing the physical requirements of the plaintiff's Industrial Hose position, the defendant committed an adverse employment action against him. As this review in no way caused the plaintiff to suffer a material employment disadvantage, such as a change in salary, benefits, or responsibilities, I conclude that there is no genuine issue whether this review constitutes an adverse employment action. It clearly does not.
Fourth, the defendant argues that its failure to hire the plaintiff's stepson as a summer replacement employee does not constitute an adverse employment action with respect to the plaintiff. The plaintiff admits that this allegation cannot be considered in connection with his disparate treatment claim. (See Pl.'s Br. in Opp'n to Mot. for Summ. J. at 24.) Therefore, it shall not be so considered.
Finally, the defendant argues that Patzel's request that the plaintiff come to work after the threatening phone call was received at the plant does not constitute an adverse employment action. I agree. The plaintiff may not have wanted to come to work, but even according to the plaintiff's version of events, wherein the plaintiff was told that he could be killed at home just as easily as at work and that he must not retaliate against the caller, the defendant's actions did not cause the plaintiff to suffer a material employment disadvantage.
In light of the foregoing analysis, it seems to me that there is a genuine issue for trial whether Cessna's refusal to transfer the plaintiff to the first shift constituted an adverse employment action. However, the evidence supplied by the plaintiff is insufficient to raise a genuine issue that the plaintiff's claims in connection with overtime hours, the review of the plaintiff's work restriction, and the defendant's conduct in connection with the threatening phone call constitute adverse employment actions. Summary judgment is therefore granted in the defendant's favor with respect to these three claims of race discrimination, in addition to the claim regarding the denial of a summer employment application to a relative.
2.Whether Similarly Situated, Non-Minority Employees Were Treated More Favorably than the Plaintiff
Since there is no evidence of any other adverse employment action, the plaintiff's sole remaining claim of race discrimination is based upon Cessna's refusal to transfer the plaintiff to the first shift. In order to establish a prima facie case of race discrimination in connection with this claim, the plaintiff must show that similarly situated employees who are not members of the protected group were treated more favorably than the plaintiff. Clark v. Runyon, 218 F.3d at 918. In connection with his refusal-to-transfer claim, the plaintiff argues that Tracy Mara, who is a white female, was transferred directly to the first shift in Export at the GDC, while the plaintiff was transferred to and wrongfully detained in the second shift in Export. However, the plaintiff has admitted that Mara was placed directly on the first shift because the position she bid for was a first- shift position with first-shift training. (Df.'s Ex. O at 58:4-12.) At the same time, he admits that he knew he was bidding for a second-shift position with training on the second shift, and that he would have to wait for the shift change approximately one month later to move to the first shift. (Pl.'s Ex. 100 at 43:5-44:4.) The defendant argues that, based on this evidence, the plaintiff and Mara were not similarly situated for the purposes of the plaintiff's efforts to set forth a prima facie case of race discrimination. The plaintiff offers no argument to the contrary. I agree with the defendant's argument. Since the plaintiff has come forward with no evidence to raise a genuine issue that a similarly situated non-protected employee was treated more favorably in connection with a shift change, he has failed to set forth a prima facie case of race discrimination with respect to that claim.
In light of the foregoing, the defendant's motion for summary judgment with respect to Count I of the plaintiff's complaint is granted.
B. The Plaintiff's Retaliation Claim (Count II)
The defendant has moved for summary judgment on the plaintiff's retaliation claim, which is set forth in Count II of the complaint.
Like the substantive claim of racial discrimination, a claim of retaliation, in a racial discrimination context, can violate both Title VII and
42 U.S.C. § 1981. We apply the same
McDonnell Douglas analytical framework to a retaliation claim under § 1981 and Title VII. The elements of a retaliation claim under § 1981 and Title VII are (1) protected activity, (2) subsequent adverse employment action, and (3) a causal relationship between the two.
Kim v. Nash Finch Co.,
123 F.3d 1046, 1059-60 (8th Cir. 1997) (citations omitted). "Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to produce some legitimate, non-discriminatory reason for the adverse action. If the employer satisfies this burden, the plaintiff must prove the proffered reason is a pretext for retaliation."
Buettner v. Arch Coal Sales Co., Inc.,
216 F.3d 707, 714 (8th Cir. 2000).
I have already determined that there is no evidence that the plaintiff's allegations regarding his overtime hours, the review of his work restriction, and the defendant's conduct in connection with the threatening phone call constitute adverse employment actions. The meaning of "adverse employment action" is the same in the context of a retaliation claim as it is in the context of a discrimination claim.Compare LaCroix v. Sears, Roebuck, and Co., 240 F.3d at 691 with Buettner v. Arch Coal Sales Co., Inc., 216 F.3d at 715. Therefore, these allegations cannot form the basis for a retaliation claim under Title VII or § 1981.
With respect to the plaintiff's claim that the delay of his transfer to the first shift constitutes an adverse employment action, the defendant only argues that the delay in the shift transfer does not amount to an adverse employment action. The defendant does not argue that either of the other two elements of the plaintiff's prima facie case have not been satisfied. In addition, the defendant does not argue that the delay in transferring the plaintiff was based on legitimate, non-discriminatory reasons. (See Df.'s Br. in Supp. of Summ. J. at 26-28; 21-23.) I have already determined that there is a genuine issue whether the transfer delay constitutes an adverse employment action. As a result, the defendant's motion for summary judgment cannot be granted with respect to this retaliation claim.
The defendant submitted a reply brief in support of its motion for summary judgment which was received by me on July 27, 2001. In this brief at page 5, the defendant states without elaboration that, "[t]he undisputed facts establish that Jordan suffered no adverse employment action related to his shift assignment and any slight delay in transferring to first shift was based upon legitimate non-discriminatory reasons." This is the first time that this argument is raised with respect to the plaintiff's shift-change allegation in the context of his retaliation claim. Since the plaintiff has been deprived of an opportunity to respond to this argument by setting forth evidence of pretext, I shall not consider this argument in connection with the defendant's motion for summary judgment.
Finally, the plaintiff argues that the denial of a summer employment action for his stepson constituted retaliation against the plaintiff for complaining about race discrimination at the workplace. Even if it is assumed that the plaintiff can assert an injury to a third party to support his retaliation claim, the defendant has articulated a legitimate, non-discriminatory reason for the denial of the application. Specifically, the defendant alleges that at the time the plaintiff claims to have requested the application, the deadline for accepting applications had long since passed. The undisputed evidence shows that in 1998, the cutoff date for the receipt of SVR applications was April 13, 1998, and persons participating in the SVR program that year began working on May 15, 1998. The plaintiff claims to have asked for an application in July of 1998. The plaintiff has come forward with no evidence to suggest that the defendant's refusal to provide an application under these circumstances was a pretext for retaliation. Therefore, summary judgment will be granted with respect to this claim.
The defendant's motion for summary judgment on Count II of the plaintiff's complaint is granted in part. There remains a genuine issue whether the delay of the plaintiff's transfer to the first shift constitutes an adverse employment action, because the precise date of the plaintiff's transfer is disputed. Thus, summary judgment may not be granted with respect to this claim. However, the defendant's motion for summary judgment is granted as to the remainder of Count II.
C. The Plaintiff's Hostile Work Environment Claim (Count III)
The defendant has also moved for summary judgment on the plaintiff's Count III hostile work environment claim.
To succeed on [a hostile work environment] claim, [a plaintiff must] establish that: (1) [he] is a member of a protected group; (2) unwelcome harassment occurred; (3) a causal nexus existed between the harassment and [his] protected-group status; (4) the harassment affected a term, condition, or privilege of employment; and (5) [his] employer knew or should have known of the harassment and failed to take prompt and effective remedial action.
Austin v. Minnesota Mining and Manufacturing Co.,
193 F.3d 992, 994 (8th Cir. 1999).
Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Harassment is actionable when "so `severe or pervasive' as to `alter the conditions of the victim's employment and create an abusive working environment.'"Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1158 (8th Cir. 1999) (quoting Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2283 (1998)). Unless they are extremely serious, isolated incidents do not amount to discriminatory changes in the terms and conditions of employment. Breeding v. Arthur J. Gallagher and Co., 164 F.3d at 1159.
The defendant argues that, although the plaintiff is a member of a protected group, there is no evidence that the plaintiff was routinely subjected to hostile, offensive, racist remarks on the job, or that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive enough to alter a condition of his employment. LaRocca v. Precision Motorcars, Inc., 45 F. Supp.2d 762, 768 (D.Neb. 1999). Furthermore, the defendant argues that the only facts supporting the plaintiff's hostile work environment claim are the same incidents which form the basis of his discrimination and retaliation claims. Finally, the defendant claims that the concerns presented by the plaintiff to management were taken seriously and were promptly addressed.
The plaintiff argues that each of his five discrimination claims ought to be considered in support of his hostile work environment claim. To refresh, these allegations include the defendant's refusal to transfer the plaintiff to the first shift; the denial of overtime hours, the review of the plaintiff's work restriction, the denial of a summer employment application to a relative, and the defendant's conduct in connection with the threatening phone call. The defendant objects to the use of any of these allegations in connection with the plaintiff's racial harassment claim. I find I must agree with the defendant. To support his claim, the plaintiff must show that he was subjected to hostile, offensive, racist remarks on the job, or that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive enough to alter a condition of his employment.LaRocca v. Precision Motorcars, Inc., 45 F. Supp.2d at 768 (D.Neb. 1999). None of these incidents is alleged to entail so much as an offensive utterance connected with the plaintiff's status as a member of a protected group. As a theoretical matter, these claims are properly included within a disparate treatment claim or retaliation claim, but they cannot be characterized as instances of racial harassment contributing to a hostile work environment.
I have already discussed the phone call allegation, and I concluded that it does not support the plaintiff's hostile work environment claim.
After concluding an exhaustive review of the plaintiff's evidence in support of his racial harassment cause of action, I find that there are three separate allegations which support the plaintiff's claim. First, the plaintiff overheard racist comments of a "mob" which were not directed at him, but at two men who had crossed a picket line. Second, there appeared racial slurs on the bathroom walls at the workplace. Finally, obscenities were broadcast over the loudspeaker at the plant. I have not been provided with sufficient detail regarding these incidents to conclude that they do not amount to race-based harassment as a matter of law. Although there is evidence that the defendant was aware of these incidents and that they were eventually addressed, it is unclear how long the plaintiff was exposed to the racist rants of the "mob" or the employees who were misusing the loudspeaker system. It is also unclear how long racist graffiti remained visible in the restrooms at the plant. As I am required to examine the totality of the circumstances surrounding the alleged instances of harassment, Harris v. Forklift Systems, Inc., 510 U.S. at 23, it is impossible for me to conclude based on the evidence before me that there is no genuine issue whether these alleged instances of harassment affected a term, condition, or privilege of employment, or whether the plaintiff's employer failed to take prompt and effective remedial action. These issues remain to be resolved by the trier of fact. Therefore, summary judgment shall not be granted with respect to the plaintiff's hostile work environment claim.
D. The Plaintiff's State Law Claims (Count VI)
Since the NFEPA is patterned after Title VII, and therefore the Nebraska courts consider federal decisions when construing the NFEPA, the plaintiff's NFEPA claims should suffer the same fate as the Title VII versions of those claims. Malone v. Eaton Corp., 187 F.3d 960, 962 n. 3 (8th Cir. 1999); Airport Inn v. Nebraska Equal Employment Opportunity Commission, 217 Neb. 852, 856 (1984). I have determined that the defendant's motion for summary judgment should be granted with respect to Count I of the complaint, and therefore I must also grant summary judgment with respect to the plaintiff's NFEPA cause of action based on disparate treatment. However, the plaintiff's retaliation claim based upon the delay of his transfer to the first shift remains viable under the NFEPA.
Although the plaintiff's federal claim based upon racial harassment has survived the defendant's motion for summary judgment, it appears that the plaintiff has not alleged a hostile work environment claim under the NFEPA.
E. Punitive Damages
The plaintiff's complaint includes requests for punitive damages on all of the federal counts, and the defendant has moved for summary judgment on the issue of punitive damages. A claim for punitive damages need not be submitted to the jury where it is unsupported by the evidence. See, e.g., Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 988 (8th Cir. 1999); Varner V. National Super Markets, Inc., 94 F.3d 1209, 1214 (8th Cir. 1996). As a result, I find that it is proper to consider whether summary judgment should be granted on the issue of punitive damages in this case. See, e.g., Scott v. Ameritex Yarn, 72 F. Supp.2d 587 (D.S.C. 1999). As I have determined that parts of the plaintiff's Count II retaliation claim and Count III hostile work environment claim have survived the defendant's motion for summary judgment, I must now determine whether summary judgment is appropriate with respect to the plaintiff's claim of punitive damages on those counts.
Federal law imposes a formidable burden on plaintiffs who seek punitive damages in a hostile work environment action premised under Title VII. An employee seeking punitive damages from an employer as a result of . . . harassment perpetrated by a fellow employee must show that the employer acted with actual malice or deliberate indifference to [his] federally protected right. "The terms `malice' or `reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination."
Henderson v. Simmons Foods, Inc.,
217 F.3d 612, 618 (8th Cir. 2000) (quoting
Kolstad v. American Dental Ass'n,
527 U.S. 526, 119 S.Ct. 2118, 2124, 144 L.Ed.2d 494 (1999)).
See also Delph v. Dr. Pepper Bottling Co. of Paragould, Inc.,
130 F.3d 349, 358 (8th Cir. 1997). In connection with the plaintiff's hostile work environment claim, there is no evidence that the defendant acted with malice or reckless indifference to the plaintiff's federally protected right. On the contrary, there is undisputed evidence that the defendant addressed, at some time or in some fashion, the plaintiff's concerns regarding the "mob," the loudspeaker abuse, and the writing on the bathroom wall. Even an excessive delay in addressing a plaintiff's concerns does not amount to malice or reckless indifference.
Dhyne v. Meiners Thriftway, Inc.,
184 F.3d at 988. Also, even though the defendant may not have dispersed the "mob," it did take some action to alleviate the plaintiff's complaint by allowing him to move to the other end of the building away from the mob prior to the end of his shift. Under these circumstances, the failure to remedy the "mob" situation does not support a claim for punitive damages.
Id. Since there is no evidence to raise a genuine issue whether the defendant acted with malice or reckless indifference to the plaintiff's federally protected right, I shall grant the defendant's motion for summary judgment with respect to the plaintiff's Count III claim for punitive damages.
Regarding the plaintiff's Count II retaliation claim, there is evidence that Cessna, the plaintiff's manager at the GDC, refused to transfer the plaintiff to the first shift even though he had the right to secure such a transfer. There is evidence that Cessna stated that she would rather eliminate the first-shift position than transfer the plaintiff to that shift. It is undisputed, however, that the plaintiff was allowed to move to the first shift eventually, although there appears to be a factual dispute regarding the precise date of the transfer. At this point, I cannot say that there is no genuine issue whether the defendant acted with malice or reckless indifference when it delayed the plaintiff's transfer. Therefore, I shall not grant the defendant's motion with respect to this claim.
IT IS ORDERED that the defendant's motion for summary judgment, filing 72, is granted in part:
Summary judgment shall be granted with respect to Count I in its entirety;
Summary judgment shall be granted with respect to Count II, except with respect to the plaintiff's allegation that he was prevented from changing shifts in retaliation for engaging in protected activity;
Summary judgment shall be granted with respect to Count VI, except with respect to the plaintiff's allegation that he was prevented from changing shifts in retaliation for engaging in protected activity; and
Summary judgment shall be granted with respect to the plaintiff's claim for punitive damages on Count III.
In all other respects, the defendant's motion for summary judgment is denied.