Opinion
8:98CV408
June 2000
MEMORANDUM AND ORDER
This matter comes before the Court on the defendants' motion for summary judgment (filing 37). In support of their motion, the defendants have submitted two indices of evidence (filings 38 58) as well as supporting and reply briefs. In opposition to the motion, the plaintiff has filed an index of evidence (filing 54) and submitted an opposition brief. After carefully considering the evidence and arguments of counsel, the Court will grant the defendants' motion for summary judgment in part and deny the motion in part.
I. Standard of Review
A court ruling on a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that the court can draw from the facts. Fed.R.Civ.P. 56(b)(c). The moving party bears the responsibility to identify those portions of the record which illustrate the lack of a genuine issue of material fact. If a moving party carries this burden to show the nonexistence of a material fact, the nonmoving party must go beyond the pleadings to the evidence and specify facts establishing a genuine issue of material fact for trial.
II. Factual Background
The plaintiff, Regina Johnson ("Johnson"), was employed as a seasonal production worker with the defendants (herein collectively referred to as "Kellogg") from 1989 through 1996, excepting 1991 when no seasonal production workers were hired. Kellogg hires seasonal workers to work a 20-week period during the period from May through October. In late 1996 and early 1997, Kellogg commenced a process to hire regular full-time employees for the Omaha production facility. At this time, Kellogg mailed to Johnson and all other seasonal employees a letter inviting them to apply for one of the full-time positions. Kellogg also sought referrals from its employees and advertised full-time positions in the local newspaper. In addition to accepting applications from former seasonal employees, referrals and community applicants, Kellogg also invited employees from its San Leandro, California, facility to apply for transfer to the Omaha facility. Kellogg received 3,700 applications, including requests for transfer, for 59 full-time positions. Of the 3,700 applications received, 17 San Leandro employees applied for transfers and 51 former seasonal employees, including Johnson, applied.
The hiring process consisted of three phases. First, Kellogg screened all applications and requests for transfers. Kellogg sorted applications between seasonal employees, employee referrals and community applicants. Kellogg personnel reviewed each application for job experience, education, availability to work overtime, and criminal records. Kellogg also reviewed the work histories of seasonal workers, including records of disciplinary action, attendance and job performance at the Omaha plant.
Second, Kellogg invited applicants who passed the initial screening to take a standardized test covering the following areas: reading, arithmetic, inspection and measurement, process monitoring and problem-solving, and safety. The written examination was developed by Roland T. Ramsay, Ph.D., a human resources psychologist. To assist Ramsay with developing the test, Kellogg provided him with 18 employees who had an average of over 20 years' job experience in either production or supervisory positions. These employees provided Ramsay with a list of knowledge, skills and abilities needed for employment positions in three departments: packing, processing, and warehouse and shipping. Upon receipt of this information, Ramsay created a test battery consisting of a reading test, an arithmetic test, an inspection and measurement test, a process monitoring and problem-solving test, a teamwork test, and an employee safety test (Ramsay Affid. Para 1-5).
Third, Kellogg invited those applicants who passed all sections of the test to interview. Kellogg then conducted a background check on all applicants who passed the interview. Kellogg compared the full-time positions to those applicants who passed the application screening and standardized test, interviewed successfully, and whose background investigation revealed no problems.
Of the initial 3,700 person applicant pool, Kellogg invited 400 applicants, including Johnson, to take the standardized examination. Off these 400 invitees, 338 individuals, including Johnson, took the test and 62 failed to appear. One applicant declined to provide EEO statistical information, so that individual was excluded and the total pool was reduced to 337 applicants. Of the 337 individuals who sat for the examination, 94 persons, including Johnson, are African Americans. Of the 337 individuals who sat the examination, 104 persons are females and 233 persons are male. Of the 337 sitting for the examination, 203 individuals passed and 134 persons failed. Of the 94 Africans Americans who took the test, 47 persons, including Johnson, failed the test. Of the 104 female persons who took the test, 51 females failed the test. Because Johnson failed the reading test, scoring seven points below the minimum raw score required to pass, and also failed the ESI-Q test, which was scored on a pass/fail basis, she did not advance to the third phase. In order to succeed to the interview stage, a successful applicant was required to pass each section of the standardized test. Because Johnson failed two sections of the standardized test, she did not advance to the interview phase.
Kellogg selected 108 of the 203 individuals who passed the examination to interview for the full-time positions, including every seasonal employee and referral who passed the examination. Upon completion of the hiring process, Kellogg hired 59 full-time production employees, including 13 employees who transferred from the San Leandro facility.
Following completion of the hiring process, the plaintiff filed a civil lawsuit in the District Court of Douglas County relating to Kellogg's decision not to hire her as a regular, full-time employee in early 1997. Kellogg refused to hire Johnson as a seasonal employee because of the civil contract suit.
In her complaint Johnson alleges that Kellogg discriminated against her based on her race and gender in violation of Title VII and 42 U.S.C. § 1981 ("Section 1981"), the Nebraska Fair Employment Practices Act ("NFEPA"), when the company refused to hire her as a full-time employee in 1997. Johnson further alleges that the pre-employment standardized test administered by Kellogg during the hiring process had a disparate impact on African Americans and female applicants in violation of Title VII, Section 1981 and NFEPA. Lastly, the plaintiff claims that the defendant retaliated against her by failing to rehire her as a seasonal worker after she had filed a civil lawsuit in violation of Title VII, Section 1981, and NFEPA. Kellogg denies liability on all claims and seeks summary judgment on each of the plaintiff's eight causes of action.
III. Discussion A. Title VII Claims 1. Disparate Treatment Claims
The plaintiff claims that due to her race and gender she was subjected to different and adverse terms, conditions and privileges of employment. To prevail on a claim of disparate impact, a plaintiff must show proof of both intent to discriminate on the impermissible bases of race and gender as well as qualification for the applied position. The only evidence before the Court is the statistical analysis of the defendants' 1997 hiring process. No evidence is before the Court that the defendant discriminatorily applied the facially neutral standardized test to disadvantage racial minority and female applicants. Because the evidence presented by the plaintiff neither proves directly nor raises an inference of discriminatory intent under Title VII, the plaintiff's two causes of action for disparate treatment must fail.
2. Disparate Impact Claims
The plaintiff claims that the defendant's standardized hiring test had a disparate impact on racial minorities and female applicants. The Court has reviewed the extensive evidentiary record and finds that genuine issues of material fact exist whether the standardized pre-employment test has a disparate impact on protected groups. Accordingly, the Court shall deny summary judgment on the plaintiff's disparate impact claims brought pursuant to Title VII.
B. Section 1981 Claim 1. Disparate Treatment
In Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997), the Eighth Circuit ruled that claims alleging intentional discrimination on the basis of race are analyzed using the same elements and standards. Because the purpose of Section 1981 is to prevent purposeful discrimination based upon race, it is essential that a plaintiff establish discriminatory intent by either direct or indirect evidence. The defendant argues that the plaintiff has offered no evidence of disparate treatment. The Court agrees. Because the plaintiff has presented no proof, direct or circumstantial, of discriminatory intent, the plaintiff's Section 1981 claim must fail.
2. Disparate Impact
The plaintiff has also filed a Section 1981 claim under a disparate impact theory. Because the statute requires discriminatory purpose or intent, disparate impact claims are not actionable under Section 1981. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982). Therefore, as a matter of law, the Court must dismiss the claim.
C. Retaliation Claim
In Count VII of her complaint, the plaintiff has filed a claim alleging that the defendant retaliated against her by not rehiring her in 1997 as a seasonal employee after she had filed a civil lawsuit in state court in early 1997. The defendant contends that the plaintiff's retaliation claims brought pursuant to Title VII, Section 1981, and NFEPA are without merit. In the instant case, the plaintiff has alleged that in early 1997 she filed a lawsuit against the defendant. According to the complaint, the lawsuit alleges multiple counts of wrongful conduct by the defendant regarding the plaintiff's employment with the defendant and the defendant's failure to hire her (Filing 1). Incredibly, the plaintiff fails to discuss the lawsuit in her brief or direct the Court to any exhibit in her index of evidence. The defendants have filed a copy of the state court petition as attachment to the affidavit of Timothy Silsbee (filing 38, Attachment C to Ex. 2).
Having reviewed the petition, the Court finds that the operative facts giving rise to the lawsuit in state court are the essentially same operative facts giving rise to this lawsuit. Consequently, the Court finds, as a matter of law, that the plaintiff's act of filing a lawsuit based on the perceived illegality of the defendants' 1997 hiring process constituted a protected activity under Title VII, Section 1981, and state law. The undisputed evidence establishes that after the plaintiff filed the lawsuit, the defendants did not call her back for seasonal work in 1997, 1998, or 1999. Filing 54, Ex. 1 at 9, Johnson Affid. The record further establishes that the plaintiff filed her lawsuit in February 1997, approximately two months before the commencement of seasonal work at the defendants' production plant. Therefore, the Court finds that whether a causal link exists between the plaintiff's filing a civil lawsuit in state court and her loss of seasonal work is a question for the finder of fact. Accordingly, the Court shall deny summary judgment on this claim.
D. State Law Claims
Lastly, the defendant seeks summary judgment on the plaintiff's state law claims brought pursuant to the Nebraska Fair Employment Practices Act ("NFEPA") for unlawful discrimination based on race and gender. Because the decisions rendered under Nebraska state law for claims based on disparate treatment and disparate impact theories are identical to the decisions rendered under Title VII and Section 1981, the defendants' motion for summary judgment will be granted as to all disparate treatment claims based on race and gender as well as to the Section 1981 disparate impact claim based on race. However, because the Court finds that genuine issues of material fact exist with respect to the plaintiff's claims of racial and gender discrimination based on disparate impact theory as well as the plaintiff's claims of retaliation, the Court will deny summary judgment on these claims.
IT IS HEREBY ORDERED:
1. The defendant's motion for summary judgment (filing 37) is granted as to the plaintiff's disparate treatment claims brought pursuant to Title VII, Section 1981, and NFEPA (Counts II, IV, VI and VIII in part), and is further granted with respect to the plaintiff's disparate impact claim brought pursuant to Section 1981 (Count III); and
2. The defendant's motion for summary judgment (filing 37) is denied as to the plaintiff's disparate impact claims brought pursuant to Title VII and NFEPA as well as to the retaliation claim (Counts I, V, VII, and VIII in part).