Opinion
Case No. 8:99CV25.
December, 2000.
MEMORANDUM OF DECISION
This matter was tried to the Court from October 10, 2000, through October 18, 2000. The plaintiff has filed a claim of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (hereinafter Title VII) and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. §§ 48-1101 et seq. (hereinafter NFEPA). The Court has heard all the testimony and has before it the evidence presented by both parties, the briefs and the relevant case law. Based upon the testimony and evidence, I make the following findings of facts and conclusions of law pursuant to Fed.R.Civ.P. 52.
Findings of Fact
1. Plaintiff Karen Esther Williams ("Williams"), an African-American female, has been a part-time employee of defendant, KETV, since August 6, 1979.
2. Williams is an employee and KETV is an employer within the meaning of Title VII and NFEPA.
3. Throughout her employment, Williams has been a member of a bargaining unit of employees represented by the American Federation of Television and Radio Artists ("AFTRA"). The basic terms and conditions of Williams' employment, including wage rates, wage increases and maximum allotted part-time hours have been dictated by a series of collective bargaining agreements negotiated between KETV and AFTRA. Throughout her employment, Williams has received regular raises in a timely fashion in accordance with the collective bargaining agreement.
4. Since 1981, Williams has worked as a Production Assistant. In 1995, the Production Assistant classification at KETV was changed to Production Assistant/Graphic Artist to recognize additional duties of the position to include creating computer graphics for the newscast. KETV set up training programs to familiarize its Production Assistant/Graphic Artists with the new technology used for creating the computer graphics.
5. Since approximately January 15, 1996, Williams has reported directly to Jerry Olsen ("Olsen"), Operations Manager for KETV and immediate supervisor of all production employees. Olsen was responsible for monitoring and overseeing the training given to the Production Assistants/Graphic Artists on newly obtained computer hardware and software. Without notice to any employee, Olsen prepared written training forms documenting the training each individual received. Olsen also periodically documented his perception of each employee's relative progress on these training forms. Olsen kept the training forms in the personnel file of each Production Assistant/Graphic Artist.
6. Williams received group training, one-on-one assistance from co-workers, and individual practice sessions on the Infinit! and Adobe PhotoShop, computer software, and the Graphics Mac, computer hardware.
7. At all relevant times, Williams has been assigned to work the early morning shift from 4:00 a.m. until at least 9:15 a.m. The number of hours assigned to Williams has been, on average, comparable to the hours assigned to other part-time Production Assistant/Graphic Artists. According to the AFTRA agreement, part-time employees cannot regularly be scheduled to work more than 292 hours per week. Production Assistant/Graphic Artists do not receive a wage differential based on the shift they work.
8. A full-time Production Assistant/ Graphic Artist's position has not been vacant since 1986. Williams has not applied for any full-time position at KETV since 1986.
9. On May 28, 1998, Williams left work at least one half hour early to attend the funeral of a co-worker's mother. Williams notified the director and supervisor on duty of her plans to attend the funeral. Williams did not obtain permission from Olsen before leaving. On June 2, 1998, Olsen gave Williams a "final" warning for leaving work early to attend the funeral even though she had never received a previous warning for leaving work without permission. After receiving this warning, Williams filed a claim of discrimination with the EEOC and NEOC alleging she was being discriminated against in regard to training and discipline.
10. In September of 1998, Williams received a memorandum from Olsen indicating that she had erroneously recorded the number of hours she had worked on her time card. As a result of this memorandum, a meeting was held between Williams and Olsen to clarify any confusion regarding Williams' work schedule. At the close of the meeting, Olsen muttered that Williams was an idiot.
11. Sometime in 1999, Olsen was told by another employee that Williams was reporting to work after 4:00 a.m. when her shift was scheduled to begin. Olsen then began monitoring the arrival times of each employee on the early morning shift, including Williams. He did so by reviewing video surveillance tapes of the back parking lot and the door card reader activity reports which record the time that employees swipe their station card for purposes of entering KETV.
12. Based on the video tapes and the door card reader activity reports, Olsen noted that Williams and certain other employees were reporting to work late. In Williams' case, the video tapes and the door card reader activity reports showed that she had reported to work 30 to 66 minutes late 55 times over a three-month period.
13. On November 10, 1999, Olsen issued Williams a "final" written warning for excessive tardiness even though she had never received any previous warnings for tardiness. Other employees under Olsen's supervision were also issued warnings based on the video tapes and door card reader activity reports; however, Williams was the only employee to receive a "final" warning.
14. Williams filed the instant lawsuit in January of 1999. However, the parties have agreed to include Williams' allegations of race discrimination and retaliation relating to the "final' warning she received for tardiness in November of 1999. Williams asks this Court to decide whether KETV discriminated against her by treating her less favorably than Caucasian Production Assistant/Graphic Artists with respect to computer training opportunities, promotion and discipline. Williams also asks this court to decide whether KETV retaliated against her for filing this suit.
Conclusions of Law
1. The three-step burden-shifting analysis set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973), applies to this case. See Regel v. K-Mart Corp., 190 F.3d 876 (8th Cir. 1999). Under this analysis, Williams must first establish a prima facie case of disparate treatment, based on race, thereby creating a rebuttable presumption. To establish a prima facie case of race discrimination, Williams must establish: (1) that she is a member of a protected group; (2) that she was meeting the legitimate expectations of her employer; (3) that she suffered an adverse employment action; and (4) that similarly situated employees who are not members of the protected group were treated differently. Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000).
If Williams makes a prima facie case of discrimination, KETV must then rebut the presumption of discrimination by producing evidence of legitimate, nondisriminatory reasons for its actions. If KETV meets this burden, Williams is entitled to show that KETV's articulated reason was actually a pretext for discrimination. See Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
2. Williams claims that she was denied the same training opportunities as other non-African-American Production Assistant/Graphic Artists. Williams meets the first two requirements for establishing a prima facie case of race discrimination because she is an African-American and she performed her job adequately. However, as concerns training, Williams failed to show that any adverse employment action was taken against her under circumstances from which an inference of unlawful discrimination arises. Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir 1984). I find that Williams has failed to establish a prima facie case.
The evidence established that Williams received as much training, if not more than similarly situated co-workers. With respect to training on the Infinit!, a character generator, all Production Assistant/Graphic Artists, including Williams, initially received the same basic instruction in 1995. Employees were then expected to use their own "down time" to enhance their skills on any new computer equipment. However, further assistance was given to Williams beginning in February of 1997 when Olsen became aware that Williams was still unable to perform basic work on the Infinit!. For three months, from February through April of 1996, Olsen scheduled training for Williams with Cheryl Mitchell, a Production Assistant/Graphic Artist who was particularly proficient with utilizing the Infinit!. Some discrepancy exists between the exact amount of actual hours Williams spent in additional training with Cheryl Mitchell and the number of training hours documented in Williams' personnel file. Nevertheless, the testimony of both Mitchell and Williams confirmed that KETV provided Williams with one-on-one training and individual time to work on the computer above and beyond that which was provided to other non-African-American employees with her level of experience.
With respect to the Adobe PhotoShop, KETV's computer graphics software, Olsen initially attempted to train the Production Assistant/Graphic Artists informally, providing minimal instruction on the basics and allowing time for the employees to work with the program. After several months, Olsen determined that more formal training was needed. As a result Olsen scheduled two classes with an outside vendor, CSI. The classes were held in August of 1996 and December of 1997. As a result of budget restrictions, Olsen did not send all of the Production Assistant/Graphic Artists to both of these classes. However, both Olsen's and Williams' testimony established that Williams attended both classes while certain white co-workers did not. Although Williams complains that these classes were of "no benefit" to her, this perception is not evidence that Williams was denied training opportunities that others received.
After the second formal CSI training class in December of 1997, Olsen scheduled additional practice time for Williams on the Adobe PhotoShop that other Production Assistant/Graphic Artists did not receive. There was some dispute at trial as to the actual number of hours Williams was given to practice each day, but in response to questioning by this Court, Williams admitted to receiving more than one hour of practice time twice each week for a period of at least six months in 1998. The evidence thus established that Williams was given additional training opportunities that other Production Assistant/Graphic Artists did not receive.
3. Next, Williams claims that the "final" warning Olsen gave her for leaving work early in June of 1998, constitutes discrimination because she was disciplined more harshly than her non-African-American co-workers. In support for this claim, Williams testified that Tom Johnson ("Johnson"), a Caucasian Production Assistant/Graphic Artist, was not disciplined by Olsen for leaving work without permission. Under the McDonnell Douglas test previously discussed, Williams makes out a prima facie case. The burden thus shifts to KETV prove that it had a legitimate, nondiscriminatory reason for issuing such a warning.
At trial, the evidence established that Johnson left work one and one-half hours early to attend an awards breakfast for his son. Johnson sent an e-mail to Olsen about his plans three days ahead of time and left a reminder note for Olsen before leaving. However, based on the testimony of Olsen and Johnson at trial, I am convinced that Johnson never received express permission from Olsen to attend the breakfast. Yet, Johnson left work early and was not disciplined in any way.
Williams, on the other hand, was given a "final" warning when she left work one half an hour early to attend a funeral. This is despite the fact that Williams posted a note on Olsen's door the morning of the funeral informing him of her plans. Williams also notified the director and supervisor on duty before leaving. Williams had never been disciplined for leaving early before and she followed the same basic procedure before leaving that Tom Johnson did. That is, Williams notified Olsen in writing about her plans. I find that KETV did not offer a legitimate, nondiscriminatory reason for giving Williams a "final' warning under these circumstances.
4. Williams alleges disparate treatment and retaliation with respect to the final written warning she received in November 1999 for tardiness. As for Williams' disparate treatment claim, she makes out a prima facie case under the McDonnell Douglas test. Williams was the only employee under Olsen's supervision to receive such a severe warning even though Dick Collins and Melinda Engler, both Caucasian, were also reporting to work late.
Thus, the burden shifts to KETV to show that it had a legitimate, nondiscriminatory reason for issuing a "final' warning to Williams alone. Olsen's testimony established that when he became aware of employees reporting to work late, he began investigating the arrival times of each employee on the early morning shift. Specifically, Olsen reviewed the data report of the door card reader and surveillance videos. This investigation confirmed that several employees were arriving to work late. In Williams' case, Olsen found that she had been reporting to work at least half an hour late virtually every day for three months. In addition, the data report indicated that Williams had been as much as 66 minutes late to work on one occasion. Olsen determined that this behavior was egregious enough to warrant issuance of a final warning. Williams contends that Olsen's action supports her position that she was disciplined more harshly for her tardiness than non-African-Americans, such as Collins and Engler.
The Court disagrees. In Collins' case, the door card reader report indicated that he had never been more than 20 minutes late and only on a few occasions. Olsen determined that this tardiness did not warrant a "final" warning. In Engler's case, she was given a warning before receiving a "final" warning. However, Engler was only tardy on two occasions approximately five months apart. Olsen did not conclude that this behavior was severe enough to warrant issuing a final warning.
Although the labeling of Williams' first warning as a "final' warning is problematic, I find that Olsen's actions in this situation were the result of a measured response to Williams' extreme disregard of her scheduled work hours. Considering the data reports and the video surveillance tapes Olsen reviewed, I do not find credible Williams' testimony that she was usually on time to work. I find that with regard to the "final" warning for tardiness, KETV has articulated legitimate, nondiscriminatory reasons for disciplining Williams more harshly than her co-workers.
The burden shifts now to Williams to show KETV's proffered reason is pretextual and that race is the real reason for its actions. Williams offered no specific evidence that race played a factor in her being issued the "final" warning. However, Williams did testify that during a meeting with Olsen in 1998, Olsen called her an "idiot" under his breath. Although I find Olsen's comment inappropriate and unprofessional, I do not find that this single, isolated incident is enough to support a claim of intentional discrimination. Thus, Williams' disparate treatment claim as concerns the final warning for tardiness fails.
5. Williams also alleges that the warning for excessive tardiness was retaliatory for her having filed a charge of discrimination in July of 1998 and the instant lawsuit in January of 1999. As to this claim, Williams was required to show (1) that she engaged in activity protected by Title VII; (2) that she suffered an adverse employment action; and (3) the adverse action occurred because of her protected activity. Howard v. Burns Bros., Inc., 149 F.3d 835, 841 (8th Cir. 1998). The evidence at trial did not show that the issuance of the November 1999 warning for excessive tardiness occurred because Williams engaged in protected activity. Rather, the evidence revealed that the final warning was issued only after Olsen undertook a careful and thorough investigation of each employee's arrival times, not just Williams'. In addition, I note the significant period of time, ten months, between Williams' filing of the instant lawsuit and the alleged retaliation. Under Eighth Circuit law there must be a causal connection between the protected activity and the alleged retaliation. See Feltman v. Sieben, 108, F.3d 970, 977 (8th Cir. 1997). Here, Williams' evidence only established that management was aware of the instant lawsuit. Williams did not establish that the final warning for tardiness was in retaliation for her having filed a lawsuit. Thus, Williams failed to make out her prima facie case. See Buettner v. Arch Coal Sales Co., 216 F.3d 707, 716 (8th Cir. 2000).
6. Finally, Williams claims that KETV failed to promote her to a full-time position or a better shift. To make a prima facie case, Williams was required to establish (1) that she belongs to a protected class; (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite her qualifications, she was rejected; and (4) that after the rejection, the position remained open and the employer continued to seek applicants from persons with plaintiff's qualifications. See Rose-Maston v. NMR Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998); Shannon v. Ford Motor Co., 72 F.3d 678, 682 (8th Cir. 1996). I find Williams failed to make a prima facie case. The evidence clearly established that Williams has not applied for a full-time position at KETV since 1986. In addition, though Williams may not like working on the early morning shift, she presented no evidence at trial establishing that she applied to work on a different shift.
Damages
Williams requests $20,000.00 in damages related to emotional distress. She also requests an exemplary damages award against the defendant in the amount of $200,000.00. Williams failed to prove that she has ever suffered any monetary loss as a result of discrimination on the part of KETV. With respect to her claim for general damages, Williams did not present expert testimony of emotional distress or testify as to any expenses that she incurred as a result of emotional distress. Her uncorroborated testimony described that she was anxious about keeping her job, that she cried from time to time about her job, and that she was angry, had sleep problems, headaches, low self-esteem and loss of level of life's enjoyment. She further claims that this stress is physically manifested by disruption of her menstrual cycle.
The Court has little doubt that Ms. Williams felt anxiety about losing her job due to her "final warning" concerning absenting herself from work early. However, it is difficult to separate her alleged general damages due to each of the "final warnings" as well as her allegations concerning training deficiencies. The Court has no doubt that Williams suffered considerable stress caused by the threat of losing her position. It was apparent during the trial that Ms. Williams' self-worth is closely linked to this part-time job. I find that Williams has proved by the preponderance of the evidence that she suffered emotional distress related to her "final warning" concerning leaving work early. Accordingly, I will award Williams damages in the amount of $1,000.00 and attorneys' fees.
Conclusion
For the foregoing reasons, the Court finds that the plaintiff is entitled to judgment based on her disparate treatment claim that she was disciplined more harshly than non-African-American co-workers for leaving work early in violation of Title VII and the NFEPA. The Court finds for the defendant on all other claims.
THEREFORE IT IS ORDERED:
(1) Judgment on plaintiff's claim based on disparate treatment for leaving work early is hereby granted.
(2) Judgment on all of plaintiff's other claims is hereby denied.
IT IS FURTHERED ORDERED that final judgment shall be entered for the plaintiff following the Court's determination of the attorneys' fees and costs to be awarded her.