Opinion
CASE NO. 8:02CV81
May 22, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment (Filing No. 17) filed by the Defendant, Eaton Corporation, d/b/a Vickers ("Eaton"). Eaton supported its motion with evidence and briefs. (Filing Nos. 18, 19, 26.) Eaton's evidence includes the Deposition of the Plaintiff, Michael Gardner, and the Affidavit of Jack Branigan, former labor relations manager for Eaton's Omaha, Nebraska, plant. (Filing No. 19.) Gardner has not filed affidavits or other evidence in opposition to the motion. He did, however, submit a "Resistance" to the motion and a brief in opposition to the motion. (Filing Nos. 21, 22.)
FACTUAL BACKGROUND
Unless otherwise noted, the following facts are taken from the Order on Final Pretrial Conference. (Filing No. 32.)
On August 31, 1987, Gardner began his employment with Eaton. Gardner was employed at Eaton's Omaha plant, which was engaged in the manufacture of hydraulic pumps, motors and transmissions for industrial and heavy equipment applications. Gardner was a member of the United Paperworkers International Union, Local 7171 ("Union"), and his employment with Eaton was governed by a collective bargaining agreement ("CBA").
The CBA is provided. (Filing No. 19, Gardner Dep. (hereinafter cited as "Gardner Dep."), Ex. 5.)
In 1997, Gardner was a machine operator for Eaton. While performing his duties on March 11, 1997, Gardner suffered a work-related shoulder injury when he picked up a basket of parts. As a result of his injury, Gardner filed a claim for workers' compensation benefits. In June 1997, Gardner underwent shoulder surgery.
The Petition filed in Workers' Compensation Court on April 14, 2000, is provided. (Gardner Dep., Ex. 6.) The workers' compensation case was settled for $18,500.00. (Gardner Dep., Ex. 9.) This amount also apparently also served as the settlement encompassed in the "Release and Voluntary Termination" agreement concerning the cessation of Gardner's employment. (Gardner Dep., Ex. 2 (answer to question no. 5); Gardner Dep., Exs. 10, 11.)
In February 1999, Gardner went on an approved medical leave of absence as a result of his shoulder injury. On April 27, 1999, he underwent a second shoulder surgery. As a result of the two surgeries, Gardner sustained an eighteen percent partial impairment to his right shoulder. Gardner's physician recommended permanent work restrictions based on a Functional Capacity Evaluation completed on August 20, 1999. Although Gardner was restricted in his ability to use his right arm, the Functional Capacity Evaluation concluded that Gardner could return to work at Eaton.
Documents entitled "Employee Status Forms" provide information about Gardner's medical leaves of absence. (Gardner Dep., Ex. 7.)
The Functional Capacity Evaluation is provided. (Gardner Dep., Ex. 19.)
Upon Gardner's return to work at Eaton in September 1999, Gardner was placed in several temporary light-duty positions. Gardner's last temporary position involved janitorial work. That job required him to walk through the plant to identify spills, check the bathrooms to verify that they were stocked, and report cleanliness issues. Gardner was the first and only employee at Eaton to hold this temporary janitorial assignment.
On November 19, 1999, Gardner was informed that his temporary janitorial work was no longer needed. Eaton offered Gardner a regular janitorial position, and Eaton arranged for a Functional Capacity Evaluation in order to determine whether Gardner was physically capable of performing the duties required by the regular position without accommodation. The Evaluation concluded that Gardner was not physically capable of performing the job duties of the position, and that modifications in the job duties could not reasonably be made to accommodate Gardner, due to the nature of the job. As a result of the evaluation, Gardner was again placed on a medical leave of absence. Gardner did not file a grievance relating to his leave of absence.
The CBA prohibited an employee from accepting "gainful employment" with another employer during a leave without prior approval from Eaton's Human Resources Manager. Gardner remained on an approved leave of absence until October 2000. During Gardner's leave of absence, he accepted employment as an Assistant Manager with Advance Auto Parts. As a result of this gainful employment with Advance Auto Parts, Gardner was notified on October 25, 2000, in writing that his employment was terminated. Pursuant to the terms of the CBA, the Union filed a grievance on Gardner's behalf challenging the termination. The grievance was resolved through a settlement between Gardner and Eaton. The settlement terms provided that, in return for a payment of $18,500.00, Gardner voluntarily resigned from his employment with Eaton Corp. and released any and all claims arising out of his March 11, 1997, accident and resulting injuries.
The specific provision is ¶ 67h. (Gardner Dep., Ex. 5.)
Gardner began his work with Advanced Auto Parts on July 31, 2000, and worked approximately sixty hours per week. (Gardner Dep., Ex. 28.)
The letter of termination is provided. (Gardner Dep., Ex. 18.)
Eaton's Omaha plant closed in March 2001. Eaton filed an Affidavit of Jack Branigan, a current employee of Eaton in Iowa who served as Labor Relations Manager for Eaton's former Omaha plant. Branigan was responsible for compliance with and application of the CBA in question. Branigan verified that Gardner was a Union member whose employment was governed by the CBA. Branigan stated that any actions taken with regard to Gardner were pursuant to the terms of the CBA, and he specifically denied that Gardner's OSHA and Title VII complaints against Eaton were considered in Eaton's handling of employment issues with Gardner. Branigan stated that the temporary janitorial assignment, created in response to an OSHA complaint, was one of many accommodations that Eaton provided to Gardner. According to Branigan, Gardner's report that other employees made comments to him regarding the "easy" nature of his job were investigated and the offending employees were told to stop their comments. As far as Branigan knew, the problems then ceased. Branigan explained that, when the temporary position was no longer necessary, Gardner was offered a regular janitorial position. Because Gardner's Functional Capacity Evaluation concluded that Gardner was unable to perform the functions of the position and no accommodations were practicable, however, Gardner was again placed on a medical leave of absence. Branigan stated that, if Gardner disagreed with that resolution, he could have filed a grievance under the CBA. Branigan stated that Gardner voluntarily resigned his position in November 2000 pursuant to the terms of the release agreement. Branigan stated that the March 2001 Omaha plant closure was announced late in 1999, and had Gardner not resigned he would have been terminated as a result of the plant closure in March 2001.
Gardner's grievance reports and their resolutions are provided. (Gardner Dep., Exs. 15-17.) A report written by another employee regarding alleged verbal abuse of Gardner and notes indicating the resolution of the complaint are also provided. (Gardner Dep., Ex. 21.)
The CBA includes a set of grievance procedures. (Gardner Dep., Ex. 5, ¶¶ 22-22a.)
The "Release and Voluntary Termination" agreement provides that, in exchange for a lump sum payment of $18,500.00, Gardner "voluntarily terminate[d] [his] employment" and released Eaton and its workers' compensation insurance carrier from liability for claims arising out of his "alleged accidents and resultant injuries" that occurred on or about March 11, 1997. A handwritten note at the bottom of the agreement states that "this does not include any EEOC claims now or in the future." (Gardner Dep., Ex. 10.) Gardner acknowledged receipt of the sum of $18,500.00, which apparently also served as the settlement for Gardner's workers' compensation suit. (Gardner Dep., Ex. 2 (answer to question no. 5); Gardner Dep., Exs. 10, 11.)
On February 15, 2002, Gardner filed this suit. (Filing No. 1.) On April 22, 2002, an "Amended Petition" was filed. The Amended Petition alleges jurisdiction pursuant to 28 U.S.C. § 1331 and 1332; however, the Amended Petition sets forth no particular amount in controversy. The Amended Petition alleges "discriminatory conduct" on the part of Eaton, yet no federal or state statutory section is cited in the Amended Petition. (Filing No. 3.) The Order on Final Pretrial Conference, filed after the Motion for Summary Judgment and accompanying briefs, states that Gardner asserts "only one cause of action — retaliation under Neb. Rev. Stat. § 48-1114." (Filing No. 32.) It is unclear upon which subsection(s) of § 48-1114 Gardner relies.
Based on the parties' representation in the pretrial order that the only claim is raised pursuant to § 48-1114 of the Nebraska Fair Employment Practices Act ("NFEPA"), §§ 48-1101-1126 (Reissue 1998), the Court will not address the evidence and arguments relating to Title VII or OSHA issues raised in the previously filed briefs.
Section 48-1114 provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his or her employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he or she (1) has opposed any practice made an unlawful employment practice by the Nebraska Fair Employment Practice Act, (2) has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the act, or (3) has opposed any practice or refused to carry out any action unlawful under federal law or the laws of this state.
Neb. Rev. Stat. § 48-1114 (Reissue 1998).
SUMMARY JUDGMENT STANDARD
The Court must examine the record in the light most favorable to the nonmoving party in the context of a summary judgment motion. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2002). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586.
Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327. Nevertheless, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc'y, 210 F.3d 845, 847 (8th Cir. 2000).
Additionally, when a motion for summary judgment is made and supported as provided under the local rules of this Court, the federal rules of civil procedure establish:
[A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
ANALYSIS
Federal Jurisdiction
Although the issue is not raised in the motion for summary judgment, the Court will address its serious concerns relating to jurisdiction.
The Amended Petition alleges federal question and diversity jurisdiction. In the Final Order on Pretrial Conference, the parties agree that the only claim raised is the state claim of retaliation. Therefore, federal question jurisdiction pursuant to 28 U.S.C. § 1331 does not exist.
Gardner has clearly pled diversity among the parties, but his prayer for damages lacks a specific amount in controversy and only generally requests "lost wages, lost benefits, past, present, future mental pain and suffering, and past and future medical bills." (Filing No. 3.) Gardner's answer to Defendant's Interrogatory is likewise lacking in detail: "$5,000 for general mental stress, 1 year's worth of salary and benefits, interest at the statutory rate, and attorney fees . . . yet to be determined." (Gardner Dep., Ex. 2.) One pay stub is provided, showing that Gardner earned $18.60 per hour. The pay period in question included forty hours' work, and Gardner's gross pay for the pay period was $744.00. (Gardner Dep., Ex. 30.) Based on this information, assuming that Gardner worked forty hour weeks at the same rate of pay for one year, his annual gross pay for that year would be $38,688. The record does not reflect the value of one year's benefits. Interest may not be considered. 28 U.S.C. § 1332(b); Fed.R.Civ.P. 56(b); Ryan ex rel. v. Schneider Nat'l Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). The record reflects no information regarding attorney fees.
In summary, the Court has serious doubts that Gardner would recover an amount in excess of the $75,000 amount in controversy required under 28 U.S.C. § 1332(a). However, the Court is also cognizant that "`the claim is deemed to have been made in good faith so long as it is not clear to a legal certainty that the claimant could not recover a judgment exceeding the jurisdictional amount.'" Ronwin v. Smith Barney, Harris Upham Co., 807 F. Supp. 87, 90 (D.Neb. 1992) (quoting 12 C. Wright A. Miller, Federal Practice § 1350, at 231 (1990)). Therefore, particularly noting the absence of a challenge to the jurisdictional amount, the Court cautiously finds at this juncture that diversity jurisdiction exists. However, the Court cautions Gardner that federal law provides that if he would recover less than $75,000, exclusive of interest and costs, the Court could deny costs to Gardner and even impose costs on him. 28 U.S.C. § 1332(b). Merits of Retaliation Claim Burden-Shifting Analysis
The NFEPA is patterned after the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000h. Therefore, this Court should follow the Nebraska Supreme Court's practice of looking to decisions interpreting the federal Civil Rights Act for direction. Rose v. Vickers Petroleum, 546 N.W.2d 827, 831 (Neb.Ct.App. 1996).
Accordingly, in a retaliation case brought pursuant to the NFEPA, the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. Rose, 546 N.W.2d at 831.
In this context, Gardner's burden in proving a prima facie case of retaliation is satisfied if he shows: 1) he engaged in a statutorily protected activity; 2) he suffered an adverse employment decision; and 3) a causal link existed between the protected activity and the adverse employment decision. See Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) ; Woodland v. Ryerson Son, Inc., 302 F.3d 839, 845 (8th Cir. 2002).
Under the McDonnell Douglas analysis, "[e]stablishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254. The presumption then shifts the burden of production to the employer to demonstrate a legitimate, nondiscriminatory reason for the adverse employment action. Id.
If an employer successfully rebuts the prima facie case, the presumption of discrimination is eliminated and the Court must proceed to the ultimate issue of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In the summary judgment context, the Court must determine whether "the evidence considered in its entirety (1) creates a fact issue as to whether the employer's proffered reasons are pretextual." Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-67 (8th Cir. 1996).
Application of the Analysis
Initially, the Court notes that Gardner filed no evidence and, therefore, may only rest upon his complaint, captioned "Amended Petition." See Jetton v. McDonnell Douglas Corp., 121 F.3d 423, 427 (8th Cir. 1997) (finding no disputed issues of material fact and summary judgment proper when nonmoving party offered no evidence in opposition to motion, even assuming a prima facie case based on the complaint).
Applying the appropriate standards, the Court finds that the Amended Petition adequately presents a prima facie case of retaliation. According only to the Petition, Gardner was discharged following protected activities known to Eaton, i.e., the filing of worker's compensation and OSHA claims.
At this stage of the analysis, the Court may only consider Gardner's Amended Petition in the absence of other evidence filed in opposition to the motion. However, the Court notes that Eaton's evidence shows that Gardner's employment while he was on medical leave without prior approval violated paragraphs 67f and 67h of the CBA. (Gardner Dep., Ex. 18.) Subsequent to the letter of termination, the parties entered into the"Release and Voluntary Termination" agreement. (Gardner Dep., Ex. 10.) Therefore, viewing the evidence in its entirety, the Court questions the existence of a "termination" or "adverse" employment action.
However, the evidence filed by Eaton clearly shows a legitimate, nondiscriminatory reason for the allegedly adverse employment action. Assuming that the action taken was adverse, the evidence shows that Gardner violated the CBA when he engaged in other employment. Gardner has presented no evidence that he had prior authority to do so. The Court therefore finds that Eaton has met its burden.
The burden shifts back to Gardner, and the Court must address the issue of pretext. Gardner has presented no evidence, and he has failed to present an issue of fact as to whether Eaton's reasons for the alleged termination were pretextual.
Subject Matter Jurisdiction
As previously stated in this district, "[t]he only provision for filing suit under the NFEPA" requires that the action be filed in the state district court of the county in which the alleged violation occurred. Sidak v. Pinnacle Telemarketing Ltd., 182 F. Supp.2d 873, 879 (D.Neb. 2002) (discussing Neb. Rev. Stat. § 48-1119(4) (Reissue 1998)). See also Lampman v. McCook Public Schools, 54 F. Supp.2d 945, 946 (D.Neb. 1999) (stating that, pursuant to § 48-119(4) the plaintiff could not bring his claim in federal court solely under NFEPA provisions).
This suit cannot proceed in this Court on the basis of the NFEPA claim alone, which the parties have stated is the sole claim in the action.
CONCLUSION
For the reasons discussed, the Defendant's Motion for Summary Judgment is granted. Because of the parties' representation that the NFEPA claim is the sole claim in the suit, and in view of the reasons discussed above that clearly require dismissal of this case, the Court finds it unnecessary to address the remaining issues raised in the parties' briefs.
IT IS ORDERED:
The Motion for Summary Judgment (Filing No. 17) is granted; and
Judgment will be entered in a separate document in favor of the Defendant, Eaton Corporation, d/b/a Vickers, and against the Plaintiff, Michael Gardner.