Opinion
Civ. No. 02-4299 (RHK/AJB)
February 25, 2004
Geraldine Carlen Steen, Beckman Steen, Minnetonka, Minnesota, for Plaintiff's
Thomas E. Marshall and Mary L. Senkbeil, Jackson Lewis LLP, Minneapolis, Minnesota, for Defendant
MEMORANDUM OPINION AND ORDER
Introduction
Plaintiff's Honey Hervey is an African American who worked for Bodycote Lindberg Corporation, d/b/a Bodycote Thermal Processing ("Bodycote"), from March 2001 to October 2003. While employed at Bodycote's Eden Prairie, Minnesota, metal treating facility, Hervey alleges that he was subjected to a racially discriminatory wage, disparate treatment, a racially hosfile work environment, and reprisal for filing a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). Before the Court is Bodycote's Motion for Summary Judgment on each of Hervey's claims. For the reasons set forth below, the Court will grant Bodycote's motion.
Bodycote purchased Lindberg Corporation on January 17, 2001 and changed its name to Bodycote Lindberg Corporation. (Marshall Aff Ex. B (Manhatton Dep. Tr. at 23).)
Background
For the purposes of Bodycote's motion, the Court will view the facts in a light most favorable to Hervey. Fed.R.Civ.P. 56.
I. Bodycote and its Operations
Bodycote, a Delaware corporation with its principal place of business in Texas, provides metal treating services at various locations, including at its Eden Prairie facility. (Marshall Aff. Ex. A (Hervey Dep. Ex. 12 (Bodycote Employee Handbook)); id Ex. B (Manhatton Dep. Tr. at 9, 17).) Bodycote heat-treats metal in furnaces designed to harden the metal or provide it with a desired coating. (Hervey Dep. Tr. at 107-10.) The furnaces are set at certain temperatures and metal parts are then placed on conveyor belts and travel through the furnaces for a specified amount of time. (Id.) When the parts come out of the furnace, some are "quenched" in tanks filled with oil or salt to cool. (Id. at 81-83, 107, 119-20.)
Bodycote runs its furnaces in three shifts. (Manhatton Aff. ¶ 2.) Each shift has a supervisor whose duties include disciplining employees, making pay raise recommendations, and performing evaluations. (Id. ¶ 4.) Groups of similar furnaces are organized into four departments and each department has a leader who schedules the orders to be run for all three shifts. (Id. ¶¶ 2, 3; Manhatton Dep. Tr. at 21.) Individual furnaces are operated by Heat Treatment Operators A, B, C, or D, and General Helpers. (Manhatton Aff. ¶ 2.)
Sometime after Bodycote acquired Lindberg in January 2001, all designations moved "down a notch" so that Department Leaders became Heat Treater A's, and Heat Treater A's became Heat Treater B's, and so on. (Manhatton Dep. Tr. at 20-22; Hervey Dep. Tr. at 142-43.) These changes were in title only and did not affect wages. (Manhatton Dep. Tr. at 22;see Hervey Dep. Tr. at 142.)
A "General Helper," also referred to as "General Labor," cleans metal parts, prepares them for processing, packs them for shipping, and performs housekeeping tasks such as sweeping, trash disposal, and equipment cleaning. A "Heat Treater D" prepares metal orders for shipment, tracks their movement, and completes required paperwork. A "Heat Treater C" enters the time and temperature settings for furnaces, enters and interprets data, runs inspections, maintains furnace logs, and operates all equipment within a department. A "Heat Treater B" performs all the duties of the C and D Heat Treaters and also determines when to shut the equipment down, starts and stops equipment in emergencies or on weekends, enters orders, and reports unsafe conditions or practices to management. Finally, one "Heat Treater A" leads each of Bodycote's four departments. (Manhatton Dep. Tr. at 21.)
Some information concerning these job descriptions was obtained from Exhibit A to the Affidavit of Robert Manhatton submitted in a related case, Campbell v. Bodycote Lindberg Corp., Civ. No. 02-4300 (RHK/AJB).
Not only do these positions reflect different responsibilities and proficiencies, they command different wages. Each has a minimum, midpoint, and maximum hourly wage. (Manhatton Dep. Tr. at 20-21; Hervey Dep. Ex. 16.) For example, effective March 5, 2001, the minimum, midpoint, and maximum wages for Heat Treater B's was $10.20, $13.27, and $16.33 per hour and for Heat Treater A's it was $11.81, $14.69, and $17.57 per hour. (Hervey Dep. Ex. 16.) In conjunction with these guidelines, wages are also affected by experience, competence, length of employment, and market conditions. (Manhatton Dep. Tr. at 19, 59-60.)
II. Hervey's Tenure at Bodycote
A. Position and Wages
Hervey, a resident of Minneapolis, began working at Bodycote as a temporary worker in March 2001. He had previous experience in the industry, having worked at Snap-On Tools for three years and at Dana Corporation ("Dana") for nearly three years. (Hervey Dep. Tr. at 56, 75, 84.) After being laid off by Dana in September 2000, he came to work at Bodycote through OnSite, a temporary employment agency, and was paid $10.20 per hour. (Id. at 84, 123.)
In April 2001, Bodycote inquired whether Hervey would consider full time employment at $11.00 per hour. (Id. at 123-24.) Hervey declined, telling Bodycote that he was waiting to go back to his job at Dana. (Id. at 124-125.) Later, OnSite advised him that Bodycote would pay $16.00 per hour. (Id. at 125.) Hervey and fellow co-worker, Brett Young, approached Mark Wielgosz, Bodycote's Plant Superintendent, about the $16.00 offer. (Id.) Wielgosz disputed that amount and told Hervey that the most he could pay him was $11.25 per hour because Nesib Suljic, who Wielgosz referred to as a "fucking immigrant," was paid $11.81 per hour and had been working a year. (Id. at 126.) Hervey left the conversation not considering the job. (Id. at 128.)
In May 2001, Wielgosz again asked if Hervey would work full time for $ 11.25. (Id. at 130.) Displeased with his pay, Hervey cleaned out his locker and left for home. (Id. at 131.) While at home, Hervey advised OnSite about Wielgosz's offer. (Id.) After discussing the matter with Bodycote, OnSite told Hervey that Bodycote would pay him between $14.00 and $15.00 per hour as a permanent operator. (Id.) Persuaded to work at Bodycote full-time, Hervey submitted an application and was hired as a Heat Treater A at $14.50 per hour. (Id. at 142; Pl.'s Mem. in Supp. at 2.) Later, Hervey, along with all other Heat Treater A's, was reclassified as a Heat Treater B. (Manhatton Aff. ¶ 8.) He remained in that capacity until his resignation in October 2003. (See id. ¶ 12.)
In his two-and-a-half years at Bodycote, Hervey took two voluntary layoffs and one other layoff. He requested and received a voluntary layoff from June 5 to June 16, 2001 because of a lack of work and he wanted to visit family. (Hervey Dep. Tr. at 170, Ex. 14.) Three months later, he again requested and received a voluntary layoff from September 17, 2001 to November 19, 2001. (Id at 170-71, Ex. 14.) Then on November 27, 2002, he was on a third layoff until December 17, 2001. (Id at 173-74, Ex. 14.)
Even at this wage, however, he claims that he was paid "near the bottom of the scale" and less than similarly situated non-minorities. (Pl.'s Mem. in Supp. at 3, 15-16.) Specifically, Hervey has identified Mike Grill, Steve Swing, Duane Nomeland, Mark Jensen, John Pator, and Bruce Belland as similarly situated non-minorities who he claims were paid more. (Def.'s Mem. in Supp. at 16-18.)
B. Disparate Treatment
During his tenure, Hervey alleges that he was subjected to the following disparate treatment, while similarly situated non-minorities were not: (1) he received an attendance point for not covering work for a vacationing co-worker (Hervey Dep. Tr. at 194-200); (2) he was disciplined for melting a plastic bucket by placing hot metal parts in it (id. at 185-91, 253-59); (3) a Caucasian co-worker, Mark Lindstrom, was not disciplined for violating company policy by recording his own overtime hours (id. at 158-60); (4) he was demoted from a Heat Treater A to a Heat Treater B (id. at 142); and (5) he was not allowed to play computer games while on break (id. at 258-61).
Bodycote's attendance policy is based on a point system. When an employee is absent from work, he can receive four points if he did not call ahead or two points if he called but the absence was unexcused. If an employee is late or leaves early, he can receive one point. Those who accumulate six points receive a verbal warning, those with nine receive a written warning, those with twelve receive a three-day suspension, and those with fifteen are terminated. Bodycote posts a list of the points accumulated by all employees. (See Hervey Dep. Ex. 10.)
C. The Racial Atmosphere at Bodycote
While at Bodycote, Hervey also asserts that he was subjected to a racially hosfile work environment: (1) race-related comments or epithets were made either to him or to others (id. at 126, 212, 218, 227-32); (2) he witnessed a near-physical confrontation between co-workers Brett Young, who is African-American, and Mark Lindstrom, who is Caucasian (Id. at 238-49); and (3) he was "directly confronted . . . in a threatening way" (Pl.'s Mem. in Opp'n at 5) by Wielgosz, who wanted Hervey to record a statement regarding the Young-Lindstrom confrontation (id. at 286-89).
D. Hervey's Discrimination Charge and Bodycote's Alleged Reprisal
On December 9, 2001, Hervey filed a racial discrimination charge against Bodycote with the EEOC. In the charge, he wrote:
I. I am employed by the Respondent as a Heat Treat Operator. I am paid a lesser salary than similarly situated White employees because of my race/Black. In addition, Hispanic, Somalian and Bosnian employees also receive lesser wages than similarly situated White employees.
After a lot of discussion with the Respondent, I was able to obtain an hourly wage of $14.50. Soon after, I leaned that at least three White employees who were hired only shortly prior to me receive wages ranging from $15.50/hour to $17.00/hour.
These employees are: Mike, Duane, and Swing. Based on information and belief, none of these employees is any more qualified than me. In fact, I was hired specifically to work the hardest machine in the shop.
In addition, I believe that several Hispanic employees who have been working at the respondent for many years are paid considerably less than newly hired White employees. The same is true for a Bosnian employee, who Plant Manager, Mark Wilgosh/White [sic], referred to as a "fucking immigrant."
II. Respondent's reason for adverse action: none given.
III. I believe that I have been discriminated against on the basis of my race/Black in violation of Title VII of the Civil Rights Act of 1964, as amended.
IV. Based upon information and belief, non-White employees working for the Respondent receive lesser wages than similarly situated White employees in violation of Title VII of the Civil Rights Act of 1964, as amended.
(Id Ex. 24 (EEOC Charge).)
After the EEOC charge, Hervey alleges that Bodycote retaliated against him (Pl.'s Mem. in Opp'n at 5, 20-21): (1) his voluntary overtime was reduced (Hervey Dep. Tr. at 261-66, 269-70, 329-30); (2) he received an attendance point for not covering work for a vacationing co-worker (id at 194-200); (3) he was the object of racial epithets and name-calling (id. at 126, 212, 218, 227-32); (4) his work was scrutinized (Pl.'s Mem. in Opp'n at 20); and (5) he was forbidden to talk to friends (id).
Standard of Review
Summary judgment is proper if, drawing all reasonable inferences favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. See Celotex, 4 477 U.S. at 322; Mems v. City of St. Paul. Dep't of Fire Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party. See Graves v. Arkansas Dep't of Fin. Admin., 229 F.3d 721, 723 (8th Cir. 2000);Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995); Elayaperumal v. Medtronic. Inc., Civ. No. 02-860 (RHK/SRN), 2003 WL 21402602, at *6 (D. Minn. June 17, 2003).
Analysis
Hervey has filed a three-count Complaint against Bodycote. Count I alleges race discrimination and a racially hosfile work environment in violation of the Minnesota Human Rights Act ("MHRA"), Minn. Stat. § 363.03, subd. 1(2)(c). Count II alleges a pattern and practice of racial discrimination and hosfile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Count III alleges discriminatory reprisal in violation of the MHRA, Minn. Stat. § 363.03, subd. 7. Bodycote seeks summary judgment as to each claim. The Court will begin with Count I.
The MHRA has been re-numbered. For example, § 363.03, subd. 1(2)(c) is now § 363A.08, subd. 2(c). For convenience, however, the Court will refer to the prior numbering system because both parties have done so in their briefs.
Whether brought under the MHRA or Title VII, Hervey's claims are subject to the same legal analysis. See Fletcher v. St. Paul Pioneer Press. 589 NW.2d 96, 101 (Minn. 1999) ("In construing the MHRA, we apply law developed in federal cases arising under Title VII." (citation omitted)); Cronquist v. City of Minneapolis. 237 F.3d 920, 926 (8th Cir. 2001) ("We apply the same analysis in reviewing discrimination claims brought under Title VII and the MHRA." (citation omitted)).
I. Count I: Racial Discrimination in Violation of the MHRA
A. Discriminatory Wage
Hervey alleges that he was paid less than similarly situated non-minority co-workers for comparable work. (Pl.'s Mem. in Opp'n at 14-16.) The MHRA prohibits an employer from discriminating "against a person with respect to . . . compensation" because of race. Minn. Stat. § 363.03, subd. 1(2)(c). To determine whether the MHRA has been violated, the Minnesota Supreme Court uses the three-part McDonnell Douglas test. Fletcher v. St. Paul Pioneer Press. 589 NW.2d 96, 101 (Minn. 1999). Under that test, the Plaintiff's has the initial burden of establishing a prima facie case of discrimination. Id. In the context of a wage discrimination claim, the Plaintiff's must show that the employer "paid different wages to employees of different races for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Tademe v. Saint Cloud State University, 328 F.3d 982, 989 (8th Cir. 2003) (citations and internal quotations omitted). "Requisite skill is measured by such factors as education, training, experience, and ability." Id (citation omitted).
Once the employee has established a prima facie case, the burden shifts to the employer to articulate a legitimate and non-discriminatory reason for the adverse employment action. Fletcher, 589 N.W.2d at 102. Upon articulation of a legitimate and non-discriminatory reason, the burden shifts back to the employee to show that the reason was not the true reason for the action, but was instead a pretext for discrimination.Id.
Bodycote argues that Hervey has not raised a genuine issue of material fact as to whether he was similarly situated to the non-minorities who were allegedly paid more. (Def.'s Mem. in Supp. at 16-19.) Although Hervey does not provide any evidence of what wages the non-minority co-workers were paid, he responds that he has made a prima facie case of wage discrimination because he "was paid near the bottom of the [wage] scale, despite his experience and qualifications." (Pl.'s Mem. in Opp'n at 15-16.)
To make a prima facie case, Hervey must show that Bodycote paid him different wages than his non-minority co-workers for equal work on jobs requiring equal skill, effort, and responsibility. Tademe, 328 F.3d at 989. Hervey has failed to meet his burden in two ways. First, he offers no evidence of what wages his non-minority co-workers were earning. Hervey cannot rest on mere allegations that he was paid lower wages; rather, he must come forward with specific facts that create a genuine issue for trial. See Anderson. 477 U.S. at 256; Krenik. 47 F.3d at 957. Second, although he compares himself to several non-minority co-workers — Grill, Swing, Nomeland, Jensen, Pator, and Belland — he offers no evidence regarding the similarities between his job, skills (including education, training, experience, and ability), effort, and responsibility, and theirs. Instead, he "puts forward nothing more than conclusory allegations on this point, which are not sufficient to create a genuine issue of fact to survive summary judgment." Sowell v. Alumina Ceramics. Inc., 251 F.3d 678, 683-84 (8th Cir. 2001) (citation omitted). Accordingly, the Court will grant Bodycote's motion with regard to Hervey's wage discrimination claim.
In contrast, it is undisputed that Grill was a utility worker (capable of operating all of Bodycote's machines) with fifteen years experience, Swing was a third shift supervisor with seventeen years heat treating experience, Jenson had fifteen years of commercial heat treating experience, and Belland had thirty years heat treating experience. (Manhattan Aff.
¶¶ 5, 6, 7, 14, Ex. A.) Hervey had less experience and expertise than any of these co-workers.
Hervey argues that he was paid near the bottom of Bodycote's wage range. Upon examination of his pay, the Court finds that Bodycote followed its wage ranges. Therefore, had it been called upon to reach the issue, the Court would find that Bodycote's "compensation policy is a legitimate, nondiscriminatory reason for [Hervey's] wage rate."Poppe v. Home Depot Corp., Civ. No. 99-1891 (ADM/AJB), 2001 WL 1640042, at *4 (D. Minn. Nov. 2, 2001). Hervey has not shown that this reason was a pretext for discrimination.
B. Disparate Treatment
Next, Hervey alleges that he experienced a variety of racially disparate treatment. (Pl.'s Mem. in Opp'n at 3-4.) Disparate treatment claims involve allegations that the employer has treated some people less favorably than others because of their race. Sigurdson v. Isanti County, 386 N.W.2d 715, 719 n. 1 (Minn. 1986). Such claims are analyzed under the three-part McDonnell Douglas test. Id. at 719-20. To establish a prima facie claim of disparate treatment, Hervey must show that: (1) he is a member of a protected class; (2) he was meeting the legitimate expectations of his employer; (3) he suffered an adverse employment action; and (4) circumstances give rise to an inference of discrimination, as similarly situated employees, who are not members of the protected group, were treated differently. Jacob-Mua v. Venemaa 289 F.3d 512, 521-22 (8th Cir. 2002);see E.E.O.C. v. Kohler Co., 335 F.3d 766, 776 (8th Cir. 2003) ("A plaintiff may prove allegations of disparate treatment by demonstrating that he was treated less favorably than similarly situated employees outside the Plaintiff's protected class.").Hervey's first alleged instance of disparate treatment is that he was given an attendance point for not working for a vacationing co-worker. (Hervey Dep. Tr. at 194-200.) When Bodycote employees go on vacation, Bodycote posts a list identifying who is required to cover the work of the vacationing co-worker. On one occasion, Hervey claims, he did not come to work as required- and was given an attendance point-because Bodycote did not post the list until the day he was supposed to work. (Id. at 194-95.) Bodycote argues, and the Court agrees, however, that Hervey has not met his burden to show that similarly situated employees, who are not members of the protected group, committed a like offense but were not disciplined.
Second, Hervey claims that he was disparately disciplined for melting a plastic bucket when he placed hot parts inside it. (Id. at 185-91, 253-59.) Although a disciplinary report was placed in his personnel file after the incident, his duties and pay were unchanged. (Id. at 191.) Hervey again has failed to meet his burden of identifying a similarly situated non-minority co-worker who committed a like offense, but was not disciplined. Moreover, because the disciplinary report did not result in a material change in his salary, benefits, or responsibilities, it was not an adverse employment action.Jacob-Mua. 289 F.3d at 522 ("[A]n adverse employment action is exhibited by a material employment disadvantage, such as change in salary, benefits, or responsibilities." (citations and internal quotations omitted)).
His third allegation is that a Caucasian co-worker, Mark Lindstrom, was not disciplined for writing down his own overtime hours in violation of Bodycote's policy that overtime hours must be approved by the shift supervisor. (Id. at 158-60.) Hervey, however, has failed to show not only that he was similarly situated to Lindstrom, but also that he was disciplined for committing a similar offense.
Hervey's fourth disparate treatment claim is that he was demoted from a Heat Treater A to a Heat Treater B while non-minorities were not. (Id. at 142.) He contradicts his own claim, however, by admitting that everybody that was a Heat Treater A became a Heat Treater B after Bodycote acquired Lindberg. (Id.; Manhatton Dep. Tr. at 20-22.) Therefore, he has not met his burden to show that similarly situated non-minority co-workers were not demoted.
Finally, he alleges that while he was not allowed to play computer games on his break, Caucasian co-workers Scott Sandrock, Debra Rachey, John Winkelman, Steve Swing, Mike Bothen, Dean Dorholt, and Nesib Suljic continued to play such games. (Hervey Dep. Tr. at 258-61.) The denial of computer games, however, is not an adverse employment action that is susceptible to judicial oversight. Jacob-Mua, 289 F.3d at 522.
In his memorandum, Hervey also alleges that he was falsely accused of smoking marijuana. (Pl.'s Mem. in Opp'n at 3.) He has not supported this allegation with a record citation and has failed to come forward with specific facts demonstrating that similarly situated employees, not part of the protected group, were treated differently. The Court reminds Hervey that it "is not required to speculate on which portion of the record [he] relies, nor is it obligated to wade through and search the entire record for some specific facts that might support [his] claim." White v. McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (citations and internal quotations omitted); see Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004) ("In resisting a properly supported motion for summary judgment, the plaintiff has an affirmative burden to designate specific facts creating a triable controversy." (citation and internal quotation omitted)).
Accordingly, the Court will grant Bodycote's motion with regard to Hervey's disparate treatment claims.
C. Hosfile Work Environment
Hervey also claims that he was subjected to a racially hosfile work environment. (Pl.'s Mem. in Opp'n at 4-5, 16-18.) To establish a hosfile work environment claim, Hervey must show that: (1) he belongs to a protected group; (2) he was subject to unwelcome harassment; (3) a causal nexus exists between the harassment and the protected group status; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take proper action.Tademe, 328 F.3d at 991. Harassment which is severe and pervasive is deemed to affect a term, condition, or privilege of employment. Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 652 (8th Cir. 2003). The objectionable environment must be both objectively severe, as viewed by a reasonable person, and subjectively severe, as actually viewed by the victim. Id. (citation and internal quotations omitted).
In determining whether sufficient evidence of a hosfile work environment claim has been presented, the Court considers all of the attendant circumstances, including 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. Id. at 652-53. To satisfy the "high threshold of actionable harm," Hervey has to show his workplace was "permeated with discriminatory intimidation, ridicule, and insult." Id. at 653 (citation and internal quotations omitted). "[M]ere utterance of an . . . epithet which engenders offensive feelings in a[n] employee . . . does not sufficiently affect the conditions of employment" to implicate the anti-discrimination laws. Id. (citation and internal quotations omitted).
Hervey cites several examples of Bodycote's alleged racially hosfile work environment. First, he asserts that race-related comments or epithets were made either to him or to others: he overheard two co-workers refer to African Americans as "colored" on separate occasions, but neither said the word again after Hervey told them he was insulted (id. at 229-30); he heard Steve Swing, a supervisor, refer to an African-American co-worker as "boy" (id. at 212); and he heard Wielgosz twice refer to a Bosnian co-worker as a "fucking immigrant" (id. at 126, 231-32).
Second, he allegedly witnessed a near-physical confrontation between co-workers Brett Young, who is African-American, and Mark Lindstrom, who is Caucasian. (See id at 238-49.) In January or February 2002, Young and Lindstrom argued over who was in charge during the second shift in the absence of their supervisor. (Id. at 240-41.) Tempers flared, "a couple of unpleasantries were passed back and forth," and Young called Lindstrom a "sissy dick" and Lindstrom responded by asking Young three times if he wanted to "step outside." (Id. at 242-44.) Eventually, cooler heads prevailed and a physical altercation was avoided. (Id. at 244-45.)
Young reported this incident to Wielgosz and Wielgosz told Young he was wrong for swearing and told Lindstrom that he was wrong for provoking a confrontation by asking Young to step outside. (Ex. B to Marshall Aff. (Young Dep. Tr. at 230, 232) submitted in Young v. Bodycote Lindberg Corp., Civ. No. 02-4298 (RHK/AJB).)
Third, he claims that he was "directly confronted . . . in a threatening way" (Pl.'s Mem. in Opp'n at 5) by Wielgosz, who wanted Hervey to record a statement about the Young-Lindstrom confrontation he witnessed. (Id. at 286-89). After Hervey declined, Wielgosz said, "Bullshit. You're going to give me a statement because I had to give one. You['re] going to give a fucking statement." (Id. at 287.) During the same conversation, Wielgosz also said that he did not want Hervey going over to the department of an African American co-worker, Johnathan Campbell, because he was interfering with the co-worker's job. (Id. at 288-89.) After Hervey explained that he went over to that department only to use a piece of equipment, Wielgosz responded, "Well I saw you say something to him, and because of your color-." (Id. at 288.) At that point Wielgosz stopped talking. (Id.) Anticipating that Wielgosz was going to say something regarding his EEOC charge, Hervey told Wielgosz that he was wrong to assume that because he and Campbell were African Americans that they were talking about the EEOC charge. (Id.) Wielgosz responded by saying that he wanted Hervey's statement about the Young-Lindstrom incident and walked away. (Id. at 289.)
In his memorandum, Hervey also alleges that he was forbidden to talk to friends and his personal space was invaded. (Pl.'s Mem. in Opp'n at 17-18.) He has not, however, supported these allegations with record evidence. Furthermore, he has failed to come forward with specific facts establishing that these alleged actions were race-related or that they were sufficiently severe and pervasive to affect a term, condition, or privilege of his employment.
Bodycote argues, inter alia, that Hervey has failed to established the elements of a prima facie case and the alleged harassment does not rise to the level of a hosfile work environment. (Def.'s Mem. in Supp. at 12.) The Court agrees.
First, the sporadic race-related comments are "neither severe nor pervasive enough to create a hosfile work environment." Woodland v. Joseph T. Ryerson Son. Inc., 302 F.3d 839, 844 (8th Cir. 2002); see Wallin v. Minnesota Dept. of Corrections. 153 F.3d 681, 688 (8th Cir. 1998) ("Because the discrimination laws are not a general civility code, offhand comments (unless extremely serious) and isolated incidents . . . will not amount to discriminatory changes in the terms and conditions of employment." (citation and internal quotations omitted)). While these comments were certainly offensive, offensive conduct is not enough to sustain a hosfile work environment claim absent the requisite effect on the terms or conditions of employment. Woodland. 302 F.3d at 843. Second, witnessing the Young-Lindstrom confrontation was an isolated incident that did not affect a term, condition, or privilege of Hervey's employment. Moreover, the evidence shows that the dispute concerned workplace authority, and not race, and that Wielgosz reprimanded Lindstrom for provoking the confrontation. Finally, and similarly, Wielgosz's confrontational request for Hervey's statement also does not give rise to a hosfile work environment; rather, it was an isolated incident that was neither sufficiently severe or pervasive to have affected a term, condition, or privilege of his employment. Accordingly, the Court will grant Bodycote's motion with regard to Hervey's hosfile work environment claims.
II. Count II: Racial Discrimination in Violation of Title VII
In Count II, Hervey alleges a pattern and practice of race discrimination and a racially hosfile work environment in violation of Title VII. Because Hervey fails to respond to Bodycote's motion with respect to his pattern and practice claim, the Court will dismiss it as waived. See Graham v. Rosemount, Inc., 40 F. Supp.2d 1093, 1101 (D. Minn. 1999).
The Court will also grant summary judgment for Bodycote on Hervey's federal hosfile work environment claim for the reasons previously discussed.
III. Count III: Reprisal Discrimination in Violation of the MHRA
Hervey's final claim is that Bodycote engaged in reprisal discrimination. It is unlawful under the MHRA for employers to "intentionally engage in any reprisal against any person because that person . . . opposed a practice forbidden [by the MHRA] or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing." Minn. Stat. § 363.03, subd. 7(1). "Reprisal" is defined as "any form of intimidation, retaliation or harassment" including assignment to a "lesser position in terms of wages, hours, job classification, job security, or other employment status." Id § 363.03, subd. 7(2).
The three-part McDonnell Douglas test applies to reprisal claims. Bergstrom-Ek v. Best Oil Co., 153 F.3d 851, 859 (8th Cir. 1998) (applying Minnesota law); Fletcher, 589 NW.2d at 101-02. To establish a prima facie case of reprisal discrimination, Hervey must show (1) that he engaged in starutorily protected conduct; (2) there was an adverse employment action by Bodycote; and (3) a causal connection between his conduct and the adverse employment action.Bergstrom-Ek, 153 F.3d at 859; Fletcher, 589 NW.2d at 101-02. It is undisputed that Hervey engaged in starutorily protected activity when he filed the EEOC discrimination charge in December 2001. (Def.'s Mem. in Supp. at 27.) The issue therefore is whether any of the instances of reprisal discrimination Hervey has identified satisfies the remaining elements of a prima facie case.
Hervey's first reprisal allegation is that his voluntary overtime hours were reduced after he filed a charge with the EEOC. (Hervey Dep. Tr. at 265; Pl.'s Mem. in Opp'n at 5.) He claims that for him "[o]vertime was available; then it wasn't" (Pl.'s Mem. in Opp'n at 21), while two Caucasian co-workers, Mark Lindstrom and Nesib Suljic, continued to receive all the voluntary overtime (Hervey Dep. Tr. at 270). Hervey raised his concerns with Scott Sandrock, Bodycote's Plant Manager (id. at 193, 275) and with Bob Manhatton, Bodycote's General Manager (id. at 274). Although Hervey initially received more overtime after speaking to Manhatton, his hours allegedly decreased again shortly thereafter. (Id. at 274.)
Bodycote responds that Hervey has not offered any admissible evidence that he lost voluntary overtime. Even with such evidence, it continues, he has failed to establish a causal connection to his EEOC charge. (Def's Mem. in Supp. at 20, 22; Def's Reply Mem. in Supp. at 5-6.) The Court agrees. Although Hervey testified that he only received mandatory overtime hours, in which he worked for vacationing co-workers or came in early for training (Hervey Dep. Tr. at 262), he has not identified specific facts establishing that his voluntary overtime was actually reduced. He cannot rest on mere allegations; rather, he must come forward with specific facts that create a genuine issue for trial. See Anderson, 477 U.S. at 256; Krenik, 47 F.3d at 957. Furthermore, he fails to establish a causal connection between the December 2001 charge and his allegedly decreasing voluntary overtime. "[T]he kind of causal connection required for a prima facie case is not `but for' causation, but rather, a showing that an employer's retaliatory motive played a part in the adverse employment action." Smith v. Alien Health Sys., Inc., 302 F.3d 827, 833 n. 6 (8th Cir. 2002) (citation and internal quotations omitted). Hervey's argument that "[o]vertime was available; then it wasn't" (Pl.'s Mem. in Opp'n at 21) is nothing more than "but for" causation and he offers no evidence showing Bodycote's retaliatory motive.
In contrast, Bodycote has come forward with evidence (i.e., a spreadsheet) of the hours Hervey worked through August 2003. (Manhatton Aff Ex. B.) Although the spreadsheet does not differentiate between voluntary and mandatory overtime hours, it shows that Hervey logged 257.55 overtime hours in 2002 and 211.55 overtime hours in 2003. (Id. ¶ 13, Ex. B.)
His second reprisal allegation is that he was given an attendance point for not covering work for a vacationing co-worker. (Hervey Dep. Tr. at 194-200; see supra Analysis Part I.B.) Similar to his allegation concerning overtime, he argues that he "was a good employee," but after the EEOC charge he "was subject to unequal discipline in the form of points." (Pl.'s Mem. in Opp'n at 21.) Once again, Hervey argues nothing more than "but for" causation and offers no evidence showing Bodycote's retaliatory motive played a part giving him the attendance point. Smith, 302 F.3d at 833 n. 6.
For his third, fourth, and fifth allegations of reprisal, Hervey alleges that he was the object of racial epithets, his work was scrutinized, and he was forbidden to talk to friends. (Hervey Dep. Tr. at 126, 212, 218, 227-32; Pl.'s Mem. in Opp'n at 20.) None of these actions, however, is supported by any evidence of an adverse employment action taken by Bodycote. "An adverse employment action is exhibited by a material employment disadvantage, such as a change in salary, benefits, or responsibilities." Tademe, 328 F.3d at 992 (citation and internal quotation omitted) (emphasis in original). "Employment actions which do not result in changes in pay, benefits, seniority, or responsibility are insufficient to sustain a retaliation claim." Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 715 (8th Cir. 2000). Because Hervey suffered no material change in his salary, benefits, seniority, or responsibility as a result of any of these alleged incidents, he has not made an actionable claim for reprisal.
Bodycote also responds to Hervey's apparent reprisal allegations that his supervisor, Ed Lamberty, refused to write down his overtime hours and that another supervisor, Steve Swing, did not allow him to stay late with an injured co-worker in early 2003. (Def.'s Mem. in Supp. at 22 (citing Hervey Dep. Tr. at 229-31).) Although these allegations do not appear in Hervey's memorandum, the Court finds, out of an abundance of caution, that these claims fail to show reprisal discrimination. There is no evidence that either supervisor knew of the EEOC charge and acted with a retaliatory motive. See Kohler Co., 335 F.3d at 774;Smith, 302 F.3d at 833 n. 6.
Accordingly, the Court will grant Bodycote's motion with regard to Hervey's reprisal claims.
Conclusion
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant Bodycote Lindberg Corporation's Motion for Summary Judgment (Doc. No. 23) is GRANTED. Plaintiff Honey Hervey's Complaint (Doc. No. 1) is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.