Opinion
Case No. 8:00CV505
July 5, 2002
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the Motion for Summary Judgment and Alternative Partial Summary Judgment (Filing No. 50) filed by Defendants Kiewit Construction Company ("Kiewit Construction") and Peter Kiewit Sons', Inc. ("PKS") (collectively "Kiewit"). Plaintiff Heather Stewart opposes the motion. The parties have fully briefed the issues presented, and both parties have submitted evidence in support of their respective positions (Filing Nos. 51 and 58). Kiewit has also objected to portions of the affidavit evidence offered by Stewart in opposition to Kiewit's motion (Filing No. 61).
The depositions of Heather Stewart and Michael Downey, referenced herein, are exhibits 3 and 4 respectively of Defendants' Index to Evidence, Filing No. 51.
Kiewit seeks summary judgment on all claims raised in the Amended Complaint: the first alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964; the second, alleging sex discrimination in violation of the Nebraska Fair Employment Practices Act ("NFEPA"); and the third, alleging the intentional infliction of emotional distress.
Factual Background
Stewart began her employment with Kiewit Construction as a secretary. In approximately June 1999, a Kiewit Safety Manager, Michael Downey, approached Stewart about working with him in a safety-related position. According to Downey, the position of Safety Coordinator was available, and he wanted to offer the position to Stewart with the understanding that he would train her for the position.
Downey himself had been a Safety Coordinator at Kiewit. As a Safety Coordinator, his job responsibilities included documenting company accidents, ensuring that accident reports were sent to the Kiewit corporate offices, dealing with workers compensation matters, and inspecting job sites for safety violations. Downey Dep. 62:10-23. When he was promoted by his supervisor and the District Manager, Bruce Tresslar, to the position of Safety Manager, the Safety Coordinator position was assumed by another Kiewit employee, Karl Greinig. Both Downey and Greinig had four-year college degrees and prior construction site experience. Just before June 1999, Greinig informed Downey that Greinig would be taking another job in a different Kiewit company. After conferring, Downey and Tresslar decided to offer the Safety Coordinator position to an outside candidate, Lisa Lockman, who also possessed a four-year degree and had prior construction site experience. Lockman declined the offer.
Downey and Tresslar spoke after Lockman's rejection, and although the specifics of that conversation are disputed, according to Downey, they decided that it would be difficult to hire and retain an experienced person in the job of Safety Coordinator. Also according to Downey, they decided to hire someone without a four-year degree and without experience, with the goal of training the person for the Safety Coordinator job and retaining the employee for a substantial period of time. Downey Aff. at ¶ 4.
In any event, Downey approached Stewart and inquired whether she would be interested in the Safety Coordinator position. He explained that the job would involve administrative and clerical work, and that he would provide on-the-job training for site inspections and other safety tasks. He also informed her that she would need to take a 30-hour OSHA training class and other safety training. Stewart accepted. Id. at ¶ 5; Stewart Dep. at 32:18-33:1.
During Downey's mid-year review, Downey states that Tresslar questioned Downey about the wisdom of hiring Stewart into the Safety Coordinator position. According to Downey, Tresslar stated during this meeting that he would not allow Downey to send Stewart to job sites because of her "big tits," based at least in part on his concern that she might be mistreated on the job sites and sue the company. Downey Aff. at ¶ 5.
Downey states that sometime after his meeting with Tresslar, he contacted Jane Sewell of PKS's equal opportunity office. Downey states that he informed Sewell that Tresslar was encouraging him to treat Stewart differently than he would treat a male employee. According to Downey, Sewell told him to treat Stewart just as he would any other Safety Coordinator.
In late July or early August 1999, Downey requested that Stewart order business cards for herself, identifying her position as "Safety Coordinator" and providing the same company information on the card as had been on Karl Greinig's business card. In addition, Downey requested that Stewart make travel reservations for the two of them to visit a construction site in Denver. Stewart understood that she would be visiting the site as part of her training, and that her role was that of an observer. Stewart Dep. 43:9-19.
After Tresslar learned that Downey had given these assignments to Stewart, Tresslar and Downey met on August 23, 1999. Downey informed Tresslar that he had "contacted the corporate EEOC office regarding this matter." Thereafter, Tresslar fired Downey. Id. at ¶ 7.
Stewart saw Downey at a social function a few weeks after Downey was fired. At that time, Downey told Stewart that he was fired because he had contacted the PKS equal employment opportunity office about her job, and he informed Stewart that Tresslar said words to the effect that she would never be a Safety Coordinator because she was female and had "big tits." Stewart Dep. at 72:7 — 73:6; Stewart Aff. at ¶ 6. Thereafter, Stewart contacted Sewell regarding the conversation she had with Downey and about the comments that Downey attributed to Tresslar. In response, Sewell arranged a meeting among Tresslar, Stewart, and herself, at which time Tresslar made an apology related to the offensive comment. Stewart Dep. at 75:11-76:11. Around that time, PKS equal opportunity officer Sewell assured Stewart that if she obtained the required training, she could work toward the Safety Coordinator position. Stewart Dep. 70:24:71:25.
Approximately two years passed after that conversation, and Stewart resigned her employment with Kiewit. Stewart Dep. at 83:15-17. Although the date of her resignation is not readily apparent, it must have been after Stewart prepared a memo dated November 22, 2000, regarding her interest in taking the OSHA 500 class. Id. at 85. Stewart states in her affidavit that she had completed the 30-hour OSHA training, other training, and was more knowledgeable than her boss about safety-related issues at Kiewit. Stewart Aff. at ¶ 7. Yet, she still was unable to present herself as a Safety Coordinator and was denied the opportunity to do field work and construction site visits. Id. She resigned from Kiewit based on her belief that she would never be allowed to work as a Safety Coordinator at Kiewit because she is female. Stewart Dep. at 83:15-17
Stewart filed a charge with the Omaha Human Relations Department on November 29, 1999, which the Department dual-filed with the EEOC. Filing No. 51, Ex. 6. Neither Stewart nor the Omaha Human Relations Department filed her retaliation charge with the NEOC.
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. 2001). 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, 322 (1986) (quoting Fed.R.Civ.P. 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (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.
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 325. 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., 210 F.3d 845, 847 (8th Cir. 2000), and summary judgment should be used sparingly in employment discrimination cases. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994).
Title VII Claim
Kiewit seeks summary judgment on the Title VII claim on the basis that Stewart has failed to state a prima facie case of sex discrimination under the law. Title VII requires a plaintiff alleging sex discrimination to present evidence of the following:
1) she is a member of a protected class;
2) she was qualified to perform the job;
3) she suffered an adverse employment action; and
4) she was treated differently than similarly-situated persons because of her sex.
Riggs, 159 F. Supp.2d at 1165 citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Kiewit claims that Stewart cannot state a prima facie case because she was not qualified to perform the position of Safety Coordinator in that she did not have the field experience or a background in safety that the previous Safety Coordinators had attained. In addition, Kiewit contends that Stewart cannot demonstrate that she was treated differently from other similarly-situated male employees because other male employees who were Safety Coordinators came into the position with an educational background and work experience that distinguished them from Stewart, thus, they were not "similarly situated." Defendant also maintains that Tresslar's authorization of an external female candidate for the Safety Coordinator position, Lisa Lockman, is evidence that Tresslar did not treat female employees differently from male employees on the basis of their sex.
If those were the issues presented in this case, the Court might agree with Kiewit's position given Stewart's testimony regarding her education and her lack of on-site construction experience. However, the Court rejects Kiewit's framing of the issues presented in this case.
Based on the record before the Court, all parties agree that when the Safety Coordinator position was offered to Stewart, it was as a trainee position. Downey states in his affidavit that he and Tresslar talked after Lockman turned down an offer to be a Safety Coordinator at Kiewit, and that they agreed that they should find a candidate for the Safety Coordinator position who did not have a four-year college degree and who had less experience than prior Safety Coordinators, in the hope that they could retain such a candidate for a longer period of time. Downey Aff. at ¶ 4; Stewart Dep. at 32:18-4. The job was offered to Stewart on the condition that she receive formal training in the nature of the Occupational Safety and Health Administration's 30-hour program and on-the-job construction site training to enable her to assume all the responsibilities of the Safety Coordinator position. Stewart Dep. at 33:5-14; 35:3-8; 32:18-4. On this motion, there is no evidence directly from Tresslar, although it appears, based on the briefs, that Tresslar does not dispute that the Safety Coordinator job was offered to Stewart, only that it was offered without his authorization.
Looking at this case from the vantage of November 1999, the Court finds that Plaintiff has stated a prima facie case of sex discrimination. Stewart is a member of a protected class, and she has demonstrated that she suffered an adverse employment action by being denied the opportunity to be a Safety Coordinator trainee and later a full-fledged Safety Coordinator. Stewart has submitted evidence that she was qualified for the trainee position based on Downey's evaluation of candidates for the trainee job and his offer of employment to her. With regard to the fourth element, according to Downey's affidavit, Kiewit has trained other male employees into safety-related positions even though they did not have four-year degrees, though some of them were construction laborers. Downey Aff. at ¶ 4. The Court finds that there are genuine issues of material fact relating to the evidence submitted to the Court relative to Plaintiff's prima facie case.
Neither does Stewart's resignation provide grounds for summary judgment for Kiewit on the Title VII claim. Stewart resigned, according to her testimony, because it became clear to her that she would not be allowed to assume the role of Safety Coordinator even after she had completed nearly two years of on-the-job training and other formal training, including the 30-hour OSHA training. There is evidence that, even after Downey was terminated, Tresslar and others renewed the offer to reinstate Stewart into the Safety Coordinator position (from Safety Secretary) after Stewart received additional safety training. Stewart Dep. at 71:4-25; 77:21-78:4; 84:15-25; 87:1-20. The Court finds that there are genuine issues of material fact in dispute regarding the reasons for Stewart's resignation, as well as the elements of her prima facie case. Accordingly, Kiewit's motion shall be denied as to the Title VII claim.
NFEPA Claim
Kiewit also seeks summary judgment on the NFEPA claim because Stewart failed to file a charge of sex discrimination with the NEOC. Stewart filed her charge with the Omaha Human Relations Department in November 1999, and the Department also filed her charge with the Equal Employment Opportunity Commission in Denver, Colorado. No one filed a charge with the Nebraska Equal Employment Opportunity Commission. Stewart's failure to file a charge of discrimination with the NEOC might bar her NFEPA claim, except that Stewart may proceed in Nebraska under Neb. Rev. Stat. § 20-148.
NFEPA requires that a person who has been subjected to unlawful discrimination file a charge of discrimination with the Nebraska Equal Opportunity Commission ("NEOC") within 300 days of the unlawful conduct. Neb. Rev. Stat. § 48-1118(2). Whether Downey's filing of a charge of discrimination with the EEOC and the Omaha Human Rights Department is sufficient under Neb. Rev. Stat. § 48-1118(2), in light of the Commission's duty to "cooperate with the federal government and with local agencies to effectuate the purposes of the NFEPA," Neb. Rev. Stat. § 48-1117, was not briefed by the parties and is not an issue this Court will address based on the Plaintiff's decision to proceed under § 20-148.
Section 20-148 is a procedural statute that provides an alternative method for bringing a claim of employment discrimination to court in Nebraska. The statute allows a plaintiff to bypass the administrative remedies outlined in NFEPA and to file a claim of unlawful discrimination directly in court.
Kiewit also argues, however, that the statute of limitations has run on Stewart's claim. Stewart filed her Complaint on September 26, 2000, alleging discrimination on the basis of her sex in receiving a demotion from a trainee Safety Coordinator to a Safety Secretary. At least some of the facts supporting her claims arose on or about August 23, 1999, when Tresslar informed Stewart that she would only be working as a Safety Secretary, and that she would not be allowed to make site visits. More than 300 days passed between August 23, 1999, and September 26, 2000, the date she filed the Complaint (Filing No. 1). If the inquiry stopped here, it would appear that Stewart's NFEPA claim would be time-barred.
However, one outstanding issue remains. If Stewart was repeatedly assured that with additional safety training she could increase her responsibilities to those of a Safety Coordinator, see Stewart Dep. at 71:4-25; 77:21-78:4; 84:15-25; 87:1-20, is there sufficient evidence that a continuing violation of the law occurred? Such a continuing violation may constitute a basis for equitable tolling of the statute of limitations through the date of the final violation — presumably Stewart's resignation, which occurred sometime after November 22, 2000 — even after the date that the lawsuit was commenced.
While the Court has found no Nebraska cases that address the tolling of the 300-day statute of limitation for NFEPA cases, the Eighth Circuit has held that when alleged employment practices are "continuing" in nature, the limitations period does not begin to run until the last occurrence of discrimination. Hukkanen v. International Union of Operating Eng'rs, 3 F.3d 281, 285 (8th Cir. 1993) (interpreting the Title VII 180-day limitations provision, § 2000e-5(e)(1), finding an alleged pattern of discrimination that culminated in discharge); International Bhd. of Elec. Workers v. Union Elec. Co., 761 F.2d 1257, 1258 n. 1 (8th Cir. 1985) (interpreting the ADEA limitations provision, § 626(d)(1), finding an alleged continuing practice and triggering of the limitations period by the termination of the allegedly unlawful practice). Even though Stewart has not alleged that her immediate supervisors at Kiewit after August 23, 1999, discriminated against her on the basis of her sex, because Tresslar remained in his management position throughout Stewart's employment at Kiewit Construction, the Court finds that there are questions of fact that are material to the resolution of Kiewit's statute of limitations defense. Because the Court finds that there are genuine issues of material fact that remain to be decided relative to whether Stewart's continuing efforts to obtain the Safety Coordinator position were thwarted as a result of unlawful discrimination, Kiewit's motion for summary judgment on the NFEPA claim is denied.
Intentional Infliction of Emotional Distress
Kiewit also seeks summary judgment on Stewart's claim based on intentional infliction of emotional distress. To prevail on this claim, Stewart must show "(1) that there has been intentional or reckless conduct, (2) that the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and it to be regarded as atrocious and utterly intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe that no reasonable person should be expected to endure it." Riggs v. County of Banner, 159 F. Supp.2d 1158, 1172 (D.Neb. 2001). While there remain genuine issues of material fact as to whether there was intentional or reckless conduct, even if the Court assumes that there was intentional or reckless conduct, there is no extrapolation of the record that could enable Stewart to satisfy the second element set forth in Riggs. Even if the more crass version of the comment attributed to Tresslar about Stewart's body is believed, the Court concludes that the combination of the offensive comment and of the allegedly discriminatory conduct does not rise to the level of outrage or atrocity required to prevail on such a claim. Accordingly, Kiewit's motion for summary judgment on Stewart's claim based on the intentional infliction of emotional distress is granted.
Referring to Stewart's "big tits" rather than "large breasts." See Stewart Dep. at 73:1-6; 75:25 — 76:1.
Based on the foregoing, IT IS ORDERED:
1) Defendants' objection to the portions of Plaintiff's evidence offered in opposition to Defendants' motion for summary judgment (Filing No. 61) is denied;
2) Defendants' Motion for Summary Judgment and Alternative for Partial Summary Judgment (Filing No. 50) is granted in part and denied in part. Defendants' summary judgment motion is granted as to Plaintiff's Claim based on the Intentional Infliction of Emotional Distress, and is denied in all other respects.
3) Count IV of the Amended Complaint is dismissed with prejudice.
Count IV in the Amended Complaint, Filing No. 3 at page 4, is actually the third count in the Amended Complaint.