Opinion
No. 4:03-CV-821 (CEJ).
August 2, 2004
MEMORANDUM AND ORDER
This matter is before the Court on defendant's motion for summary judgment. Plaintiff opposes the motion and the issues are fully briefed.
Plaintiff Darlene Sydnor has been employed by defendant Ameriwood Industries since 1980. In July 2001, plaintiff was assigned to light duty after she suffered a work-related injury. Plaintiff, who is African-American, alleges that she was treated less favorably than similarly-situated white employees and brings suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Defendant moves for summary judgment, arguing that plaintiff cannot establish that its actions were motivated by her race.
In her original pro se complaint, plaintiff asserted claims of discrimination based on race, sex, and age. After retaining counsel, plaintiff withdrew her age and sex discrimination claims.
I. Background
Defendant manufactures ready-to-assemble furniture. Plaintiff works in the hardware department, where she operates a machine that sorts and bags the hardware that is included with the furniture kits. Employees in the hardware department must lift five-tofifty-pound cartons of parts into bins on top of the bagger machines. In July 2001, the department began receiving cam parts in 500 pound barrels. The employees had to "scoop and rake" the cam parts into boxes to be transferred to the bagger machines. In his affidavit, Wayne Tribley, defendant's Safety Manager, stated that several employees complained to him about having to "scoop and rake" the cam parts from the barrels.
On July 28, 2001, plaintiff complained to Tribley that her arms and back hurt. Plaintiff testified at deposition that "two or three days later" Tribley arranged for her to see Ronald L. Pearson, D.O., the company doctor. Following an examination on August 6, 2001, Dr. Pearson placed plaintiff on limited duty with temporary restrictions on lifting and overhead work. Dr. Pearson removed the restrictions at a follow-up appointment on August 10, 2001, but restored them on September 27, 2001, when plaintiff reported continued pain in her elbows and back.
Dr. Pearson subsequently referred plaintiff to Randall Roush, M.D., an orthopedic specialist, who saw plaintiff on October 10, and October 18, 2001, and continued her restrictions. On November 15, 2001, Dr. Roush noted that plaintiff had improved with physical therapy and recommended that her restrictions remain in place for one more week, after which she could be returned to regular duty. However, when Dr. Pearson examined plaintiff on November 27, 2001, he concluded that, based on his observation of her work site, she could not safely return to her job unless ergonomic changes were made to eliminate overhead work and raking cams from the barrels. Without such changes, plaintiff was at "extreme risk" for further injury. Dr. Pearson accordingly returned plaintiff to full duty with permanent job restrictions. On November 28, 2001, Dr. Pearson discussed his findings in a telephone conference call with plaintiff, Tribley, Darrell Lewis, defendant's Human Resources Manager, Mark Thomas, defendant's Director of Operations, and Steve Robey, the union steward.
On May 17, 2002, six months after Dr. Pearson imposed permanent restrictions, plaintiff was examined by Dr. J.H. Morrow in connection with her Workers' Compensation claim. Plaintiff reported to Dr. Morrow that she experienced pain on a daily basis. Dr. Morrow concluded that plaintiff had a 30% permanent partial disability of her upper left arm, a 35% permanent partial disability of her left elbow, a 30% permanent partial disability of the right elbow, and a 12.5% overall permanent partial disability of her body as a whole attributable to the low back.
Defendant maintains a "no restrictions" policy that prohibits injured employees from returning to their work assignments until the company doctor releases them to full duty without restrictions. As a result of the restrictions Dr. Pearson placed on plaintiff at her first appointment, plaintiff was placed in defendant's light duty program on August 7, 2001. She returned to full duty on August 10, 2001, when Dr. Pearson lifted all restrictions, but returned to light duty on September 27, 2001. Plaintiff was briefly returned to full duty between her last appointment with Dr. Roush and November 27, 2001, when Dr. Pearson imposed the permanent restrictions.
Employees in the light duty program are assigned to tasks such as cleaning, answering phones, delivering the mail, filing, and other janitorial and office duties. While in the light duty program, plaintiff's hourly wage was $5.15 per hour, less than half her regular duty wage, and she was precluded from working overtime. Plaintiff received a Workers' Compensation subsidy for the period from August 6, 2001, to November 28, 2001, but was no longer eligible for the subsidy after she was placed on permanent restriction. Plaintiff, along with other hardware department employees in the light duty program, filed a grievance seeking a return to her prior position. In negotiations with the union, defendant agreed to create four positions for employees on permanent restrictions. Defendant also agreed to pay plaintiff an additional $700 to compensate for the difference between her regular pay rate and what she earned while on light duty.
Those positions were filled by plaintiff, Maria Bailey, a black female, Dennis Farrens, a white male, and Linda Howard, a black female.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on May 7, 2002, alleging discrimination on the basis of her race and color. In the attached narrative, plaintiff alleged that the members of the hardware department's night shift, all but one of whom were white, received better treatment than did members of the first shift, all but one of whom were black. Specifically, she alleged that defendant treated her differently than the similarly-situated night shift employees by refusing to return her to full duty after Dr. Roush lifted her restrictions. She also alleged that the night crew had lower production requirements than she did and that, unlike those working the night shift, she was required to use harsh chemicals, was exposed to exhaust fumes from idling delivery trucks, and was not allowed to work overtime outside the department or receive extra help. Plaintiff also alleged that defendant discriminated against her on the basis of her race by assigning her to work in an area in which she could not hear the fire alarm and that had a terrible odor. She complained that her department did not have regular safety meetings and that she was assigned to do dirtier work while on light duty. She also made a general allegation that defendant enforced its work rules and discipline more rigorously against her.
Plaintiff also alleged that defendant denied her overtime opportunities and reduced her pay without sufficient notice. There is no dispute that these actions resulted from plaintiff's placement in the light duty program.
Although she did not discuss racially-offensive conduct in her EEOC charge and complaint, plaintiff testified in deposition about a variety of incidents she believed demonstrate racial animus. Approximately ten years earlier, someone drew "black little stick ladies" hanging from nooses on the wall in her work area. Plaintiff also testified that the "n-word" appeared on bathroom walls and a supervisor made a comment about black screws and silver screws that plaintiff understood to refer to race. Two different managers routinely commented that the hardware department employees "always play that type of loud music." Several employees frequently referred to the first-shift hardware department employees as "you people," which plaintiff understood as a reference to race because most of the first shift employees are black. She testified that there were routine references by maintenance employees to "nigger-rigging" something and fixing "nigger barbeque."
II. Legal Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." In ruling on a motion for summary judgment the court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law.Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Fed.R.Civ.P. 56(c). Once the moving party has met its burden, the non-moving party may not rest on the allegations of her pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. Discussion
Plaintiff alleges that defendant improperly kept her on light duty after Dr. Roush released her without restrictions, and that her race was a motivating factor in defendant's treatment of her. She also alleges that, before her injury, she was subjected to disparate working conditions. In opposing summary judgment, plaintiff adds a claim that she was subjected to racially derogatory comments. With respect to the latter, plaintiff did not assert a hostile environment claim in her EEOC charge and thus may not bring such a claim here. See Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994) (plaintiff deemed to have exhausted claims in judicial complaint that are like or reasonably related to substance of EEOC charge);Tart v. Hill Behan Lumber Co., 31 F.3d 668, 673 (8th Cir. 1994) (plaintiff's racial harassment claim not within scope of race discrimination charge brought before administrative agency). Plaintiff's disparate treatment claims, however, were properly exhausted.
Title VII prohibits employment practices that discriminate against individuals based upon race. The Eighth Circuit has routinely applied the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when plaintiffs are unable to present direct evidence of an employer's alleged discriminatory motive. See Calder v. TCI Cablevision of Missouri, Inc., 298 F.3d 723, 728-29 (8th Cir. 2002). Plaintiff asserts that the Supreme Court's opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), alters the analysis. At issue inDesert Palace was § 107 of Title VII of the Civil Rights Act, as amended by the Civil Rights Act of 1991, and codified in part at 42 U.S.C. § 2000e-2(m) ("an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice"). After examining the statutory language, the Supreme Court held that a plaintiff proceeding under § 2000e-2(m) was not required to present direct evidence of improper motive in order to receive mixed-motive jury instructions. Id. at 101.
Plaintiff asserts that, under Desert Palace, she may prevail by establishing either that (1) defendant's proffered reason for its actions is a pretext for racial discrimination underMcDonnell Douglas or (2) defendant's proffered reason, while true, is not the only reason for defendant's conduct and that race was another motivating factor. Since the Desert Palace decision, the Eighth Circuit has continued to apply McDonnell Douglas to analyze claims where there is no direct evidence of discrimination. See, e.g., Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir. 2003) (plaintiff has no direct evidence "so his claims are evaluated under the burden-shifting analysis of McDonnell Douglas);Longen v. Waterous Co., 347 F.3d 685, 688 (8th Cir. 2003) (applying McDonnell Douglas to ADA claim). See also Pruett v. Village News, Inc., 2003 WL 22833376 (8th Cir. Dec. 1, 2003) (declining to address plaintiff's argument that claims should have been analyzed under Desert Palace rather than McDonnell Douglas because she did not previously assert that her case was a mixed-motive case). This Court is bound by Eighth Circuit precedent and will apply the McDonnell Douglas burden-shifting analysis to plaintiff's claims. The outcome would be the same under plaintiff's analysis, however, as she has failed to put forward evidence that would support an inference that defendant's actions were motivated by race.
Under the burden-shifting analysis, plaintiff must first establish a prima facie case of intentional discrimination.McDonnell Douglas, 411 U.S. at 802; Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997). If plaintiff establishes aprima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. If defendant articulates such a reason, plaintiff must then demonstrate that defendant's reason is a pretext for discrimination. Id.; Kim, 123 F.3d at 1056. The burden of proving discrimination remains on plaintiff at all times. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515-16 (1993). Plaintiff must do more at the pretext stage than discredit defendant's reason; plaintiff must show that defendant's articulated reason is a pretext for discrimination. See id.;see also Ryther v. KARE 11, 108 F.3d 832, 837 (8th Cir. 1997) (en banc); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995). A plaintiff's prima facie case, combined with sufficient evidence to find that the employer's proffered reason is false may permit, but does not require, the factfinder to conclude that the actual reason was discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000).
In order to avoid summary judgment, a plaintiff alleging discrimination must present evidence that, when viewed in its entirety, (1) creates a fact issue as to whether the employer's proffered reason is pretextual, and (2) creates a reasonable inference that a discriminatory motive was a determinative factor in the adverse employment decision. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996); see also Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir. 1995). Evidence of pretext alone is not sufficient to avoid summary judgment. Ryther, 108 F.3d at 837.
In order to establish a prima facie case of employment discrimination, plaintiff must show (1) she is a member of a protected class; (2) she is qualified to perform her job; (3) she suffered an adverse employment action; and (4) she was treated differently than similarly-situated non-class members. Jones v. Reliant Energy — ARKLA, 336 F.3d 689, 691 (8th Cir. 2003). Defendant asserts that plaintiff cannot establish either the third or fourth elements of her prima facie case.
While an action short of termination may constitute an adverse employment action, Manning v. Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 692 (8th Cir. 1997), plaintiff must present evidence that the action had some materially adverse impact on the terms or conditions of her employment. Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1245 (8th Cir. 1998). Plaintiffs have been found to have met their burden when employers denied use of vacation days, id.; provided negative job references,Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997); or required a transfer to a position with no supervisory status and few opportunities for advancement or salary increases. Davis v. City of Sioux City, 115 F.3d 1365, 1369 (8th Cir. 1997). Not everything that makes an employee unhappy, however, is an actionable adverse action. Montadon v. Farmland Indus., Inc. 116 F.3d 355, 359 (8th Cir. 1997). Employer actions which do not result in change in pay, benefits, seniority, or responsibility are insufficient to sustain a discrimination claim. See Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 427 (8th Cir. 1998) (no adverse action where employer changed plaintiff's work hours, reprimanded her for dresscode violation, changed her parking space, and removed favorable letters of commendation from personnel file); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (replacing supervisor's staff and placing letter in file that discriminatory practices will not be tolerated insufficient to establish an adverse action).
Plaintiff contends that she suffered an adverse employment action while on light duty because she was paid less than half of her usual hourly wage. The evidence establishes that Workers' Compensation benefits provided plaintiff the difference between her ordinary and light-duty wages. After plaintiff's Workers' Compensation eligibility expired, the union negotiated an additional payment in compensation for her lost wages. Plaintiff does not dispute defendant's contention that she was compensated in full and thus she has failed to establish that she suffered an adverse action with respect to her pay. Plaintiff also argues that she was required to perform menial tasks while on light duty, such as wiping down walls. The Court concludes that the change in job assignments during plaintiff's assignment to light duty did not have a materially adverse impact on the terms or conditions of her employment. Plaintiff thus cannot establish the third element of her prima facie case.
Although employees in the light duty program are barred from working overtime, plaintiff does not in her opposition to defendant's motion assert this as a basis for finding an adverse employment action.
With respect to the fourth element, plaintiff contends that similarly-situated white employees were treated more favorably than she. First, she contends that she was not allowed to return to her regular job duties after she was released by the company doctor, Dr. Pearson. Dr. Pearson released plaintiff with permanent restrictions, however, and it is undisputed that company policy prohibits employees with restrictions from returning to work. Plaintiff testified at deposition that, after Dr. Roush released her to full duty, Tribley told her he was going to ask Dr. Pearson to impose restrictions in order to prevent her from being injured. Plaintiff argues that no one else was placed on light duty as a "preventive measure." Regardless of Tribley's assessment that preventive measures were appropriate, the undisputed evidence establishes that Dr. Pearson, not Tribley, decided that plaintiff's medical condition warranted restrictions. That decision was reinforced six months later by the Workers' Compensation examiner.
Plaintiff has failed to identify any white employees with restrictions who were allowed to return to regular duty. The undisputed evidence in the record establishes that Dennis Farrens, a white male with permanent restrictions imposed by Dr. Pearson, remained on light duty until he entered one of the four permanent restriction positions negotiated by the union. Alice Zoellner, a white female employee identified by plaintiff as receiving more favorable treatment, suffered a shoulder injury on September 27, 2000; she returned to full duty on October 16, 2000, when Dr. Pearson released her without restrictions because her pain had improved with treatment. Naomi Duvel, a white female, was given a permanent lifting restriction in 1996. Tribley testified without contradiction that defendant did not learn of Duvel's restriction until 2003, at which time she was placed in one of the permanent restriction positions. Plaintiff argues that Duvel received favorable treatment in that she was placed directly in a permanent restriction position without first working in the light duty program. It is uncontested, however, that the permanent restriction positions were first created in February 2001, in response to the grievance filed by plaintiff and others with permanent restrictions. The fact that Duvel later benefitted from a program unavailable when plaintiff was injured does not establish disparate treatment of similarly-situated employees. Plaintiff has failed to present evidence that supports her contention that she was treated differently than similarly-situated employees and thus cannot establish the fourth element of her prima facie case.
Even if plaintiff established her prima facie case, she has not presented evidence that would support a reasonable inference that defendant's reason for placing her in the light duty program was a pretext for discrimination. Although plaintiff testified that several fellow employees made statements that arguably referred to her race, she has provided no evidence to suggest that Dr. Pearson, the decision-maker in this case, made any such statements or that his decision was motivated by racial considerations. Defendant is thus entitled to summary judgment on plaintiff's job-assignment claim.
Plaintiff also alleges that defendant discriminated against her by requiring her to work in an area exposed to exhaust fumes and sewer odor, and without adequate fire alarms. Both black and white hardware department employees worked under the same conditions and thus plaintiff cannot demonstrate that race was a motivating factor. Similarly, plaintiff's contentions that first-shift hardware department employees were treated less favorably than the night shift cannot support a race discrimination claim because one of the first shift employees was white.
In summary, plaintiff has failed to present evidence that would support a reasonable inference that defendant's actions were improperly motivated by her race. Therefore, the defendant is entitled to summary judgment.
Accordingly,
IT IS HEREBY ORDERED that defendant's motion for summary judgment [#35] is granted.
A separate order in accordance with this Memorandum and Order will be separately entered.
JUDGMENT
In accordance with the Memorandum and Order entered this same date,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that judgment is entered in favor of defendant Ameriwood Industries and against plaintiff Darlene Sydnor on her complaint. The parties shall bear their respective costs.