Opinion
No. C96-261 MJM.
January 27, 1999.
ORDER
Introduction
This matter involves a claim of racial discrimination by the plaintiff, McKenzly Wilson, who was terminated by the defendant, Quaker Oats Company (Quaker), on June 25, 1992. In his complaint filed July 17, 1996, Wilson alleged that Quaker discriminated and retaliated against him on the basis of race "by scrutinizing plaintiff more closely than other comparable employees, ostracizing plaintiff, failing to promote plaintiff, using racial slurs, cursing and accosting plaintiff, and by firing him, all because of his race and to punish him for opposing defendant's unlawful practices." (Compl. ¶ 8). Wilson alleged that Quaker's conduct violated 42 U.S.C. § 1981 and § 2000e (Title VII). Quaker argues that it terminated Wilson because it reasonably believed that Wilson violated Quaker's policy against sexual harassment. The matter now comes before the court on Quaker's motion for summary judgment.
I. Motion to Strike
Before reaching the merits of this matter, the court must address Wilson's motion to strike all or part of Paragraphs 2-13 of Quaker's statement of undisputed facts. First, Wilson attacks the affidavit of Kimberly Lorenz and its attached exhibits, which form the basis for Paragraphs 2-9 of Quaker's statement of undisputed facts. Paragraphs 2-9 all relate to a complaint by a female employee that Wilson sexually harassed her as well as Quaker's investigation of that complaint. Lorenz was the employee relations manager at the time Wilson was terminated and either conducted her own investigation or relied on others' investigation of the alleged sexual harassment in helping make the decision to terminate Wilson.
Both parties seek oral argument on the motion for summary judgment and the motion to strike. (Docs. ## 24, 38). The court will deny the motions for oral argument and proceed to rule on the substance of the motion to strike and the motion for summary judgment. The parties each had a full and fair opportunity to brief the pending motions, and no cause has been shown to hold oral argument. See Local Rule 7.1(c).
Wilson contends that the Lorenz affidavit should be stricken because the exhibits are hearsay and are not business records falling within an exception to the hearsay rule. However, as the Eighth Circuit Court of Appeals has unanimously recognized, the type of complaint evidence contained in Paragraphs 2-9 of the statement of undisputed facts is not hearsay because it is relevant to explain the employer's motive in terminating an employee. See Lee v. Rapid City Area Sch. Dist. No. 51-4, 981 F.2d 316, 321 n. 2 (8th Cir. 1992) (en banc); id. at 322 (Beam, J., concurring and dissenting); id. at 322-23 (Loken, J., dissenting). The concerns which led the majority of the Eighth Circuit to uphold the district court's decision to exclude such evidence in Lee — i.e., inadequate offer of proof, cumulative and generalized nature of the testimony, the unruliness of the witness, the failure to document the complaints as required by the employer's policies, and the inability to effectively cross-examine the witness — are not applicable in this case. Specifically, the evidence offered by Quaker is specific, well-documented, and could readily be subject to cross-examination by Wilson in a deposition or at trial. Moreover, the Eighth Circuit recognized the admissibility of the complaints fell within the district court's sound discretion, and this court declines to exclude the materials from the summary judgment record.
Wilson also argues paragraphs 2-9 should be excluded because Lorenz lacked personal knowledge about the matters contained in her affidavit. However, the Eighth Circuit has squarely held that an affiant may describe inappropriate employee behavior which led to decision to terminate employee, even if affiant did not witness the inappropriate employee behavior, as long as the affiant considered such behavior in her investigation or decision-making process. Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311-17 (8th Cir. 1996). Accordingly, the court denies Wilson's motion to strike as it relates to Paragraphs 2-9 of Quaker's statement of undisputed facts.
Wilson next attacks the material contained in Paragraph 10 of Quaker's statement of undisputed facts, which is a performance evaluation of Wilson from 1991. Wilson argues that the performance evaluation is inaccurate and the product of racial discrimination. The court rejects this argument. Courts routinely examine performance evaluations in judging discrimination cases. E.g., Merrick v. Farmer Ins. Group, 892 F.2d 1434, 1439-40 (9th Cir. 1990) (because decision-makers reviewed entire personnel file, even performance reviews from 1970s were admissible). Wilson is free to introduce evidence to attack or contradict what Quaker found in the performance evaluation, but that does not make the performance evaluation inadmissible. Thus, the court will not strike Paragraph 10 of Quaker's statement of undisputed facts.
Finally, Wilson challenges the material contained in Paragraphs 11-13, which relate to Wilson's employment discrimination charges with the Iowa Civil Rights Commission and the Equal Employment Opportunity Commission and the findings made by the two commissions. Although some circuits have per se rules admitting such materials, the Eighth Circuit has committed the admission of such materials to the sound discretion of the district court. Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041 (1984). At a later stage in the proceedings, the court may be willing to reconsider the admissibility of these materials, but the court will not strike Paragraphs 11-13 from the record for purposes of summary judgment.
II. Motion for Summary Judgment
Having denied Wilson's motion to strike, the court will now rule on Quaker's motion for summary judgment. A motion for summary judgment may only be granted when the record, construed in the light most favorable to the nonmoving party, reveals there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998). The nonmoving party is entitled to all reasonable inferences in its favor from the record. Id. Accordingly, the court will review the facts in the record in the light most favorable to Wilson.
A. Factual Background
The record in this case provides factual details dating from 1965, when Wilson first obtained employment with Quaker as a quality control chemist. In 1967, Wilson was promoted to quality control supervisor. He left Quaker in 1969, but returned in 1974 as a laboratory manager for Quaker's facility in Cedar Rapids. (Wilson Dep. 14-23). Wilson worked as a management employee at the Cedar Rapids plant from 1974 until June 25, 1992, when he was terminated. During this time, Wilson was "the only black manager in the whole plant." (Wilson Dep. 71).
In 1977, Wilson was "demoted" to quality assurance supervisor because some of the coordinators in his department had difficulty dealing with him. (Wilson Dep. 24-27). Although Wilson's job titles changed periodically, Wilson contends that he never received any promotions after that time while various white employees did. Specifically, he claims that he applied for (1) a position in Chicago which was given to David Albert in the late 1970s, (2) a position as quality assurance supervisor at the corporate level which was given to Chuck Teater in 1978 or 1979, and (3) positions in several training programs, the last of which was around September 1991 or March or April of 1992. (Wilson Dep. 89-93, 112). No African-Americans were enrolled in Quaker's training programs for over 15 years prior to Wilson's last application. (Wilson Dep. 94).
During his employment with Quaker, Wilson was actively involved in the NAACP, the Cedar Rapids Civil Rights Commission, and other civil rights organizations. (Wilson Dep. 77-78). Wilson was twice named Quaker's volunteer of the year for his community activities. (Wilson Dep. 86). In 1990 or 1991, Wilson's 24-year-old superior, Steve Mavity, told Wilson that other employees said his outside activities with the NAACP and the Civil Rights Commission were interfering with Wilson's job performance. When Wilson told Mavity "it sounds [as] if you'd be pleased if I [would] resign from all these different things, [he said,] [`]Yeah, I would be.[']" (Wilson Dep. 69-80). Later, Quaker's human resources manager told Wilson not to resign from his civil rights activities and that he would talk to Mavity about how to deal with people better. (Wilson Dep. 80-85).
Wilson recalls a number of racially-charged incidents during his eighteen years at the Cedar Rapids plant. These incidents included being called "the N word" at a Christmas party in the mid-1970s, hearing the word "nigger" on several other occasions, being called "Toby" when the television miniseries "Roots" was aired in the late 1970s, being called "Uncle Remus" in the cafeteria in 1990, hearing confidential civil rights complaints discussed at staff meetings, hearing employees call the diversity committee "the nigger group," and hearing employees call a reduction in force in 1990 "Black Monday." (Wilson Dep. 59, 95-100, 109; Wilson Ans. to Interrog. No. 1 ¶¶ 5, 15, 20, 37). Wilson contends that his race and his civil rights activities gave rise to a desire upon the part of some employees and managers at Quaker to terminate him.
In June of 1992, a female employee alleged that Wilson improperly touched her. Specifically, she told Quaker officials that as she was arriving at work for the night shift on Saturday, June 20, 1992, Wilson "approached her from behind at the time clock and wrapped his arms around [her] and squeezed as to give her a hug. [Wilson] squeezed her breasts and [she] said, `Get away, quit it, you['re] hurting me.' [Wilson] continued to hug her so [she] stepped on his foot and he quit." On a previous occasion, Wilson "rubbed his hands up and down her side[s]." Wilson allegedly said at one time that he wanted to talk to her "in a dark hallway." The female employee said that "the situation," which lasted approximately six months, "has reached a point where she is afraid to be alone" with Wilson. (Def. Ex. C). Two other employees saw the incident. (Def. Ex. J). One of the witnesses, an African-American male employee, said it "went from being fun to a form of harassment," and that he too told Wilson to let the female employee go before he actually did so. (Def. Ex. G).
Wilson admitted touching the female employee, but said it was not sexual. (Wilson Aff. ¶ 3). In addition, Wilson said he never touched the sides of any female employees. (Def. Ex. D). Moreover, Wilson testified in his deposition that the female employee backed into him, that he did not squeeze her breasts, and that he stopped touching her as soon as she asked him. (Wilson Dep. 190, 203). Wilson acknowledged that she "didn't welcome it, of course." (Wilson Dep. 275). Asked if the female employee struggled to get away, Wilson testified, "If you would look at it on a snapshot basis, you would say yes. If you saw the entire scenario, you would have to say no." (Wilson Dep. 169).
In its investigation of the incident by Mavity and two employee relations officials, Ed Judice and Kimberly Lorenz, Quaker discovered allegations about earlier incidents involving other female employees in which Wilson (1) talked about books involving sex and about how young women are "empty headed" and "not good in bed," (2) spoke about "sex and women with big breasts," and was warned by a female employee that this would get him into trouble, (3) tried to give another female employee a bear hug, but stopped when the employee "swatted his hands away," and (4) hugged another female employee, but did not do it again after she told him to stop. (Def. Ex. D, I, J, K). One of the other female employees said Wilson was a "huggy person." (Def. Ex. K). Wilson explained that some of his sex-related comments were in response to a female employee who "always g[ave] me a hard time" and that he often touched or hugged people but never in a sexual way. (Wilson Dep. 194). Mavity and Judice told Wilson he was terminated on June 25, 1992.
Wilson acknowledged that the incident on June 20, 1992 warranted discipline, but he believes termination was too severe for what he did. (Wilson Dep. 171, 253). According to Wilson, termination "was always a last resort" for prior incidents of sexual harassment at Quaker's plant. (Wilson Dep. 269-70). Wilson had seen touching in the work place by others "many times," but the female employees had not objected to it. (Wilson 271-72). Moreover, Wilson testified that Quaker asked questions in its investigation of the alleged sexual harassment which showed that "their intent was to get enough, whether it's credible or not, to fire me." (Wilson Dep. 259).
Wilson also claims Quaker retaliated against him by giving negative references to prospective employers and ostracizing him from family and civil rights activists. Wilson suggests that the retaliation is further evidence that Quaker intentionally used the sexual harassment complaint as a pretext to fire him. (Wilson Dep. 265). Specifically, in October of 1992, Wilson applied and was interviewed for a position as diversity coordinator at Cornell College. In his third interview for the position, "it just went sour all of a sudden." Prospective employers (including Cornell College) told Wilson they knew he was fired from Quaker for reasons that "I didn't have the foggiest idea what they were talking about." Wilson said he knows that "personnel managers meet . . . from the different factories and companies" in the area, and he believes that Quaker exaggerated what he had done to other area employers at such meetings. (Wilson Dep. 237-39). Wilson also listed several people who could testify that Quaker made negative comments about him to his family, other employers, and civil rights leaders, but he did not specify what those comments were. (Wilson Dep. 243-46; Wilson Ans. to Interrog. No. 1 ¶¶ 57-64).
Analysis
Wilson does not claim that he has any direct evidence of race discrimination; thus, his claim must be analyzed under the familiar burden-shifting framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, Wilson must first establish the elements of a prima facie of discrimination. "The elements of a prima facie case of wrongful termination based on disparate treatment are: (1) membership in a protected group; (2) qualification for a position; (3) termination; and (4) circumstances that raise an inference of wrongful discrimination." Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471, 1482 (8th Cir. 1995) (citing Williams v. Ford Motor Co., 14 F.3d 1305, 1308 (8th Cir. 1994)). If Wilson produces sufficient evidence from which a reasonable trier of fact could find the elements of his prima facie case, the burden of production shifts to Quaker to articulate a legitimate, nondiscriminatory reason for its decision to terminate Wilson. See Chock v. Northwest Airlines, Inc., 113 F.3d 861, 863 (8th Cir. 1997). If Quaker meets its burden of production, Wilson must produce sufficient evidence from which a reasonable trier of fact could find that Quaker's explanation was a pretext for race discrimination. Id.
In this case, Quaker does not challenge Wilson's ability to create a fact question about his prima facie case. Therefore, for purposes of ruling on summary judgment, the court will assume that Wilson has presented a prima facie case of race discrimination. Instead, Quaker contends that it is entitled to summary judgment on Wilson's termination claim because it terminated Wilson for a legitimate, non-discriminatory reason, i.e., its reasonable and honest belief that Wilson violated its policy against sexual harassment. There is no question that terminating an employee who engages in sexual harassment (or what the employer reasonably believes is sexual harassment) is a legitimate, non-discriminatory reason for termination. Jones v. Intermountain Power Project, 794 F.2d 546, 555 (10th Cir. 1986); Baker v. McDonald's Corp., 686 F. Supp. 1474, 1482 (S.D. Fla. 1987), aff'd, 865 F.2d 1272 (11th Cir. 1988) (table), cert. denied, 493 U.S. 812 (1989). Therefore, the court finds that Quaker has satisfied its burden of production under McDonnell Douglas.
The only remaining question for this court on Wilson's claim of wrongful termination is whether Wilson has produced sufficient evidence to create a fact question about whether the allegations of sexual harassment on which Quaker claims it relied were a pretext for racial discrimination. In this regard, Wilson argues in his brief that Quaker's management did not approve of his civil rights activities and used the allegations of sexual harassment as a means to get rid of Wilson. (Wilson Br. at 9). After reviewing the record, however, the court concludes that the evidence in the record is insufficient to create a fact question about whether the alleged sexual harassment was a pretext for discrimination.
The key fact which supports Wilson's theory of pretext is Mavity's statement in 1990 or 1991 that other employees were bothered by the amount of time Wilson devoted to his civil rights activities and that Mavity agreed he would be pleased if Wilson quit those activities. (Wilson Dep. 69-80). On its face, this statement does not show racial animosity, but rather concern about community activities interfering with work performance. Assuming, however, that a fact-finder would infer that this animosity toward civil rights activities was related to race, Quaker dealt with the statement when the plant director told Wilson not to quit his civil rights activities, talked to Mavity about how to improve his management skills, and ultimately created a diversity committee. (Wilson Dep. 80-85). In addition, Quaker had honored Wilson for his community activities, which suggests that Quaker was not discriminating against him on that basis. (Wilson Dep. 86). Even Wilson acknowledged that Mavity probably did not know what he said was discriminatory. (Wilson Dep. 82-83).
It is also difficult to believe that Mavity used the allegations of sexual harassment in June of 1992 to terminate Wilson based on the alleged racial hostility he expressed in 1990 or 1991. Quaker had a clear policy against sexual harassment which stated that it would not be condoned. (Def. Ex. A; Wilson Dep. 147). In addition, Mavity was not the sole decision-maker when the decision to terminate Wilson was made in June of 1992. (Def. Ex. F). Wilson has produced no evidence that Ed Judice and Kimberly Lorentz had a racial animosity toward him.
Moreover, there is no evidence that Quaker treated Wilson worse than other alleged sexual harassers. Although Wilson offers a conclusory assertion that termination was "always the last resort," (Wilson Dep. 269-70), he did not provide any specific prior examples of managers who harassed but were not fired, nor did he show there was a policy favoring progressive discipline. In a recent case, the Eighth Circuit held that conclusory allegations that progressive discipline was used in prior situations, but not for the plaintiff, was insufficient to create a fact question in a wrongful termination case. Vaughn v. Roadway Express, Inc., ___ F.3d ___, ___, 1998 WL 940349, at *3 (8th Cir. Dec. 28, 1998). Although a reasonable argument could be made that Quaker should not have terminated Wilson without progressive discipline, especially given Wilson's long tenure with Quaker, the decision to terminate Wilson is the type of business judgment which courts are not allowed to second guess unless there is sufficient evidence of intentional racial discrimination. Gill, 32 F.3d at 379.
Wilson also suggests that he may have been set up by the Quaker employees who complained about his sexual harassment. Even if true, it is doubtful that this fact is relevant as long as Quaker's management honestly and reasonably believed he engaged in sexual harassment. See Gill, 32 F.3d at 378-79 (superintendent's honest belief that substitute teacher used racial epithet, even if student's report was in error, was nondiscriminatory reason for termination which warranted summary judgment in school district's favor). Moreover, there is no evidence that Wilson was set up by the other employees. First, Wilson admitted to much of the conduct which formed the basis of the sexual harassment allegations. Second, Wilson has not alleged (let alone submitted any evidence) that the employees who complained to Mavity in 1990 and 1991 about Wilson's civil rights activities were the same employees who complained about sexual harassment in 1992. Finally, although there is evidence in the record about racist remarks made over the course of Wilson's tenure at Quaker, there is no evidence that any managers or any of the complaining employees had ever engaged in such racist conduct.
In his deposition, Wilson also argued that Quaker's conduct after his termination showed that Quaker terminated him because of his race. Wilson claims that after his termination, Quaker exaggerated what Wilson had done to his daughter, his brother, civil rights leaders, and prospective employers. (Wilson Dep. 237-46). Wilson's theory is that this hostility shows that Quaker did not terminate him because of his sexual harassment, but out of personal, racial animus. Not only does this evidence show pretext, Wilson argues, but it also forms the basis of his independent retaliation claim.
The main problem with Wilson's retaliation theory is that Wilson does not have any specific, admissible facts to support it. Although Wilson suggests his brother, his daughter, a former wife of a Quaker employee, and several area civil rights leaders could testify about Quaker's post-termination conduct, (Wilson Dep. 239-45), none of them submitted an affidavit in support of Wilson's claims. Wilson did not even say what they knew about Quaker's conduct. What little he does say in his deposition is inadmissible hearsay, which cannot be considered for purposes of summary judgment. Baker, 686 F. Supp. at 1484. Thus, the court must reject Wilson's claims of pretext and retaliation.
To establish a prima facie case of retaliation, Wilson was required to introduce evidence that (1) he engaged in protected activity, (2) Quaker took adverse employment action against him, and (3) there is a causal connection between the two. See Flannery v. TWA, Inc., 160 F.3d 425, 428 (8th Cir. 1998). Even assuming that generalized civil rights activities are protected under Title VII, and that negative job references constitute an "adverse employment action," Wilson's retaliation claim fails for the reasons discussed in the text of this Order.
Finally, Wilson claims that Quaker improperly denied him promotions over his last fifteen years at Quaker. The last promotion he claims he was denied came in September 1991 or March or April of 1992. (Wilson Dep. 89-93, 112). Initially, the court questions whether any of Wilson's promotions claims are timely under Title VII or § 1981. Wilson filed his discrimination charges on September 30, 1992. (Def. Ex. R). Thus, the cut-off date for actionable conduct under the applicable 300-day limitations period contained in Title VII was December 6, 1991. See Dominguez v. City of Council Bluffs, 974 F. Supp. 732, 735-36 (S.D. Iowa 1997). Similarly, under § 1981, a two-year statute of limitations applies in Iowa. Kim v. Nash Finch Co., 123 F.3d 1046, 1053 n. 2 (8th Cir. 1997). However, Quaker did not plead or raise the statute of limitations defense, and thus waived it. See Banks v. Chesapeake Potomac Telephone Co., 802 F.2d 1416, 1427 (D.C. Cir. 1986); Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir. 1985), cert. denied, 475 U.S. 1028 (1986); Myers v. John Deere Ltd., 683 F.2d 270, 273 (8th Cir. 1982). Because Quaker did not raise the limitations period defense, the court will address the failure-to-promote claim on the merits.
Both parties recognized Wilson's termination claim as the central — if not only — claim in this case. Neither party addressed the failure-to-promote claim separately from the other claims in their briefs on summary judgment. Although the failure-to-promote claim was part of the complaint, it was not listed as a separate count. (Compl. ¶ 8). Wilson appears to raise it now only as relevant background for his wrongful termination claim. Thus, it appears Wilson has waived his failure-to-promote claim by failing to raise it properly in opposition to the motion for summary judgment. Nonetheless, the court will address the claim substantively to ensure that the case is fully decided.
Before the enactment of the Civil Rights Act of 1991, § 1981 forbid discrimination "only in the making and enforcement of contracts." Winbush, 66 F.3d at 1476 (quotations and alterations omitted). The Civil Rights Act of 1991 does not apply retroactively. Id. at 1476 n. 7. Therefore, in reviewing facts before the effective date of the Civil Rights Act of 1991, i.e., November 21, 1991, the court will keep in mind the limits of § 1981 claims.
A failure-to-promote claim requires a plaintiff to show (1) he is a member of a protected group, (2) he applied and was qualified for a position for which the employer was seeking applicants, (3) despite his qualifications, he was not hired, and (4) other employees with similar qualifications who were not members of a protected group were promoted at the time the plaintiff's request for promotion was denied. Winbush, 66 F.3d at 1479 n. 13 (citing Marzec v. Marsh, 990 F.2d 393, 395-96 (8th Cir. 1993)).
Wilson has not offered sufficient evidence to meet the essential elements of his failure-to-promote claim. First, Wilson has not identified the other employees who were given the training positions which he sought in 1991 and 1992. At the time Wilson sought the training positions, he was rated "below expectations" in his job performance. (Def. Ex. Q). Thus, he was not qualified for a promotion. There is no evidence that the person who made the evaluation was motivated by racial animus or that the evaluation is otherwise inaccurate. Finally, Wilson has not introduced evidence of the qualifications of any person who received a promotion compared to his qualifications for any of the promotions for which he applied during his eighteen years at Quaker. Thus, the court grants summary judgment to Quaker on Wilson's failure-to-promote claim.
ORDER
For the foregoing reasons, the motion for summary judgment by the defendant Quaker Oats Company is GRANTED. Judgment in favor of the defendant shall be entered accordingly.