Opinion
No. 4:03-CV-1855 CAS.
July 7, 2005
MEMORANDUM AND ORDER
This matter is before the Court on defendant's motion for summary judgment and other matters. The motion is fully briefed. The Court will grant the motion for the reasons set forth below.
Chantelle Lockhart, who is African American, filed this action against Meridian Medical Technology ("Meridian"), an assembler of pharmaceutical supplies and equipment, asserting she was falsely accused of eating food on the production line and was terminated for the same reason. Lockhart also asserts she was subjected to a racially hostile work environment. Lockhart brings her claims pursuant to 42 U.S.C. § 1981 and the Missouri Human Rights Act. She seeks equitable relief and reinstatement.
Meridian now moves for summary judgment, which plaintiff opposes. In support, the parties submitted, inter alia, Lockhart's deposition testimony, portions of Lockhart's personnel and training records, affidavits of coworkers, transcripts of grievance meetings, union complaint forms, and excerpts of deposition testimony. The evidence reveals the following.
I. BACKGROUND
Meridian assembles pharmaceutical supplies and equipment. (Goff Dep. at 10). Meridian employees work either of two shifts, from 7 a.m. to 3:30 p.m. and from 3:30 p.m. to Midnight. (See Union Contract, Ex. A, at 36). Plaintiff began working at Meridian on October 2, 1995 as a casual or probationary employee. (Plaintiff Dep. at 6). Probationary status for a new employee serves as a trial basis, after which time the individual may then be hired for regular employment. Probationary employees are not subject to the grievance procedure and may be discharged without further recourse. (Ex. A, at 16). After a period of time as a casual employee, Plaintiff was hired for regular employment as an Assembler on July 7, 1997. (Plaintiff Dep. at 6). Throughout Plaintiff's employment with Meridian, she remained a member of the Union. (Plaintiff Dep. at 7).
Because Meridian assembles pharmaceutical supplies and equipment, it is regulated by the Food and Drug Administration ("FDA"). Meridian follows the FDA's Current Good Manufacturing Practices ("CGMP") as set forth at 21 CFR § 211.28. (Plaintiff Dep. at 173; Thaxton Dep. at 94-95). CGMPs are put in place so that specific levels of cleanliness are maintained and that the sterile materials employees work with are not contaminated in any way. (Plaintiff Dep. at 173). The FDA has the authority to shut the plant down for CGMP violations. (Bright Dep. at 68; Ex. I, at 2). The CGMP specific to personnel hygiene states in pertinent part: "Smoking, eating, drinking, chewing and the storage of food is restricted to certain designated areas separate from production or control areas." (See 12 CFR 211.28, Ex. B). Meridian has adopted and promulgated this personal hygiene CGMP work rule and trains its employees on all CGMP matters. (Thaxton Dep. at 39-40, 86).
Employees are trained on certain CGMP matters at least one time per year. (Thaxton Dep. at 86). Meridian's Human Resources Department keeps a log of which employees have been trained on certain policies, and sends memoranda to supervisors indicating which employees need training on particular policies. (Thaxton Dep. at 87).
Plaintiff was aware when she began her employment with Meridian as a casual employee in 1995 that eating on the assembly line is prohibited. (Plaintiff Dep. at 9). Plaintiff was trained on the particular CGMP for personnel hygiene on December 19, 2001 and July 24, 2002. (See Ex. C). The retraining on personnel hygiene Plaintiff received on July 24, 2002, was as a result of an incident at Meridian where three women were found to be in a production area violating CGMP because food was present in the area. (Graser Dep. at 91).
Plaintiff was interviewed for employment by Jack Graser, Meridian's Director of Human Resources, who made the decision to hire Plaintiff as a regular employee on July 3, 1997. (Plaintiff Dep. At 139, 144-145, 184). Plaintiff was a member of Teamsters Local Union No. 688 while employed by Defendant. (Plaintiff Dep. at 7).
On February 14, 2000, Graser made the decision to promote Plaintiff, based on her seniority and her Union job bid, to the position of SPM (Sterile Product Manufacturing) Technician and approved a salary increase. (Plaintiff Dep. at 146, 189; Ex. A at 8-9). On April 7, 2000, Plaintiff's direct supervisor, Tom Kehm completed an Hourly Employee Performance Appraisal for Plaintiff, a 60 day review, to assess Plaintiff's employment after her promotion from assembler to SPM Technician. (See Performance Appraisal, Ex. F). Plaintiff signed the Appraisal on April 10, 2000, indicating the report was shown to her and discussed. Pursuant to the Performance Appraisal, Kehm submitted an email to Graser detailing his belief that Plaintiff should return to her previous classification as an assembler because he believed she did not possess the necessary skills to function in a suitable capacity for the SPM Technician position (Ex. F). Kehm specified five examples of Plaintiff's deficiencies for which she had been previously trained: (1) On March 3, 2000, verified wrong batch record; (2) on March 6, 2000, poured 365 silicone emulsion in general Clean Prep area, noncompliant with procedure; (3)on March 16, 2000, over-pressurized filter during rubber washing; (4) on March 26, March 23 and April 7, 2000, washed rubber excessively slow; (5) on April 6, 2000, worked on shields — failed to keep hopper full enough consistently, forced machine to repeatedly turn off (Ex. F).
On April 10, 2000, Graser decided to demote Plaintiff from the SPM Technician position back to the assembler position because she was unable to do the job according to her supervisor, Tom Kehm. Graser accordingly approved a salary decrease. (Plaintiff Dep. at 149). Plaintiff did not grieve this demotion with the Union, nor did she allege the demotion was racially motivated. (Ex. F). On November 2, 2001, Graser decided to promote Plaintiff to the position of Senior Assembler, and approved a salary increase for Plaintiff. (Plaintiff Dep. at 147).
The position of Senior Assembler requires the employee to assume leadership and training responsibilities and to assist management in controlling departmental operations to include safety, CGMP, and Departmental Procedure Batch Record Compliance. (See Senior Assembler Job Description, Ex. U). This promotion was based upon Plaintiff's seniority and her job bid with the Union, not work performance (Ex. A, at 8-9). Thereafter, Graser approved a salary increase for Plaintiff. (Plaintiff Dep. at 191).
In March 2002, Plaintiff danced on top of a chair and was written up for substandard work. (Plaintiff Dep. at 55-56). On May 15, 2002, Graser made the decision to demote Plaintiff from the Senior Assembler position pursuant to an incident wherein Plaintiff violated a Meridian policy by using a red ink pen in a label creation book. (Plaintiff Dep. at 149). Graser demoted Plaintiff to her previous Assembler position and decreased her salary. (Plaintiff Dep. at 148).
On June 10, 2002, Plaintiff filed a grievance alleging she was unjustly disqualified from the position of Senior Assembler. (Plaintiff Dep. at 148). On June 13, 2002, a Step 3 Union Grievance meeting was held on her behalf. (See grievance meeting transcript, Ex. G). At the meeting, Meridian and the Union discussed the "red pen" incident as well as Plaintiff's earlier behavior in March wherein Plaintiff was seen dancing while standing on top of a chair. (Ex. G). After discussion, the Union admitted Plaintiff made a mistake; however, the Union stated Meridian over-reacted and requested Plaintiff's disqualification be reduced to a written warning and her position of Senior Assembler be reinstated without back pay. (Ex. G). Graser agreed with the Union's proposal and decided to reinstate Plaintiff to Senior Assembler without back pay. (Ex. G).
In the Company's contract with the Union, Article 8 explains the grievance procedure (Ex. A at 9). Should difference arise between Meridian and the Union or any union employees, said differences are to be settled according to the grievance procedure (Ex. A at 9).
In Step 1, the employee takes the matter up with the department supervisor within five working days of knowledge of the occurrence of the incident. If the matter is not settled satisfactorily by the supervisor within one working day, the employee files a written grievance with their Shop Steward (Ex. A at 9). Next, the Shop Steward submits the grievance to the Department Manager or some other person designated by Meridian with authority to act within five working days after the conclusion of Step 1, and they will offer a decision within five working days after receipt of same (Ex. A at 9).
The Chief Steward will submit the grievance to the Senior Manager of Human Resources (Jack Graser) or his designee with authority to act within five working days after the conclusion of Step 2, and they will offer a decision within five working days after receipt of same (Ex. A at 9). If the grievance cannot be settled by the above means, it is submitted to a Two-Man Adjustment Board made up of one representative from the Union and one from Meridian (Ex. A at 10). The Board will make a determination within three working days from the date they hear the grievance (Ex. A at 10).
If no agreement can be reached at the Two-Man Adjustment Board, the Union has the right to request binding arbitration of the dispute (Ex. A p. 10). In that instance, both parties are bound by the decision of an impartial arbitrator (Ex. A at 10). However, a binding settlement may be reached at any step of the grievance procedure (Ex. A at 10).
On June 17, 2002, Steve Natsch, Meridian's then Director of Operations, conducted a walk through of certain production areas. (Graser Dep. at 91-92). During his walk through, Natsch found a quarantine pan containing a bottle of medication and food items. (See Graser Memo to Natsch, Ex. H). Three employees, two of which were Assemblers and one of which was a Senior Assembler, admitted that the items belonged to them. (Ex. H).
Pat Dowdy, a Caucasian female and the Senior Assembler in charge, admitted she brought the bottle of medication into the area after a coworker requested the medication. (Ex. H). Donna Stratton, a Caucasian female, admitted that some of the food items were hers, but denied that she brought the items into the area. (Ex. H). Brenda Worley, a Caucasian female, admitted bringing food items into the area. (Ex. H). Following an investigation, the three women were suspended without pay for thirty days. (Ex. H). Dowdy's Senior Assembler classification was also removed (Ex. H).
The women were not terminated because Meridian could not prove how some of the food items materialized in the production area; (Graser Dep. at 94-95); the women came forward and were honest about the incident; (See transcription of Dowdy, Worley and Statton's grievance meetings, Ex. I); and the women had no prior discipline for violating CGMP. (Ex. I).
The three women filed grievances after their imposed discipline (See grievance complaint forms, Ex. J). The grievance meetings on behalf of the three women was held July 3, 2002, after which the Union stated the discipline was too harsh and it would take the issue to the next step (i.e. a Two-Man Board) (Ex. I). As settlement of the grievances, Graser agreed to return the employees to work on July 8, 2002 and remove Dowdy's "senior" status for six months. (Ex. J). On July 24, 2002, all employees, including Plaintiff, were retrained on the personal hygiene CGMP as a result of the incident with Dowdy, Stratton and Worley. (Ex. C; Graser Dep. at 75-76; Plaintiff Dep. at 9-10).
William ("Bill") Bright is Meridian's Production Supervisor. (Bright Dep. at 16). Bright's job duties are to maintain the production environments ensuring that proper CGMP requirements are performed and carried out. He also schedules jobs to be run at specific times and to ensure Meridian has enough manpower to perform a task. (Bright Dep. at 16-17).
When Bright identifies infractions of CGMP, part of his job is to write those facts down and submit them to Jack Graser for investigation. (Bright Dep. at 20). Bright witnessed Plaintiff violating CGMP by eating on the production line on two occasions prior to Plaintiff's termination. (Bright Dep. at 22). The first occasion occurred sometime in 2002 prior to plaintiff's termination. (Bright Dep. at 23). On that occasion, Bright verbally warned Plaintiff to help her understand the importance of maintaining CGMP guidelines, but did not write up the incident (Bright Dep. at 24-25). On the second occasion, the same scenario ensued, i.e., Bright verbally warned Plaintiff but did not write up the incident. (Bright Dep. at 25).
On another occasion on July 22, 2002, approximately one month after Plaintiff was reinstated as a Senior Assembler, Bright witnessed Plaintiff with a mouthful of food in her mouth while getting ready to go into a production center. (Bright Dep. at 25; See email from Bright, Ex. K). Bright documented this incident by sending an email to his senior supervisors, Sandy Nenninger and John Thaxton. (Ex. K).
That same day, shortly after Dowdy, Stratton and Worley were disciplined for CGMP violations, all the "seniors" and supervisors attended a meeting held at the beginning of the shift to stress the importance of proper GMP guidelines. (Bright Dep. at 40-41; Ex. K, J). At this meeting, the Company, in stressing the importance of proper CGMP, drew a proverbial "line in the sand" strictly prohibiting future CGMP violations. (Bright Dep. at 40-41; Merrit Dep. at 38-40; Goff Dep. at 17). Shortly after the meeting, the Company announced to its employees that future violations of CGMP would not be tolerated. (Bright Dep. 40-41; Merritt Dep. at 38-40; Goff Dep. at 17).
During the shift on July 22, 2002, Plaintiff came back late from the first break and walked toward the production center, down a hallway, in Bright's direction (Bright Dep. at 25; Ex. K). Bright stopped Plaintiff and asked her why she was coming back late from break. (Bright Dep. at 25). Bright testified at his deposition that Plaintiff had so much food in her mouth she could not answer his question. (Bright Dep. at 25). Bright then led Plaintiff away from the production door. He warned Plaintiff again that her behavior was unacceptable and reminded her that they had just finished a meeting stressing CGMP. (Bright Dep. at 26-27; Ex. K). Bright also reminded her that they had discussed this infraction before, re-explained to Plaintiff the seriousness of maintaining CGMP guidelines, and informed her that three people were recently laid off for such "stunts". (Bright Dep. at 26-27; Ex. K).
On August 26, 2002, Missy Merritt, an employee, reported to John Mercer, Manufacturing Supervisor, that she observed Plaintiff eating on the production/assembly line earlier that day. (Merritt Dep. at 22). When an employee reports another employee allegedly violating a rule, it is customary for Mercer to report that information to a supervisor. (Thaxton Dep. at 44). John Thaxton, then Manager of Packing and Inspection, was the supervisor next in the chain of command. (Thaxton Dep. at 44).
On August 26, 2002, Mercer informed Thaxton of Merritt's allegations against Plaintiff. (Thaxton Dep. At 44; Bright Dep. at 32). Thaxton then spoke to Merritt who told Thaxton the same information she related to Mercer. (Thaxton at 44-45; Merritt Dep. at 23). Thaxton instructed Merritt to write down what she saw. (Merritt Dep. at 23). Thaxton then pulled the production records from August 26 to determine who was working on Plaintiff's production line that day. (Thaxton Dep. At 46). On August 27, 2002, Thaxton planned to suspend Plaintiff but Plaintiff did not come to work (Thaxton Dep. at 47).
After speaking to Merritt and pulling the employee records indicating who would have been working on the line with Plaintiff during the incident in question, Thaxton forwarded Graser the records and his receipt of a report that Plaintiff was eating on the production line (Thaxton Dep. at 46).
On August 28, 2002, Thaxton summoned Plaintiff and Dee Goff ("Goff"), a Shop Steward, into his office and informed Plaintiff she was being suspended pending an investigation into the allegations that she was eating while on the production line. (Thaxton Dep. at 55-56). (Thaxton Dep. at 55). Plaintiff testified at her deposition that when she was leaving the room after Thaxton suspended her, Thaxton stated in a "low key" voice "I got your black ass now." (Pl. Dep. at 31.) Thaxton denied making the comment. (Thaxton Dep. at 60.) Plaintiff also testified that on another unspecified occasion, Thaxton told her she would make a "good belly warmer," which she found to be racially offensive. (Pl. Dep. at 39-41.)
Jack Graser, Meridian's Director of Human Resources, who had the authority to fire Plaintiff, conducted an investigation. (Thaxton Dep. at 48, 55). In his investigation, Graser first selected Goff as shop steward to be present during the Company's interviews with employees who may have witnessed Plaintiff's misconduct. (Graser Dep. at 26-27). Graser chose Goff because she was on second shift and would have been the most senior steward with respect to her date of hire. (Graser Dep. at 27). With Goff present as shop steward, Graser then met individually with the employees on the list who were identified as working on Plaintiff's assembly line on the day in question. (Graser Dep. at 29). Graser also met with anyone recommended by those he interviewed. (Graser Dep. at 59). Ultimately, as a result of the investigation, eight employees wrote statements attesting to what they witnessed. (See Exs. L through S).
Missy Merritt, a Caucasian female, wrote and signed a statement stating "I witnessed [Plaintiff] eating on the line" and "Shirley Bell also saw her eating on the line." (Ex. L). Shirley Bell, a Caucasian female, wrote and signed a statement stating, "I Shirley Bell seen [Plaintiff] with her mouth full of substance on Monday August 26, 2002." Shirley also stated Plaintiff told the probationary employees that if you drop a pan of assembled drug on the floor you do not have to inspect it before you pack it because that it was final inspection is for and if they don't find it then "it's on them." Shirely also stated she could not concentrate on her job because Plaintiff was singing on the line and was very loud. (Ex. M).
Richard Doerr, a Caucasian male, wrote and signed a statement stating "On Monday August 26, while performing my job . . . I observed on 2 different occasions that [Plaintiff] had a mouthful of some kind of food and was chewing openly on the assembly line." (Ex. N). Lacey Stewart, a Caucasian female, wrote and signed a statement stating "On several occasions on Monday the 26th of August 2002, I observed [Plaintiff] eating food on the line in Center 3." (Ex. O).
Manuela Fajardo, a Hispanic female, wrote and signed a statement stating "On Thursday August 22, 2002, I was working on the line with [Plaintiff]. She was sitting next to me and I smelt candy (Baby Ruth) and I asked her `what do you have in your mouth?' She looked at me dumbfounded, ignored the question, turned her head and left the center towards the dock." (Ex. P). Liberty Fanning, an African-American female, wrote and signed a statement stating "I Liberty Fanning witnessed [Plaintiff] chewing something on the line 2 or 3 times on the 22nd of August. I'm not sure what she was eating but she had some crumbs or something like that on her face." (Ex. Q).
Valnita Yancy, an African-American female, wrote and signed a statement stating "I am a witness to seeing [Plaintiff] eating on the line. I can not be specific on the dates or times. However, I did see the act occur during the shift and on the line."(Ex. R). Joseph Derleth, an African-American male, wrote and signed a statement stating "When sitting on line pulling caps I look up and saw [Plaintiff] chewing on something. Then somebody said something about it. She got up and went out of the room. About 5 minutes later she returned." (Ex. S).
Graser reviewed the employees' statements with them during his interviews. (Graser Dep. at 38). Graser asked all of the employees interviewed the same three or four questions, including whether they had been prompted to speak against Plaintiff. All of the employees interviewed indicated they had not been prompted to speak against Plaintiff, or that nothing was afoot to "get rid of her." (Graser Dep. at 30, 38-39).
As part of the investigation, Graser met with Plaintiff at Meridian to speak with him about the allegations and determine her side of the story. (Graser Dep. at 34). When Plaintiff arrived at Meridian, she provided Graser with a written statement denying the allegations (Graser Dep. at 34-35). When Graser asked Plaintiff why someone would accuse her of something she alleges she did not do, Plaintiff responded that the other employees were jealous of her new look. (See Ex. T). After speaking with Plaintiff and other employees, Graser analyzed the data. (Graser Dep. at 68). Because Plaintiff alleged during her suspension that she felt the decision to suspend her was racist in nature, Graser paid particular attention to who made the allegation, i.e., the witnesses' credibility and race, and the strength of the witnesses' statements. (Graser Dep. at 70).
After giving his findings to Steve Natsch, Director of Operations Natsch, Graser and Natsch discussed the situation. (Graser Dep. at 31). The two men discussed their concerns regarding Plaintiff's disregard for CGMP including her failed compliance, the fact that she was twice trained on the matter, and that she was verbally warned about the policy and her non-compliance days prior to her final training. (Graser Dep. at 75). Graser and Natsch also discussed other incidents of CGMP violation, including the women found in a production area violating CGMP, which led to their suspensions and subsequent grievances and disciplinary adjustment of suspension time. They evaluated the similarities and dissimilarities of those cases. (Graser Dep. at 75).
Graser recommended that Plaintiff be terminated. Natsch approved the recommendation. (Graser Dep. at 32). Graser and Natsch were the only people involved in the decision to terminate Plaintiff. (Graser Dep. at 74). Graser informed Plaintiff she was terminated. (Graser Dep. at 32). Plaintiff grieved her termination with the Union. (Plaintiff Dep. at 68). As a result, a grievance meeting was held whereby employees were brought into the meeting to explain what they witnessed with regard to the allegations against Plaintiff and to answer questions from Plaintiff and the Union. (Graser Dep. at 113-114). The Union ultimately accepted Meridian's decision to terminate Plaintiff and declined to pursue the matter to arbitration. (Plaintiff Dep. at 93).
II. DISCUSSION
The standards applicable to summary judgment motions are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000);Allen v. Entergy Corp., 181 F.3d 902, 904 (8th Cir.), cert. denied, 528 U.S. 1063 (1999). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Herring, 207 F.3d at 1029 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004). "Self-serving, conclusory statements without support are not sufficient to defeat summary judgment." Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993).
A. Disparate Treatment Claim
The elements of a Title VII disparate treatment case and a § 1981 claim are identical. Jin Ku Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997). The inquiry under a disparate treatment theory is simply whether an employer "treats some people less favorably than others because of their race, color, religion, sex, or national origin." International Bhd. of Teamsters v. United States, 431 U.S. 324, 355 n. 15 (1977). To establish a prima facie case of disparate treatment based on race discrimination, a Lockhart must prove that: (1) she is a member of a protected class; (2) she was qualified to perform her duties; (3) she 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. Veneman, 289 F.3d 517, 521-22 (8th Cir. 2002).
Lockhart has the burden of showing by "specific, tangible evidence" that white employees who were allegedly treated more favorably than her were similarly situated to him "in all relevant respects." See Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000); Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1109 n. 4 (8th Cir. 1998). The test for whether employees are similarly situated is a "rigorous" one. Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994) (employees are similarly situated in employment discrimination context if they "have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances").
Meridian argues, inter alia, that Lockhart cannot establish a prima facie case of race discrimination because she cannot establish that similarly situated white employees were treated differently. Meridian specifically notes that plaintiff (1) was caught eating on the production line whereas other women were not; (2) was dishonest about violating CGMP whereas the other women were not; and (3) violated the rule after Meridian announced future violations would not be tolerated. Meridian also contends the investigation of the white women was unable to trace the violation of the policy directly to the women. Plaintiff counters that Meridian offers no explanation as to how it is more egregious to be eating in a production area compared to possessing food in a production area, since both practices are prohibited under the CGMP policy. Plaintiff also notes that both John Thaxton and Jack Graser were involved in suspending the three white women and in terminating plaintiff.
The Court concludes Lockhart did not establish her prima face case of race discrimination because she did not carry the burden she assumed of presenting evidence that Meridian treated similarly situated employees more favorably. See Gilmore v. ATT, 319 F.3d 1042, 1046 (8th Cir.), cert. denied, 124 S. Ct. 405 (2003). In discipline cases, the status and situation of the two employees, as well as the nature and circumstances of the offense, must be similar. Courts may consider whether the individual compared to is of the same rank and seniority as the plaintiff. See e.g., Watts v. City of Norman, 270 f.3d 634 (10th Cir. 2001) (holding that as fire captain, the plaintiff served in a supervisory role over th firefighter and that a supervisor and his subordinate are not similarly situated for purposes of proving pretext). Even if two employees have similar positions, they may be found not to be similarly situated if they have different performance or disciplinary records. See Scott v. Suncoast Beverage Sales Ltd., 295 F.3d 1223 (11th Cir. 2002). The mere fact that employees have different job titles, however, will not preclude them from being "similarly situated" as long as they are subject to the same employment rules and policies.Lathem v. Department of Children and Youth, 172 F.3d 786 (11th Cir. 1999) If the offense is identical, if one employee was aware her actions were a violation, while the other was unaware he was breaking the rules, they may not be considered similarly situated. Ward v. Procter and Gamble, 111 F.3d 558 (8th Cir. 1997). Finally, when the severity of the punishment is at issue, the fact that the plaintiff admitted to wrongdoing while another employee accused of a similar offense denied the wrongdoing can prevent the plaintiff from being considered situated to the other employee.Malone v. Eaton Corp., 80 FEP 957 (8th Cir. 1999) (male supervisor who lied about relationship after previously disclosing it to three other supervisors not similarly situated to female supervisor who denied rumors and anonymous reports about having an affair).
The evidence demonstrates Plaintiff is not similarly situated to the three women who were suspended for being in an area violating CGMP. The evidence shows Plaintiff, unlike the other women, was demoted on more than one occasion because she was not performing her job and disciplinary actions were taken against her. The record also demonstrates while the plaintiff denied the allegations, the three white women came forward and admitted the food found in the production area was theirs. Unlike plaintiff, it could not be proven that the three women actually brought the food found into the production area. In other words, while the three women admitted wrongdoing as to the ownership of the food, Meridian could not determine how the food was brought into the production area in the first place.
Moreover, Plaintiff had previously been personally warned by Bright not to eat food in a production center whereas Plaintiff presented no evidence that the other women had received prior personal warnings. Plaintiff was in fact counseled less than two months prior to her termination for attempting to enter a production area with a mouth full of food. Plaintiff, unlike the other three women, violated the policy after receiving training that followed the incident with the white women and at which time a zero tolerance policy was put in place.
In light of the record and the case law, the Court concludes Plaintiff failed to offer any evidence that other employees, who were not in the protected class, were similarly situated. Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000) (to show that other employees were similarly situated, plaintiff was required to point to individuals who have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.)
Finally, Plaintiff alleges that John Thaxton, the supervisor who suspended plaintiff for eating on the line, made a race related comment to Plaintiff and was involved in her termination, arguing these allegations raise an inference of discrimination. The "cat's paw" rule provides that an employer cannot shield itself from liability for an unlawful employment decision by using a purportedly independent person or committee as the decision maker, when the decision maker merely serves as a conduit or rubber stamp by which another achieves his or her unlawful decision. Dedmon v. Staley, 315 F.3d 948, 949 n. 2 (8th Cir. 2003).
Here the record shows no evidence that Graser deferred to Thaxton's judgment in making his opinion, no evidence that Thaxton suggested what the decision should be, and no evidence Graser knew about Thaxton's purported racial comments until after she was terminated. Plaintiff has failed to provide any evidence of a discriminatory intent on the part of any decision maker, which is fatal to a "cat's paw" argument. In addition, defendant has presented evidence that Graser conducted an independent investigation and therefore did not serve merely as a conduit for the desires of another. See Lacks v. Ferguson Reorg. Sch. Dist., 147 F.3d 718, 725 (8th Cir. 1998) ("cat's paw" theory must fail where the decision maker made an independent determination as to whether the plaintiff should be terminated), cert. denied, 526 U.S. 1012 (1999).
B. Hostile Work Environment Claim
42 U.S.C. § 1981(a) covers purely private acts of discrimination in the making and enforcement of contracts.Griffin v. Pinkerton's, Inc., 173 F.3d 661, 664 (8th Cir. 1999). "Since the enactment of the 1991 Civil Rights Act, this provision has provided a basis for suits against employers for racial harassment on the job." Id. "In analyzing intentional discrimination claims brought under § 1981, this Court applies the same standards as we would apply to similar Title VII claims.Ross v. Kansas City Power Light Co., 293 F.3d 1041, 1050 (8th Cir. 2002). Thus, to prevail on her hostile work environment claim [plaintiff] must show that she was a member of a protected group, that she was subjected to unwelcome harassment, that the harassment was because of her membership in the group, that the harassment affected a term, condition, or privilege of her employment, and that [defendant] knew or should have known about the harassment but failed to take prompt and effective remedial action. See Diaz v. Swift-Eckrich, Inc., 318 F.3d 796, 800 (8th Cir. 2003)." Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906 (8th Cir. 2003). "[A] claim of racial harassment in the workplace focuses on the pervasiveness of the racially discriminatory conduct and also the employer's possible knowledge of that conduct and failure to take remedial action." Tart v. Hill Behan Lumber Co., 31 F.3d 668, 672 (8th Cir. 1994).
The Eighth Circuit has described the parameters of conduct which violates Title VII, stating: "Title VII has been interpreted to provide a cause of action for discrimination "[w]hen the workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.2d 349, 354 (8th Cir. 1997). "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment . . . is beyond Title VII's purview." Harris, 510 U.S. at 21.
Lockhart testified at her deposition that the only Meridian employee to allegedly make any comment to her with respect to race was John Thaxton. Lockhart testified that during her seven year employment with Meridian, Thaxton referred to her as a good "belly warmer" on one unspecified occasion prior to her termination, which she perceived as racially derogatory, and that following her suspension on August 28, 2002, Thaxton told her "I've got your black ass now." Lockhart testified that his comments forced her to work harder than her coworkers because she felt as though she could not just be "good" anymore, but instead she had to be great or face losing her job.
The Eighth Circuit has consistently held a change in non-tangible working conditions, no matter how unpleasant, fails to constitute a `material employment disadvantage' necessary to establish an adverse employment actionable under either Title VII or § 1983. See e.g. Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692-93 (8th Cir. 1997) ("hostility and personal animus" from supervisors was insufficient to be adverse employment action.); Ledergerber, 122 F.3d at 1144 ("loss of status and prestige with the reassignment" was insufficient);Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (forced move from Omaha, Nebraska, to Denison, Iowa, was insufficient)." Jones v. Fitzgerald, 285 F.3d 705 (8th Cir. 2002). Thus, this Court concludes that the fact that Lockhart felt she may have had to work harder does not constitute an adverse employment action.
Because Lockhart did not establish an adverse employment action, and because of infrequent and isolated nature of the two items of evidence — two comments in seven years — the Court concludes as a matter of law that plaintiff cannot show that she labored in a work environment rendered abusive by race-based harassment. See also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (conduct complained of was not "severe or pervasive enough to create an objectively hostile or abusive work environment.") The Court will therefore grant summary judgment on the Lockhart's hostile work environment claims under § 1981.
C. Indispensable Party
Meridian next argues the case should be dismissed for failure to join an indispensable party, the collective bargaining representative of Meridian's employees, Teamsters Local Union No. 688. Lockhart argues the Union is an indispensable party in this action because the specific relief Lockhart seeks, reinstatement, affects the seniority rights of Meridian's other employees covered by a collective bargaining agreement with the Union.
Rule 19(b) sets forth the factors that should be considered to determine if a necessary party that cannot be joined is indispensable. Rule 19(b) states:
(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the actions should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties, second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided: third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for joinder.
(emphasis added)
Meridian has not alleged that the Union could not be joined in the suit. Therefore, under a plain reading of the rule, it cannot be an indispensable party. The Court will construe Meridian's argument as a motion to dismiss for failure to join an indispensable party pursuant to Federal Rule 12(b)(7), and deny the motion.
D. Plaintiff's Motion for Sanctions
Finally, plaintiff moves for sanctions against Meridian, alleging Meridian failed to produce Graser's investigation notes that pertain to Plaintiff's employment and her termination from Meridian until well after the close of discovery. Plaintiff complains this is the first time the notes have surfaced despite plaintiff's specific requests for any investigation notes in her document requests. Plaintiff contends the newly disclosed investigation notes unduly prejudice plaintiff because she did not have the opportunity to question Graser about the document and did not learn the identity of certain fact witnesses that have now been disclosed.
The Court will deny plaintiff's motion as moot in light of the fact that the Court determined that Plaintiff failed to establish the fourth element of her prima facie case of disparate treatment, that similarly situated employees, who are not members of the protected group, were treated differently. The fact witnesses Plaintiff refers to do not concern the Court's analysis on this issue. The Court also notes Plaintiff presumably knew the existence of these potential fact witnesses who were her coworkers.
III. CONCLUSION
For all of the foregoing reasons, the Court will grant defendant's motion for summary judgment.
Accordingly,IT IS HEREBY ORDERED that defendant's motion for summary judgment is GRANTED. (Doc. 55.)
IT IS HEREBY ORDERED that plaintiff's motion for sanctions is DENIED as moot. (Doc. 69.)
IT IS HEREBY ORDERED that defendant's motion for leave to file a sur reply in opposition to plaintiff's motion for sanctions is DENIED. (Doc. 73.)