Opinion
Case No. 4:02CV3195.
May 21, 2004
MEMORANDUM AND ORDER
This matter is before the Court on the following motions filed by the Defendant, Burlington Northern Santa Fe Railway Company ("Burlington"): for summary judgment (Filing No. 117); and in limine (Filing No. 127). Also before the Court is the motion for summary judgment filed by the Defendants, United Transportation Union and United Transportation Union Local 1975 (collectively "Union") (Filing No. 120). Finally, the Defendants, Burlington and the United Transportation Union, joined in filing a motion in limine regarding the testimony of Helen Montoya, Ph.D. (Filing No. 152).
FACTUAL BACKGROUND
The Court accepts the following as its factual findings for purposes of the instant motions: 1) the statement of uncrontroverted facts agreed upon by the parties in ¶¶ B(1)-(44) of the Order on Final Pretrial Conference ("Pretrial Order"); and 2) ¶¶ 45-65 of the statement of facts agreed upon by Burlington and Union in of the Pretrial Order. (Filing No. 157.)
Following the entry of the Pretrial Order, the following causes of action remain:: 1) the Union's alleged breach of fair duty; 2) sexual harassment resulting in a hostile work environment in violation of Title VII, 42 U.S.C. § 2000e, et seq. ("Title VII"); 3) sex discrimination, in violation of Title VII; and 4) retaliation, in violation of Title VII. Schaaf requests monetary and declaratory relief.
Burlington filed a motion for summary judgment, arguing: 1) the signed release, and settlement agreement in Schaaf v. Homestead Village, et al., 01-CV-2239 (JAR) (D. Kansas), was signed after Schaaf's alleged claims in this case accrued and therefore operates against all claims; 2) Schaaf has failed to state claims of sexual harassment resulting in a hostile work environment, sex discrimination, and retaliation. (Filing No. 117.) The motion was accompanied by a brief (Filing No. 119) and evidence (Filing No. 118).
The Union also filed a motion for summary judgment, arguing that the Union did not breach its duty of fair representation. (Filing No. 120.) The motion was accompanied by a brief (Filing No. 122) and evidence (Filing Nos. 120, 121).
Schaaf argues that the three declarations attached to the Union's motion should be stricken for noncompliance with NELR 7.1(b)(2), which requires that evidence be filed with an index of evidence and be identified and authenticated by affidavit. Schaaf's objection is granted, and the three declarations attached to the Union's motion (Filing No. 120) are stricken. However, the Court finds that the essential information contained therein exists in other evidence before the Court, i.e., Plaintiff's notes (Filing No. 132, Ex. 6).
With respect to both motions for summary judgment, the Court has considered Schaaf's brief (Filing No. 133) and evidence (Filing No 132).
DISCUSSION
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2002). However, 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. v. Catrett, 477 U.S. 317, 327 (1986).
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." Id. at 323 (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.
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'y, 210 F.3d 845, 847 (8th Cir. 2000). Nevertheless, if testimony has been irrefutably contradicted by documentary evidence, or the testimony is otherwise inherently incredible, it need not be credited even for purposes of a motion for summary judgment. Walker v. Peters, 863 F. Supp. 671, 672-73 (N.D. Ill. 1994).
Release and Settlement Agreement
Whether a contract is ambiguous is a question of law. If a contract is ambiguous, the meaning of the contract is a question of fact, and the Court may view extrinsic evidence to determine the contract's meaning. Plambeck v. Union Pacific R. Co., 509 N.W.2d 17, 20 (Neb. 1993). Such evidence might include whether the party in question was represented by an attorney upon signing the contract, whether the party has offered any evidence showing duress, and whether the subsequent claims accrued before the party signed the release. Joe v. First Bank System, Inc., 202 F.3d 1067, 1070 (8th Cir. 2000).
Schaaf signed the release and settlement agreement with Burlington (the "release") on March 21, 2002, to resolve another pending lawsuit against Burlington. When the agreement was signed, Schaaf was represented by an attorney. The agreement provided in pertinent part that Schaaf released:
all claims, demands, or causes of action of any kind, nature, or character whether known or unknown, which she has or may have claim to have against it and them, including, but not limited to . . . illness . . . any incident, or trauma (cumulative or otherwise), mental or emotional distress, or any other claims relating to any employment practices, labor claims, claims under the Americans With Disabilities Act, or any similar state or federal law, or any other claims resulting from or arising from her employment by the Railway Company, which she has or may have or claim to have against it and them.
(Filing No. 118, Ex. 4.)
Before she signed the agreement, Schaaf read and understood the agreement. Under the agreement, as consideration, Schaaf was paid $26,550.23 from Burlington. ( Id.) Schaaf testified that she voluntarily signed the agreement. (Filing No. 118, Ex. 2 (Schaaf Depo.), at 76.) No evidence of duress exists. Schaaf's claims alleged in this lawsuit accrued on February 8, 2002, before she signed the release. Schaaf reported the incident to Burlington on the same day, and she reported it the following day to the Union. She had consulted an attorney specifically with regard to the instant claims before signing the release in the other case. Therefore, the evidence unequivocally shows an intent to release the claims resulting from the February 8, 2002, incident alleged in this case.
Therefore, summary judgment may be granted on the basis of the signed release. Nevertheless, the Court will discuss the other issues raised in the motions.
Title VII; Hostile Work Environment
In this case, to prove a prima facie case of hostile work environment claim based on sexual harassment pursuant to Title VII, 42 U.S.C. § 2000e, et seq., Schaaf must show: 1) she was a member of a protected class; 2) the occurrence of unwelcome sexual harassment; 3) the alleged harassment was based on gender; 4) the harassment affected a term, condition, or privilege of her employment; and 5) Burlington knew or should have known of the harassment and failed to take prompt and effective remedial action. Robinson v. Valmont Indus., 238 F.3d 1045, 1047-48 (8th Cir. 2001). There is no dispute that Schaaf is a member of a protected class. The Defendants argue, however, that Schaaf cannot meet elements (2) through (5) of her prima facie case.
Schaaf has not met the second element, as she was not subject to unwelcome harassment. The words or phrases "fucking bitch," "hog," and "fat ass," used by coworker Cathy Barger in reference to Schaaf in the CAD messages to West, are clearly highly objectionable. Although offensive, the language communicated about Schaaf to coworker Calvin West was not sexual in nature.
Schaaf also cannot meet the third element — harassment on the basis of her gender. The evidence shows that the language used did not relate to Schaaf's gender, but rather were used out of frustration particularly in light of Schaaf's and Barger's history of personality conflict.
Likewise, the fourth element requiring the suffering of harassment that affected a term, condition or privilege of Schaaf's employment is not met. The fourth element includes both objective and subjective components. Moreover, the Eighth Circuit Court of Appeals has advised the following:
The harassment must be "severe or pervasive enough to create an objectively hostile or abusive work environment" and the victim must subjectively believe that her working conditions have been altered. "There is no bright line between sexual harassment and merely unpleasant conduct." Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1997). Accordingly, we view the "totality of the circumstances" in determining whether there is a hostile work environment. Some of the factors we look to include the frequency of the behavior, its severity, whether physical threats are involved, and whether the behavior interferes with plaintiff's performance on the job.Henthorn v. Capitol Communications, Inc., 359 F.3d 1021, 1026 (8th Cir. 2004) (citations omitted).
In Schaaf's case, she was not a victim of frequent harassment, despite the apparent personality conflict between Schaaf and Barger. The only other instance that might rise to the level of a sexually harassing comment was the "change of life" comment stated by Trainmaster Batten to a third party. However, that comment was only made after Schaaf made it known that she was going home with "cramps," Batten was disciplined and counseled, and the comment was not directed to Schaaf. Although unpleasant, the words used on February 8, 2002, alone or in combination with the "change of life" comment, do not show "severe" behavior within the meaning of Title VII. See, e.g., Meriweather v. Caraustar Packaging, Co., 326 F.3d 990, 993-94 (8th Cir. 2003) (stating that being grabbed on the buttocks and enduring a subsequent joke about the grabbing incident was not "severe" behavior, and citing to numerous other highly offensive acts in other cases that were not found to be "severe"). Schaaf endured no physical threats. The conduct only interfered with Schaaf's job because of her own actions, i.e., she knew of the offensive words only by surreptitiously searching out the messages on her coworker's computer. Schaaf then decided that she would only communicate with coworkers through the CAD messaging system, which interfered with her coworkers' ability to perform their jobs. Therefore, Schaaf has not established the fourth element.
In considering the fifth factor, whether Burlington properly remedied any harassment about which it knew or should have known, the Court must consider the following factors: "the temporal proximity between the notice and remedial action, the disciplinary or preventive measures taken, and whether the measures ended the harassment." Id. at 994. In Schaaf's case, an investigation was begun two days after the reported incident. Barger accepted full responsibility for her actions, received a Level S record suspension of thirty days (to be activated upon a second similar instance of inappropriate conduct) and eighteen months probation. Barger was also required to contact an employee assistance program counselor. Barger complied with all disciplinary sanctions. West and Larry Layden were both issued letters of reprimand for inappropriately using the CAD message system on February 8, 2002. Schaaf received no discipline for her actions. Because Barger, West and Layden accepted all responsibility and were disciplined, the investigation was discontinued. Burlington took appropriate and swift action that ended the alleged harassment. Similarly, the Union assisted by representing Schaaf in Burlington's investigation and then also began its own investigation in April 2002. The Union's investigation has been halted by Schaaf's refusal to attend meetings or take other appropriate action.
For these reasons, the Court concludes that Schaaf has failed to meet her prima facie case in presenting her Title VII claim alleging sexual harassment resulting in a hostile work environment.
Title VII; Gender Discrimination
Because Schaaf has not presented evidence of direct evidence of discrimination, her gender discrimination claim is subject to the burden-shifting method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Schaaf must establish a prima facie case of gender discrimination. Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir. 2004). In other words, Schaaf must show: 1) her membership in a protected class; 2) she met Burlington's legitimate employment expectations; 3) she suffered an adverse employment action; and 4) circumstances exist that give rise to an inference of discrimination. Id.
Schaaf cannot meet the third element, as she suffered no adverse employment action. She was not disciplined. Schaaf argues that she suffered adverse action upon being named a "principal" in Burlington's investigation of the February 8, 2002, incident. However, the evidence clearly shows that pursuant to Burlington's policy any individual directly involved in an incident under investigation is named as a "principal." Finally, Schaaf cannot meet the fourth element because she has not shown that any similarly situated males were treated differently.
Title VII; Retaliation
To establish a prima facie case of retaliation, Schaaf must prove the following: 1) she engaged in protected activity; 2) adverse employment action was taken against her; 3) a causal link between the protected activity and adverse employment action. Watson v. O'Neill, 365 F.3d 609, 609 (8th Cir. 2004). If Schaaf succeeds in making this showing, Burlington bears the burden of showing evidence of a legitimate reason for the adverse action. If Burlington successfully meets its burden, the burden returns to Schaaf to show that Burlington's reason was a pretext for intentional discrimination. Cherru v. Ritenour School Dist., 361 F.3d 474, 479 (8th Cir. 2004).
An "adverse employment action" is shown by "`a "tangible change in duties or working conditions that constituted a material employment disadvantage."'" Burchett v. Target Corp., 340 F.3d 510, 518 (8th Cir. 2003) (quoting Moisant v. Air Midwest, Inc., 291 F.3d 1028, 1031 (8th Cir. 2002) (quoting Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997))).
The "protected activity" in question appears to be Schaaf's complaint about the February 8, 2002 incident relating to the CAD messages. Schaaf argues that she was the victim of the following adverse employment action: 1) being named a "principal" in the investigation; 2) being verbally instructed to use all forms of communication with her coworkers; 3) being instructed in writing to use all forms of communication; and 4) being "shunned and ostracized" by her supervisors.
As discussed previously, Schaaf has not endured adverse employment action. She was not disciplined or reprimanded in any way. She remains employed with Burlington, while having been on unpaid sick leave for more than two years.
For the reasons discussed, Schaaf has not established a rima facie case of retaliation.
Duty of Fair Representation
The duty of fair representation arises when a union negotiates, administers, and enforces a collective bargaining agreement. McCormick v. Aircraft Mechanics Fraternal Ass'n, 340 F.3d 642, 645 (8th Cir. 2003). A breach of the duty of "fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Conrad v. International Ass'n of Machinists and Aerospace Workers AFL-CIO, 338 F.3d 908, 912 (8th Cir. 2003) (quoting Vaca v. Sipes, 386 U.S. 171, 190 (1967)).
As indicated in Schaaf's own handwritten notes (Filing No. 113, Ex. 6), the Union promptly began an investigation of the CAD message incident. Schaaf did not wish to follow the advice of General Chairman Cobean, but rather chose to find other representation. Schaaf's chosen representative was Ray Lineweber, and Schaaf was satisfied with his efforts. (Filing No. 121 (Schaaf Depo.), at 212.) The Union also enlisted the assistance of the Human Rights Department. Schaaf's notes describe in detail the Union's efforts her consistent resistance to those efforts. Both persons directly involved in the incident, Schaaf and Barger, are female. The Union did not act arbitrarily, discriminatorily, or in bad faith.
CONCLUSION
For the reasons discussed, summary judgment will be entered in favor of the Defendants, United Transportation Union, United Transportation Union Local 1975 and Burlington Northern Santa Fe Railway Company, and against the Plaintiff, Linda Schaaf.
The motions in limine (Filing Nos. 127, 152) will be denied as moot.
IT IS ORDERED:
1. The motion for summary judgment (Filing No. 117) filed by the Defendant, Burlington Northern Santa Fe Railway Company, is granted;
2. The motion for summary judgment filed by the Defendants, United Transportation Union and United Transportation Union Local 1975 (Filing No. 120) is granted;
3. The motion in limine (Filing No. 127), filed by the Defendant, Burlington Northern Santa Fe Railway Company, is denied as moot;
4. The motion in limine (Filing No. 152) filed by the Defendants, Burlington Northern Santa Fe Railway Company and United Transportation Union, is denied as moot; and
5. Judgment will be entered by separate document for the Defendants and against the Plaintiff.