Opinion
7:99CV5021
February 28, 2001
ORDER AND JUDGMENT
I. Introduction
Before me are 1) the motion (Filing No. 11) to dismiss made pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and (6) filed by the defendant United Transportation Union (Union); 2) the motion (Filing No. 26) filed by the defendant Burlington Northern and Santa Fe Railway Company (BNSF) to dismiss the first and third causes of action in the plaintiff's complaint; 3) the first motion (Filing No. 33) for summary judgment filed by the defendant BNSF; 4) the second motion (Filing No. 39) for summary judgment filed by the defendant BNSF; 5) the motion (Filing No. 41) for summary judgment filed by the defendant Union; and 6) the motion (Filing No. 54) in limine filed by BNSF. The parties submitted supporting and opposing briefs, and defendants filed indexes of evidence (Filing Nos. 26, 34, 40, and 43) supporting the second through fifth motions. The Union also filed a statement (Filing No. 42) of material facts in support of its motion for summary judgment.
A hearing on this motion was held on August 16, 2000.
Under NELR 56(a), the statement of material facts is properly part of the movant's brief rather than a separate filing.
I have reviewed the record, the parties' briefs and indexes of evidence, and the applicable law, and I find that 1) the Union's motions to dismiss and for summary judgment should be granted; 2) BNSF's motion to dismiss the plaintiff's first and third causes of action is granted; 3) BNSF's motion (Filing No. 39) for summary judgment is granted; and 4) BNSF's motion (Filing No. 33) for summary judgment and its motion (Filing No. 54) in limine are denied as moot.
Background
Allegations in the Complaint. For purposes of the motions to dismiss, I here review the allegations found in the complaint. The plaintiff, Debra Weimer, was a BNSF employee and a Union member from August 14, 1994, through January 8, 1997. In mid-1996, she returned to work after a work-relate injury with a restriction not to lift more than twenty pounds; she began training to become an engineer at this time. Filing No. 1, Complaint at 2, ¶ 8, 10. She claims that because of the restriction, she was told (by whom is not mentioned) to apply for engineer training and if she "did not qualify as Engineer other avenues would be pursued, including return to [her] prior position." Id., ¶ 9.
She states that during training, she was "subject to sexual harassment," but she does not allege who subjected her to this harassment or of what conduct the alleged harassment consisted. Id., ¶ 11. She does allege, however, that she complained about the sexual harassment to the "individual doing the training, the individual in charge of the training program and to the human resources department." Id., ¶ 12. The complaint does not specify who these people were, whether they were Union members, what actions, if any, were taken after her complaint, or what results were achieved.
BNSF terminated the plaintiff in January 1997 after she twice failed the simulator test, a required part of the engineer training. Id., ¶ 15. She alleges that during the test she was "subjected to loud conditions and when Plaintiff asked to move the request was denied," but that a male who asked to move during the test was allowed to move to a different machine. Id., ¶¶ 18, 19. She also alleges that males who have failed the test were given additional time and training or were returned to their previous positions. Id., ¶ 20. The Union refused to represent her in a grievance over the training, testing, and termination, she alleges, because it claimed untruthfully that it "had never appealed the type of termination the Plaintiff was complaining of." Id. at 3, ¶¶ 21, 22.
The plaintiff alleges that she received a right-to-sue letter from the NEOC. Id. at 1, ¶ 3. She does not state what the basis of the claim against the defendants had been or when she received the letter.
The plaintiff's first cause of action is under 42 U.S.C. § 2000e et seq., 29 U.S.C. § 12101 et seq., and the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. §§ 48-111 et seq., and Neb. Rev. Stat. § 20-148. She appears to claim that in retaliation for the complaints she made about "unlawful practices" and "the harassment," she was "treated adversely including her training being manipulated and being fired." Id. at 3, ¶ 24. The Union's refusal to grieve her training or termination "was motivated by [the plaintiff's] opposition to unlawful employment practices." Id. at ¶ 25.
The plaintiff's second cause of action is for sexual discrimination pursuant to 42 U.S.C. § 2000e et seq. and Neb. Rev. Stat. §§ 48-1101 et seq. and 20-148. She alleges that BNSF failed "to make training opportunities available to her which were made available to male employees, and by terminating her when similarly situated male employees were not so terminated." Id. at ¶ 29. The Union's refusal to griev her training or termination was allegedly "motivated by [the plaintiff's] gender." Id. at ¶ 30.
The plaintiff's third cause of action is under the ADA. She states that she is "a qualified individual with a disability . . . because she has an impairment which affects the major life activity of working, a record of an impairment or is regarded as having an impairment." Id. at 4, ¶ 34. She does not state, however, what this impairment is. She also claims that she was treated differently than unimpaired individuals, but she does not state how. Id., ¶ 35. Further, she does not allege whether she brings the ADA claim against both defendants or only one. She alleges in this cause of action only that "Defendant's actions were the proximate cause" of her damages. Id., 636 (emphasis added).
As damages, the plaintiff seeks back pay, front pay, reimbursement for medical and counseling bills, general compensatory damages (for "great emotional distress, humiliation, mental anguish, and damage to her reputation," Id. at 3, ¶¶ 27, 33), and punitive damages.
The plaintiff filed the complaint on October 19, 1999.
Additional Background. For purposes of the motions for summary judgment, the following additional background is relevant.
Under a 1985 amendment to a national collective bargaining agreement with the railroads, train service employees such as the plaintiff are the source of engineer trainees. Filing No. 45, Dec. of M. Rachetts at 1, ¶ 4 (hereafter, Rachetts Dec.). BNSF provides a training program for potential train engineers which includes classroom time, training, and simulator experience. Successful trainees must pass both a written test and a simulator test; the latter may be taken twice. Candidates to the program must acknowledge in writing that if they fail the program, their employment with BNSF will be automatically terminated without appeal. Id. at 2, ¶ 5. Since 1996, eighteen employees have been automatically dismissed for failing the program. Seventeen were male. Filing No. 44, Dep. of D. Weimer, Dep. Ex. 52. The single female is the plaintiff.
The plaintiff entered the program in May 1996 at BNSF's direction when she finished light duty after a shoulder injury. Id., Dep. Ex. 7. She read and signed the acknowledgment that failure would result in dismissal. Id., Dep. Ex. 8. Classes began in July 1996. The plaintiff admitted that all employees in her training group received the same training regardless of their gender. Id. at 164:3-165:3. The plaintiff failed the first simulator exam in November 1996. Even though the plaintiff was allowed to do two pretest runs, she also failed the second simulator exam in January 1997. Id. at 48:22-25; Dep. Exs. 9-12. BNSF dismissed the plaintiff on January 8, 1997, as required by the collective bargaining agreement.
Following her second failure, the plaintiff contacted the local chairperson for the Union, Merry Rachetts, to complain about the circumstances of her failure and about BNSF's failure to immediately produce her records. Id. at 56:22-57:2, 58:1-62:14; Rachetts Dec. at 3, ¶ 13. Rachetts agreed to investigate the matter. Rachetts Dec. at 3-4, ¶¶ 14-15. Based on her investigation, which uncovered versions of events that differed from the plaintiff's, Rachetts concluded that in the plaintiff's situation the collective bargaining agreement had not been violated. Consequently, Rachetts informed the plaintiff that she had no grievance. Id., ¶¶ 21-22, 25.
The plaintiff's NEOC/EEOC charges filed in September 1997 alleged only that BNSF discriminate against her on the basis of sex by giving men more favorable testing conditions and that the Union discriminated against her when it refused to represent her in a grievance against BNSF in connection with the testing and termination. She describes no incidents of sexual harassment and mentions no disability. Filing No. 44, Dep. of D. Weimer, 192:7-194:4; Dep. Exs. 31, 33.
The text of the particulars of the plaintiff's NEOC complaint against BNSF is as follows:
I. I am a female. I was employed from 8/14/94 to 1/8/97 in the position of train service in Alliance, NE. I received an on-the job injury on 11/25/95 and was off work from 11/95 to 5/20/96. I returned to work on 5/21/96 with a restriction not to lift over 20 pounds of weight. On 1/7/97 and 1/8/97 I tested for the engineer's position in Overland Parl, Ks [sic]. I failed the test and was verbally informed by Vincent Barker, male, Instructor, that I was terminated for failing the test. On 1/8/97 the [sic] Greg Underwood (male, Operating Practices), notified the United Transportation Union that I was terminated on 1/8/97 for failing the test.
II. I believe I have been discriminated because [sic] of my sex in violation of Section 48-1104 of the Nebraska Fair Employment Practice Act and Title VII of the Civil Rights Act of 1964 as Amended for the following reasons:
A. The engineer's test simulates an engineer communicating with a dispatcher and a foreman. While taking the test I was next to a male, Jerry Rein, who was so loud I could not hear to take the test and as a result I failed. I advised Vincent Barker and Kathy Hughes and Jim (male, last name unknown) that I wanted to move to a different location to take the test. My request was denied and I failed.
B. Rein asked Vincent Barker move to a full motion simulator because it was fun. He was allowed to move and passed the test. I believe I was treated differently than this male.
Filing No. 44, Dep. of D. Weimer, Dep. Ex. 33.
The text of the particulars of the plaintiff's NEOC complaint against the Union is as follows:
I. I am a female. I was employed from 8/14/94 to 1/8/97 in the position of train service in Alliance, NE. I received an on-the job injury on 11/25/95 and was off work from 11/95 to 5/20/96. I returned to work on 5/21/96 with a restriction not to lift over 20 pounds of weight. On 1/7/97 and 1/8/97 I tested for the engineer's position in Overland Parl, Ks [sic]. I failed the test and was verbally informed by Vincent Barker, male, Instructor, that I was terminated for failing the test. On 1/8/97 the [sic] Greg Underwood (male, Operating Practices), notified the United Transportation Union that I was terminated on 1/8/97 for failing the test. On 1/9/97 I advised the union representative, Mary Rachetts, female, in writing about the above and their representation. I informed the union I believe I was being discriminated because [sic] of my sex. On 3/31/97 I received a letter from Rachetts informing me the union would not represent me.
II. I believe I have been discriminated because [sic] of my sex in violation of Section 48-1104 of the Nebraska Fair Employment Practice Act and Title VII of the Civil Rights Act of 1964 as Amended for the following reasons:
A. I informed the union I wanted to grieve the following: The engineer's test simulates an engineer communicating with a dispatcher and a foreman. While taking the test I was next to a male, Jerry Rein, who was so loud I could not hear to take the test and as a result I failed. I advised Vincent Baker and Kathy Hughes and Jim (male, last name unknown) that I wanted to move to a different location to take the test. My request was denied and I failed.
B. Rein asked Vincent Baker to move to a full motion simulator because it was fun. He was allowed to move and passed the test. I believe I was treated differently than this male.
C. Rachetts informed me verbally and in writing that the union had never appealed the type of termination that I was complaining about. I am aware that the union appealed the same type of termination of the following males: conductor Bill Bilsey (Alliance, Ne [sic]) and K.J. Koechner from (Memphis, TN) [sic]. I believe sex was the the union refused to represent me.
Filing No. 44, Dep. of D. Weimer, Dep. Ex. 31.
The NEOC's first letter of no reasonable cause is dated May 26, 1999. Id., Dep. Ex. 43. The letter noted that the Union had investigated the plaintiff's case and found no violation of the collective bargaining agreement, but that if the plaintiff wished, she could contact the EEOC within fifteen days for further consideration. The subsequent EEOC right-to-sue certified letter with regard to the plaintiff's charge against the Union is dated June 30, 1999. Id., Dep. Ex. 44. The subsequent EEOC right-to-sue certified letter with regard to the plaintiff's charge against BNSF is dated July 1, 1999. Id., Dep. Ex. 57. The letters specifically state that any lawsuit over the plaintiff's claims must be filed within ninety days of receipt.
The Mitchell, Nebraska, Post Office received both letters on July 3, 1999, but could not deliver the to the plaintiff because she was not at home. Filing No. 43, Dec. of C. Martinez at 3-7, ¶¶ 4-5. In answers to BNSF's interrogatories, however, the plaintiff stated that throughout June and July of 1999, she "received her mail daily, she did not move, she was not out of town, hospitalized or ill and she checked her mail daily. The postal representatives delivered Plaintiff's mail to her." Filing No. 40, Plaintiff's Answers to BNSF's Interrogs., Interrog. No. 13. The Mitchell Post Office delivered notice of the certified letters to the plaintiff on July 3, 1999.
A second notice about the BNSF certified letter went out on July 9, 1999; a second notice about the Union certified letter went out again on July 12, 1999, the day on which the plaintiff actually came to the post office and retrieved that letter. Filing No. 43, Dec. of C. Martinez at 3-7, ¶¶ 3-5. The notices delivered to the plaintiff clearly state that the letters came from the EEOC and that they would be returned to the EEOC if the plaintiff did not claim them. Filing No. 44, Dep. of D. Weimer, Dep. Exs. 56 and 58. The plaintiff never claimed the BNSF letter, and the Mitchell Post Office returned it to the EEOC on July 21, 1999. Id., Dep. Ex. 59.
The plaintiff, however, has filed an affidavit averring that she received the Union letter on July 23, 2000. See Filing No. 20. She makes no averment regarding the BNSF letter.
When the plaintiff filed this lawsuit on October 19, 1999, ninety-nine days had elapsed since she had retrieved the EEOC right-to-sue letter regarding the Union charge; 108 days had elapsed since both letters had been delivered to the Mitchell Post Office.
2. Union's Motion to Dismiss (Filing No. 11) a. Rule 12(b)(1) Grounds
Statute of Limitations. For the reasons stated at the hearing on the Union's motion to dismiss, I find that the Union's motion made pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that the plaintiff's suit is time-barred is denied.
Failure to Exhaust Administrative Remedies. The Union argued that because the plaintiff did not make sexual harassment or disability part of her NEOC/EEOC charge, she is barred from raising those claims in this suit. Generally, an employee must comply with the administrative prerequisites of both Title VII and the ADA before filing suit in federal court. "Failure to include a claim in the initial EEOC charge constitutes failure to exhaust administrative remedies, and prevents the plaintiff from bringing that claim in his federal court action." Jones v. The Men's Warehouse, 1999 WL 134210 at *2 (N.D. Tex. 1999).
The plaintiff responded that the charge she filed shows she was subjected to sexual harassment and discrimination based on her disability even though she did not check those boxes on the face of the charge. She claims that because she discussed in the charge returning to work after a job-related injury with a lifting restriction, "[t]hese allegations are contained within the penumbra of the Charge of Discrimination." Plaintiff's Responsive Brief at 2.
The court has jurisdiction over any claims that are "like or reasonably related" to the allegations in an EEOC charge. Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996). Determining whether a plaintiff has exhausted her remedies, therefore, often requires a court to look not only at "those charges that the EEOC in fact considered, but those that were brought to its attention." Rush v. McDonald's Corp., 966 F.2d 1104, 1112 (7th Cir. 1992). The plaintiff's complaint must bring facts to the EEOC's attention that "present a sufficient predicate upon which one reasonably would expect the agency to investigate a sexual harassment claim." Karstens v. International Gamco, Inc., 939 F. Supp. 1430, 1436 (D. Neb. 1996). However, neither the EEOC nor the court is required to read the plaintiff's mind. Here, the plaintiff had a preprinted form that allowed her to check boxes indicating what form of discrimination she claimed to have suffered. She checked only the sex discrimination box. The particulars of her charge related only to her allegedly different treatment than male trainees during the simulator testing. Consequently, the plaintiff's claim for relief against the Union will be limited to the sexual discrimination charge.
The plaintiff further argues, however, that she is not required to exhaust her administrative remedies in this case because the Union's acts violated not only federal but also state law, specifically Neb. Rev. Stat. § 20-148. Section 20-148 allows plaintiffs to bring a cause of action in state district court or in federal district court as a pendent claim "to enforce their constitutional and statutory rights in district court without first having exhausted statutory administrative remedies" under the NFEPA. Goolsby v. Anderson, 549 N.W.2 153, 157 (Neb. 1996). The plaintiff argues that since she alleged violations of section 20-148 in her first two causes of action, she can pursue those claims without first exhausting her administrative remedies. Section 20-148, however, "is a procedural statute which does not create any new substantive rights." Goolsby, at 157. The plaintiff cannot seek relief under section 20-148 where, as here, her complaint establishes no basis for a sexual harassment or ADA claim. The Union's motion to dismiss the plaintiff's sexual harassment and ADA claims against it is therefore granted.
b. Rule 12(b)(6) Grounds
Standard of Review. The Union also moves to dismiss the plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). In deciding a Rule 12(b)(6) motion, the trial court looks only at the pleadings when determining whether to dismiss for failure to state a claim. De Wit v. Firstar Corp., 879 F. Supp. 947, 959-960 (N.D. Iowa 1995). If a 12(b)(6) movant asks the court to consider matters outside the pleadings, the court may treat the motion as one for summary judgment. Fed.R.Civ.P. 12(b)(6).The Eighth Circuit considers "matters outside the pleadings" to include "any written or oral evidence in support of or opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings." Hamm v. Rhone-Poulene Rorer Pharmaceuticals, Inc., 187 F.3d 941, 948 (8th Cir. 1999) ( quoting Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992)). While both the Union and the plaintiff attached exhibits to their briefs, I nevertheless find that the Union's motion can be resolved by a facial examination of the complaint without relying on the parties' exhibits.
In deciding whether to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6), all facts alleged in the plaintiff's complaint are assumed to be true. The trial court then liberally construes those allegations. De Wit, 879 F. Supp. at 959. Dismissal is the exception rather than the rule; it occurs "only in the 'usual case' where the complaint on its face reveals some insuperable bar to relief" Id. ( quoting Fusco v. Xerox Corp., 676 F.2d 332 (8th Cir. 1982)). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Discussion. The Union argues that the plaintiff's sexual harassment and ADA allegations do not plead a claim against the Union. The Union notes that in paragraphs 11 and 12 of the complaint, the plaintiff fails to state how she was sexually harassed, by whom, or when, and that in paragraphs 34 and 35, she fails to state what impairment of a major life activity she has or how she was treated differently from a person without that impairment. Further, none of the paragraphs supposedly setting out the basis of her sexual harassment and ADA claims mentions any act or omission by the Union.
A properly pleaded complaint "shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . ., (2) a short and plain statement of the claim showing that the pleader is entitiled to relief and (3) a demand for judgment for the relief the pleader seeks." Fed.R.Civ.P 8(a). The Union argues that Title VII and ADA case law modify the "short and plain statement" pleading requirements of Rule 8. To assert a claim for sexual harassment under Title VII, a plaintiff must plead a prima facie case of the following elements: 1) plaintiff was a member of a protected group; 2) plaintiff was subjected to unwelcome sexual harassment; 3) the harassment was based on sex; 4) the harassment affected a term, condition, or privilege of employment; and 5) the employer knew or should have known of the sexual harassment and failed to take remedial action. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). The Union maintains that the plaintiff has failed to plead any of the elements save the first, and even that must be inferred.
To plead a violation of the ADA, the plaintiff must allege that she is a qualified individual with a disability against whom the employer has discriminated in the terms, conditions, and privileges of her employment. An ADA disability is 1) a physical or mental impairment that substantially limits one or more of her major life activities, 2) a record of such impairment, or 3) being regarded as having such an impairment. 42 U.S.C. § 12112(a). The Union contends that the plaintiff has failed to state in the complaint what exactly her disability status is, what her alleged disability is, or how that disability meets the requirements of the ADA. The only allegations that could be taken as arguably supporting an ADA claim are the statements in paragraph 8 that the plaintiff "returned to work on 5/21/96 with a restriction not to lift over 20 pounds of weight," and in paragraph 9 that she began engineer training because of this lifting restriction.
The plaintiff maintains that she has met the pleading standard of Rule 8 because the complaint gives "the defendant fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved." Plaintiff's Brief at 4. That statement may or may not be true. The complaint does not, however, tie the plaintiff's vague and conclusory allegations of sexual harassment and ADA violations to the Union. On its face, the complaint alleges only that the Union failed to grieve the plaintiff's training and termination. While a complaint should not be dismissed under Rule 12(b)(6) "merely because it does not state with precision all elements that give rise to a legal basis for recovery," Schmedding v. Tnemec Co. 187 F.3d at 864, a complaint must nevertheless tie the allegations to a particular defendant. The Union's motion to dismiss the plaintiff's sexual harassment and ADA claims pursuant to Rule 12(b)(6) is therefore granted.
c. Rule 12(b)(5) Ground: Insufficiency of Service of Process
Finally, the Union argues that the complaint should be dismissed for insufficiency of service or process because the plaintiff did not serve the Union within the 120 days allowed by Federal Rule of Civil Procedure 4(m). On March 3, 2000, however, the magistrate extended the time for service until March 29, 2000. Filing No. 3. The plaintiff served the Union on that date. Filing No. 4. The Union's motion on Rule 12(b)(5) grounds is therefore overruled.
d. Conclusion
For the foregoing reasons and for the reasons stated at the hearing on the Union's motion to dismiss, the plaintiff's complaint against the Union is dismissed on all claims except the sexual discrimination claim alleged in Count II.
III. BNSF's Motion to Dismiss (Filing No. 26)
BNSF also moves to dismiss the plaintiff's sexual harassment and ADA claims against it pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Like the Union, BNSF argues that the plaintiff has failed to exhaust her administrative remedies. Since the plaintiff's charge filed with the NEOC claimed only gender discrimination, BNSF contends that the plaintiff cannot allege in this court additional claims for sexual harassment and ADA violations.
BNSF maintains that allowing the plaintiff to assert claims in this suit which the NEOC and EEOC have never investigated undermines the rationale behind the exhaustion requirement. The NEOC is responsible for the initial investigation into alleged discriminatory employment practices, for attempting to obtain voluntary compliance, and for giving notice of the charge to the opposing party. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994) ( quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985)). In this case, the NEOC limited its investigation and findings to the plaintiff's gender discrimination claim because the plaintiff's charge did not contain sexual harassment or ADA allegations against either the Union or BNSF.
I agree that with BNSF that sexual harassment and ADA claims are legal theories of recovery analytically distinct from the gender discrimination charge that the plaintiff presented to the NEOC. The plaintiff's failure to present the harassment and ADA claims to the NEOC or the EEOC consequently bars her from raising those claims in this lawsuit. See Williams v. Little Rock Mun. Water Works, 21 F.3d at 223 (plaintiff barred from raising claim for race discrimination in suit for retaliation because she had not checked box for race discrimination on EEOC form or discussed it in her charge); Tart v. Hill Behan Lumber Co., 31 F.3d 668, 673 (8th Cir. 1994) (racial harassment claim first raised in suit was separate from discriminatory discharge claim brought in EEOC charge). BNSF's motion to dismiss the first and third counts of the plaintiff's complaint is therefore granted.
IV. BNSF's Motions for Summary Judgment (Filing Nos. 33 and 39) a. Introduction
BNSF filed two motions for summary judgment. One motion (Filing No. 33) is based on the plaintiff's failure to exhaust administrative remedies as evidenced by her lack of a right-to-sue letter from the EEOC on any of her claims against BNSF. The other motion (Filing No. 39) raises three additional grounds: 1) the plaintiff's failure to file suit within ninety days of her constructive receipt of her NEOC right-to-sue letter, 2) the plaintiff's inability to state a prima facie case under either Title VII or the NFEPA, and 3) BNSF's legitimate, nondiscriminatory reason to terminate the plaintiff's employment. Given my prior rulings on BNSF's motion to dismiss, I will rule on BNSF's motion only as it addresses the plaintiff's gender discrimination claim.
b. Standard of Review
Summary judgment is proper if no disputed issues of material fact exist and the moving party is entitled to judgment as a mailer of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Furthermore, the court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250.
If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 466 U.S. at 256; Krenik v. County of LaSueur, 47 F.3d 953, 957 (8th Cir. 1995). Generally, a genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson, 477 U.S. at 248.
c. Discussion
Right-to-sue Letter. A Title VII plaintiff must exhaust her administrative remedies as a prerequisite to bringing suit in federal court. "To exhaust her administrative remedies, not only must a Title VII plaintiff timely file her charges with the EEOC, but she must also receive a 'right to sue' letter from the EEOC." Karstens, 939 F. Supp. at 1435 ( citing Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996)). Failure to obtain the letter is a defect that may be cured subsequent to filing suit, Jones v. America State Bank, 857 F.2d 494, 499-500 (8th Cir. 1988), at least until the defendant challenges the timeliness o the plaintiff's complaint, see Kane v. Iowa Dept. of Human Servs., 955 F. Supp. 1117, 1135 (N.D. Iowa 1997).
Here, BNSF maintains that the plaintiff not only has failed to come forward with a right-to-sue letter in connection with her charge against BNSF, but that she in fact never received such a letter because she failed to pick it up from the post office. Filing No. 34, BNSF's Index of Evid., Dep. of D. Weimer, 204:21-207:3, 209:12-210:5. The plaintiff counters that she constructively received the letter when she received the right-to-sue letter in connection with her complaint against the Union, since she reasonably believed that the Union right-to-sue letter also applied to her charge against BNSF. Plaintiff's Brief at 10. She also maintains that she actually received the right-to-sue letter during her deposition when opposing counsel presented her with BNSF's copy of the letter. Id. She argues that this "receipt" not only puts her within the ninety-day statute of limitations, but also that the "receipt" occurred before BNSF objected to the timeliness of her complaint in its motion for summary judgment. Id. at 11-12.
The law is clear that a Title VII plaintiff must file suit within ninety days of her receipt of a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1). The ninety-day requirement may be equitably tolled in "appropriate circumstances," such as "when the plaintiff fails to file a timely lawsuit due to the plaintiff's 'excusable neglect.'" Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471, 1477 (8th Cir. 1995) ( quoting Anderson v. Unisys Corp., 47 F.3d 302, 306 (8th Cir. 1995)). Equitable tolling, however, is to be applied only sparingly. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). "Excusable neglect" must be the result of events truly beyond the plaintiff's control, Hill v. John Chezik Imports, 869 F.2d 1122, 1123-24 (8th Cir. 1989), and not, as here, the fruit of the plaintiff's own carelessness, neglect, or inattention. The plaintiff here cannot deny that she has no EEOC right-to-sue letter in connection with her charge against BNSF. See Filing No. 43, Dec. of F. Flores at 2, ¶ 4, 5 (statement of director of Denver EEOC office that right-to-sue letter concerning the charge against BNSF was returned to the EEOC office and never reissued). That procedural failure, standing alone, is likely sufficient to find that she has not exhausted her administrative remedies. See Kane v. Iowa Dept of Human Servs., 955 F. Supp. at 1140. But since I grant BNSF's motion for summary judgment on other grounds, I am spared the need of ruling on the plaintiff's "one letter fits all charges" argument or of deciding whether being shown an opponent's copy of right-to-sue letter during a deposition constitutes a "receipt" sufficient to cure the defect.
Ninety-day Filing Requirement. As noted in the preceding section, a Title VII plaintiff must file her suit within ninety days of acknowledging receipt of a certified right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). See also Craig v. Dep't of Health, Education and Welfare, 581 F.2d 189, 193 (8th Cir. 1978) ("[N]otice is sufficient it (1) A registered or certified letter, or other written notice requiring the recipient to acknowledge receipt therefor, is sent to the employee and the employee personally acknowledges such receipt."). The date of actual receipt is presumed to be three days from date on which the EEOC mailed the letter; the ninety-day period begins to run at that time. Glass v. Bemis Co., 22 F. Supp.2d 1063, 1066 (D. Neb. 1998) ( citing Brooks v. Ferguson-Florissant Sch. Dist, 113 F.3d 903, 904 (8th Cir. 1998)).
When, however, a plaintiff fails to claim a certified right-to-sue letter after having been officially notified of its delivery to a post office, some courts do not require that the plaintiff actually acknowledge receipt for purposes of ninety-day statute of limitations, but instead find that the plaintiff has constructively received the letter. In this situation, the ninety-day period begins to run on the first day the post office gives the plaintiff official notice — not when the letter is actually picked up. See, e.g., Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552, 558, 559 (6th Cir. 2000) (because Title VII plaintiff "has manifest common sense obligation to exercise ordinary diligence in prosecuting" a claim, plaintiff has "constructive notice of right to litigate on the day that the post office has delivered the [right-to-sue] letter to his or her correct address, even though the claimant had not actually received that writing until a later date."); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997) (ninety-day period began running when delivery of the right-to-sue letter was attempted at the address of record with the EEOC); Watts-Means v. Prince George's Family Crisis Center, 7 F.3d 40, 42 (4th Cir. 1993) ("limitations period is triggered when the Postal Service delivers notice to a plaintiff that the right-to-sue letter is available for pickup, and not whe the letter is actually picked up").
The Eighth Circuit does not appear to have ruled on this exact situation. In Craig, the EEOC right-to-sue letter went to the plaintiff's attorney rather than to the plaintiff, a government employee. The attorney then failed to timely file suit within the thirty days allowed under 42 U.S.C. § 2000e-16(c).
Here, the Mitchell Post Office first notified the plaintiff about the two certified letters from the EEOC on July 3, 1999; it notified the plaintiff about the BNSF letter a second time on July 9, 1999. I therefore find that the plaintiff had constructive notice of the BNSF letter on July 3 or — at the very latest — on July 12, the date on which the plaintiff actually received the Union letter.
The plaintiff has not shown that her failure to file a lawsuit against BNSF within the ninety-day period was the result of "excusable neglect" sufficient to justify equitable tolling. Indeed, the plaintiff has offered no credible explanation for her failure to pick up the BNSF letter at the same time she picked up the Union letter or for her failure to realize that the first letter encompassed only her charge against the Union. To say that failure to pick up the letter in these circumstances tolled the limitations period would allow the plaintiff an "open-ended time extension, subject to manipulation at will." Lee v. Henderson, 75 F. Supp.2d 591, 593 594 (E.D. Tex. 1999) ( quoting Middleton v. Gould, 952 F. Supp. 435, 440 n. 2 (S.D. Tex. 1996)) (if plaintiff does not claim certified EEOC letter, ninety-day period is triggered when first notice of certified mail is delivered, not when the letter is actually picked up). Consequently, I conclude that plaintiff's suit is time-barred and that BNSF's motion for summary judgment is granted.
No Prima Facie Case. BNSF contends that even if I assume that the plaintiff's suit was timely filed the plaintiff has nevertheless failed to state a cause of action under the provisions of Title VII and the NFEPA because she cannot establish any direct evidence of an intent to discriminate on the part of BNSF under the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). A prima facie case of sex discrimination requires the plaintiff to establish that she 1) is a member of a protected class; 2) was qualified to perform her job; 3) suffered an adverse employment action; and 4) was treated differently than similarly situated people of the opposite sex. See Schoffstall v. Henderson, 223 F.3d 818, 825 (8th Cir. 2000) ( citing Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1156 (8th Cir. 1999)). If a plaintiff establishes a prima facie case, then the burden shifts to the employer to produce evidence of a legitimate nondiscriminatory reason for its action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 50 (1993). If the employer succeeds in this burden of production, then the burden shifts back to the plaintiff to prove that the employer's proffered reason was a pretext for intentional sex discrimination. Reeves v. Sanderson Plumbing Prods., 120 S.Ct. 2097, 2106 (2000). The ultimate burden of persuasion remains with the plaintiff throughout the case.
First, BNSF contends that the plaintiff's prima facie case fails because she cannot establish that she was qualified for the position in question, having twice failed the engineer simulator test. The engineer test is not based on gender considerations, or even on seniority. Instead, the test is based on safety and proficiency requirements imposed by the Federal Railroad Administration (FRA). See 49 C.F.R. § 240.123 et seq. The simulator tests are "objective, computer graded exams, and are not capable of human manipulation or influence." Filing No. 40, Aff. of J. Portz at 4, ¶ 15. During the simulator tests, a computer grades trainees on their response to situations calling FRA and BNSF regulations into play. To pass the simulator testing, a trainee must operate a train on four different runs and receive a weighted average score of 70%. Id. at 4, ¶¶ 13, 20. If a trainee violates a FRA regulation during a run, the computer automatically gives the trainee a zero since in the real world, these violations are the types of errors that "can cause or contribute to collisions, injuries to the public or employees and even death." Id. at 4-5, ¶ 13. Under federal law, BNSF could not have certified the plaintiff as an engineer unless she had passed the simulator certifying tests.
On the first simulator test in November 1996, the plaintiff failed one of the four runs with a score of zero as a result of several violations, including a violation of a FRA regulation; she also failed another of the four tests, giving her a weighted average of 43.06%. Id. at 5-6, ¶ 17. Two other trainees failed this test, both of whom were male; three female trainees passed the test. Id. at 6, ¶ 18. On the second simulator test in January 1997, the plaintiff failed one of the four runs with a score of zero because she had a FRA violation. Her weighted average was 66.43%. Id. at 6, ¶ 20.
The plaintiff contends, however, that she did not fail the second test; moreover, she contends that BNSF would not show her the test result that allegedly showed why she failed. She says that she failed the test because she was not allowed to move to another simulator when the men in the next simulator disturbed her with loud talking and cursing during her pretest. Filing No. 44, Dep. of D. Weimer, 45:23-46:15; 140:3-150:2; 152:7-11; 175:7-176:5; 211:15-212:20.
Even the plaintiff's own account of the second test, however, indicates that she engaged in significantly improper conduct that mandated her failure. The plaintiff admits that she got up from her seat after throttling up the engine simulator; as she did so, her knee hit the throttle and the train began to move. The plaintiff, however, did not stop the train, but moved to the wall of the simulator and asked the man in the adjoining simulator to be quiet. She alleges that she then stuck her head outside the simulator to call for the instructor, all while her unattended train was still moving well above the speed limit. Id. at 70:21-72:15; 177:21-185:13. The plaintiff admits that this conduct constituted a violation of FRA regulations. Id. at 189:14-190:2. Violation of an FRA obviously cannot be justified because of noise during testing; real world condition in a real locomotive will be much noisier. Yet what is critical to the plaintiff's claim — and what she fails to explain — is how the noise in the neighboring simulator that allegedly caused her to fail the simulator test constituted gender discrimination by the railroad.
Second, BNSF contends that the plaintiff fails to establish a prima facie case because she cannot establish that she was treated differently than similarly situated men. The plaintiff alleges that she was treated differently than the men taking the test because one man was allowed to move to a different simulator but she was not and because men were allegedly allowed to retake the test, or were given additional time and training, or were allowed to return to their previous positions rather than being discharged.
The plaintiff has not offered any evidence to establish that the single instance of gender discrimination alleged in her NEOC/EEOC charge — BNSF's alleged refusal to allow her to move to different simulator during the January 1997 test because a man in a neighboring simulator was noisy — somehow constituted gender discrimination. The full extent of the plaintiff's NEOC/EEOC charge was that during the plaintiff's second simulator test, one of the male trainees was given permission to move to the full-motion simulator. The plaintiff also could have requested to use the full-motion simulator, but did not do so because it made her sick. Id. at 152:4-153:6. Moreover, at the time the plaintiff failed her simulator tests, BNSF policy dictated that simulator assignments were final unless a trainee wished to move to the full-motion simulator, if available. Filing No. 40, Aff. of J. Portz at 4, ¶ 11; 6, ¶ 22. The plaintiff has therefore not shown that BNSF's alleged refusal to allow her to change simulators because another trainee was making noise constituted gender discrimination. In her deposition, she raised numerous other instances in which she claimed she was treated differently than male employees, but the fact remains that the plaintiff did not complain about any of those instances in her administrative charge.
Further, the plaintiff's own testimony undermines her contention that men were allowed to retake the test, or were given additional time and training. The plaintiff admitted during her deposition that the reason at least one man was allowed a third simulator test was because a computer error occurred during the second test. Filing No. 44, Dep. of D. Weimer, 97:8-21. She also admitted that another man was given additional time because he had sustained a knee injury during training. Id. at 117:15-12. Yet another man temporarily left the training program because of personal problems at home. Id. at 142:10-145:2. In two other situations, the railroad allowed men to retest because it could not find their test results. Id. at 145:9-147:23. A final man was testing for a conductor job, not an engineer's job. Id. at 147:6-23. The plaintiff, however, produced no evidence that any of these men failed the second test because they committed FRA violations. She therefore has not established that the men were "similarly situated in all relevant respects." Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994). See also Lynn v. Deaconness Medical Center-West Campus, 160 F.3d 484, 488 (8th Cir. 1998) (to show employees are similarly situated, a plaintiff must show treatment different than other employees whose violations were of "comparable seriousness").
One of these men failed the exam when he retook it for the third time. Rachetts Dec. at 6, ¶ 33.
Moreover, between 1996 and 1999 BNSF terminated pursuant to the collective bargaining agreement only eighteen employees for failing the program. All but one of those eighteen — the plaintiff — were male Filing No. 40, Aff. of J. Portz at 7, ¶ 23. The plaintiff was therefore not treated differently than any of the male employees who also twice failed the simulator tests.
Legitimate, Nondiscriminatory Reasons. Finally, BNSF contends that even assuming the plaintiff could establish a prima facie case of gender discrimination, it has produced evidence of a legitimate, nondiscriminatory reason for its decision to terminate the plaintiff's employment: the plaintiff's lack of qualifications to be an engineer. I agree.
Under federal law, BNSF cannot certify an employee as an engineer unless the employee successfully completes the training course, including passing the simulator tests. In the training course, BNSF also tests engineer trainees on their mastery of the railroad's own knowledge and skill requirements. The only objective measure BNSF has of an employee's competence to be a certified engineer is the employee's successful completion of this course.
The plaintiff's FRA violations during each of the simulator tests represent significant errors that, in the real world, would have endangered the public, other BNSF employees, and the plaintiff herself. BNSF was thus entitled to conclude that the plaintiff could not operate a train in a safe manner, to deny her certification under federal law, and to terminate her employment pursuant to the collective bargaining agreement. "Job performance and relative employee qualifications are widely recognized as valid, nondiscriminatory bases for any adverse employment decision." Evans v. Technologies Appilcations Servs. Co., 80 F.3d 954, 960 (4th Cir. 1996) ( citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). I therefore conclude that BNSF has demonstrated a legitimate, nondiscriminatory reason for its decision to terminate the plaintiff's employment.
d. Conclusion
For the foregoing reasons, BNSF's motion (Filing No. 39) for summary judgment is granted. BNSF's other motion (Filing No. 33) for summary judgment is denied as moot.
V. Union's Motion for Summary Judgment (Filing No. 41)
The Union also seeks summary judgment on the only claim remaining against it after my rulings on the Union's motion to dismiss: gender discrimination. The plaintiff alleged that the Union's refusal to grieve her complaint, "when the evidence suggests that the [Union] had a plausible chance to win on the merits of Plaintiff's complaint, was a decision that was reached due to the fact that the Plaintiff was a female in a male dominated career." Plaintiff's Responsive Brief at 10. I conclude that the evidence suggests just the contrary, that the Union was justified in not progressing a grievance for the plaintiff because any claim the Union might have taken up would have been without merit and likely frivolous.
Ninety-day Filing Requirement. Like BNSF, the Union contends that the plaintiff failed to file her suit against the Union within the ninety days allowed after receipt of the EEOC right-to-sue letter. As the prior discussion indicates, the Mitchell Post Office received the certified letters from the EEOC on July 3, 1999. It notified the plaintiff that same day that it had not been able to deliver the letters to her. When the plaintiff did not pick the letters up within five days, the post office sent out a second notice on July 12. The plaintiff appeared at the post office that same day, and signed for and received the letter concerning her charge against the Union.
As I previously ruled on BNSF's motion, the ninety-day period begins to run on the first day the post office gives the plaintiff official notice — not when the letter is actually picked up. Here, that day is either July 3 or, more generously, July 12, the day of the second notice. Yet the plaintiff did not file her suit against the Union until October 19, 1999, ninety-nine days after retrieving the Union letter and 108 days after both the Union and the BNSF letters had been delivered to the post office. The plaintiff's suit against the Union was therefore not timely filed, and its motion for summary judgment is consequently granted.
No Gender Discrimination. Even assuming that the plaintiff had timely filed her suit against the Union, the Union contends that the plaintiff cannot prove a prima facie case of gender discrimination against it under the burden-shifting analysis of McDonnell-Douglas. The Union argues that even assuming that the plaintiff is capable of performing the job of engineer, the plaintiff still cannot prove that the Union failed to file a grievance on her behalf because of her gender.
The Union supplied evidence that when the plaintiff failed the second simulator test, her local chairperson told her that an appeal would be pointless, but nevertheless referred her on to another local chairperson, Merry Rachetts, an engineer who herself had gone through BNSF's engineer training program and who represents both male and female engineers. Rachetts Dec. at 1, ¶ 2; 3, ¶ 12; 5, ¶ 25. Rachetts also told the plaintiff that an appeal likely was not possible, but agreed to investigate the matter for the plaintiff. Id. at 3, ¶ 14. Rachetts examined the plaintiff's simulator testing records, talked to "knowledgeable" BNSF personnel and Union representatives, and spoke with the two men who took the second simulator test at the same time as the plaintiff (including the man whom the plaintiff accused of making the noise which allegedly caused her to fail). Id. at 3-4, ¶¶ 15, 17, 25. Rachetts stated that during her investigation, she uncovered "several inconsistencies in [the plaintiff's] recounting of events," including a lack of evidence that the plaintiff ever tried to change simulators. Id. at 4, ¶ 16; 5, ¶ 25. Rachetts ultimately concluded that the plaintiff's "complaint revolved around noise, not a collective-bargaining agreement violation," id. at 7, ¶ 36, and that BNSF had not violated the collective bargaining agreement by terminating the plaintiff's employment for failure to pass the test, id. at 4, ¶ 21.
Rachetts averred that she did not treat the plaintiff's claim any differently than any other member's claim, in particular any male member's claim. She has told both men and women employees — some of whom were personal friends — that they failed the training course and that the Union could not progress grievances for them. Id. at 4, ¶¶ 18-21; 5, ¶¶ 25-28; 6, ¶ 31. Gender simply was not a consideration in Rachetts's decision not to progress a grievance for the plaintiff. See Tate v. Weyerhauser Co., 723 F.2 598, 606 (8th Cir. 1983) ("Unions are not required to pursue unmeritorious grievances."). The Union's motion for summary judgment is consequently granted.
VI. BNSF's Motion in Limine (Filing No. 54)
Since my rulings in this order dispose of all claims the plaintiff alleged against BNSF, I deny BNSF's motion in limine as moot.
IT IS THEREFORE ORDERED:
1. The Union's motion (Filing No. 11) to dismiss is granted;
2. BNSF's motion (Filing No. 26) to dismiss the first and third causes of action in the plaintiff's complaint is granted;
3. BNSF's motion for summary judgment (Filing No. 33) is denied as moot;
4. BNSF's second motion for summary judgment (Filing No. 39) is granted;
5. The Union's motion (Filing No. 41) for summary judgment is granted;
6. BNSF's motion (Filing No. 54) in limine is denied as moot; and
7. Judgment is hereby entered in favor of the defendants in this action and against the plaintiff.