Woods
v.
Schutte Lumber Company

United States District Court, W.D. Missouri, Western DivisionJan 10, 2003
Case No. 01-0718-CV-W-HFS (W.D. Mo. Jan. 10, 2003)

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Case No. 01-0718-CV-W-HFS

January 10, 2003


ORDER


Before the court is defendant Schutte Lumber Company's motion for summary judgment. The nature of the instant action is employment discrimination, specifically, race discrimination, retaliation, and hostile work environment. Plaintiffs claims are brought under 42 U.S.C. § 1981, and Title VII. Plaintiff claims that he was treated in a disparate manner due to his race. He also claims that he was retaliated against for complaining about the discriminatory conduct of his supervisor. According to plaintiff, the retaliation took the form of progressively worse job assignments and the arbitrary change of his work assignment. Finally, plaintiff complains that all of the aforementioned conduct resulted in a hostile work environment.

In his complaint, plaintiff also alleged discrimination in compensation. Plaintiff subsequently moved to dismiss this count, and by an order dated April 24, 2002, plaintiffs unopposed motion was granted.

Also before the court is defendant's motion to file supplemental suggestions in support of its motion for summary judgment.

However, to the extent that defendant has attached its supplemental suggestions to the motion seeking leave to file said suggestions, the motion is denied as moot.

Background

Plaintiff, an African-American, began working for Schutte Lumber in 1967 as a laborer; the duties of which included putting lumber away by hand. Plaintiff has been a member of the Teamsters Union since beginning his employment with Schutte Lumber. In 1974, plaintiff became a forklift driver and his duties included loading and unloading trucks, and putting lumber away. As both a laborer and forklift driver, plaintiff worked outdoors. In 1987, plaintiff obtained the position of truck driver, which he held until July, 1999, at which time, he began working in the mill. He retired on December 23, 2001. In 1997, Schutte Lumber was sold to the partnership of Dan Fuhrman and Richard Matthews. At that time, Bill Egner, assistant General Manager, became President and General Manager. Egner then promoted Ricke Tanner to Yard Foreman, and at this point Tanner became plaintiffs immediate supervisor. Prior to the promotion, Tanner worked as a truck driver, and occasionally filled in as the Acting Foreman.

In plaintiffs papers, the name is spelled Ricke Tanner, as opposed to defendant's spelling, Rick Tanner; presumably both spellings refer to the same person.

According to plaintiff, when Tanner became foreman he began to discriminate against him. The discrimination took the form of assigning to plaintiff deliveries containing heavier loads, sending plaintiff into bad neighborhoods, and giving plaintiff more jobs requiring hand unloading than the other drivers who were white. Prior to Tanner becoming foreman, plaintiff estimated that only 30% of his job assignments were hand unloads, but once Tanner was promoted, the hand unloads increased to 80%. Plaintiff subsequently testified that generally 80% of his jobs were hand unloads, but it rose to 85% when Tanner became foreman. Plaintiff received assistance unloading commercial deliveries, but he did not receive assistance when making residential deliveries. Other drivers such as Fred Smith and Kenny Kohrs, who are white, were assigned very few residence unloads. Plaintiff testified that he was usually assigned deliveries in black neighborhoods, while other white drivers could refuse such deliveries. Plaintiff was not sure if he was sent into dangerous neighborhoods because he was black, but he felt he was sent into black neighborhoods because of his race. Plaintiff only experienced one occasion when he felt personally threatened while making a delivery in a black neighborhood. However, plaintiff testified that he also made deliveries into areas such as Lake Quivira which was not a predominately black neighborhood.

For a period of about 2 to 3 years plaintiff complained to Bob Crichton, the union steward, that Tanner was discriminating against him due to his race. According to plaintiff, the harassment took various forms. As a truck driver, plaintiff had to pull heavy loads while other workers stood idly by. One day when 300 to 400 pieces of lumber were returned, Tanner directed plaintiff to return the lumber to stock 15 minutes before he was to get off duty. Plaintiff was unable to complete the job, and the next day Tanner threatened to write up the incident and fire plaintiff, and said "you people are something else." (Woods Depo. Tr. 66). Plaintiff did not recall any disciplinary action being taken against him. On another occasion Tanner directed plaintiff to deliver a window and placed it on top of a load of lumber, which plaintiff considered to be a safety hazard. Plaintiff explained that usually windows were delivered separately so that there was room to secure them to the floor of the truck, not on the top of a load of lumber where they could blow off. Plaintiff testified that he never saw a white driver directed to deliver a window in this fashion. Plaintiff testified that Tanner also accused plaintiff of wearing out the clutch in a truck, but, again, no disciplinary action was taken. Plaintiff felt that Tanner harassed him by sometimes positioning himself in the path of plaintiffs forklift and watching him. Also, Tanner would direct plaintiff to pull a bundle of lumber that he needed right away for sale to a customer, and once pulled, the lumber would remain in the yard for six weeks. Plaintiff estimated that he complained to Crichton about Tanner's discriminatory conduct approximately 10 to 15 times. According to plaintiff, he was required, on almost a daily basis, to deliver heavier loads than his counterparts. He also complained to his co-workers, and for 3 years he complained to Tanner approximately once a month that he felt Tanner discriminated against him because he is black. Plaintiff also complained to several salespeople and to someone in the accounting office.

On July 12, 1999, plaintiff was transferred to the mill. Plaintiff felt that Tanner transferred him in retaliation for complaining about his work assignments and his charges of race discrimination. On August 31, 1999, plaintiff filed a claim with the Human Relations Department of Kansas City alleging race, and age discrimination, and retaliation. Plaintiff complained that, since his transfer to the mill, Tanner directed him to do additional work not previously required of Ernie Utley, an African-American and also the former mill worker. For example, plaintiff was required to pull down loads of lumber which were previously performed by loaders. President Bill Egner also harassed him when he worked in the mill by sending him tickets requiring "bright lumber", which required plaintiff to look through piles of lumber. Plaintiff was unhappy with the transfer because he felt that the transfer should have been done on a seniority basis. Additionally, the workload was double that of a truck driver, more dangerous and the inhalation of the saw dust was unhealthy. Plaintiff complained to the union rep Jed, the union steward Crichton, and to Egner. Plaintiff testified that Egner told him that he was transferred because he was more reliable and qualified to work in the mill. However, plaintiff countered that he had not worked in the mill for twenty years, and that employees Crichton and Donald Davis filled in for Utley on a regular basis. Then, for the first time, plaintiff told Egner that Tanner was discriminating against him. Egner told plaintiff that he would look into the charge of discrimination, but when he spoke with plaintiff again he merely repeated that plaintiff was more qualified to work in the mill. Plaintiff did not know the name of the employee who replaced him as a truck driver, but he said it was a white man.

Kent West, a white employee, began working at Schutte Lumber as a loader in 1997. At that time West did not recall any other African-American truck drivers employed by Schutte Lumber, other than plaintiff. West recalled that plaintiff complained to him about being treated unfairly, and he observed plaintiff complain to Tanner about the jobs assigned to him compared to the other drivers. As a loader, West was required to look at work orders, and retrieve the lumber to be loaded onto certain trucks. West testified that according to those work orders, hand unloads were assigned to plaintiff 90% of the time. West witnessed white drivers tell Tanner to give the undesirable loads to plaintiff, and then laugh about it. He witnessed Tanner say something to the effect that plaintiff just wanted to yell about discrimination and didn't want to go along with things. West admitted hearing Tanner refer to plaintiff as a "nigger," specifically, a "lazy nigger." (West Depo. Tr. 16-17). West also heard Tanner make jokes about black people in general, and he heard other employees refer to black people in a derogatory manner. (West Depo. Tr. 17-20). He also heard Tanner and others make racially offensive remarks in the presence of Egner, who giggled. (West Depo. Tr. 21-22). West felt that because he befriended plaintiff and Donald Davis, another black employee, he was persecuted somewhat by Tanner.

West opined that the work in the mill sometimes required more physical labor than driving a truck, especially during the summer which was a very busy time in the mill. West could not recall plaintiff filling in at the mill prior to the transfer, but he testified that both Donald Davis and Bob Crichton had previously filled in at the mill. West agreed that plaintiff was required to deliver lumber to black neighborhoods more often than the other drivers. He also felt that plaintiff was transferred to the mill because he complained and because of his age.

Donald Davis, an African-American, has been employed at Schutte Lumber as a yard worker since 1987. Although he has never heard Tanner make racially offensive comments, he has overheard other employees tell racially offensive jokes about African-Americans. Larry Smith, a white employee, once told him a joke that black people are afraid to eat Tootsie Rolls because they might bite their finger. (Davis Depo. Tr. 11). Although he could see how some might be offended, he just played it off.

Thomas Hamilton, a white employee, began working at Schutte Lumber in 1991, he currently works as a forklift driver. According to Hamilton, plaintiff was the only African-American truck driver employed at Schutte Lumber. Hamilton became aware of plaintiff s complaints when he was transferred to the mill. Prior to becoming a forklift driver, Hamilton was a loader and loaded plaintiffs truck. He recalled that Tanner would send plaintiff out on deliveries containing heavy loads of concrete and sheet rock which had to be unloaded by hand. Hamilton confirmed his statements to the Kansas City Human Relations investigator that, as compared to the other drivers, plaintiff received more jobs which required unloading by hand. Hamilton recalled that Donald Davis told him that plaintiff complained to Egner about Tanner's behavior toward him.

Hamilton also remembered plaintiff telling him that both Tanner and Egner discriminated against him because he is black. Hamilton opined that Tanner retaliated against plaintiff for complaining about discrimination. Although Hamilton also stated that, "Rick would make it hard on anybody that complained about him, . . ." (Hamilton Depo. Tr. 20). Hamilton stated that other employees called plaintiff a "cry baby." (Hamilton Depo. Tr. 21). Hamilton also recalled Tanner saying in reference to plaintiff that, "black people don't want to work, they just want to sat [sic] around and collect a paycheck;" (Hamilton Depo. Tr. 22). After having a disagreement with two black customers, Tanner asked him, "Why does [sic] black people think that they should get what they want?"; except Tanner used the "N" word instead of black people. (Hamilton Depo. Tr. 23-24). Hamilton could not recall any other employees using offensive language either as a comment or in a joke.

Ricke Tanner testified that between 1980 and 1997, Schutte Lumber has employed approximately three African-American truck drivers. Initially, Tanner worked in the mill, then became a truck driver, and in 1997, became yard foreman. As yard foreman Tanner supervised fourteen employees, and his duties included routing deliveries, assigning work details, purchasing supplies, and ensuring the safety of the equipment. Once an order was taken, it was passed to Tanner, the order then went to the yard where the lumber was pulled and stored to be loaded onto empty trucks for delivery. According to Tanner, the number of residential deliveries not requiring hand unloading just about equals the number of commercial deliveries. Tanner testified that he assigned loads to drivers as they came in from making deliveries, unless one driver was more familiar with a particular drop site.

Tanner explained that if an employee had a performance problem, he spoke directly to that employee and advised the employee on ways to improve; if that was unsuccessful, he would speak with Egner about the problem. Tanner stated that he recommended three white male employees to be suspended. Mike Simms, a truck driver, was slow making deliveries and delivered the wrong materials to the wrong job site; he was suspended two to three times. Bill Gordon, a yardman, was often absent and late, and displayed an uncaring attitude about the job; he was also suspended. Tom Hamilton also was excessively absent and late; Tanner was unsure whether he was suspended. All three employees are white, and are presently working for Schutte Lumber. According to Tanner, between 1997 and 1999, Donald Davis and plaintiff were the only African-American employees under his supervision. Tanner testified that Davis was "an excellent employee", but that plaintiff had job performance issues which he discussed with Egner approximately four to six times. (Tanner Depo. Tr. 44-45). Tanner stated that on several occasions, plaintiff delivered the wrong materials to the wrong place, or was short a couple of pieces. When Tanner attempted to talk with plaintiff about these errors, plaintiff responded that the errors were no big deal. Plaintiff also took too long going from one job site to the next, and was slow with assembling lumber to be banded; Tanner finally advised him that his deliveries must be done in a timely manner. Tanner felt that whenever he spoke to plaintiff about his job performance, plaintiffs attitude was uncaring. However, Tanner admitted that several times he received complimentary feedback from customers about plaintiffs performance.

Tanner did not recall other drivers complaining about making deliveries to certain neighborhoods. Tanner stated that plaintiff had been complaining about being discriminated against since 1977, usually because of his workload. Tanner was not aware of any formal complaints made by plaintiff to management, just "grumbling for years amongst the people that he worked with." (Tanner Depo. Tr. 63). After Tanner became foreman, plaintiff no longer complained to him about discriminatory treatment, but continued to complain to others. Tanner stated that plaintiff seemed to claim discrimination every time he was required to do something he did not want to do. Although Tanner was aware of plaintiffs complaints, he did not attempt to discuss these concerns with plaintiff.

Tanner testified that he never used the "N" word in reference to African-Americans while working at Schutte Lumber, but, on a few occasions, he has heard other employees use the word. Because it was used in "a racial joke", and not directed at an individual, Tanner did not counsel the employee. (Tanner Depo. Tr. 78-81). Throughout his tenure with Schutte Lumber, Tanner has heard the "N" word used "maybe ten or twelve times, . . ." (Tanner Depo. Tr. 79).

Prior to plaintiffs transfer to the mill, Tanner admitted that two other employees were considered, Bob Crichton and Kenny Kohrs. Crichton had expressed an interest in transferring to the mill and he was "very educated in the hardwood business." Kohrs also had "a vast knowledge of just the lumber industry period." (Tanner Depo. Tr. 103-04). However, Tanner felt that plaintiff should be transferred because he failed to make deliveries and return to the yard in a timely manner, and he could be supervised more closely at the mill. Tanner testified that customers had called in to report plaintiff just sitting along the road, and other drivers reported observing plaintiff driving, an empty truck, in the opposite direction of the lumber yard. After plaintiff was transferred to the mill, Tanner was aware that plaintiff filed a formal complaint of discrimination. Upon plaintiffs transfer, Tanner believed that a replacement driver was hired. In response to plaintiffs exhibit 1 which indicated that a Charles Rhoads was hired in September 1999 as a loader and driver, Tanner stated that Rhoads was not a designated driver.

Clayton Egner testified that he became president and general manager in June 1997, and after assuming his new duties, he promoted Tanner to yard foreman. Egner began his employment with Schutte Lumber in 1983, and knew that plaintiff was employed as a truck driver at that time. He also knew of plaintiffs transfer to the mill in July, 1999, but he was unaware of any discrimination complaints made by plaintiff prior to the transfer.

Egner recalled that a customer called and said that after making a delivery plaintiff had been parked outside the job site for some time and it appeared that plaintiff was asleep. Egner did not speak with plaintiff because he understood that Tanner spoke with plaintiff, and plaintiff denied the allegation. On another occasion, Tanner advised Egner that plaintiff did not return to the yard in a timely fashion after making a delivery to a nearby location, and he was found going in another direction from the delivery site. Although Egner did not speak with plaintiff, he recalled that Tanner spoke with plaintiff regarding this incident.

Egner did not know the meaning of the "N" word, but after plaintiffs counsel explained, Egner did not recall hearing it used at Schutte Lumber. He also could not recall hearing any racial jokes. After Ernie Utley decided to retire, Egner asked Tanner his opinion on who should replace Utley. Tanner presented Egner with a list of potential candidates including Jeff Summer, Bob Crichton, Kenny Coors, Tom Hamilton, and plaintiff. Ultimately, Egner chose plaintiff because there was more flexibility taking from the truck driving staff than the areas worked in by the other candidates. When plaintiff advised Egner that he did not want to be transferred, Egner explained to him that he was unable to pull someone from another department. Although plaintiff did not mention discrimination during that conversation, he later told Egner that he felt that he was being discriminated against by being transferred; receiving more hand unloads than the other drivers; and being sent into bad neighborhoods more often than the other drivers. Egner attempted to investigate these claims by looking at past logs tracking delivery assignments, but found that they had been destroyed. Egner also spoke with Tanner concerning plaintiffs allegations who explained that the loads were distributed based on customer needs. Egner concluded that plaintiffs allegations were false. Egner stated that plaintiffs duties at the mill consisted of bringing material up to the mill by forklift to be cut. Egner opined that plaintiffs work at the mill was much less physical than driving the truck. After the transfer, Egner did not recall any more performance issues regarding plaintiff

Egner testified that in-house training on harassment and discrimination was conducted for all employees prior to plaintiffs transfer. However, Egner did not receive any instruction on how to conduct an investigation of alleged workplace discrimination. There was no human resource department at Schutte Lumber, those duties were covered by Egner, as general manager, in conjunction with the controller. The employee handbook contained the company's written policy on workplace discrimination, as well as procedures on how to report an allegation of discrimination.

Dan Fuhrman, chairman of the board and president of Schutte Lumber, testified that he basically deals with the finances and sales of the company. Matt Brown, operations manager, oversees the day-to-day operations, since Egner was laid off. Fuhrman became aware of plaintiffs complaints of discrimination when Egner advised him of his receipt of the formal notice, and Fuhrman recalled only a brief conversation with Egner regarding the complaint. Although Fuhrman was aware of the statements given to the Human Relations investigator by Davis, West and Hamilton, confirming plaintiffs allegations, Fuhrman did not speak with any of those employees.

Investigation By The Human Relations Department of Kansas City

On August 31, 1999, plaintiff filed a complaint with the Human Relations Department of Kansas City. Pursuant to plaintiffs complaint an investigation was conducted in which employees Davis, West, and Hamilton were interviewed. All of them agreed that plaintiff received unfavorable loads which were either heavy in weight and/or were required to be hand unloaded. They also provided statements in which they said that plaintiff was a good worker and was often given deliveries that his white counterparts did not want Further, all three employees stated that plaintiff was discriminated and/or retaliated against because of his race. Hamilton also stated that Tanner made offensive remarks about black people, and that Tanner was a racist. Both West and Davis stated that plaintiff complained of Tanner's discriminatory conduct to Tanner himself, and to Egner. Davis also stated that he was more qualified to work in the mill than plaintiff.

As to racial discrimination, the investigator noted respondent, Schutte Lumber's, contention that once the delivery loads were put together, they were assigned to drivers as each one arrived at the lumber yard. Further, since the schedule was extremely busy, it is doubtful that a practice of preferential treatment was possible. Respondent had no knowledge of a practice in which white and black drivers were selected to go to certain areas. As to plaintiffs claim of retaliation regarding his transfer to the mill, respondent stated that seniority was but one factor used to determine an employee's work assignment. Moreover, the contract permits respondent, based on need and ability, to direct its workforce. Furthermore, plaintiffs transfer could not have been in retaliation for complaining about discrimination and unfair treatment, because respondent did not learn of these complaints until after plaintiff was transferred. Respondent countered that plaintiff failed to utilize the grievance procedure set forth in the Union Contract.

Finally, respondent claimed that the mill job position required experience in several different aspects of it's operations. Respondent also thought that plaintiff would have preferred working in the mill which is considered to require the least amount of physical exertion. In sum, respondent stated that it had contractual rights to change the placement of an employee, and that the decision to reassign plaintiff was due to a legitimate business necessity, not racially motivated.

At the conclusion of the interviews, the investigator made a recommendation of probable cause as to plaintiffs claims of race discrimination and retaliation. The investigator found no probable cause as to plaintiffs claim of age discrimination. On May 16, 2001, the Equal Employment Opportunity Commission ("EEOC") issued plaintiff a Right to Sue notice, and on July 5, 2001, plaintiff filed the instant complaint.

Standard of Review for Summary Judgment

The party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of the affidavits, if any, or by citation to the pleadings, depositions, answers to the interrogatories, and admissions on file which it believes demonstrates the absence of a genuine issue of material fact. Golleher v. Aerospace Dist. Lodge, 122 F. Supp.2d 1053, 1056 (8th Cir. 2000); citing, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order for the moving party to prevail, it must demonstrate to the court that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. at 322; quoting, Fed.R.Civ.P. 56(c); see also Williams v. Lindenwood University, 288 F.3d 349, 355 (8th Cir. 2002). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. "[T]he evidence offered by the non-moving party is to be believed and justifiable inferences therefrom are to be drawn in the light most favorable to that party." Williams v. Lindenwood University, 288 F.3d at 355. However, the non-moving party "may not rest upon the allegations or denials of its pleadings; rather, the nonmovant must `set forth specific facts showing that there is a genuine issue for trial.'" Id. Moreover, if a plaintiff cannot support each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. at 324.

Race Discrimination

Preliminarily, it is noted that plaintiffs claims of racial discrimination and retaliation, may violate both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Kim v Nash, 123 F.3d 1046, 1059 (8th Cir. 1997). Since plaintiffs claims of race discrimination and retaliation are based on the same alleged conduct, the two claims will be discussed simultaneously. Further, because plaintiffs claims are based on inferences to be drawn from circumstantial evidence, the claims will be analyzed under the McDonnell Douglas burden shifting framework. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d 1079, 1087 (S.D.Iowa 2001);Kim v Nash, 123 F.3d at 1060. Under this analysis plaintiff has the initial burden of establishing a prima facie case of disparate treatment. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This may be done by showing that (1) he is a member of a protected class; (2) he was qualified to perform the duties required; (3) he suffered an adverse employment action; and (4) circumstances give rise to an inference of discrimination, as similarly situated employees, not members of the protected class, were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. at 802. If successful, the burden then shifts to defendant to rebut the presumption of discrimination raised by the prima facie case, by producing evidence that plaintiff was rejected, or someone else was preferred for a legitimate, nondiscriminatory reason. Id. Finally, if defendant carries the burden of showing a legitimate reason, plaintiff is given an opportunity to show that defendant's articulated reason was in fact not the true reason, but a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 804.

As to the claim of race discrimination, plaintiff complains that he received more unfavorable work assignments than his white counterparts. These assignments included heavier loads, more hand unloads, and more frequent deliveries to bad neighborhoods. Plaintiff further complains that the assignment of these undesirable deliveries to him was based on racial discrimination, and that in retaliation for his complaints, the assignments became worse, culminating in his transfer to the mill. These allegations were corroborated by employees West, Davis, and Hamilton. At his deposition, a white employee, Kent West, averred that his job as a loader required him to read the work orders prior to loading the trucks, and he observed that plaintiff received hand unloads "90% of the time." (West Depo. Tr. 14). On several occasions he witnessed Tanner assign deliveries to plaintiff refused by white drivers. And, he heard Tanner refer to plaintiff using the "N" word, as well as referring to African-Americans in general in a derogatory manner. (West Depo. Tr. 16-18). This testimony was essentially repeated by another white employee, Thomas Hamilton, who also averred that plaintiff received more undesirable loads than the white drivers, and who also witnessed Tanner's derogatory references about plaintiff and other African-Americans. (Hamilton Depo. Tr. 22-24). These employees, as well as an African-American employee, Donald Davis, gave statements to the investigator from the Human Relations Department of Kansas City in which they opined that plaintiff was discriminated and/or retaliated against because of his race. Defendant does not dispute that plaintiff is a member of a protected class, or that he was qualified to perform the duties expected of him as a truck driver. However, defendant contends that none of plaintiff s complaints satisfy the element of an "adverse employment action", necessary to make a prima facie case of race discrimination.

"[A]n adverse employment action is exhibited by a material employment disadvantage, such as change in salary, benefits, or responsibilities."Jacob-Mua v. Veneman, 289 F.3d 517, 522 (8th Cir. 2002) quoting, LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir. 2001). InJacob-Mua, the plaintiff alleged that because of her race she was given work assignments not commensurate with her skills, abilities and job functions, denied attendance at a writing workshop, and denied a timely promotion; yet the Court found that none of these allegations rose to the level of an adverse employment action. Jacob-Mua v. Veneman, 289 F.3d at 522. It appears, however, that in reaching this decision the Court took notice of the fact that plaintiff, unlike the plaintiff at bar, also enjoyed a grade and pay increase during her employment with the defendant employer, was permitted to work in the Federal Building at her request, was permitted to hire an assistant, and was granted an unpaid three month leave of absence while she looked for employment in another location. Id. Similarly, an employee's complaint that a male supervisor received an assistant while she did not, and her complaint that she was denied an answering machine and other requested equipment, failed to rise to the level of an adverse employment action; thus, her claims of sex discrimination and retaliation failed. LaCroix v. Sears, Roebuck, and Co., 240 F.3d at 693. Defendant seeks to present a recent case where it was held that transfer to a more physically demanding job does not, in and of itself, establish an adverse employment action. White v. Burlington Northern Santa Fe Railway Company, 310 F.3d 443 (6th Cir. 2002). However, the circumstances presented in White, are clearly distinguishable for those at bar. In White, the plaintiff worked for the defendant employer all of about four months, during which time she complained that she was treated differently because of her sex, and a foreman made inappropriate comments on two occasions. White v. Burlington Northern Santa Fe Railway Company 310 F.3d at 447. No details were given as to how the plaintiff was treated differently, and at the conclusion of an investigation the offending foreman was suspended without pay for ten days, and directed to attend a sexual harassment session. Finally, and most importantly plaintiffs transfer from a forklift operator to a track laborer, a job for which she was initially hired, failed to constitute an adverse employment action. White v. Burlington Northern Santa Fe Railway Company, 310 F.3d at 451.

Nonetheless, where an employee was demoted, but retained his salary, it was held that the demotion constituted a materially adverse employment action. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d 1079, 1089 (S.D.Iowa 2001). The court noted that although the employee's salary remained unchanged, he no longer supervised employees, and having no job description, he received instruction on a semi-daily basis concerning his assigned tasks. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1089. In its reasoning, the court relied on a prior decision by the Eighth Circuit upholding a jury determination that a job transfer was an adverse action, despite a salary increase. Id.; citing, Davis v. City of Sioux City, 115 F.3d 1365, 1369 (8th Cir. 1997). In Davis, the jury found that the plaintiffs transfer to a less desirable position was in retaliation for an earlier filed claim for sexual harassment, and awarded the plaintiff sizable damages. Davis v. City of Sioux City, 115 F.3d at 1369. The Court in Davis, noted that, although the defendant argued that plaintiff received a higher salary, "The jury apparently put more weight on Davis's [plaintiffs] evidence that the new position lacked supervisory status, had fewer opportunities for salary increases, and offered Davis little opportunity for advancement. Id. Here, plaintiffs evidence, taken in a light most favorable to him, means that plaintiff was required to work longer and harder for essentially the same pay than his counterparts, the other white truck drivers. Although defendant contends that plaintiff did not receive more of the hand unloads than the other drivers, the work orders tending to support this contention have been destroyed. A material fact is in controversy.

Prior cases faced with the issue of an adverse employment action are distinguishable. For example, in Harlston v. McDonnell Douglas the Eighth Circuit determined that although the plaintiff was reassigned to a job involving fewer secretarial duties, and was more stressful, it simply amounted to ". . . a mere inconvenience or an alteration of job responsibilities." Harlston v. McDonnell Douglas, 37 F.3d 379, 382 (8th Cir. 1994). The Court reasoned that changes in duties or working conditions that cause no materially significant disadvantage, such as Harlston's reassignment, are insufficient to establish the adverse conduct required to make a prima facie case.
In a more recent case regarding claims of race discrimination and retaliation, the Court again found that the reassignment of plaintiffs staff and a negative statement placed in her file, failed to constitute consequences effecting a material change in the terms or conditions of plaintiffs employment. Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997). The Court repeated its prior reasoning that reassignment to a different position without any reduction in title, salary, or benefits was pretty much "a mere inconvenience."
As noted by Judge Beam's dissent, there is no bright-line test that can be used. Piling on distinctly harder work for the same pay can be as discriminatory as discriminatory pay for the same work. It may simply be harder to prove.

Finally, defendant makes an attempt to argue that plaintiff has also failed to show that similarly situated white employees were treated more favorably. Defendant bases this argument on the suspensions meted out by Tanner to truck driver Mike Simms and yardman Bill Gordon, which plaintiff did not receive, although accused of the same sub-standard job performance. Contrary to defendant's contention, plaintiff disputed the allegations of his poor performance, and defendant did not present any evidence of poor performance, other than Tanner's testimony Again, this evidence, or lack thereof, is enough for a jury to make a reasonable inference that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory motive. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1089. In view of all the circumstances presented, as well as the testimony of plaintiff and other employees, I find that plaintiff has established his prima facie case of race discrimination. Id.

As previously noted, upon plaintiffs establishment of a prima facie case, defendant is obliged to offer a legitimate, nondiscriminatory reason for its actions. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1090; citing, McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. However, it must be remembered that defendant's burden is one of production, not persuasion; it involves no credibility assessment.McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1090; citing, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993). Here, Tanner explained that deliveries were assigned on a rotational basis, unless a driver was more familiar with a particular delivery site. Tanner also stated that although deliveries refused by other drivers were occasionally given to plaintiff, these undesirable deliveries were also assigned to two other white drivers, Mike Simms and "Roy". Without assessing defendant's credibility in offering these explanations, defendant has met its burden of offering a legitimate, nondiscriminatory reason for the deliveries assigned to plaintiff.

Nevertheless, plaintiff contends that the offered reason is a pretext for unlawful discrimination. "It is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiffs explanation of intentional discrimination." McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1090; citing, St. Mary's Honor Center v. Hicks, 509 U.S. at 519. Overall evidence of pretext may allow a reasonable fact-finder to infer that discriminatory animus motivated the employer's adverse employment decision. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1090; citing, Vaughn v. Roadway Express, Inc., 164 F.3d 1087, 1090 (8th Cir. 1998).

Here, there is sufficient evidence for a jury to find that defendant's proffered explanations of assignments to plaintiff are pretextual, and evidence exists from which a jury could reasonably infer that many of the assignments were not legitimate. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1090. Plaintiff claims that, he received a grossly disproportionate share of deliveries consisting of heavy material, which more likely than not, required hand unloading. Although plaintiff was not privy to documentation validating his claim, and Egner claimed that such documents were routinely destroyed, both West and Hamilton testified that, as loaders, they had an opportunity to view the work orders which illustrated that the most undesirable loads were almost always assigned to plaintiff West and Hamilton, as well as Davis, all opined that plaintiff received these assignments because of his race.

Based on all of the afore-mentioned, I find that plaintiffs evidence supporting his prima facie case and his evidence of pretext are sufficient to permit a fact finder to reasonably infer intentional discrimination based on race. Id.

Retaliation

For the reasons just discussed, plaintiffs claim of retaliation has also been established. To establish a prima facie case of retaliation, a plaintiff must show that: (1) he engaged in a statutorily protected activity; (2) an adverse employment action was taken against him; and (3) a causal connection between the two events., among other things, that he suffered an adverse employment action at the hands of the employer.Bassett v. City of Minneapolis, 211 F.3d 1097, 1104-05 (8th Cir. 2000);citing, Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997).

As part of his retaliation claim, plaintiff incorporates the allegations asserted under his discrimination claim. Plaintiff claims that the assignment of unfavorable deliveries and the transfer, were in retaliation for his complaints regarding Tanner's discriminatory conduct. Defendant does not dispute that plaintiffs complaints of discriminatory conduct establish that he engaged in a statutorily protected activity; but continues to argue that the complained of conduct does not constitute an adverse employment action. I disagree, and repeat my finding that plaintiff has established that the working conditions he endured constituted material employment disadvantage. "A series of retaliatory conduct falling short of discharge or termination can, as a matter of law, constitute an adverse action." McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d 1079, 1091 (S.D.Iowa 2001 see also, Bassett v. City of Minneapolis, 211 F.3d 1097, 1105 n. 16 (8th Cir. 2000);citing, Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997). Here, the testimony of plaintiff, and employees West, Hamilton, and Davis establish that plaintiff was subjected to unfavorable working conditions including a disproportionate amount of deliveries consisting of hand unloads and extremely heavy loads. Moreover, these witnesses also stated that plaintiff received these undesirable deliveries and those deliveries refused by white truck drivers because of his race and his complaints of discriminatory conduct.

Defendant counters that even if the complained of conduct could be construed as an adverse employment action, plaintiff has failed to show a causal connection to his engagement in a protected activity. In support of this argument defendant argues plaintiffs transfer was directed by Egner who had no notice of plaintiffs complaints. Therefore, defendant contends that plaintiffs retaliation claim must fail. Without assessing credibility, Tanner testified that plaintiff continuously voiced his complaints of discrimination and that most of the employees, including those who worked in the yard and the mill, and a former foreman, were aware of plaintiffs complaints (Tanner Depo. Tr. 58-60, 63). Tanner also testified that Egner spent ten to twenty-five percent in the yard. (Tanner Depo. Tr. 64). Egner also testified that on a daily basis he spent time in the lumber yard. (Egner Depo. Tr. 21-22, 34). It is therefore, very curious that he was completely unaware of plaintiffs complaints until the transfer was effected. Consequently, plaintiff has raised a genuine issue of material fact concerning the causal connection between the adverse action and his protected activity. McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d at 1092.

Nevertheless, upon finding that plaintiff established a prima facie case of retaliation, the burden again shifts to defendant to articulate a legitimate, nondiscriminatory reason for its actions. Cross v. Cleaver, 142 F.3d 1059, 1071-72 (8th Cir. 1998). Defendant prefers to point to Egner's reason for transferring plaintiff which was flexibility and ease of manpower allocation. Defendant argues against considering Tanner's proffered reason that, based on alleged performance issues, he recommended plaintiff to be transferred to the mill where it would facilitate a close monitoring of plaintiffs job performance. Contrary to defendant's contentions, it is not a matter of choosing one proffered reason over another. Rather, an inference of impropriety arises where as here, two completely different reasons are stated. Although defendant argues that Tanner's reason should not be considered because the ultimate decision rested solely with Egner, the testimony reveals a different theory. Tanner testified that as a foreman his duties included, among other things, supervising employees, and making recommendations regarding work related infractions. Apparently, his recommendations to Egner were given significant weight because the three suspensions he recommended were meted out to employees Simms, Gordon and Hamilton. (Tanner Depo. Tr. 34-40). Egner also testified that when a performance issue arose with plaintiff, "I let him [Tanner] handle it." (Egner Depo. Tr. 22-24, 25-27). As to plaintiffs transfer, Egner testified that he asked Tanner's opinion about who should replace Utley, and although several highly qualified employees were discussed, Tanner recommended that plaintiff replace Utley. (Egner Depo. Tr. 37; Tanner Depo. Tr. 102-03). It would appear that Tanner was unaware of Egner's proffered reason for the transfer, because Tanner testified that Egner did not discuss any concerns about manpower allocation with him (Tanner Depo. Tr. 101). Clearly, here there is a genuine dispute of material fact as to whether plaintiffs transfer to the mill was predicated on his continuing complaints of Tanner's alleged discriminatory conduct toward him. Consequently, I find that defendant has failed to meet its burden of offering a legitimate, nondiscriminatory reason for its actions, and the presumption of retaliation remains. Another ruling could be made during trial, when the opportunity to hear and evaluate evidence may be different.

Hostile Work Environment

Title VII prohibits "discriminatory harassment so severe or pervasive as to alter the conditions of employment and create a hostile working environment." Mems v. City of St. Paul, Department of Fire and Safety Services, 224 F.3d 735, 738 (8th Cir. 2000). However, Title VII's protections extend beyond "`terms' and `conditions' in the narrow contractual sense." Palesch v. Missouri Com'n on Human Rights, 233 F.3d 560 (8th Cir. 2000); quoting, Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). An employer creates a hostile work environment if: (1) the employee is a member of a protected group; (2) the employee is subjected to unwelcome harassment; (3) a causal nexus exists between the employee's membership in the protected group and the harassment; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt and effective remedial action. Mems v. City of St. Paul. Department of Fire and Safety Services. 224 F.3d at 738.

Plaintiff claims that he was subjected to unwelcome harassment by Tanner, on almost a daily basis, by being assigned heavy loads which required unloading by hand, being directed to deliver these loads in unfavorable neighborhoods. Plaintiff also states that Tanner directed him to return 300 to 400 pieces of lumber just before getting off-duty while other employees stood idly by; Tanner directed him to work under unsafe conditions by requiring him to load a window on the top of a load of lumber; and Tanner would direct plaintiff to quickly pull lumber for sale which would ultimately remain unused for weeks. Further harassment took the form of Tanner positioning himself in the path of plaintiff while plaintiff was driving a forklift. According to plaintiff, Tanner continued to harass him after being transferred to the mill by directing him to do additional work not required of the prior mill worker. Plaintiff, as well as, co-workers West, Hamilton and Davis, all testified that plaintiff was harassed on the basis of his race and his complaints of Tanner's discriminatory conduct. These employees also testified that other white drivers were not treated as unfavorably as plaintiff, and that Tanner would often assign undesirable deliveries refused by white drivers to plaintiff.

Defendant, without conceding that the allegations are true, argues that not all unpleasant conduct creates a hostile work environment. Defendant further argues that although other employees testified of overhearing racial jokes and slurs, plaintiffs allegation of a hostile work environment fails because he was not personally subjected to ridicule or insult based on his race. Contrary to defendant's contention, plaintiff testified that when he complained, Tanner repeatedly referred to him as "you people." Plaintiff apparently felt this was a less than flattering description of him because he complained to the union rep about Tanner's use of this phrase. Moreover, co-workers West, Davis and Hamilton testified, and even Tanner admitted, to hearing derogatory comments and jokes regarding race which could well be the foundation upon which the alleged discriminatory conduct rested on. Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999) (racial epithets are often the basis of racial harassment claims, and may likewise create an inference that racial animus motivated other conduct as well.); see also, White v. Honeywell, Inc., 141 F.3d 1270, 1273 (8th Cir. 1998). Indeed, employee West heard Tanner refer to plaintiff as a "lazy nigger", and Hamilton witnessed Tanner use the "N" word in reference to other African-Americans. Based on the evidence here, a jury could find that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment. Mems v. City of St. Paul. Department of Fire and Safety Services, 224 F.3d at 739.

"Perhaps no single act can more quickly `alter the conditions of employment and create an abusive working environment' than the use of an unambiguously racial epithet such as `nigger' by a superior in the presence of his subordinates." McGregory v. Crest/Hughes Technologies, 149 F. Supp.2d 1079, 1093 n. 6 (S.D.Iowa 2001); quoting, Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 439 (2nd Cir. 1999).

Egner testified that prior to plaintiffs transfer to the mill in 1999, he was unaware of any complaints made by plaintiff regarding discrimination. Although plaintiff did not complain directly to Egner, plaintiff testified that he complained to Tanner once a month and to the union steward approximately 10 to 15 times. Plaintiff also complained to several salespeople, and according to Tanner, plaintiff complained of discrimination from 1977 thru 1997. Although Egner states that he did not know of plaintiffs complaints until the transfer, in view of the fact that plaintiff had apparently complained for a significant time, and to a number of people, he arguably would have known of the alleged harassment. Further, Egner testified that after learning of plaintiffs complaint, he attempted to look at past logs to determine if plaintiff was receiving a disproportionate share of undesirable deliveries, but the logs had been destroyed. After speaking with Tanner, who denied any culpability, Egner stated that he concluded plaintiffs allegations were false. Thus, there is a jury question as to whether Egner's actions were effective. Id.

In sum, there are genuine issues of material fact regarding plaintiffs claims of race discrimination, retaliation, and hostile work environment, sufficient to be set forth before a jury. Accordingly, it is hereby

ORDERED that defendant's motion for summary judgment (ECF doc. 31) is DENIED. It is further

ORDERED that defendant's motion to file supplemental suggestions (ECF doc. 47) is DENIED as moot.