The opinion of the court was delivered by: Rodney W. Sippel United States District Judge
Plaintiff Curtis Cruesoe was employed by Defendant MERS/Goodwill Industries. He filed suit against MERS/Goodwill under Title VII and 42 U.S.C. § 1981(a) alleging employment discrimination based on race and retaliation. He also asserts claims regarding a violation of lack of due process rights and wage and religious discrimination. Defendant MERS/Goodwill has moved for summary judgment. Because Cruesoe has failed to establish any of these claims, I will grant summary judgment to MERS/Goodwill.
The following facts are taken from MERS/Goodwill's Statement of Uncontroverted Facts, none of which were disputed by Cruesoe,*fn1 and from the record. "All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party." Ridpath v. Pederson, 407 F.3d 934, 936 (8th Cir. 2005) (citing Local Rule 7-4.01(E) (E.D.Mo. 2004)). Cruesoe is a French-African-American male and a former at-will employee of MERS/Goodwill Industries--a not-for-profit organization that provides employment rehabilitation as well as individual and community services for the underprivileged in Missouri and Illinois. Cruesoe began his tenure with MERS/Goodwill on July 7, 2003, as a Job Developer in the Workforce Development Department, working out of the company's Northwest Plaza location. He was initially assigned to work with a case manager, Jennifer Schinnour. When Schinnour terminated her employment with MERS/Goodwill, Cruesoe was assigned to work with Case Manager Julie Riddle, a co-worker. Both Shinnour and Riddle are Caucasian females.
In February of 2004, Benava Brooks, Cruesoe's immediate supervisor, evaluated Cruesoe's work performance to date. Brooks rated Cruesoe's attendance lower than any of his other performance categories. His work quantity was rated as marginal. She informed Cruesoe that she was concerned with his low placement numbers. As a result, Brooks extended his probationary period by three months. Brooks is an African-American.
It was during Cruesoe's tenure with Case Manager Riddle that the incident that gave rise to this case occurred (however the record does not indicate when exactly this incident occurred). The circumstances were these: Riddle asked Cruesoe to perform a job search for a particular client. Cruesoe refused, believing that the client required further personal assessment from Riddle before she would be ready for placement. In response to Cruesoe's refusal and in the presence of the client and other employees, Riddle yelled such phrases as, "No. I won't take the client back," and "We're not going to talk about it." Cruesoe concedes that Riddle's outburst was not racial in nature, but it is his belief that her outburst was racially motivated.
In response to the foregoing conduct, Cruesoe discussed Riddle's alleged unprofessional conduct with Brooks by telephone conference in the late summer of 2004. In August of 2004, Cruesoe underwent his first annual employment evaluation, at which time Brooks made clear to Cruesoe that he needed to increase his placement numbers as his were currently much lower than the other Job Developers. Specifically, MERS/Goodwill expected Job Developers to find placements for an average of two to three clients per week. Cruesoe placed nine clients between July 2003 and December 2004. Shortly after his performance evaluation, Cruesoe requested a meeting with Brooks to discuss Riddle's alleged unprofessional conduct towards Cruesoe. Brooks acquiesced and requested that Mark Arens, Vice President of Operations and Brooks' immediate supervisor, also attend the meeting.
At the August 2004 meeting between Cruesoe, Brooks, and Arens, Arens turned the discussion to Cruesoe's recent performance evaluation. While Cruesoe's performance evaluation was not the subject of the meeting, Cruesoe concedes that discussion about Riddle opened the door to Cruesoe's performance since Cruesoe accused Riddle of diverting clients from him, thereby resulting in his low placement numbers, which in turn was the subject of his low performance evaluation. Cruesoe further contends that Arens's "tone and demeanor" were offensive, and that such offensiveness and lack of objectivity was racially motivated.
After this meeting, Cruesoe held another telephone conversation with Brooks about the incident with Riddle. During this conversation, Brooks informed Cruesoe that she was considering the separation of Cruesoe and Riddle as a team. Cruesoe acknowledged that separation would diffuse the situation. Shortly thereafter Cruesoe was transferred to the North Oaks location, and Riddle was transferred to the Lippman location. Cruesoe's rate of pay did not change as a result of the relocation.
Cruesoe alleges that an analogous situation took place between three unnamed Caucasian male MERS/Goodwill employees and their Caucasian male supervisor, Mike Griesbaum. In that instance, the three employees all complained about the supervisor's strictness and micromanagement techniques. As a result, the supervisor was relocated to a different facility.
On September 7, 2004, Cruesoe sent a letter to Lewis Chartock, President of MERS/Goodwill, complaining about Riddle's alleged unprofessional conduct towards him as well as Arens' conduct during the meeting to discuss Riddle's outburst. Cruesoe specifically asked that Arens' "inability to remain objective" and Riddle's lack of respect be further investigated. In response to this letter, Dave Kutchback, MERS/Goodwill's Assistant Chief Executive Officer and Chief of Staff, agreed to a meeting with Cruesoe and Riddle to discuss Riddle's conduct and Arens' handling of Cruesoe's prior complaint involving Riddle. During this September meeting, Riddle was allowed to voice her defense. She stated that she never deliberately diverted clients away from Cruesoe, but that she often had difficulty locating him. Cruesoe believed Kutchback supported Riddle's side during this meeting, and contends that Kutchback's demeanor towards Cruesoe was disrespectful and racially discriminatory. Cruesoe asserts that Kutchback's raising this issue of Cruesoe's placement numbers was inappropriate and was raised for intimidation purposes.
On November 9, 2004, Cruesoe wrote another letter to MERS/Goodwill President Chartock, this time complaining of Riddle's conduct, Arens' handling of the August meeting, and Kutchback's handling of the September meeting. Kutchback did not agree to meet with Cruesoe again. Cruesoe construes Kutchback's failure to meet with Cruesoe as a violation of the MERS/Goodwill grievance procedure and alleges that it is his impression that the "violation" was racially motivated.
On December 5, 2004, Cruesoe filed a complaint with the Equal Employment Opportunity Commission (EEOC). In response to the question "What is your religion?" on the EEOC questionnaire, Cruesoe answered "not applicable." Cruesoe agrees that at the time he filed the EEOC complaint, he was filing neither a charge of religious discrimination nor one of wage discrimination. On January 13, 2005, Cruesoe received his right to sue letter from the EEOC. On April 5, 2005, Cruesoe filed suit alleging racial discrimination, harassment, and intimidation in his initial complaint. On his July 8, 2005 amended complaint, Cruesoe asserts additional claims of wage discrimination and religious discrimination. On October 5, 2005, Cruesoe filed his second amended complaint alleging retaliation in that he was demoted and transferred.
In August of 2005, Cruesoe received a second transfer to the Lippman Center location as a Recruiter. Cruesoe's rate of pay remained the same. Cruesoe's Case Manager, whose name is not established by the record, was also transferred to a recruiter position at the same time. Both Cruesoe and his Case Manager were the weakest performers in their respective positions. The Case Manager is Caucasian. A Recruiter's responsibilities include conducting client home visits and placing phone calls to clients. Cruesoe received several verbal and written reprimands from Brooks concerning his repeated absences after reassignment as a recruiter. During the next few months, Cruesoe exceeded his allotted vacation and sick leave. Specifically, Cruesoe missed at least 25 days of work between August 2005 and October 24, 2005.*fn2 Brooks issued a written counseling record on October 24, 2005, in which she advised Cruesoe that if his attendance problems continued further disciplinary action would result.
Cruesoe submitted a request for, and was granted time off to fix his car. Shortly thereafter Cruesoe missed nine successive days of work between January 31, 2006 and February 10, 2006. MERS/Goodwill's Vice President of Human Resources, Philesa White, contacted Cruesoe to determine whether these days off qualified as leave under the Family and Medical Leave Act. Cruesoe told White that he was not interested in applying for Family and Medical Leave for his absences. As a result, on February 24, 2006, Cruesoe was terminated from his employment with MERS/Goodwill by Brooks and White for his excessive absenteeism. Brooks and White are both African-American.
On April 19, 2006, Cruesoe filed a new charge of discrimination alleging his discharge from MERS/Goodwill was in retaliation for filing suit against the organization and for one instance of failure to greet Chartock, (the president of MERS/Goodwill). Cruesoe has not entered into the record a right to sue letter issued regarding this Charge. This claim has not been presented in this case and is not part of this lawsuit.
In considering whether to grant summary judgment, a district court examines the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any ...." Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates 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. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). 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, pleadings, depositions, answers to interrogatories, and admissions on file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When such a motion is made and supported by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient evidence to support the existence of the essential elements of his case on which he bears the burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the plaintiff has an affirmative burden to designate specific facts creating a triable controversy. Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).
Direct evidence of employment discrimination is rare, therefore, most cases rely on circumstantial evidence. In the absence of direct evidence of discrimination, courts employ the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)(Title VII case).*fn3 The McDonnell Douglas burden-shifting analysis used in Title VII cases is also applied to employment discrimination claims based on § 1981. Lockridge v. Board of Trustees of University of Arkansas, 315 F.3d 1005, 1010 (8th Cir. 2003).
Under the burden-shifting analysis, the plaintiff must first establish a prima facie case of intentional discrimination. McDonnell Douglas, 411 U.S. at 802; Bashara v. Black Hills Corp., 26 F.3d 820, 823 (8th Cir. 1994). If the plaintiff establishes a prima facie case, a presumption of discrimination is established and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. 411 U.S. at 802. The defendant need not persuade the court that the articulated reason was the basis of the employer's action; rather, it must simply provide some evidence of a non-discriminatory reason or reasons for its action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993).
Upon the proffer of such evidence, the presumption of discrimination established by the prima facie case "simply drops out of the picture." Id. at 510-11. The burden then shifts back to the plaintiff to prove that the reason articulated by the employer was really a pretext for discrimination. Aucutt, 85 F.3d at 1316. A rejection of the employer's proffered nondiscriminatory reason by itself or combined with elements of the prima facie case may be enough to establish, but does not compel, an inference of intentional discrimination. St. Mary's Honor Center, 509 U.S. at 511.
The burden of proving discrimination remains on the plaintiff at all times. Id. at 515-16.
It is not enough to merely discredit defendant's articulated reason for the adverse employment action. A plaintiff must always establish that the real reason for defendant's action was impermissible discrimination. Id.; see also Huston v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995). To avoid summary judgment, a plaintiff must present evidence that, when viewed in its entirety: (1) creates a fact issue as to whether the employer's proffered reason is pretextual, and (2) creates a reasonable inference that a discriminatory motive was a determinative factor in the adverse employment decision. Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996).
Cruesoe's claims arise under Title VII and 42 U.S.C. § 1981 and include racial discrimination based on harassment and disparate treatment under Title VII and § 1981, retaliation under Title VII and § 1981, and wage and religious discrimination. "In analyzing intentional discrimination claims, brought under § 1981, we apply the same standards as we would apply to similar Title VII claims." Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 907 (8th Cir. 2003). As noted previously, undisputed facts are deemed admitted. Ridpath, 407 F.3d at 936.
Cruesoe's claims of racial discrimination are based on MERS/Goodwill's response to complaints made by Cruesoe against a co-worker. The incident giving rise to Cruesoe's multiple verbal and written complaints took place in mid-2004, when Cruesoe's co-worker yelled certain phrases at him including "No. I won't take the client back," and "we're not going to talk about it," in the presence of a client and other co-workers. These comments were made in response to Cruesoe's refusal to perform a job search for a client because he felt the client required further assessment. Because Cruesoe does not offer any direct evidence of discrimination, his claims will be analyzed under the burden-shifting framework of McDonnell Douglas.
To establish a prima facie case of harassment/hostile work environment, Cruesoe must establish: (1) he is a member of a protected group; (2) he was subject to unwelcome harassment; (3) the harassment was based upon race; (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 ...