JON STUART SCOLES, United States Magistrate Judge.
I. INTRODUCTION ............................................................1086II. PROCEDURAL BACKGROUND ...................................................1087III. RELEVANT FACTS ..........................................................1087A. Promotions Sought by Clay ..............................................10871. Collection Trainer ................................................10872. Legal Collector ....................................................10883. Front Line Supervisor ..............................................10884. PPA Supervisor and PPA Team Lead ...................................1089B. Clay's Disciplinary History at CBE .....................................10891. Coachings ..........................................................10892. Verbal Warning .....................................................1091IV. LEGAL STANDARD FOR SUMMARY JUDGMENT ....................................1092V. DISCUSSION .............................................................1092A. Are Clay's Claims Timely? ..........................................1092B. Did CBE Discriminate Against Clay Based on Her Race? ...............10961. Race Discrimination Based on Discipline ........................10962. Race Discrimination Based on a Failure to Promote ..............10983. Race Discrimination Based on a Hostile Work Environment ........1100C. Clay's Retaliation Claim ...........................................1103D. Clay's Constructive Discharge Claim ................................1104VI. CONCLUSION ..............................................................1105VII. ORDER ...................................................................1105
This matter comes before the Court on the Motion for Summary Judgment (docket number 17) filed by Defendant Credit Bureau Enterprises, Inc. on March 16, 2012; the Resistance (docket number 21) filed by Plaintiff Rachel Clay on April 20, 2012; and the Reply (docket number 28)
Plaintiff Rachel Clay ("Clay") timely filed charges of race discrimination in employment against Defendant Credit Bureau Enterprises, Inc. ("CBE") with the Iowa Civil Rights Commission ("ICRC"). The charges were also cross-filed with the Equal Employment Opportunity Commission ("EEOC"). On July 23, 2008, the ICRC administratively closed Clay's complaint, finding no probable cause warranting farther investigation of her claims of discrimination. On September 23, 2008, the EEOC adopted the findings of the ICRC, and also administratively closed Clay's complaint.
On March 1, 2011, Clay filed a Complaint and Jury Demand (docket number 2) alleging race discrimination, harassment, hostile work environment, retaliation, and constructive discharge in violation of 42 U.S.C. § 1981 (Count I). On April 8, 2011, CBE filed an Answer and Defenses (docket number 5), generally denying the material allegations contained in the complaint, and asserting certain affirmative defenses. On May 6, 2011, both parties consented to proceed before a United States Magistrate Judge, pursuant to the provisions set forth in 28 U.S.C. § 636(c). Trial is scheduled before the undersigned on June 25, 2012. Defendant filed the instant Motion for Summary Judgment (docket number 17) on March 16, 2012.
CBE is an Iowa corporation with its home office in Cedar Falls, Iowa. CBE engages in the business of debt collection for various industries and organizations nationwide. In March 2005, Clay began employment with CBE as a Front Line Collector. She also held positions as a PPA Collector and Quality Control Specialist. In February 2008, Clay resigned from employment with CBE for "personal reasons."
On January 16, 2006, Clay applied for the position of Collection Trainer. Seventeen people applied for the position. Clay was not selected for a second interview. Kelli Krueger, manager of training and recruiting, explained to Clay:
CBE's Appendix (docket number 17-4) at 116. Nate Sorenson was selected to fill the position of Collection Trainer. In answers to questions from the ICRC, CBE stated that Sorenson was selected for the position because he:
CBE's Appendix (docket number 17-4) at 106.
On May 15, 2006, Clay applied for a position as a Legal Collector, or Post-Judgment Collector. Seven people applied for this position. CBE selected Connie Jensen to fill the position. In answers to questions from the ICRC, CBE explained that Jensen was selected for the position because of her "extensive front line collection experience, coupled with her extensive experience in skip tracing. [Jensen] has been employed with CBE since April, 2000."
On December 29, 2006, Clay applied for a position as a Front Line Supervisor. Twelve people applied for this position. On January 8, 2007, Clay interviewed for the position with Natalie Wissink and Kevin White. On January 11, 2007, Clay learned that she would not receive a second interview for the Front Line Supervisor position. Wissink and White offered feedback to Clay, and advised her that "there were other employees who had proven leadership qualities in a running a team" who received second interviews.
CBE's Appendix (docket number 17-4) at 92.
CBE has no record of Clay applying for either a PPA Supervisor position, or a PPA Team Lead position. According to her deposition testimony, Clay applied for these positions around the same time as she applied for the Front Line Supervisor position. In her deposition, Clay stated:
Clay's Appendix at 9; Clay's Deposition at 47:1-48:8.
CBE has four levels of disciplinary action. The four levels are: (1) coaching, (2) verbal warning, (3) written warning, and (4) suspension. Between May 2005 and February 2007, Clay received six coachings and one verbal warning. During the last 12 months of Clay's employment, there are no records of Clay receiving any type of disciplinary action from CBE.
On May 27, 2005, Clay received a coaching from Michael Fetters, her supervisor,
CBE's Appendix (docket number 17-4) at 82. Clay responded to the coaching in writing. She stated that her trip to the restroom was both an isolated instance and an emergency. Clay also stated that she believed the coaching was a "direct attack against me personally because if I had not gone to the restroom [at] 7:13 am what would this coaching have been about? This form was previously created specifically for me, waiting for me on the 27th, without legitimate cause."
CBE's Appendix (docket number 17-4) at 30-31; Clay's Deposition at 121:10-122:3.
On June 14, 2005, Clay received a coaching from Fetters for discussing an unavailable settlement and rehabilitation option with a borrower. Fetters noted that Clay must "pay close attention to who has ownership of an account before we talk to the borrower about the account."
Clay's Appendix at 24-25; Clay's Deposition 109:23-110:15.
On November 4, 2005, Clay received a coaching for a "VAP error report" from Sabrina Lowery, one of Clay's supervisors. In her deposition, Clay noted that she did not find this coaching to be discriminatory. She stated "vap errors happen all the time. It wasn't a big deal."
On February 27, 2006, Clay received a coaching for violating CBE's dress code. According to CBE, Clay wore sweatpants to work, which is a violation of the dress code outlined in the Employee Handbook. In her deposition, Clay stated that she believed this coaching was an act of discrimination:
CBE's Appendix (docket number 17-4) at 28; Clay's Deposition at 118:5-15.
On April 13, 2006, Clay received a coaching from Lowery for running a borrower's credit card twice and causing an insufficient-funds charge for the borrower. Clay did not dispute the coaching and indicated in her deposition that it was not an act of discrimination. On February 23, 2007, Clay received a coaching from Fetters for a "VAP error." Again, Clay did not dispute the coaching or believe that it was an act of discrimination against her.
On February 6, 2006, Clay received a verbal warning from Beth Akenbauer, a supervisor, for attendance issues, including tardiness and use of paid-time-off ("PTO") versus make-up time. CBE's record of Clay's verbal warning provides:
CBE's Appendix (docket number 17-4) at 81. In her deposition, Clay admitted that nothing in the verbal warning report constituted "an act of discrimination" against
Summary judgment is appropriate if the moving party shows that "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(a). A genuine dispute as to a material fact "`exists if a reasonable jury could return a verdict for the party opposing the motion.'" Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.2010) (quoting Humphries v. Pulaski County Special School District, 580 F.3d 688, 692 (8th Cir.2009)). A fact is a "material fact" when it "might affect the outcome of the suit under the governing law...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to establish the existence of a genuine dispute as to a material fact, the non-moving party "`may not merely point to unsupported self-serving allegations.'" Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir.2008) (quoting Bass v. SBC Communications, Inc., 418 F.3d 870, 872 (8th Cir.2005)). Instead, the non-moving party "`must substantiate [its] allegations with sufficient probative evidence that would permit a finding in [its] favor.'" Anda, 517 F.3d at 531 (quoting Bass, 418 F.3d at 873); see also Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (A nonmoving party must offer proof "such that a reasonable jury could return a verdict for the nonmoving party."). "`Evidence, not contentions, avoids summary judgment.'" Reasonover v. St. Louis County, Mo., 447 F.3d 569, 578 (8th Cir.2006) (quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir.2003)). The court must view the record in the light most favorable to the nonmoving party and afford it all reasonable inferences. Baer Gallery, Inc. v. Citizen's Scholarship Foundation of America, Inc., 450 F.3d 816, 820 (8th Cir.2006) (citing Drake ex rel. Cotton v. Koss, 445 F.3d 1038, 1042 (8th Cir.2006)).
CBE asserts that it is entitled to summary judgment on Clay's claims of discrimination because her claims are untimely. In the alternative, CBE argues that Clay's claims of race discrimination, hostile work environment/harassment based on race, retaliation, and constructive discharge all fail as a matter of law. Clay resists and argues that (1) her claims are timely, and (2) CBE is precluded from summary judgment because material facts are in dispute with regard to the issues of race discrimination, hostile work environment/harassment based on race, retaliation, and constructive discharge.
The applicable statute of limitations for a race discrimination claim under 42 U.S.C. § 1981 is four years. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004) (providing that the 4-year statute of limitations provision in 28 U.S.C. § 1658 is applicable to claims under § 1981). Clay filed her complaint on March 1, 2011. Therefore, in order to meet the applicable statute of limitations, Clay's claims must have occurred on or after March 1, 2007.
CBE argues that "[b]ecause the majority of events that comprise the basis of Clay's claims took place prior to March 1, 2007, each claim of discrimination, harassment, or retaliation that is based on those events should be dismissed as time-barred."
Clay argues that all of her claims "reach back to all continuing violations that existed on or after March 11, 2007 [sic]."
Clay's Brief in Support of Her Resistance to Defendant's Motion for Summary Judgment (docket number 21-3) at 14.
In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the United States Supreme Court addressed the continuing violation doctrine in Title VII cases. The Supreme Court determined that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act." Id. at 113, 122 S.Ct. 2061. The Supreme Court further explained that:
Id. at 114, 122 S.Ct. 2061.
The Supreme Court further determined, however, that hostile work environment claims are different in kind from discrete acts of discrimination. Id. at 115, 122 S.Ct. 2061. Specifically, in hostile work environment claims, "[t]he `unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. (Citation omitted). The Supreme Court concluded that because "the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within [the statutory period] of any act that is part of the hostile work environment." Id. at 118, 122 S.Ct. 2061. The Supreme Court illustrated this conclusion as follows:
Id. Factors to consider in determining a continuing violation include "whether the same harasser committed the same harassing acts before and after the limitations deadline; whether the employer was made aware of the earlier harassment; and whether there was any `intervening action' by the employer that could fairly be said to have caused the later acts of harassment to be unrelated to the earlier, otherwise untimely acts." Morris v. Conagra Foods, Inc., 435 F.Supp.2d 887, 902 (N.D.Iowa 2005); see also Rowe v. Hussmann Corp., 381 F.3d 775, 781 (8th Cir.2004) (Finding a continuing violation because "it was the same harasser ... committing the same harassing acts both before and after [the limitations period with] ... no evidence of any `intervening action[.]").
While Morgan only specifically addresses the limitations period for Title VII claims, the Eighth Circuit Court of Appeals has determined that the principles discussed in Morgan are applicable in employment discrimination claims brought under § 1981. See Madison v. IBP, Inc., 330 F.3d 1051 (8th Cir.2003) ("Because § 1981 allows for recovery for the same type of employment discrimination as Title VII, we believe that the distinction between discrete acts and hostile work environment claims should have equal effect on the respective recovery periods for the two statutes.").
Here, Clay's claims of race discrimination based on discipline, failure to promote, and retaliation are all based on incidents which occurred before March 1, 2007. Clay's disciplinary record while employed at CBE involved six coachings between May 27, 2005 and February 23, 2007. Clay also had a verbal warning on February 6, 2006. Clay's claim of failure to promote because of her race involves applications to various positions between January 2006 and January 2007. With regard to retaliation, Clay focuses on two incidents in January 2007 and April 2007.
Turning to her claim of a hostile work environment, Clay simply asserts that her "Statement of Additional Disputed Facts shows that acts of discrimination, retaliation, and actions which constitute a hostile work environment occurred within the statute of limitations period from March 11, 2011, [sic] back to March 11, 2007 [sic]."
Clay's assertion of a hostile work environment is based on an amalgamation of discrete incidents, involving different departments within CBE and different CBE employees, and not one "unlawful employment practice." See Morgan, 536 U.S. at 118, 122 S.Ct. 2061; see also Morris, 435 F.Supp.2d at 902. In other words, Clay's claim is not like the plaintiff's claim in Rowe, where:
381 F.3d at 781 (Citations omitted). Here, Clay's allegations of a hostile work environment are not similar in nature, frequency, and severity before and after the limitations period. Id. As CBE correctly points out, Selberg's actions and Teal's actions are not related to Clay's complaints and allegations during the pre-limitations time period. Clay also offers no evidence
Even if Clay's claims had been timely filed, the Court believes they are without merit. Clay alleges that she was discriminated against based on her race in violation of 42 U.S.C. § 1981. Specifically, Clay argues that she was discriminated against because: (1) she was disciplined more harshly than other employees because of her race; (2) she did not receive promotions due to her race; (3) she was subjected to a hostile work environment because of her race; and (4) CBE retaliated against her for complaining about race discrimination. Finally, Clay also argues that she was constructively discharged as a result of the race discrimination she faced while employed at CBE.
Because Clay presents no direct evidence of intentional race discrimination, but rather bases her claims on circumstantial evidence, the Court applies the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to Clay's race discrimination claims.
In order to establish a prima facie case of race discrimination, Clay must show
CBE concedes that Clay meets the first two elements of her prima facie race discrimination case. As to the third element, Clay argues that CBE's "disciplinary actions affected her ability to receive promotions and therefore denied her an increase in pay."
Turning to the fourth element, Clay maintains that:
Clay's Brief in Support of Her Resistance to Defendant's Motion for Summary Judgment (docket number 21-3) at 32. Clay refers the Court to various numbered paragraphs contained in her Statement of Additional Undisputed Facts to support her contention that she was treated differently than her white co-workers. See id.
For example, Clay alleges that white employees were not disciplined for committing mistakes;
Clay also alleges that unlike white employees, African American employees were not allowed to get away with unexcused absences.
Additionally, Clay alleges that when she was called into a conference room by a supervisor, she felt "a humiliating, stigmatizing effect that white employees were generally spared from."
Based on the foregoing, the Court believes that Clay has failed to meet the requirements of element four of her prima facie case of race discrimination. Clay has not offered evidence that other employees, who were not in the protected class, were similarly situated. Specifically, she has not shown other employees who "`have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.'" Barber, 656 F.3d at 796. (quotation omitted). Instead, Clay has offered nothing more than her opinion that other employees were similarly situated and treated more favorably. Therefore, Clay's claim for race discrimination based on discipline does not survive summary judgment because she is unable to "substantiate her allegations with more than `speculation, conjecture, or fantasy.'" Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037 (8th Cir.2004) (per curiam) (citing Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003)). Accordingly, the Court determines that because Clay is unable to establish her prima facie case, CBE is entitled to summary judgment on Clay's race discrimination claim based on discipline, even if it had been timely filed.
A prima facie case for an allegation that an employer failed to promote an employee because of his or her race requires the plaintiff to show that: (1) she is a member of a protected group; (2) she applied for a promotion to a position for which the employer was seeking applicants and for which she was qualified; (3) she was not promoted; and (4) similarly situated employees who did not belong to the protected class were promoted instead. Bennett v. Nucor Corp., 656 F.3d 802, 819-20 (8th Cir.2011) (citing Austin v. Minnesota Mining & Mfg. Co., 193 F.3d 992, 995 (8th Cir.1999)). Because Clay is a member of a protected group, applied for various positions for which the employer was seeking applicants, was not promoted, and employees not belonging to the protected class were promoted instead of her, the Court finds that Clay has met the requirements of her prima facie case.
Therefore, the burden shifts to CBE to articulate a legitimate non-discriminatory reason for promoting other employees outside the protected class, instead of promoting Clay to various positions posted at CBE. Here, CBE sets forth that Clay was not promoted to: (1) the Collection Trainer and Legal Collector positions because
Therefore, the burden shifts back to Clay to present evidence that the employer's reasons were a pretext for race discrimination. Clay argues that the individual who was hired for the Collection Trainer position did not actually have more experience than she did. Clay asserts that she did not receive the Legal Collector position because she was too good of an employee to be moved from her current position. Clay maintains that the Frontline Supervisor position was ultimately cancelled because of Clay's race. Lastly, Clay argues that she informally applied for the PPA Supervisor and PPA Team Lead positions by telling her supervisor that she wanted to be considered for those positions.
In order to support a finding of pretext, Clay must show that CBE hired a less qualified candidate. Torgerson v. City of Rochester, 643 F.3d 1031, 1049 (8th Cir. 2011). Nate Sorenson was selected to fill the position of Collection Trainer. In answers to questions from the ICRC, CBE stated that Sorenson was selected for the position because he:
CBE's Appendix (docket number 17-4) at 106. Similarly, CBE selected Connie Jensen
Regarding the Frontline Supervisor position, Clay offers no evidence to support her contention that the position was not filled because of her race. CBE determined that due to budgetary issues and supervisor-to-collector ratios, the position did not need to be filled.
Similarly, Clay's claim that she informally applied for the PPA Supervisor and PPA Team Lead positions is only supported by her deposition claim that her supervisor told her that she would get an interview for those positions. She offers no other evidence to support this contention. Moreover, there is no evidence that she formally applied for either position. Therefore, the Court finds that CBE is entitled to summary judgment on Clay's claim for discrimination in failure to promote her to the PPA Supervisor and PPA Team Lead positions. See Reasonover, 447 F.3d at 578 ("`Evidence, not contentions, avoids summary judgment.'") (quotation omitted).
In conclusion, the Court finds that even if her lawsuit had been timely filed, Clay has failed to show that she was not promoted by CBE to various positions throughout her employment due to race discrimination. Specifically, Clay has failed to show that CBE's legitimate, non-discriminatory reasons for not promoting her were pretext for race discrimination. Accordingly, the Court determines that CBE is entitled to summary judgment on Clay's race discrimination claim for failure to promote.
The standards applied to evaluate a hostile work environment claim under 42 U.S.C. § 1981, are the same standards used to evaluate such a claim under Title VII. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.2010) (citing Ross v. Kansas City Power & Light Co.,
"Hostile work environment harassment occurs when `the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Singletary v. Missouri Department of Corrections, 423 F.3d 886, 892 (8th Cir.2005) (quoting Tademe v. Saint Cloud State University, 328 F.3d 982, 991 (8th Cir.2003)). "The environment must be both objectively hostile as perceived by a reasonable person and subjectively abusive as actually viewed by [the plaintiff]." Anderson, 606 F.3d at 518 (citing Bowen v. Missouri Department of Social Services, 311 F.3d 878, 883 (8th Cir. 2002)). In considering the objective component, courts examine the totality of the circumstances, "including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interfered with the employee's work performance." Singletary, 423 F.3d at 893 (citing Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir.2004)). Additionally, if a plaintiff attempts to establish a hostile work environment based on the actions of co-workers, she must also show that "the employer knew or should have know of the harassment and failed to take prompt and effective remedial action." Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir.2008) (citation omitted). Finally, in Anderson, the Eighth Circuit Court of Appeals explained the demanding nature of the standards required to be met in a hostile work environment claim:
606 F.3d at 519 (quotations omitted).
In her brief, Clay does not explicitly address any instances of a hostile work environment. Instead, Clay refers to approximately 58 paragraphs in her Statement of Additional Disputed Facts and Inferences, which she asserts support her claim of a hostile work environment. See Clay's Brief in Support of Her Resistance to Defendant's Motion for Summary Judgment (docket number 21-3) at 16-17 (listing paragraphs in Statement of Additional Disputed Facts and Inferences). In reviewing these paragraphs, approximately 7 refer to instances of discipline, 3 refer to CBE's failure to promote her, 7 refer to generally being treated differently than white co-workers, and 9 refer to single instances where 9 different supervisors or co-workers allegedly made derogatory comments or treated her differently than white employees.
The paragraphs that refer to instances of discipline and failure to promote are the same paragraphs used by Clay to support her claims of race discrimination in discipline and failure to promote. In sections V.B.I and 2, the Court determined that Clay failed to present sufficient evidence of race discrimination in the areas of discipline
The other paragraphs discuss ways in which Clay was treated differently from other white employees, and instances of derogatory comments. These allegations include: (1) a general allegation of receiving a less desirable shift assignment than white co-workers; (2) a general allegation that Scott Swonger, a supervisor, audited her calls more than her white co-workers; (3) unidentified "supervisors" not allowing African-Americans to talk to each other at their work stations; (4) supervisors in the Quality Control department not allowing Clay to dock time to take care of her children, but allowing white employees to do so; (5) overhearing that a co-worker in a different department called an African-American supervisor in that department, a "black bitch"; (6) Teresa Mendenhall, a supervisor, referring to Clay's hair as "nappy"; and (7) knowledge that two supervisors in different departments, Kim Postal and Jay Bracken, made at least three derogatory comments about African-Americans.
Other than her general allegations that she received a less desirable shift assignment than her white co-workers, Swonger audited her calls more than white co-workers, unidentified supervisors not allowing African-Americans to talk to each other at their work stations, and supervisors in the Quality Control Department not allowing her to dock time to take care of her children, but allowing white co-workers to do so, Clay offers no evidence to support these contentions. See Reasonover, 447 F.3d at 578 ("`Evidence, not contentions, avoids summary judgment.'") (quotation omitted). With regard to the alleged derogatory comments in the workplace, Clay alleges one comment made to her by Mendenhall and "knowledge" of other comments made by supervisors and co-workers in different departments from Clay's department. "`Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" Anderson, 606 F.3d at 519 (quoting Arraleh v. County of Ramsey, 461 F.3d 967, 979 (8th Cir.2006)). While, if true, the Court does not condone the four derogatory comments alleged by Clay to have been made in the workplace, the Court nevertheless finds that the comments were isolated incidents, and do not rise to the level necessary for a hostile work environment. See Id.
Additionally, Clay points out several instances with Kim Selberg, another supervisor, who Clay alleges subjected her to a hostile work environment because of her race. Specifically, Clay alleges that Selberg: (1) did not give her requested time-off that she gave white employees on two separate instances; (2) did not provide positive comments regarding her work; (3) once purposefully changed her time log to reflect that she was late from her lunch break when she was not late; and (4) did not allow her to have items on her desk that white employees could have on their desks. Again, other than her general allegations, Clay offers no evidence to support these contentions. See Reasonover, 447 F.3d at 578 ("`Evidence, not contentions, avoids summary judgment.'") (quotation omitted). Moreover, on April 6, 2007, Clay spoke with Misty Erdahl, a manager at CBE, about the problems she had with Selberg. In response, CBE moved Clay's desk away from Selberg's desk and assigned her to a different supervisor.
Section 1981 retaliation claims are analyzed under the same framework as Title VII claims. Gacek v. Owens & Minor Distribution, Inc., 666 F.3d 1142, 1146 (8th Cir.2012). In order to establish a prima facie case of retaliation, Clay must show that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists between the two events. Id.
Clay is unable to meet the requirements of her prima facie case. The record contains no formal complaint of race discrimination or racial harassment to CBE. Clay argues that the "clearest retaliation [she] faced occurred on January 23, 2007, when Director Mendenhall called [her] into a conference room and informed [her] that her complaints of racial discrimination `were not acceptable.'"
Clay also asserts that her meeting with Misty Erdahl on April 6, 2007, about the problems she had with Selberg, was an instance of retaliation. Again, Clay's assertion is not supported by the record. In
Clay also claims that she was constructively discharged from her employment with CBE. Specifically, Clay argues that "[i]f she endured any discrimination or retaliation or even some of the hostility described above, she had a right to resign her position and maintain a claim for damages that should be self evident."
In order to prove a claim of constructive discharge, Clay must show that her "`employer deliberately created intolerable working conditions with the intention of forcing her to quit.'" Sanders v. Lee County School District No. 1, 669 F.3d 888, 893 (8th Cir.2012) (quoting Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 418 (8th Cir.2010)). In other words, if "`an employee quits because she reasonably believes there is no chance of fair treatment, there has been a constructive discharge.'" Henderson v. Simmons Foods, Inc., 217 F.3d 612, 617 (8th Cir. 2000) (quoting Kimzey v. Wal-Mart Stores, 107 F.3d 568, 574 (8th Cir.1997)). In Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir.2000), the Eighth Circuit Court of Appeals explained that:
Id. (citations omitted). Evidence of the employer's intent may be proven "through direct evidence or through evidence that `the employer ... could have reasonably foreseen that the employee would quit as a result of its actions.'" Fercello v. County of Ramsey, 612 F.3d 1069, 1083 (8th Cir. 2010) (quoting Wright v. Rolette County, 417 F.3d 879, 886 (8th Cir.2005)), The employee, however, is required to give her "employer a reasonable opportunity to resolve a problem before quitting." Sanders, 669 F.3d at 893.
The record does not support Clay's constructive discharge claim. According to her resignation, Clay quit for "personal reasons."
The Court concludes that CBE is entitled to summary judgment on all of Clay's claims. Clay's claims are untimely and do not meet the applicable statute of limitations for a race discrimination claim brought under 42 U.S.C. § 1981. Alternatively, CBE has shown that there is no genuine dispute as to any material fact on Clay's race discrimination, hostile work environment, retaliation, and constructive discharge claims, and is therefore, entitled to judgment as a matter of law. FED. R.CIV.P. 56(a). Thus, CBE's motion for summary judgment is granted.
1. The Motion for Summary Judgment (docket number 17) filed by Defendant Credit Bureau Enterprises, Inc. on March 16, 2012, is hereby
2. The Complaint (docket number 2) filed by Plaintiff Rachel Clay on March 1, 2011, is hereby
3. The trial scheduled on June 25, 2012 and the final pretrial conference set for June 1, 2012 are hereby
4. All other pending motions are
TABLE OF CONTENTS
I. INTRODUCTION ..........................................................1105
II. PROCEDURAL HISTORY ....................................................1105
III. LEGAL FRAMEWORK FOR RULES 59(e) AND 60(b) .............................1106
IV. DISCUSSION ............................................................1106
A. Timeliness of Clay's Claims .......................................1106
1. Discrimination Based on Discipline ............................1107
2. Discrimination Based on Failure to Promote ....................1108
3. Discrimination Based on Retaliation ...........................1108
4. Hostile Work Environment Claim and Continuing Violation
Doctrine ....................................................1110
B. Merits of Clay's Claims ...........................................1111
V. CONCLUSION ............................................................1112
VI. ORDER .................................................................1112
This matter comes before the Court on the Motion for Relief from Judgment and/or Motion to Alter or Amend Judgment (docket number 44) filed by Plaintiff Rachel Clay on June 19, 2012; and the Resistance (docket number 48) filed by Defendant Credit Bureau Enterprises, Inc. ("CBE") on July 6, 2012. Pursuant to Local Rule 7.c, the motion will be decided without oral argument.
On March 1, 2011, after fully exhausting her administrative remedies, Clay filed a Complaint and Jury Demand (docket number 2) alleging race discrimination, harassment, hostile work environment, retaliation, and constructive discharge in violation
Federal Rule of Civil Procedure 59(e) allows for the filing of a motion to alter or amend a judgment no later than 28 days after judgment has been entered. Id.; see also Wells Fargo Bank, N.A. v. WMR e-PIN, LLC, 653 F.3d 702, 714 (8th Cir.2011) (discussing Rule 59(e)). A Rule 59(e) motion serves the "`limited function of correcting manifest errors of law or fact or to present newly discovered evidence.'" Id. at 714 (quoting Lowry v. Watson Chapel School District, 540 F.3d 752, 761 (8th Cir.2008)). Rule 59(e) motions cannot be used to introduce new evidence, offer new legal theories, or raise arguments which could have been raised prior to entry of judgment. United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.2006).
Federal Rule of Civil Procedure 60(b) provides that a court may relieve a party from a "final judgment, order, or proceeding[.]" Id. The rule provides six enumerated reasons as grounds for relief. In her motion, Clay fails to identify which enumerated ground for relief is applicable to her case. It appears, however, that ground number six is the only enumerated ground which would apply in this matter. Specifically, Rule 60(b)(6) is a "catch-all" provision that states relief may be granted for "any other reason that justifies relief." In Harley v. Zoesch, 413 F.3d 866 (8th Cir.2005), the Eighth Circuit Court of Appeals explained that "[r]elief is available under Rule 60(b)(6) only where exceptional circumstances have denied the moving party a full and fair opportunity to litigate his [or her] claim and have prevented the moving party from receiving adequate redress." Id. at 871. A Rule 60(b) motion "is not a vehicle for simple reargument on the merits." Broadway v. Norris, 193 F.3d 987, 990 (8th Cir.1999).
In the ruling on CBE's motion for summary judgment, the Court determined that Clay's claims were time-barred because all of Clay's claims for race discrimination based on discipline, failure to promote, and retaliation occurred before March 1, 2007, the applicable statute of limitations date. The Court also determined that Clay's hostile work environment claim was time-barred because her allegations of a hostile work place were not part of one unlawful employment practice, and did not create a continuing violation. Clay argues that the Court made "manifest errors of fact" by not considering: (1) three disciplinary actions that allegedly took place after March 1, 2007; (2) the fact that Clay was never promoted to a team lead position after March 1, 2007, despite graduating from the Team Lead training program on July 17, 2007; (3) multiple instances of retaliation that occurred after March 1, 2007; (4) multiple instances of a hostile work environment that occurred after March 1,
Clay asserts that she suffered race-based discipline on three instances after March 1, 2007. Specifically, Clay points to instances of discipline on March 15, 2007, August 7, 2007, and August 14, 2007. Clay concedes that none of these instances of alleged discipline were documented by CBE. As evidence for these instances of discipline, Clay refers to a written statement she provided to the Iowa Civil Rights Commission ("ICRC"), detailing various disciplinary actions taken against her by CBE. Specifically, on March 15, 2007, Clay claims that she was taken into a conference room and told her pants violated the dress code. Apparently, she was allowed to wear her pants for the remainder of the day, and was not actually disciplined for the incident.
While the Court recognizes that on a motion for summary judgment, the record must be viewed in the light most favorable to the nonmoving party and the nonmoving party must be afforded all reasonable inferences, the nonmoving "`may not merely point to unsupported self-serving allegations, but must substantiate [her] allegations with sufficient probative evidence[.]'" Reed v. City of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir.2009) (quoting Bass v. SBC Communications, Inc., 418 F.3d 870, 872-73 (8th Cir.2005)); see also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.2007) ("Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment."). In Davenport v. Riverview Gardens School District, 30 F.3d 940 (8th Cir.1994), the Eighth Circuit addressed a Title VII race discrimination claim where among other things, the plaintiff, a discharged employee, argued that similarly situated white employees committed the same infractions, but were not discharged. Id. at 945. In addressing the plaintiffs argument, the Eighth Circuit determined:
Id. Similarly, in Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104 (8th Cir.
Id. (citations omitted).
Here, Clay's allegations of discipline after March 1, 2007, fall into the category of "[m]ere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions[.]" Thomas, 483 F.3d at 527. Clay presents no probative evidence to support her claims of race-based discipline after March 1, 2007. See Reed, 561 F.3d at 790. Accordingly, the Court finds that Clay has failed to present any manifest errors of law or fact or any newly discovered evidence requiring the Court to alter or amend judgment on this issue.
Clay asserts that she was discriminated against by CBE's failure to promote her after March 1, 2007. Specifically, Clay argues that she:
Clay's Brief in Support of Her Motion for Relief from Judgment and/or Motion to Alter or Amend Judgment (docket number 44-1) at 5. While Clay refers to an instance where she was allowed to submit an informal application for a promotion to a Team Lead position in January 2007, she presents no evidence with regard to a formal or informal application for a Team Lead position after March 1, 2007. Moreover, Clay fails to present any evidence regarding the qualifications of an individual who ultimately received a Team Lead position she applied for after March 1, 2007. See Rose-Maston, 133 F.3d at 1109-10 (granting summary judgment in a failure-to-promote claim because the plaintiff failed to present sufficient evidence regarding the qualifications of the individual who obtained the position). Additionally, there is no probative evidence suggesting that graduation from CBE's Team Lead training program automatically guarantees a promotion to a Team Lead position. Therefore, the Court concludes that Clay's argument has no merit with regard to the issue of timeliness. Accordingly, the Court finds that Clay has failed to present any manifest errors of law or fact or any newly discovered evidence requiring the Court to alter or amend judgment on this issue.
Clay asserts that she suffered retaliation on five instances after March 1, 2007. Specifically, Clay points to instances of retaliation in (1) March 2007, (2) March 12, 2007, (3) March 15, 2007, (4) April 6, 2007, and (5) January 14, 2008. Numbers 1 and 2 appear to refer to the same incident on March 12, 2007. Clay offers no discussion of this incident in her brief. This incident involved Clay's request to make-up time missed at work. According
The Court addressed the April 6, 2007 incident in its initial ruling on CBE's motion for summary judgment, and determined that "[w]hile Clay may have complained about a supervisor changing her time card, she offers no evidence regarding how she was retaliated against for this complaint."
Lastly, the January 14, 2008 incident involved three telephone calls to Clay inquiring when Clay would return to work
In summary, the Court finds that Clay has failed to present any manifest errors of law or fact or any newly discovered evidence requiring the Court to alter or amend judgment on the timeliness of her retaliation claim.
Clay asserts that the record "contains evidence of no less than twelve instances of racially derogatory acts that occurred during the limitations period."
Ruling on me Motion for Summary Judgment (docket number 41) at 17. Moreover, Clay's allegations of the 12 instances of a hostile work environment come from Clay's written statement from the Iowa Civil Rights Commission ("ICRC"). As discussed in sections
Clay also argues that the Court erred in not finding that the continuing violation doctrine applied to her hostile work environment claim. Clay's argument is predicated on the Court finding that Clay's allegations of a hostile work environment after March 1, 2007, have merit. As discussed above, the Court does not find that her allegations have merit. Moreover, in its Ruling on Motion for Summary Judgment, the Court determined that Clay's allegations amounted to an amalgamation of discrete incidents and not one unlawful employment practice. See Ruling on Motion for Summary Judgment (docket number 41) at 17. Such allegations do not trigger the continuing violation doctrine. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ("[Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."). Specifically, the thrust of Clay's alleged instances of a hostile work environment after March 1, 2007, are individual discrete acts of allegedly wrongful discipline by several different managers and supervisors.
In the ruling on CBE's motion for summary judgment, the Court determined that each of Clay's claims lacked merit, and granted summary judgment in favor of CBE. Clay argues that the Court made "manifest errors" by not viewing the evidence in the light most favorable to Clay in each of her claims, including race discrimination based on discipline, failure-to-promote, and hostile work environment; retaliation; and constructive discharge. Clay also argues that the Court failed to view the evidence for all of her claims in accordance with Federal Rule of Evidence 701. Clay offers no authority in her brief to support these arguments. See Clay's Brief in Support of Her Motion for Relief from Judgment and/or Motion to Alter or Amend Judgment (docket number 44-1) at 13-20. Failure to brief an issue in more than a "perfunctory manner," allows a court to consider the issue waived. Ramirez v. Debs-Elias, 407 F.3d 444, 447 at n. 3 (1st Cir.2005) (cited with approval in United States v. Johnson, 403 F.Supp.2d 721, 764 (N.D.Iowa 2005)). See also Local Rule 7.d (Requiring the movant to provide a brief containing "citations to the authorities upon which the moving party relies."); Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir.2004) ("Since there was no meaningful argument on this claim in his opening brief, it is waived.").
Nevertheless, even though the Court finds that Clay has waived her arguments regarding the Rule 701 evidence and the proper light in which her evidence should have been viewed on the motion to alter or amend judgment, the Court will
Id. Clay argues that her:
Clay's Brief in Support of Her Motion for Relief from Judgment and/or Motion to Alter or Amend Judgment (docket number 44-1) at 14. The Court agrees that Clay's written ICRC statement was rationally based upon her perception, and did not find in the summary judgment ruling that her written statement was inadmissible under any rule of evidence.
Instead, the Court determined that Clay's written ICRC statement constituted "unsupported self-serving allegations" that was insufficient to defeat summary judgment. See Anda v. Wickes Furniture Co., 517 F.3d 526, 531 (8th Cir. 2008) ("In order to establish the existence of a genuine issue of material fact, `a plaintiff may not merely point to unsupported self-serving allegations.'" Bass v. SBC Communications, Inc., 418 F.3d 870, 872 (8th Cir.2005)). "`Evidence, not contentions, avoids summary judgment.'" Reasonover v. St. Louis County, Mo., 447 F.3d 569, 578 (8th Cir.2006) (quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir.2003)). While the Court recognizes that on a motion for summary judgment, the record must be viewed in the light most favorable to the nonmoving party and the nonmoving party must be afforded all reasonable inferences, the nonmoving "`may not merely point to unsupported self-serving allegations, but must substantiate [her] allegations with sufficient probative evidence%[.]'" Reed v. City of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir.2009) (quoting Bass, 418 F.3d at 872-73); see also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.2007) ("Mere allegations, unsupported by specific facts or evidence beyond the nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment."). Clay presents no probative evidence to support the allegations in her written statement to the ICRC. See Reed, 561 F.3d at 790. Accordingly, the Court finds that Clay has failed to present any manifest errors of law or fact or any newly discovered evidence requiring the Court to alter or amend judgment on the merits of her various claims.
The Court finds that Clay has failed to present any manifest errors of law or fact or any newly discovered evidence requiring the Court to alter or amend judgment on its findings that Clay's claims were untimely and without merit. See Ruling on Motion for Summary Judgment (docket number 41). Therefore, the Court determines that Clay's motion to alter or amend judgment is denied.
Clay's Appendix at 153-54 (emphasis added).
Q: And it looks like for approximately the last year of your employment you didn't receive any coachings or warnings; is that true?
A: Yeah, I believe so. At least documented ones.
Id.; Clay's Deposition at 126:8-11.
Clay's Brief in Support of Her Resistance to Defendant's Motion for Summary Judgment (docket number 21-3) at 24. Clay "hopes the Court will simply follow the same standard that a jury would at trial[.]" Id. Clay offers no authority to support her position. Therefore, the Court will follow the traditional McDonnell Douglas burden-shifting framework in analyzing Clay's employment discrimination claims. See Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir.2012) ("[R]ace discrimination claims are ... evaluated under the McDonnell Douglas burden-shifting framework."). The Court notes that after making her novel argument with regard to the McDonnell Douglas framework, Clay asserts that she "will nonetheless demonstrate how the evidence meets the burden shifting standard that requires her to present a prima facie case along with a showing of pretext." Clay's Brief in Support of Her Resistance to Defendant's Motion for Summary Judgment (docket number 21-3) at 24.
