JULIE A. ROBINSON, District Judge.
Plaintiff Daron Downs brings this action against his former employer, Defendant Jostens, Inc., alleging a claim of retaliation under Title VII of the Civil Rights Act.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law."
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."
The following facts are uncontroverted or stipulated to by the parties, and all reasonable inferences are drawn in favor of Plaintiff as the non-movant. Defendant Jostens, Inc. owns and operates a Topeka, Kansas production facility, where it printed and bound yearbooks and related products until September 2012. Plaintiff was employed there from 2002 to 2012. Defendant's business is seasonal in nature based primarily on the school year. During non-peak periods, Defendant regularly placed "non-essential" employees on temporary layoff.
The manufacturing employees at the Topeka facility were represented by Graphic Communications Local No. 49-C ("the union") for purposes of collective bargaining. In May 2012, Defendant announced the closure of the Topeka manufacturing operations due to declining business, and consolidated them into Defendant's Clarksville, Tennessee facility subject to bargaining with the union. A significant portion of the manufacturing employees were let go by the end of July 2012, with the remainder terminated over the next several months. The union and Defendant negotiated and entered into a Closing Agreement covering terms and conditions of the closure in July 2012.
Section 6.2 of the collective bargaining agreement ("CBA") provided that Jostens must use seniority when recalling an employee from layoff:
Ronald Lee Struble, a Senior Resources Manager for Jostens, understood that this provision does not require Defendant to use department seniority when transferring a laid off employee to work on a temporary basis in a different department. Michael Schmidt, who in 2012 worked as a Litho Area Manager, also understood that
On November 9, 2010, Plaintiff and four other employees filed a lawsuit against Defendant in the United States District Court for the District of Kansas,
Plaintiff was not recalled during the early months of 2012, although other employees were. Pursuant to the CBA, Defendant maintained a seniority list for the press department. Employees in the press department were all supervised by Mike Main, and they were typically recalled from layoff back to work in December or January for the spring season of production.
In early 2012, Defendant recalled four employees from the press department who had less seniority than Plaintiff in that department: Craig Miller, John Wilson, Michael Radford, and Brandon Allen. On January 22, 2012, Miller and Wilson were recalled and transferred to the plate department as employee convenience transfers. Miller had prior experience in the plate department. He worked there until May 27, 2012, when he was laid off; he was severed as part of the plant closing on August 17, 2012.
On March 12, 2012, Radford and Allen were recalled and permanently transferred to the bindery department where they worked as boxers. This position is among the least skilled at the plant. Radford worked for the department for over 35 years and had a positive employment work history. Radford worked in the bindery department until July 13, 2012, when he was severed as part of the Topeka plant closing.
Struble testified about the difference between temporary and permanent transfers between departments for seasonal workers in relation to Radford's transfer:
Struble proceeded to testify that it was strange that an employee would choose to accept this permanent transfer because he would be giving up all press department seniority in order to transfer to a seasonal department and most likely be laid off in three months.
Plaintiff had experience in the plate and bindery departments and believes that these transfers were contrary to normal company procedure because transfers from the press department were only permitted after April in order to extend the season of the press employees. Plaintiff brought the transfers to the attention of his union. On July 31, 2012, the union filed a grievance on behalf of Plaintiff and another press department employee, contending that Defendant disregarded seniority in failing to recall them to work. In response, Defendant denied this allegation, stating that the press department was not finished recalling employees for the 2012 season, and that the employees recalled earlier than Plaintiff were recalled in compliance with the company's practices, since these recalls were done as "employee convenience" transfers. The union had the right to pursue arbitration after the grievance was denied but it declined.
Title VII makes it unlawful to retaliate against an employee because the employee has opposed any practice made unlawful by Title VII, or because the employee has "participated ... in an investigation, proceeding or hearing."
There is no dispute that Plaintiff can establish the first two elements of his prima facie case: he engaged in protected opposition to discrimination when he filed Case No. 10-4137, and the failure to recall him to work in 2012 is an adverse employment action. Defendant argues that Plaintiff has no evidence that his prior lawsuit caused him not to be recalled in early 2012. A causal connection between protected activity and adverse action may be shown by temporal proximity if the protected activity and the adverse action occurred so closely situated in time as to give rise to the inference of causation.
As described in the next section, the Court also finds additional evidence in the record beyond temporal proximity that would establish causation.
Defendant has articulated a legitimate, non-retaliatory motive for its decision not to recall Plaintiff in 2012 by explaining that its business was declining and that it followed the CBA and company policy to determine recalls and transfers. Therefore, the burden shifts back to Plaintiff to show that Defendant's explanation is merely a pretext for retaliation. Plaintiff can demonstrate pretext by showing "such weaknesses, implausibilities, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons."
Plaintiff argues that five categories of circumstantial evidence demonstrate pretext: (1) Defendant's failure to follow section 6.2 of the CBA for recalls; (2) Defendant's deviation from normal company procedure in its recalls and in refusing to allow Plaintiff to complete a job interest questionnaire; (3) similarly situated employees were treated more favorably; (4) false explanations were given for Defendant's decision not to recall Plaintiff; and (5) close temporal proximity between his protected activity and the adverse employment action. The Court finds that Plaintiff has raised a genuine issue of material fact as to pretext sufficient to avoid summary judgment.
Plaintiff may be able to demonstrate pretext from "evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances."
In support of its position, Defendant points to the testimony and declaration of Struble, who was a Senior Human Resources Manager for Jostens, and the declaration of another manager. Moreover, the company's response to the union grievance supports that Defendant did not apply section 6.2 of the CBA to employee convenience transfers. While Struble testified that these employees were technically recalled to their home department first, he explained that this was purely administrative and that they did no actual work for their home departments in those cases.
The only evidence Plaintiff submits to controvert Defendant's evidence
Plaintiff does not offer any foundation for his personal knowledge that all employees senior to him were recalled. Struble's affidavit establishes the opposite: that there was an employee of Defendant's with higher seniority than Plaintiff, Matt Tichenor, who was also not recalled to work during the 2012 season.
Plaintiff also states that Defendant acted contrary to company policy in determining recalls without providing any supporting facts as to how its policy of recalling without regard to seniority for employee convenience transfers was contrary to the written policy. The Court agrees that these statements are inadmissible, both because Plaintiff lacks personal knowledge about the company's policy and because these statements are merely statements of belief. Moreover, Struble, who did establish personal knowledge on this issue in his declaration, attested that there was an employee more senior than Plaintiff in the press department who was not recalled and that the company regularly recalled employees for convenience transfers without regard for seniority. Therefore, accepting as true Plaintiff's assertion that Defendant's failure to use seniority for recalling employees for an employee convenience transfer was in violation of the CBA, it is not necessarily probative of retaliation. The uncontroverted evidence shows that Defendant consistently interpreted the CBA as allowing recalls for an "employee convenience transfer" without regard to seniority.
However, Plaintiff has come forward with evidence that Defendant violated its own policy and the CBA when it came to Radford and Allen's permanent transfers to the bindery department. Struble testified that these permanent transfers were subject to section 6.2 of the CBA and therefore, they were determined by seniority. He testified that these positions would have to be advertised. It is uncontroverted that both of these individuals were less senior than Plaintiff and that Plaintiff had experience in the bindery department. Defendant fails to address this
To be sure, the question before this Court is not necessarily whether Defendant violated the CBA when it disregarded seniority in the cases of Miller, Radford, Wilson, and Allen, but whether it reasonably believed that it was correctly interpreting the CBA when it declined to apply it in the context of these transfers.
Relatedly, Plaintiff contends that he was treated differently than other similarly-situated, non-protected employees.
Here, Plaintiff points to four employees as similarly situated: Brandon Allen, Michael Radford, Jon Wilson, and Craig Miller. Plaintiff alleges that each of these employees had less seniority than Plaintiff, and yet all four were recalled to work when Plaintiff was not, contrary to the provisions of the CBA. As explained above, the Court finds that while the uncontroverted evidence shows that the company consistently interpreted the CBA seniority provision as not applying to employee convenience transfers, Plaintiff has come forward with uncontroverted evidence that Radford and Allen were permanently recalled
Accordingly, the Court finds that Plaintiff has pointed to sufficient evidence in the summary judgment record to demonstrate a genuine issue of material fact on whether Defendant's reasons not to recall him were in fact pretextual and therefore summary judgment must be denied.
