MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

The plaintiff, Algie E. Holmes ("Holmes"), was employed as a laborer by the defendant, Archer Daniels Midland Company ("ADM"), from August 12, 2008, until June 25, 2009, when he was terminated for continued poor job performance after he clocked out and left work without permission. Holmes claims he was terminated because of his race and also in retaliation for reporting a work-related injury and complaining about racial discrimination. Holmes, who is African-American, alleges that he was harassed and discriminated against by white supervisors during the ten months he worked for ADM.

This action was filed in the District Court of Lancaster County, Nebraska, on August 11, 2009, and was removed to federal court on September 9, 2009, based on diversity jurisdiction. The complaint contains two causes of action: (1) a claim that Holmes was discriminated against because of his race, in violation of the Nebraska Fair Employment Practice Act ("NFPA"), Neb.Rev.Stat. §§ 48-1101 to 48-1125; and (2) a claim that Holmes was "wrongfully discharged . . . in violation of Nebraska law and public policy." (Filing 1 ("Complaint"), p. 11)

ADM has filed a motion for summary judgment and, in accordance with our local rules, has included in its supporting brief a statement of material facts, consisting of 68 numbered paragraphs with appropriate references to the pleadings, affidavits, and other filed evidentiary materials. Most of these material facts are not controverted by Holmes, and therefore are deemed to be true. See NECivR 56.1(b)(1) ("Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response.") (emphasis in original). For those facts which are controverted by Holmes,1 I have reviewed the record to decide whether a genuine dispute exists. Based on that review, and on Holmes' admissions, I find that the following facts stated in ADM's brief are undisputed:

(Filing 22 ("Defendant's Brief"), pp. 2-12 (subheadings and citations to record omitted).)

Considering these undisputed facts, I conclude for the reasons discussed below that ADM's motion for summary judgment should be granted.

DISCUSSION

Summary judgment should be granted only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999). In passing upon a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir.1997).

In order to withstand a motion for summary judgment, the nonmoving party must substantiate their allegations with "`sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992)). Essentially the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Rule 56(e) provides that, when a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by his own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

1. Race Discrimination Claim

The Nebraska Fair Employment Practice Act provides that "[i]t shall be an unlawful employment practice for an employer. . . [t]o fail or refuse to hire, to discharge, or to harass any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, disability, marital status, or national origin." Neb.Rev.Stat. § 48-1104(1). In construing the NFEPA, Nebraska courts have looked to federal decisions, because the NFEPA is patterned after Title VII and the ADA. Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 723 (8th Cir.2002).

Because there is no direct evidence of race discrimination in this case, the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), will be employed. Under this framework, "a complainant has the burden of proving a prima facie case of discrimination, and once the complainant [has] succeeded in that respect, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for rejection or discharge of the employee. Should the employer carry the burden, the employee must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the employer were not its true reasons, but were a pretext for discrimination." McCamish v. Douglas County Hosp., 237 Neb. 484, 466 N.W.2d 521, 525 (1991).

To establish a prima facie case, Holmes must show that "(1) he is a member of a protected class; (2) he was qualified for the position (sometimes articulated as meeting the employer's legitimate expectations); (3) he suffered an adverse employment action; (4) under circumstances permitting an inference that the action was a result of unlawful discrimination." Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 520 (8th Cir.2010).

The first element is clearly satisfied. Holmes is an African-American.

Regarding the second element, the Eighth Circuit has "recently recognized that a tension appears to exist in our case law as to what a plaintiff must establish regarding qualifications at this stage of the analysis." Id., at 521 n.7 (citing Elam v. Regions Fin. Corp., 601 F.3d 873, 879 n. 4 (8th Cir.2010)). That is, the law is uncertain in this circuit whether ADM's reasons for not promoting Holmes and for discharging him should be considered in determining whether Holmes can prove a prima facie case of discrimination. Compare Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir.2010) ("Lake establishes his prima facie case if, setting aside Yellow's reason for firing him, he was otherwise meeting expectations or otherwise qualified."), with Zhuang v. Datacard Corp., 414 F.3d 849, 855 (8th Cir.2005) (considering the reasons the employer gave for firing the employee when evaluating the qualified element of the prima facie case). The Nebraska Supreme Court has previously taken the Zhuang approach by indicating that "an employee's poor performance may preclude the employee from establishing that the employee was qualified for the position at the time of the employee's discharge." Physicians Mut. Ins. Co. v. Scott, 231 Neb. 947, 439 N.W.2d 72, 75 (1989).

Even though ADM has presented evidence that Holmes was not a dependable worker, it has also stated that he was "an entry level Laborer . . . [whose] job was to ensure the facility was clean." (Paragraph 6 of ADM's statement of material facts) ADM has not presented evidence that Holmes was unable to perform physical labor or lacked any necessary skills for simple cleaning work—only that he did not perform the job to his supervisor's satisfaction and was frequently absent. ADM's evidence likewise fails to show that the sought-after meal loader position required any special qualifications, and, in fact, it appears Holmes was performing some function of the meal loader job on May 1, 2009, when he had the accident. The May 1 accident and Holmes' poor attendance record are cited by ADM as reasons why Holmes did not receive the promotion, but they do not necessarily prove that he was unqualified.

As to the third element, it is clear that ADM's decision to discharge Holmes was an adverse employment action. See Norman v. Union Pacific R.R. Co., 606 F.3d 455, 460 (8th Cir.2010) (termination "undoubtedly" adverse employment action). ADM also does not dispute that a reassignment to the meal loader position would have been a promotion for Holmes. Failure to promote is an adverse employment action. Robinson v. Potter, 453 F.3d 990, 994 (8th Cir.2006). To determine whether Holmes' other complaints of mistreatment provide grounds for an actionable claim of discrimination, however, will require closer examination.

"An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage." Fraternal Order of Police v. County of Douglas, 270 Neb. 118, 699 N.W.2d 820, 830 (2005) (quoting Spears v. Mo. Dept. of Corr. & Human Resources, 210 F.3d 850, 853 (8th Cir.2000)). "Termination, reduction in pay or benefits, and changes in employment that significantly affect an employee's future career prospects meet this standard . . . but minor changes in working conditions that merely inconvenience an employee or alter an employee's work responsibilities do not." Id.

In addition to not receiving the meal loader job and being fired, Holmes complains about the following incidents:

In summary, Holmes suffered an adverse employment action when he was not promoted to the meal loader position and when he was fired. It is also possible that Holmes suffered an adverse employment action when he allegedly (1) was not paid for doing mill load out and truck dump work, (2) was laid off because of a medical restriction, and (3) was required to submit to a fitness-for-duty exam before returning to work. However, Holmes' complaints about being disciplined for absences, being required to submit to a drug test, and being denied a shift change are without merit. Other alleged incidents also do not involve adverse employment actions, but to the extent that Holmes is asserting a hostile work environment claim based on alleged harassing conduct by his supervisors, I find after considering the totality of the circumstances that there is not sufficient evidence to support such a claim. Without going into detail, it is my conclusion that no reasonable jury could find that the alleged harassment was sufficiently severe or pervasive to alter the terms and conditions of Holmes' employment. I also conclude that no reasonable jury could find the alleged harassment to be race-based.

The fourth and final element of a prima facie case requires a determination of whether an adverse employment action occurred under circumstances permitting an inference that the action was a result of unlawful discrimination. For a failure-topromote claim, this element can be established by showing that "employees similarly situated who are not part of the protected group were promoted instead." Moore v. Forrest City School Dist., 524 F.3d 879, 883 (8th Cir.2008). While the evidence in this case does not disclose whether the white employee who ultimately received the meal loader position was similarly situated to Holmes, I will assume this element is satisfied. I make this assumption even though the evidence shows that ADM first selected another African-American employee for the job, which arguably eliminates the inference of discrimination.

Holmes also claims that he bid on a second meal loader position in April or May 2009 that was awarded to a white employee, named "Steve," who had less seniority. (Holmes Decl., p. 3, ¶ 12) John Baumgartner states in a supplemental affidavit that during April and May 2009 Holmes only bid on one meal loader position, and no employee named "Steve" was placed in a meal loader position. (Filing 27-1, p. 2, ¶ 4) I find there is a genuine issue of material fact on this issue.

A prima facie case of a racially motivated discharge may be established when the discharged employee's position is filled by a member of an unprotected class. See Physicians Mut. Ins. Co., 439 N.W.2d at 75. Alternatively, it may be shown that similarly situated white employees were not discharged. See Helvering v. Union Pacific R. Co., 13 Neb.App. 818, 703 N.W.2d 134, 155 (2005). Neither circumstance is shown to exist in this case, nor has Holmes presented any other evidence from which it may reasonably be inferred that the termination of his employment was racially motivated.

Holmes also has presented no evidence to show that a similarly situated white employee (1) received additional compensation for doing mill load out and truck dump work, (2) was not laid off because of a medical restriction, or (3) was not required to submit to a fitness-for-duty exam before returning to work. I therefore find that Holmes is unable to establish a prima facie case of race discrimination regarding these alleged adverse employment actions.28

ADM has the burden to provide a legitimate, non-discriminatory reason why Holmes failed to receive a promotion to the meal loader position. It has met this burden by stating that Holmes was not a dependable employee, as evidenced by the facts that he was given a final written warning for attendance on March 10, 2009, and had caused a serious accident with the meal loader on May 1, 2009.29 To prevail on his failure-to-promote claim, therefore, Holmes must show that ADM's proffered reasons are pretextual. He may do so by "adduc[ing] enough admissible evidence to raise genuine doubt as to the legitimacy of [ADM's] motive." Anderson v. Durham D & M, 606 F.3d at 521 (quoting Sprenger v. Federal Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir.2001)).

"[T]here are `at least two routes' for demonstrating a material question of fact as to pretext. First, a plaintiff may succeed `indirectly' by showing the proffered explanation has `no basis in fact.' second, a plaintiff can `directly' persuade the court that a `prohibited reason more likely motivated the employer.'" Id. (quoting Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir.2006)).30 Holmes is unable to show pretext by either method.31

Holmes has admitted that he was late or absent from work on all of the days for which he was assessed points in the final written attendance warning, and that he was even given a break on additional absences. He contends that more absences should have been excused, but has no evidence to support this contention. Holmes has also admitted that he caused the accident with the meal loader on May 1, 2009. He contends that a co-worker contributed to the accident, but this does not prove that the written warning that both he and his co-worker received for the accident was undeserved. Holmes speculates that he was not promoted because of his race, but there is no evidence to support this belief. In fact, the evidence shows that another African-American was first selected by ADM to fill the meal loader position.

ADM also has provided a legitimate, non-discriminatory reason why Holmes was fired. Even though Holmes has failed to establish a prima facie case of race discrimination regarding his termination, I will briefly discuss the pretext issue. ADM has demonstrated that Holmes was fired because he left the plant without permission on June 24, 2009, less than a month after he was issued a final written warning for poor job performance. Holmes denies that his job performance was unsatisfactory, and claims he did not realize that he was supposed to stay at work when the plant went down on June 24, but he has provided no evidence to show that the termination decision was not made in good faith.

"Employers are free to make employment decisions based upon mistaken evaluations, personal conflicts between employees, or even unsound business practices. Federal courts do not sit as `super personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.'" Edmund v. MidAmerican Energy Co., 299 F.3d 679, 686 (8th Cir.2002) (quoting Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001)). It may be added that the evidence shows the termination decision was made by John Baumgartner, the same individual who had hired Holmes ten months earlier. "A strong inference arises that discrimination was not a motivating factor if the same individual hired and fired the plaintiff within a relatively short period of time." Anderson v. Durham D & M, 606 F.3d at 522-23 (internal quotations omitted).

2. Retaliation Claim

It is "an unlawful employment practice for an employer to discriminate against any of his or her employees [who]... has opposed any practice made an unlawful employment practice by the Nebraska Fair Employment Practice Act, [or]... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the act[.]" Neb.Rev.Stat. § 48-1114. To establish a prima facie case of unlawful retaliation, an employee must show that he or she participated in a protected activity, that the employer took an adverse employment action against him or her, and that a causal connection existed between the protected activity and the adverse employment action. Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907, 915 (2006).

Holmes alleges that he "was terminated in retaliation for ... his complaints of harassment." (Complaint, p. 11, ¶ 36) In his brief, Holmes indicates that the protected activity in this case included his "report and complaint he is not getting the same pay for doing the other positions, that his foreman has unreasonable expectations and requires more work of him than others and certainly his indication he is going to complain to the NEOC." (Plaintiff's Brief, p. 28) Prior to the time Holmes contacted the NEOC, however, there is no evidence that he ever made a complaint about racial discrimination. He states in his affidavit that "[o]n or about 9/18/08, I questioned Mr. Nielson [sic] why I did not receive the higher pay when performing mill load out and truck dump" (Holmes Decl., p. 1, ¶ 1), but there is no indication that Holmes openly attributed this alleged mistreatment to his race. Holmes' complained about his difficulties with Will Barr during the termination meeting on June 25, 2009, and requested a transfer to a different foreman, but there is no evidence showing that Holmes made any complaint about race discrimination at that time.

The filing of a discrimination complaint with the NEOC obviously is protected activity, but the evidence establishes that the complaint was not filed until June 25, 2009, the date Holmes' employment was terminated. It is also undisputed that John Baumgartner, who made the termination decision for ADM, "had no knowledge of a discrimination claim by Plaintiff or any suggestion that Plaintiff would be filing a charge of discrimination." (Paragraph 68 of ADM's statement of material facts) Holmes states that he first contacted the NEOC on June 9, 2009 (Holmes Decl., p. 3, ¶ 15), and talked to two union representatives before going to the NEOC (Holmes Depo., at 188:14-190:7; 240:13-24), but Holmes admits he "never discussed the prospect of filing a charge of discrimination with anyone in ADM management." (Paragraph 65 of ADM's statement of material facts) With no evidence to show a causal connection between the filing of the NEOC complaint and his termination, Holmes is unable to establish a prima facie case.

Holmes also alleges that he was "terminated in retaliation for work related injury resulting in disability." (Complaint, p. 11, ¶ 36) Holmes mentions the filing of a workers' compensation claim in his brief (Plaintiff's Brief, pp. 25, 29), which could provide the basis for a retaliation claim under Nebraska law. See Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634, 641 (2003) (recognizing public policy exception to at-will employment doctrine when employer wrongfully discharges employee in retaliation for filing a workers' compensation claim).

However, there is no evidence that a workers' compensation claim was filed before the termination of Holmes' employment. Holmes testified that he did not remember when he filed for workers' compensation, but that possibly it was not until after his termination. (Holmes Depo., at 234:13-7) In fact, there is no evidence a claim was ever filed. When Holmes was asked at his deposition if he ever filed a workers' compensation claim, he stated: "I never got it. I believe so. But I don't remember when it was." (Holmes Depo., at 234:22-24) When asked if he had any records of the claim, Holmes replied: "Just a paper from the workers' comp when ADM sent me a paper of saying when I got injured and when I talked with the workers' comp department about it. Those papers." (Holmes Depo., at 235:23-236:3) His affidavit does not address the issue. Because Holmes cannot show a causal link between the filing of a workers' compensation claim and the termination decision, this retaliation claim fails as a matter of law.

Finally, Holmes argues in his brief "that he was laid off for six days at the time of having a back injury on his job and that the back injury played a part in his termination." (Plaintiff's Brief, p. 25) Citing Trosper v. Bag'N Save, 273 Neb. 855, 734 N.W.2d 704, 711 (2007), in which the Nebraska Supreme Court held that "a cause of action for retaliatory demotion exists when an employer demotes an employee for filing a workers' compensation claim," Holmes contends that he was unlawfully retaliated against for reporting a work-related injury. While the Court in Trosper left open the possibility that other forms of disciplinary action might also give rise to a claim for retaliation,32 it limited the holding to situations where a workers' compensation claim is filed. "The public policy exception is restricted to cases when a clear mandate of public policy has been violated, and it should be limited to manageable and clear standards." Id., at 707. As discussed above, there is no evidence that Holmes filed a workers' compensation claim prior to his termination.

CONCLUSION

Holmes is unable to establish a prima facie case of retaliatory discharge. With the possible exception of a failure-to-promote claim, he is also unable to establish a prima facie case of race discrimination. In any event, ADM has provided legitimate, non-discriminatory reasons for Holmes' non-promotion and subsequent termination. Holmes cannot prove those reasons are pretextual.

Accordingly,

IT IS ORDERED that the defendant's motion for summary judgment (filing 21) is granted. A final judgment dismissing the plaintiff's action with prejudice will be entered by separate document.

JUDGMENT

Pursuant to the court's Memorandum and Order entered today,

IT IS ORDERED that the plaintiff's action is dismissed with prejudice.