Pulley v. UnitedHealth Group Incorporated

Filing 82

OPINION AND ORDER granting 68 Motion for Summary Judgment; finding as moot 77 Motion to Continue. The trial subpoenas submitted by Mr. Pulley are moot, and the USMS is directed not to serve those subpoenas. Signed by Judge Kristine G. Baker on 5/10/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DWIGHT PULLEY
v.

PLAINTIFF
No. 4:11CV00634 KGB

UNITED HEALTH GROUP INCORPORATED

DEFENDANT

OPINION AND ORDER
Plaintiff Dwight Pulley filed suit against defendant UnitedHealth Group, Inc.
(“UnitedHealth”), alleging violations of Title VII of the Civil Rights Act of 1964 and
defamation.

In his complaint, Mr. Pulley also cites the Americans with Disabilities Act

(“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). Currently pending
before the Court is UnitedHealth’s motion for summary judgment (Dkt. No. 68). Mr. Pulley has
responded (Dkt. No. 72), and UnitedHealth has replied (Dkt. No. 73). For the reasons set out
below, the motion for summary judgment is granted.
I.

FACTUAL BACKGROUND 1

In his complaint, Mr. Pulley alleges that UnitedHealth denied him a promotion and
terminated his employment because of his race and in retaliation for making an internal
complaint. Mr. Pulley is African American. In his complaint, he also alleges that UnitedHealth
subjected him to a racially hostile work environment and that he was defamed. Although Mr.
Pulley cites the ADA and the GINA, the record – including Mr. Pulley’s complaint, response to
the motion for summary judgment, and pretrial papers – provides no factual basis for a claim
pursuant to the ADA or the GINA. Further, Mr. Pulley’s charge filed with the Equal Employment

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The Court notes that these facts are largely derived from UnitedHealth’s statement of
material facts as to which there is no genuine dispute (Dkt. No. 70). In response, Mr. Pulley did
not file a separate statement of the material facts as to which he contends a genuine dispute exists
to be tried. See Local Rule 56.1(b).

Opportunity Commission (“EEOC”) did not contain claims or factual support for claims under the ADA
or the GINA (Dkt. No. 2, at 23; Dkt. No. 2-1, at 9, 13, 30-32, 35-38).

Mr. Pulley, now a resident of Little Rock, Arkansas, was employed by UnitedHealth in
Plymouth, Minnesota, from January 2008 until September 2009. He worked on the night shift as
Senior IT Systems Management Analyst. His direct supervisor was Stanley Berscheit, Shift
Manager, and his second-level supervisor was Eric Reuteler, Director of IT Systems Operations.
Mr. Pulley’s primary duties were to monitor UnitedHealth’s computer systems and to
troubleshoot problems.
UnitedHealth has several corporate policies that relate to the claims and defenses in this
case. UnitedHealth maintains a policy against harassment based on race which sets out a
procedure by which an employee can report any alleged harassment. UnitedHealth also has a
policy that prohibits discrimination in the workplace and provides an internal reporting
procedure for employees to make complaints, if they believe they have been discriminated
against. UnitedHealth has a non-retaliation policy covering employees who make good-faith
reports of harassment or discrimination. UnitedHealth also has a violence-free workplace policy,
and employees who violate it are subject to disciplinary action, up to and including termination.
These policies are set forth in UnitedHealth’s employee handbook, which Mr. Pulley
acknowledged was available to him.
In approximately March 2009, there was an opening within Mr. Pulley’s department on
the day shift.

Mr. Pulley sought the day-shift position by expressing his interest to Mr.

Berscheit. The parties agree that the day-shift position involved the same job duties and the
same compensation; the only difference in the day and night shift positions was the working
hours. Mr. Pulley was not awarded the shift change; rather, UnitedHealth awarded the shift

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change to Dan Heitke-Felbeck based on his seniority with the company. Mr. Heitke-Felbeck
started with UnitedHealth on November 1, 2006, and he is Caucasian.
UnitedHealth asserts that, when an employee requests an internal shift change, as Mr.
Pulley did, the company considers performance, seniority, skills, and business need. United
Health requires employees to work within their current position for a minimum of 12 months
before seeking a transfer into another position. That policy does not apply to intra-departmental
shift changes that do not involve a change in the employee’s position, according to UnitedHealth.
Mr. Pulley believes that UnitedHealth’s policy requires an employee to work within a
department for at least six months before becoming eligible for a shift change. He maintains that
Mr. Heitke-Felbeck was not eligible for the shift change because he did not meet the policy’s
requirements. UnitedHealth asserts that Mr. Pulley is mistaken.
In late April 2009, Casey Mosher, also a Senior IT Systems Management Analyst,
worked several nights per week on the same shift as Mr. Pulley. Mr. Mosher is Caucasian. In
early May 2009, Mr. Mosher approached Mr. Pulley’s computer while Mr. Pulley was away
from his desk, accessed the internet browser, and typed in the address for what is believed to be a
pornographic store’s website. Mr. Pulley had not locked his computer when he stepped away
from his desk before Mr. Mosher accessed it. When Mr. Pulley returned and discovered what
Mr. Mosher had done, Mr. Pulley became angry because he feared disciplinary action. Mr.
Pulley promptly reported Mr. Mosher’s conduct to Mr. Berscheit. Mr. Pulley did not mention
race or discrimination in this complaint to Mr. Berscheit. Mr. Pulley met with Mr. Berscheit and
Mr. Reuteler regarding the incident and, on May 18, 2009, complained about Mr. Mosher’s
conduct to human resources.

Mr. Pulley admits that he never complained to anyone at

UnitedHealth that the incident was racially motivated (Dkt. No. 71-1, at 18-19). Mr. Mosher

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submits an affidavit stating that his conduct was not because of Mr. Pulley’s race but rather was
intended as a joke (Dkt. No. 71-4, at 3).
UnitedHealth investigated Mr. Mosher’s conduct and found that he did inappropriately
access Mr. Pulley’s computer. Mr. Berscheit advised Mr. Pulley and Mr. Mosher that they had
both acted inappropriately—Mr. Mosher for typing an inappropriate address into Mr. Pulley’s
computer and Mr. Pulley by not locking his computer when he stepped away from his desk. Mr.
Mosher was placed on a corrective action plan; Mr. Pulley was not disciplined over this incident.
During the investigation of Mr. Mosher’s conduct, Mr. Mosher reported to Mr. Berscheit
and Mr. Reuteler that Mr. Pulley had threatened Mr. Mosher with violence at work. Mr. Pulley
denies he did this. UnitedHealth investigated this claim. Two employees, Jamie Dooley and
Lisa Althaus, told Mr. Berscheit and Mr. Reuteler that they heard Mr. Pulley threaten Mr.
Mosher with violence in the parking lot. On May 20, 2009, “based on independently verified
information,” UnitedHealth placed Mr. Pulley on a final warning and corrective action plan for
violations of the violence-free workplace policy (Dkt. No. 70, at 6).
Mr. Pulley last reported to work on May 25, 2009. Mr. Pulley requested and was
approved for leave under the Family and Medical Leave Act (“FMLA”) for a serious medical
condition. His leave was set to run from May 26, 2009, through July 20, 2009. Mr. Pulley stated
at his deposition in this case that he does not recall the circumstances surrounding his FMLA
leave. Specifically, he does not recall requesting FMLA leave (Dkt. No. 71-1, at 27-30). The
record indicates that Mr. Pulley was mailed a detailed letter approving FMLA leave (See Dkt.
No. 71-13, at 2-3). The letter indicates that a request for an extension of his leave based on a
serious medical condition would require “an additional health care provider certification” (Dkt.
No. 71-13, at 2). The letter goes on to state that, if the employee does not return to work at the

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end of his leave, and does not request an extension before the leave expires, the employee “may
be terminated for job abandonment” (Dkt. No. 71-13, at 2). According to UnitedHealth, on July
22, 2009, Mr. Pulley requested an extension of his FMLA leave, but, according to UnitedHealth
and Mr. Berscheit, Mr. Pulley “failed to respond to repeated requests for medical documentation
substantiating his need for additional leave” (Dkt. No. 70, at 6; Dkt. No. 71-2, at 6-7). Mr.
Pulley stated that he does not recall requesting that extension (Dkt. No. 71-1, at 29).
Mr. Pulley did not return to work at the end of his approved FMLA leave. As a result,
UnitedHealth terminated Mr. Pulley’s employment effective September 3, 2009. UnitedHealth
internally coded Mr. Pulley’s termination as a “voluntary resignation” (Dkt. No. 70, at 8). Mr.
Pulley stated that he does not know who made the decision to terminate his employment.
On June 16, 2009, Mr. Pulley filed a charge of discrimination with the EEOC. In his
charge, he alleged that he was subjected to a racially hostile work environment, was denied a
shift transfer based on his race, was disciplined in retaliation for complaining about Mr.
Mosher’s conduct, and was terminated due to race discrimination and retaliation.
In his current lawsuit, Mr. Pulley alleges that he was subjected to a racially hostile work
environment. He cannot remember ever hearing a member of management make an offensive
racial comment (Dkt. No. 71-1, at 32). Mr. Pulley identifies two instances of race-related
comments by coworkers. First, he testified that he heard a coworker tell ethnic jokes, but he
could not recall any of the jokes (Dkt. No. 71-1, at 25). Second, Mr. Pulley testified that, after he
was denied the shift transfer, a coworker told him that he was “just another Black man looking
for a break” (Dkt. No. 71-1, at 33-34). He could not remember any other racial comments made
in the workplace (Dkt. No. 71-1, at 34).

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Mr. Pulley’s lawsuit alleges that he was denied the shift transfer based on his race. Mr.
Pulley believes that UnitedHealth’s policy requires an employee to work within a department for
at least six months before becoming eligible for a shift change. UnitedHealth denies this. There
is no dispute that the transfer Mr. Pulley sought was lateral in nature. Next, Mr. Pulley alleges
that he was disciplined by being put on a corrective action plan and eventually terminated in
retaliation for reporting Mr. Mosher’s conduct.

UnitedHealth states that Mr. Pulley’s

termination was unrelated to the corrective action plan and also notes that Mr. Pulley did not
suffer a loss in pay or benefits as a result of being placed on the corrective action plan. Mr.
Pulley also claims that his termination was due to race discrimination but stated at his deposition
that he had “no idea” why his employment was terminated because of his race (Dkt. No. 71-1, at
35-36). Mr. Pulley testified that, during his employment at UnitedHealth, he “never raised any
complaint due to my race to any of my managers” (Dkt. No. 71-1, at 12).
Finally, Mr. Pulley asserts a defamation claim based on the allegation that Mr. Mosher
falsely accused him of threatening violence and that Mr. Reuteler and Mr. Berscheit called Mr.
Pulley a liar and a radical in a May 2009 meeting during which his UnitedHealth supervisors
discussed with him a corrective action plan for violations of the violence-free workplace policy.
This claim is based solely on words spoken to Mr. Pulley, not written words.
II.

STANDARD

Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). However, parties opposing a summary judgment motion may not rest merely
upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).

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The initial burden is on the moving party to demonstrate the absence of a genuine issue of
material fact. Id. at 323. The burden then shifts to the nonmoving party to establish there is a
genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir.
1997). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A factual
dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either
party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual
dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome
determinative under prevailing law.” Celotex, 477 U.S. at 331.
“There is no ‘discrimination case exception’ to the application of summary judgment,
which is a useful pretrial tool to determine whether any case, including one alleging
discrimination, merits a trial.” Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.
2011) (en banc). “Because summary judgment is not disfavored and is designed for every action,
[Eighth Circuit] panel statements to the contrary are unauthorized and should not be followed.”
Id.
III.

ANALYSIS

Mr. Pulley brings a number of claims under Title VII. UnitedHealth in its moving papers
addresses four separate Title VII claims: (1) discriminatory failure to promote; (2) discriminatory
termination; (3) retaliation; and (4) harassment or hostile work environment. UnitedHealth also
addresses Mr. Pulley’s claim for defamation under Arkansas law. Mr. Pulley has not disputed
UnitedHealth’s construction of his causes of action. Accordingly, the Court addresses his four
Title VII claims in turn, as well as his defamation claim.

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Mr. Pulley can establish a prima facie claim of race discrimination either by providing
direct evidence of discrimination or by creating an inference of unlawful discrimination under
the three-step analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973). Bone v. G4S Youth Services, LLC, 686 F.3d 948, 953 (8th Cir. 2012). Direct evidence is
evidence “showing a specific link between the alleged discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated” the adverse employment action.

Torgerson, 643 F.3d at 1043-44.

Therefore, “direct” refers to the causal strength of the proof, not whether it is “circumstantial”
evidence. Id. A plaintiff with strong direct evidence that illegal discrimination motivated the
employer’s adverse action does not need the three-part McDonnell Douglas analysis to get to the
jury, irrespective of whether his strong evidence is circumstantial. Id. However, “if the plaintiff
lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary
judgment by creating the requisite inference of unlawful discrimination through the McDonnell
Douglas analysis, including sufficient evidence of pretext.” Id.
A.

Title VII Claims
1.

Direct Evidence Analysis

“To be entitled to direct evidence analysis, the plaintiff must present evidence of conduct
or statements by persons involved in the decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude sufficient to permit the factfinder to infer that that
attitude was more likely than not a motivating factor in the employer’s decision.” Rivers-Frison
v. Se. Missouri Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir. 1998) (internal quotation
omitted).

“[N]ot every prejudiced remark made at work supports an inference of illegal

employment discrimination.” Rivers-Frison, 133 F.3d at 619. Rather, “[d]irect evidence of

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employment discrimination must have some connection to the employment relationship.” Id.
“Direct evidence of racial discrimination is not established by mere ‘stray remarks in the
workplace, statements by nondecision-makers, or statements by decision-makers unrelated to the
decisional process itself.’” Yates v. Douglas, 255 F.3d 546, 549 (8th Cir. 2001) (citing Beshears
v. Asbill, 930 F.2d 1348, 1354) (8th Cir. 1991)).
There is no evidence that the remarks Mr. Pulley describes were statements by decisionmakers. Even assuming the individuals who made the remarks Mr. Pulley describes were
decision-makers, there is no indication that the remarks were related to the decisions to deny Mr.
Pulley’s requested shift transfer, to discipline him, or to terminate his employment. Mr. Pulley
testified that he heard coworkers tell ethnic jokes, but he could not recall any of the jokes (Dkt.
No. 71-1, at 25). He also testified that, after he was denied the shift transfer, a coworker told him
that he was “just another Black man looking for a break” (Dkt. No. 71-1, at 33-34). Mr. Pulley
could not remember any other racial comments made in the workplace (Dkt. No. 71-1, at 34).
The remarks he describes amount to, at most, “stray remarks in the workplace, statements
by nondecision-makers, or statements by decision-makers unrelated to the decisional process
itself.” Yates, 255 F.3d at 549. There is no record evidence that demonstrates these remarks
reflect a “discriminatory attitude sufficient to permit the factfinder to infer that that attitude was
more likely than not a motivating factor in the employer’s decision.” Id. (quoting Rivers-Frison,
133 F.3d at 619).
For these reasons, the Court concludes that Mr. Pulley has not produced sufficient direct
evidence of discrimination to overcome summary judgment.

Accordingly, the Court will

proceed through the McDonnell Douglas analysis for Mr. Pulley’s Title VII claims.

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2.

McDonnell Douglas Analysis

Under the McDonnell Douglas analysis, “the plaintiff bears the burden of establishing a
prima facie case of discrimination.” McGinnis v. Union Pac. R.R. Co., 496 F.3d 868, 873 (8th
Cir. 2007). If a plaintiff makes out a prima facie case, he creates a presumption of unlawful
discrimination, and the burden shifts to the defendant to come forward with evidence of a
legitimate nondiscriminatory reason for its actions. Id. “If the defendant articulates such a
reason, the burden returns to the plaintiff to show the defendant’s proffered reason is pretextual.”
Id.
a.

Failure to Promote

Mr. Pulley alleges a failure-to-promote claim by asserting that UnitedHealth denied him a
transfer to the day shift. “To establish a prima facie case of racial discrimination in a failure-topromote claim, a plaintiff must show (1) [he] is a member of a protected group; (2) [he] was
qualified and applied for a promotion to an available position; (3) [he] was rejected; and (4)
similarly situated employees, not part of the protected group, were promoted instead.” Allen v.
Tobacco Superstore, Inc., 475 F.3d 931, 937 (8th Cir. 2007).
Of course, “[t]o bring a cause of action under Title VII, a plaintiff must allege that he has
suffered adverse employment action.” Enowmbitang v. Seagate Tech., Inc., 148 F.3d 970, 973
(8th Cir. 1998). The Eighth Circuit has made clear that “[a]n adverse employment action is a
tangible change in working conditions that produces a material employment disadvantage.
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.”

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Spears v. Missouri Dep't of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000) (internal
citations omitted).
For Mr. Pulley’s allegations to be actionable, he must have suffered an adverse
employment action. He claims that UnitedHealth’s denying him a transfer from the night shift to
the day shift is an actionable adverse employment action. This Court disagrees.
A “purely lateral transfer, that is, a transfer that does not involve a demotion in form or
substance, cannot rise to the level of a materially adverse employment action.

A transfer

involving only minor changes in working conditions and no reduction in pay or benefits will not
constitute an adverse employment action, otherwise every trivial personnel action that an
irritable . . . employee did not like would form the basis of a discrimination suit.” Ledergerber v.
Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (internal citation and quotations omitted). “Logic
suggests that, if making a purely lateral transfer cannot constitute adverse employment action,
then failure to make a purely lateral transfer also would not constitute adverse employment
action.” Hennick v. Schwans Sales Enters., Inc., 168 F. Supp. 2d 938, 954 (N.D. Iowa 2001)
(internal citation and quotations omitted). Whether the failure to make a purely lateral transfer
constitutes adverse employment action “should presumably be measured by the same
considerations applied to whether or not making such a change against an employee’s wishes
constituted adverse employment action.” Id. (internal quotation omitted).
UnitedHealth asserts that Mr. Pulley sought “nothing more than a lateral shift transfer”
(Dkt. No. 69, at 7). Mr. Pulley testified at his deposition that there was no difference in pay
between the day shift and the night shift (Dkt. No. 71-1, at 10). Discussing the differences in the
two shifts, Mr. Pulley stated that the only difference in the day shift and the night shift was that
the two had “[d]ifferent hours” (Dkt. No. 71-1, at 10). When asked why he wanted to move to

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the day shift, Mr. Pulley stated, “I think everyone likes to work days as opposed to nights” (Dkt.
No. 71-1, at 10). Mr. Pulley provides no evidence or argument that the change in shift would
have resulted in more seniority, responsibility, authority, compensation, or benefits. Likewise,
Mr. Pulley does not indicate that the transfer would have significantly affected his future career
prospects. To the contrary, Mr. Pulley notes in in complaint that he requested a “lateral move to
day shift” (Dkt. No. 2, at 2, 9). His EEOC charge also indicates that this was a “lateral transfer”
(Dkt. No. 2, at 23).
For these reasons, the Court concludes there is no actionable adverse employment action
within the meaning of Title VII to support Mr. Pulley’s failure-to-promote claim. Mr. Pulley
sought a lateral transfer to the day shift and denial of that transfer does not rise to the level of a
materially adverse employment action. See Ledergerber, 122 F.3d at 1144. See also McGowan
v. City of Eufala, 472 F.3d 736, 742-43 (10th Cir. 2006) (concluding that an employer’s denying
an employee a requested change to the day shift was not an actionable materially adverse
employment action). Accordingly, Mr. Pulley’s failure-to-promote claim fails as a matter of law.
b.

Termination

The Court next considers whether, under the McDonnell Douglas approach, Mr. Pulley’s
discriminatory termination claim can survive summary judgment. Mr. Pulley “bears the burden
of establishing a prima facie case of discrimination.” McGinnis, 496 F.3d at 873.
“To create an inference of discrimination [Mr. Pulley] must establish a prima facie case,
which requires proof that [he] (1) is a member of a protected class, (2) was qualified, (3) suffered
an adverse employment action, and (4) can provide facts that give rise to an inference of
unlawful. . . race discrimination.” Butler v. Crittenden Cnty., Ark., 708 F.3d 1044, 1050 (8th Cir.
2013).

If a plaintiff makes out a prima facie case, he creates a presumption of unlawful

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discrimination, and the burden shifts to the defendant to come forward with evidence of a
legitimate nondiscriminatory reason for its actions.

McGinnis, 496 F.3d at 873.

“If the

defendant articulates such a reason, the burden returns to the plaintiff to show the defendant’s
proffered reason is pretextual.” Id.
Mr. Pulley cannot make out a prima facie case of discrimination here. “A plaintiff can
satisfy the fourth part of the prima facie case in a variety of ways, such as by showing morefavorable treatment of similarly-situated employees who are not in the protected class, or biased
comments by a decisionmaker.” Pye v. NuAire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011) (citing
Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1039-40 (8th Cir. 2010)). Even drawing
all inferences in Mr. Pulley’s favor, he has failed to satisfy the fourth prong; he has not provided
facts that give rise to an inference of unlawful race discrimination. He has not identified any
similarly situated employee who is not in his protected class who was treated differently than he
was. He has not provided any facts, such as biased comments by a decision-maker, that give rise
to an inference of discrimination. Therefore, the Court finds that Mr. Pulley has failed to make
out a prima facie case of discriminatory termination.
Even if he could make out a prima facie case of discrimination, Mr. Pulley has not
demonstrated on this record a genuine issue of material fact that UnitedHealth’s legitimate,
nondiscriminatory reason for terminating him was pretext for race discrimination.
UnitedHealth’s burden to demonstrate that it terminated Mr. Pulley for a legitimate,
nondiscriminatory reason “is not onerous.” Bone, 686 F.3d at 954. Courts do not “sit as superpersonnel departments reviewing the wisdom or fairness of the business judgments made by
employers, except to the extent that those judgments involve intentional discrimination.” Id. at

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955 (internal quotation omitted). Defendants need only proffer a good-faith reason for their
action. Id.
Here, UnitedHealth has provided a legitimate, nondiscriminatory reason for terminating
Mr. Pulley. UnitedHealth asserts that it terminated Mr. Pulley because, following the expiration
of his FMLA leave, he did not (1) respond to requests for medical documentation substantiating
his need for additional leave or (2) return to work. Mr. Pulley’s FMLA leave was set to end on
July 20, 2009. UnitedHealth asserts that Mr. Pulley requested an extension of his FMLA on July
22, 2009, but did not respond to repeated requests to provide medical documentation
substantiating the need for an extension. Mr. Pulley also did not return to work. UnitedHealth
terminated Mr. Pulley’s employment effective September 3, 2009.

UnitedHealth internally

coded Mr. Pulley’s termination as a voluntary resignation. The Court finds that UnitedHealth
has met its burden to prove that it terminated Mr. Pulley for a legitimate, nondiscriminatory
reason. See Hines v. Metro Work Center, Inc., No. CIV. 991971DSDJMM, 2001 WL 705886,
*4 (D. Minn. June 19, 2001) (determining that, because plaintiff took no action to return and did
not inform his employer that he intended to return to work after an approved leave of absence,
plaintiff’s termination constituted a voluntary separation on his part, not a discriminatory
constructive discharge).
The Court next examines whether Mr. Pulley has met his burden of demonstrating a
material question of fact as to pretext. “There are at least two ways a plaintiff may demonstrate a
material question of fact regarding pretext.” Torgerson, 643 F.3d at 1047. First, “[a] plaintiff
may show that the employer’s explanation is unworthy of credence because it has no basis in
fact. Alternatively, a plaintiff may show pretext by persuading the court that a [prohibited]
reason more likely motivated the employer.”

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Id.

In this sense, Mr. Pulley’s burden of

establishing pretext would merge “with the ultimate burden of persuading the court that [he was]
the victim of intentional discrimination.” Id. at 1046.
In response to the motion for summary judgment, Mr. Pulley has not created a material
question of fact as to pretext. There is no indication in the record that UnitedHealth’s reason for
Mr. Pulley’s termination is unworthy of credence because it has no basis in fact.

At his

deposition, Mr. Pulley could recall very little of the circumstances surrounding his FMLA leave.
He denies requesting FMLA or an extension to that leave. He seems to suggest that he was
placed on leave because of a form his doctor filled out and sent to UnitedHealth. Mr. Pulley
states that UnitedHealth sent his doctor a letter, but he does not know how UnitedHealth would
have gotten his doctor’s contact information.

These facts, even viewed in the light most

favorable to Mr. Pulley, do not demonstrate pretext.
Mr. Pulley does not indicate that his race played any role in his leave or termination. Mr.
Pulley has not demonstrated that a prohibited reason more likely motivated UnitedHealth than its
proffered reason for terminating him.
demonstrate pretext.

Finally, Mr. Pulley points to no comparators to

Thus, even if Mr. Pulley could make out a prima facie case of

discriminatory termination, he could not avoid summary judgment because he has not cited to
proof in the record sufficient to create a genuine issue of material fact as to whether
UnitedHealth’s proffered legitimate, nondiscriminatory reason for terminating him was pretext
for race discrimination. In sum, Mr. Pulley’s discriminatory termination claim under Title VII
fails, and UnitedHealth is entitled to summary judgment on this claim.
c.

Retaliation

Mr. Pulley also alleges retaliation.

To establish such a claim, Mr. Pulley must

demonstrate that: (1) he engaged in a protected activity, (2) UnitedHealth’s adverse employment

15

action caused injury that would “chill a person of ordinary firmness” from continuing that
activity, and (3) there was a causal connection between the two. Hill v. City of Pine Bluff,
Arkansas, 696 F.3d 709, 715 (8th Cir. 2012); Hoffman v. Rubin, 193 F.3d 959 (8th Cir. 1999).
The Eighth Circuit Court of Appeals has held that, “[g]enerally, more than a temporal connection
between the protected conduct and the adverse employment action is required to present a
genuine factual issue on retaliation.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th
Cir. 1999).
The Court determines, as UnitedHealth asserts, that Mr. Pulley has not engaged in any
statutorily protected activity. Mr. Pulley did not raise a race-discrimination complaint to any of
his managers. He did not complain to UnitedHealth officials that the corrective action plan he
received was based on alleged race discrimination.

He admits that he did not raise “any

complaint due to [his] race to any of [his] managers” (Dkt. No. 71-1, at 12). The Eighth Circuit
has held that an employee does not engage in statutorily protected activity, and thus does not
make out a prima facie case of Title VII retaliation, when the employee makes an internal
complaint but does not attribute the company’s complained-of actions to discrimination. Hunt v.
Nebraska Pub. Power Dist., 282 F.3d 1021, 1028-29 (8th Cir. 2002) (“While Hunt complained
that she was entitled to a pay increase and a change in job title, she did not attribute NPPD’s
failure to give her a raise or a promotion to sex discrimination. Thus, Hunt was not engaged in a
protected activity for the purposes of Title VII and consequently did not establish a prima facie
case of retaliation.”). Mr. Pulley did not engage in statutorily protected activity. For this reason,
his retaliation claim does not survive summary judgment.
To the extent that Mr. Pulley argues that his termination was retaliatory, that claim fails.
Specifically, Mr. Pulley has not presented evidence that his termination was a pretext for

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retaliation. Therefore, under the McDonnell Douglas burden-shifting framework, Mr. Pulley is
unable to overcome UnitedHealth’s legitimate, nondiscriminatory reason for terminating Mr.
Pulley. For all of these reasons, UnitedHealth is entitled to summary judgment on Mr. Pulley’s
retaliation claim.
d.

Hostile Work Environment

Mr. Pulley’s claim for harassment or hostile work environment also fails. Hostile work
environment harassment occurs “[w]hen 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.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993) (internal citation and quotations omitted). “To state a claim for
hostile environment harassment by non-supervisory co-workers, [the plaintiff] must establish: (1)
membership in a protected group; (2) the occurrence of unwelcome harassment; (3) a causal
nexus between the harassment and [his] membership in the protected group; (4) that the
harassment affected a term, condition, or privilege of employment; and (5) that the employer
knew or should have known of the harassment and failed to take prompt and effective remedial
action.” Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999).
The Court finds that Mr. Pulley has not offered sufficient proof to meet the standard set
out in Harris. 510 U.S. at 21. The incidents of race-related jokes or remarks identified by Mr.
Pulley do not demonstrate that his workplace was “permeated” with insult or ridicule. Even
aside from the Harris standard, Mr. Pulley cannot state a claim for hostile work environment
because the record is devoid of any indication that any alleged harassment affected a term,
condition, or privilege of Mr. Pulley’s employment. His claim also fails because it is undisputed
that Mr. Pulley did not make management aware of harassment based on race during his

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employment with UnitedHealth. Without knowledge or notice, UnitedHealth could not take
remedial action. For all of these reasons, Mr. Pulley’s hostile-work-environment claim fails as a
matter of law, and UnitedHealth is entitled to summary judgment.
B.

Defamation

Mr. Pulley’s defamation claim is time barred. Mr. Pulley bases this claim on spoken
words, not written words. An action “for words spoken slandering the character of another”
must be commenced within one year after the cause of action accrues. Ark. Code. Ann. § 16-56104(3). Mr. Pulley claims that he was defamed when Mr. Reuteler and Mr. Berscheit called him
a liar and a radical. Mr. Pulley also claims he was defamed when Mr. Mosher accused him of
threatening violence. He alleges that these statements took place in May 2009. Mr. Pulley filed
this lawsuit on August 18, 2011. Accordingly, his claim for defamation, or more appropriately
slander based on spoken words, is time barred, and UnitedHealth is entitled to summary
judgment on Mr. Pulley’s defamation claim.
C.

ADA and GINA

In its motion for summary judgment, UnitedHealth “respectfully requests that the Court
enter summary judgment in its favor on all of Plaintiff Dwight Pulley’s claims” (Dkt. No. 68, at
4). UnitedHealth specifically identified Title VII claims and a claim for defamation under
Arkansas law as being pleaded by Mr. Pulley. Mr. Pulley did not dispute UnitedHealth’s
construction of his causes of action. Therefore, it is unclear to this Court whether Mr. Pulley
intended to assert any other causes of action.
Because Mr. Pulley is pro se, however, this Court must liberally construe his complaint.
Norman v. Schuetzle, 585 F.3d 1097, 1117 (8th Cir. 2009) overruled on other grounds by
McCrary v. Baldwin, 500 Fed. App’x. 551 (8th Cir. 2013). Therefore, the Court will address the

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ADA and the GINA since those statutes are cited by Mr. Pulley in his complaint. The court’s
liberal construction of Mr. Pulley’s complaint does not extend to allowing defective and
insufficiently pled claims to proceed. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (pro se
complaint must allege facts sufficient to support the claims advanced); Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985) (“[A]lthough it is to be liberally construed, a pro se complaint
must contain specific facts supporting its conclusions.”); Kaylor v. Fields, 661 F.2d 117, 1183
(8th Cir. 1981) (“[P]leadings. . . brought pro se [] are to be liberally construed. . . . But a wellpleaded complaint must contain something more than mere conclusory statements that are
unsupported by specific facts.”). Although Mr. Pulley cites the ADA and the GINA, the record –
including Mr. Pulley’s complaint, response to the motion for summary judgment, and pretrial
papers – provides no factual basis for a claim pursuant to the ADA or the GINA. Further, Mr.
Pulley’s charge filed with the EEOC did not contain claims or factual support for claims brought
under the ADA or the GINA (Dkt. No. 2, at 23; Dkt. No. 2-1, at 9, 13, 30-32, 35-38). For these
reasons, on UnitedHealth’s motion, the Court dismisses Mr. Pulley’s claims under the ADA and
the GINA, to the extent he intended to allege such claims.
IV.

Conclusion

UnitedHealth is entitled to summary judgment on Mr. Pulley’s Title VII claims, including
claims for failure to promote, discriminatory termination, retaliation, and hostile work
environment. UnitedHealth also is entitled to summary judgment on Mr. Pulley’s defamation or
slander claim. Accordingly, UnitedHealth’s motion for summary judgment is granted (Dkt. No.
68), and Mr. Pulley’s Title VII and slander claims are dismissed with prejudice.

The Court

dismisses Mr. Pulley’s claims under the ADA and the GINA, to the extent he intended to allege
such claims. Judgment will be entered accordingly.

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Based on the Court’s ruling on UnitedHealth’s motion for summary judgment,
UnitedHealth’s motion to continue trial and related deadlines is denied as moot (Dkt. No. 77).
Mr. Pulley submitted several trial subpoenas to the Clerk of Court. In accordance with this
Court’s Order dated April 19, 2013, the Clerk of Court transmitted those subpoenas to the United
States Marshals Service (“USMS”) for service (Dkt. No. 76). Those subpoenas are now moot,
and the USMS is directed not to proceed with the service of those subpoenas.
*

*

*

For the reasons discussed above, UnitedHealth’s motion for summary judgment is
granted (Dkt. No. 68). UnitedHealth’s motion to continue trial and related deadlines is denied as
moot (Dkt. No. 77). The trial subpoenas submitted by Mr. Pulley are moot, and the USMS is
directed not to serve those subpoenas.
SO ORDERED this the 10th day of May, 2013.

______________________________
Kristine G. Baker
United States District Judge

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