Grigsby v. Pulaski County Special School District
Filing
43
ORDER granting 26 Motion for Summary Judgment. Judgment will be entered in PCSSD's favor. Signed by Judge Lee P. Rudofsky on 7/14/2021. (jbh)(Docket text modified on 7/14/2021 to correct a typographical error) (jak)
Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 1 of 28
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
WANDA GRIGSBY
v.
PLAINTIFF
Case No. 4:19-cv-00778-LPR
PULASKI COUNTY SPECIAL SCHOOL DISTRICT
DEFENDANT
ORDER
On November 4, 2019, Plaintiff Wanda Grigsby filed a Complaint in the Eastern District
of Arkansas.1 On September 9, 2020, Ms. Grigsby filed an Amended Complaint.2 She alleges
that Defendant Pulaski County Special School District (“PCSSD”) unlawfully discriminated
against her based on her sex and her disability.3 She further asserts that PCSSD retaliated against
her “for having opposed discriminatory practices.”4 Ms. Grigsby also seeks relief “under 42
U.S.C. § 1983,” because PCSSD was “acting under color of law.”5 And Ms. Grigsby requests that
the Court “declare the rights and other legal relations between the parties” under 28 U.S.C. § 2201.6
On March 26, 2021, PCSSD filed a Motion for Summary Judgment.7 That Motion is now
before the Court. For the reasons explained below, the Court will grant PCSSD’s Motion for
Summary Judgment.
1
Pl.’s Compl. (Doc. 1).
2
Pl.’s Am. Compl. (Doc. 15).
3
Id. at 1.
4
Id.
5
Id.
6
Id.
7
Def.’s Mot. for Summ. J. (Doc. 26).
Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 2 of 28
Background
On summary judgment, the Court views the facts in the light most favorable to the
nonmoving party and affords her all reasonable inferences.8 This background section is based
mostly on undisputed facts. When a fact is genuinely disputed, the Court adopts the version of the
genuinely disputed fact that is most favorable to Ms. Grigsby. Accordingly, the facts set forth in
this background section are only applicable in the context of summary judgment and do not
necessarily represent what a jury would find at trial.
Ms. Grigsby started working for PCSSD as a security officer in August 2012.9 In July
2015, Ms. Grigsby was promoted to “Safety and Security Training Officer.”10 Her projected
annual salary was $67,071.11 It appears that Ms. Grigsby held this position and salary for the 20152016 school year, and for the 2016-2017 school year.12
In April 2017, PCSSD notified Ms. Grigsby that her position as Safety and Security
Training Officer was subject to non-renewal due to a “District-wide reduction in force.”13 A few
days later, in May 2017, a physical therapy dummy fell on Ms. Grigsby and injured her right arm.14
Shortly thereafter, Ms. Grigsby filed for Workers’ Compensation.15 Ms. Grigsby continued to
work despite her injury. But sometime during the summer of 2017, Ms. Grigsby requested that
she be placed on either limited duty status or one-arm duty status.16 Her requests were formally
8
Rooney v. Rock-Tenn Converting Co., 878 F.3d 1111, 1115 (8th Cir. 2018).
9
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 2.
10
Id. ¶ 3.
11
Ex. 2 to Def.’s Mot. for Summ. J. (Doc. 26-2) at 1.
12
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 10-11; see also Ex. 2 to Def.’s Mot.
for Summ. J. (Doc. 26-2); Ex. 3 to Def.’s Mot. for Summ. J. (Doc. 26-3).
13
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 4.
14
Ex. 5 to Def.’s Mot. for Summ. J. (Doc. 26-5).
15
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 6; see also Ex. 5 to Def.’s Mot. for Summ. J. (Doc. 26-5).
16
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 11; Ex. 9 to Def.’s Mot. for Summ. J. (Doc. 26-9) at 1-2.
2
Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 3 of 28
denied by Bennie Bowers, the Director of Security.17 Mr. Bowers claimed that the District did not
provide “a light duty status for employees.”18 But Ms. Grigsby indicates that Mr. Bowers did
informally place Ms. Grigsby on light duty status.19 And Ms. Grigsby’s Workers’ Compensation
claim was ultimately approved. In November 2017, PCSSD’s Workers’ Compensation insurance
covered the cost of surgery for Ms. Grigsby’s right arm.20
In the meantime, Ms. Grigsby’s employment term ended, and her position was nonrenewed as described above. Shortly thereafter, in July 2017, Ms. Grigsby began working for
PCSSD as an “Administrative Sergeant.”21 Her projected annual salary as an Administrative
Sergeant was $50,068.80.22 PCSSD asserts that this position was offered to Ms. Grigsby under
the recall provisions of the District’s reduction in force policy.23 Ms. Grigsby asserts that she was
demoted due to budget cuts, not recalled under the reduction in force policy.24 This dispute is not
material.25
Fast forward nearly one year. On April 3, 2018, Ms. Grigsby filed an EEOC complaint
against her then-supervisor, Bennie Bowers.26 The complaint alleged that Mr. Bowers sexually
17
Ex. 9 to Def.’s Mot. for Summ. J. (Doc. 26-9) at 1-2. Mr. Bowers was the head of the Security Department.
18
Id. at 2.
19
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 35.
20
Id. at 6. In April 2018, Ms. Grigsby underwent a “functional capacity exam and impairment rating evaluation”
with Doctor Clayton Riley. Ex. 14 to Def.’s Mot. for Summ. J. (Doc. 26-14). Doctor Riley reported that Ms.
Grigsby’s functional capacity could not be determined because Ms. Grigsby did not put forth a reliable effort. Id.
Doctor Riley explained that it was “impossible for [him] to assess [Ms. Grigsby’s] condition or progress” due to
Ms. Grigsby’s lack of effort, and that Ms. Grigsby failed to attend associated medical examinations. Id.
21
Ex. 3 to Def.’s Mot. for Summ. J. (Doc. 26-3).
22
Id.
23
Def.’s Statement of Facts (Doc. 28) ¶¶ 4-5.
24
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶¶ 4-5.
25
Ms. Grigsby does not allege any claims relating to her transition to Administrative Sergeant.
26
Ex. 7 to Def.’s Mot. for Summ. J. (Doc. 26-7) at 1.
3
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harassed Ms. Grigsby between October 3, 2017 and April 3, 2018.27 For example, on more than
one occasion, Mr. Bowers requested that Ms. Grigsby remove her jacket before meetings.28 Mr.
Bowers did not request male officers to do the same.29 On April 17, 2018, as a result of Ms.
Grigsby’s EEOC complaint, Mr. Bowers submitted his resignation from the Director position in
the Department of Safety and Security.30 His last day was May 15, 2018.31 Shortly after Mr.
Bowers resigned, PCSSD and Ms. Grigsby settled her EEOC complaint through mediation.32 The
settlement agreement was signed on June 19, 2018.33
In May 2018, Ms. Grigsby learned that PCSSD was not renewing three positions above her
position—two “Coordinator” positions and a “Director” position.34 Instead of renewing these
positions, PCSSD planned to hire two “Facilitator[s] of Safety and Security.”35 Approximately
thirteen out of fifteen of a Coordinator’s “Performance Responsibilities” overlapped with the
“Performance Responsibilities” for the new Facilitator positions.36 Only one or two of an
Administrative Sergeant’s “Performance Responsibilities” overlapped with the “Performance
Responsibilities” for the new Facilitator positions.37
The Director position was held by Mr. Bowers until he resigned in May.38 The two
27
Id.
28
Id.
29
Id.
30
Ex. 2 to Def.’s Reply to Pl.’s Resp. (Doc. 34-2) at 2; Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ.
J. (Doc. 33-1) at 8.
31
Ex. 2 to Def.’s Reply to Pl.’s Resp. (Doc. 34-2) at 2.
32
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 7.
33
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 23.
34
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 9. The Coordinators reported to the Director.
35
Id.; see also Ex. 10 to Def.’s Mot. for Summ. J. (Doc. 26-10).
36
Compare Ex. 15 to Def.’s Mot. for Summ. J. (Doc. 26-15), with Ex. 10 to Def.’s Mot. for Summ. J. (Doc. 26-10).
37
Compare Ex. 16 to Def.’s Mot. for Summ. J. (Doc. 26-16), with Ex. 10 to Def.’s Mot. for Summ. J. (Doc. 26-10).
38
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 12, 15, 17-18.
4
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Coordinator positions were held by Gerald Tatum and David Thomas.39 On June 5, 2018, Ms.
Grigsby applied for the two open Facilitator positions.40 On July 1, 2018, Mr. Thomas’s and Mr.
Tatum’s positions were non-renewed.41 From July 1, 2018 to August 28, 2018, Ms. Grigsby
assumed all of the responsibilities formerly associated with the Coordinator positions.42 On July
5, 2018, PCSSD hired Mr. Thomas in a temporary capacity as a “Security Fire Alarm
Responder.”43 It appears that Mr. Tatum was also hired in a temporary capacity shortly after his
Coordinator position was non-renewed.44 Like Ms. Grigsby, Mr. Thomas and Mr. Tatum also
applied for the new Facilitator positions.45
In total, there were nine applicants for the new Facilitator positions, three females and six
males.46 On August 16, 2018, the applicants were interviewed by a multi-racial interview
committee consisting of Curtis Johnson (Executive Director of Operations), Roberto Carrillo
(Custodial and Grounds Supervisor), Loria Bryant (District Pre-K Program Bookkeeper), and
Cynthia D’Abadie (Energy Management System Scheduler).47 The interview committee scored
Mr. Tatum a 93 out of 96, the highest composite score of all applicants.48 The next highest score
39
Id. It is clear from the other documents in the record that what Ms. Grigsby calls “captain” positions are actually
the Coordinator positions. See, e.g., Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶¶ 12-14.
40
Ex. 8 to Def.’s Mot. for Summ. J. (Doc. 26-8).
41
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 9; Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ.
J. (Doc. 33-1) at 18.
42
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 39.
43
Ex. 3 to Def.’s Reply to Pl.’s Resp. (Doc. 34-3) at 1; see also Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for
Summ. J. (Doc. 33-1) at 18.
44
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 18; see also Ex. 12 to Def.’s Mot.
for Summ. J. (Doc. 26-12).
45
Ex. 13 to Def.’s Mot. for Summ. J. (Doc. 26-13).
46
Id. at 2.
47
Id. at 1; Ex. 17 to Def.’s Mot. for Summ. J. (Doc. 26-17) at 1-4.
48
Id. Ms. Grigsby disputes the fairness of the committee’s scores. Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32)
¶ 16. But whether the committee’s scores fairly represent the quality of the candidates is distinct from the actual
score awarded. There is no dispute that the committee awarded Mr. Tatum the highest score.
5
Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 6 of 28
was a 92 out of 96, which was awarded to Mr. Thomas.49 As indicated above, Mr. Tatum and Mr.
Thomas were Ms. Grigsby’s superiors prior to their positions being non-renewed. In fact, the new
Facilitator positions were created to replace Mr. Tatum’s and Mr. Thomas’s Coordinator positions
(as well as the even higher Director position). Ms. Grigsby received the third highest score from
the interview committee, an 84 out of 96.50
Curtis Johnson, Loria Bryant, and Cynthia D’Abadie all scored Mr. Thomas higher than
Ms. Grigsby.51 Roberto Carrillo scored Ms. Grigsby and Mr. Thomas even.52 Curtis Johnson’s
scores represent the largest disparity of scores between Ms. Grigsby and Mr. Thomas.53 Curtis
Johnson scored Mr. Thomas a perfect 24 of 24, despite noting that Mr. Thomas struggled with
“Act 393.”54 On the other hand, Curtis Johnson scored Ms. Grigsby an 18 out of 24.55 Ms. Grigsby
acknowledged in her deposition testimony that, only days or weeks before the interview, she “did
a wrong thing by Mr. Johnson” by hiring a “temp worker” that “Mr. Johnson knew . . . outside of
PCSSD.”56 This occurred within the range of time that Ms. Grigsby was exercising (at least
informal) interim authority as a Coordinator.57
49
Ex. 13 to Def.’s Mot. for Summ. J. (Doc. 26-13) at 1. Ms. Grigsby disputes the fairness of the committee’s scores.
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶¶ 16-17. But whether the committee’s scores fairly represent
the quality of the candidates is distinct from the actual score awarded. There is no dispute that the committee
awarded Mr. Thomas the second highest score.
50
Ex. 13 to Def.’s Mot. for Summ. J. (Doc. 26-13) at 1. Ms. Grigsby disputes the fairness of the committee’s scores.
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶¶ 16-17. But whether the committee’s scores fairly represent
the quality of the candidates is distinct from the actual score awarded. There is no dispute that the committee
awarded Ms. Grigsby the third highest score.
51
Ex. 13 to Def.’s Mot. for Summ. J. (Doc. 26-13) at 2.
52
Id. Roberto Carrillo scored Mr. Tatum higher than Ms. Grigsby. Id.
53
Id.
54
Ex. 17 to Def.’s Mot. for Summ. J. (Doc. 26-17) at 3.
55
Id. at 8.
56
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 38.
57
Id. at 39.
6
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Ultimately, the district hired Mr. Thomas as the only Facilitator.58 While Mr. Thomas
remained in a supervisory capacity over the security department, he experienced a pay cut of over
$20,000 as a result of the non-renewal of the Coordinator position and his subsequent acceptance
of the Facilitator position.59 PCSSD gave little to no explanation as to why it ultimately hired only
one Facilitator.60 What is clear, however, is that all of the applicants were equally surprised and
confused with PCSSD’s decision to only hire one Facilitator.61 Ms. Grigsby asked Paul Brewer,
the Executive Director of Human Resources, why the second Facilitator position was not filled.62
Mr. Brewer didn’t answer the question. Instead, according to Ms. Grigsby, Mr. Brewer indicated
his belief that she wouldn’t have been selected for the position given her injured arm.63
Ms. Grigsby continued working as an Administrative Sergeant for PCSSD and under Mr.
Thomas. But Ms. Grigsby did not feel comfortable reporting to Mr. Thomas because Mr. Thomas
was friends with Mr. Bowers, who was forced to resign as a result of Ms. Grigsby’s original EEOC
complaint.64 In the first two weeks of September 2019, Mr. Thomas made “statements” about Ms.
Grigsby’s injured arm.65 For example, Mr. Thomas would ask Ms. Grigsby how she was “going
to work here with [her] arm?”66 Mr. Thomas would also remind Ms. Grigsby that, if she was going
58
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) ¶ 12. At the summary judgment hearing, PCSSD explained that
Mr. Tatum retired shortly after this time period. June 28, 2021 Hr’g Tr. at 23.
59
Pl.’s Resp. to Def.’s Statement of Facts (Doc. 32) at ¶ 15.
60
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 20-21.
61
Id. at 20.
62
Id.
63
It is unclear whether this statement came directly from Mr. Brewer, whether another security officer told Ms.
Grigsby that Mr. Brewer said she was not a viable option given her injury, or both. Compare id. at 20, with id. at
46.
64
Id. at 8, 29.
65
Id. at 34; see also Ex. 7 to Def.’s Mot. for Summ. J. (Doc. 26-7) at 2.
66
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 34.
7
Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 8 of 28
to work for him, she was “going to have to get the job done.”67 And Mr. Thomas would question
why Ms. Grigsby was still there, suggesting that she was unable to do anything.68 Mr. Thomas
also moved Ms. Grigsby’s desk so that he could “watch [her] move [her] arm.”69 And Mr. Thomas
would “laugh at different things about just statements in general, which [Ms. Grigsby] didn’t think
. . . were funny at all.”70 Finally, Mr. Thomas required Ms. Grigsby to type documents that could
be written, and to work assignments she preferred not to work.71
On December 20, 2018, Ms. Grigsby filed a discrimination and retaliation claim with the
EEOC.72 She asserted that she did not receive a promotion to the Facilitator position because of
sex discrimination and in retaliation for having filed an EEOC complaint against her previous
supervisor, Mr. Bowers.73 She also asserted that, between August 30, 2018 and September 14,
2018, Mr. Thomas mocked her on-the-job injury by moving her desk to watch her type, and by
requiring her to type documents that did not require typing.74 But she did not allege that Mr.
Thomas’s conduct was continuing in nature.75
Sometime in early March 2019, Ms. Grigsby was “assaulted” by a parent of a student at
Sylvan Hills Middle School.76 Her arm was re-injured in the assault, and she again applied for
67
Id.
68
Id.
69
Id.; see also Ex. 7 to Def.’s Mot. for Summ. J. (Doc. 26-7) at 2.
70
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 34.
71
Id. at 35-37; see also Ex. 7 to Def.’s Mot. for Summ. J. (Doc. 26-7) at 2.
72
Ex. 7 to Def.’s Mot. for Summ. J. (Doc. 26-7) at 2.
73
Id.
74
Id.
75
Id.
76
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 30-32.
8
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Workers’ Compensation.77 She never returned to work following this injury.78
On August 9, 2019, Ms. Grigsby received a right to sue letter from the EEOC.79 The letter
informed Ms. Grigsby that the EEOC was not going to file suit on her behalf, and that she could
file suit within 90 days of receipt of the letter.80 On November 4, 2019, Ms. Grigsby filed a pro
se Complaint in this Court.81 By the time Ms. Grigsby amended her Complaint, she was
represented by counsel.82
Ms. Grigsby resigned from PCSSD in January 2020.83
Summary Judgment Standard
Summary judgment is appropriate “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.”84 The movant bears the initial burden of
showing (1) the absence of a genuine dispute as to any material fact and (2) that a rational juror
could not possibly find for the nonmoving party based on the undisputed facts.85 If the movant
successfully makes this showing, the burden then shifts to the nonmoving party to establish that
there is some genuine and material issue to be determined at trial.86 The nonmoving party may
77
Id. at 36.
78
Id.
79
Pl.’s Compl. (Doc. 1) at 2. The letter was dated August 2, 2019. Ex. 1 to Pl.’s Am. Compl. (Doc. 15-1) at 2.
80
Ex. 1 to Pl.’s Am. Compl. (Doc. 15-1) at 2.
81
Pl.’s Compl. (Doc. 1) at 1.
82
Pl.’s Am. Compl. (Doc. 15) at 7.
83
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 29.
84
MacKintrush v. Pulaski Cty. Sheriff’s Dep’t, 987 F.3d 767, 769 (8th Cir. 2021) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)); see also FED. R. CIV. P. 56(a).
85
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
86
Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997).
9
Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 10 of 28
not rest solely upon the allegations in its pleadings.87 To survive summary judgment, the
nonmoving party “must demonstrate the existence of specific facts” supported by sufficient
probative evidence that would permit a favorable finding “on more than mere speculation,
conjecture, or fantasy.”88
If the nonmoving party can present specific facts by “affidavit,
deposition, or otherwise, showing the existence of a genuine issue for trial,” then summary
judgment is not appropriate.89
Of course, the mere existence of a disputed fact will not bar summary judgment.90 The
dispute must be genuine, which means the evidence could cause a rational juror to decide the
particular question of fact for either party.91 And the disputed fact must be material, meaning the
resolution of the disputed fact will (or at least may) be outcome determinative under the controlling
law.92
The Court will resolve all genuine issues of material fact in the non-moving party’s favor.93
But the Court will not adopt a version of the facts that is blatantly contradicted by the record such
that no rational juror could believe it.94
Discussion
Ms. Grigsby’s Complaint and Amended Complaint are less than helpful in identifying her
87
Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).
88
Donathan v. Oakley Grain, Inc., 861 F.3d 735, 739 (8th Cir. 2017) (quoting Mann v. Yarnell, 497 F.3d 822, 825
(8th Cir. 2007)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
89
Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir. 2005).
90
Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989) (citation omitted).
91
Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008); Anderson, 477 U.S. at 248.
92
Holloway, 884 F.2d at 366.
93
Kohorst v. Smith, 968 F.3d 871, 876 (8th Cir. 2020) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)).
94
Id.
10
Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 11 of 28
causes of action.95 In fact, Ms. Grigsby’s Amended Complaint does not even include a section
outlining her causes of action.96 Instead, in the “Introduction” section of the Amended Complaint,
Ms. Grigsby broadly asserts that “[t]his is a civil rights action,” brought under 42 U.S.C. § 2000e
and 42 U.S.C. § 12101, “to recover damages against [PCSSD] for the unlawful discriminatory
employment practices that [Ms.] Grigsby has been subjected to, all on account of her sex,
disability, and in retaliation for having opposed discriminatory practices.”97 The introduction
section further relays that Ms. Grigsby is seeking relief under 42 U.S.C. § 1983, declaratory
judgment under 28 U.S.C. § 2201, and “equitable relief and injunctive relief as well.”98
On June 28, 2021, the Court held a hearing on PCSSD’s Summary Judgment Motion.99 At
the hearing, the Court asked Ms. Grigsby’s counsel for clarification as to which specific claims
are advanced in the Amended Complaint. Ms. Grigsby’s counsel stated that the Amended
Complaint advances three claims: (1) a failure-to-promote claim on the basis of sex discrimination,
(2) a failure-to-promote claim based on Ms. Grigsby’s perceived disability, and (3) a failure-topromote claim based on retaliation.100 Ms. Grigsby’s counsel expressly conceded that these are
the only three claims advanced in the Amended Complaint.101 Given this express concession, the
Court will only address these three claims.
There is still a question about the scope of the three claims. Specifically, are the failureto-promote claims limited to PCSSD’s decision to select Mr. Thomas for the Facilitator position
95
See Pl.’s Compl. (Doc. 1); Pl.’s Am. Compl. (Doc. 15).
96
Ms. Grigsby’s Amended Complaint includes the following sections: Introduction; Jurisdiction; Parties; Facts;
Procedural Requirement; Damages; and Jury Demand. Pl.’s Am. Compl. (Doc. 15).
97
Id. at 1.
98
Id.
99
See Docs. 41 and 42.
100
June 28, 2021 Hr’g Tr. at 29-30.
101
Id. at 30.
11
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instead of Ms. Grigsby? Or do the failure-to-promote claims also encompass PCSSD’s decision
to not hire a second Facilitator? At the summary judgment hearing, Ms. Grigsby’s counsel argued
that the failure-to-promote claims encompass both of these issues.102 In other words, Ms. Grigsby
alleges that PCSSD discriminated or retaliated against her both by awarding Mr. Thomas (instead
of her) the Facilitator position and by not giving her the second advertised Facilitator position.
PCSSD contends that the Amended Complaint did not plead any claims relating to not filling an
advertised second Facilitator position.103 As a result, PCSSD asserts that it was not put on notice
of those allegations, and that the Court should not read them into the Amended Complaint.104
The Court agrees with PCSSD. It is true that the Amended Complaint alleges, as a fact,
that, “[i]n May 2018, [Ms. Grigsby] applied for one of two (2) advertised [F]acilitator’s positions
within the Department of Safety and Security.”105 In context, however, it is readily apparent that
this statement is merely background for the specific claims asserted—that choosing Mr. Thomas
over Ms. Grigsby for the Facilitator position constituted unlawful discrimination and retaliation.
The Amended Complaint continuously refers to the position (singular) that was awarded to Mr.
Thomas as the basis for her claims.106 For example:
21. On August 30, 2018, the plaintiff learned that a lesser qualified
male was awarded this position, which was awarded to Dave
Thomas.
22. The Facilitator’s role in Safety and Security acted as the manager
of this department.
23. Dave Thomas had previously been by the PCSSD as a Captain
with the district’s security department.
102
Id. at 40-46.
103
Id. at 50.
104
Id.
105
Pl.’s Am. Compl. (Doc. 15) ¶ 20.
106
Id. ¶¶ 21, 27, 28, 29, 30, 37.
12
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24. During the Spring of 2018, Dave Thomas was informed that his
position was being non-renewed.
25. After Mr. Thomas was non-renewed, the plaintiff began to work
in a management capacity in the defendant’s Safety and Security
Department.
26. Despite the fact that Mr. Thomas’ position had been nonrenewed, he was kept in a temporary status, at his regular salary of
approximately $70,000.00 per year, when per policy, he should have
only been making $12.00 per hour.
27. The fact that Mr. Thomas was kept at his annual salary of
$70,000.00, despite being in a temporary status, was designed to
give him the advantage of being selected for the facilitator’s
position, was [sic] constitutes a preselection.
28. The plaintiff was not selected for the facilitator’s position due to
her sex, in violation of Title VII of the Civil Rights Act of 1964 (as
amended).
29. Furthermore, the plaintiff was denied the facilitator’s position
on account of her perceived disability, in violation of the Americans
with Disability Act (ADA).
30. Also, the plaintiff was not selected for the facilitator’s position
in retaliation to [sic] previously complaining about discrimination,
in violation of Title VII of the Civil Rights Act of 1964 (as
amended).
....
37. On December 20, 2018, the plaintiff filed a Charge of
Discrimination (No. 493-2019-00506) with the Equal Employment
Opportunity Commission (EEOC), contending that she had been
discriminated against in [the] terms and conditions of her
employment with the defendant, when she was not selected for the
facilitator’s position that was given to Dave Thomas in August
2018, due to her sex and retaliation for having previously
complaining [sic] about discrimination in violation of Title VII of
the Civil Rights Act of 1964 (as amended), also due to her perceived
disability, in violation of the American with Disabilities Act (ADA).
(See Charge of Discrimination attached herein as Plaintiff’s Exhibit
“A”).107
107
Id. ¶¶ 21-30, 37.
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Although Ms. Grigsby’s December 2018 EEOC complaint noted that “one of the two
positions was not filled,” this was not echoed in the Amended Complaint.108 To the contrary, the
Amended Complaint summarizes Ms. Grigsby’s EEOC complaint as alleging discrimination and
retaliation when she was not selected for the Facilitator position “that was given to Dave Thomas
in August 2018.”109 The summary makes no mention of the second, unfilled position.110
Moreover, Ms. Grigsby’s Brief in Support of her Response to PCSSD’s Motion for
Summary Judgment strongly corroborates the conclusion that the Amended Complaint is not
asserting claims regarding PCSSD’s decision not to fill the second Facilitator position.111
Nowhere in her brief can the Court find any suggestion of such a claim or any argument that
summary judgment should be denied because of this second unfilled Facilitator position.
The Court concludes that the failure-to-promote claims as pleaded in the Amended
Complaint relate to the Facilitator position (singular) filled by Mr. Thomas. Under Federal Rule
of Civil Procedure 8(d), “[e]ach allegation” in a pleading “must be simple, concise, and direct.”
And the Court must construe the pleadings “so as to do justice.”112 Here, it is clear that the
pleadings were not meant to raise claims regarding the second advertised Facilitator position and
did not put PCSSD on notice of such claims. It would be entirely unfair to, in essence, allow these
claims to be raised for the first time at a summary judgment hearing.
I.
Failure to Promote – Sex Discrimination
Ms. Grigsby alleges that PCSSD did not promote her to the Facilitator position “due to her
108
Ex. 7 to Def.’s Mot. for Summ. J. (Doc. 26-7) at 2.
109
Id. ¶ 37.
110
Id.
111
Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33).
112
FED. R. CIV. P. 8(e).
14
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sex.”113 Under Title VII, it is unlawful for an employer “to discriminate against any individual
with respect to [her] compensation, terms, conditions, or privileges of employment, because of
such individual’s . . . sex . . . .”114 It is equally unlawful for an employer “to limit, segregate, or
classify [its] employees or applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect [her] status as
an employee, because of such individual’s . . . sex . . . .”115 To survive a motion for summary
judgment on a discrimination claim, “a plaintiff must either present admissible evidence directly
indicating unlawful discrimination, or create an inference of unlawful discrimination under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973).”116
Ms. Grigsby has not presented any direct evidence of sex discrimination in PCSSD’s hiring
process. Thus, the McDonnell Douglas burden-shifting framework applies.117
Under this framework, a plaintiff must first establish a prima facie
case of discrimination. Then, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its action. If
the defendant meets this burden, then the burden shifts back to the
plaintiff to produce sufficient admissible evidence that creates a
genuine issue of material fact regarding whether defendant’s
proffered nondiscriminatory justification is merely pretextual for
intentional discrimination.118
A. Step One – Prima Facie Case
Ms. Grigsby has established a prima facie failure-to-promote claim. To establish a prima
113
Pl.’s Am. Compl. (Doc. 15) ¶ 28.
114
42 U.S.C. § 2000e-2(a)(1).
115
42 U.S.C. § 2000e-2(a)(2).
116
Carter v. Pulaski Cty. Special Sch. Dist., 956 F.3d 1055, 1058 (8th Cir. 2020) (quoting Macklin v. FMC Transp.,
Inc., 815 F.3d 425, 427 (8th Cir. 2016)).
117
Pribyl v. Cty. of Wright, 964 F.3d 793, 796 (8th Cir. 2020).
118
Id. (internal citations omitted).
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facie failure-to-promote claim, a plaintiff must show that: (1) she was a member of a protected
group; (2) she was qualified and applied for a promotion to a position for which the employer was
seeking applicants; (3) she was not promoted; and (4) similarly situated employees, not part of the
protected group, were promoted instead.119 Ms. Grigsby has shown that she is a member of a
protected group. She was minimally qualified for the Facilitator position and she applied for the
Facilitator position. But Ms. Grigsby did not receive the promotion. Instead, an employee outside
of the protected group was promoted. Ms. Grigsby has therefore created a rebuttable presumption
of discrimination.120
B. Step Two – Nondiscriminatory Reason
PCSSD has rebutted the presumption of discrimination. To rebut the presumption of
discrimination, a defendant must articulate a legitimate, nondiscriminatory reason for its
conduct.121 “The burden to articulate a nondiscriminatory justification is not onerous, and the
explanation need not be demonstrated by a preponderance of the evidence.”122
PCSSD asserts that Ms. Grigsby did not receive the promotion because she was not the
most qualified applicant.123 PCSSD attached to its Motion for Summary Judgment the interview
scoring sheets from the interviews for the Facilitator position.124 The scoring sheets indicate that
three of the four interviewers viewed Mr. Thomas as the superior applicant to Ms. Grigsby.125 And
119
E.g., Austin v. Minn. Min. & Mfg. Co., 193 F.3d 992, 995 (8th Cir. 1999).
120
Watson v. McDonough, 996 F.3d 850, 854 (8th Cir. 2021).
121
Id.
122
Torgerson, 643 F.3d at 1047 (quoting Floyd v. State of Missouri Dep’t of Soc. Servs., Div. of Fam. Servs., 188 F.3d
932, 936 (8th Cir. 1999)).
123
Def.’s Br. in Supp. of Mot. for Summ. J. (Doc. 27) at 5.
124
Ex. 13 to Def.’s Mot. for Summ. J. (Doc. 26-13).
125
Id. at 2.
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the remaining interviewer merely considered Ms. Grigsby and Mr. Thomas equally qualified for
the position.126 None of the interviewers considered Ms. Grigsby to be a superior option over Mr.
Thomas.127 Thus, a multi-racial committee composed of two males and two females determined
that Mr. Thomas was more qualified for the Facilitator position than Ms. Grigsby.
All the record evidence supports the committee’s determination.128 It is undisputed that
the Facilitator positions were created to replace the Coordinator positions. And it is undisputed
that Mr. Thomas held a Coordinator position for five years prior to the position being non-renewed.
During that entire time, Mr. Thomas was Ms. Grigsby’s superior. Of his fifteen “Performance
Responsibilities” as a Coordinator, thirteen of them overlap with a Facilitator’s “Performance
Responsibilities.” In contrast, at best, Ms. Grigsby acted as an interim Coordinator for two months
while school was out for the summer. Outside of her interim stint as Coordinator, Ms. Grigsby
worked as an Administrative Sergeant. Only two of her “Performance Responsibilities” as an
Administrative
Sergeant
overlapped
with
the
Facilitator
position’s
“Performance
Responsibilities.”129 Because PCSSD has shown a legitimate, nondiscriminatory reason for its
conduct, PCSSD has rebutted the presumption of discrimination.130
126
Id.
127
Id.
128
In her deposition testimony, Ms. Grigsby says that she was more qualified for the Facilitator position than was Mr.
Thomas. Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 26. This sort of selfserving statement, without any real support, is not enough to create a genuinely disputed issue of fact.
129
PCSSD also notes that Ms. Grigsby’s integrity and work ethic had been recently called into question by Doctor
Clayton Riley. See supra note 20. On May 22, 2018, Doctor Riley reported that Ms. Grigsby’s functional capacity
could not be determined because Ms. Grigsby had not put forth a reliable effort during her examinations. Id.
Doctor Riley explained that it was “impossible for [him] to assess [Ms. Grigsby’s] condition and progress” due to
Ms. Grigsby’s lack of effort, and that Ms. Grigsby failed to attend associated medical examinations. Id. The record
does not state whether the interview committee was aware of Doctor Riley’s report, or whether the interview
committee knew about Ms. Grigsby’s injury at all.
130
Watson, 996 F.3d at 854.
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C. Step Three – Pretext
Ms. Grigsby has failed to show that PCSSD’s nondiscriminatory reason is mere pretext.
An employee may demonstrate pretext in two ways. She may show that it is more likely that
discriminatory animus motivated the employer’s decision, or she may show that the employer’s
explanation is unworthy of credence because it has no basis in fact.131 “Either route amounts to
showing that a prohibited reason, rather than the employer’s stated reason, actually motivated” the
employer’s conduct.132
Ms. Grigsby argues that PCSSD’s explanation is pretextual because it relies on scores
derived from subjective interview criteria. Ms. Grigsby is correct that some (maybe even most)
of the interview criteria was subjective in nature. But an “assessment of a particular employee’s
performance is necessarily subjective.”133 And “[e]mployers are entitled to compare applicants’
performance during interviews.”134 “[W]here the employer does not rely exclusively on subjective
criteria, but also on objective criteria, the use of subjective considerations does not give rise to an
inference of discrimination.”135
The interview committee did not rely on subjective criteria alone. For example, the
interview committee considered each candidates’ education and experience,136 both of which the
Eighth Circuit has clearly categorized as objective criteria.137 And to the extent subjective criteria
131
Rooney, 878 F.3d at 1117.
132
Id.
133
Hilt v. St. Jude Med. S.C., Inc., 687 F.3d 375, 381 (8th Cir. 2012) (quoting Guimaraes v. SuperValu, Inc., 674 F.3d
962, 976 (8th Cir. 2012)).
134
Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 705 (8th Cir. 2012) (citing Tyler v. Univ. of Ark., 628 F.3d 980,
989 (8th Cir. 2011)).
135
Id. (citing Wingate v. Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074, 1080 (8th Cir. 2008)).
136
Ex. 17 to Def.’s Mot. for Summ. J. (Doc. 26-17); Ex. 5 to Def.’s Reply to Pl.’s Resp. (Doc. 34-5).
137
Power v. Univ. of N. Dakota Sch. of L., 954 F.3d 1047, 1053 (8th Cir. 2020).
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was used, the interviews each consisted of the same committee and applied the same scoring
rubric.138 Additionally, it is undisputed that PCSSD “set forth objective minimum requirements”
for the Facilitator position.139 In particular, to be qualified for the Facilitator position, an applicant
must have been a college graduate or possessed related experience or training, have had a minimum
of five years’ experience in law enforcement or security, have had supervisory experience, and
have a valid driver’s license.140
PCSSD necessarily considered Ms. Grigsby’s objective
qualifications in determining to interview her for the position.141
Accordingly, the use of
subjective interview criteria does not itself give rise to an inference of discrimination.142
Ms. Grigsby takes particular issue with Curtis Johnson’s scores. She asserts that, based on
the scoring, “it was apparent that Mr. Johnson preferred Dave Thomas over Wanda Grigsby.”143
But Mr. Thomas scored higher than Ms. Grigsby even without Mr. Johnson’s scores. And more
importantly, there is nothing unlawful with Mr. Johnson preferring Mr. Thomas over Ms. Grigsby.
The Eighth Circuit has been clear that “it is not unlawful for an employer to make ‘employment
decisions based upon poor job performance, erroneous evaluations, personal conflicts between
138
Ex. 17 to Def.’s Mot. for Summ. J. (Doc. 26-17); Ex. 5 to Def.’s Reply to Pl.’s Resp. (Doc. 34-5). See Torgerson,
643 F.3d at 1050 (emphasizing that each interview consisted of the same panel and same questions); Elliott v.
Montgomery Ward & Co., 967 F.2d 1258, 1263 (8th Cir. 1992) (noting that the evaluation process was uniformly
applied; each applicant was subject to the same performance reviews and evaluated by the same manager).
139
Pribyl, 964 F.3d at 796.
140
Ex. 10 to Def.’s Mot. for Summ. J. (Doc. 26-10) at 1.
141
Pribyl, 964 F.3d at 796 (“It is undisputed that the County set forth objective minimum requirements in its NeoGov
application and only the applicants who met those requirements were interviewed. As such, the County considered
Pribyl’s objective qualifications when it granted her an interview.”).
142
At the summary judgment hearing, Ms. Grigsby’s counsel argued that PCSSD has a history of racial discrimination,
which, when coupled with the subjective interview criteria, creates an inference of discrimination. June 28, 2021
Hr’g Tr. at 36-37. There is no record evidence on this point. In any event, a general reference to a history of racial
discrimination does not give rise to an inference of sex or disability discrimination. Indeed, historical and statistical
evidence of a pattern of discriminatory practices must involve similarly situated persons, an appropriate sample
size, and statistically significant findings. See, e.g., Carter v. St. Louis Univ., 167 F.3d 398, 402 (8th Cir. 1999);
Goetz v. Farm Credit Servs., 927 F.2d 398, 405 (8th Cir. 1991); Bell v. Bolger, 708 F.2d 1312, 1321 (8th Cir.
1983).
143
Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33) at 15.
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Case 4:19-cv-00778-LPR Document 43 Filed 07/14/21 Page 20 of 28
employees, or even unsound business practices,’ as long as these decisions are not the result of
discrimination based on an employee’s membership in a protected class.”144
Even assuming that Mr. Johnson did prefer Mr. Thomas over Ms. Grigsby, there are no
record facts to suggest that his preference was based on sex. A closer look at Mr. Johnson’s ratings
reveals no sexual bias. Mr. Johnson rated Sandra Arnold, one of the other female candidates,
higher than did all of the other committee members and higher than or equal to all of the male
candidates except for Mr. Thomas.145 And Mr. Johnson rated Ms. Grigsby higher than two of the
male candidates.146 It’s true that Mr. Johnson expressed concerns about Ms. Grigsby’s interview.
But Ms. Grigsby herself admitted that, during her brief stint as Coordinator, she “did a wrong thing
by Mr. Johnson” by hiring a “temp worker” that “Mr. Johnson knew . . . outside of PCSSD.”147
Despite Ms. Grigsby’s error, Mr. Johnson still credited Ms. Grigsby’s “[s]olid experience” and
acknowledged that Ms. Grigsby took the lead in the absence of the Coordinator position.148
Ms. Grigsby has not produced any evidence that would allow a rational juror to conclude
that it is more likely that discriminatory animus motivated PCSSD’s decision, or that PCSSD’s
explanation is unworthy of credence because it has no basis in fact.149 So no rational juror could
conclude that PCCSD’s legitimate, nondiscriminatory reason for its conduct was a pretext for
discrimination. PCSSD is entitled to judgement as a matter of law on Ms. Grigsby’s sex
discrimination claim.
144
Evers v. Alliant Techsystems, Inc., 241 F.3d 948, 959 (8th Cir. 2001) (internal citation omitted).
145
Mr. Johnson scored Ms. Sandra Arnold a 22 out of 24. Ex. 13 to Def.’s Mot. for Summ. J. (Doc. 26-13) at 2. The
rest of the committee scored Ms. Arnold a 20, 21, and 19, respectively. Id. Mr. Johnson scored Ms. Arnold higher
than Mr. Gary Burton, Mr. Lonnie Murphy, and Mr. Cranton Murphy, and equal to Mr. Tracy Bunting and Mr.
Gerald Tatum. Id.
146
Mr. Johnson scored Ms. Grigsby higher than Mr. Lonnie Murphy and Mr. Cranton Murphy. Id.
147
Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33-1) at 38.
148
Ex. 17 to Def.’s Mot. for Summ. J. (Doc. 26-17) at 8.
149
Rooney, 878 F.3d at 1117.
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II.
Failure to Promote – ADA Discrimination
Ms. Grigsby also alleges that she was not selected for the Facilitator position “on account
of her perceived disability.”150 The ADA prohibits covered employers from discriminating
“against a qualified individual on the basis of disability in regard to job application procedures,
[or] the hiring, advancement, or discharge of employees . . . .”151 Like sex discrimination and
retaliation, disability discrimination may be shown by either direct or indirect evidence.152 “Direct
evidence includes ‘evidence of conduct or statements by persons involved in the decision[-]making
process that may be viewed as directly reflecting the alleged discriminatory attitude,’ where it is
sufficient to support an inference that discriminatory attitude more likely than not was a motivating
factor.”153 In the absence of direct evidence, the McDonnell Douglas burden-shifting framework
applies.154
Ms. Grigsby contends that she has demonstrated direct evidence of discrimination because
Mr. Brewer indicated to her his belief that, had a second Facilitator been selected, Ms. Grigsby
would not have been chosen because her arm was “messed up.”155 Even assuming this statement
is true, Ms. Grigsby has not identified any evidence indicating that Mr. Brewer was “involved in
150
Pl.’s Am. Compl. (Doc 15) ¶ 29.
151
42 U.S.C. § 12112(a).
152
Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537, 543 (8th Cir. 2018).
153
Id. (quoting Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006)).
154
Oehmke v. Medtronic, Inc., 844 F.3d 748, 755 (8th Cir. 2016).
155
The Court is skeptical of Ms. Grigsby’s testimony on this point. For one thing, as already stated, it is unclear
whether this statement came directly from Mr. Brewer, whether another security officer told Ms. Grigsby that Mr.
Brewer said she was not a viable option given her injury, or both. Compare Ex. 1 to Pl.’s Br. in Supp. of Resp. to
Def.’s Mot. for Summ. J. (Doc. 33-1) at 20, with Ex. 1 to Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J.
(Doc. 33-1) at 46. For another thing, Ms. Grigsby testified that it was Mr. Brewer who appointed her as an interim
Coordinator once the Coordinator positions were non-renewed. Given the undisputed similarities between the job
responsibilities of the Facilitator position and the Coordinator position, it appears that Mr. Brewer had little to no
concerns regarding Ms. Grigsby’s injured arm with respect to fulfilling the duties of that position. Nevertheless,
the Court views the facts in the light most favorable to Ms. Grigsby.
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the decision[-]making process” or had any insight into the decision-making process.156 And it is
undisputed that Mr. Brewer was not part of the interview committee. Although it is true that Mr.
Brewer was the Executive Director of Human Resources at the time that the Facilitator position
was filled, that fact alone does not necessitate his involvement in the decision-making process.157
Accordingly, Mr. Brewer’s statement alone is not “sufficient to support an inference that
discriminatory attitude more likely than not was a motivating factor.” Once again, the McDonnell
Douglas burden-shifting framework applies.158
A. Step One – Prima Facie Case
Ms. Grigsby has established a prima facie claim of disability discrimination. To establish
a prima facie claim of discrimination under the ADA, a plaintiff must show (1) that she was
disabled as defined by the ADA, (2) that she was qualified to perform the essential functions of
her job with or without reasonable accommodation, and (3) that she suffered an adverse
employment action because of her disability.159
PCSSD does not dispute that Ms. Grigsby was disabled within the meaning of the ADA.160
And PCSSD concedes that Ms. Grigsby suffered adverse employment action when she was not
promoted to the Facilitator position.161 But PCSSD contends that Ms. Grigsby failed to show that
156
It is also worth reiterating that, as explained above, the failure-to-promote claims as pleaded in the Amended
Complaint relate only to the Facilitator position (singular) filled by Mr. Thomas. See supra pp. 10-14. Mr.
Brewer’s alleged comment regarding the second, unfilled position is tenuous at best.
157
Mr. Brewer and the “Administrator or Department Manager” signed a form (which was largely incomplete) entitled
the “Support Staff Personnel Recommendation Form.” Ex. 2 to Def.’s Reply to Pl.’s Resp. (Doc. 34-2) at 2. Mr.
Brewer’s signature was not dated, and Ms. Grigsby has not provided any context to the form sufficient to suggest
that Mr. Brewer’s undated signature constituted his involvement in the decision-making process. Id.
158
See, e.g., Oehmke, 844 F.3d at 755.
159
Id.
160
Def.’s Br. in Supp. of Mot. for Summ. J. (Doc. 27) at 19 (“Generously assuming that Grigsby’s shoulder injury
qualified her as disabled under the ADA . . . .”).
161
Id.
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she was qualified to perform the essential functions of the Facilitator position with or without
reasonable accommodation.162 In response, Ms. Grigsby argues that PCSSD failed to provide her
a reasonable accommodation.163
Ms. Grigsby’s argument is misdirected. Whether PCSSD should have accommodated Ms.
Grigsby is different—both substantively and legally—than whether Ms. Grigsby could perform
the essential functions of the open job with or without reasonable accommodation. The Amended
Complaint alleges that Ms. Grigsby was not promoted on account of her perceived disability. It
does not allege (or even imply) that PCSSD failed to accommodate her disability. Ms. Grigsby
may not raise that claim for the first time on summary judgment.
While Ms. Grigsby’s argument is misdirected, PCSSD’s argument is wrong. Ms. Grigsby
served as an interim Coordinator after the Coordinator positions were non-renewed. Given the
undisputed similarities between the job responsibilities of the Facilitator position and Coordinator
position, it stands to reason that, for nearly two months, Ms. Grigsby performed most of the
essential functions of the Facilitator position. Additionally, Loria Bryant, Roberto Carrillo, and
Curtis Johnson each assessed Ms. Grigsby’s ability to implement the Facilitator job description as
“superior,” which constituted a perfect score on that factor.164 And Cynthia D’Abadie assessed
Ms. Grigsby’s ability to implement the Facilitator’s job description as “above average.”165
Ms. Grigsby has shown with sufficient evidence that she was qualified to perform the
essential functions of the Facilitator position with or without reasonable accommodation. As a
result, Ms. Grigsby has successfully established a prima facie claim of discrimination under the
162
Id.
163
Pl.’s Br. in Supp. of Resp. to Def.’s Mot. for Summ. J. (Doc. 33) at 18.
164
Ex. 17 to Def.’s Mot. for Summ. J. (Doc. 26-17) at 5-6, 8.
165
Id. at 7.
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ADA.
B. Step Two – Nondiscriminatory Reason
PCSSD has rebutted the presumption of discrimination. Indeed, for the same reasons
identified above, PCSSD has articulated a legitimate, nondiscriminatory reason for its conduct. In
short, PCSSD has identified evidence that supports its explanation that it did not promote Ms.
Grigsby because Mr. Thomas was more qualified.
C. Step Three – Pretext
Ms. Grigsby failed to argue that PCSSD’s nondiscriminatory reason is pretextual.166 Even
if she had, there is no record evidence showing that a prohibited reason, rather than PCSSD’s stated
reason, actually motivated PCSSD’s conduct.167 Essentially, the analysis in Section I.C. above is
also applicable here. Accordingly, Ms. Grigsby has failed to show the existence of specific facts
supported by sufficient probative evidence that would allow a rational juror to find in her favor.
PCSSD is therefore entitled to judgment as a matter of law on Ms. Grigsby’s failure-to-promote
claim under the ADA.
166
Ms. Grigsby hangs her entire ADA response on the existence of direct evidence. Pl.’s Br. in Supp. of Resp. to
Def.’s Mot. for Summ. J. (Doc. 33) at 18-23. Consequently, she did not address the McDonnell Douglas framework
with respect to the ADA claim.
167
The only potential record evidence in this case relating to any discrimination on the basis of Ms. Grigsby’s injury
involves Mr. Brewer, Mr. Thomas, and Mr. Bowers. But Ms. Grigsby does not argue that any of these individuals
were involved in or influenced the interview or selection process. And none of the record evidence suggests that
they were. Mr. Brewer stated his belief that, even if they had filled the second Facilitator position, Ms. Grigsby
would not have been selected because of her injured arm. But as explained above, there is no record evidence that
Mr. Brewer had any involvement in or insight into the decision-making process. Ms. Grigsby alleges that Mr.
Thomas mocked her injury and retaliated against her by moving her desk and assigning her typing duties. But all
of these allegations transpired after he was selected for the Facilitator position, not before. There is no indication
whatsoever that Mr. Thomas—an applicant for the position himself—had any influence over the selection process
for the Facilitator position. Finally, Mr. Bowers retired from PCSSD months before the interviews were conducted
and the Facilitator position was filled. There is no indication that Mr. Bowers had any involvement in filling the
new Facilitator position.
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III.
Failure to Promote – Retaliation
Ms. Grigsby also alleges that PCSSD did not promote her because she filed an EEOC claim
against her former supervisor, Bennie Bowers.168 Under Title VII, it is unlawful for an employer
to discriminate against an employee who opposes an unlawful employment practice or who
charges or participates in a discrimination investigation or proceeding against her employer.169 To
survive summary judgment, a plaintiff must either (1) establish admissible evidence directly
indicating unlawful retaliation or (2) create an inference of unlawful retaliation under the burden
shifting framework set forth in McDonnell Douglas.170
Ms. Grigsby has not pointed the Court to any evidence directly indicating unlawful
retaliation. Thus, once again, the McDonnell Douglas burden-shifting framework applies. A
prima facie case of retaliation is established if the plaintiff shows (1) that she engaged in protected
activity, (2) a reasonable employee would have found the retaliatory conduct materially adverse,
and (3) the materially adverse conduct was causally linked to the protected activity.171
The first element is met. Ms. Grigsby clearly engaged in protected activity when she filed
her initial EEOC complaint against Mr. Bowers. The second element is also met. A reasonable
employee would find the denial of a promotion to be materially adverse. But Ms. Grigsby has not
satisfied the final element of a prima facie case of retaliation—causation.
A causal relationship exists where the alleged retaliatory motive was the but-for cause of
168
Pl.’s Am. Compl. (Doc. 15) ¶ 30. The Amended Complaint also suggests that PCSSD retaliated against Ms.
Grigsby for filing a Workers’ Compensation claim. Id. ¶ 31. That claim was not filed with the EEOC and was not
administratively exhausted. Additionally, to the extent filing for Workers’ Compensation could count as protected
activity, that activity bears even less of a temporal relationship to the alleged discriminatory conduct than does Ms.
Grigsby’s original EEOC complaint. As a result, it fails to satisfy the third element of a prima facie case for the
same reasons as those described below.
169
42 U.S.C. § 2000e-3(a).
170
Mahler v. First Dakota Title Ltd. P’ship, 931 F.3d 799, 805 (8th Cir. 2019).
171
Id.
25
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the adverse action.172 Direct evidence on this point is seldom available.173 Instead, plaintiffs often
rely on indirect evidence, such as “evidence establishing an inference of retaliatory animus through
temporal proximity of the two events.”174 But a mere coincidence of timing is rarely sufficient to
satisfy the element.175 Indeed, the Eighth Circuit has “uniformly held that the temporal proximity
must be ‘very close’” to satisfy the element without additional evidence.176
Although the Eight Circuit has not drawn a definitive line, it has clearly “recognized that
‘[m]ore than two months is too long to support a finding of causation without something more,’”177
and that even a two-week interval is barely sufficient to establish causation.178 “As more time
passes between the protected conduct and the retaliatory act, the inference of retaliation becomes
weaker and requires stronger alternate evidence of causation. The inference vanishes altogether
when the time gap between the protected activity and the adverse employment action is measured
in months.”179
As established above, Ms. Grigsby filed her first EEOC complaint on April 3, 2018. Her
claim reached full resolution on June 19, 2018. On August 29, 2018—nearly five months after
172
Williams v. United Parcel Serv., Inc., 963 F.3d 803, 807 (8th Cir. 2020).
173
Tyler, 628 F.3d at 986.
174
Id. (citing Buytendorp v. Extendicare Health Servs., Inc., 498 F.3d 826, 836 (8th Cir. 2007)).
175
See, e.g., Turner v. Gonzales, 421 F.3d 688, 697 (8th Cir. 2005).
176
Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006) (applying the “very close” standard to FLMA
retaliation); see also Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014) (applying the “very close” standard to ADA
retaliation); Muor v. U.S. Bank Nat. Ass’n, 716 F.3d 1072, 1078 (8th Cir. 2013) (applying the “very close” standard
to Title VII retaliation); Pye v. Nu Aire, Inc., 641 F.3d 1011, 1022 (8th Cir. 2011) (same); Tyler, 628 F.3d at 986
(same).
177
Lors, 746 F.3d at 866 (quoting Sisk v. Picture People, Inc., 669 F.3d 896, 900 (8th Cir. 2012)).
178
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th Cir. 2002).
179
Tyler, 628 F.3d at 986 (internal citation omitted) (citing Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 645 (8th
Cir. 2009) (a temporal gap of seven months was “not sufficiently contemporaneous” to indicate a causal
connection); Recio v. Creighton Univ., 521 F.3d 934, 941 (8th Cir. 2008) (a six-month gap was too long to give
rise to an inference of causal connection); Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1138 (8th Cir. 2006)
(“We have held that an interval as brief as two months did not show causation for purposes of establishing a
retaliation claim and that a two-week interval was ‘sufficient, but barely so.’”)).
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Ms. Grigsby filed her first EEOC complaint, and well over two months after the complaint was
fully resolved—Mr. Thomas was selected for the Facilitator position. PCSSD argued in its
summary judgment briefing that this timeline “completely dismantles [Ms.] Grigsby’s causal
connection argument.”180 At the summary judgment hearing, however, PCSSD walked this
argument back.181 PCSSD conceded that the time between Ms. Grigsby’s protected activity and
the alleged retaliatory conduct was relatively close.182 But PCSSD maintained that the timeline
was still not close enough for a jury to infer a causal connection without something more.183 The
Court agrees.
When temporal proximity alone will not suffice, the causation requirement can be satisfied
by showing a pattern of escalating adverse actions that occurred very shortly after the protected
activity.184 Ms. Grigsby has not identified any such pattern of adverse actions.185 To the contrary,
Ms. Grigsby acknowledges that shortly after filing and settling her original EEOC complaint,
PCSSD entrusted Ms. Grigsby with the interim Coordinator position. In other words, things
180
Def.’s Br. in Supp. of Mot. for Summ. J. (Doc. 27) at 11. PCSSD further argues that the non-renewal of the
Coordinator positions and the Director position constituted an intervening cause sufficient to break any temporal
causal connection between the protected activity and the alleged retaliatory conduct. June 28, 2021 Hr’g Tr. at 16.
It is true that PCSSD needed to fill a legitimately created vacancy, and it is true that PCSSD had a legitimate
interest in filling the vacancy with the most qualified applicant. While these facts weigh slightly in PCSSD’s favor,
they have little to no bearing on Ms. Grigsby’s candidacy for the open positions. Certainly not enough to constitute
an intervening cause sufficient to break any existing degree of temporal connection.
181
June 28, 2021 Hr’g Tr. at 16.
182
Id.
183
Id.
184
See, e.g., Muor, 716 F.3d at 1078 (citing Bassett v. City of Minn., 211 F.3d 1097, 1105-06 (8th Cir. 2000),
abrogated on other grounds by Torgerson, 643 F.3d 1031).
185
The Amended Complaint alleges that PCSSD retaliated against Ms. Grigsby by subjecting her to unnecessary
work, depriving her of access to company vehicles, and moving her out of her office and into the view of her new
supervisor, Mr. Thomas. Pl.’s Am. Compl. (Doc. 15) ¶¶ 32-33. As far as the Court is aware, this conduct transpired
after the alleged retaliatory failure-to-promote conduct. Not before. Regardless, none of these allegations rise to
the level of adverse employment action. Indeed, actionable retaliation cannot be trivial. Garrison v. Dolgencorp,
LLC, 939 F.3d 937, 943 (8th Cir. 2019). Petty slights and minor annoyances may be upsetting or disappointing,
but they are not actionable. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Ms. Grigsby
advanced no arguments (legal or otherwise) to the contrary.
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improved for Ms. Grigsby between the time she engaged in protected activity and the alleged
retaliatory conduct.
Ms. Grigsby has failed to establish a prima facie claim of retaliation. And as explained in
the several sections above, even if she had, PCSSD has identified a legitimate, nondiscriminatory
reason for its conduct, and Ms. Grigsby has failed to produce evidence that would allow a rational
juror to conclude that PCSSD’s explanation is pretext for discrimination.186 Ms. Grigsby has
therefore failed to demonstrate the existence of any specific facts supported by sufficient probative
evidence that would permit a finding of unlawful retaliation “on more than mere speculation,
conjecture, or fantasy.”187 PCSSD is entitled to judgement as a matter of law on Ms. Grigsby’s
failure-to-promote retaliation claim.
Conclusion
For all of the foregoing reasons, PCSSD’s Motion for Summary Judgment is GRANTED.
Judgement will be entered in PCSSD’s favor.
IT IS SO ORDERED this 14th day of July 2021.
________________________________
LEE P. RUDOFSKY
UNITED STATES DISTRICT COURT
186
See supra pp. 16-20; see also Kempf v. Hennepin Cty., 987 F.3d 1192, 1196 (8th Cir. 2021) (“To succeed, she must
both discredit the County’s explanation for her termination and ‘show the circumstances permit drawing a
reasonable inference that the real reason for [that action] was retaliation.’”) (quoting Gilbert v. Des Moines Area
Cmty. Coll., 495 F.3d 906, 918 (8th Cir. 2007)).
187
Donathan, 861 F.3d at 739 (quoting Mann, 497 F.3d at 825); see also Anderson, 477 U.S. at 255.
28
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