Bennett et al v. Riceland Foods Inc

Filing 24

ORDER denying 7 Motion for Summary Judgment. Signed by Judge James M. Moody on 2/15/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RANDY BENNETT and
RICHARD TURNEY
VS.

PLAINTIFFS
NO. 5:11CV00104-JMM

RICELAND FOODS, INC.

DEFENDANT
ORDER

Pending is Defendant’s motion for summary judgment (docket # 7). Plaintiffs have filed
a response and Defendant has replied. For the reasons stated below, Defendant’s motion for
summary judgment is DENIED.
Facts
Plaintiffs, Randy Bennett and Richard Turney claim that they were retaliated against in
violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C.
§2000e, et. seq.; 42 U.S.C. §1981; and the Arkansas Civil Rights Act (“ACRA”), A.C.A. §16123-101, et. seq. when their positions were eliminated with Riceland Foods, Inc. (“Riceland”).
Riceland argues that it is entitled to summary judgment on Plaintiffs’ claims.
Plaintiff, Randy Bennett was hired by Riceland in July 2004, to work in the clean rice
shipping department. He was hired to do general maintenance and worked on forklifts along
with other mechanical maintenance responsibilities. Bennett claims that over time, his job began
to include working on everything, including other non-rolling-stock equipment. On June 30,
2009, Bennett was advised by the Director of Warehousing, Packaging and Shipping, Marty
Jones, and a Riceland Human Resource Manager, David Hoover, that effective July 31, 2009,
his position was being eliminated and he would be laid off. Bennett was told that the reason for
his job elimination was that the forklift work that he had been doing was going to be turned over

to an outside contractor, Hugg & Hall. He was also advised that the job elimination was to save
money. Bennett claims that after a co-worker, Richard Turney, complained about Crane’s use of
inappropriate language which he witnessed, Marty Jones asked him if he was trying to ruin
Crane’s career. Jones also asked Bennett if he wanted Crane fired.
Turney was hired by Riceland on March 4, 2002. He originally worked in the parboil
department and then moved, at his request, to maintenance in clean rice shipping. Turney claims
that his job required him to work on almost all of the equipment in the sewn, the parboil and the
clean rice shipping department. Turney claims that his problems with Riceland began when
supervisor, Ralph Crane, used racial statements in the workplace. Turney made multiple
complaints regarding Crane. Turney is not aware of any discipline Crane received as a result of
his complaints. Turney was advised of his job elimination by Marty Jones on or about June 30,
2009.
Turney filed several grievances with Riceland. One grievance, filed April 20, 2009,
alleged that Turney’s supervisor, Ralph Crane, had used the “n” word on numerous occasions
and that he found it to be offensive. Bennett was identified as a witness of the alleged
inappropriate language used by Crane. In response to the complaint, Riceland’s Director of
Human Resources, Linda Dobrovich interviewed both Turney and Bennett along with several
others. The investigation of Turney’s complaint occurred, in part, in May 2009.
Plaintiffs admit that Linda Dobrovich, as Human Resources Director for Riceland,
testified that she reviewed Turney’s complaint and investigated the allegations in May 2009.
After her investigation, she recommended that Crane receive diversity training, that he be
counseled concerning the use of inappropriate language in the workplace, and advised that if he

2

used the language again, he would be fired. Plaintiffs deny that these statements are true.
Ms. Dobrovich also testified that in May 2009, the CEO of Riceland sent out a directive
to all of the department managers that there needed to be cost reductions in the various
departments at Riceland. Managers of all divisions were directed, according to Ms. Dobrovich,
to review their use of personnel and to find ways to reduce costs. This was carried out
corporate-wide in all of the various divisions, including the corporate headquarters where Ms.
Dobrovich worked. Ms. Dobrovich testified that there were three people doing maintenance
work who were not assigned to the maintenance department. Turney and Bennett were assigned
to shipping and warehouse and another person, Tony Sayger, was assigned to the packaging
department. All three of these jobs were eliminated in 2009 and all in-house maintenance work
was assigned to the Central Maintenance Department. Plaintiffs admit that Ms. Dobrovich
testified as stated, but again, deny the truth of her testimony.
Riceland claims that upper management, including Dobrovich, reviewed the proposed job
eliminations in clean rice shipping and approved the eliminations. Dobrovich was aware that
Mr. Bennett and Mr. Turney had made complaints about their supervisor at the time that she
reviewed the proposed job eliminations. She testified that Riceland was outsourcing maintenance
of forklifts at all of its other locations. She was advised by David Hoover, HR manager at the
Rice Division, and Scott Lindsey, Rice Division Manager, that it would be cost effective at the
Stuttgart Rice Division to do the same. She personally called the other divisions to determine
whether they were in fact outsourcing their forklift maintenance and those divisions confirmed
that they were doing so. They also confirmed that it was cost effective. Ms. Dobrovich testified
that she felt based on her investigation that this was a good business decision and she approved it

3

from an HR standpoint to both Mr. Lindsey and Mr. Hoover, prior to the job eliminations being
announced. Plaintiffs deny the truth of these statements.
Pursuant to the directive from the CEO of the company, Marty Jones, who was hired
March 31, 2008 as Director of Warehousing, Packaging and Shipping in the Rice Division,
began exploring the possibilities of job eliminations in order to decrease costs. Subcontracting
out some of the maintenance work at the rice division to third parties had been explored in 2008.
After receiving the directive from the CEO, Mr. Jones reviewed bids from outside
contractors, one specifically being Hugg & Hall, to maintain the forklifts in Riceland’s Rice
Division, including clean rice shipping. He estimated that by eliminating maintenance jobs in
clean rice shipping that there would be a savings of approximately $76,000.00 to Riceland.
Consequently, he recommended to his superiors that Mr. Bennett’s and Mr. Turney’s jobs be
eliminated and that the forklift maintenance be outsourced to a third party. It was also his
recommendation that central maintenance absorb the additional maintenance responsibilities that
were being performed by Mr. Bennett and Mr. Turney. Mr. Jones testified that Ralph Crane had
nothing to do with the job elimination decision. Mr. Jones testified that he took into
consideration fiscal considerations and research into alternatives that would be more cost
effective. Mr. Jones also testified that cost considerations were the only factor in the decision to
eliminate the two positions. Plaintiffs admit that Jones was hired in 2008 as the WPS Director
and that he testified to the matters outlined above, but Plaintiffs deny the truth of his assertions.
Plaintiffs’ additional allegations:
Plaintiffs affirmatively state, in part, that during most of their employment at Riceland
they were supervised by Rick Chance. After Jones became the WPS Director in March 2008,

4

Bennett and Turney were reassigned to work for Ralph Crane. Bennett and Turney objected to
Crane’s use of abusive and racially derogatory language. Plaintiffs claim that Crane worked
under Rick Chance for several years and during this time Chance had problems with Crane using
offensive language. Chance counseled Crane about his use of derogatory language and racial
slurs in the workplace as early as 1997.
Turney filed a formal grievance against Crane on April 3, 2009. In this complaint,
Turney complained that Crane used racially charged statements, including that Crane had said in
front of several people that a coworker “smelled like a nigger.” Crane responded to the
grievance by stating that he had “no recollection of having made these statements.” On April 8,
2009, Turney appealed the grievance to the WPS Director, Martin Jones. Turney also filed
another grievance on April 8, 2009, wherein he reported an incident in which Crane had become
upset because a white female employee had a reputation for dating African American men;
Turney accused Crane of saying “ I don’t know why these little white whores want to be fucking
these goddamn niggers.”
Following Jones investigation of Turney’s initial complaint, Jones concluded that the
offense had not been committed and the grievance had no merit. Turney appealed Jones
decision to Scott Lindsey. Lindsey determined that the grievance had no merit. Turney claims
that because he was unsatisfied with the response to his first grievance and having received no
response from his second grievance, he initiated the grievance procedure for a third time on
April 20, 2009. On April 21, 2009, Crane wrote that he had responded to the second grievance
on April 9, by denying that the statement was made. On the same day, Jim Trice told Turney
that it appeared that his second grievance had been lost. Bennett went outside the WPS

5

department and filed his own complaint directly to the HR Director, Linda Dobrovich, wherein
he echoed Turney’s complaints about Crane.
Plaintiffs claim that Martin Jones confided in Rick Chance that he was upset with
Bennett and Turney over the racial complaints that they were making against Crane. Jones
allegedly told Chance that he was frustrated that he was unable to get Bennett and Turney to
“play ball” and drop the complaints.
On May 6, 2009, Jones met with Bennett and referencing Bennett’s and Turney’s recent
complaints against Crane, suggested that Bennett might be happier working in another location.
On May 8, 2009, Turney wrote Dobrovich complaining about how his grievances were being
handled. Plaintiffs claim that Dobrovich investigated their complaints between May 15 and 18,
2009. Plaintiffs claim that everyone interviewed, with the exception of Crane, supported their
allegations about Crane’s behavior.
In early June 2009, after Dobrovich concluded her investigation, Jones met again with
Bennett. Jones described the meeting as confrontational. Jones discussed his perception that
Bennett was unhappy with his job and reiterated that there were other jobs available for Bennett
elsewhere.
On June 30, 2009, Bennett and Turney were informed that “the maintenance of all
‘rolling stock’ would be out-sourced to a vendor, that all other regular maintenance would be
shifted to Central Maintenance,” and that these changes would result in Bennett and Turney
being laid off. Plaintiffs claim that Jones told Bennett and Turney that both he and the Human
Resource Department would make sure that they were informed of any potential vacancies
within the company.

Bennett was told about a position at a plant in Holly Grove, Arkansas.

6

When he checked on the position, he was told that they were not certain that the position would
be filled. Bennett also found out about a maintenance position in Stuttgart, but when he inquired
about he position, the notice was rescinded. Turney checked to see if any positions were
available, but found none that were viable for him. Bennett and Turney were never informed of
any other positions available in the company within a reasonable driving distance of their homes.
Plaintiffs claim that they were the only skilled maintenance workers who had
their jobs eliminated at this time. Of the maintenance team members supervised by Crane in
mid-2009, several had less seniority and less experience than Plaintiffs. Some workers had only
been on the job for a few weeks or months and were still in training at the time Plaintiffs’
positions were eliminated. After Plaintiffs were terminated, another maintenance worker,
Clayton Sharp, was hired. After Plaintiffs separated from Riceland, another former member of
the team, testified that about six weeks after Bennett and Turney lost their jobs, Crane told him
that “anyone who witnessed against him would lose their job like the two that already had.”
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874
(8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial
courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining
whether there is a need for trial -- whether, in other words, there
are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in
favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

7

The Eighth Circuit Court of Appeals has cautioned that summary judgment should be
invoked carefully so that no person will be improperly deprived of a trial of disputed factual
issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied,
444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a
summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only
to demonstrate, i.e., ‘[to] point out to the District Court,’ that the
record does not disclose a genuine dispute on a material fact. It is
enough for the movant to bring up the fact that the record does not
contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is
discharged, and, if the record in fact bears out the claim that no
genuine dispute exists on any material fact, it is then the
respondent’s burden to set forth affirmative evidence, specific
facts, showing that there is a genuine dispute on that issue. If the
respondent fails to carry that burden, summary judgment should be
granted.
Id. at 1339. (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th
Cir. 1988) (citations omitted)(brackets in original)). Only disputes over facts that may affect the
outcome of the suit under governing law will properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 248.
Discussion
Plaintiffs’ claims for retaliation under 42 U.S.C. § 1981, Title VII, and the Arkansas
Civil Rights Act are governed by the same standard. See, McCullough v. Univ. of Ark. For Med.
Scis., 559 F.3d 855, 864 (8th Cir. 2009)(noting ACRA contains nearly identical prohibition
against retaliation as Title VII); See also, Gacek v. Owens & Minor Distribution, Inc. , ____ F.
3d ___, 2012 WL 246524 (8th Cir. 2012)(Section 1981 claims are analyzed under the same
framework as Title VII claims). Under that framework, if the plaintiff can establish a prima
8

facie retaliation case, the defendant must provide a legitimate, nondiscriminatory reason for its
decision. If the defendant does so, the burden then shifts back to the plaintiff to show that the
proffered reason was merely a pretext for discrimination. Id.
A plaintiff may establish a prima facie case of retaliation by showing that (1) the plaintiff
engaged in a statutorily protected activity, (2) an adverse employment action was taken against
him, and (3) a causal connection exists between the two events. Gilooly v. Missouri Dept. of
Health and Senior Services, 421 F.3d 734, 739 (8th Cir. 2005). Defendant concedes for
purposes of its motion for summary judgment that Plaintiffs’ job elimination is an adverse
employment action. Further, Defendant admits that Plaintiffs engaged in a statutorily protected
activity when they complained about racially derogatory language. Defendant contends that
Plaintiffs’ claim fails because they offer no evidence to show a causal connection between their
job elimination and the protected activity in which they engaged. Further, Defendant claims that
they have offered a legitimate, non-discriminatory reason for the action taken; that being a
directive from top management to cut costs, and Plaintiffs can present no evidence of pretext.
The Court disagrees.
The Court finds that the Plaintiffs have presented sufficient evidence of a causal link
between their complaints of Crane’s use of racially derogatory language and their job
elimination to preclude summary judgment. Further, the Court finds Plaintiffs’ evidence
sufficient to create a genuine issue of material fact on the issue of pretext. Plaintiffs’ complaints
in April 2009 and the investigation of those complaints through May 2009, establishes only a
matter of weeks between the protected activity and the date on which the Plaintiffs were advised
that their jobs were being eliminated. Additionally, Plaintiffs present evidence that Jones, one of

9

the decision makers, was upset and frustrated with Plaintiffs’ complaints. Jones met with
Bennett on May 6, 2009, attempted to get him to withdraw his complaint, asked if he was trying
to ruin Crane’s career and suggested that Bennett might move to another position. Bennett again
met with Jones on May 25, 2009 in a meeting which Jones described as confrontational. Further,
Plaintiffs present evidence that they were the only skilled maintenance employees who had their
jobs eliminated at this time when the positions of other employees with less seniority and
experience were not eliminated. Plaintiffs also offer the testimony of Tony Sayger who states
that about six weeks after the Plaintiffs were separated from Riceland, Crane stated “that anyone
who witnessed against him would lose their job like the two that already had.”
Considering the evidence in the light most favorable to the Plaintiffs, the Court finds that
genuine issues of material fact preclude the entry of summary judgment. Accordingly,
Defendant’s motion for summary judgment is DENIED.
IT IS SO ORDERED this 15th day of February, 2012.

______________________________
James M. Moody
United States District Judge

10