Gibson v. Graphic Packaging Int'l Inc

Filing 144

ORDER 94 97 granting Defendants' motions for summary judgment on plaintiff Tolton Gibson's hostile work environment and retaliation claims, and denying the motions on Gibson's race discrimination claim. Signed by Chief Judge Brian S. Miller on 8/10/2017. (kdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
TOLTON GIBSON
v.

PLAINTIFF
CASE NO. 5:15-CV-00386 BSM

GRAPHIC PACKAGING
INTERNATIONAL, INC., et al.

DEFENDANTS
ORDER

Defendants’ motions for summary judgment [Doc. No. 94, 97] are granted on plaintiff
Tolton Gibson’s hostile work environment and retaliation claims, and denied on Gibson’s
race discrimination claim.
I. BACKGROUND
Gibson is a black man who began working for Mid-America Packaging in 2006. Pl.’s
Resp. Opp. Mondi’s Facts (“Pl.’s Mondi Facts”) ¶¶ 1-2, Doc. No. 109. Mid-America’s
bagging operation was purchased by defendant Graphic Packaging in 2010. Id. ¶ 3. Gibson
was terminated in 2012, and defendant Mondi Bags purchased the facility in 2014. See id.
¶¶ 4, 6.
Gibson brought this suit against Graphic Packaging and Mondi Bags alleging his
termination was due to racial discrimination and retaliation. He alleges he worked primarily
on one of three bagging machines and that each machine was staffed by three employees: (1)
machine operator, (2) helper/trainee, and (3) quality inspector. Gibson Dep. 46:7–46:17,

Doc. No. 96; Pl.’s Resp. Opp. Graphic Packaging’s Facts (“Pl.’s Graphic Facts”) ¶ 181, Doc.
No. 106.
The three-person teams worked in either eight-hour or twelve-hour shifts. Pl.’s
Graphic Facts ¶ 19. A labor agreement provided that employees working more than eight
hours in a day received additional overtime compensation. Therefore, staff scheduled for a
twelve-hour shift were known to be working on “overtime machines.” Gibson Dep. 76:1976:21; Pl.’s Graphic Facts ¶ 7. A staff member scheduled to work a certain shift does not
mean he or she actually worked those hours. See, e.g., Gibson Dep. 45:1–45:5 (machines
selected for overtime use varied). For example, Gibson was once asked to move from an
eight-hour shift to a twelve-hour shift to cover for another person who was ill. See, e.g., id.
76:4–77:11.
As far as the racial makeup of these shifts, the eight and twelve hour shifts varied.
The eight-hour machines were routinely operated by black employees, while the twelve-hour
machines were operated by black and white employees. Id. 119:9–120:11. There were at
least two black helper/trainees who worked on the overtime machines: Luther Dean and
Alvin Armour. Id. 47:12–47:18.
A.

Staff Schedules

Machine operators were scheduled to shifts based on seniority. Nason Decl. ¶ 9, Doc.

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Gibson has apparently misnumbered or omitted statements from his response to Graphic Packaging’s
undisputed facts. For example, paragraph 18 in his response is actually paragraph 16 in Graphic Packaging’s facts.
Compare Doc. No. 106 with Doc. No. 99. Whenever possible, reference is made to Gibson’s responses.

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No. 97-5; Pl.’s Facts ¶ 28; Am. Ans. ¶ 29, Doc. No. 80. Gibson refers to this seniority
system as “lines of progression” as if the eight-hour shifts and the twelve-hour shifts had
separate seniority rankings. There is no evidence, however, to support that conclusion, as
Gibson cites to an exhibit with only one list of employees showing only one line of
progression for the facility. See, e.g., Doc. No. 105-2 at 14–15. Indeed, the gravamen of
Gibson’s complaint is that his seniority trumped that of other workers for all shifts. And,
although Gibson’s theory that the facility had separate lines or progression has been
considered, his framing of the record cannot be accepted without referencing admissible
evidence to support it. See Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d
1103, 1109–10 (3d Cir. 1985) (“Legal memoranda and oral argument are not evidence and
cannot by themselves create a factual dispute sufficient to defeat a summary judgment
motion.”), cert denied, 475 U.S. 1013 (1986).
Despite Gibson’s position that there were separate lines of progression, the undisputed
facts in the record show that there were three types of seniority: (1) plant-wide seniority
based on time of hire at the facility; (2) departmental seniority based on the date of hire
within the department, and (3) job assignment based on time spent in a particular job
classification. Am. Compl. ¶ 30, Doc. No. 77; Am. Ans. ¶ 30.
Ken Nason, someone Gibson regarded as a supervisor, scheduled the hourly
employees. At the time of scheduling, Nason would not always know which machines would
run eight hours or twelve hours. Although these schedules were set and posted for staff to

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view, they were not set in stone. For example, an additional order could require employees
who were initially scheduled on an eight hour machine to work a twelve hour shift. Nason
Decl. ¶¶ 2–7; Pl.’s Graphic Facts ¶¶ 20–21.
Gibson denies this background by explaining that “If [Nason] were not doing the
scheduling, then it would have been Greg Yegohian since Ken Nason admits that he went to
Yeghoian when he made adjustments to the schedules[.]” Pl.’s Graphic’s Facts ¶ 20. As
Gibson routinely does in his response to defendants’ motions for summary judgment, he
argues that defendants’ statements of undisputed fact are disputed but provides no proof
disputing those statements. For instance, Gibson denies defendants’ statement that Nason
did not know which machines would run eight or twelve hours by stating “Nason was able
to adjust the schedules[,]” while citing to Gibson’s deposition. That deposition, however,
only establishes that (a) Gibson received a work schedule and informed Nason that Gibson
should have received overtime and (b) that the schedules came out on Thursdays. Similarly,
Gibson denied that employees could swap hours after they were scheduled by providing
explanations for why employees might do so. Pl.’s Graphic Facts ¶ 26. Gibson’s denials
without referencing the record do not transform undisputed facts into disputed ones.
In 2009, Gibson began complaining that he was not receiving overtime hours. He
visited with Nason and argued that his seniority qualified him to receive overtime hours
before others. Gibson Dep. 28:7–28:10. Gibson also informed Alvin Armour, a union
representative at the facility, who told Gibson to go through the proper channels. Id.

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23:5–24:8. In addition to Nason and Armour, Gibson complained about not receiving
overtime to Lisa Hankins, the human resources official, and Bill Eubanks, the union’s
grievance chairperson. Id. 23:5–24:8; 34:11–34:25. Gibson noticed that he would usually
be scheduled to work overtime in the week after he lodged a complaint. Id. 35:1–35:4.
In 2009, Gibson noticed that the facility “started getting Caucasians in the
department” that affected his overtime hours. Id. 31:21–31:23. For example, the facility
hired Craig McGath, a white man, who was placed on twelve-hour shifts while Gibson
received eight-hour shifts. See Pl.’s Graphic Facts ¶ 27. Similarly, Brandon Braswell, a
white man, was hired in 2012, and Bradwell received twelve-hour shifts before Gibson.
Gibson does not know, however, whether employees scheduled for twelve-hour machines
actually worked those twelve hours and received overtime, but he assumed they earned those
hours and received the overtime pay. Gibson Dep. 32:8–32:24. For example, despite
Gibson’s observations that Braswell received overtime shifts before Gibson, pay records
show that Gibson actually worked more overtime than Braswell in 2012. See Doc. No. 97-9
at 3–4 (showing that, as of December 2, 2012, Braswell had worked 89.65 overtime hours
and Gibson had worked 339.86 overtime hours).
B.

Specific Incidents with Other Employees and Termination

In addition to his complaints about not receiving overtime, Gibson complained of a
“hostile work environment.” In February 2012, Gibson had an altercation with a co-worker,
Jesse Stinnett. Stinnett, who was working as a lead-person, instructed Gibson to bale waste

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– an instruction Gibson refused because he believed the instruction was improper. Stinnett
threatened to terminate Gibson. The dispute became heated and John Compton, a black man,
had to pull Stinnett away. Gibson Dep. 123:10–123:14.
Gibson reported this incident to Hankins as a “hostile working environment” because
Stinnett overreacted. Id. 38:8–38:10; 123:17–123:24. Gibson described how Stinnett
approached Gibson in an “argumentative fashion,” and Gibson “informed” Hankins that if
he had approached Stinnett in that manner, Gibson would have been terminated because
Gibson is black and Stinnett is white. Id. 40:19–40:23. Gibson believes that Stinnett’s
actions were racially motivated due to Stinnett’s “mannerism[s].” Id. 41:25–43:17. When
asked about this conclusion, Gibson stated “I just feel that his whole attitude that evening
was geared towards me, specifically, because he took it upon himself to confront me about
something that I had no control over. His – his actions towards [sic] me led me to believe
that had I been someone white, never would have had any question – any doubt that that
would have happened to them.” Id. 42:22–43:4. Notwithstanding Gibson’s belief, this was
the only time Stinnett and Gibson had an altercation, and Gibson is not aware of any other
incidents involving Stinnett approaching black employees and reacting in a similar manner.
Id. 44:13–44:17; Pl.’s Mondi Facts ¶ 51.
Gibson also had run-ins with Greg Yegohian, a member of the management team. See
Yegohian Decl. ¶ 2, Doc. No. 97-8. Yegohian saw Gibson away from his work station and
approached him. Gibson advised that he was on his way to the bathroom because he had “no

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control . . . [of his] bowels” and “needed to go to the bathroom.” Gibson Dep. 53:12–53:23.
Another supervisor approached Gibson to ask the same question and told Gibson that
Yegohian had asked him to look into it. Gibson then asked Horace Wright, a “union person,”
what the protocol was for using the restroom, and Wright said that if Gibson “need[ed] to go
to the restroom, go to the restroom.” Id. 54:20–54:24.
A second incident with Yegohian occurred when, pursuant to company policy, Gibson
informed Yegohian of a quality control issue on one of the machines. Id. 51:3–52:5.
Yegohian informed Gibson that “if [Gibson] continued to be a disruption,” Gibson would
“find [himself] terminated.” Id. 67:15–67:18; see also id. 52:8–52:14. Gibson does not
know what “disruption” Yegohian referenced; however, Gibson believes the disruption refers
to his prior complaints for not receiving overtime hours. Gibson formed this belief because
Yegohian had to have known about the past complaints due to the proximity of Yegohian and
Hankins’s offices. Id. 66:21–68:1. Gibson notified a company hotline that Yegohian’s
threat of termination created a “hostile work environment.” Id. 57:12–58:3; 59:9–59:14.
Another incident involved Kenrick Hence, a lead-person, who told Gibson and his
team to move to the sew line because the small bag line could not operate due to a lack of
materials. Id. 63:8–63:9; 64:3–64:11. After moving to the sew line, Gibson informed Hence
that his gout had flared up and that he needed to go home. Gibson was permitted to leave.
After Gibson left, his team was sent back to the small bag line. Id. 63:14–63:22. Gibson
believes this was deliberate because he is black. He states that once he went home, the

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remainder of his team, which was all white, was permitted to go back to the small bags line.
Id. 66:15–66:18. Gibson complained to Yegohian that had the team been permitted to stay
on the inactive small bags line, Gibson would not have been “shortchanged” in pay caused
by Gibson leaving work. Id. 63:19. As Gibson described it, employees who were permitted
to return to the small bag line were compensated for their time. See id. 65:23–66:2.
Finally, Gibson had another incident with Hence when another employee was ill and
the facility needed to place someone else on a twelve-hour shift. Pl.’s Mondi Facts ¶ 55;
Gibson Dep. 77:1–77:11. Hence directed Gibson to fill in, but, before filling in, Gibson went
to the restroom because of his diabetic condition.2 Id. 78:13-78:22. After Gibson returned
from the restroom, Hence instructed Gibson to leave and threatened to call the sheriff if
Gibson refused. Id. 79:14–80:1. Gibson apologized to Hence, the two shook hands, and
Gibson thought the issue was resolved. Id. 80:22–80:25.
The next day, Gibson met with Dwayne Handle, Yegohian and Hankins. Gibson
submitted unauthenticated notes from that meeting, but he represents that those notes are
Hankins’s notes from that meeting. See Doc. No. 105-1 at 1 (identifying Attachment R as
“Hankins notes of the Suspension and Termination”). In that meeting, the group discussed
Gibson’s interaction with Hence. Gibson advised that no one raised his voice and the Hence
incident was not confrontational. Doc. No. 105-5 at 2. Yegohian reminded Gibson that he

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Gibson was later terminated and his union submitted a grievance to arbitration. According to the arbitration
award, Hence instructed Gibson that he could use the restroom but he had to “tell his machine operator first.” Hence
also testified that Gibson said he would not go to the new machine several times and put his finger in Hence’s face while
saying “ain’t nobody scared of you.” Other employees confirmed this account. Arbitration Award 2–3, Doc. No. 97-12.

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is not to disobey a directive from a supervisor, but he is expected to follow it so long as the
directive is not unsafe, immoral, or illegal. Gibson could always file a grievance afterward
if he felt the directive was not proper. Id. Yegohian advised Gibson that Gibson was
suspended pending an investigation. Id.
On December 10, 2012, Gibson was terminated for insubordination. Gibson Dep.
85:13–85:15. He provided notes from his termination meeting on December 10, 2012, which
indicated Gibson, Dwayne Randle, Nason, Louis Rothchild, Hankins, and Yegohian were
present. Doc. No. 105-5 at 3. An incident report dated December 10, 2012, states that
“[Gibson] refused to go to the machine when asked, became argumentative, and show[ed]
threatening gestures by pointing his finger in the face of [Hence.] . . . [Gibson] has had other
issues in the past with being disrespectful to authority[;] this is not the first time something
like this has occurred.” Doc. No. 105-4 at 24. The report is signed by a supervisor, union
representative, and the plant manager, with the line for Gibson marked“refused to sign.” Id.;
see also Doc. No. 105-5 at 3 (meeting notes stating Gibson refused to sign). After
termination, Gibson filed a grievance with the union. Gibson Dep. 100:19–109:25.
Gibson’s efforts to challenge his termination failed. The union advanced Gibson’s
grievance to arbitration and challenged termination on the grounds that “[Gibson] was not
aware that not following the instructions of a Company Lead were grounds for suspension
or discharge.” Arbitrator’s Award 4, Doc. No. 97-12. The arbitrator found the facility had
authority to immediately discharge Gibson and that there was just cause for his termination.

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Id. at 7. Gibson was denied unemployment benefits because of the insubordination finding,
and he does not recall whether he mentioned race or other reasons for his termination when
he challenged the unemployment office’s determination. See Gibson Dep. 112:7–113:3.
C.

Allegations

Gibson sued Graphic Packaging and Mondi Bags for discrimination and retaliation
in violation of 42 U.S.C. § 1981. He alleges he was victim of disparate treatment
discrimination based on race when the facility failed to schedule him for overtime; that the
incidents between other employees created a hostile work environment; and that his
subsequent suspension and termination was in retaliation for Gibson’s complaints about
overtime and hostile work environment. He believes both defendants are liable for injuries,
as “[b]oth companies had an interest in eliminating [Gibson] and acted in concert with one
another to do so.” Doc. No. 107 at 3.
II.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Once the movant
demonstrates there is no genuine dispute of material fact, the non-moving party must produce
admissible evidence demonstrating a genuine factual dispute that must be resolved at trial.
Holden v. Hirner, 663 F.3d 336, 340 (8th Cir. 2011). Evidence is not weighed at the
summary judgment stage, Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir. 2008), and all

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reasonable inferences must be drawn in a light most favorable to the non-moving party,
Holland v. Sam’s Club, 487 F.3d 641, 643 (8th Cir. 2007).
III.

DISCUSSION

Defendants’ motions for summary judgment are granted on Gibson’s hostile work
environment and retaliation claims but denied in all other respects.
A.

Response to Summary Judgment

As an initial matter, Graphic Packaging raised valid concerns with Gibson’s response
to its motion for summary judgment. Graphic Packaging moved to strike portions of
Gibson’s responses because the argument was supported with “manufactured” facts, pointed
to record evidence that did not stand for the cited proposition, or did not properly respond
under the Federal and Local Rules. See, e.g., Doc. No. 120 at 7. Gibson also levied
accusations of discovery abuses. See, e.g., Doc. No. 107 at 13 n.2 (“It is inconceivable that
a [c]ompany would consistently post false company documents unless it is preparing for
litigation.”). Graphic Packaging’s motion to strike was denied [Doc. No. 132], but not
because its argument was without merit.
Gibson’s responses were indeed inadequate. The problem is that these inadequate
responses were also inaccurate. For example, Gibson cites to page twenty six of his own
deposition in support of why some employees scheduled for an eight-hour shift might end
up working a twelve-hour shift, but page twenty six contains no reference to shifts; rather,
the page contains testimony about whether Gibson filed written grievances. Compare Pl.’s

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Graphic’s Facts ¶ 25 with Gibson Dep. 26. Gibson also raises the cursory allegation that
Graphic Packaging (or someone else) fabricated documents, apparently because it anticipated
litigation three-plus years after the events described herein, but Gibson provides no
evidentiary basis in support. Finally, Gibson theorizes about events without citing to any
evidence to support it. For example, Gibson argues that “Yeghoian [sic] used Kendric
Hence to execute a plan not even two weeks later . . . that would result in Gibson’s
suspension and termination,” yet there is no evidence of any plan or any evidence to even
suggest such an inference. See Doc. No. 107 at 27. Indeed, the citation used to support that
argument is an “id” cite to Nance’s declaration, with a pagination marker not to a page or
paragraph of the declaration, but to an Eighth Circuit case suggesting inferences are
appropriate in summary judgment review.
Finally, Gibson also submitted his own statement of facts, apparently pursuant to
Local Rule 56.1(b), which requires him to submit a “separate, short and concise statement
of material facts” (emphasis added) where there is a “genuine dispute” to be tried. There is
nothing “short and concise” about Gibson’s 171 submitted facts, especially considering many
of his submitted facts are not “material” to his claims. Among these facts are legal
conclusions, such as stating Mondi Bags, Graphic Packaging and Mid-America Packaging
“are all successor corporations.” See, e.g., Pl.’s Facts ¶ 1, Doc. No. 112. There are also facts
that Gibson admitted were already undisputed, such as Gibson contacting an Alertline to
report a hostile work environment. Compare Pl.’s Facts ¶ 124 with Pl.’s Mondi Facts ¶ 53.

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He also cites to portions of his own testimony and to other record materials, but
mischaracterizes the information and adds his own commentary as if the fact is true. For
example, he cites to his testimony about another supervisor following up on an issue already
addressed by Yegohian as Yegohian directing a known “hot head” who was “fired shortly
after he was hired [to] stand watch” outside of a bathroom. Pl.’s Facts ¶ 116. Gibson has
not pointed to any part of the record identifying the supervisor as a “hot head” or that the
supervisor was “fired” shortly after the incident.
A plaintiff resisting summary judgment “has an affirmative burden to designate
specific facts creating a triable controversy.” Crossley v. Georgia-Pacific Corp., 355 F.3d
1112, 1113 (8th Cir. 2004) (quotation omitted). Gibson must support his arguments with
factual statements before inferences can be drawn, especially if Gibson expects inferences
stretching obscure facts to suggest malicious motives such as hatching a plan to target Gibson
for termination to mask racial discrimination. Gibson must pinpoint portions of the record
concisely and accurately. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(“Judges are not like pigs, hunting for truffles buried in briefs.”). “[A] district court is not
obligated to wade through and search the entire record for some specific facts which might
support the nonmoving party’s claim.” Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085
(8th Cir. 1999) (quotation omitted). Gibson’s failure to follow the rules resulted in
substantial time spent checking the accuracy of each factual and legal representation.
Although Gibson received as much leeway as possible as the nonmovant, his arguments were

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certainly hindered by his inability to support many of his assertions with evidence to
demonstrate a material fact for trial.
B.

Discussion of Claims

All of Gibson’s claims fall under section 1981, which provides, in pertinent part, that
“all persons within the jurisdiction of the United States shall have the same right . . . to make
and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981. The statute
is not a general anti-discrimination statute, but rather one requiring equal treatment when tied
to some contractual relationship. Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851,
855 (8th Cir. 2011). Thus, the statute “outlaws discrimination with respect to the enjoyment
of benefits, privileges, terms, and conditions of a contractual relationship, such as
employment, and is applicable to a plaintiff complaining of discrimination during . . .
employment . . . .” Patterson v. Cty. of Oneida, 375 F.3d 206, 224 (2d Cir. 2004). Even in
states where employees are at-will employees, as is the case here, section 1981 prohibits
discrimination in employment. See Turner v. Ark. Ins. Dep’t, 297 F.3d 751, 759 (8th Cir.
2002).
Gibson has not presented direct evidence of discrimination, so the familiar burdenshifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–06 (1973),
applies. Jin Ku Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997) (section 1981
claims use same framework as Title VII); Sayger v. Riceland Foods, Inc., 735 F.3d 1025,
1030–31 (8th Cir. 2013) (retaliation claims); Jones v. Forrest City Grocery, Inc., Case No.

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4:06-CV-00944 BSM, 2008 U.S. Dist. LEXIS 123577, at *9 (E.D. Ark. June 26, 2008).
Under this framework, Gibson must first establish a prima facie case; if a prima facie case
is established, the burden shifts to the defendant to show a legitimate, nondiscriminatory
reason for the challenged action; and if the defendant proffers a reason, the burden shifts
back to Gibson to establish that the proffered reason is mere pretext for discriminatory
animus. Jin Ku Kim, 123 F.3d at 1056; Harris v. Hays, 452 F.3d 714, 717 (8th Cir. 2006).
1. Disparate Treatment
Defendants’ motions for summary judgment on Gibson’s disparate treatment claim
are denied because there is a genuine issue of material fact.
Gibson’s complaint is that he was denied overtime shifts through the facility’s
disparate treatment against him because he is black. A prima facie case for disparate
treatment requires a showing that (1) Gibson is a member of a protected class; (2) that he was
meeting his employer’s legitimate job expectations; (3) that he suffered an adverse
employment action; and (4) that similarly situated employees outside the protected class were
treated differently. Smith v. URS Corp., 803 F.3d 964, 969 (8th Cir. 2015).
Although Gibson’s case is certainly lacking, he established a prima facie case. Aside
from showing he is a member of a protected class as a black man, Gibson must rely on
inferences to satisfy the remaining factors. An inference exists, for example, that he suffered
an adverse employment action when he did not receive an opportunity to work overtime
hours to earn additional income. See, e.g., Little v. NBC, 210 F. Supp. 2d 330, 379 (S.D.N.Y.

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2002) (question of fact whether an actual loss in income and erratic work schedule is adverse
employment action). An inference also exists that he met his employer’s job expectations
because he was often scheduled for overtime shifts after complaining about not receiving
them. See, e.g., Gibson Dep. 35:1–35:4. Finally, McGath and Braswell, two white men who
presumably would not qualify for overtime hours before Gibson, were scheduled for
overtime instead, demonstrating the facility’s willingness to treat white workers differently.
This inference is reasonable considering Gibson’s observations that only black employees
routinely operated the eight-hour machines. See id. 119:9–120:11.
Assuming Gibson has a prima facie case, there is a dispute of fact on whether there
are nondiscriminatory reasons for the scheduling. As best one can tell from the record, the
parties agree that the seniority policy dictated scheduling workers on machines; however,
neither defendant explained why Gibson’s seniority did not earn him overtime shifts when
McGath’s and Braswell’s lower seniority earned them scheduled overtime. Again, Gibson
benefits from great inferences here, but on this record, summary judgment is not appropriate.
Accordingly, defendants’ motions for summary judgment on the disparate treatment
claims are denied.
2. Hostile Work Environment
The motion for summary judgment on Gibson’s hostile work environment claim is
granted.
A hostile work environment occurs when “the workplace is permeated with

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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) (citations omitted); Gordon v. Shafer
Contracting Co., Inc., 469 F.3d 1191, 1194 (8th Cir. 2006). Gibson’s prima facie case
requires proof that he (1) is a member of a protected group; (2) he was subjected to
unwelcome harassment; (3) there is a causal nexus between the harassment and his protected
group; and (4) the harassment affected a term, condition, or privilege of employment. Beard
v. Flying J, Inc., 266 F.3d 792, 797 (8th Cir. 2001).
Gibson’s claim fails because he cannot make out a prima facie case. Gibson’s
amended complaint focuses on his incident with Stinnett as creating a hostile work
environment, but his deposition (and defendants’ argument) suggests he also believes
Yegohian threatening him with his job did as well. See Am. Compl. ¶¶ 42–48; Gibson Dep.
38:8–38:10; 57:12–58:3; 59:9–59:14; 123:17–123:24. After exhaustive review of the record,
it is clear that these incidents did not even arguably involve Gibson’s race. See Okoli v. City
of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (conduct amounting to hostile work environment
must be “based on the plaintiff’s . . . race”). Gibson’s belief that others made racial
comments to him – but his inability to remember any, Gibson Dep. 102:14–102:23 – and his
belief that someone’s mannerisms or actions, id. 42:3; 103:1, suggest racial hostility is far
short of the instances of a hostile work environment actionable under employment
discrimination statutes. See e.g., Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130

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F.3d 349, 352–54 (8th Cir. 1997) (constructive discharge occurred after “a steady barrage of
racial name-calling at the [defendant’s] facility”); Ways v. City of Lincoln, 871 F.2d 750,
754–55 (8th Cir. 1989) (over fifty examples of racial harassment).
Moreover, these incidents are separate and distinct. The Stinnett and Yegohian
incidents were nearly nine months apart and even if racial undertones are implied, represent
only three examples of racial hostility. See Bainbridge v. Loffredo Gardens, Inc., 378 F.3d
756, 759 (8th Cir. 2004) (“A hostile work environment exists when the workplace is
dominated by racial slurs, but not when the offensive conduct consists of offhand comments
and isolated incidents.”). While Gibson’s characterizations of the interactions as “hostile”
is understandable, short tempers or intense arguments on their own do not create a racially
hostile work environment. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80–82
(1998) (cautioning Title VII is not a “general civility code” to regulate workplace dynamics).
Rather, “[m]ore than a few isolated incidents of harassment must have occurred.” Johnson
v. Bunny Brad Co., 646 F.2d 1250, 1257 (8th Cir. 1981); see also Burkett v. Glickman, 327
F.3d 658, 662 (8th Cir. 2003) (“offhand comments and isolated incidents of offensive
conduct (unless extremely serious) do not constitute a hostile work environment”).
Finally, even if Gibson could overcome these deficiencies, the events are not
sufficiently serious and pervasive. A hostile work environment considers factors such as
“whether the discriminatory conduct was frequent and severe; whether it was physically
threatening or humiliating, as opposed to merely an offensive utterance; and whether it

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unreasonably interfered with the employee’s work performance.” Nitsch v. CEO of Osage
Valley Elec. Coop., 446 F.3d 841, 846 (8th Cir. 2006). Assuming Gibson’s interaction with
Stinnett was “severe” because Compton had to pull Stinnett away to keep “Stinnett from
attacking [Gibson,]” Gibson Dep. 39:10, there is no evidence suggesting this type of
interaction was frequent at the facility. Gibson points to only three incidents during the years
he worked at Graphic Packaging that support his hostile work environment claim, and two
of those incidents involved no physical aggression and were with a different person.
Moreover, there is no evidence that Gibson’s performance at work was affected, as the stress
and health issues he describes stemmed from his termination and not the incidents
comprising the hostile work environment. See, e.g., Gibson Dep. 14:15–14:23; 94:12–94:20;
98:7–98:11.
Accordingly, Gibson’s hostile work environment claim is dismissed.
3. Retaliation
The motion for summary judgment on Gibson’s retaliation claim is granted because
Gibson’s termination was not caused by complaints of protected behavior.
Gibson alleges retaliation when (1) he was suspended pending an investigation; (2)
when he was terminated; and (3) when the facility provided misleading testimony when
combating Gibson’s claim for unemployment benefits. Am. Compl. ¶¶ 80–110. A retaliation
claim under section 1981 requires showing (1) Gibson engaged in statutorily protected
activity, (2) suffered an adverse employment action, and (3) there was a causal connection

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between the two. Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1030–31 (8th Cir. 2013).
Gibson’s claim fails because he cannot establish a prima facie case for retaliation.
First, there is no protected activity because Gibson’s complaints about overtime and a hostile
work environment were not focused on race discrimination as prohibited by section 1981,
but rather the facility not following an overtime policy and supervisors threatening
termination. See Moschetti v. Chicago, Cent. & Pac. R.R., 119 F.3d 707, 709 (8th Cir. 1997)
(retaliation occurs when employee opposes practices prohibited by the statute).
Second, there is a lack of causation and pretext. Gibson’s theory is that the
culmination of various events over a three year period caused his sudden suspension and
termination. Causation, however, requires a showing that the employer’s actions were the
“but-for cause of” his suspension or termination – that is, “that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions of the [facility].”
Wright v. St. Vincent Health Sys., 730 F.3d 732, 737–38 (8th Cir. 2013) (quotation omitted).
Here, Gibson was suspended and terminated as a result of insubordination, which was a
violation of his employer’s rules, which Gibson has already unsuccessfully challenged
(albeit, on grounds unrelated to race). See, e.g., Walker v. Norris Cylinder Co., 2005 U.S.
Dist. LEXIS 20465, *16 (N.D. Tex. Sept. 19, 2005) (“An employee’s violation of a company
work rule is a legitimate, nondiscriminatory reason for discharging him.”). While Gibson
might disagree, “employment discrimination laws have not vested in the federal courts the
authority to sit as super-personnel departments reviewing the wisdom or fairness of the

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business judgments made by employers, except to the extent that those judgments involve
intentional discrimination.” Vaughn v. Roadway Express, Inc., 164 F.3d 1087, 1091 (8th Cir.
1998). This record simply does not support any reasonable inference that Gibson’s prior
workplace complaints led to defendants’ subsequent action, and there is certainly no evidence
to suggest terminating for insubordination was pretext for discriminatory behavior.
Accordingly, Gibson’s retaliation claim is dismissed.
D.

Successor Liability

Defendants’ motions for summary judgment on successor liability are denied because
there are genuine questions of material fact on whether Mondi Bags acquired the liability.
Gibson brought suit against Graphic Packaging, the owner of the facility during the
events at issue here, and Mondi Bags, the subsequent owner. Am. Compl. ¶¶ 4–6. Although
Gibson argues that Mondi Bags is liable for his claims under a theory of successor liability,
he also maintains that “both [companies] are liable for his injuries.” Doc. No. 107 at 3. In
turn, defendants each point to each other as liable for the injuries – Graphic Packaging points
to Mondi Bags because Graphic Packaging “sold all of its interests in the [facility]” to Mondi
Bags in June 2014, and Mondi Bags argues that Mondi Bags does not have successor liability
and the claim remains with Graphic Packaging. See Doc. No. 98 at 14; Doc. No. 94-1 at 8–9.
Although Gibson does not explain how both companies can simultaneously be liable, the
defendants’ motions are denied because questions of material fact remain.
Whether liability remains with Graphic Packaging or is transferred to Mondi Bags

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turns on the common law doctrine of successor liability. Successor liability is an equitable
determination requiring careful balancing of multiple factors. Prince v. Kids Ark Learning
Ctr., LLC, 662 F.3d 992, 994 (8th Cir. 2010). Although not an exhaustive list of factors, the
leading approach stems from the Sixth Circuit Court of Appeals, which pointed to nine: (1)
whether the successor had notice of plaintiff’s charges; (2) the ability for the predecessor to
provide relief; (3) whether there has been a substantial continuation of business operations;
(4) whether the new employer uses the same facility; (5) whether the new employer uses the
same work force; (6) whether the new employer uses the same supervisors; (7) the similarity
of jobs and working conditions; (8) whether equipment and production processes are the
same; and (9) similarity between products produced.

EEOC v. MacMillan Bloedel

Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974). Successor liability must balance
“preventing wrongdoers from escaping liability and . . . facilitating the transfer of corporate
assets to their most valuable uses.” Nutt v. Kees, 796 F.3d 988, 991 (8th Cir. 2015).
Assuming Gibson has a claim for discrimination, there are unresolved questions on
whether Graphic Packaging or Mondi Bags should be liable. For example, counsel for
Mondi Bags repeatedly refers to Gibson working for Mondi Bags (and not Graphic
Packaging) when discussing the events at Gibson’s deposition, which makes sense
considering the continuation of work after the company sale at the facility, similar workflow,
and some consistent management. See, e.g., Gibson Dep. 9:18–19 (counsel for Mondi
asking, “What is – can you recall the job you held before coming to Mondi?”); Pl.’s Mondi

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Facts ¶ 7 (agreement that Yegohian was a manager for Graphic Packaging and is now a
member of Mondi Bags’s management). There remains a question, however, of whether
Mondi Bags would have had any reason to know that Gibson had a race discrimination claim
and if so, whether Graphic Packaging could be held liable. As discussed throughout this
order, there are serious questions about whether Gibson actually voiced a complaint based
on race or simply challenged application of the seniority policy. Furthermore, Mondi Bags’s
involvement in the post-termination arbitration proceedings was limited to Gibson’s
challenges on whether his “discharge was ‘unjust’ because [Gibson] was not aware that not
following the instructions of a Company Lead were grounds for suspension or discharge.”
Arbitration Award 4. Considering factors such as Mondi Bags’s notice of the claim against
Graphic Packaging and if Graphic Packaging is able to provide the relief requested is
“critical” to this decision, Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir.
1986), a trial on the merits must flush out this fact-intensive inquiry.
The only way to protect Gibson’s claims and to guard against unfair treatment against
either defendant is to allow all parties to present their evidence. After hearing the evidence
and evaluating the witnesses, a proper decision on successor liability can be made.
IV.

CONCLUSION

For the aforementioned reasons, defendants’ motions for summary judgment [Doc.
No. 94, 97] are granted with respect to Gibson’s retaliation and hostile work environment
claims but denied in all other respects.

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IT IS SO ORDERED this 10th day of August 2017.

________________________________
UNITED STATES DISTRICT JUDGE

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