Harvey v. Georgia Pacific, LLC
MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on September 5, 2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CASE NO. 12-CV-1121
Before the Court is a Motion for Summary Judgment filed by Defendant Georgia-Pacific,
LLC (“GP”). ECF No. 16. Plaintiff has filed a response (ECF No. 21), and GP has filed a reply.
ECF No. 25. The Court finds this matter ripe for consideration.
After having worked for GP’s plywood operations plant in Fordyce for over twenty-five
years, Plaintiff was hired on December 12, 2011, as a Utility Entry Level (or “Sixth Hand”) at
the paper operations plant in Crossett. 1 As a Sixth Hand, Plaintiff operated an overhead crane,
assisted with the operation of a paper machine called “the winder,” and assisted with whatever
else needed to be done at the Board Mill.
Plaintiff began his employment under a probationary period of 150 days, and Plaintiff
was to be evaluated by Optimizer Wayne Kelley 2 on a weekly basis during the probationary
period. Plaintiff received four weeks of on the job training, which was the standard amount of
training provided to a Sixth Hand.
Plaintiff, however, told Kelley that the training was
After GP’s Fordyce plywood plant closed, Plaintiff began working for GP’s Crossett plywood operations plant.
When the plywood plant closed, Plaintiff was awarded a position at the Crossett paper operations plant.
Kelley’s responsibilities as an Optimizer included coordination of all activities on the winder from a safety
standpoint, quality, and production. Kelley was not a supervisor and did not have the authority to hire, fire,
promote, reassign job responsibilities, or change compensation or benefits for employees.
inadequate for two of those weeks, and Kelley arranged for Plaintiff to receive an additional two
weeks of training.
A. Job Evaluations
Kelley evaluated Plaintiff, along with other Sixth Hands, from January through April
2012. Kelley evaluated Plaintiff’s performance across six general topics, which were subdivided
into twenty-four subtopics, by rating his performance as either unacceptable, needs
improvement, meets expectations, exceeds expectations, or not applicable.
evaluations also provided detailed comments regarding Plaintiff’s job performance related to
each topic. For these evaluations, Kelley solicited weekly feedback from Plaintiff’s co-workers
and shift coordinators and also personally observed Plaintiff’s performances. Kelley discussed
these evaluations with Plaintiff each week and offered him an opportunity to develop a plan to
address any areas in which he needed improvement.
Plaintiff received a rating of needs improvement in at least one category in 12 of the 15
evaluations completed for him during the probationary period. 3 Many times, Plaintiff received
needs improvement ratings in multiple categories on a single evaluation. In fact, Plaintiff
received a total of 33 needs improvement ratings in twelve different subtopics. 4 Plaintiff’s
evaluations showed that he consistently needed improvement in contributing to his job without
Kelley completed most of the evaluations. In Kelley’s absence, Aaron Mowry, Plaintiff’s manager, completed one
of the evaluations. Andrew Wolfe completed one evaluation because of Kelley’s absence. Wolfe, a process
engineer, completed the evaluation because he was a salaried employee and evaluations were required to be
completed by salaried employees as opposed to hourly employees.
Plaintiff received 33 needs improvement ratings in the following twelve subtopics: understands responsibilities
and rarely needs help (10 times); contributes to job without direction from others (8 times); participates as a team
member (3 times); accountable for own actions (3 times); understands principles & procedures of operation
equipment (2 times); demonstrates a sense of urgency (1 time); interacts well with co-workers (1 time);
demonstrates commitment to team success (1 time); shares information willingly (1 time); aware of his strengths and
weaknesses (1 time); unexcused absences (1 time); and late starts (1 time).
direction and in understanding his job duties without help. Specifically, Plaintiff received a
needs improvement rating in one of these two areas in 11 out of 15 subtopics.
B. Human Resources’ Investigation
Plaintiff disagreed with the needs improvement ratings that he received, and Plaintiff
either signed his weekly evaluations with disagreement or refused to sign them. Brenda Coffey,
Senior Human Resources Manager, became aware of this fact and initiated a meeting with
Plaintiff on February 20, 2014. Plaintiff indicated to Coffey that he believed his evaluations
were based on inaccurate feedback and unfair criticism from his co-workers and that he was
being discriminated against based on his race. Plaintiff did not complain to Coffey that he
believed that he was being discriminated against or otherwise mistreated based on his age.
After the meeting, Coffey investigated Plaintiff’s allegations. She contacted Plaintiff’s
manager, Aaron Mowry, and he gave her names of co-workers that she should interview in
connection with Plaintiff’s allegations. Coffey interviewed several of Plaintiff’s co-workers and
had two more conversations with Plaintiff regarding his allegations. Coffey then determined that
Plaintiff’s allegations could not be substantiated and that feedback regarding Plaintiff’s
performance was reasonable. She informed Mowry of her determinations.
C. Mowry’s Investigation
Mowry noticed on the weekly evaluations that there was consistent feedback that Plaintiff
was unable to perform his job duties as a Sixth Hand without the help and the direction of coworkers.
Thus, Mowry spoke with Plaintiff’s co-workers and shift coordinators to obtain
information about Plaintiff’s performance. Mowry spoke with co-workers across different shifts
and found that the feedback regarding Plaintiff’s inability to perform his job duties without help
was consistent across shifts.
D. Plaintiff’s Termination
Mowry determined that Plaintiff had not demonstrated an ability to effectively and
consistently perform his job responsibilities, and Mowry decided to terminate Plaintiff’s
employment prior to his completion of the 150-day probationary period.
In making this
determination, Mowry considered his own investigation of Plaintiff’s performance, as well as the
recommendations of Coffey5 and Kelley. 6 ECF No. 17-2 ¶¶ 6-11. On May 1, 2012, Plaintiff
was informed of this decision in a meeting with Kelley, Mowry, and Coffey.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). ECF No. 17-1, p. 309. Plaintiff alleged that he was discharged because
of his race and his age. The EEOC issued a right-to-sue letter on September 14, 2012. ECF No.
1-1. Plaintiff then filed the present lawsuit, alleging that he was discharged because of his race
in violation of Title VII and that comments about his age during the probationary period created
a hostile work environment in violation of the Age Discrimination in Employment Act
(“ADEA”). GP asserts that it is entitled to summary judgment on both of Plaintiff’s claims.
STANDARD OF REVIEW
The standard of review for summary judgment is well established. The Federal Rules of
Civil Procedure provide that when a party moves for summary judgment:
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
Coffey recommended termination because, during her investigation, she found no basis for Plaintiff’s refusal to
sign his weekly performance evaluation and no basis for his allegation that he was being mistreated because of his
race. Coffey also recommended termination because she found that there was a reasonable basis for the critical
feedback of Plaintiff’s performance. ECF No. 24-1, ¶ 8.
Kelley recommended termination based on the fact that Plaintiff’s co-workers had consistently provided feedback
that Plaintiff could not perform his job duties without help and direction from others. ECF No. 17-6, ¶ 8.
Fed. R. Civ. P. 56(a); Krenik v. County of LeSueur, 47 F.3d 953 (8th Cir.1995). The
Supreme Court has issued the following guidelines for trial courts to determine whether this
standard has been satisfied:
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial-whether, in other words, there are 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). See also Agristor Leasing v.
Farrow, 826 F.2d 732 (8th Cir. 1987); Niagara of Wisconsin Paper Corp. v. Paper Indus.
Union-Management Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only
when its resolution affects the outcome of the case. Anderson, 477 U.S. at 248. A dispute is
genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either
party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id.
The nonmoving party must then demonstrate the existence of specific facts in the record that
create a genuine issue for trial. Krenik, 47 F.3d at 957. A party opposing a properly supported
motion for summary judgment may not rest upon mere allegations or denials, but must set forth
specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.
A. Title VII Race Discrimination
Plaintiff has not presented any direct evidence of race discrimination, so the Court will
analyze his claims under the McDonnell Douglas burden-shifting framework. Gibson v. Am.
Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012). Under this familiar framework, a plaintiff
must first establish a prima facie case of discrimination. Id. To establish a prima facie case of
race discrimination, a plaintiff must show that “(1) he is a member of a protected class, (2) he
met his employer’s legitimate expectations, (3) he suffered an adverse employment action, and
(4) the circumstances give rise to an inference of discrimination (for example, similarly situated
employees outside the protected class were treated differently).” Id. (citing Lake v. Yellow
Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010)). If the plaintiff successfully establishes a prima
facie case, the defendant may rebut the prima facie case by articulating a non-discriminatory
reason for its action. Id. The burden then shifts to the plaintiff to show that the defendant’s
proffered reason was merely pretext for discrimination. Id.
Plaintiff makes a Title VII race discrimination claim in his Complaint; however, Plaintiff
has failed to brief this claim in his response to GP’s summary judgment motion. Thus, the Court
assumes that Plaintiff has abandoned his Title VII race discrimination claim. See Satcher v.
Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009) (“[F]ailure to oppose a
basis for summary judgment constitutes waiver of that argument.”); see also Allen v. Missouri,
No. 4:11-CV-2224-JAR, 2013 WL 2156259, at *12 (E.D. Mo. May 17, 2013) (construing
plaintiff’s failure to respond to defendant’s motion regarding some of the claims as plaintiff’s
abandonment of those claims).
Regardless of whether Plaintiff has abandoned his race discrimination claim, Plaintiff has
not established a prima facie case of discrimination because he has failed to show that he was
discharged under circumstances permitting an inference of intentional discrimination. Plaintiff
admits that he does not believe that Aaron Mowry (the decision-maker) discriminated based on
Do you believe that [Aaron Mowry] . . . would discriminate against someone
based on their race?
My opinion, I don’t think so, no.
ECF No. 17-1, p. 52; ECF No. 17-2, ¶ 6. Where a plaintiff admits that the decision-maker would
not discriminate, as Plaintiff has done here, the plaintiff effectively waives an essential element
of that claim—that the discrimination was intentional. Ross v. Jefferson Cnty. Dep’t of Health,
701 F.3d 655, 661 (11th Cir. 2012) (granting summary judgment where plaintiff responded “no”
to the question of whether she felt like her termination had anything to do with her race);
Cardenas v. AT&T Corp., 245 F.3d 994, 1000 (8th Cir. 2001) (intentional discrimination is the
ultimate question). Here, Plaintiff simply has offered no evidence of discriminatory intent.
Even if Plaintiff was successful in establishing a prima facie case, however, his race
discrimination claim would still fail. If a prima facie case has been established, GP must then
put forth a legitimate, non-discriminatory reason for Plaintiff’s termination. In this case, GP
asserts that Plaintiff was terminated because Mowry, Plaintiff’s supervisor, determined that
Plaintiff had not demonstrated an ability to effectively and consistently perform his job
responsibilities. Thus, GP has met its burden of demonstrating a legitimate, nondiscriminatory
reason for terminating Plaintiff. Plaintiff, on the other hand, offers no evidence showing that
GP’s reason for terminating him is a pretext for racial discrimination.
Plaintiff disagrees with the “needs improvement” ratings that he received, and he also
questions GP’s decision to terminate him. The Court, however, will not sit as a “super-personnel
department to second-guess the business decisions of employers.”
Ramsey, 153 F.3d 869, 873 (8th Cir. 1998).
Wilking v. County of
When an employer articulates a reason for
terminating a plaintiff, it is not for the Court to decide whether the reason was wise, fair, or even
correct. Id. The relevant question is whether the stated reason was truly the reason for the
plaintiff’s termination. Id. Here, Plaintiff disputes that he inadequately performed his job duties.
Plaintiff, however, has not shown that Mowry did not honestly believe Plaintiff had failed to
demonstrate the ability to effectively and consistently perform his job responsibilities. See
Mershon v. St. Louis Univ., 442 F.3d 1069, 1074-75 (8th Cir. 2006) (even assuming the
underlying reason for the adverse action was false, the plaintiff failed in rebutting the proffered
non-discriminatory reason because he presented no evidence from which to conclude the
defendant knew or even suspected its falsity).
Because Plaintiff cannot establish a prima facie case or present evidence that poor job
performance was a pretext for race discrimination, GP is entitled to summary judgment on
Plaintiff’s Title VII race discrimination claim.
B. ADEA Hostile Work Environment
In his Complaint, Plaintiff states that his supervisor “created an oppressive environment”
by making comments about Plaintiff’s age. ECF No. 1, ¶ 25. Plaintiff further states that his coworkers’ frequent comments about his age created “a hostile and offensive work environment.”
ECF No. 1, ¶ 29. The Court and GP interpret this as Plaintiff’s attempt to make an ADEA
hostile work environment claim.
However, by failing to brief his ADEA hostile work
environment claim in his response to GP’s summary judgment motion, Plaintiff abandons this
claim just as he did his Title VII race discrimination claim. See Satcher v. Univ. of Ark. at Pine
Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009) (“[F]ailure to oppose a basis for summary
judgment constitutes waiver of that argument.”); see also Allen v. Missouri, No. 4:11-CV-2224JAR, 2013 WL 2156259, at *12 (E.D. Mo. May 17, 2013) (construing plaintiff’s failure to
respond to defendant’s motion regarding some of the claims as plaintiff’s abandonment of those
Regardless of whether Plaintiff has abandoned his hostile work environment claim, this
claim is procedurally barred because he has not exhausted his administrative remedies. A
plaintiff bringing a claim under the ADEA must exhaust his administrative remedies before
bringing suit in federal court. Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005).
a claimant must first timely file an EEOC charge. 42 U.S.C. § 2000e-5(e). The charge must be
“sufficiently precise to . . . describe generally the action or practices complained of.” 29 C.F.R.
§ 1601.12(b). If the EEOC issues to the claimant a right-to-sue letter following its investigation,
the charge limits the scope of the subsequent civil action because “the plaintiff may [only] seek
relief for any discrimination that grows out of or is like or reasonably related to the substance of
the allegations in the administrative charge.” Cottrill v. MFA, Inc., 443 F.3d 629, 634 (8th Cir.
2006) (quoting Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998)) (discussing
exhaustion requirement under Title VII); Parisi, 400 F.3d at 585 (discussing exhaustion
requirement under the ADEA).
Here, Plaintiff’s EEOC charge makes no mention of a hostile work environment claim,
ongoing discriminatory practices, or any other adverse employment actions other than his
In his EEOC charge, Plaintiff states specifically that the date the alleged
discrimination took place was on May 1, 2012—the date of his termination. Plaintiff did not
indicate that there was discrimination of an ongoing or continuing nature.
A plaintiff, however, “will be deemed to have exhausted administrative remedies if the
allegations of the judicial complaint are like or reasonably related to the administrative charges
that were timely brought.” Wedow v. City of Kansas City, Missouri, 442 F.3d 661, 672 (8th Cir.
The Eighth Circuit does not require that subsequently-filed lawsuits mirror the
underlying administrative charges, but it does not permit the sweep of a judicial complaint to go
beyond “the scope of the EEOC investigation which could reasonably be expected to grow out of
the charge.” Wedow, 442 F.3d at 674. Here, the sweep of Plaintiff’s complaint does just that.
In the EEOC charge, Plaintiff describes his claim:
I was hired on or about December 12, 2011, with my most recent position
as that of Entry Level Utility. On May 1, 2012, I was discharged.
I was told I was discharged because of my performance.
I believe I was discharged because of my race, Black in violation of Title
VII of the Civil Rights Act of 1964, as amended, and because of my age,
55 in violation of the [ADEA.]”
ECF No. 17-1, p. 312. Here, Plaintiff sets forth straightforward and limited allegations in his
EEOC charge, and the Court finds that this charge would not lead the EEOC to investigate
whether Plaintiff was subject to a hostile working environment during the course of his
employment with GP. Thus, the Court finds that Plaintiff has failed to exhaust his administrative
remedies as to his hostile work environment claim, and this claim is dismissed.
C. ADEA Discriminatory Discharge
In his brief in opposition to GP’s summary judgment motion, Plaintiff seems to argue that
he was discharged based on his age and that GP should be held liable for this discharge under a
“cat’s paw” theory of liability. Plaintiff’s complaint, however, does not allege discriminatory
discharge based on his age. The heading in the Complaint for the race discrimination claim
reads “Unlawful Discharge in Violation of Title VII,” and Plaintiff clearly alleges that he was
“unlawfully terminated because of his race.” ECF No. 1, ¶ 19. Plaintiff, however, makes no such
allegation regarding his age. Plaintiff’s heading regarding his age discrimination claim reads
“Age Discrimination in Violation of ADEA,” and his complaint never mentions that he was
unlawfully terminated because of his age. Instead, the complaint references facts supporting a
hostile work environment claim based on age. GP even pointed out this deficiency in its brief
supporting its summary judgment motion, and Plaintiff did not attempt to address the issue in his
response or brief in opposition to GP’s summary judgment motion. Further, Plaintiff has not
moved to amend his complaint to add a claim for discriminatory discharge based on his age.
Accordingly, the Court finds that Plaintiff has not stated a cause of action for discriminatory
discharge based on age.
Even if Plaintiff had stated this cause of action, Plaintiff’s “cat’s paw” theory of liability
would fail. “Cat’s paw” refers to a theory of liability in the employment discrimination context
“in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker
as a dupe in a deliberate scheme to trigger a discriminatory action.” Qamhiyah v. Iowa State
Univ. of Science and Technology, 566 F.3d 733, 742 (8th Cir. 2009). Here, Plaintiff seems to
argue that Kelley7 was the biased subordinate who recommended Plaintiff’s termination and that
Mowry was the duped decisionmaker. Mowry, however, states that he would have made the
decision to terminate Plaintiff’s employment regardless of Kelley’s evaluations or
recommendation. Mowry further states that his decision was based on the following: (1) his
own investigation of the information that was contained in those evaluations; (2) his own
personal observations of Plaintiff; and (3) the separate recommendation of Brenda Coffey, the
Human Resources leader, who had performed her own investigation into feedback provided on
Plaintiff’s evaluations. ECF No. 17-2, ¶¶ 7-11; ECF No. 24-1, ¶¶ 7-8; ECF No. 22-6, ¶ 12.
According to Mowry, he would not have terminated Plaintiff’s employment without the
recommendation of Coffey. ECF No. 17-2, ¶ 10. Based on this undisputed evidence, Plaintiff
cannot establish that Mowry’s termination of Plaintiff’s employment was a mere conduit for the
desires of Kelley. Thus, even if Plaintiff had alleged an ADEA discriminatory discharge claim,
it would fail.
According to Plaintiff, Kelley made frequent comments about Plaintiff’s age hindering his ability to do his job.
For the reasons stated above, the Court finds that GP’s Motion for Summary Judgment
(ECF No. 16) should be and hereby is GRANTED. Plaintiff’s Complaint is DISMISSED
WITH PREJUDICE. A Judgment of even date consistent with this Opinion shall issue.
IT IS SO ORDERED, on this 5th day of September, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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