Torrence v. CMC Steel Fabricators, Inc.
MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on March 4, 2014. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
RICKY Y. TORRENCE
CASE NO. 12-CV-1122
CMC STEEL FABRICATORS, INC.
d/b/a CMC STEEL ARKANSAS
Before the Court is a Motion for Summary Judgment filed by Defendant CMC Steel
Fabricators, Inc. ECF No. 15. Plaintiff has filed a response. ECF No. 19. Defendant has filed a
reply. ECF No. 20. Plaintiff has filed a sur-reply. ECF No. 21. This matter is ripe for the
Plaintiff did not file a statement of material facts as to which he contends a genuine
dispute exists to be tried. Further, the Court has reviewed Plaintiff’s response and his sur-reply
to the summary judgment motion and has not found any reference to a disputed fact. Thus,
Defendant’s Statement of Undisputed Material Facts shall be deemed admitted. See Local Rule
This is a pro se employment discrimination action under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000 et seq., which stems from Plaintiff Ricky Torrence’s employment
with Defendant CMC Steel Fabricators, Inc. in Magnolia, Arkansas, for more than twenty-four
years. Throughout his career, Plaintiff received several promotions to higher-level positions,
some of which involved supervising other employees. Plaintiff received his promotions based on
Defendant’s job advancement policy for promoting employees based on their “proven ability,
efficiency, flexibility and willingness to accept and successfully carry out the responsibilities.”
See CMC Employee Handbook, ECF No. 15-4. Although “length of service is appreciated” by
Defendant, “it is not the most important factor in job advancement.” See CMC Employee
Handbook, ECF No. 15-4. At the time of Plaintiff’s resignation, he held the positions of
Shipping Supervisor for production services, ISO Coordinator for production services, and
Kronos Administrator for CMC employees in Magnolia, Utah, South Carolina, and San Marcos,
Texas. All of these positions involved supervisory tasks.
Plaintiff’s supervisors noted that he was a hard worker and a valued employee but
commented that Plaintiff was best suited for administrative activities and staff positions. They
believed Plaintiff did not possess a strong skill set for a leadership position or the personality
traits of an effective supervisor. His supervisors opined that Plaintiff was passive and his
subordinates tended to walk over him.
Plaintiff’s performance reviews, while generally
positive, 1 also reflected these passive traits of his work performance which made him less
suitable for leadership positions. One comment was that Plaintiff did not “seem to assume the
leadership role necessary for effective supervision.”
On February 27, 2012, while still employed by Defendant, Plaintiff filed a charge of
discrimination with the EEOC alleging that he was denied a promotion because of his race. In
his EEOC charge, Plaintiff did not provide any explanation of the facts surrounding CMC’s
alleged discriminatory acts. Plaintiff resigned from his job with Defendant on July 16, 2012.
Plaintiff filed this lawsuit alleging race discrimination and constructive discharge by Defendant.
His complaint states that he “resigned from [his] job because [he] was passed over for
A 1995 performance review indicated that Plaintiff was “one of the friendliest, most moral individuals,” “capable
of several jobs within the department,” and “strong in administrative activities and staff type positions.”
promotions” based on his race. ECF No. 1. The complaint further states another man, Nick
Paladino, who had “less experience and time with [Defendant], was promoted to a “material
manager position” that Plaintiff “had inquired about. ECF No. 1.
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.
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.
Defendant asserts that it is entitled to summary judgment on both Plaintiff’s race
discrimination claim and his constructive discharge claim.
A. 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
was qualified for the position (sometimes articulated as meeting the 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).” Gibson, 670 F.3d at 853 (citing Lake v. Yellow
Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010)); Anderson v. Durham D&M, LLC., 606 F.3d
513, 520 (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. Gibson, 670 F.3d at 853. The burden then shifts to the plaintiff to show that the
defendant’s proffered reason was merely pretext for discrimination. Id.
There is no dispute that Plaintiff, an African-American, is a member of a protected class
and that he suffered an adverse employment action because he was not promoted. Plaintiff,
however, has failed to show that he was qualified for the management position for which Mr.
Paladino, a white male, was hired. This position was Manager of Relay Sales in Defendant’s rail
department. Plaintiff stated that he was qualified for the rail position because of the amount of
time that he had worked for Defendant and because he obtained an undergraduate degree in
finance. Plaintiff, however, admitted that he did not know how a degree in finance would
qualify or assist him in the rail position. Mr. Paladino, on the other hand, has a Master’s Degree
in Operations Management, which is a subject area directly related to the rail position. Further,
Defendant has stated that Mr. Paladino’s experience in the United States Air Force and
personality provide him with strong leadership skills which are necessary for the rail position.
Plaintiff has simply not shown how his skill level qualified him for the rail position.
Plaintiff has also failed to show that similarly situated employees were treated more
favorably. Plaintiff admits that Mr. Paladino does not have similar qualifications as Plaintiff.
Further, Plaintiff has admitted that he does not have any evidence that anyone received
promotions based on their race and has acknowledged that he does not believe that anyone
intentionally discriminated against him because of his race. When asked if Plaintiff believed that
Mr. Paladino obtained the rail position because he is white, Plaintiff responded that he did not
know. Plaintiff has offered no evidence to support an argument that Defendant failed to promote
him under circumstances that give rise to an inference of discrimination. Plaintiff, therefore, has
failed to establish a prima facie case of discrimination.
Even if Plaintiff was successful in establishing a prima facie case, his race discrimination
claim would still fail. Once a plaintiff establishes a prima facie case, Defendant must put forth a
legitimate, non-discriminatory reason for not promoting a plaintiff. In this case, Defendant
asserts that Mr. Paladino was hired for the rail position based on his skill level and the fact that
his personality and leadership skills were better suited for the position than Plaintiff’s. Further,
Mr. Paladino held a Master’s Degree in Operations Management, a field directly related to the
Plaintiff has offered no evidence to show that Defendant’s reasons for not
promoting Plaintiff to the rail position were mere pretext for racial discrimination.
Plaintiff’s Title VII race discrimination claim must fail.
B. Constructive Discharge
Plaintiff claims that he was constructively discharged because he was “passed over for
promotions” and did not feel like he could “continue to work for [Defendant] because [it] had no
respect for [him] as an employee or as a person.” “To prove a constructive discharge [under
Title VII], an employee must show that the employer deliberately created intolerable working
conditions with the intention of forcing [him] to quit.” Alvarez v. Des Moines Bolt Supply, Inc.,
626 F.3d 410, 418 (8th Cir. 2010). Also, an employee must give his employer a reasonable
opportunity to resolve the problem before quitting. Sanders v. Lee Cnty. School Dist. No. 1, 669
F.3d 888, 893 (2012). Evidence of the employer’s intent can be proven by evidence that the
employer could have reasonably foreseen that the employee would quit as a result of its
discriminatory actions. Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (1996) (denial of
promotion, combined with dissatisfaction with work assignment, were insufficient to uphold
constructive discharge judgment).
Here, Plaintiff has offered no evidence that Defendant deliberately rendered his working
conditions intolerable and that this was the reason he resigned. In fact, Plaintiff has admitted that
no one at his work forced him to resign, he had no problems with any of his supervisors, and that
he enjoyed working for Defendant up until the day he resigned. The fact that Plaintiff was
passed over for a promotion is simply not enough to establish an intolerable work environment.
Moreover, Plaintiff did not provide Defendant with an adequate opportunity to remedy any
alleged intolerable working conditions. Plaintiff stated that, prior to filing his EEOC charge, he
never talked to anyone at his work about not being promoted. He indicated that his filing of the
EEOC charge was the first instance anyone at work knew that he felt as if he was being
discriminated against, and he resigned shortly thereafter. Thus, it seems that Plaintiff resigned
before he gave Defendant a chance to resolve the situation. For these reasons, Plaintiff’s claim
for constructive discharge must fail.
For the reasons stated above, the Court finds that summary judgment in favor of
Defendant is appropriate as to Plaintiff’s race discrimination and constructive discharge claims.
Accordingly, the Motion for Summary Judgment (ECF No. 15) 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 4th day of March, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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