Brown v. Tyson Foods Inc

Filing 21

MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on July 29, 2014. (jn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ELLEN L. BROWN
v.

PLAINTIFF
CASE NO. 13-cv-4065

TYSON FOODS, INC.

DEFENDANT

MEMORANDUM OPINION
Before the Court is Defendant Tyson Foods, Inc.’s (“Tyson”) Motion for Summary
Judgment. (ECF No. 10). Plaintiff has filed a response (ECF No. 13), and Tyson has filed a
reply. (ECF No. 17). The Court finds this matter ripe for consideration. For the reasons
explained below, Defendant’s motion is granted.
BACKGROUND
This action involves claims for race discrimination, retaliation, and hostile work
environment. Plaintiff is a former employee of Defendant Tyson. She brings several claims
arising from her two suspensions and subsequent termination in November 2012.
Plaintiff, an African-American female, was an hourly employee at Tyson's facility in
Nashville, Arkansas from August 8, 2009, until her termination on November 2, 2012. Tyson
states that Plaintiff was terminated under a Tyson policy which provides that an employee who
receives two written warnings in a 12-month period will be terminated. Plaintiff received
suspensions in September 2012 and October 2012. In accordance with the policy, Plaintiff was
terminated. The main dispute in this case centers on Plaintiff’s second suspension in October
2012.
On September 21, 2012, Plaintiff was suspended after video surfaced of Plaintiff
“shaking her tail” and placing money in the shirt of a male co-worker who was performing an
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“exotic” dance in a Tyson facility. The video was uploaded to Facebook, and subsequently
reported to Tyson. Plaintiff’s supervisor concluded that Plaintiff’s participation in the video was
in violation of Tyson’s “Harassment/Discrimination Policy” and terminated her employment on
September 26, 2012. Plaintiff appealed the termination to Nashville Complex Manager Paul
Britt, and her disciplinary action was then reduced to a written warning with a suspension.
In October 2012, Plaintiff complained to Carolyn Box, her human resource shift
supervisor, that her co-workers were mistreating her and that certain co-workers were receiving
special treatment from supervisors. Plaintiff’s written statements on October 22, 25, and 26
allege that Plaintiff was called an “Uncle Tom,” a “snitch,” and a “Mexican Lover”; that certain
co-workers engaged in inappropriate relationships with their supervisors; and that certain coworkers received special treatment from these supervisors. (ECF No. 10, Exhs. 7-9). According
to Plaintiff, the main source of conflict between her and her co-workers had to do with the fact
that she was reinstated after being terminated. Plaintiff claims that she was being picked on “to
see if [she] was going to go off.” (ECF No. 10, Exh. 1, p. 89).
Based on Plaintiff’s written statements, an investigation was opened.

Plaintiff was

instructed not to discuss the investigation with her co-workers or to have contact with any of the
witnesses. On October 25, 2012, Carolyn Box interviewed one of Plaintiff’s co-workers, Candie
Hooper, to inquire about the alleged name-calling being directed at Plaintiff.

On October 26,

Hooper provided Box with two Facebook posts from October 26 that were directed toward
Hooper from Plaintiff’s Facebook account. The first post stated “Bitch I got u tho. Bad built ass.
get a life my daughter got u cause i will.” (ECF No. 10, Exh. 10). The second post was
lengthier:
@ This Bitch name Candie Im not your Murthafuckin friend an I think I
said sumthing to an at your Ass earlier. About looking on my page u dnt no
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anthing about me nor my husband. An first of ALL I can put whatever I
want on my Damn page if u dnt like it when Delete your ass from my page.
An first of All your Bitch ass keep looking in my Damn mouth every Lyme
Im talking if Im not talking to you what the fuck u getting a mouth full of
nothing. Just to let u know hater are my motivate. So since you think I talk
to guys an calling it adultery. Bitch u dnt know anything about me but my
first Name So u need to Think B4 u Speak. An go find your Babies Daddy
an stop-fuckin your friend Man. With your bad bult ass with your back
pocket touchin your knees as get u a Booty Pad So your pants stop falling.
Now go tell that Bitch, So u will be Delte. An stop having one night stand
with all your riders Suckin they Dick. U Brought this on your own.
Plaintiff claims that her daughter was the author of these posts. Plaintiff’s daughter
confirmed that allegation and testified that she authored the posts and showed them to Plaintiff
on the night she posted them. However, at the time the investigation was taking place, Plaintiff
never told Tyson that her daughter was the one who made the posts. Plaintiff later testified that
anyone looking at the posts would be justified in believing that she had authored them because
they were written under her account.
Carolyn Box suspended Plaintiff until November 2, 2012 pending an investigation. The
suspension states: “[Plaintiff] violated instructions given to her by HR to not discuss an
investigation nor have contact with any of the witnesses or participants. On October 26, Ellen
posted an intimidating post on Facebook directed at a witness in the investigation.” (ECF No. 10,
Exh. 12). After an investigation, the suspension was upheld. In accordance with Tyson policy,
Plaintiff’s second suspension in a 12-month period resulted in her termination. (ECF No. 10,
Exh. 6).
Plaintiff alleges that Hooper, a Caucasian, engaged in the same type of behavior outlined
above but was not disciplined by Tyson. Plaintiff claims that posts from her account were in
response to a derogatory Facebook post by Hooper. Plaintiff claims that the post was “spreading
rumors that [Plaintiff] was sleeping [with] a Caucasian supervisor…to be reinstated to her job.”

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(ECF No. 14, p. 2). However, Plaintiff testified that she was not made aware of Hooper’s post
until after Tyson had suspended her.

Plaintiff admits that Tyson was not aware of any

inflammatory posting by Hooper at the time Plaintiff was suspended.

There is only one

Facebook post that can be attributed to Hooper that was turned over during the investigation. The
following is Hooper’s post that elicited the “Bitch I got u tho…” response from Plaintiff’s
account:
I have a certain friend on my list that likes to post Bible Scriptures like she
some goody two shoes. Well here's two verses she may wanna look at. Thou
shalt not bear false witness against thy neighbor and tho shalt not commit
adultery. #ihatehypocrites
(ECF No. 10, Exh. 10). Apparently, the individual posting from Plaintiff’s Facebook account
assumed the above post was made in reference to Plaintiff. Hooper claims that it was not
directed toward Plaintiff. After reviewing Hooper’s Facebook post, Tyson determined that there
was no basis to discipline Hooper. Plaintiff has not been able to produce any additional posts
made by Hooper.
In her Complaint, Plaintiff alleges that she was terminated on the basis of her race; that
she was retaliated against for making a complaint to her supervisor about the way she was being
treated at work; and that her treatment created a hostile work environment. Tyson filed the
present Motion for Summary Judgment.
STANDARD OF REVIEW
The standard of review for summary judgment is well established. When a party moves
for summary judgment, “[t]he 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).
This is a “threshold inquiry of…whether there is a need for trial—whether, in other words, there
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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). 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 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.
DISCUSSION
A. Race Discrimination
Plaintiff asserts a race discrimination claim against Tyson pursuant to Title VII, 42
U.S.C. § 1981, and the Arkansas Civil Rights Act (“ACRA”). 1 To establish a prima facie case
of race discrimination, plaintiff must demonstrate that: (1) she is a member of a protected class;
(2) she suffered an adverse employment action; (3) she was meeting the employer’s legitimate
job expectations; and (4) a similarly situated employee outside the protected class was treated
differently. Tolen v. Ashcroft, 377 F.3d 878, 882 (8th Cir. 2004). A failure to establish just one
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All of Plaintiff’s claims under Title VII; § 1981; and ACRA are governed by same standards. McCullough v.
Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009); Davis v. KARK-TV, Inc., 421 F.3d 699, 703 (8th Cir.
2005).

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element of a prima facie case defeats a Title VII discrimination claim. Tatum v. City of Berkeley,
408 F.3d 543, 550-51 (8th Cir. 2005).
If the plaintiff can establish a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, non-discriminatory reason for its actions. Takele v. Mayo
Clinic, 576 F.3d 834, 838 (8th Cir. 2009). If the defendant makes such a showing, the plaintiff
must demonstrate by a preponderance of the evidence that the stated non-discriminatory rationale
was a mere pretext for discrimination. Id.
In this case, Tyson argues that Plaintiff fails to establish a prima facie case for
discrimination.

Specifically, Tyson argues that Plaintiff cannot demonstrate that she was

meeting Tyson’s legitimate job expectations or that there is a similarly situated employee who
received more favorable treatment. The Court agrees.
First, it does not appear that Plaintiff was meeting Tyson’s legitimate job expectations.
The grounds for her first suspension for dancing in September 2012 are not in dispute. Her
suspension stemming from the Facebook posts in November 2012 also appears to have been
warranted. Based on the information before Tyson at the time, the posts were made from
Plaintiff’s account and appeared to have been written by Plaintiff. The posts were extremely
graphic and derogatory, and Plaintiff herself admitted that a suspension would be justified if
Tyson believed she had authored the post.

Even assuming that it was actually Plaintiff’s

daughter who made the Facebook posts, the Court finds that Tyson’s decisions were justified on
the facts before them at the time. By all appearances, Plaintiff was directing threatening and
derogatory messages to her co-workers. This type of behavior certainly falls short of Tyson’s
legitimate job expectations.

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Even if Plaintiff was meeting legitimate job expectations, she has failed to show that a
similarly situated employee received more favorable treatment under the same circumstances. A
similarly situated employee “must have dealt with the same supervisor, have been subjected to
the same standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances.” Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1044 (8th Cir. 2007).
In this case, Plaintiff argues that Candie Hooper is a similarly situated employee who
received more favorable treatment under the same circumstances. Specifically, Plaintiff argues
that Hooper, a Caucasian, is similarly situated because 1) Hooper was involved in the September
2012 dancing incident but was not suspended and 2) Hooper made an inflammatory Facebook
post about Plaintiff that went unpunished. Plaintiff’s support for these allegations is lacking.
First, it is undisputed that Hooper, unlike Plaintiff, was not caught on video during the
September 2012 dancing incident. Plaintiff alleges that Hooper was present at the time, but
without evidence of her participation, Tyson had no basis upon which to discipline Hooper.
Second, at the time of Plaintiff’s second suspension, Tyson had no basis on which to discipline
Hooper for an inflammatory Facebook posting. Plaintiff never reported to Tyson that Hooper
was making inflammatory Facebook posts about her. In fact, Plaintiff states that she did not
know about any inflammatory post by Hooper until after she was terminated. 2 With no reports
or evidence of an inflammatory post by Hooper, Tyson obviously could not have taken
disciplinary action against her. In sum, there was no evidence before Tyson that Plaintiff and
Hooper engaged in comparable conduct. Accordingly, these two individuals are not similarly
situated.
2

As to Hooper’s post that was turned over during the investigation, it can hardly be described as inflammatory.
While the individual responding from Plaintiff’s account assumed the post was about Plaintiff, the post was fairly
vague and included no identifying information or threats against an individual. Accordingly, based on the nature of
Hooper’s post, it cannot be said that she engaged in the same conduct as Plaintiff without any mitigating or
distinguishing circumstances. The posts are clearly distinguishable.

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For the foregoing reasons, Plaintiff has failed to establish a prima facie case of race
discrimination. Even if Plaintiff had established her prima facie case, Tyson has provided a
legitimate, non-discriminatory reason for her termination, and Plaintiff has failed to show that
Tyson’s proffered reason for her suspension and termination was pretext.

A plaintiff can

establish pretext by showing “that the employer's explanation is unworthy of credence ... because
it has no basis in fact. Alternatively, a plaintiff may show pretext by persuading the court that a
prohibited reason more likely motivated the employer.” Torgerson v. City of Rochester, 643 F.3d
1031, 1047 (8th Cir. 2011) (quotations and citations omitted).
First, there is no indication in the record that Tyson’s reason for Plaintiff’s termination
has no basis in fact. Tyson’s investigation is well-documented. Second, even if the Court
assumes that Candie Hooper is a sufficient comparator who engaged in similar behavior and
escaped discipline, Plaintiff has offered no evidence that would allow the Court to infer that the
disparate treatment was “more likely” motivated by race. The September 2012 dancing incident
and the October 2012 Facebook posts clearly qualify as unacceptable workplace behavior. The
record indicates that Plaintiff’s suspensions were fully warranted and based solely on Plaintiff’s
documented behavior. Moreover, Plaintiff’s Complaint and her own deposition testimony show
that her alleged mistreatment by co-workers and supervisors stemmed from their frustration that
she was reinstated after being terminated in September 2012. Plaintiff states that she had
“received too much attention from the co-workers about her reinstatement…[and] management
used the Facebook posting by Plaintiff’s daughter as a pretext to fire the Plaintiff.” (ECF No. 14,
p. 6). Assuming arguendo that Plaintiff was unfairly targeted for suspension, her own testimony
tends to show that any targeting was more likely the result of her September 2012 reinstatement,
not her race.

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In sum, the fact that a Caucasian allegedly engaged in similar behavior and escaped
punishment is not enough to establish that Tyson’s stated reason for Plaintiff’s termination was
pretextual. Accordingly, Plaintiff’s race discrimination claim fails and Tyson is entitled to
summary judgment on this claim.
B. Retaliation
Plaintiff’s Complaint alleges that she was retaliated against for “protest[ing] that she was
being treated differently because of her race….” Plaintiff appears to be referring to the fact that
she reported to her supervisor, Carolyn Box, that her co-workers were mistreating her and calling
her names such as “Uncle Tom,” a “snitch,” and a “Mexican Lover.” Shortly after making these
complaints, an investigation ensued and Plaintiff’s Facebook posts came to light. She was
suspended roughly eight days after making her first complaints.
In order to make a prima facie case of retaliation, Plaintiff must show (1) that the
complaints made to her supervisor were protected activity; (2) that an adverse employment
action occurred; and (3) that there is a causal connection between the two. Jackson v. Missouri
Pac. R. Co., 803 F.2d 401, 406-07 (8th Cir. 1986). The burden of articulating a legitimate
nondiscriminatory reason for discharge then shifts to Tyson. Id. Once Tyson meets this burden,
Plaintiff must then show that her engagement in the protected activity constituted a motivating
factor in the discharge and that the stated reason for the discharge was pretextual. Id.
The Court will assume arguendo that Plaintiff’s Complaint has established a prima facie
case for retaliation. Tyson has met its burden of articulating a nondiscriminatory reason for
Plaintiff’s discharge—namely, her second suspension for the Facebook posts in October 2012.
In her response to Tyson’s Motion for Summary Judgment, Plaintiff did not set forth any
evidence or arguments in support of her retaliation claim. Accordingly, she has not carried her

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burden of showing that Tyson’s reason for her termination was pretextual and that retaliation was
a motivating factor in her termination. For this reason, Plaintiff’s retaliation claim fails and
Tyson is entitled to summary judgment on this claim.
C. Hostile Work Environment
Plaintiff’s Complaint alleges that she was subjected to a hostile work environment. Her
hostile work environment claim involves allegations that she was mistreated by co-workers and
called names such as “Uncle Tom,” “snitch,” and “Mexican Lover.” Plaintiff alleges generally
that her supervisors were hostile toward her because they were frustrated with the fact that
Plaintiff was reinstated in September 2012.
“To sustain a claim for hostile work environment, a plaintiff must show that (1) he or she
is a member of a protected class; (2) he or she is subjected to unwelcome race-based harassment;
(3) the harassment was because of membership in the protected class; and (4) the harassment
affected a term, condition, or privilege of his or her employment….The workplace must be
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe and
pervasive.” Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (internal
quotation and citations omitted).
It appears that the only race-based harassment that Plaintiff has alleged is that someone
told her that she had been called an “Uncle Tom” on at least one occasion. By Plaintiff’s own
admission, all of the other alleged mistreatment stemmed from her co-worker’s dissatisfaction
with her reinstatement, not her race. While the alleged name-calling is certainly distasteful
behavior, Plaintiff has not alleged facts that rise to the level of pervasive, severe, and
intimidating behavior required to sustain a hostile work environment claim. See Singletary v.
Missouri Dep't of Corr., 423 F.3d 886 (8th Cir. 2005) (finding job environs where the plaintiff

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had second-hand knowledge his co-workers and some managers referred to him as a “nigger”
and where his vehicle had been vandalized on several occasions not objectively severe and
pervasive); Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir.2004) (finding
racial remarks, made directly to plaintiff, once a month for two years by owner and operators,
was insufficient to render the workplace objectively hostile); Miles v. BG Excelsior Ltd. P'ship,
4:08CV02801 SWW, 2011 WL 124300 (E.D. Ark. Jan. 14, 2011). Accordingly, Plaintiff’s
hostile work environment claim fails and Tyson is entitled to summary judgment on this claim. 3
CONCLUSION
For the reasons explained above, the Court finds that Defendant’s Motion for Summary
Judgment (ECF No. 10) should be and hereby is GRANTED.

Plaintiff’s claims are

DISMISSED WITH PREJUDICE. An Order of even date consistent with this opinion shall
issue.
IT IS SO ORDERED, this 29th day of July, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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As with her retaliation claim, Plaintiff’s response to Tyson’s Motion for Summary Judgment did not address
Tyson’s arguments attacking her hostile work environment claim. Accordingly, the Court has been forced to rely
solely on the allegations in Plaintiff’s Complaint and the exhibits provided by Tyson that detail Plaintiff’s
complaints to her supervisors.

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