Menjivar v. Tyson Poultry, Inc. et al

Filing 31

OPINION AND ORDER granting 23 Motion for Summary Judgment and granting 26 Motion for Extension of Time to File Response/Reply. Signed by Honorable P. K. Holmes, III on December 7, 2018. (tg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CATALINA MENJIVAR
v.

PLAINTIFF
No. 5:17-CV-05260

TYSON POULTRY, INC., and
TYSON FOODS, INC.

DEFENDANTS
OPINION AND ORDER

Before the Court is Defendants’ November 12, 2018 motion (Doc. 23) for summary
judgment. Defendants have filed a brief (Doc. 24) and statement of facts (Doc. 25) in support.
Plaintiff has filed an untimely motion (Doc. 26) for extension of time to file her response to the
motion for summary judgment. Although the motion for extension of time has not been granted,
she has also filed a response (Doc. 27) to the motion for summary judgment, a brief (Doc. 28) in
opposition to summary judgment, and a responsive statement of facts (Doc. 29). Defendants have
filed a response (Doc. 30) in opposition to the motion for extension of time.
In her motion to extend, Plaintiff requests additional time because her attorney “mistakenly
believed that his client had 21 days to respond” to a motion for summary judgment, rather than the
14 days set out in this Court’s local rules. (Doc. 26, p. 1). That is, although the actual response
deadline was November 26, 2018, Plaintiff’s counsel believed the response deadline to be
December 3, 2018. Plaintiff filed her motion for extension of time and responsive documents on
December 4, 2018. Defendants argue that Plaintiff’s motion for extension should be denied
because “Plaintiff has stated only lack of diligence on the part of counsel” which is insufficient to
demonstrate good cause or excusable neglect. (Doc. 30, p. 2). The Court agrees that Plaintiff’s
motion for extension of time does not set out good cause for missing the deadline, let alone
excusable neglect. Nevertheless, because of the preference for ruling on the merits, the Court will
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grant the motion for extension of time and consider the untimely response. 1 Defendants’ motion
for summary judgment will be granted.
Plaintiff’s complaint raises claims for termination of employment and a hostile workplace
environment constituting unlawful employment discrimination on the basis of national origin.
Title VII of the Civil Rights Act prohibits employment discrimination on the basis of national
origin. 42 U.S.C. § 2000e, et seq.
With respect to Plaintiff’s claim arising out of termination of her employment, there is no
direct evidence of discrimination in the record. In the Title VII context, “direct evidence is
evidence ‘showing a specific link between the alleged discriminatory animus and the challenged
decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion
actually motivated’ the adverse employment action.” Torgerson v. City of Rochester, 643 F.3d
1031, 1044 (8th Cir. 2011) (quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th
Cir. 1997)).
Plaintiff was employed at Defendant Tyson Poultry, Inc.’s Chick-N-Quick plant in Rogers,
Arkansas, and was supervised by Fredy Valladares.2 The challenged decision is the termination
of Plaintiff’s employment. The discriminatory animus is Valladares’s alleged bigotry against

Despite the clear requirement of the Rules, Plaintiff’s responsive statement of facts
(Doc. 29) does not specifically controvert any facts in Defendants’ statement of facts, nor does it
cite to any portion of the record. Fed. R. Civ. P. 56(e)(2); W.D. Ark. R. 56.1(c). Instead, it
provides only a conclusory legal statement that “[t]he statements made by the Defendant for the
termination of the Plaintiff’s employment are a pretext as demonstrated by the overt statements
regarding the Plaintiff’s national origins made [by] Defendant’s supervisor and previous to the
reasons stated by the employer.” (Doc. 29). Plaintiff has attached short affidavits and their
translations (Docs. 27-1–27-4) to her motion, however, and the Court has considered these
documents. Except for any facts put into dispute by the affidavits, the material facts in Defendants’
statement of facts are deemed admitted.
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Plaintiff was not employed by Defendant Tyson Foods, Inc., and dismissal of claims
against it will be had on that basis.
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Salvadorians. The decision to terminate Plaintiff’s employment was made by Manuel Aguirre3 in
Defendants’ human resources department. There is no instance in the record of Aguirre expressing
a discriminatory animus against Salvadorians, and no apparent link between Aguirre’s decision
and Valladares’s alleged bigotry. Because Plaintiff lacks direct evidence of discriminatory
animus, her case can overcome Defendants’ motion for summary judgment only if she can raise
an inference of unlawful discrimination under the McDonnell Douglas burden-shifting framework.
Torgerson, 643 F.3d at 1044.
Under the McDonnell Douglas framework, if Plaintiff can meet her burden to produce
evidence that establishes a prima facie case of discrimination, Defendants may then articulate a
legitimate nondiscriminatory reason for their decision, and the burden shifts back to Plaintiff to
produce evidence sufficient to create a genuine issue of material fact as to whether Defendants’
articulated reason was pretext for intentional discrimination. Id. at 1046. The Court need not
determine whether Plaintiff can make out a prima facie case of discrimination because Defendants
have articulated a legitimate nondiscriminatory reason for the decision to terminate Plaintiff’s
employment and she has not produced any evidence to show that the decision was mere pretext
for unlawful discrimination.
Defendant’s policy is to terminate the employment of any employee who receives a
combination of one written warning with suspension and three written warnings within any 12month period. On October 31, 2016, Plaintiff and other team members were disciplined for yelling
at one another. Because Plaintiff had previously been counseled to treat coworkers with respect
and dignity, Aguirre gave her a written warning.

On December 15, 2016, following an

Aguirre’s decision was approved by director of human resources Travis Fredricksen, who
otherwise had no apparent involvement.
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investigation into a report he received, Aguirre gave Plaintiff a written warning because he
believed she had taken an unauthorized lunch break on December 14, 2016. On May 19, 2017,
Aguirre gave Plaintiff a written warning with suspension because he believed she had used obscene
language while talking with another employee. On May 25, 2017, after reviewing security camera
footage, Aguirre gave Plaintiff a written warning because she was repeatedly taking product she
believed to be inferior off the production line, turning her back to the production line as additional
product went by, so she could show the inferior product to the camera. Because this was her third
written warning within a 12-month period, and because she also received a written warning and
suspension in that period, Aguirre proposed termination of Plaintiff’s employment.
Although Valladares was involved in some of Aguirres’s investigations, the disciplinary
decisions were made by Aguirre. Plaintiff has produced no evidence to show that Aguirre had a
discriminatory animus against her on the basis of her national origin, and no evidence that Aguirre
did not in good faith believe after his investigations that Plaintiff’s conduct warranted the warnings
and discipline handed out to her. Cf. Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 n.2 (8thCir.
1994) (agreeing that relevant inquiry in pretext analysis is not whether employee actually
committed acts of misconduct justifying discipline, but whether employer believed employee had
committed those acts).
Because Plaintiff cites no evidence to show that Defendants’ justification for terminating
her employment was pretext for unlawful discrimination, judgment against her is proper on
discrimination claims arising out of termination of her employment.
With respect to Plaintiff’s hostile workplace environment claim, her supervisor Valladares
twice said to her “pinche salvadoreña”—a vulgar phrase incorporating her national origin.
Valladares also did not allow her bathroom breaks, causing her to urinate in her pants; would not

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allow her to turn on fans in the work area and would yell at her when she asked to turn on a fan;
would bang his fist on the wall and make loud noises to scare her; denied her permission to go to
a doctor’s appointment to see if her cancer was still in remission; and angrily confronted her when
she returned to work from that appointment after she received permission from Valladares’s
superiors to go.
Title VII is not a workplace civility code. Faragher v. City of Boca Raton, 524 U.S. 775,
787–88 (1998). Plaintiff must show that the actions constituting harassment are sufficiently
serious to affect a term, condition, or privilege of employment, and this standard is “demanding.”
Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 634 (8th Cir. 2016). Plaintiff must also show a
causal nexus between those actions and her national origin. Id. Plaintiff’s response does not show
that the acts of harassment were sufficiently severe and pervasive to satisfy Title VII’s standard.
More importantly, with the exception of Valladares’s vulgarity, Plaintiff cannot show a causal
nexus between any harassment and her national origin. Nor can she show that Valladares’s
vulgarity is sufficiently severe to give rise to a Title VII hostile workplace environment claim. See
Faragher, 524 U.S. at 788 (explaining that infrequent “mere offensive utterance[s],” “simple
teasing,” “offhand comments,” “isolated incidents,” and “the sporadic use of abusive language”
are not actionable). Judgment against Plaintiff is proper on her hostile workplace environment
claims.
IT IS THEREFORE ORDERED that Plaintiff’s motion for an extension of time (Doc. 26)
is GRANTED.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (Doc. 23) is
GRANTED and Plaintiff’s claims are DISMISSED WITH PREJUDICE. Judgment will be
entered accordingly.

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IT IS SO ORDERED this 7th day of December, 2018.

/s/P. K. Holmes, 
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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