Streeter v. Premier Staffing Services et alPER ORDER AT DOCKET 4, PLAINTIFF TO SUBMIT $25 INSTALLMENT PAYMENTS BY THE 20TH OF EACH MONTH UNTIL FILING FEE IS PD IN FULL

Filing 50

MEMORANDUM Opinion and Order granting 43 Motion for Summary Judgment. This case is dismissed with prejudice. Judgment shall enter against plaintiff. Signed by Magistrate Judge Leonard T Strand on 4/1/2014. (copy w/nef to non-ecf filer) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

BRIAN J. STREETER,
Plaintiff,

No. C12-4097-LTS

vs.

MEMORANDUM OPINION AND
PREMIER SERVICES, INC.,
ORDER ON DEFENDANT’S
MOTION FOR SUMMARY
Defendant.
JUDGMENT
____________________________

TABLE OF CONTENTS

I. 

INTRODUCTION........................................................................... 2 

II. 

PROCEDURAL HISTORY ............................................................... 2 

III. 

UNDISPUTED FACTS .................................................................... 5 

IV. 

SUMMARY JUDGMENT STANDARDS .............................................. 8 

V. 

ANALYSIS ................................................................................. 10 
A. 
Disability Discrimination ........................................................ 10 
B. 
Race Discrimination ............................................................. 11 
C. 
Family and Medical Leave Act ................................................. 13 

VI. 

CONCLUSION ............................................................................ 14 

I.

INTRODUCTION

Defendant Premier Services, Inc. (Premier), filed a motion (Doc. No. 43) for
summary judgment on February 11, 2014. Plaintiff Brian J. Streeter, proceeding pro se
in this case, did not file a timely response. On March 11, 2014, I entered an order (Doc.
No. 47) reminding Streeter of the need to file a response and establishing a final deadline
of March 21, 2014, for him to do so. He filed a two-sentence response (Doc. No. 48)
on March 19, 2014, stating, in relevant part, that he has “no objection to a summary
judgment by the court as a conclusion to this case and restitution is awarded regarding
this matter of Medical Leave.” Premier then filed a short reply (Doc. No. 49) in which
it pointed out the contradictory nature of Streeter’s response and contended that summary
judgment is appropriate because Streeter failed to present any evidence establishing a
genuine issue of material fact.
No party has requested oral argument and, in any event, I find it to be unnecessary.
The motion is fully submitted.
II.

PROCEDURAL HISTORY

On October 30, 2012, Streeter filed a pro se application (Doc. No. 1) for leave to
proceed in forma pauperis. The motion consisted of an incomplete application, a cover
letter to the court and various attachments. Streeter did not file a complaint, as required
by Federal Rule of Civil Procedure 3. On November 1, 2012, I filed an order (Doc. No.
2) pointing out the deficiencies in Streeter’s application to proceed in forma pauperis. I
also addressed Streeter’s failure to file a complaint and referred him to the rules of
procedure that describe this requirement. I ordered Streeter to cure these deficiencies no
later than November 16, 2012, by filing (a) an amended and substituted in forma pauperis
application and (b) a “complaint that fully pleads a claim for relief.”
On November 6, 2012, Streeter filed a “Complaint” that stated: “Denied Medical
Leave resulting in job termination and seek restitution in this matter from Prememier
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[sic] Staffing Services and Tur-Pak Foods, Inc.” Doc. No. 3-1. He also filed an amended
application to proceed in forma pauperis. Doc. No. 3-2. On November 21, 2012, I filed
an order (Doc. No. 4) addressing these filings. I granted Streeter’s application to proceed
in forma pauperis and directed him to pay monthly installment payments until the full
filing fee is paid. However, I found Streeter’s one-sentence complaint to be deficient and
ordered him to file an amended complaint by December 10, 2012. Doc. No. 4 at 5.
On December 3, 2012, Streeter filed an amended complaint (Doc. No. 6). The
amended complaint was worse than the original. The body of the document contained
seven words: “I was denied Medical Leave and terminated.” Id. On December 4, 2012,
I issued an order (Doc. No. 7) giving Streeter once last chance to file a suitable complaint.
He filed a second amended complaint (Doc. No. 8) on December 12, 2012, that states:

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Id. While this second amended complaint still fell short of basic pleading requirements,
in light of Streeter’s pro se status I directed that it be served on the named defendants so
they could raise any issues they deemed appropriate. Doc. No. 9.
On May 22, 2013, Premier Staffing Services filed an answer and affirmative
defenses (Doc. No. 13) in which it admitted that Streeter had been an employee of
Premier Staffing Services but denied wrongdoing and liability. Premier Staffing Services
later filed an amended answer (Doc. No. 18). On July 11, 2013, Streeter filed a proposed
amended complaint (Doc. No. 22) that sought to replace Premier Staffing Services with
Premier. Premier Staffing Services filed a response (Doc. No. 24) indicating that it did
not object to this change, as Premier is the correct defendant. As such, I granted the
motion to amend by order (Doc. No. 26) filed July 23, 2013. Premier then filed an
answer and affirmative defenses (Doc. No. 30) with regard to the third amended
complaint. Premier admitted that it had an employment relationship with Streeter but
denied wrongdoing and liability.
Meanwhile, Tur-Pak Foods, Inc. (Tur-Pak), filed a pre-answer motion to dismiss
(Doc. No. 14) on May 28, 2013. Because the motion referenced materials outside the
pleadings, it was converted to a motion for summary judgment on May 29, 2013, and
Tur-Pak was directed (Doc. No. 17) to file additional supporting materials as required
by the rules of procedure. Tur-Pak filed those materials (Doc. No. 19) on June 4, 2013.
Streeter’s deadline for resisting Tur-Pak’s motion for summary judgment was June 28,
2013. See Local Rule 56(b). On July 29, 2013, with no resistance having been filed,
Streeter was cautioned (Doc. No. 31) that the motion could be granted as unresisted if he
did not submit his resistance by August 9, 2013. Streeter did not file a resistance.
On August 30, 2013, the parties submitted a proposed scheduling order and
discovery plan that, among other things, included their unanimous consent to trial,
disposition and judgment by a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c)(3). Accordingly, an order of reference to me (Doc. No. 36) was filed September
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3, 2013. On September 6, 2013, I entered an order (Doc. No. 38) granting Tur-Pak’s
unresisted motion for summary judgment and dismissing it from this case. This leaves
Premier as the only remaining defendant. Trial is scheduled to begin March 9, 2015.
III.

UNDISPUTED FACTS

Premier has filed a statement of undisputed material facts (Doc. No. 43-2)
supported by relevant evidentiary materials (Doc. No. 43-3). Because Streeter has not
filed a response, all of those facts are deemed admitted for purposes of Premier’s motion
for summary judgment. See Local Rule 56(b). Thus, the undisputed facts are as follows:
1.

Streeter is a former employee of Premier.

2.

Premier is a staffing agency that hires employees and contracts these

employees to work for a third-party business with which Premier has an existing
contractual relationship.
3.

Streeter previously worked for Premier on three occasions:
a.
b.

October 4, 2010, to November 1, 2010

c.
4.

March 26, 2010, to Apri1 21, 2010
December 23, 2010, to January 4, 2011

On each of these three occasions, Streeter was placed with Tur-Pak as a

temporary worker.
5.

On March 26, 2010, and December 23, 2010, Streeter signed

acknowledgements of the attendance policy for employees placed at Tur-Pak and signed
acknowledgements that he received a copy of the Employee Handbook.
6.

The Tur-Pak attendance policy states:
Perfect attendance the first 2 weeks of work is mandatory.
Failure to comply may result in immediate termination.
Effective Immediately
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ALL appointments and absences must be called in to Turpak
Foods. Turpak Foods will use their discretion on excused or
unexcused absences from work. Call-ins, tardies, etc., need
to be called into Turpak Foods immediately. Funerals,
doctor's appointments, etc., will require proof of absence.
[emphasis in original]
7.

The applicable section of the Premier Employee Handbook states:
NO CALL/NO SHOW
The first time that you are tardy or fail to report or call in to
work will result in a written warning.
If you fail to report or call in for two consecutive days, you
will be considered to have voluntarily quit.
The second time, within a twelve month period, that you are
tardy or fail to report or call in to work will result in
termination.

8.

On April 21, 2010, Streeter's first employment stint with Premier ended

after he failed to report or call-in to work for two consecutive days, and he was deemed
to have voluntarily quit under the policies stated above.
9.

On November 1, 2010, Streeter's second employment stint with Premier

ended when Tur-Pak reduced its second shift staff and he was laid-off.
10.

On January 4, 2011, Streeter's third employment stint with Premier ended

after he again failed to report or call-in to work for two consecutive days, and he was
deemed to have voluntarily quit under the policies stated above.
11.

After Streeter failed to report or call-in to work for two consecutive days,

he came to Premier’s office and presented a doctor's note that stated he was seen at the
VA Clinic on January 3 and 4, 2011, for doctors' appointments.
12.

This note did not state that Streeter was medically unable to report or call-

in to work on either January 3 or 4, 2011.
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13.

Streeter did not notify Premier or Tur-Pak – verbally or otherwise – prior

to January 3 or 4, 2011, that he would be unable to work those days.
14.

Streeter did not notify Premier or Tur-Pak – verbally or otherwise – on

January 3 or 4, 2011, that he would not be reporting to work at Tur-Pak those days.
15.

Several people – both white and nonwhite – were deemed to have

voluntarily terminated their employment with Premier because they did not report or callin to work for two consecutive days on January 3 and 4, 2011.
16.

Streeter did not notify Premier – verbally or otherwise – that he was

disabled.
17.

Streeter did not notify Premier – verbally or otherwise – that he would like

a reasonable accommodation for any disability.
18.

Streeter's alleged disability is not readily ascertainable, and no one from

Premier perceived him as having any disability.
19.

On his employment application for Premier, when asked whether he has “a

physical or mental disability for which this company needs to make reasonable
accommodations in order for you to work in the position for which you are applying,”
Streeter put an "X" on the line indicating “No.”
20.

On his employment application for Premier, on the empty lines following

the statement: “If yes, please describe your physical handicap/disability so we can
determine if reasonable accommodations can be accomplished,” Streeter wrote, “N/A.”
21.

The first time anyone at Premier learned of Streeter's alleged disability was

after he was deemed to have voluntarily terminated his employment.
22.

Streeter has admitted that he never informed Premier that he was disabled.

23.

Streeter has admitted that he did not call Premier or Tur-Pak before the

beginning of his scheduled shift on January 3, 2011, to notify Premier or Tur-Pak of his
absence that day.
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24.

Streeter has admitted that he did not call Premier or Tur-Pak before the

beginning of his scheduled shift on January 4, 2011, to notify Premier or Tur-Pak of his
absence that day.
25.

Streeter has admitted that he was medically able to call in to work on

January 3 and 4, 2011.
26.

Streeter has admitted that he failed to comply with the applicable call-in

policy when he was absent from work on January 3 and 4, 2011.
27.

Streeter acknowledged that he signed the attendance policy for employees

placed at Tur-Pak on December 23, 2010.
28.

Streeter filed a civil rights complaint with the Equal Employment

Opportunity Commission ("EEOC") on March 17, 2011.
29.

Streeter’s complaint was cross-filed with the Iowa Civil Rights Commission

("ICRC") on April 6, 2011.
30.

The EEOC investigated Streeter’s claim and was unable to conclude that

the information obtained established a violation of any statute.
IV.

SUMMARY JUDGMENT STANDARDS

Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
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under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question,” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475
U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. Essentially, a
genuine issue of material fact determination, and thus the availability of summary
judgment, is a determination of “whether a proper jury question [is] presented.” Id. at
249. A proper jury question is present if “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.” Id.
The party moving for entry of summary judgment bears “the initial responsibility
of informing the court of the basis for its motion and identifying those portions of the
record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex,
477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must
go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific
facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415
F.3d 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine
and material as it relates to the substantive law. If a party fails to make a sufficient
showing of an essential element of a claim or defense with respect to which that party
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has the burden of proof, then the opposing party is entitled to judgment as a matter of
law. Celotex, 477 U.S. at 322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. Id. However, “because we view the facts in the light
most favorable to the nonmoving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a
dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1376-77 (8th Cir. 1996).
V.

ANALYSIS

Reading Streeter’s third amended complaint (Doc. No. 27) as generously as
possible, it appears that he may be asserting the following claims: (1) violation of the
Americans with Disabilities Act (ADA), (2) violation of the Family and Medical Leave
Act (FMLA), (3) race discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, and (4) race and disability discrimination in violation of the Iowa Civil
Rights Act (ICRA). Premier argues that Streeter cannot, as a matter of law, establish a
prima facie case of either employment or race discrimination. After addressing those
arguments, I will touch on Streeter’s possible claim for relief under the FMLA.
A.

Disability Discrimination
To prevail on a claim of disability discrimination under either the ADA or the

ICRA, a plaintiff must first establish a prima facie case of discrimination. See Olsen v.
Capital Region Med. Center, 713 F.3d 1149, 1153 (8th Cir. 2013); Casey's Gen. Stores,
Inc., v. Blackford, 661 N.W.2d 515, 519-20 (Iowa 2003). To establish that prima facie
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case, Streeter must prove he (1) had a disability within the meaning of the relevant statute,
(2) was qualified to perform the essential functions of his job with or without reasonable
accommodation, and (3) suffered an adverse employment action because of his disability.
Hansen v. Seabee, Corp., 688 N.W.2d 234, 238 (Iowa 2004) (analyzing ADA claim and
citing Kincaid v. City of Omaha, 378 F.3d 799, 804 (8th Cir. 2004)); Casey's Gen.
Stores, 661 N.W.2d at 519-20 (stating identical elements of ICRA disability
discrimination claim).
Here, Premier focuses on the third prong and points out that there is no evidence
that it knew of Streeter's alleged disability. In light of this lack of knowledge, Premier
argues that Streeter cannot prove he suffered an adverse employment action because of
his disability. Premier is correct. To survive a motion for summary judgment, Streeter
must point to evidence of “a specific link between the alleged discriminatory animus and
the challenged decision, sufficient to support a finding by a reasonable fact finder than
an illegitimate criterion actually motivated the adverse employment action.” Napreljac
v. John Q. Hammons Hotels, Inc., 461 F. Supp. 2d 981, 1020 (S.D. Iowa 2006) (quoting
Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004)). It is undisputed that
Premier had no knowledge of Streeter’s alleged disability. Indeed, Streeter represented
to Premier in his employment application that he had no disability and, therefore, needed
no accommodation of any kind. Absent evidence that Premier actually knew of Streeter’s
alleged disability, there is no basis to find that it took adverse action because of that
alleged disability. Premier is entitled to summary judgment on Streeter’s claim of
disability discrimination.
B.

Race Discrimination
“A plaintiff alleging race discrimination may survive summary judgment either by

direct evidence, or by creating an inference of discrimination under the McDonnell
Douglas burden-shifting framework.” Lake v. Yellow Transp., Inc., 596 F.3d 871, 873
11

(8th Cir. 2010). The undisputed facts, as set forth above, include no direct evidence of
discrimination. As such, Streeter’s claim must be analyzed under the McDonnell Douglas
framework. This means that to establish a prima facie case of race discrimination,
Streeter “must show (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. at 874; accord
Norman v. Union Pac. R.R. Co., 606 F.3d 455, 461 (8th Cir. 2010).
Here, Premier contends that Streeter cannot establish the second or fourth elements
of his prima facie case. With regard to the second element, Premier contends that Streeter
failed, as a matter of law, to meet his employer's legitimate expectations. It notes that
Streeter admits (a) that he did not call prior to his shifts on January 3 and January 4,
2011, to inform Premier that he was unable to work on those days and (b) that he failed
to comply with the applicable attendance policy. As for the fourth element, Premier
contends that there is no evidence of any circumstances that could give rise to an inference
of discrimination, such as evidence that similarly situated employees outside the protected
class were treated differently.

Premier points to undisputed facts showing that six

employees, some white and some nonwhite, violated Premier’s attendance policy on
January 3 and 4, 2011, and that all were thereby deemed to have voluntarily terminated
their employment. Thus, Premier contends that it is undisputed that Premier treated
similarly situated employees equally, regardless of race.
Based on the undisputed facts in the summary judgment record, Premier is correct
with regard to both the second and fourth prongs of Streeter’s prima facie case. It is
undisputed that Streeter failed to meet Premier’s legitimate expectations with regard to
his absences on January 3 and 4, 2011. It is also undisputed that all employees who
committed similar violations were treated the same, regardless of race. On this record,
Premier is entitled to summary judgment on Streeter’s claim of race discrimination.
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C.

Family and Medical Leave Act
Premier does not specifically address the FMLA, probably because it is not at all

clear from Streeter’s third amended complaint that he asserts a claim under that Act.
Even assuming Streeter intended to allege that Premier violated his rights under the
FMLA, the undisputed facts in the record demonstrate that he would not be entitled to
relief.
An employee is not covered by the FMLA until he or she has been employed by
the employer for at least twelve months and worked at least 1,250 hours during that
twelve-month period. See 29 U.S.C. § 2611(2)(A); Nevada Dept. of Human Res. v.
Hibbs, 538 U.S. 721, 739 (2003) (FMLA leave “applies only to employees who have
worked for the employer for at least one year and provided 1,250 hours of service within
the last 12 months.”). Here, the undisputed facts show that Streeter was employed by
Premier on three separate occasions: (a) March 26, 2010, to April 21, 2010, (b) October
4, 2010, to November 1, 2010, and (c) December 23, 2010, to January 4, 2011. Streeter
was not employed by Premier for at least twelve months. Indeed, his three short periods
of employment totaled less than 70 calendar days over a period of about nine months.
Thus, Streeter would not even arguably have been eligible to demand FMLA leave from
Premier in January 2011. To the extent Streeter asserts a claim under the FMLA,
Premier is entitled to summary judgment on that claim.

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VI.

CONCLUSION

For the reasons set forth herein, Premier’s motion (Doc. No. 43) for summary
judgment is granted. This case is dismissed with prejudice. Judgment shall enter
against plaintiff.

IT IS SO ORDERED.
DATED this 1st day of April, 2014.

__________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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